Opinion
Court of Appeals No. 16CA1385
11-10-2016
Kessendrea H. Kim, Petitioner, v. Industrial Claim Appeals Office of the State of Colorado and Automotive and Industrial Coatings, Respondents.
Kessendrea H. Kim, Pro Se No Appearance for Respondents
Industrial Claim Appeals Office of the State of Colorado
DD No. 9845-2016 ORDER AFFIRMED Division II
Opinion by JUDGE FURMAN
Dailey and Harris, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Kessendrea H. Kim, Pro Se No Appearance for Respondents ¶ 1 In this unemployment benefits case, petitioner, Kessendrea H. Kim, appeals from the final order of the Industrial Claim Appeals Office (Panel). The Panel affirmed a hearing officer's decision disqualifying Kim from receiving unemployment benefits under section 8-73-108(5)(e)(XIV), C.R.S. 2016 (rudeness, insolence, or offensive behavior not reasonably to be countenanced by a customer, supervisor, or fellow worker). We affirm.
I. The Separation
¶ 2 The hearing officer made the following findings concerning Kim's job separation. Kim worked as a bookkeeper for respondent, Automotive and Industrial Coatings (employer). Employer discharged Kim because she made "baseless accusations of assault against a coworker." Kim had asserted that the coworker shoved her and told her to "get the fuck out of here" when she tried to assist him with a customer at the front counter. Employer investigated but "found no evidence or witnesses to corroborate" Kim's assertion. ¶ 3 Kim contacted the police who spoke to several people but ultimately determined no action or charges were warranted. ¶ 4 Crediting employer's evidence, the hearing officer found that Kim's accusations against the coworker were baseless. The hearing officer also determined that Kim's conduct was insolent and offensive and did not have to be reasonably tolerated by employer or other employees. The hearing officer concluded that Kim was at fault for the job separation and was disqualified under section 8-73-108(5)(e)(XIV) from receiving benefits. ¶ 5 On review, the Panel affirmed the hearing officer's decision. ¶ 6 On appeal, Kim raises numerous contentions challenging the hearing officer's decision and the Panel's affirmance of that decision. But, we are not persuaded that any of Kim's contentions justify disturbing those rulings.
II. Factual Challenges
¶ 7 Kim contends that employer actually discharged her based on a different incident — one that occurred before the alleged assault. She also contends that the hearing officer's findings concerning the alleged assault are erroneous and that the hearing officer did not have an opportunity to see the "real picture." These contentions do not provide any basis for reversal. ¶ 8 A claimant's entitlement to benefits is determined based on the reason for the claimant's job separation which is a matter to be resolved by the trier of fact. Eckart v. Indus. Claim Appeals Office, 775 P.2d 97, 99 (Colo. App. 1989). We may not disturb a hearing officer's evidentiary findings of fact if they are supported by substantial evidence in the record or reasonable inferences drawn from that evidence. See Yotes, Inc. v. Indus. Claim Appeals Office, 2013 COA 124, ¶ 10. "It is the hearing officer's responsibility, as trier of fact, to weigh the evidence, assess credibility, resolve conflicts in the evidence, and determine the inferences to be drawn therefrom." Hoskins v. Indus. Claim Appeals Office, 2014 COA 47, ¶ 10. ¶ 9 We have reviewed the entire transcript of the administrative hearing. We are satisfied that it contains substantial, albeit conflicting, evidence to support the hearing officer's key evidentiary finding that employer discharged Kim because she made baseless accusations of assault against the coworker. Consequently, we may not disturb that finding. See Yotes, ¶ 10; Tilley v. Indus. Claim Appeals Office, 924 P.2d 1173, 1177 (Colo. App. 1996). ¶ 10 Contrary to Kim's further contention, the Panel did not err by affirming the hearing officer's evidentiary findings of fact. The Panel correctly noted that it was the hearing officer's responsibility to weigh the evidence, assess credibility, and resolve conflicts in the evidence, and the Panel properly declined to disturb her findings because they were not contrary to the weight of the evidence in the record. See Samaritan Inst. v. Prince-Walker, 883 P.2d 3, 8-9 (Colo. 1994). ¶ 11 Nevertheless, Kim asserts that the testimony of employer's witness was knowingly false or fabricated. We have reviewed that testimony but cannot conclude that it was incredible or false as a matter of law. Thus, we may not disturb the hearing officer's decision to credit it. See QFD Accessories, Inc. v. Indus. Claim Appeals Office, 873 P.2d 32, 33 (Colo. App. 1993); see also Halliburton Servs. v. Miller, 720 P.2d 571, 577-78 (Colo. 1986). ¶ 12 We emphasize that our role in these cases is not to consider the evidence presented and enter a new decision with our own independent findings. Instead, by statute, our role, like that of the Panel, is limited reviewing the existing decision to determine whether it contains, or resulted from, serious legal error or unfairness. See §§ 8-74-104, 8-74-107, C.R.S. 2016. ¶ 13 Kim also challenges the testimony of employer's witness indicating that he believed Kim had committed theft from employer. But, the hearing officer did not make any findings concerning this alleged theft and, more importantly, did not find that it was a factor in employer's decision to discharge Kim. Accordingly, it is not relevant in ascertaining whether Kim's disqualification from receiving benefits was appropriate. See Eckart, 775 P.2d at 99. ¶ 14 We cannot consider certain factual assertions that Kim raises in her brief that she did not raise at the administrative hearing. Like the Panel, our review is limited to the evidence presented at the administrative hearing. See Pero v. Indus. Claim Appeals Office, 46 P.3d 484, 486 (Colo. App. 2002).
