Opinion
W.C. No. 4-561-222
April 21, 2004
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Muramoto (ALJ) which found the claimant was not responsible for a termination of employment and awarded temporary disability benefits. The respondent contends the evidence does not support the order. We affirm.
The claimant was first employed as a probationary "Title One" reading teacher for the 2001-2002 school year. In May 2002, the claimant received a written evaluation in which the principal graded her as having met district standards in every category except demonstrating "effective interpersonal relationships with other staff members." The narrative portion of the evaluation states "there have been some issues around communication." The claimant wrote a response in which she stated her role was not "clearly defined," and this caused her efforts to communicate to be "misunderstood." The claimant "hoped" to improve her communication skills.
The claimant was reemployed for the 2002-2003 school year as a "literacy coach." In December 2002 the claimant received a second evaluation by the principal which graded her as meeting district standards in every category except "applying principles of teaching/learning to provide for student achievement" and interpersonal relationships with staff members. The narrative portion of the evaluation stated the claimant needs to improve by "checking for understanding to be sure students are clear on the connection between teaching point and activity." Concerning interpersonal relationships the narrative stated the staff "perceives" the claimant as "having a negative attitude" when asked to "collaborate on something or making a request." The evaluation also stated the claimant sends "staff to administration when a problem or issue has come up rather than trying to resolve them with the person." The claimant wrote a response to the evaluation stating that she would try to improve with the guidance and support of the principal.
On April 18, 2003, the claimant received a final evaluation which again stated she did not meet district standards for applying principles of teaching/learning to provide for student achievement and did not demonstrate effective interpersonal relationships with staff. The narrative stated there were fewer instances of sending staff to administration, but others continued to perceive the claimant as being "directive rather than collaborative."
Following this evaluation the claimant was notified her contract would not be renewed for the next school year. At the hearing, the respondent's human resource director testified that he recommended to the school board that the contract not be renewed because the claimant exhibited a "directive rather than collaborative communication style" and because of concerns about the claimant's ability to assess students and determine appropriate teaching activities.
The respondent argued to the ALJ the claimant was responsible for the termination of her employment within the meaning of §§ 8-42-103(1)(g) and § 8-42-105(4), C.R.S. 2003 (collectively, the termination statutes). Therefore, the respondent reasoned the claimant is barred from receiving temporary disability benefits to which it admits she is otherwise entitled.
However, the ALJ found the respondent failed to prove the claimant was responsible for the termination. Specifically, the ALJ found there was "no persuasive evidence that the claimant committed a volitional act that resulted in her termination, or that she exercised any degree of control in light of the totality of the circumstances."
On review, the respondent contends the ALJ erred in finding the claimant was not responsible for the termination of her employment within the meaning of the termination statutes. Specifically, the respondent argues the claimant failed to meet established job performance standards and failed to improve when given an opportunity to do so. Therefore, the respondent reasons the claimant exercised some degree of control over the circumstances leading to the termination. We find no error.
The claimant may be held responsible for the termination of employment if the claimant acts volitionally in causing the termination. Conduct is volitional if the claimant exercises some control or choice in the circumstances leading to the termination in light of the totality of the circumstances. 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), vacated 908 P.2d 1185 (Colo. 1995); Jeppsen v. Huerfano Medical Center, W.C. No. 4-440-444 (January 27, 2003).
The question of whether the respondent has shown the claimant was "responsible" for the termination is a factual issue for resolution by the ALJ. Jeppsen v. Huerfano Medical Center, supra. Consequently, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003. This standard of review requires us to view the evidence in a light most favorable to the prevailing party, and defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). The ALJ is not required to credit evidence even if it is unrebutted. Cary v. Chevron, U.S.A., 867 P.2d 117 (Colo.App. 1993). Further, the ALJ is not held to a standard of absolute clarity in expressing findings of fact, and evidence or inferences not discussed in the order were presumably rejected. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
We do not dispute the respondent's legal contention that a claimant may be found responsible for a termination if the evidence shows the claimant was discharged for failing to meet a known standard for the claimant's job performance. Compare Richards v. Winter Park Recreational Association, 919 P.2d 933 (Colo.App. 1996). Here, however, as we understand the order, the ALJ found the evidence was insufficient to show the claimant failed to meet performance standards in any specific regard. Based on the record, we perceive no error in that assessment.
The performance evaluations are vague concerning what actions of the claimant constituted poor interpersonal relationships with other staff. The evaluations speak of the "perceptions" of other employees concerning the claimant's communications skills without specifying particular instances of improper conduct or substandard performance. The only specific activity cited was sending employees to the administration, and the April 2003 evaluation indicates the claimant's conduct improved in that area. The evaluations are also vague concerning the claimant's alleged failure to use proper teaching techniques. The evaluations speak in general terms and suggest the claimant improve her "ability to provide activities that are connected to the teaching points in her lesson." The human resource director did not personally observe any of the claimant's teaching activity or interaction with staff and could not provide any firsthand knowledge concerning her performance as a teacher.
Although the respondent asserts the evidence and ALJ's findings establish the claimant was aware she needed to "improve her performance" and chose not to do so, an equally plausible reading of the evidence is that the claimant was aware the principal was asserting she needed to improve and the claimant desired to improve, but the standards were so vague that it cannot be determined whether the claimant actually engaged in any substandard conduct or acted volitionally by failing to improve on that conduct. Indeed, the claimant's response to the first evaluation states she believes her efforts at communication with staff were "misinterpreted" because of a poorly-defined role, and after the second evaluation the claimant states she needs "guidance" from the principal. Thus, the ALJ could reasonably infer the claimant was discharged for the convenience of the employer, not because of some identifiable failure to meet established job performance standards and failure to improve. See Brinsfield v. Excel Corp., W.C. No. 4-551-844 (July 18, 2003). While the evidence might have been interpreted differently, we may not substitute our judgment for that of the ALJ concerning the weight of the evidence and the inferences to be drawn. Wilson v. Industrial Claim Appeals Office, supra.
IT IS THEREFORE ORDERED that the ALJ's order dated November 19, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Bill WhitacreNOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a Petition to Review with the Court, within twenty (20) days after the date this Order was mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2003. The appealing party must serve a copy of the Petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this order were mailed to the parties at the addresses shown below on April 21, 2004 by A. Hurtado.
Robin Reposa, 5112 W. 61st Ave., Arvada, CO 80003
Adams County School District 50, 4476 W. 68th Ave., Westminster, CO 80030-5856
Dave Carroll, Adams County BOCES, 10290 Huron St., Northglenn, CO 80260
Teresa L. Manshardt, G. E. Young Company, 4251 Kipling St., #510, Wheat Ridge, CO 80033
Kerry L. Sullivan, Esq., 1325 S. Colorado Blvd., #405, Denver, CO 80222 (For Claimant)
Patricia Jean Clisham, Esq., 1125 17th St., #600, Denver, CO 80202 (For Respondent)