26CA0236 Schneider v ICAO 06-25-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 26CA0236 Industrial Claim Appeals Office of the State of Colorado DD No. 20189-2025
Jill Schneider,
Petitioner,
v.
Industrial Claim Appeals Office of the State of Colorado and Cherry Creek School District No. 5,
Respondents.
ORDER AFFIRMED
Division V Opinion by JUDGE YUN Schutz and Bernard*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced June 25, 2026
Overlook Law PLLC, Craig W. Clark, Hannah M. Cowden, Denver, Colorado, for Petitioner
No Appearance for Respondent Industrial Claim Appeals Office of the State of Colorado
Semple, Farrington, Everall & Case, P.C., M. Johnathan Koonce, Denver, Colorado, for Respondent Cherry Creek School District No 5
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2025. ¶1 In this unemployment benefits case, Jill Schneider appeals a
final order of the Industrial Claim Appeals Office (the Panel)
affirming a hearing officer’s decision to disqualify her from receiving
benefits following her separation from employment with the Cherry
Creek School District (the Employer). We affirm the Panel’s final
order.
I. Background
¶2 Schneider worked as a Human Resources Assistant for the
Employer. On June 6, 2025, at 7:56 a.m., she emailed her
supervisor that she was resigning “effective July 4.” In her email,
Schneider said she “greatly valued her time working with” the
Employer, was “committed to ensuring a smooth transition” during
her remaining time, and thanked “the entire HR team for support,
guidance and collaboration” throughout her employment. She also
said she would not be in that day due to a family matter.
¶3 Shortly thereafter, Schneider’s supervisor responded that
Schneider was still required to attend a scheduled in-person
meeting at 9:00 a.m. that morning with Sydney Broders, the
Employee Relations Liaison. Schneider was aware of the meeting
because, the day before, her supervisor sent her home early and
1 instructed her to meet with Broders at 9:00 a.m. the next morning,
rather than report to work her usual 7:30 a.m. time. The meeting
was apparently intended to address concerns that Schneider made
unprofessional remarks about not receiving a promotion and
requested a coworker to take her place in onboarding the new hire
selected for that promotion.
¶4 When Schneider did not arrive for the 9:00 a.m. meeting,
Broders called and left a voicemail around 9:30 a.m., requesting
that Schneider return her call. When Schneider did not respond,
Broders left another voicemail advising Schneider that she was
being placed on paid administrative leave, but if she failed to come
to the office for the meeting, the leave would be unpaid.
¶5 Schneider eventually returned Broders’s call, explaining that
she could not attend the meeting in person and requesting that it
be held by phone. Broders denied this request. Schneider then
emailed Broders, explaining that her in-person unavailability was
due to a “personal matter with my parents.” Broders replied as
follows:
You were directed to report to [work] this morning at 9am, and you did not show up. Then when we spoke on the phone just before
2 noon today, you were again directed to come to [work], at which time you stated that you would not be coming. Refusal to follow the directive that [your supervisor] gave you yesterday and again this morning as well as the directive . . . to report to [work] today is insubordination. As a result, you will not be paid leave time for two weeks and your separation date will be effective today, June 6, 2025. As we discussed via phone, you can either send us your updated written resignation with today’s date by 3:00 pm, or your employment with [Employer] will be terminated.
In response, Schneider emailed Broders, “I resign effective
immediately.”
¶6 Alan Lavizzo, the Human Resources Director, emailed
Schneider, “Thank you Jill. We will process the separation as a
resignation. We will also pack up any personal items that you have.
Please let me know of a date next week when you can collect the
items.”
¶7 Following her resignation, Schneider applied for
unemployment benefits. A deputy for the Colorado Division of
Unemployment Insurance determined that she was disqualified
from receiving benefits under section 8-73-108(5)(e)(XXII), C.R.S.
2025 (quitting employment for personal reasons). Schneider then
3 requested a hearing to contest the deputy’s determination. The
hearing officer affirmed the disqualification but relied on a different
provision, section 8-73-108(5)(e)(I) (quitting employment due to
dissatisfaction with standard working conditions).
¶8 Schneider appealed the hearing officer’s decision, and the
Panel affirmed. The Panel further modified the disqualifying
provision to section 8-73-108(5)(e)(II) (quitting employment because
of dissatisfaction with supervision not shown to be other than that
reasonably to be expected in the proper performance of work).
II. Legal Principles and Standard of Review
¶9 We may set aside the Panel’s decision only if (1) the Panel
acted without or in excess of its powers; (2) the decision was
procured by fraud; (3) the findings of fact do not support the
decision; or (4) the decision is erroneous as a matter of law. §
8-74-107(6)(a)-(d), C.R.S. 2025. We review de novo ultimate
conclusions of fact and ultimate legal conclusions. Harbert v.
