v. Elder

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
November 14, 2019

2019COA172

No. 18CA1987, Williams v. Elder — Employment — Colorado
Anti-Discrimination Act — Age Discrimination — Compensatory
Damages; Government — Colorado Governmental Immunity Act

In this employment discrimination case, a division of the court

of appeals considers for the first time whether the Colorado

Anti-Discrimination Act (CADA) permits the recovery of

compensatory damages for age and retaliation claims against a

public sector employer or whether such claims are barred by the

Colorado Governmental Immunity Act (CGIA). The division

concludes that the plain language of section 24-34-405(3)(g), C.R.S.

2019, precludes a plaintiff from recovering compensatory damages

for an age discrimination claim. The division further concludes that

the CADA permits the recovery of compensatory damages for a

retaliation claim and that the CGIA does not bar recovery. Finally,
the division disagrees with the majority in Houchin v. Denver Health

& Hospital Authority, 2019 COA 50M, and concludes that section

24-34-405(8)(g) exempts compensatory damages for discrimination

claims (except for age discrimination) from the CGIA. The order is

affirmed in part and reversed in part.
COLORADO COURT OF APPEALS 2019COA172

Court of Appeals No. 18CA1987
El Paso County District Court No. 18CV30745
Honorable Erin Sokol, Judge

Timothy Williams,

Plaintiff-Appellee,

v.

Bill Elder, in his official capacity as Sheriff of El Paso County, Colorado; and El
Paso County Sheriff’s Office

Defendants-Appellants.

ORDER AFFIRMED IN PART AND REVERSED IN PART

Division I
Opinion by JUDGE FREYRE
Pawar and Graham*, JJ., concur

Announced November 14, 2019

Livelihood Law, LLC, Euell Thomas, Rachel E. Ellis, Denver, Colorado, for
Plaintiff-Appellee

Diana K. May, County Attorney, Kenneth R. Hodges, Senior Assistant County
Attorney, Brian E. Schmid, Senior Assistant County Attorney, Peter A.
Lichtman, Senior County Attorney, Colorado Springs, Colorado, for
Defendants-Appellants

Cornish & Dell’olio, P.C., Ian D. Kalmanowitz, Bradley J. Sherman, Colorado
Springs, Colorado, for Amicus Curiae Colorado Plaintiff Employment Lawyers
Association

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2019.
¶1 This employment discrimination case presents an issue of first

impression — whether a complaint that seeks compensatory

damages under the Colorado Anti-Discrimination Act (CADA) is

barred by the Colorado Governmental Immunity Act (CGIA).

Defendants, El Paso County Sheriff Bill Elder and the El Paso

County Sheriff’s Office (collectively EPSO), challenge the district

court’s order finding that the relief requested by plaintiff, Timothy

Williams, is equitable and, therefore, not subject to the CGIA. For

the reasons detailed below, we affirm in part and reverse in part.

I. Factual and Procedural Background

¶2 According to the complaint, the EPSO hired Mr. Williams in

2002 and promoted him to the rank of lieutenant in 2015. On

March 17, 2016, Sheriff Elder ordered all EPSO employees to

complete a survey that asked for their retirement eligibility date.

Mr. Williams reported that his retirement eligibility date was June

1, 2018.

¶3 On November 6, 2016, Sheriff Elder met with Mr. Williams,

made derogatory remarks about wanting employees to “check out,”

and told Mr. Williams that if he “couldn’t cut it,” he needed to “get

out.” The next day, Sheriff Elder demoted Mr. Williams from

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lieutenant to senior deputy. To avoid adverse retirement benefit

consequences, Mr. Williams resigned on November 8, 2016. The

EPSO replaced him with a younger employee. Mr. Williams then

filed age discrimination charges with the Colorado Civil Rights

Division and Equal Employment Opportunity Commission, on April

4, 2017.

¶4 While those charges were pending, the EPSO received a

Colorado Open Records Act (CORA) request for documents

concerning the Commission on Accreditation of Law Enforcement

Agencies. In its response, the EPSO alleged that Mr. Williams took

accreditation documents with him when he retired. Mr. Williams

claimed this was false and that the assertion constituted retaliation

for alleging age discrimination.

