Madruga v. Dept of Revenue

25CA0975 Madruga v Dept of Revenue 03-26-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA0975
State Personnel Board No. 2024S040

John Madruga,

Complainant-Appellant,

v.

Department of Revenue,

Respondent-Appellee

and

State Personnel Board

Appellee.

ORDER AFFIRMED

Division IV
Opinion by JUDGE FREYRE
Brown and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 26, 2026

Schwane Law, LLC, Mark A. Schwane, Denver, Colorado, for Complainant-
Appellant

Philip J. Weiser, Attorney General, Eric W. Freund, Senior Assistant Attorney
General, Sara P. Bellamy, Senior Assistant Attorney General, Amanda C.
Swartz, Senior Assistant Attorney General, Denver, Colorado, for Respondent-
Appellee

No Appearance for Appellee
¶1 Complainant, John “João” Madruga, appeals an order of the

Colorado State Personnel Board (Board) affirming the initial

decision of an administrative law judge (ALJ). Because the record

supports the Board’s decision, we affirm.

I. Background

¶2 In 2022, the Colorado Department of Revenue (Department)

attempted to hire a “Deputy Director/Chief of Investigations” for its

sports betting section (deputy position). The sports betting section

is a subdivision of the Department’s Division of Gaming (Gaming

Division). The minimum qualifications for the position included

four years of “professional regulatory investigative experience,” and

the “preferred qualifications and competencies” included knowledge

of Colorado rules and regulations related to gaming/sports betting;

excellent interpersonal, communication, and public speaking skills;

and an ability to work closely with senior executives to achieve

organizational vision, mission, goals, and objectives.

¶3 Madruga applied for the deputy position in 2022. Madruga

was born in Portugal, immigrated to the United States with his

family as a child, and became a naturalized citizen when he was

fourteen years old. He served in the United States Army and has

1
two master’s degrees — one in business administration and one in

accounting and financial management. At the time of his

application, Madruga had worked in the Gaming Division since

2005. He was hired as a senior investigator, was promoted to

supervisory investigator in 2010, and was again promoted to agent

in charge (AIC) in 2017. As one of four AICs in the Gaming

Division, Madruga supervised the Division’s licensing and

background investigations sections.

¶4 Madruga was not selected for the deputy position. He

appealed his non-selection to the Board. And although the

Department offered the deputy position to its top two candidates,

both candidates declined the offer. During this time, the appointing

authority for the position — the director of the Gaming Division —

announced his retirement. The Department decided not to fill the

deputy position until a new director was hired. The Department

hired Chris Schroeder as the new director of the Gaming Division in

June 2023. In deference to Madruga’s pending appeal to the Board,

Schroeder delayed reposting the deputy position until August 2023.

¶5 Madruga again applied for the deputy position when it was

reopened in 2023. He sat for an initial panel interview with two

2
other internal candidates and one external candidate. Madruga sat

for a second panel interview in September 2023. The panel

consisted of Schroeder; Carolyn Berry, manager of the Department’s

Office of Professional Standards and Training; and Ron Kammerzell,

former senior director of the Department’s Specialized Business

Group (SBG) and former director of the Gaming Division.

Schroeder knew of Madruga’s national origin and pending appeal,

but Berry and Kammerzell did not. The panel utilized identical

questions for all of the candidates. Schroeder and Berry

determined that William Hiserodt, a supervisory investigator in the

sports betting section, was the strongest candidate because he had

a better team approach than the others. Berry also found Hiserodt

had better answers to questions specifically related to the sports

betting industry and moving the Gaming Division forward.

Kammerzell stated that he preferred the unnamed1 third candidate

because of their managerial experience in the sports betting section.

None of the three panel members identified Madruga as their top

1 The third candidate’s name remains undisclosed to protect the

individual’s privacy.

3
candidate. Nevertheless, he was advanced to the final interview

round.

