# Williams v. Department of Public Safety > Colorado Court of Appeals · December 31, 2015 · 369 P.3d 760 URL: https://www.frixlaw.com/law-library/cases/9820916 ## Case - **Full name:** Brett L. WILLIAMS, Petitioner-Appellee and Cross-Appellant, v. DEPARTMENT OF PUBLIC SAFETY, Colorado State Patrol, Respondent-Appellant and Cross-Appellee, and State Personnel Board, Appellee - **Court:** Colorado Court of Appeals - **Decided:** December 31, 2015 - **Citations:** 369 P.3d 760; 2015 COA 180; 2015 WL 9584012 - **Precedential status:** Published - **Opinion:** Concurring in part by Berger - **Judges:** Webb, Fox, Berger - **Cited by:** 13 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9820916 ## How later opinions describe it (automated extraction) - rejecting Federal Title VII precedent that front pay is an available remedy under Colorado antidiscrimination act ## Opinion text JUDGE BERGER, concurring in part and dissenting in part. I, ¶ 129 'By all accounts, Brett Williams was an exemplary Colorado State Patrol (Patrol) officer. He enjoyed a meteoric rise from trooper to eaptain in. the short period of seven years. But in 2009 he decided to pursue another dream-to become a helicopter pilot-and resigned from the Patrol, At least one of his colleagues at the Patrol told him he was making a mistake and that colleague was right. Williams missed the camaraderie of the Patrol and participating in all of the things that the Patrol does for the state of Colorado. (130 He applied for reinstatement but, despite his flawless record with the Patrol, he was denied reinstatement. 'A state hearing officer found that the reason for his nonreinstatement was because Williams was gay, a fact that he had taken pains to avoid discloging, but which was improperly inquired into during the reinstatement process. The hearing officer found that Williams had suffered unlawful discrimination because of his sexual orientation and that the Patrol thns violated section 24-34-405 of the version of the Colorado Anti-Discrimination Act (CADA) in effect in 2010, Ch. 207, see. 7, § 24-84-405, 1999 Colo. Sess. Laws 1989 (pre-2015 CADA). 1 1131 The hearing officer awarded back pay under CADA and attorney fees under the state personnel code. The hearing officer rejected the statutory remedy of reinstatement, specifically finding that because of the nature of the activities engaged in by a state patrol trooper, reinstatement was not available under these particular facts. As an alternative to reinstatement, the hearing officer awarded Williams almost $600,000 in front pay. The hearing officer's decision was affirmed by the State Personnel Board (Board) 2 1182 The majority corréctly affirms the hearing officer and the Board's findings and conclusions that Williams suffered sexual orientation, discrimination in his application for reinstatement. But the majority guts the relief awarded by the hearing officer and. affirmed by the Board by ruling that front pay is unavailable, under any circumstances, under pre-2015 CADA. In. so doing, the majority fails to recognize that nothing in pre-2015 CADA prohibits, in appropriate cases, an alternative award of front pay when reinstatement is not feasible; does not accord enough importance to the specific facts of this case, in which the fact finder determined that reinstatement of Williams would subject him to personal safety issues; minimizes the best legislative history evidence of what remedies pre-2015 CADA authorizes; disregards a prior precedent of this court *783 that held that front pay is available under pre-2015 CADA; and undervalues the multitude of federal court decisions which uniformly hold that front pay is available under federal anti-discrimination statutes that are similar (but not identical) to pre-2015 CADA. [ 133 The majority does not dispute that if front pay is unavailable in this case, and if reinstatement is not ordered on remand, it is impossible to make Williams whole, and he will go uncompensated for the unlawful discrimination he suffered at the hands of the Patrol. That result is neither compelled nor even permissible under established rules of statutory construction, Accordingly, I respectfully dissent from the majority's decision reversing the award of front pay. IL 134 The majority first asserts that because front pay is not explicitly listed in pre-2015 CADA, it is not available But the statute also does not state that front pay is not a remedy, or that the list of remedies provided is an exclusive list of the relief available. The plain language of the statute thus does not resolve the issue presented here. 185 Slgmficantly, however, pre-2015 CADA does explicitly provide for reinstate, ment. Front pay is a substitute for reinstatement and is an essential part of the "make whole" relief mandated by the anti-discrimination laws. | Pollard v. E.I. Du Pont de Nemours & Co., 532 U.S. 843, 850 , 121 S.Ct, 1946 , 150 L.Ed.2d 62 (2001). Because front pay is awarded when réiristatement is not a viable option, id., I disagree with the majority that the express