Opinion
Rehearing Denied Aug. 8, 1973.
Page 1138
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Jeffrey I. Sandman, Asst. Atty. Gen., Denver, for the plaintiff-appellee.
William E. Myrick, P.C., Robert G. Same, Denver, for the defendants-appellants.
PIERCE, Judge.
Dennis E. Robinson filed a complaint with the Colorado Civil Rights Commission alleging that Refrigerated Foods, Inc., and two of its employees, Gordon Brannon, as general supervisor, and Darrel Diltz, as lead man, had discriminated against complainant by discharging him from his job because of his race. Respondents countered, contending that Robinson was discharged because he was found sleeping on the job after having punched in on the time clock. The Commission concluded that respondents, by discharing Robinson, had violated the Colorado Antidiscrimination Act, C.R.S.1963, 80--21--1 et seq., and ordered that Robinson be reinstated to his job and awarded past wages and seniority. Respondents bring this appeal from an order of the district court affirming the Commission. We reverse.
Appeal is brought on several grounds. However, because we conclude that there was not substantial evidence to support the Commission's findings, as required by C.R.S.1963, 80--21--8(6), we need not consider the other contentions
The basis of the Commission's findings is that Robinson had been discriminated against in part as a result of certain racial slurs directed at him by appellant Diltz, and, in part, by an event shown in Robinson's employment record that the Commission thought showed a disparity between the treatment afforded Robinson and that afforded other employees for minor infractions of company rules. However, undisputed testimony showed that Robinson was discharged for punching in on the time clock and then deliberately proceeding to the lunch room where he lay down and went to sleep. Discharge on such grounds was specifically sanctioned by Robinson's union grievance board. We have previously held that where there is a legitimate basis for discharge, the discharge will be upheld where no nexus is shown between the discharge and the alleged discriminatory acts. Adolph Coors Co. v. Colorado Civil Rights Commission, 31 Colo.App. 417, 502 P.2d 1113. Here, we perceive no connection between Robinson's difficulty with Diltz and the reasons for his termination.
Nor can we conclude that the evidence which purportedly showed a disparity in treatment between Robinson and other employees was substantial enough to show a pattern of insidious discrimination. Colorado Civil Rights Commission v. Colorado, 30 Colo.App. 10, 488 P.2d 83. The event shown in Robinson's employment record, relied on by the Commission, occurred approximately six months before Robinson's ultimate termination. On that occasion, the company had commenced proceedings to discharge him for not reporting to work. However, he was rehired when he produced proof that he had been sick. The record is in conflict as to whether there actually existed a disparity between the treatment afforded Robinson and other employees. However, even if there were a disparity, this evidence fails to establish the necessary connection with the final termination.
There being no substantial evidence to support the determination by the Commission that Robinson had been discriminated against, the district court was in error in affirming the Commission.
Judgment reversed.
SILVERSTEIN, C.J., and COYTE, J., concur.