¶6 In January 2024, an ALJ reviewed Madruga’s appeal and

concluded there was no discrimination in Madruga’s first non-

selection.2 Schroeder and Mike Phibbs, the senior director of the

SBG, then conducted the final interviews for the deputy position.

They used identical questions for each of the candidates. Phibbs

knew Madruga’s national origin from a conversation the two had

about Phibbs’ vacation to Portugal. After the interviews, Schroeder

and Phibbs agreed that Hiserodt was the strongest candidate

because he was best able to articulate his vision for moving the

sports betting section forward and building a team concept.

Specifically, Hiserodt’s emphasis on collaboration and

communication “resonated” with Schroeder’s ideas regarding

leadership. Madruga was Schroeder’s second choice. Neither

Schroeder nor Phibbs took extensive notes during the interview,

2 The Board subsequently affirmed this decision. Madruga
appealed that decision, and a division of this court affirmed. See
Madruga v. Dept. of Revenue, (Colo. App. No. 24CA1160, May 29,
2025) (not published pursuant to C.A.R. 35(e)).

4
and neither used a scoring rubric to evaluate the candidates’

responses.

¶7 The Department selected Hiserodt for the deputy position.

After this second non-selection, Madruga filed a charge of

discrimination with the Equal Employment Opportunity

Commission (EEOC).

¶8 Hours after Hiserodt signed the Department’s offer letter,

Schroeder received a lengthy email from an employee in the sports

betting section who alleged that Hiserodt had poor work ethic, was

not a good team member, lacked professionalism, and had made

inappropriate comments to coworkers. Schroeder immediately

forwarded the email to the Department’s Office of Human Resources

(HR). After an internal review, HR determined, consistent with the

Department’s policy, that it would not conduct a formal

investigation because the allegations involved “performance issues”

and not allegations of illegal discrimination or retaliation. Instead,

HR recommended that Schroeder consider the allegations in

connection with Hiserodt’s thirty-, sixty-, and ninety-day

performance reviews in the new deputy position, which Schroeder

did.

5
¶9 Madruga again appealed his non-selection, alleging that the

Department discriminated against him based on his national origin

and retaliated against him for previously appealing his non-

selection in violation of the Colorado Anti-Discrimination Act

(CADA).

¶ 10 After an evidentiary hearing, the ALJ concluded that the

Department’s assessment of the candidates was not pretextual

because the Department had a legitimate business reason for

choosing Hiserodt since he appeared to be the best fit for the

position. Specifically, the ALJ found that Madruga’s primary

argument that pretext existed — that the Department failed to

investigate the internal complaint about Hiserodt — ignored the fact

that Schroeder received the complaint only after Hiserodt had

accepted the deputy position and the selection process was

complete.

¶ 11 Similarly, concerning Madruga’s retaliation claim, the ALJ

found Madruga did not establish a prima facie case because he

failed to prove a causal connection since the final panel interviews

took place before Madruga’s EEOC claim and the complaint about

Hiserodt arose. Additionally, the ALJ reasoned that neither Berry

6
nor Kammerzell knew of the pending appeal of Madruga’s first non-

selection. The ALJ also denied Madruga’s request for attorney fees

and costs. Madruga again appealed the ALJ’s decision to the

Board, which affirmed the ALJ’s decision.

¶ 12 On appeal, Madruga contends that (1) the Board erred in

finding there was no significant evidence in the record showing that

the Department’s decision was pretextual, and (2) the ALJ and the

Board erred in exclusively relying on subjective evidence. We

disagree and affirm the Board’s decision.

II. Pretext Claims

¶ 13 Madruga contends that the ALJ and the Board erroneously

found that he failed to prove discrimination and retaliation. He

asserts that (1) he was more qualified than Hiserodt, and (2) the

ALJ failed to consider evidence that the Department’s proffered

reasons for its decision were pretextual. He also contends that the

ALJ misapplied the holding in Conroy v. Vilsack, 707 F.3d 1163

(10th Cir. 2013), in finding that there was no evidence of unlawful

discrimination in Madruga’s non-selection. Because substantial

record evidence supports the ALJ’s finding that Madruga’s non-

7
selection was not based on Madruga’s national origin or the exercise

of his appeal rights, we affirm the Board’s decision.

