COLORADO COURT OF APPEALS                                         2016COA96


Court of Appeals No. 15CA0966
Industrial Claim Appeals Office of the State of Colorado
DD No. 26790-2014


Mesa County Public Library District,

Petitioner,

v.

Industrial Claim Appeals Office of the State of Colorado and Laurie A. Gomez,

Respondents.


                              ORDER AFFIRMED

                                   Division I
                          Opinion by JUDGE HARRIS
                            Taubman, J., concurs
                             J. Jones, J., dissents

                          Announced June 16, 2016


Bechtel & Santo, LLP, Michael C. Santo, Grand Junction, Colorado, for
Petitioner

No Appearance for Respondent Industrial Claim Appeals Office

Karp Neu Hanlon, P.C., Anna S. Itenberg, Glenwood Springs, Colorado, for
Respondent Laurie A. Gomez
¶1    In this unemployment compensation benefits case, petitioner,

 Mesa County Public Library District (Library), seeks review of a final

 order of the Industrial Claim Appeals Office (Panel). A hearing

 officer disqualified respondent Laurie A. Gomez from receiving

 benefits under section 8-73-108(5)(e)(XX), C.R.S. 2015 (failure to

 meet established job performance standards), finding that although

 she was mentally unable to perform the work, a designation that

 would ordinarily entitle her to benefits under section 8-73-108(4)(j),

 her mental impairment had been caused in the first instance by her

 own poor work performance. Thus, according to the hearing officer,

 Ms. Gomez was ultimately at fault for her separation from

 employment.

¶2    The Panel reversed, concluding that the hearing officer’s

 determination of the etiology of Ms. Gomez’s medical condition was

 too attenuated from the cause of separation to be relevant and was

 not supported by substantial evidence. We affirm the Panel’s

 decision.




                                   1
                          I.     Background

¶3    Ms. Gomez worked for the Library for almost twenty-five years.

 At the time of her termination, she was the public services

 manager.

¶4    Ms. Gomez began having performance issues in the fall of

 2013, shortly after the Library hired a new director. When she

 requested additional staff, the director asked Ms. Gomez to prepare

 an organizational capacity report to determine if she was effectively

 utilizing existing staff. Ms. Gomez had never prepared an

 organizational capacity report before, and the director was not

 satisfied with her work product, which he characterized as a “data

 dump” devoid of analysis, cohesion, and context. Ms. Gomez was

 subsequently placed on two successive performance improvement

 plans (PIPs) for failing to manage her staff effectively and act

 professionally.

¶5    In September 2014, the director placed Ms. Gomez on a third

 PIP and told her that if she did not prepare a satisfactory

 organizational capacity report by October 7, 2014, she faced

 additional disciplinary action, including possible discharge.


                                    2
¶6    Ms. Gomez called in sick on October 7. She returned to work

 on October 8, but she did not communicate with her supervisors

 about the report and, instead, she spent that afternoon shopping

 for supplies for a Library event scheduled for the end of the month.

 Ms. Gomez called in sick again on October 9 and did not return to

 work thereafter.

¶7    On October 14, she submitted a doctor’s note to her

 supervisors, which advised that Ms. Gomez was suffering from an

 acute stress disorder and major depressive disorder. The doctor

 recommended that Ms. Gomez remain off from work for four to six

 weeks so that her condition could stabilize. At the time, Ms. Gomez

 was taking several psychotropic medications. The Library granted

 Ms. Gomez’s request for time off.

¶8    On October 15, while Ms. Gomez was home on leave, the

 director contacted her and requested that she send the

 organizational capacity report to him. Ms. Gomez forwarded some

 documents to him, but the report was not satisfactory, and the

 director terminated her effective October 20, 2014. According to the

 hearing officer’s findings, the proximate cause of Ms. Gomez’s


                                     3
  separation from employment was her failure to “present or prepare

  a report on organizational capacity for the administrative team.”

¶9     At the hearing to determine eligibility for unemployment

  compensation benefits, Ms. Gomez attributed her mental health

  problems to job-related circumstances. She told the hearing officer

  that she felt singled out for disciplinary action by the new director

  and believed that he was trying to force her to quit so that he could

  replace her with a younger employee. According to Ms. Gomez, her

  mental health deteriorated significantly after issuance of the

  September 2014 PIP and, by early October, she had frequent

  emotional breakdowns at work. She said that her staff offered to

  help with tasks because they could see that she was “a mess.”

¶ 10   The hearing officer determined that Ms. Gomez “bec[ame]

  mentally unable to perform her job duties.” However, she declined

  to award benefits because she further concluded that Ms. Gomez

  was “at fault” for becoming mentally unable to complete the report.

  According to the hearing officer, Ms. Gomez’s poor job performance

  beginning in 2013 led to criticism by her supervisors which, in

  turn, brought about her stress and major depressive disorders


                                     4
  which ultimately prevented her from completing the report due on

  October 7. The hearing officer therefore found that Ms. Gomez had

  failed to meet the employer’s established job performance standards

  and, under section 8-73-108(5)(e)(XX), she was disqualified from

  receiving benefits.