Indus. Claim Appeals Off., 2012 COA 23, ¶¶ 8-9.
¶ 10 A claimant’s entitlement to benefits is determined by the
reason for the separation from employment, which is a matter to be
resolved by the trier of fact. Eckart v. Indus. Claim Appeals Off.,
4 775 P.2d 97, 99 (Colo. App. 1989). The trier of fact must evaluate
the totality of the evidence and determine the motivating factors in
the employee’s separation. Id.
III. Analysis
¶ 11 Schneider contends that the Panel erred by disqualifying her
from receiving benefits for the following reasons: (1) her separation
qualifies as a “termination in lieu of discharge” under section
8-73-108(4)(g), C.R.S. 2025; (2) the hearing officer’s factual finding
that she “quit because she did not want to attend an in-person
meeting” is rebutted by other “hard, certain evidence”; (3) her
working conditions were objectively unsatisfactory under section
8-73-108(4)(c); and (4) alternatively, she is entitled to partial
benefits under Diringer v. Industrial Commission, 712 P.2d 1091
(Colo. App. 1985) because her notice period was shortened by the
Employer. We disagree with these contentions.
A. First Resignation
¶ 12 Schneider argues that the Panel should have applied section
8-73-108(4)(g), which permits benefits when an employee, “after
being given the choice by his employer between being terminated,
furloughed, or laid off and replacing another worker, the worker has
5 elected to accept a termination, furlough, or layoff.” But Schneider
did not cite that subsection in her brief to the Panel, and as a
general rule, we do not consider arguments not presented to the
Panel. See McClaflin v. Indus. Claim Appeals Off.,126 P.3d 288, 289
(Colo. App. 2005) (appellate court declined to consider issue
because claimant failed to raise it before the Panel).
¶ 13 Even if we were to consider Schneider’s argument, the plain
language of section 8-73-108(4)(g) does not support her position.
The statute applies only when an employee is offered a choice
“between being terminated, furloughed, or laid off and replacing
another worker.” See Keysight Techs., Inc. v. Indus. Claim Appeals
Off., 2020 COA 29, ¶ 11 (“If the language is clear, we apply [a
statute] as written and need not resort to other tools of statutory
interpretation.”). Nothing in the record indicates that Schneider
was offered such a choice.
¶ 14 Schneider also asserts that the hearing officer and the Panel
should have treated her job separation as a “quit in lieu of
discharge.” Citing Goddard v. E G & G Rocky Flats, Inc., 888 P.2d
369, 371 (Colo. App. 1994), Schneider argues that a resignation is
treated as involuntary if the “employee quits in the reasonable belief
6 that termination is imminent.” But in Goddard, the worker was
notified that his position was at risk of being eliminated and he
chose a voluntary layoff instead, circumstances not present here.
Id. at 370. Schneider had already submitted her resignation before
any termination decision was made.
¶ 15 Schneider acknowledges in her brief that the June 6 meeting
was intended to address administrative leave and a possible
investigation. Broders testified that the meeting was “not intended
to be a due process conversation because I needed to conduct an
investigation first.” She intended to present a one-page document
outlining administrative leave and expectations during that period.
¶ 16 In its initial response to the Division’s questionnaire
concerning the job separation, the Employer wrote:
[Schneider] resigned, giving two weeks notice. However, prior to the conclusion of her final two weeks, HR was made aware of allegations of misconduct. In the process of attempting to investigate the allegations, [Schneider] was directed to meet with Employee Relations for due process. [Schneider] refused to meet with the office of Employee relations, and was informed that if she refused to meet, she would be terminated. [Schneider] elected to resign immediately in lieu of meeting with Human Resources.
7 ¶ 17 The hearing officer determined, and the Panel agreed, that “the
event that initially triggered [Schneider] to tender her resignation
effective July 4, 2025, was the requirement that she attend a
scheduled meeting in person.” The hearing officer further found,
and the Panel agreed, that “while evidence was presented that the
effective date of [her] resignation was hastened after she refused to
attend the meeting, this does not change the ultimate nature of
[her] volitional act of tendering her resignation in an attempt to
forgo attending the scheduled in-person meeting.”
¶ 18 We agree that Schneider’s first resignation was a voluntary act
that resulted in her termination. See Cunliffe v. Indus. Claim
Appeals Off., 51 P.3d 1088, 1090 (Colo. App. 2002) (“When a
claimant’s voluntary resignation sets in motion the chain of events
that ultimately results in unemployment, we cannot say that the
claimant was unemployed through no ‘fault’ of her own.”).
