Leslie S. Cole, Petitioner,
v.
The Industrial Claim
Appeals Office of the State of Colorado
and Exabyte Corporation, Respondents.
No. 98CA0639.
964 P.2d 617
Colorado Court of Appeals,
Div. III.
Aug. 20, 1998.
Review of the Order from the Industrial Claim
Appeals Office of the State of Colorado DD No. 16957-97
OPINION PREVIOUSLY ANNOUNCED AS NON-PUBLISHED JULY
16, 1998, IS NOW SELECTED FOR PUBLICATION.
Gary A. Fisher, Boulder, Colorado, for Petitioner
Gale A. Norton, Attorney General, Martha Phillips Allbright,
Chief Deputy Attorney General, Richard A. Westfall, Solicitor
General, Jeannette W. Kornreich, Assistant Attorney General, Denver,
Colorado, for Respondent The Industrial Claim Appeals Office of the
State of Colorado
No Appearance for Respondent Exabyte Corporation
DAVIDSON Judge.
Petitioner, Leslie S. Cole (claimant), seeks review of a final
order of the Industrial Claim Appeals Office (Panel) which reversed
a hearing officer's decision awarding her unemployment benefits.
Based on the hearing officer's evidentiary findings and the record,
the Panel instead disqualified her from the receipt of benefits
pursuant to § 8-73-108(5)(e)(XXII),
C.R.S.1997 (job separation from quitting for personal reasons which
do not support an award of benefits under other statutory
provisions). We affirm the Panel's order.
Following an evidentiary hearing, the hearing officer found, on
substantial supporting evidence, that claimant quit this employment
"due to the health problems incurred by her children and her two
surgeries." Noting that "[a]ll of the changes and problems involved
were beyond the control of the claimant," the hearing officer ruled
that "she shall not be denied unemployment insurance benefits as a
result." Thus, under "the totality of the circumstances," the
hearing officer determined that claimant was "not responsible" for
the separation, and granted her an award of benefits on this basis.
On review, because it reached the opposite conclusion as to
claimant's responsibility for the separation under the circumstances
shown here, the Panel reversed the hearing officer's decision.
Specifically, despite the undisputed health problems shown, the
Panel noted that claimant became separated from this employment
because she resigned. And, while acknowledging that the health
problems experienced by claimant and her children were outside her
control, the Panel ruled that the findings and the record did not
show that her resignation "was somehow nonvolitional," i.e., "that
she was unable to continue working, or that she could not exercise
some control in resigning because of those circumstances." Based on
this analysis, the Panel ruled that the findings did not support the
award of benefits granted by the hearing officer, but rather
supported a disqualification from benefits pursuant to
§ 8-73-108(5)(e)(XXII).
On appeal, claimant contends that the Panel erred in reversing
the hearing officer's decision and disqualifying her from benefits
based on the factual findings expressly and implicitly made by the
hearing officer. Rather, she asserts that she established that she
was not responsible or "at fault" for the separation and that the
hearing officer properly granted her an award of benefits on this
basis. We are not persuaded. To the contrary, on the record here, we
agree with the Panel's analysis of the "fault" issues.
The disqualifying provisions of §
8-73-108(5)(e), C.R.S.1997, must be read in light of the express
legislative intent set forth in §
8-73-108(1)(a), C.R.S.1997, to provide benefits to those who become
unemployed through "no fault" of their own. Thus, even if the
findings of the hearing officer may support the application of one
of the disqualifying sections of the statute, a claimant may still
be entitled to benefits if the totality of the circumstances
establishes that the claimant's separation occurred through no fault
of her own. See Gonzales v. Industrial Commission, 740 P.2d
999 (Colo.1987); Keil v. Industrial Claim Appeals Office, 847
P.2d 235 (Colo.App.1993).
Under the unemployment scheme, "fault" is a term of art which is
used as a factor to determine whether the claimant or the employer
is responsible overall for the separation from employment. In this
context, "fault" has been defined as requiring a volitional act or
the exercise of some control or choice by the claimant in the
circumstances resulting in the separation such that the claimant can
be said to be responsible for the separation. See Richards v.
Winter Park Recreational Ass'n, 919 P.2d 933 (Colo.App.1996);
Collins v. Industrial Claim Appeals Office, 813 P.2d 804
(Colo.App.1991).
We also note that the determination as to whether a claimant was
responsible or "at fault" for the separation from employment is not
a question of evidentiary fact, but rather is an ultimate legal
conclusion to be based on the established findings of evidentiary
fact. Board of Water Commissioners v. Industrial Claim Appeals
Office, 881 P.2d 476 (Colo.App.1994).
Here, although it is undisputed that various health problems
motivated claimant's decision to quit, it is also clear that her
separation from this employment resulted when she chose to resign.
Thus, while claimant's health concerns may have provided her with
subjectively compelling personal reasons for quitting this
employment, she could not be entitled to an award of benefits on a
"no fault" basis unless she established that her separation was
essentially involuntary under the objective circumstances shown,
notwithstanding her resignation. Cf. Goddard v. E G & G Rocky
Flats, Inc., 888 P.2d 369 (Colo.App.1994) (quitting in the face
of an otherwise imminent involuntary termination was not a
separation from employment by claimant's volitional choice, and
disqualification therefore unwarranted).
We agree with the Panel that an involuntary separation was not
demonstrated here. Contrary to claimant's argument, the hearing
officer did not make any evidentiary finding, implicitly or
otherwise, that claimant was unable to continue working at the time
of her resignation, nor would the record support any such finding.
Rather, the record shows that, notwithstanding the health
problems, claimant had been working until she abruptly quit after a
confrontation with her supervisor. The hearing officer also did not
find, and the record does not show, that claimant's job was in any
imminent jeopardy from her attendance deficiencies stemming from the
health problems. To the contrary, although claimant was to be given
a written warning for having left early the previous day, the
supervisor testified that claimant was not going to be discharged
over the incident, and claimant acknowledged that she was not told
her job was in jeopardy at that point.
On this record, we perceive no error in the Panel's ruling.
Rather, we conclude that, based on the established findings of
evidentiary fact, the Panel properly ruled that claimant was
responsible or "at fault" for her separation by her volitional
choice to quit under the circumstances shown, notwithstanding the
health problems. We further agree with the Panel that the factual
findings and the record support the conclusion that claimant quit
this employment for subjective, personal reasons which do not
provide an objective basis for an award of benefits.
Thus, the Panel's ruling imposing a disqualification from
benefits pursuant to § 8-73-108(5)(e)(XXII)
will not be disturbed on review. See §
8-74-107(6), C.R.S.1997; Richards v. Winter Park Recreational
Ass'n, supra; Board of Water Commissioners v. Industrial
Claim Appeals Office, supra; see also Ward v. Industrial
Claim Appeals Office, 916 P.2d 605 (Colo.App.1995).
The Panel's order is affirmed.
Plank and Marquez, JJ., concur.
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