¶ 11   On review, the Panel adopted the hearing officer’s evidentiary

  findings that Ms. Gomez’s failure to complete the report was the

  reason for her termination and that, at the time the report was due,

  Ms. Gomez was mentally unable to complete it. The Panel,

  however, rejected, as a matter of law and fact, the hearing officer’s

  conclusion that Ms. Gomez was disqualified from receiving benefits

  because she was at fault for her own diagnosed mental health

  disorders. Accordingly, the Panel awarded Ms. Gomez benefits

  under section 8-73-108(4)(j).

¶ 12   The Library now appeals.

                        II.   Standard of Review

¶ 13   We are bound by the hearing officer’s findings of evidentiary

  facts if they are supported by substantial evidence in the record.

  Harbert v. Indus. Claim Appeals Office, 2012 COA 23, ¶ 7. However,


                                     5
  we review de novo the hearing officer’s and the Panel’s ultimate

  conclusions of fact. Commc’ns Workers of Am. 7717 v. Indus. Claim

  Appeals Office, 2012 COA 148, ¶ 7 (citing Federico v. Brannan Sand

  & Gravel Co., 788 P.2d 1268, 1272 (Colo. 1990)) (ultimate

  conclusions of fact are conclusions of law or mixed questions of law

  and fact which determine the parties’ rights and liabilities and

  which are generally phrased in the language of the controlling

  statute or legal standard). The determination as to whether a

  claimant was “at fault” for the separation from employment is an

  ultimate legal conclusion that we likewise review de novo. Bell v.

  Indus. Claim Appeals Office, 93 P.3d 584, 586 (Colo. App. 2004).

  We will uphold the Panel’s decision unless the findings of fact do

  not support the decision or the decision is erroneous as a matter of

  law. § 8-74-107(6), C.R.S. 2015; Nagl v. Indus. Claim Appeals

  Office, 2015 COA 51, ¶ 7.

                         III.     Discussion

                          A.    Legal Principles


¶ 14   The Colorado Employment Security Act (Act) is designed to

  lighten the burden of unemployment on those who are involuntarily

                                    6
  unemployed through no fault of their own. Colo. Div. of Emp’t &

  Training v. Hewlett, 777 P.2d 704, 706 (Colo. 1989). Pursuant to

  the Act, benefits must be granted to an employee unless the job

  separation was due to one or more statutorily enumerated causes.

  Id. at 707. The Act is to be liberally construed to further its

  remedial and beneficent purposes. Id.

¶ 15   In a claim for unemployment compensation benefits under

  section 8-73-108, a claimant must first establish a prima facie case

  for an award. City & Cty. of Denver v. Indus. Comm’n, 756 P.2d

  373, 380 (Colo. 1988). Once established, “the burden of going

  forward shifts to the employer to demonstrate that the claimant’s

  termination was for a reason that would disqualify the claimant

  from the receipt of benefits under the provisions of § 8-73-108(5).”

  Ward v. Indus. Claim Appeals Office, 916 P.2d 605, 607 (Colo. App.

  1995). If this burden is met, “claimant then must present evidence

  to justify the acts which led to the separation and show that he or

  she is entitled to benefits under the provisions of § 8-73-108(4).” Id.




                                     7
                                B.   Analysis

   1.   The Panel Properly Accepted the Hearing Officer’s Findings of
                                   Fact

¶ 16    The Library first argues that the Panel exceeded its authority

  by substituting its findings of fact for those of the hearing officer.

  According to the Library, the hearing officer found that Ms. Gomez

  was terminated because she failed to complete the report, but the

  Panel determined that the reason for separation was her mental

  inability to perform her job duties. We disagree.      In fact, the Panel

  deferred to, and adopted, both of the hearing officer’s findings of

  fact critical to this appeal. Specifically, the hearing officer first

  found that the Library “terminated the claimant because the

  claimant did not present or prepare a report on organizational

  capacity for the administrative team.” The Panel concluded that

  this finding was supported by the record, and we agree. Next, the

  hearing officer found that Ms. Gomez suffered from acute stress and

  depression, and that she “be[came] mentally unable to perform her

  job duties.” The Panel adopted this finding as well, and we likewise

  conclude that it is supported by evidence in the record.



                                      8
¶ 17   Thus, we, like the Panel, are bound by the hearing officer’s

  finding that Ms. Gomez was terminated for failing to prepare a

  report that she was mentally unable to complete. Harbert, ¶ 7.

¶ 18   Because we are bound by these findings, we reject the

  Library’s next contention that the evidence demonstrated that Ms.

  Gomez’s mental health disorder did not affect her ability to

  complete the report. The Library insists that because Ms. Gomez

  worked on the report until early October and failed to notify her

  supervisors of her mental health problems until after the report’s

  due date, the record did not support a finding that Ms. Gomez’s

  medical condition made her unable to complete the assigned task.