¶5 On March 27, 2018, Mr. Williams filed his complaint in district

court alleging (1) age discrimination and (2) retaliation related to the

CORA request. The EPSO filed a motion to dismiss under C.R.C.P.

12(b)(5). Then, the court permitted Mr. Williams to amend his

complaint. The EPSO moved to dismiss the amended complaint

under C.R.C.P. 12(b)(1) and (b)(5), alleging that Mr. Williams failed

to exhaust his administrative remedies on the retaliation claim,

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failed to state a claim for relief, and both compensatory damages

and front pay were legal remedies barred by the CGIA.

¶6 In a detailed written order, the district court found that Mr.

Williams had exhausted all his administrative remedies and that his

complaint stated claims for relief, but it ordered supplemental

briefing on whether his requested relief — front pay and

compensatory damages — were legal remedies barred by the CGIA.

In a second thorough written order, the district court found that

front pay is an equitable remedy not barred by the CGIA. It further

found that under the 2013 amendments to the CADA,

compensatory damages are not barred by the CGIA.

¶7 The EPSO seeks review of this second order under section 24-

10-108, C.R.S. 2019. After briefing was completed, a division of

this court announced Houchin v. Denver Health & Hospital

Authority, 2019 COA 50M, ¶ 20, in which the majority held that

back pay is an equitable remedy, exempt from the CGIA. It further

held that while the 2013 amendments to the CADA expanded the

remedies available to victims of discrimination to include

compensatory damages, such expansion did not apply to the

Denver Health and Hospitals Authority (a political subdivision of the

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state), but only to Colorado state employers. Id. at ¶ 22. Thus, it

concluded that Houchin’s request for compensatory damages was a

legal remedy subject to the CGIA. Id. at ¶ 25.

¶8 The partial dissent disagreed with this construction of “state,”

believed that “state” includes political subdivisions of the state, and

concluded that subsection 8(g) of the CADA, making the CGIA

inapplicable to CADA claims, should allow Houchin to seek

compensatory damages. Id. at ¶¶ 28-32 (Berger, J., concurring in

part and dissenting in part).

¶9 We requested supplemental briefing on Houchin’s application

to this case. After considering the supplemental briefs and the

statutory language, we conclude that the 2013 amendments require

us to analyze the age discrimination and retaliation claims

separately. We first conclude that a plaintiff may not obtain

compensatory damages for an age discrimination claim under the

CADA because the plain language of section 24-34-405(3)(g), C.R.S.

2019, limits the remedies for such claims to those set forth in

section 24-34-405(2), which do not include compensatory damages.

Therefore, we reverse the portion of the court’s order concluding

that compensatory damages for age discrimination are not subject

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to the CGIA. We conclude that the CGIA bars the recovery of

compensatory damages for age discrimination.

¶ 10 However, we conclude that front pay for an age discrimination

claim constitutes an equitable remedy under the CADA and is not

barred by the CGIA. Therefore, we affirm the portion of the court’s

order denying EPSO’s motion to dismiss for age discrimination

related to front pay.

¶ 11 We next conclude that the CADA does not restrict the

remedies for a retaliation claim and that this claim is subject to

section 24-34-405(8)(g). We conclude that compensatory damages

under the CADA are merely incidental to CADA’s fundamental

purpose of eliminating discriminatory practices in the workplace.

We also agree with the partial dissent in Houchin that the word

“state” in subsection (8)(g) includes agencies like the EPSO. See

Houchin, ¶¶ 58-59 (Berger, J., concurring in part and dissenting in

part). Accordingly, we affirm the court’s order denying EPSO’s

motion to dismiss the retaliation claim.

II. Age Discrimination

¶ 12 We first address the EPSO’s challenge to Mr. Williams’ age

discrimination claim because the General Assembly has chosen to

5
treat this form of discrimination differently from others. Under the

plain language of section 24-34-405(3)(g), which limits the remedies

for age discrimination to those set forth in section 24-34-405(2), we

conclude that Mr. Williams may not obtain compensatory damages

for this claim and reverse this portion of the order. However,

because section 24-34-405(2)(a)(II) plainly provides front pay relief,

we affirm that portion of the court’s order denying EPSO’s motion to

dismiss this claim.