A. Standard of Review and Applicable Law

¶ 14 The Board is an administrative agency governed by the State

Administrative Procedure Act, §§ 24-4-101 to -109, C.R.S. 2025.

We may only reverse the Board’s decision if it is arbitrary or

capricious, unsupported by the record, contrary to law, or in excess

of the Board’s jurisdiction. See § 24-4-106(7)(b), C.R.S. 2025;

Lawley v. Dep’t of Higher Educ., 36 P.3d 1239, 1247 (Colo. 2001).

Conversely, we must uphold the decision “if a consideration of the

record as a whole reveals that the decision is supported by

substantial evidence.” Dep’t of Hum. Servs. v. State Pers. Bd., 2016

COA 37, ¶ 13. In conducting this review, we must accept the ALJ’s

factual findings unless they have no support in the record. Id. at

¶ 14.

¶ 15 As relevant here, CADA forbids an employer from refusing to

hire or promote a qualified individual because of their national

origin. § 24-34-402(1)(a)(I), C.R.S. 2025. A complainant has the

burden of establishing “the four prongs of a prima facie case of

discrimination” to merit a hearing. Dep’t of Pers. & Admin. Rule 8-

8
25(D), 4 Code Colo. Regs. 801-1. A claimant may establish a prima

facie case of discrimination by showing (1) membership in a

protected class; (2) qualification for the job at issue; (3) an adverse

employment decision; and (4) circumstances giving rise to an

inference of unlawful discrimination. Colo. C.R. Comm’n v. Big O

Tires, Inc., 940 P.2d 397, 400 (Colo. 1997).

¶ 16 The burden then shifts to the employer to articulate a

“legitimate, nondiscriminatory reason for the employment decision.”

Id. at 401. If the employer meets this burden, the claimant must be

given “a full and fair opportunity to demonstrate by competent

evidence that the presumptively valid reasons for the employment

decision were in fact a pretext for discrimination.” Id.

¶ 17 Once the Department offers a nondiscriminatory reason for

the employment action, “the presumption of discrimination ‘drops

out of the picture,’” and “the trier of fact must decide the ultimate

question of whether the employer intentionally discriminated

against the [claimant].” St. Croix v. Univ. of Colo. Health Scis. Ctr.,

166 P.3d 230, 236 (Colo. App. 2007) (citation omitted). And on

post-hearing review, the burden-shifting framework “drops out of

the analysis” altogether, and we need only consider whether the

9
record supports the fact finder’s resolution of that ultimate

question. Bodaghi v. Dep’t of Nat. Res., 995 P.2d 288, 301 (Colo.

2000).

B. No Inference of Unlawful Discrimination

¶ 18 We begin by noting what is not contested. The record shows

that Madruga proved the first three elements required to establish a

prima facie case of discrimination: (1) membership in a protected

class; (2) proper qualifications for the job at issue; and (3) an

adverse employment decision. But we conclude that there is

insufficient record evidence that gives rise to an inference of

unlawful discrimination, for three reasons. See Big O Tires, 940

P.2d at 400.

¶ 19 First, to the extent Madruga relies on the circumstances of his

first non-selection, including any procedural irregularities in that

process, we decline to consider them because they were previously

considered and rejected by a division of this court in his first

appeal.

¶ 20 Second, Madruga’s primary arguments here are that he was

objectively more qualified for the position than Hiserodt due to his

educational background, length of employment in the Gaming

10
Division, and consistent positive job performance and promotions

and that the Department improperly relied only on subjective

factors in hiring Hiserodt. While the record supports Madruga’s

objective qualifications, it also shows that the interview panels (and

the ALJ and Board) considered these objective criteria and that

Madruga progressed to the final interview based, in part, on them.