¶ 19 To avoid disqualification under section 8-73-108(5)(e) and
qualify for benefits, Schneider needed to establish that she became
“unemployed through ‘no fault’ of [her] own.” Cole v. Indus. Claim
Appeals Off., 964 P.2d 617, 618 (Colo. App. 1998). For purposes of
the unemployment statutes, “fault” includes a “volitional act or the
8 exercise of some control or choice in the circumstances leading to
the discharge from employment such that the claimant can be said
to be responsible for the termination.” Richards v. Winter Park
Recreational Ass’n, 919 P.2d 933, 934 (Colo. App. 1996). “Volition”
means the power or ability to choose and decide or to exercise some
control over the circumstances, as opposed to acting in a manner
that is “essentially involuntary” or “accidental.” Starr v. Indus.
Claim Appeals Off., 224 P.3d 1056, 1065 (Colo. App. 2009).
¶ 20 The hearing officer questioned Schneider about whether her
absence from the meeting was due to a family matter or her
discomfort with attending the meeting. Schneider answered, “I was
very uncomfortable going.” When asked, “Why did you tell them it
was a family matter,” Schneider responded that she was “dealing
with some things professionally and personally, and I just wanted
to reiterate that I wanted to take leave time that day.”
¶ 21 Broders testified that she offered Schneider the option to
attend the meeting later that day, but Schneider ultimately refused
to attend. Broders also testified that, as a human resources
employee, Schneider knew that such meetings required in-person
attendance.
9 ¶ 22 It is the hearing officer’s responsibility to assess the credibility
of witnesses, resolve any conflicts in the evidence, and determine
the weight to be accorded the evidence. See Tilley v. Indus. Claim
Appeals Off., 924 P.2d 1173, 1177 (Colo. App. 1996). We may
interfere with the hearing officer’s credibility determinations only in
extreme circumstances, such as where the credited testimony is
rebutted by “hard, certain evidence,” making it error as a matter of
law to credit it. Halliburton Servs. v. Miller, 720 P.2d 571, 578
(Colo. 1986).
¶ 23 Schneider argues that Halliburton applies because, in her
view, the hearing officer’s credibility findings are rebutted by the
Employer’s form submitted to the Division, which she interprets as
classifying the job separation as “in lieu of discharge.” But this
interpretation is incorrect. The form identified the “Employer’s
reason for claimant’s separation” as “voluntary quit,” and when
asked, “What reason did the claimant give for quitting,” the
response was “in lieu of discharge.” Elsewhere in the form, the
Employer noted that Schneider “elected to resign immediately in
lieu of meeting with human resources.”
10 ¶ 24 Schneider further contends that the hearing officer’s finding
overlooks Broders’ testimony that Schneider “resigned her position
in lieu of termination due to insubordination.” But as the Panel
observed, Broder also testified that Scheider submitted the first
resignation before the insubordination issue arose. We find no
error in the conclusion that Scheider’s first resignation was due to
her discomfort with attending the scheduled meeting.
¶ 25 Schneider also argues that Broders’ email, which gave her a
choice between resigning immediately or being terminated,
contradicts the finding that her initial resignation triggered the job
separation. But this argument disregards the fact that, at the time
of her initial resignation, she was not facing immediate termination.
Schneider testified that Broders’ second voicemail offered
administrative leave as an option. Schneider could have attended
the meeting to avoid immediate termination, but her choice —
refusal to attend the in-person meeting — ultimately led to her
resignation. See Cunliffe, 51 P.3d at 1090 (an employer who
accepts an employee’s unequivocal notice of resignation is entitled
to rely on it without the risk of being charged for compensation
benefits).
11 ¶ 26 Upon reviewing the entire record, we reject Schneider’s
argument that the hearing officer’s findings were rebutted by hard,
certain evidence as contemplated by Halliburton.
B. Second Resignation
¶ 27 Schneider argues that the Employer’s actions amounted to a
“constructive discharge” and that “the hearing officer failed to
recognize that attempts at constructive discharge constitute a
substantial change in working conditions under section
8-73-108(4)(c).”
¶ 28 Section 8-73-108(4)(c) entitles an employee to unemployment
benefits if the job separation was due to “unsatisfactory or
hazardous working conditions.” Id. In making this determination,
the hearing officer should consider whether the working conditions
“are the same or substantially the same as the working conditions
generally prevailing among workers performing the same or similar
work.” Id.