A. Standard of Review and Law

¶ 13 Because the district court decided a question of law, we review

the issue de novo. City of Colorado Springs v. Conners, 993 P.2d

1167, 1171 (Colo. 2000). We read statutes “with a goal of giving

‘consistent, harmonious, and sensible effect to all its parts.’” People

v. Summer, 208 P.3d 251, 254 (Colo. 2009) (quoting People v. Dist.

Court, 713 P.2d 918, 921 (Colo. 1986)). “But we avoid construing a

statute to render any of its words superfluous or to lead to an

absurd result.” People in Interest of M.C., 2012 COA 64, ¶ 13.

¶ 14 The CGIA provides public entities, like the EPSO, immunity

against all “claims for injury which lie in tort or could lie in tort,”

subject to nine exceptions not at issue. § 24-10-106(1), C.R.S.

6
2019. True tort claims seek compensation for injuries caused by

wrongful conduct that has been recognized as detrimental to an

ordered society. See Castro v. Lintz, 2014 COA 91, ¶ 27. The

purpose of the CGIA is to limit the potential liability of public

entities and the overburdening of taxpayers for compensatory

damages in tort. § 24-10-102, C.R.S. 2019.

¶ 15 In contrast, CADA claims, while similar to torts, are “not

designed primarily to compensate individual claimants.” Connors,

993 P.2d at 1174. Instead, their purpose is “to fulfill the ‘basic

responsibility of government to redress discriminatory employment

practices on the basis of race, creed, color, sex, age, national origin,

or ancestry.’” Id. (quoting Colo. Civil Rights Comm’n ex rel. Ramos v.

Regents of the Univ. of Colo., 759 P.2d 726, 731 (Colo. 1988)). 1

Thus, “any benefits to an individual claimant, such as the recovery

of back pay, are ‘merely incidental’ to [CADA’s] greater purpose of

eliminating workplace discrimination.” Connors, 993 P.2d at 1174

(quoting Brooke v. Rest. Servs., Inc., 906 P.2d 66, 71 (Colo. 1995)).

1 Section 24-34-402(1)(a) has been amended since Connors to
include disability, sexual orientation, and religion. Ch. 295, sec. 2,
§ 24-34-402(1)(a), 2007 Colo. Sess. Laws 1254.

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The CADA remedies, therefore, are equitable in nature, do not

sound in tort, and are not barred by the CGIA. Id. at 1176-77.

¶ 16 In 2013, the General Assembly expanded the remedies

available under the CADA to include punitive and compensatory

damages. Ch. 168, sec. 1, § 24-34-405, 2013 Colo. Sess. Laws 550.

A claimant may now seek compensatory and punitive damages

against an employer who “is found to have engaged in an

intentional discriminatory or unfair employment practice . . . .”

§ 24-34-405(3)(a). 2 As relevant here, section 24-34-405(3)(g)

provides as follows:

In a civil action involving a claim of
discrimination based on age, the plaintiff is
entitled only to the relief authorized in
subsection (2) of this section . . . if the court
finds that the defendant engaged in a
discriminatory or unfair employment practice
based on age.

(Emphasis added.)

¶ 17 Section 24-34-405(2)(a) provides:

In addition to the relief authorized by section
24-34-306(9), the commission or the court
may order affirmative relief that the

2 Punitive damages, not at issue here, may not be sought against
state or political subdivision employers. § 24-34-405(3)(b)(I), C.R.S.
2019.

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commission or court determines to be
appropriate, including the following relief,
against a respondent who is found to have
engaged in an unfair or discriminatory
employment practice:

(I) Reinstatement or hiring of employees, with
or without back pay. If the commission or
court orders back pay, the employer,
employment agency, or labor organization
responsible for the discriminatory or unfair
employment practice shall pay the back pay to
the person who was the victim of the practice.

(II) Front pay; or

(III) Any other equitable relief the commission
or court deems appropriate.

(Emphasis added.)

¶ 18 Section 24-34-405(3)(e) provides:

Compensatory or punitive damages awarded
pursuant to this subsection (3) are in addition
to, and do not include, front pay, back pay,
interest on back pay, or any other type of relief
awarded pursuant to subsection (2) of this
section.