¶ 19   We acknowledge that an employee with a mental health

  condition is not automatically entitled to benefits upon termination,

  but must instead demonstrate that her mental health condition

  rendered her unable to perform her job duties. See, e.g., Tague v.

  Coors Porcelain Co., 30 Colo. App. 158, 161, 490 P.2d 96, 98 (1971)

  (employee who suffered two nervous breakdowns was not entitled to

  benefits because his mental health condition did not make him

  unable to perform the work). Here, though, the hearing officer


                                    9
heard testimony from a number of witnesses, including Ms. Gomez,

who detailed her frequent breakdowns at work, and the hearing

officer found that Ms. Gomez became mentally unable to perform

her job duties. While the evidence on this issue might have been

conflicting, it was up to the hearing officer to resolve conflicts in the

testimony. See Elec. Fab Tech. Corp. v. Wood, 749 P.2d 470, 471

(Colo. App. 1987) (conflicting testimony about employee’s physical

and mental inability to perform her work was properly resolved by

fact finder); see also Tilley v. Indus. Claim Appeals Office, 924 P.2d

1173, 1177 (Colo. App. 1996) (in unemployment proceedings,

hearing officer must resolve conflicting testimony).1



1 The Library also argues that Ms. Gomez did not claim to be unable
to perform her job duties until she filed her brief with the Panel. At
the hearing, though, Ms. Gomez testified that she “tried [her] best”
and her “hardest in preparing that report,” but that she “was
severely depressed and stressed” and “was having several
breakdowns throughout that time”; that she was on “a couple of
different medications for [her] stress disorder and [her] depression”;
and that she believed her supervisors knew that she was having
trouble performing her job duties because “everybody in the library”
noticed “that [she] was a mess” and required assistance from her
staff, who “realiz[ed] that [she] . . . was having a mental
breakdown.” We conclude this issue was presented to the hearing
officer and that, based on the evidence, the hearing officer
reasonably concluded that Ms. Gomez was mentally unable to
perform the work.
                                   10
       2.   The Panel Properly Rejected the Hearing Officer’s Legal
                   Conclusion That Gomez Was “At Fault”

¶ 20    Finally, the Library argues that the Panel erred in reversing

  the hearing officer’s conclusion that because Ms. Gomez was “at

  fault” for her own mental health disorders, she was therefore

  disqualified from receiving benefits. We discern no error.

¶ 21    Whether a claimant is entitled to unemployment compensation

  benefits depends upon the reason for the claimant’s job separation.

  See Debalco Enters., Inc. v. Indus. Claim Appeals Office, 32 P.3d

  621, 623 (Colo. App. 2001). Ordinarily, the hearing officer’s

  determination that Ms. Gomez was discharged for failing to

  complete the report would have led to disqualification of benefits.

  See § 8-73-108(5)(e)(XX) (failure to meet established job

  performance standards).

¶ 22    However, the hearing officer also determined that Ms. Gomez

  was mentally unable to prepare the report. Where certain

  evidentiary findings support application of a disqualifying

  subsection of the statute, a claimant may still be entitled to benefits

  if another evidentiary finding or the totality of the circumstances

  establishes that the job separation occurred through no fault of the

                                    11
  claimant. See Velo v. Emp’t Sols. Pers., 988 P.2d 1139, 1142 (Colo.

  App. 1998); Keil v. Indus. Claim Appeals Office, 847 P.2d 235, 237

  (Colo. App. 1993). Typically, a claimant who is discharged because

  she is “physically or mentally unable to perform the work” is eligible

  to receive benefits. § 8-73-108(4)(j); see also Colo. State Judicial

  Dep’t v. Indus. Comm’n, 630 P.2d 102, 103 (Colo. App. 1981).

¶ 23   But after finding that Ms. Gomez was mentally unable to

  perform the work, the hearing officer concluded that Ms. Gomez

  was nonetheless “at fault” for her separation because she was

  responsible for bringing about her own mental health disorders,

  which, according to the hearing officer’s interpretation of Ms.

  Gomez’s testimony, were triggered by her supervisors’ criticism of

  her poor work performance. Because Ms. Gomez “was at fault for

  becoming mentally unable to perform her job duties,” the hearing

  officer concluded she was disqualified from receiving benefits under

  section 8-73-108(5)(e)(XX).

¶ 24   Under the statute, “fault” is a term of art applied to determine

  whether the claimant or the employer is responsible overall for the

  separation from employment. Cole v. Indus. Claim Appeals Office,


                                     12
  964 P.2d 617, 618 (Colo. App. 1998). The concept of “fault” is “not

  necessarily related to culpability,” City & Cty. of Denver, 756 P.2d at

  377 (quoting Zelingers v. Indus. Comm’n, 679 P.2d 608, 609 (Colo.

  App. 1984)); instead, it has been defined as “requiring a volitional

  act or the exercise of some control or choice by the claimant in the

  circumstances resulting in the separation such that the claimant

  can be said to be responsible for the separation.” Cole, 964 P.2d at

  618.