During the first round of interviews, only Shroeder knew of

Madruga’s national origin or of the pending appeal. Based on the

identical questions asked of all candidates, both Berry and

Kammerzell ranked other candidates higher than Madruga, but

Madruga still progressed to the final interview.

¶ 21 Third, the Department offered legitimate reasons for hiring

Hiserodt. See Big O Tires, 940 P.2d at 401. Schroeder testified

credibly that in the final interviews, he prioritized candidates’

communication skills and long-term vision for the sports betting

section over education, managerial experience, and seniority. See

Bauer v. Bailar, 647 F.2d 1037, 1046 (10th Cir. 1981) (finding that

reliance on interviews for a supervisory position was not a pretext

for discrimination although it may require subjective judgment).

This testimony was consistent with the job posting’s “preferred

11
qualifications and competencies.” Cf. Conroy, 707 F.3d at 1174

(noting that inconsistencies and contradictions in the agency’s

proffered explanation can support a determination of pretext). He

also testified that Hiserodt had more experience in the regulation of

sports betting than did Madruga. See Turner v. Pub. Serv. Co. of

Colo., 563 F.3d 1136, 1145 (10th Cir. 2009) (finding that pretext is

inferred only when the criteria on which an employer relies are

entirely subjective).

¶ 22 Additionally, Schroeder testified that while he focused on

interview performance in the final interview, he also considered the

candidates’ performance reviews, resumes, and supervisory

experience. And while the record shows that Madruga had a

stronger educational background than Hiserodt, outperformance in

one area does not necessarily establish pretext. See Conroy, 707

F.3d at 1174 (finding that plaintiff’s concededly greater technical

skills alone did not create an overwhelming disparity in

qualifications to establish a pretext). Based on this testimony, the

ALJ concluded that the disparity in qualifications between Madruga

and Hiserodt was insufficient to create an inference of

discrimination. We may not reweigh the evidence or alter the ALJ’s

12
credibility findings. See Sanchez v. Indus. Claim Appeals Off., 2017

COA 71, ¶ 57 (“[W]e may not reweigh the evidence to reach a result

contrary to the ALJ’s factual findings if those findings are supported

by evidence in the record.”).

¶ 23 Relying on Bodaghi, Madruga argues that the evidence

satisfying his prima facie case alone was sufficient to permit an

inference of intentional discrimination. 995 P.3d at 292. In

Bodaghi, an ALJ found that the employee established

discrimination by showing that the employer utilized a different

selection process than it normally used, including requiring an

examination for the candidates after saying such was not required,

as well as testimony that the employee did not “fit” in the hiring

manager’s “good old boy network” agenda. Id. at 293-94. The ALJ

found the employer’s evidence not credible and its reasons for not

selecting the employee a pretext for discrimination. Id. at 295. The

Board affirmed the order, and a division of this court reversed that

order. Id. at 291-292. The supreme court reversed the division’s

decision and found that the division had improperly substituted its

own findings for those of the ALJ. Id. The supreme court therefore

affirmed the ALJ’s findings and held that additional evidence from

13
the employee was not needed to create an inference of intentional

discrimination. Id. at 292.

¶ 24 As in Bodaghi, the ALJ here made specific credibility

determinations concerning the testimony and evidence and

concluded that Madruga failed to establish an inference of

discrimination. Simply because the evidence might have permitted

such an inference does not mean that it compelled one. And

consistent with Bodaghi, we accept the ALJ’s findings because they

are supported by the record.

¶ 25 To the extent Madruga asks us to reweigh the facts that

Hiserodt allegedly embellished his resume and that the Department

mishandled the allegations made against Hiserodt after he was

hired, we decline to do so. Madruga has not identified, nor have we

found, any evidence in the record to show that Schroeder knew of

the coworker’s allegations against Hiserodt before offering him the

deputy position. Therefore, the allegations have no relevance to

Madruga’s discrimination claim. It is the fact finder’s role to weigh

the conflicting evidence, and when the ALJ’s findings are supported

by the record, we cannot reject them in favor of our own. See

14
M.D.C./Wood, Inc. v. Mortimer, 866 P.2d 1380, 1383-84 (Colo.

1994).

