Opinion
W.C. No. 4-597-844.
December 8, 2004.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) which denied a claim for temporary total disability (TTD) benefits commencing November 4, 2003. The claimant contends that because the employer knew or reasonably should have known that he submitted false immigration documents the employer was estopped from asserting that the claimant was at fault for the separation from employment. We affirm.
The ALJ's findings and conclusions may be summarized as follows. In 1996 the claimant applied for work at the employer's lamb processing facility. At that time the plant was owned by Monfort. The ALJ found the claimant presented a falsified resident alien card to Monfort, and on November 15, 1996, the claimant completed an I-9 falsely representing that he was a lawful permanent resident of the United States. In November 1999 the claimant left Monfort's employ, but was rehired at the lamb plant in September 2000. At that time, Monfort did not require additional documentation of the claimant's immigration status. Subsequently the lamb plant was sold to ConAgra, and then to respondent Swift Foods Company (Swift).
The claimant was employed by Swift when he sustained a compensable injury on September 26, 2003. Swift provided modified duties within the claimant's physical restrictions.
However, in September 2003 Soila Delgado, a human resource representative of Swift, was assigned the responsibility of reviewing the I-9 forms submitted by employees of the lamb plant. Delgado testified that when reviewing the claimant's file she noticed "discrepancies" between the claimant's signature on the I-9 form and the resident alien card. She also observed that the picture on the resident alien card did not to appear be that of the claimant. Finally, she observed there was no copy of a Social Security card documenting the claimant's social security number.
Delgado then spoke to the claimant who was preparing to go on vacation. Delgado gave the claimant a letter to take to the Social Security Administration (SSA), directed him to obtain verification of his identity from the SSA, and to provide the verification when he returned from vacation. However, when the claimant returned on November 3, 2003, he could not provide verification of his identity and was terminated. Delgado testified the claimant was discharged because he falsified the I-9 form and it was illegal for Swift to continue employing the claimant. (Tr. Pp. 21, 26).
The claimant sought TTD benefits commencing November 4, 2003, the day after the termination. However, the ALJ concluded the claimant was "responsible" for the termination within the meaning of § 8-42-103(1)(g), C.R.S. 2004, and § 8-42-105(4), C.R.S. 2004 (termination statutes). Specifically, the ALJ inferred that the claimant intentionally provided false documentation to Monfort concerning his eligibility to work in the United States, and that this "misrepresentation" was ongoing and volitional. Further the ALJ found that when the claimant failed to provide documentation of his identity to Swift, it was illegal for Swift to continue the claimant's employment and the claimant was discharged.
On review, the claimant contends the evidence establishes that when Monfort hired the claimant it knew, or reasonably should have known, that the claimant was not a lawful resident of the United States and was ineligible to work. The claimant argues that such knowledge estops the employer from raising the termination statutes as a defense to the claim for TTD benefits commencing November 4. Under the facts of this claim we are unpersuaded by the claimant's arguments.
Under the termination statutes a claimant who is responsible for a termination from employment is not entitled to subsequent TTD benefits unless a worsening of condition causes additional wage loss. Anderson v. Longmont Toyota, ___ P.3d ___ (Colo. No. 03SC450, December 6, 2004). A claimant is "responsible" for termination from employment if the claimant engages in a volitional act or, in light of the totality of the circumstances, exercises some control over the circumstances leading to the discharge. See Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061 (Colo.App. 2002); Padilla v. Digital Equipment Corp., 902 P.2d 414 (Colo.App. 1994); Ellis v. All American Home of Colorado, Inc., W.C. No. 4-544-396 (June 26, 2003), aff'd. Ellis v. Industrial Claim Appeals Office, (Colo.App. No. 03CA1356, April 1, 2004) (not selected for publication). We have previously held that providing false work authorization is a "volitional act" constituting fault for purposes of the termination statutes. Hernandez v. Fibrotek/VF Corp., W.C. No. 4-500-317 (November 22, 2004); Godoy v. A1 Aurora Relocation Services, W.C. No. 4-506-060 (December 4, 2002); Gutierrez v. Exempla Helathcare, Inc., W.C. No. 4-495-227 (June 24, 2002).
Here, the claimant does not dispute the sufficiency of the evidence to establish that he engaged in volitional conduct by presenting false documentation to Monfort. Rather, the claimant argues that because Monfort knew or should have known of the false documentation the respondent may not raise the termination statutes as a defense. This argument is predicated on either estoppel or what the claimant refers to as the doctrine of "unclean hands." The respondent asserts, inter alia, that the claimant's arguments were not properly raised to the ALJ.