¶ 25     By finding that Ms. Gomez was mentally unable to complete

  the report (the reason for her termination), the hearing officer

  necessarily found that her conduct was nonvolitional — she was

  unable, not unwilling, to complete the report — and therefore she

  could not be at fault for her separation from employment. Cf. City

  & Cty. of Denver, 756 P.2d at 378 (conduct induced by alcoholism is

  nonvolitional when employee’s alcoholism has progressed to the

  stage that employee is unable to abstain from drinking). However,

  the hearing officer then decided that Ms. Gomez was at fault for

  being mentally unable to complete the task, meaning that Ms.

  Gomez had control over, and made a conscious choice about, her


                                    13
  acute anxiety and major depressive disorders. We agree with the

  Panel that the hearing officer erred in ascribing fault to Ms. Gomez

  for the mental health disorder that prevented her from completing

  her assigned job duties.

¶ 26   Under section 8-73-108(4), an employee separated from her

  job “shall be given a full award of benefits if any of the following

  reasons and pertinent conditions related thereto are determined by

  the division to have existed,” including that the employee is

  “physically or mentally unable to perform the work or unqualified to

  perform the work as a result of insufficient educational attainment

  or inadequate occupational or professional skills.” § 8-73-108(4)(j).

  We do not read that provision to permit a further inquiry into

  whether the employee is “at fault” for bringing about the “pertinent

  condition” in the first instance.

¶ 27   We conclude, as did the Panel, that the reason for the

  employee’s condition or status under section 8-73-108(4)(j) is too

  attenuated from the issue of the proximate cause of the employee’s

  separation from employment. Suppose, for example, that a hearing

  officer determined that an employee was discharged because she


                                      14
  was unable to perform the work as a result of insufficient

  educational attainment. Could the hearing officer then inquire into

  the reasons for the employee’s failure to attain a certain educational

  status? What if the employee had dropped out of college decades

  earlier? Would the employee be “at fault” for not obtaining the

  necessary education or skills to do the work required by the

  employer? But what if the employee had dropped out because a

  parent had died, and she no longer had the money to continue her

  education?

¶ 28   The hearing officer concluded that Ms. Gomez brought on her

  own acute anxiety and major depressive disorder by performing

  poorly in 2013 and subjecting herself to criticism from her

  supervisors. But what if Ms. Gomez might have been able to

  withstand the criticism except that she had a family history of

  depression which made her more susceptible to a breakdown? Or

  what if Ms. Gomez’s initial poor performance, which led to her

  supervisor’s criticism, was based on her inability to do the work

  because of inadequate occupational or professional skills (a finding

  that might very well be supported by the evidence in this case)?


                                   15
¶ 29   In our view, this provision of the statute simply does not

  contemplate a never-ending inquiry into the reasons behind the

  employee’s inability to perform the work because those reasons are

  too attenuated from the cause of the separation. The Library has

  offered no authority for its argument, and we have been unable to

  uncover any case law supporting the hearing officer’s analysis.

¶ 30   Instead, at least one division of this court has upheld an

  award of benefits under section 8-73-108(4) when the claimant was

  clearly “at fault” for the physical or mental inability to perform his

  duties. See Pepsi-Cola Bottling Co. of Denver v. Colo. Div. of Emp’t &

  Training, 754 P.2d 1382, 1383 (Colo. App. 1988) (claimant

  terminated for not reporting his absence in a timely manner was

  awarded benefits under subsection (4) because he was physically

  unable to do so, even though the physical inability was caused by

  his consumption of alcohol and tranquilizers); see also Indus.

  Comm’n v. Moffat Cty. Sch. Dist. RE No. 1, 732 P.2d 616, 621 (Colo.

  1987) (teacher who was dismissed for drinking with students might

  still be eligible for unemployment benefits if she could not perform

  her work due to inadequate professional skills). If the employee is


                                     16
  unable to do the work because of a mental, physical, or skills-based

  impairment, her conduct is nonvolitional and, for purposes of the

  statute, she is not at fault for her separation from employment.

¶ 31   Moreover, we note that the Act is intended to provide a speedy

  determination of eligibility through a simplified administrative

  procedure. Hewlett, 777 P.2d at 707. The ultimate question under

  subsection (4)(j) is whether the employee’s conduct was volitional.

  In our view, an inquiry into the root cause of an employee’s mental

  impairment is simply beyond the scope of the hearing’s purpose.

¶ 32   The hearing officer opined that Ms. Gomez’s acute stress and

  major depressive disorders were brought on by her supervisors’

  justifiable criticism of her job performance. But Ms. Gomez testified

  that her stress was based not on legitimate responses to her poor

  work performance, but on a belief that she had been unfairly

  singled out for disciplinary action, perhaps based on her age, and

  that she felt “threatened” and “harassed” by the director. The

  hearing officer did not find Ms. Gomez’s termination to be

  discriminatory, but that does not lead inexorably to a conclusion

  that Ms. Gomez’s acute stress and major depression were


                                    17
  necessarily the result of nothing more than her own performance

  deficiencies. Ms. Gomez’s subjective understanding of the

  circumstances, even if factually inaccurate, could certainly have

  caused — or, at a minimum, contributed to — her mental health

  problems. In other words, the record does not definitively establish

  the cause of Ms. Gomez’s disorders.

