Opinion
April 25, 1972.
Editorial Note:
This case has been marked 'not for publication' by the court.
Referee reviewing decision of deputy of Division of Employment awarding unemployment compensation benefits was not limited solely to affirming or modifying the findings of fact and decision of deputy but could review matter de novo and reverse decision of deputy if believed erroneous. C.R.S. '63, 82-5-4, 82-5-7.
Morris E. McLain, Maurice L. Jenks, III, Denver, for respondent Martin Marietta Corp.
Brenman, Sobol & Baum, Arthur L. Fine, Terry J. Miller, Denver, for petitioner.
Duke W. Dunbar, Atty. Gen., John P. More, Deputy Atty. Gen., Robert L. Harris, Asst. Atty. Gen., Denver, for respondent Industrial Comm. of the State of Colo. (Ex-Officio Unemployment Compensation Comm. of Colo.).
PIERCE, Judge.
Katherine Goodloe, hereinafter referred to as claimant, was terminated from her employment with Martin Marietta Corporation, hereinafter referred to as the employer, for an alleged violation of company rules. Claimant filed for unemployment compensation with the Colorado Division of Employment. A deputy of the Division of Employment determined that claimant had been wrongfully discharged and granted her a full award of benefits.
After a full hearing before a referee of the Unemployment Compensation Commission, the decision of the deputy was reversed. The referee determined that claimant was entitled to no award of benefits under authority of 1965 Perm.Supp., C.R.S.1963, 82--4--8(6)(b)(ix) and (xvi), for the reason that she had used rude and offensive language and had precipitated the fight which resulted in her dismissal. The Commission thereafter adopted the findings of the referee and affirmed his decision.
Claimant's first contention on appeal is that the Commission's determination that she was entitled to no award under 1965 Perm.Supp., C.R.S.1963, 82--4--8(6) is unsupported by the evidence. We disagree. The record indicates that the situation resulting in claimant's separation occurred when claimant resented a coworker's suggestion relative to the manner in which claimant was performing her work. Testimony reveals that, after the suggestion was made, claimant replied to the coworker in obscene language and an altercation quickly resulted. Both claimant and her coworker were discharged.
From this testimony the Commission concluded that claimant had engaged in actions sufficient to result in a denial of benefits under subsections (ix) and (xvi) of 1965 Perm.Supp., C.R.S.1963, 82--4--8(b). Actions falling within either of these subsections would form a sufficient ground for denial of benefits. Under 1965 Perm.Supp., C.R.S.1963, 82--4--8(b)(xvi) benefits may be denied where there has been 'rudeness, insolence, or offensive behavior of the worker not reasonably to be countenanced by a customer, supervisor, or fellow worker.' A review of the record herein fully supports the Commission's determination that claimant had engaged in such conduct.
Findings of the Commission which are supported by the evidence must be affirmed on review. 1969 Perm.Supp., C.R.S.1963, 82--5--11; Morrison Road Bar v. Industrial Commission, 138 Colo. 16, 328 P.2d 1076. Evidence regarding claimant's contention that her actions were in self-defense was conflicting, and this argument was rejected by the referee. We will not substitute our judgment for that of the finder of fact.
Claimant next contends that the Commission's findings of fact are insufficient to form a basis for review. See Tague v. Coors Porcelain Co., 29 Colo.App. 226, 481 P.2d 424. Again, we disagree. Both the evidentiary and ultimate facts upon which the Commission's decision was based are apparent from the record and orders entered thereon. A sufficient basis for review of the Commission's decision has been presented and we perceive no error.
Claimant further contends that the decision of the Commission cannot be affirmed because proper procedures were not followed in arriving at the denial of benefits. It is claimant's contention that, under C.R.S.1963, 82--5--4, a referee has no authority to reverse the decision of a deputy of the Division of Labor and is limited solely to affirmance or modification of the findings of fact and decision of the deputy. Claimant's position is not well taken. C.R.S.1963, 82--5--7, and Regulation 20, adopted by the Division of Labor pursuant to that section, set forth the procedures to be followed at a referee's hearing under the Act. As we stated in Anderson v. Industrial Commission, 29 Colo.App. 263, 482 P.2d 403:
'An appeal in an unemployment compensation case removes the claim in its entirety, and the hearing is, in effect, a trial de novo. The administrative appellate tribunal may consider all matters at issue regardless of the ground or basis of the appeal, and An appellant cannot limit the scope of the appeal by a provision in his notice of appeal.' (Emphasis in original)
We find no error in the reversal of the deputy's decision by the referee.
Order affirmed.
COYTE and ENOCH, JJ., concur.