¶ 26 Finally, we are not persuaded that Conroy requires a different

result. In Conroy, an employee with concededly greater technical

skills argued that the use of “subjective criteria” in the hiring

process raised a triable dispute as to pretext. 707 F.3d at 1177.

However, for the reasons described above, the ALJ found that

Schroeder and Phibbs did not rely solely on subjective data when

deciding to make the offer to Hiserodt, and that finding has record

support.

C. Retaliation

¶ 27 Madruga next contends that substantial record evidence

supported his retaliation claim and that the ALJ and Board

erroneously concluded otherwise. We are not persuaded.

¶ 28 To state a plausible claim of Title VII retaliation, an employee

must allege that (1) they engaged in protected opposition to

discrimination; (2) a reasonable employee would have found the

challenged action materially adverse; and (3) a causal connection

existed between the protected activity and the materially adverse

15
action. Reznik v. inContact, Inc., 18 F.4th 1257, 1260 (10th Cir.

2021).

¶ 29 As with a discrimination claim, the complainant has the

burden of establishing “a prima facie case” of retaliation to merit a

hearing. Dep’t of Pers. & Admin. Rule 8-25(D), 4 Code Colo. Regs.

801-1. To establish a prima facie case of retaliation under CADA, a

complainant must either provide direct evidence of retaliation or

show that (1) they engaged in “protected opposition” to prohibited

discrimination; (2) they suffered an “adverse action by the

employer”; and (3) a causal connection existed between the

protected conduct and the adverse employment action. Smith v. Bd.

of Educ., 83 P.3d 1157, 1162 (Colo. App. 2003); see Fye v. Okla.

Corp. Comm’n, 516 F.3d 1217, 1227 (10th Cir. 2008).3 If the

complainant makes a prima facie showing, the respondent must

3 Cases in this analysis concern retaliation claims under Title VII.

However, we may rely on federal law when it is helpful in construing
Colorado law. People v. Davis, 2012 COA 56, ¶29. Because the
applicable language in CADA is substantially similar to Title VII
language that prohibits retaliation, we rely on cases interpreting
Title VII here. See Colo. Civil Rts. Comm’n v. Big O Tires, Inc., 940
P.2d 387, 399 (Colo. 1997.); see also Dep’t of Pers. & Admin. Rule
9-4, 4 Code Colo. Regs. 801-1 (noting that state and federal case
law should be referenced in determining whether discrimination
occurred).

16
proffer a legitimate and nondiscriminatory reason for the adverse

employment action. Conner v. Schnuck Mkts., Inc., 121 F.3d 1390,

1394 (10th Cir. 1997) (citing McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973)). If such evidence is provided, the complainant

must then demonstrate that the proffered explanation was

pretextual. Fye, 516 F.3d at 1227.

¶ 30 Pretext may be shown in a variety of ways, and no particular

form of evidence is required to demonstrate a discriminatory

inference. Conroy, 707 F.3d at 1172. Pretext can be established by

showing that an employer’s nondiscriminatory explanation is so

“incoherent, weak, inconsistent, or contradictory that a rational

factfinder could conclude [they are] unworthy of belief.” Id. (quoting

Equal Emp. Opportunity Comm’n v. C.R. Eng., Inc., 644 F.3d 1028,

1039 (10th Cir. 2011)).

¶ 31 A plaintiff claiming retaliation may establish causation

through “evidence of circumstances that justify an inference of

retaliatory motive, such as protected conduct closely followed by

adverse action.” O’Neal v. Ferguson Constr. Co., 237 F.3d 1248,

1253 (10th Cir. 2001) (citation omitted). However, “[u]nless there is

very close temporal proximity between the protected activity and the

17
retaliatory conduct,” the timing itself will not be sufficient to

establish causation; rather, “the plaintiff must offer additional

evidence to establish causation.” Id.