¶ 33   The dissent emphasizes that Ms. Gomez’s poor performance in

  2013 was based on volitional conduct. Even if we assume that is

  true (although, as we have noted, there is evidence that Ms. Gomez

  could not satisfactorily prepare the complex report the director

  envisioned because of inadequate occupational or professional

  skills), the Library did not terminate Ms. Gomez because of her

  performance in 2013. Instead, according to the hearing officer’s

  findings, she was terminated in October 2014 for failing to complete

  the report — a task the hearing officer said she was incapable of

  performing because of her mental impairment. The question is

  whether Ms. Gomez was “at fault” for the conduct that was the

  proximate cause of her separation, not generally at fault for being a

  bad employee.


                                   18
¶ 34   This principle — that nonvolitional conduct does not make the

  employee “at fault” for her termination — is why the dissent’s

  example about employees Smith and Wilson does not hold up. In

  the dissent’s example, Smith and Wilson are both poor-performing

  employees. The employer disciplines both employees in the same

  way, but only Wilson develops a diagnosed mental health disorder.

  The dissent says there would be something odd about treating those

  employees differently if they are both eventually terminated for their

  poor performance. But if Smith is merely a poor-performing

  employee, for whatever reason,2 and Wilson cannot do the work

  because she suffers from serious mental health problems, we do not

  view those employees as similarly situated; therefore, we do not

  agree that it would be odd, when both of them are fired (an action

  the employer may take, of course), that only Wilson would receive

  unemployment compensation benefits under the statute.




  2 However, we note that if Smith was not just a poorly performing
  employee but was actually “unqualified to perform the work as a
  result of insufficient educational attainment or inadequate
  occupational or professional skills,” she too would be entitled to
  benefits. § 8-73-108(4)(j), C.R.S. 2015
                                    19
¶ 35   We also do not share the dissent’s concern that our decision

  will open the floodgates to employees’ illegitimate claims of mental

  incapacity. The dissent says that employees will be able to avoid

  responsibility for their poor performance “merely because that poor

  performance caused them stress.” For one thing, our decision does

  not let poor-performing employees off the hook. No one disputes

  that the Library could have terminated Ms. Gomez at any time

  during her twenty-five-year tenure. Our decision just affirms the

  uncontroversial principle that if an employee is terminated for

  conduct that was nonvolitional, she is entitled to receive

  unemployment compensation benefits.

¶ 36   But also, our decision will not allow an employee to obtain

  benefits “merely” because her poor performance caused her “stress.”

  A hearing officer would have to find not just that the employee was

  suffering from stress, but that the stress was of such a serious

  nature that it rendered her incapable of performing her job duties,

  which is the finding the hearing officer made in this case. Ms.

  Gomez was not suffering from ordinary job-related stress; she was

  diagnosed with acute anxiety and major depressive disorder, a


                                    20
  diagnosis the dissent does not question. At the hearing, she

  testified that her anxiety and depression were so acute that, several

  days before she went on medical leave, she sat in her car “sobbing

  and trying to take [her] anxiety medication.” She told the hearing

  officer that she was in the midst of a “mental breakdown,” and the

  hearing officer credited her testimony.

¶ 37   We agree with the Panel that the hearing officer erred in

  determining that Ms. Gomez was at fault for her nonvolitional

  conduct.

                         IV.     Conclusion

¶ 38   The Panel’s order is affirmed.

       JUDGE TAUBMAN concurs.

       JUDGE J. JONES dissents.




                                   21
       JUDGE J. JONES, dissenting.

¶ 39   I respectfully dissent. In my view, the hearing officer’s findings

  are supported by the record and the hearing officer correctly applied

  the law. Consequently, I would reverse the Panel’s order

  overturning the hearing officer’s decision.

                             I. Background

¶ 40   The hearing officer made the following relevant findings.

  Claimant worked for employer as a public services manager. In

  2013, employer asked claimant to complete an organizational

  capacity report because she had requested additional staff and

  employer needed data to determine if she was effectively using

  existing staff. Also, claimant’s department did not have a clear or

  well-organized data collection report. Claimant had “failed to

  maintain accurate departmental operational capacity benchmarks,”

  had not consistently tracked employee schedules for staffing

  purposes, had demonstrated resistance or a lack of initiative when

  asked to produce specifics concerning her department’s production,

  and had shown favoritism to certain employees in her department.




                                    22
¶ 41   Claimant presented employer with a report that essentially

  amounted to a “data dump” lacking cohesion and analysis.