¶ 19 The 2013 amendments also added section 24-34-405(8)(g),

which provides:

A claim filed pursuant to this subsection (8) by
an aggrieved party against the state for
compensatory damages for an intentional
unfair or discriminatory employment practice
is not subject to the “Colorado Governmental
Immunity Act”, article 10 of this title.

9
B. Analysis

¶ 20 We conclude that the plain language of section 24-34-405(3)(g)

limits age discrimination remedies to those enumerated in

subsection (2). And, as relevant here, subsection (2) permits relief

for front pay, but does not include compensatory damages as stated

in subsection (3)(e). To the extent the EPSO asserts that front pay

“sounds in tort,” is a legal remedy, and is subject to the CGIA, we

disagree, because the statutory language refutes that assertion.

Therefore, we affirm the court’s order permitting Mr. Williams to

seek front pay for his age discrimination claim, but we reverse the

court’s order as to his compensatory damages request and conclude

that it is barred by the CGIA.

III. Retaliation Claim

¶ 21 The EPSO contends that compensatory damages and front pay

under the CADA sound in tort or could sound in tort, and, thus, are

legal remedies barred by the CGIA. It urges us to follow the

Houchin majority and to hold that compensatory damages are a

legal remedy subject to the CGIA.

¶ 22 The Houchin majority narrowly construed Connors and

reasoned that “the type of claims asserted, and the nature of the

10
relief sought by the plaintiff, determine[] the framework for deciding

whether the CGIA applie[s].” ¶ 18. It then held that compensatory

damages requested under the CADA are not equitable in nature but

constitute relief for personal injuries “suffered as a consequence of

prohibited conduct” and, thus, were subject to the CGIA. Id. at ¶

20 (quoting Connors, 993 P.2d at 1176). In the majority’s view, the

CGIA bars some CADA claims for relief (compensatory damages)

and not others (equitable claims like back pay and reinstatement).

¶ 23 Taking a broader view of Connors, the partial dissent reasoned

that whether a statute is subject to the CGIA should be determined

not only by looking at the nature of the relief sought, but also by

examining the “‘purposes of [the statute]’ and the ‘nature of the

injuries.’” Id. at ¶ 35 (Berger, J., concurring in part and dissenting

in part) (quoting Connors, 993 P.2d at 1173, 1175). Recognizing

that we are not bound by the majority in Houchin, People v. Smoots,

2013 COA 152, ¶ 21, we agree with the partial dissent, because its

reasoning is supported by supreme court precedent subsequent to

Connors and is consistent with the Connors holding. Colo. Dep’t of

Transp. v. Brown Grp. Retail, Inc., 182 P.3d 687, 690 (Colo. 2008)

(“[T]he question of coverage by the [CGIA] ultimately turns on the

11
source and nature of the government’s liability, or the nature of the

duty from the breach of which liability arises.”); Robinson v. Colo.

State Lottery Div., 179 P.3d 998, 1006 (Colo. 2008) (“[T]he nature of

the relief is not dispositive as to the question of whether a claim lies

in tort. Rather, the relief requested is merely an aid in

understanding the duty breached or the injury caused to determine

if the claim lies or could lie in tort.”).

¶ 24 Our supreme court identified the CADA’s purpose as

to make the claimant whole within a particular
setting, i.e., to place the claimant in the
position she would have been in but for the
discriminatory conduct. These forms of relief
. . . are equitable in nature and are aimed at
eliminating workplace discrimination, not
compensating individuals for their particular
injuries arising from violations of the [CADA].

Connors, 993 P.2d at 1175 (citation omitted). In our view, the 2013

amendments to the CADA did not change its fundamental purpose.

Houchin, ¶ 43 (Berger, J., concurring in part and dissenting in

part). Instead, the expanded remedies available under the

amendments remain “merely incidental” to the CADA’s primary

purpose of ending workplace discrimination. See Brooke, 906 P.2d

at 71.

12
¶ 25 As well, the monetary limitations set by the CADA for

compensatory damages support its underlying non-tort purpose.

See § 24-34-405(3)(d)(I)-(II). The compensatory damages cap is

consistent with the “incidental” nature of any individual benefit a

claimant receives under the CADA. Thus, the General Assembly’s

inclusion of compensatory damages in the CADA does not alter the

CADA’s primary objective of eradicating workplace discrimination.