We reject the respondent's assertion that the claimant's arguments were not raised. To the contrary, the claimant's attorney questioned Delgado without objection as to whether the documents submitted by the claimant were sufficient to cause a reasonable person to doubt their authenticity. (Tr. P. 35). In closing argument claimant's counsel explicitly argued, again without objection, that the respondent should be precluded from raising the termination statutes because of Monfort's complicity in accepting the false documents. (Tr. P. 44). Under these circumstances, we conclude the claimant's arguments were sufficiently raised and tried by consent of the parties. Cf. Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987).
However, we conclude the ALJ's findings would not support application of the doctrine of equitable estoppel. The elements of equitable estoppel are that; (1) the party to be estopped was aware of the true facts; (2) it was that party's intent that his or her words or conduct be acted upon by the other party or that those words or conduct were such that the other party had a right to believe that they were so intended; (3) that the party asserting the estoppel was ignorant of the true facts; and (4) that party reasonably relied on such words or conduct to his or her detriment. Sneath v. Express Messenger Service, 931 P.2d 565, 569 (Colo.App. 1996).
Here, the ALJ found that the claimant presented false documentation to Monfort and thus falsely represented his eligibility for employment. We think it implicit in these determinations that the claimant knew he was not eligible to work in the United States and could not legally do so. Therefore, even if Monfort also knew or should have known the documents were false, the respondent is not equitably estopped from raising the termination statutes as a defense to the claim for TTD benefits. This is true because the claimant himself knew the true facts (he could not legally work at Monfort), and could not reasonably rely on Monfort's willingness to employ him as conferring legal eligibility for employment.
Neither does the doctrine of "unclean hands" affect the result. This equitable doctrine provides that "one who has engaged in improper conduct regarding the subject matter of the cause of action may, as a result, lose entitlement to an equitable remedy." The doctrine protects the integrity of the court. Salzman v. Bachrach, 996 P.2d 1263, 1269 (Colo. 2000).
Here, the claimant seeks equitable relief from the disqualification from TTD benefits resulting from the ALJ's application of the termination statutes. However, the claimant does not have "clean hands." To the contrary, the ALJ has found the claimant deliberately submitted false documents concerning his eligibility for employment and continued to rely on them for a number of years. The claimant has disobeyed the law and has not acted equitably with respect to the subject matter of his eligibility for employment.
The claimant cites Cenvill Development Corp. v. Candelo, 478 So.2d 1168 (Fla.App. 1st Dist., 1985), as authority for his position. There the court indicated, by way of dictum, that if an employer knew or reasonably should have known of a claimant's status as an illegal alien at the time of hiring, the employer would be estopped from asserting the claimant's work status in defending a claim for TTD benefits. (The Cenvill court found from the evidence that the employer did not know of the claimant's status). The court stated that this "holding prevents unauthorized aliens form suffering at the hands of an employer who would knowingly hire the alien and then conveniently use the unauthorized alien status to avoid paying wage loss benefits."
Under the termination statutes the focus is on whether to some degree the claimant had control of the circumstances leading to the termination. Where, as here, the claimant actively and knowingly participates in submitting falsified documents for the purpose of obtaining legally prohibited employment, he exercises some degree of control over the circumstances which ultimately lead to the termination. In our opinion, an employer's initial participation in or knowledge of the claimant's illegal conduct does not excuse the claimant's participation. Further, if the General Assembly wishes to account for the policy considerations mentioned in the Cenvill decision it may do so. We decline to read into the termination statutes, under the guise of equity, provisions which are not explicitly present. Kraus v. Artcraft Sign Co., 710 P.2d 480 (Colo. 1985) (court will not create new rights by reading nonexistent provision into Act).
The claimant asserts that because he made the false representations to Monfort in 1996, and made no more false representations on being rehired in 2000, he is not "responsible" for the termination. However, this argument ignores the fact that the ALJ found that Swift could not legally continue the claimant's employment when the claimant was unable to produce documentation showing he was eligible to work. Thus, the claimant's initial misrepresentations were indeed continuing, and he was discharged in part because he could not rectify those misrepresentations.
The claimant argues, without providing specifics, that this interpretation of the termination statutes is unconstitutional. Because the claimant is not specific, we are unable to determine whether we have any jurisdiction to consider these arguments, or whether we lack jurisdiction because the claimant is making a facial challenge to the statute. See Celebrity Custom Builders v. Industrial Claim Appeals Office, 916 P.2d 539 (Colo.App. 1995).
IT IS THEREFORE ORDERED that the ALJ's order dated June 9, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ David Cain
____________________ Kathy E. Dean
Lorenzo Barron-Tapia, Evans, CO, Swift Foods Company, Greeley, CO, Jackie Villegas, Sedgwick CMS, Greenwood Village, CO, Britton Morrell, Esq., Greeley, CO (For Claimant).
Ronda K. Comings, Esq., Fort Collins, CO, (For Respondent).