  Employer was disappointed with the report. In September 2014,

  employer gave claimant a performance improvement plan (PIP) that

  required her to prepare a written operational capacity report and to

  verbally present the report on October 7, 2014. Employer had

  previously counseled claimant and placed her on two other PIPs for

  failing to manage her staff effectively and act professionally.

¶ 42   Employer provided claimant with guidelines on how to prepare

  the report and encouraged her, if necessary, to get assistance from

  her supervisor. The supervisor later made herself available and

  gave claimant ideas on how to organize and compile information for

  the report. Employer informed claimant that failure to complete the

  presentation could lead to additional disciplinary action up to and

  including termination of employment.

¶ 43   On October 2, claimant’s supervisor asked claimant about the

  October 7 presentation. Claimant said that she probably would not

  be ready to give it. The supervisor reminded claimant that employer

  had set aside time for the presentation and asked claimant to


                                    23
  indicate if there was anything the supervisor could do to help her.

  Claimant gave no such indication.

¶ 44   On October 7, claimant called in sick because she had anxiety.

  She came in to work the next day, but she did not provide employer

  with a copy of the report or ask about when she needed to present

  the report. In the afternoon, she left to purchase Halloween candy

  and supplies for a library event, although her duties did not include

  shopping for the event. That conduct displeased employer’s

  director, who informed claimant’s supervisor that he wanted to

  discharge claimant.

¶ 45   Claimant was absent from work on October 9 because of

  anxiety. Several days later she submitted a note from a nurse

  practitioner indicating that she was suffering from acute stress

  disorder and depression; employer granted claimant’s request for

  leave. Claimant had begun suffering from stress and depression in

  2013 after employer began issuing her corrective actions and PIPs

  based on her deficient job performance.

¶ 46   On October 14, employer telephoned claimant to see if she had

  a copy of the report. Employer’s director had decided that if


                                   24
  claimant had completed the report as required, he might not

  discharge her. Upon learning that claimant had not completed the

  report, employer discharged her.

¶ 47   At the hearing, claimant testified that employer targeted her,

  issued the PIPs, and discharged her based on age discrimination.

  The hearing officer did not find this testimony persuasive, however,

  finding instead that employer discharged claimant for

  nondiscriminatory and nonretaliatory reasons.

¶ 48   The hearing officer found that claimant failed to meet

  established job performance standards by (1) not presenting or

  preparing the report; (2) not seeking assistance from her supervisor

  to complete the report when the supervisor reached out to her; and

  (3) not attempting to reschedule the presentation of the report and,

  instead, deciding to shop for Halloween items. In short, “[t]his

  employer terminated the claimant because the claimant did not

  present or prepare a report on organizational capacity for the

  administrative team.”

¶ 49   Though claimant argued that she was mentally unable to

  perform her job, and therefore not at fault, see § 8-73-108(4)(j),


                                     25
  C.R.S. 2015 (a claimant is entitled to benefits if she is “physically or

  mentally unable to perform the work”), the hearing officer found

  that she was at fault because her anxiety and depression were

  caused by the employer’s action taken in response to her poor job

  performance and her poor job performance justified the employer’s

  actions (specifically, the PIPs and criticism).

¶ 50   Based on these findings, the hearing officer determined that

  claimant was at fault for the separation and that disqualification

  was warranted under section 8-73-108(5)(e)(XX).

¶ 51   On review, the Panel purported to accept the hearing officer’s

  evidentiary findings because they were not contrary to the weight of

  the evidence. However, the Panel concluded that the cause of

  claimant’s anxiety and depression were “remote from the proximate

  cause of her separation.” It further concluded that there was

  “scant” evidence to support the hearing officer’s finding that

  claimant engaged in any volitional conduct that caused her anxiety

  and depression and resulting inability to perform her job duties.

  Accordingly, the Panel awarded claimant benefits under section 8-




                                     26
  73-108(4)(j). The majority agrees with the Panel’s conclusions, but I

  do not.

                              II. Discussion

                     A. Applicable Legal Standards

¶ 52   Whether a claimant is entitled to unemployment benefits

  depends upon the reason for the claimant’s job separation. See

  Debalco Enters., Inc. v. Indus. Claim Appeals Office, 32 P.3d 621,

  623 (Colo. App. 2001). That reason is a matter to be resolved by the

  hearing officer as the trier of fact. See Eckart v. Indus. Claim

  Appeals Office, 775 P.2d 97, 99 (Colo. App. 1989).

¶ 53   We may not disturb a hearing officer’s evidentiary findings if

  they are supported by substantial evidence or reasonable inferences

  drawn from that evidence. Yotes, Inc. v. Indus. Claim Appeals

  Office, 2013 COA 124, ¶ 10; Tilley v. Indus. Claim Appeals Office,

  924 P.2d 1173, 1177 (Colo. App. 1996). Substantial evidence

  means evidence that is probative, credible, and competent, and of a

  character that warrants a reasonable belief in the existence of facts

  supporting a particular finding, without regard to the existence of




                                    27
  contradictory testimony or contrary inferences. Rathburn v. Indus.