inclusion of reinstatement as a remedy necessarily means that the General Assembly intended to exclude front pay as an option. ¶ 136 Sometimes reinstatement is not feasible. That is so, for example, if the employer's persistent animosity towards the plaintiff has destroyed the plaintiff's ability to be an effective employee. Spulak v. K Mart Corp., 894 F.2d 1150, 1157-58 (10th Civ,1990). To deny front pay in these cireumstances completely frustrates the legislative intent to make the injured person whole. See City of Colorado Springs v. Conners, 993 P.2d 1167, 1175 (Colo.2000) (purpose of CADA's remedies). Moreover, that denial creates the perverse incentive for an employer to make working conditions so oppressive to invoke a finding that reinstatement is unavailable, with the result that the unlawful discrimination cannot be remedied. Abuan v. Level 3 Commc'ns, Inc, 353 F.3d 1158, 1176 (10th Cir,2003). We must presume that the General Assembly did not intend such an illogical and absurd result, and we should not adopt a construction that produces one. See CLPF/-Parkridge One, L.P. v. Harwell Inv., Inc., 105 P.3d 658, 661 (Colo.2005). (137 Second, the majority reasons that because the amendments to CADA that became effective in 2015 (2015 CADA ainend-ments) | explicitly authorize front pay as a remedy, it follows that front pay is unavailable under pre-2015 CADA, which did not expressly include front pay. It cites in support the principle that legislative amendments are presumed to change the law. City of Colorado Springs v. Powell, 156 P.3d 461, 465 (Colo.2007) But that presumption may be rebutted by examining the statutory language and the statute's legislative history, Meso Cty. Land Conservancy, Inc. v. Allen, 2012 COA 95, ¶ 10 , 318 P.3d 46 , and there is ample evidence to rebut it here. ¶ {138 Front pay is an equitable remedy. E.g., McCue v. Kansas, 165, F.3d 784, 792 (10th Cir.1999). The remedies explicitly an-thorized by pre-2015 CADA indisputably are equitable in nature. The purpose of equitable remedies in discrimination cases is to make the claimant whole-to place the claimant in the position he would have been in but for the discriminatory conduct. Comners, 993 P.2d at 1175 . Legal-remedies, such as compensatory and punitive damages, were unavailable under pre-2015 CADA, 1989 Colo. Sess. Laws at 1042, Indeed, the Colorado Supreme Court and this court expressly interpreted pre-2015 CADA as authorizing only equitable relief, not creating a legal claim for damages. Cont'l Title Co. v. Dist. Court, 645 P.2d 1310, 1316 (Colo.1982); Bigby v. Big 3 Supply Co., 937 P.2d 794, 801 (Colo.App.1996); ' Agnello v. Adolph Coors Co., 695 P.2d 311, 313 (Colo.App.1984). *784 {139 Thus, a legislative goal to add legal types of relief for certain violations, the express purpose of the 2015 CADA amendments, did not include expansion of equitable remedies which already were authorized by pre-2015 CADA. The bill summary for the 2015 CADA amendments supports this interpretation of pre-2015 CADA. The bill summary explained that current law did not permit an award of compensatory or punitive damages or attorney fees and costs in employment discrimination cases, and the purpose in amending the statute was to allow "the additional remedies" of these damages. H.B. 13-1186, 69th Gen. Assemb., Reg. Sess. § 1 (Colo, 2018), The summary then went on to state; "These damages would be in addition to the remedies allowed under current law, namely, front pay, back pay, interest on back pay, reinstatement or hiring, and other equitable relief that may be awarded." Id. (emphasis added). €140 Contrary to the majority's suggestion, divisions of this court repeatedly have considered bill summaries to determine legislative intent. See Meyerstein v. City of Aspen, 282 P.3d 456, 466 (Colo.App.2011); Thermo Dev., Inc. v. Cent. Masonry Corp., 195 P.3d 1166, 1168 (Colo. Hane v. Tubman, 899 P.2d 332, 337 (Colo. App.1995); People v. Kingsolver, 897 P.2d 878, 879 (Colo.App.1995). So has a former justice of the supreme court. See Dep't of Transp. v. Stapleton, 97 P.3d 938, 950 (Colo.2004) (Kourlis, J., dissenting). {141 The majority rejects the bill summary's clear statement of legislative intent, disregarding it as, essentially, unimportant. But the bill summary is significant not only for its language but also because it highlights the then-existing dichotomy between equitable and legal relief. The 2015 CADA-amend-ments focused exclusively on amending the statute to add the availability of legal damages; they did not focus on any additional forms of equitable relief, such as front pay, because the assumption was that such equitable relief was already available under the existing version of the statute. Accordingly, the express inclusion of front pay as a remedy for CADA violations was a clarification to existing law, not a change to that law. 142 Third, this court in Ward v. Department of Natural Resources, 216 P.3d 84, 96-97 (Colo.App.2008), explicitly held that, at least in some cireumstances, front pay is authorized