III. Procedural Issues/Fair Hearing
¶ 15 Kim next contends that the hearing was unfair because the hearing officer excluded certain documentary evidence she sought to introduce. Kim also contends the hearing officer was biased against her. Again, we perceive no error. ¶ 16 To satisfy due process and fair hearing standards, parties in unemployment proceedings "must be apprised of the evidence submitted or to be considered, and must be given opportunity to inspect documents, to cross-examine witnesses, and to offer evidence in explanation or rebuttal." Wafford v. Indus. Claim Appeals Office, 907 P.2d 741, 743 (Colo. App. 1995). ¶ 17 The administrative hearing that Kim received satisfied these standards. Although the hearing officer did not allow Kim to introduce certain documentary evidence, that was because Kim had not sent copies of the documents to the hearing officer and to employer before the hearing as required by applicable regulations and as expressly stated in the hearing notice. See Dep't of Labor & Emp't Reg. 11.2.9.2, 7 Code Colo. Regs. 1101-2 (requiring parties to provide copies of all documents and physical exhibits to other interested parties before the date of the scheduled hearing and specifying that failure to do so "may result in their exclusion from the record"). Indeed, Kim acknowledged at the hearing that she "must have missed" this advisory language in the hearing notice. ¶ 18 Nor are we persuaded that the hearing officer was biased against Kim. Administrative proceedings are vested with a presumption of propriety and fairness. McClellan v. State, 731 P.2d 769, 771 (Colo. App. 1986). "A substantial showing of personal bias is required before a ruling can be made that the hearing procedure was unfair." Nesbit v. Indus. Comm'n, 43 Colo. App. 398, 399, 607 P.2d 1024, 1025 (1979). ¶ 19 Again, we have reviewed the entire hearing transcript. It does not demonstrate that the hearing officer prejudged the case or treated Kim in such a way as to cast doubt on the hearing officer's impartiality. See id.; see also Safeway Stores 44 Inc. v. Indus. Claim Appeals Office, 973 P.2d 677, 683 (Colo. App. 1998). ¶ 20 And, although the hearing officer excluded the documentary evidence that Kim attempted to introduce and ultimately decided the case in employer's favor, those decisions, standing alone, are insufficient to establish bias. See People in Interest of S.G., 91 P.3d 443, 447-48 (Colo. App. 2004).
IV. The Record Supports Disqualification
¶ 21 Again, the hearing officer found, with record support, that Kim was discharged for making a baseless accusation of assault against a coworker. Like the Panel and the hearing officer, we conclude that Kim's conduct constituted offensive behavior not reasonably to be countenanced by a supervisor or fellow worker. Accordingly, the conduct warranted disqualification under section 8-73-108(5)(e)(XIV). See Davis v. Indus. Claim Appeals Office, 903 P.2d 1243, 1244-45 (Colo. App. 1995); see also Olsgard v. Indus. Comm'n, 190 Colo. 472, 473-74, 548 P.2d 910, 911 (1976).
V. Conclusion
¶ 22 The Panel's order is affirmed.
JUDGE DAILEY and JUDGE HARRIS concur.