¶ 32 On appeal, Madruga primarily contests the ALJ’s finding that

no causal connection existed between his appeal of his first non-

selection and the non-selection here. He relies on the rescheduling

of the final interviews until after the completion of his prior appeal,

as well as the temporal proximity between the completion of his

appeal and his non-selection here. We are not convinced, for two

reasons.

¶ 33 First, if Madruga had been successful in his first appeal, then

there would have been no reason to hold final interviews for the

other finalists because Madruga would likely have been awarded

the position. Madruga presented no other evidence to show that

rescheduling the interviews was retaliatory. Therefore, we conclude

that Schroeder’s decision to wait for the Board’s decision was a

sound business practice unrelated to retaliation.

¶ 34 Second, despite the previous non-selection and appeal,

Madruga was interviewed by the initial panel because he met the

qualifications for the position and was advanced to the second

18
panel interview. Moreover, two of the second panel members were

unaware of the previous non-selection and appeal, and both ranked

Madruga as their second choice. To be sure, both Schroeder and

Phibbs were aware of the appeal at the time of the final interview.

But Madruga presented no evidence beyond such awareness to

establish retaliation. And temporal proximity alone does not

suffice. Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001).

Accordingly, we discern no abuse of discretion in the ALJ’s

retaliation finding.

¶ 35 Finally, we discern no legal error in the ALJ’s application of

the Conroy decision. As previously described, all of the final

candidates met the minimum job qualifications, which Schroeder

considered in the final interview. Moreover, Schroeder focused on

interview performance in the final interview and on evaluating the

candidates’ team building skills, communication skills, and vision

for the Department, all criteria listed in the preferred qualifications

and competencies of the deputy position posting. “[E]mployment

decisions are quite often subjective and individualized, resting on a

wide array of factors that are difficult to articulate and quantify.”

Engquist v. Or. Dept. of Agric., 553 U.S. 591, 604 (2008).

19
¶ 36 Madruga insists that the ALJ erred because Hiserodt was not

as qualified as him and because the post-hiring allegations should

have disqualified Hiserodt. But this too turns on credibility

determinations. The ALJ’s factual findings and conclusions show

she thoroughly considered (1) the candidates’ objective

qualifications as stated in their resumes; (2) the fact that both

Hiserodt and Madruga had excellent performance reviews; and

(3) the fact that they both met all minimum and some preferred

qualifications. Importantly, the ALJ also found that Schroeder

considered the candidates’ resumes and objective qualifications in

his overall evaluation but permissibly chose to place more weight on

their interviews. By asking us to conclude otherwise, Madruga asks

us to reject this testimony that the ALJ found credible, which we

cannot do. See St. Croix, 166 P.3d at 240 (“The issue is not whether

the reasons for [the employment decision] were ‘wise, fair, or

correct,’ but whether the employer believed those reasons to be true

and whether the employer acted upon those reasons in good faith.”

(citation omitted)).

20
¶ 37 Because we conclude that the Department used both

subjective and objective methods in their hiring process and that

there was no pretext, we affirm the Board’s decision.

III. Attorney Fees

¶ 38 In a single sentence within his conclusion, Madruga requests

an award of attorney fees and costs “pursuant to statute for the

Board case and this appeal” without any citation to authority

supporting his request. Because Madruga did not present his

request for attorney fees “under a separate heading” and does not

“explain the legal and factual basis” for his request, we deny it.

C.A.R. 39.1; see also Andres Trucking Co. v. United Fire & Cas. Co.,

2018 COA 144, ¶ 63 (declining to consider request for attorney fees

when requesting party did not provide any factual recitation or legal

authority).

IV. Disposition

¶ 39 The order is affirmed.

JUDGE BROWN and JUDGE SCHUTZ concur.

21