See Connors, 993 P.2d at 1174. Accordingly, we conclude that the

compensatory damages remedy, added to the CADA in 2013, does

not lie in tort and is not subject to the CGIA, because it does not

relieve “tort-like personal injuries.” Id. at 1175.

¶ 26 As well, we conclude that section 24-34-405(8)(g) exempts

compensatory damage requests for discrimination claims (other

than those for age discrimination) from the CGIA. We observe that

the General Assembly specifically referenced the CGIA and stated

its intent to prohibit the recovery of punitive damages from state

employers in section 24-34-405(3)(b)(I) of the amendments. But in

the same amendment that added compensatory damages to the

CADA in subsection (3)(g), the General Assembly clarified, in

subsection (8)(g), that compensatory damages sought against the

13
state are not subject to the CGIA. Reading these provisions

together, as we must, and recognizing that the General Assembly

enacted these amendments knowing that Connors considered the

CADA remedies to be equitable in nature, we conclude that the

General Assembly intended that compensatory damages awarded

under the CADA be excluded from the immunity provisions of the

CGIA. Cowen v. People, 2018 CO 96, ¶ 12 (“[C]ourts must presume

that a legislature says in a statute what it means and means in a

statute what it says there.” (quoting Conn. Nat’l Bank v. Germain,

503 U.S. 249, 253-54 (1992))); Massihzadeh v. Seaver, 2019 COA

92, ¶ 13 (“Questions of statutory interpretation necessitate, first

and foremost, consideration of the statutory text as a whole, giving

‘consistent, harmonious, and sensible effect to all of its parts and

avoiding constructions that would render any words or phrases

superfluous or lead to illogical or absurd results.’” (quoting

Pineda-Liberato v. People, 2017 CO 95, ¶ 22)).

¶ 27 We are not persuaded to the contrary by the Houchin

majority’s interpretation of the word “state” in subsection (8)(g).

Hogan v. Bd. of Cty. Comm’rs, 2018 COA 86, ¶ 37. Like the partial

dissent in Houchin, we interpret the word “state” broadly to include

14
all state entities able to seek immunity under the CGIA. Indeed, we

see no reason to “limit[] many public employees’ recourse to

compensatory damages [for unlawful discrimination claims] only

because they happen to be employed by one of Colorado’s

numerous political subdivisions, as opposed to the state itself[.]”

Houchin, ¶ 54 (Berger, J., concurring in part and dissenting in

part). When defining “employers” subject to the CADA in section

24-34-401(3), C.R.S. 2019, the General Assembly included the

“state of Colorado . . . and every other person employing persons

within the state.” If, as argued by the EPSO (and adopted by the

Houchin majority), the word “state” in subsection (8)(g) is limited to

state of Colorado employees, then the General Assembly would have

used the language “state of Colorado” to achieve this limitation.

Because it did not, and because we must construe all provisions of

the CADA harmoniously, we conclude that the General Assembly

intended “state” in subsection (8)(g) to include all state employers,

not just state of Colorado employers. See Jefferson Cty. Bd. of

Equalization v. Gerganoff, 241 P.3d 932, 935 (Colo. 2010) (“[O]ur

interpretation should give consistent, harmonious, and sensible

effect to all parts of a statute.”). Because we find the statutory

15
language sufficient to refute the conclusion reached by the Houchin

majority, we need not decide whether its interpretation violates

equal protection. Developmental Pathways v. Ritter, 178 P.3d 524,

535 (Colo. 2008) (noting that the principle of judicial restraint

requires courts to avoid reaching constitutional questions in

advance of the necessity of deciding them).

¶ 28 In sum, we conclude that front pay and compensatory

damages for a retaliation claim under the CADA are equitable

remedies not barred by the CGIA. We further conclude that Mr.

Williams is an “aggrieved party” under section 24-34-405(8)(a), that

EPSO is a state employer, and, thus, that subsection (8)(g) exempts

the compensatory damages remedy from the CGIA.

IV. Conclusion

¶ 29 We affirm the court’s order as it relates to the retaliation claim,

and the front pay portion of the court’s order for the age

discrimination claim. We reverse the compensatory damages

portion of the court’s order for age discrimination and conclude that

the CGIA bars it.

JUDGE PAWAR and JUDGE GRAHAM concur.

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