Monard A. Nimmo, Petitioner,
v.
Town of Monument, and the
Industrial Commission of the
State of Colorado,
Respondents.
No. 86CA1252.
736 P.2d 435
Colorado
Court of Appeals,
Div. II.
March 26, 1987.
Cole, Hecox, Tolley, Keene & Beltz, P.C., Thomas L. Kennedy,
Colorado Springs, for petitioner.
Don H. Meinhold, P.C., Don H. Meinhold, Colorado Springs, for
respondent Town of Monument.
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty.
Gen., Richard H. Forman, Sol. Gen., Gregory K. Chambers, Asst. Atty.
Gen., Denver, for respondent Industrial Com'n.
SMITH, Judge.
Unemployment compensation claimant, Monard Nimmo, seeks review of
an order of the Industrial Commission awarding reduced benefits on
the basis that his termination fell within Sec. 8-73-108(5)(e)(I),
C.R.S. (1986 Repl. Vol. 3B) (dissatisfaction with standard working
conditions.) We set aside the order.
When claimant was employed as an assistant maintenance supervisor
for the town of Monument, he was placed on probation for six months
pursuant to the town's personnel rules. After six months, claimant's
supervisor recommended to the town council that claimant be granted
permanent status, be removed from probation, and be given a pay
raise of $100 a month. Instead, the town council abolished the
position of assistant maintenance supervisor, but retained claimant
as a permanent maintenance worker at the same pay level as a
probationary assistant maintenance supervisor.
Shortly thereafter claimant filed a grievance with the town
personnel board, and when that proved unsuccessful filed suit in
district court alleging a breach of employment contract. Claimant
testified that as a maintenance worker he no longer spent two days a
week supervising other employees and allocating tasks, but that the
remainder of his duties remained essentially the same at first.
However, claimant stated that after the maintenance supervisor left,
he was asked to do many trivial errands for the town administrator,
and was removed from working on the water system. He also testified
that approximately one month after the supervisor left, the town
council promoted claimant's co-worker to maintenance supervisor even
though claimant had been informed that the job would remain open
indefinitely. When claimant was informed of that promotion, he quit.
Since claimant's old position was abolished and since claimant's
duties other than supervision were unchanged, the referee found no
substantial change in claimant's working conditions. The referee
further found that the claimant acquiesced in the change by
continuing to work for the employer for six months. The referee,
therefore, ordered a maximum reduction in benefits. The Industrial
Commission adopted and affirmed the referee's decision, and the
Industrial Claim Appeals Panel ordered that the Commission's order
remain in effect.
On review, claimant contends that the Commission erred in
applying Sec. 8-73-108(5)(e)(I), C.R.S. (1986 Repl.Vol. 3B), because
the claimant's separation from employment followed a change in job
duties. We agree.
A finding that a claimant quit because of dissatisfaction with
standard working conditions is proper only when there has been no
substantial change in working conditions or duties. Martinez v.
Industrial Commission, 657 P.2d 457 (Colo.App.1982). A change in
job title is sufficient to constitute a substantial change in
working conditions, see Martinez v. Industrial Commission, supra,
as is the removal of supervisory duties, even if the claimant's rate
of pay remains the same. Warburton v. Industrial Commission,
678 P.2d 1076 (Colo.App.1984).
Here, it was undisputed that claimant's job title had changed and
that he had been relieved of his supervisory responsibilities.
Therefore, the Commission erred when it found no substantial change
in working conditions.
Claimant also contends that there was insufficient evidence to
support the Commission's finding that claimant had acquiesced in the
changes that occurred. We agree.
Even if there has been a substantial change in working
conditions, a claimant can acquiesce in the changes and thereby
establish new standard working conditions. Jennings v. Industrial
Commission, 682 P.2d 518 (Colo.App.1984).
Here, however, the only support for the finding that claimant
acquiesced in the new working conditions is the fact that he
continued to work for the employer for six months after the change
occurred. In the face of the undisputed evidence that claimant filed
a grievance and a district court action protesting the change, the
evidence of his continued employment is insufficient as a matter of
law to establish acquiescence. Therefore, claimant has established
that he quit because of a substantial change in working conditions,
and is entitled to full benefits.
The order is set aside and the cause is remanded to the
Industrial Claim Appeals Office with directions to award claimant
full benefits pursuant to Sec. 8-73-108(4)(d), C.R.S. (1986 Repl.Vol.
3B).
Tursi and Babcock, JJ., concur.
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