by pre-2015 CADA. The majority first attempts to distinguish Ward, focusing on the fact that front pay in that case was awarded only for a limited period. Id. at 96 . But if CADA authorizes an award of front pay until an employee can be reinstated in part because, as the majority acknowledges, "reinstatement and front pay are alternate remedies," then clearly it cannot also be true that, in the words of the majority, pre-2015 CADA "did not authorize front pay." 148 In addition to attempting to distinguish Ward, the majority simply declines to follow it, I agree that this division is not bound to follow a prior division's decision, but we should not easily cast aside a considered decision by a prior division of this court. In re Estate of Becker, 32 P.3d 557, 563 (Colo.App.2000) (stating that "divisions of this court generally have given considerable deference to the decisions of other [divisions]"), affd sub nom. In re Estate of De-Witt, 54 P.3d 849 (Colo.2002). Contrary to the majority's views, I believe that Ward was correctly decided, and we should follow it heres. 3 T 144 The majority also gives short shrift to the multitude of federal cases that have, for years, interpreted similar (but not identical) federal anti-discrimination statutes to authorize awards of front pay even though those federal statutes, like pre-2015 CADA, did not explicitly authorize front pay awards. 1 145 In rejecting the persuasive value of these federal precedents, the majority states that they are inapposite because the federal statutes contain other language that allows federal courts, but not the hearing officer or Board in this case, to award front pay. The majority's analysis is unconvincing. *785 €146 The Colorado Supreme Court has stated that "[the remedy for a violation of Title VII is substantially similar to the remedy prescribed in section 24-84-405," Cont'l Title Co., 645 P.2d at 1817 (emphasis added). The supreme court consequently has examined, and relied on, federal court precedent interpreting Title VII in analyzing the pre-2015 CADA. See id. at 1818; Conmers, 998 P.2d at 1175 (determining that the relief available under the pre-2015 CADA is non-compensatory and stating that the United States Supreme Court has held that "similar relief under civil rights statutes is non-compensatory in nature"). ' 147 Moreover, both the federal and state schemes share the same purpose-to make the claimant whole. See, e.g., Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 287 , 118 S.Ct. 1989 , 141 L.Ed.2d 277 (1998) (Title VII), Commers, 998 P.2d at 1175 (CADA). 148 Without a strong reason to depart from persuasive federal precedent, we should interpret pre-2015 CADA consistently with the federal courts' interpretation of Title VII; "[allthough front pay is not expressly listed as a remedy in Title VII, the power to grant equitable relief has been interpreted as including front pay." Black v. Waterman, 88 P.3d 1130, 1183 (Colo.App.2008) (citing McCue, 165 F.3d 784 ). {149 Lastly, I do not accord the same significance as the majority to the 1979 amendment to CADA that removed the phrase "including (but not limited to)" from before the list of remedies. Rather, I find persuasive Justice Quinn's dissent in World Wide Construction Services, Inc. v. Chapman, 683 P.2d 1198, 1201-02 (Colo.1984): Although the legislature in 1979 modified this all-inclusive language when it enacted [pre-2015 CADA], I view the modification as an effort to dispel the notion that the Commission's authority extended to an award of consequential damages, over and above back pay, that might otherwise be arguably implied from the "including but not limited" language of the prior statute. ' 150 Such an interpretation is consistent with the general scheme of pre-2015 CADA to allow equitable relief but not legal damages. IIL [151 On this record, and under the law, Williams was entitled to an award of front pay. I would affirm the Board's affirmance of that remedy and respectfully dissent from the majority's reversal of the front pay remedy. 4 , As discussed in detail below, CADA was amended in 2013 to add legal remedies for certain violations; those amendments became effective on July 1, 2015. § 24-34-405(3), C.R.S. 2015. For convenience, I refer to the version in effect at the time the Patrol denied Williams' reinstatement as pre-2015 CADA. . The Board vacated the hearing officer's finding that there was a pervasive atmosphere of anti-gay sentiment in the Patrol, concluding that the evidence did not support that finding. The . Board also vacated the hearing officer's order that the Patrol take remedial action not specifically related to Williams. . Significantly, from 2008, 'when Ward was decided, until 2013 when the General Assembly amended CADA, the General Assembly. did not legislatively overrule Ward and, indeed, the amendments conform to Ward's holding. . I agree with the majority's analysis and disposition of the other issues in this case. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9820916. Public record. Not legal advice.