  Comm’n, 39 Colo. App. 433, 435, 566 P.2d 372, 373 (1977).

¶ 54   “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. Neither

  we nor the Panel may reweigh the evidence or disturb the hearing

  officer’s credibility determinations. See id.

¶ 55   The Panel is bound by the hearing officer’s findings of

  evidentiary fact if they are not contrary to the weight of the

  evidence, which is a more deferential standard of review than the

  substantial evidence standard we apply on judicial review in other

  contexts. See Samaritan Inst. v. Prince-Walker, 883 P.2d 3, 9-10

  (Colo. 1994).

¶ 56   We may set aside the Panel’s decision if, as pertinent here, the

  findings of fact do not support the Panel’s decision or the Panel’s

  decision is erroneous as a matter of law. See § 8-74-107(6)(c)-(d),

  C.R.S. 2015.




                                      28
                               B. Analysis

¶ 57   Contrary to the majority (and the Panel), I conclude that the

  evidentiary findings and the record as a whole support the hearing

  officer’s decision to disqualify claimant from receiving benefits

  based on her failure to meet job performance standards.

                  1. The Findings Support Application
                      of Section 8-73-108(5)(e)(XX)

¶ 58   Substantial evidence in the record supports the hearing

  officer’s findings that (1) claimant was discharged for failing to

  prepare and present the report; (2) preparing and presenting the

  report were within claimant’s known job duties; and (3) claimant

  failed to meet established job performance standards by not

  preparing or presenting the report, not seeking assistance from

  employer, and not attempting to reschedule the presentation.

  Consequently, these findings are binding on review. See Yotes,

  ¶ 10; Tilley, 924 P.2d at 1177.

¶ 59   And these findings are also sufficient to satisfy section 8-73-

  108(5)(e)(XX). All that is necessary to establish a disqualification

  under that subsection is a showing that a claimant did not do the

  job for which she was hired and knew what was expected of her.
                                     29
  See Richards v. Winter Park Recreational Ass’n, 919 P.2d 933, 935

  (Colo. App. 1996); Pabst v. Indus. Claim Appeals Office, 833 P.2d

  64, 65 (Colo. App. 1992).

                  2. The Findings Support the Hearing
                      Officer’s Fault Determination

¶ 60   Even if evidentiary findings support application of a

  disqualifying subsection of the statute, a claimant may still be

  entitled to benefits if the totality of the circumstances establishes

  that the job separation occurred through no fault of the claimant.

  See Velo v. Emp’t Sols. Pers., 988 P.2d 1139, 1142 (Colo. App.

  1998); Keil v. Indus. Claim Appeals Office, 847 P.2d 235, 237 (Colo.

  App. 1993).

¶ 61   As the majority notes, in the unemployment context, “fault” is

  a term of art used as a factor to determine whether the claimant or

  the employer is responsible overall for the job separation. See Cole

  v. Indus. Claim Appeals Office, 964 P.2d 617, 618 (Colo. App. 1998).

  Fault requires a volitional act or the exercise of some control or

  choice in the circumstances leading to the separation such that the

  claimant can be said to be responsible for it. See id.; see also

  Richards, 919 P.2d at 934. Fault is an ultimate legal conclusion to
                                    30
  be based on the established findings of evidentiary fact. See Cole,

  964 P.2d at 618-19.

¶ 62   In this case, the hearing officer concluded that claimant was

  at fault for being discharged. As discussed, she based that

  conclusion on the evidentiary findings that claimant’s anxiety,

  depression, and resulting inability to complete the report were

  caused by having received the PIPs and job performance criticism

  which, in turn, resulted from claimant’s prior volitional conduct of

  not performing her job duties.

¶ 63   The Panel rejected this critical finding concerning the fault

  issue and the underlying reason for the job separation, concluding

  that there was only “scant” evidence to support it. Contrary to the

  Panel’s conclusion, however, substantial record evidence, including

  primarily claimant’s own testimony, supports the hearing officer’s

  finding that claimant’s anxiety and depression directly resulted

  from her past job performance deficiencies. For example, when

  asked why she had experienced stress, claimant responded that it

  was because she “had been given three [PIPs] in less than a year”

  concerning issues for which she believed she was being singled out


                                    31
  or harassed by employer. Claimant was also asked if the PIPs

  caused her “mental problem” and she responded, “[Y]es, they

  pushed . . . made this stress on me.” She also testified that her

  stress started in 2013. That was the year in which employer hired

  a new director and claimant began receiving the PIPs and job

  performance criticism. In further explaining the reason for her

  stress, claimant testified: “[I]t wasn’t just the PIP[s]. It was the way

  [employer was] coming after me.”3

¶ 64   Hence, the record fully supports the hearing officer’s finding

  that claimant’s anxiety, depression, and resulting inability to

  complete the report were caused by her past job performance

  deficiencies, which were volitional. And the hearing officer was not

  persuaded by claimant’s testimony that those issues arose from

  targeting or discrimination and, instead, found that they were

  based on claimant’s volitional conduct of not performing her job.