¶ 29 Schneider points to several circumstances in support of her
claim that her working conditions were unsatisfactory. For
example, she refers to “eighteen months of broken promotion
promises and detrimental reliance,” the “requirement to fingerprint
12 and process the external candidate given the promised promotion,”
her “abrupt and unexplained removal from the workplace on
June 5,” her “past experiences of hostile treatment in Employee
Relations,” and a “coercive resign-or-be-fired ultimatum imposed
under a two-hour deadline.” She alleges that this “hostile
treatment” constituted “constructive discharge.”
¶ 30 But as the Panel recognized, “constructive discharge” occurs
when an employer creates intolerable or hostile working conditions
such that a reasonable person would feel compelled to resign. See,
e.g., Krauss v. Cath. Health Initiatives Mountain Region, 66 P.3d 195
(Colo. App. 2003). The unemployment statutes do not specifically
provide for “constructive discharge”; rather, section 8-73-108(4)(c)
provides for an award when an employee quits due to
dissatisfaction with working conditions.
¶ 31 Whether working conditions are unsatisfactory is determined
by an objective standard. See Rodco Systems, Inc. v. Indus. Claim
Appeals Off., 981 P.2d 699, 701-02 (Colo. App. 1999) (“[T]he issue is
whether a reasonable person in the claimant’s position would have
found the actual working conditions, as determined by the hearing
13 officer to have existed, to be so detrimental to that worker’s physical
or mental well-being as to warrant resignation from employment.”).
¶ 32 The hearing officer determined that the meeting Schneider was
required to attend was part of the Employer’s standard investigative
process and was not unreasonable under the circumstances.
Because in-person attendance was the standard procedure for such
meetings, the hearing officer concluded that this requirement
constituted a standard working condition generally prevailing
among similarly situated employees.
¶ 33 As for Schneider’s other complaints, we agree with the Panel
that she failed to show her working conditions were objectively
unsatisfactory under section 8-73-108(4)(c). That provision
considers factors such as: (1) the degree of risk to the worker’s
health, safety, or morals; (2) the worker’s physical fitness, prior
training, experience, and prior earnings; (3) the distance of work
from the worker’s residence; and (4) the working conditions of
others performing the same or similar work in the locality. Id.
¶ 34 The Panel ultimately concluded that a reasonable person in
Schneider’s position would not have considered her working
14 conditions so unsatisfactory, as defined by statute, as to require
resignation. We discern no error in this determination.
C. Diringer Benefits
¶ 35 Schneider relies on Diringer to argue that she is entitled to
partial benefits because her notice period was shortened by the
Employer. We disagree.
¶ 36 In Diringer, the claimant — a law firm associate — told the
partners in early June that he would probably be leaving the firm in
September to move to California so his wife could pursue a
graduate degree. Diringer, 712 P.2d at 1091. A partner told him a
few days later that the firm planned to hire a replacement as soon
as possible, making his status with the firm uncertain. Id. At that
time, the claimant reiterated his desire to stay with the firm
through September. Id.
¶ 37 On June 29, the claimant was told that his last day would be
June 30 even though no replacement had been hired. Id. The firm
stated that there would have been no issue with his continued
employment had he not announced his intent to leave in
September. Id.
15 ¶ 38 On appeal, a division of this court held that “an employee
terminated under these circumstances is eligible for a full award of
benefits for this period.” Id. at 1092. Specifically, the division
explained that the “claimant cannot be said to have chosen to be
unemployed and unpaid during the period between [his]
termination and the effective date of [his] resignation.” Id. Thus, he
was unemployed through no fault of his own during that period. Id.
¶ 39 Unlike Diringer, however, Schneider failed to follow the
Employer’s policies during her notice period. At the hearing, the
Employer’s counsel asked Schneider a question about her first
resignation: “So during that period between June 6th and July 4th,
would you have continued to be employed?” Schneider answered,
“Yes, based on my resignation, correct.” Counsel then asked, “So
based on that, would you still be subject to directives from your
employer?” Schneider responded, “Yes.” Then, counsel asked her,
“Did you receive a directive to come into the building that day to
meet with Ms. Broders?” Schneider again answered, “Yes.” Finally,
counsel asked if she complied with that directive to which
Schneider responded, “I did not.”
16 ¶ 40 After considering this testimony as well as the entire record,
we discern no error in the Panel’s conclusion that Diringer does not
apply. Schneider’s desire to stay until July 4 did not obligate the
Employer to accept her proposed separation date, when she refused
to follow the Employer’s directives during the notice period. See
Cunliffe, 51 P.3d at 1089 (“Thus, we conclude that, for
unemployment compensation purposes, a voluntary resignation is
an unconditional event, the legal significance and finality of which
are not altered by the interval between the employee’s notice and
his or her departure from the job.”).
IV. Disposition
¶ 41 We affirm the Panel’s order.
JUDGE SCHUTZ and JUDGE BERNARD concur.