  3 The majority euphemistically acknowledges that claimant
  “attributed her mental health problems to job-related
  circumstances.” (Emphasis added.) Her testimony is actually
  crystal clear that claimant attributed her mental health problems to
  job-related stress caused by the employer’s responses to her
  perceived poor job performance.
                                     32
¶ 65   Although claimant’s job-related (more accurately, poor job

  performance-related) anxiety and depression eventually rendered

  her unable to complete or present the report, based on the hearing

  officer’s record-supported finding that claimant created that

  circumstance through her previous and volitional poor job

  performance, I perceive no error in the hearing officer’s conclusion

  that claimant was at fault for the job separation. See Cole, 964

  P.2d at 619; Richards, 919 P.2d at 934.

¶ 66   The majority concludes, however, that the cause of the

  claimant’s mental condition is irrelevant. I disagree.

¶ 67   Nothing in the language of subsection (4)(j) prohibits inquiry

  into the cause of the worker’s inability. Moreover, prohibiting such

  an inquiry is inconsistent with two critical overarching principles in

  unemployment benefit cases: (1) that the actual reason for a

  claimant’s job separation determines whether she is entitled to

  receive benefits, see Debalco Enters., 32 P.3d at 623; Eckart, 775

  P.2d at 99; and (2) the decision whether to award benefits must “at

  all times be guided by the principle that unemployment insurance




                                    33
  is for the benefit of persons unemployed through no fault of their

  own.” § 8-73-108(1)(a).

¶ 68   The hearing officer could properly consider whether claimant

  was ultimately responsible for her inability to complete and present

  the report. And if, as here, the evidence arguably might support

  application of more than one subsection of the unemployment

  statutes — in this case section 8-73-108(5)(e)(XX) or section 8-73-

  108(4)(j) — hearing officers have wide discretion in determining

  which subsection to apply. See Goodwill Indus. of Colorado Springs

  v. Indus. Claim Appeals Office, 862 P.2d 1042, 1046 (Colo. App.

  1993).

¶ 69   In concluding that inquiry into a cause of inability to perform

  a job satisfactorily is not allowed, the majority notes that a claimant

  is necessarily at fault for any educational deficiency rendering her

  unable to perform the job, and yet loss of a job because of an

  educational deficiency entitles a claimant to a full award of benefits.

  See § 8-73-108(4)(j). But poor job performance does not cause an

  educational deficiency; that is — an educational deficiency cannot

  have a job-related cause. So the majority’s analogy is inapposite.


                                    34
  True, poor job performance ordinarily does not cause a mental

  condition, but, as this case demonstrates, it can. And that is why

  inquiry into the underlying cause of the mental condition is

  appropriate. Consider the following hypothetical.

¶ 70   Employee Smith performs her job poorly, despite her best

  efforts.4 Her employer puts her on improvement plans and

  criticizes her performance, but Smith’s performance does not

  improve so the employer terminates Smith. In Smith’s case, the

  employer’s actions did not cause her to suffer any anxiety or

  depression rising to the level of a mental condition.

¶ 71   Employee Wilson performs the same job as Smith and

  performs deficiently in the same ways and to the same extent as

  Smith. The employer takes the same actions regarding Wilson as it



  4 The majority deems the two employees in my hypothetical
  dissimilarly situated. But both have the same job, do the same
  work poorly in the same ways, and are treated the same by their
  employer. That they react differently to the consequences flowing
  from their poor performance does not render them dissimilarly
  situated. Cf. Kendrick v. Penske Transp. Servs., Inc., 220 F.3d
  1220, 1232 (10th Cir. 2000) (employees are similarly situated for
  purposes of a disparate treatment claim if they deal with the same
  supervisor and are subject to the same standards governing
  performance evaluation and discipline).

                                    35
  took regarding Smith. Wilson’s performance also does not improve,

  and the employer terminates her. However, unlike Smith, the

  employer’s actions vis-a-vis Wilson’s job performance caused her

  anxiety and depression to an extent constituting a diagnosable

  mental condition before she was terminated.

¶ 72   Under the majority’s application of the statutes, Wilson gets

  benefits though Smith does not. This seems to me to be an odd

  application of the concept of fault. Perhaps the General Assembly

  intended such an odd result, but I doubt it. It seems much more

  likely to me that the General Assembly intended the mental inability

  exception to apply when the mental inability is not merely a

  reaction to an employer’s justified and reasonable responses to an

  employee’s poor job performance. See Mounkes v. Indus. Claim

  Appeals Office, 251 P.3d 485, 487 (Colo. App. 2010) (unemployment

  compensation statutes, like other statutes, must be interpreted in a

  way to give them sensible effect).

¶ 73   Though I do not question claimant’s diagnosis, I fear that the

  majority’s application of the law will encourage underperforming

  employees to claim that they ultimately cannot be held responsible


                                       36
for their poor job performance merely because that poor

performance caused them stress.




                                37
