Payne v. ICAO

25CA1309 Payne v ICAO 09-18-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA1309
Industrial Claim Appeals Office of the State of Colorado
DD No. 3960-2025

Austin Payne,

Petitioner,

v.

Industrial Claim Appeals Office of the State of Colorado,

Respondent.

ORDER AFFIRMED

Division V
Opinion by JUDGE YUN
Freyre and Pawar, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 18, 2025

Austin Payne, Pro Se

No Appearance for Respondent
¶1 In this unemployment benefits case, the claimant, Austin

Payne, seeks review of a final order of the Industrial Claim Appeals

Office (Panel). The Panel affirmed the hearing officer’s decision

disqualifying Payne from receiving benefits based on his job

separation from Great Wolf Resorts. We affirm.

I. Background

¶2 Payne worked as a public area attendant at Great Wolf Resorts

for more than three years until his employment was terminated.

Thereafter, a deputy for the Division of Unemployment Insurance

(Division) approved Payne’s application for unemployment benefits.

¶3 Great Wolf Resorts appealed the deputy’s decision to the

Division, which then held an evidentiary hearing to determine the

reason for Payne’s discharge and whether it disqualified him from

receiving benefits under the Colorado Employment Security Act.

The hearing officer found that Great Wolf Resorts discharged Payne

because he “used profanity during a counseling session with his

supervisor.” The officer further concluded that Payne was at fault

for his termination and was disqualified from receiving benefits

under section 8-73-108(5)(e)(XIV), C.R.S. 2025. The Panel affirmed

the hearing officer’s factual findings and legal conclusions.

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¶4 Payne now appeals.

II. Discussion

¶5 Payne contends that Great Wolf Resorts did not prove that he

cursed or acted aggressively during the meeting with his supervisor.

Thus, he argues that the hearing officer and the Panel erred in

evaluating the evidence and making their factual findings. We

disagree.

A. Standard of Review

¶6 We may set aside the Panel’s decision only if (1) the Panel

acted without or in excess of its authority; (2) the decision was

procured by fraud; (3) the factual findings do not support the

decision; or (4) the decision is erroneous as a matter of law.

§ 8-74-107(6), C.R.S. 2025.

¶7 As the trier of fact, the hearing officer is responsible for

weighing the evidence, assessing credibility, resolving conflicts in

the evidence, and determining the inferences to be drawn from the

evidence. Hoskins v. Indus. Claim Appeals Off., 2014 COA 47, ¶ 10.

Like the Panel, we may not, on review, reweigh the evidence or

disturb the hearing officer’s credibility determinations. Id. Thus,

we are bound by the hearing officer’s findings of fact if they are

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supported by substantial evidence in the record. § 8-74-107(4);

Mesa Cnty. Pub. Libr. Dist. v. Indus. Claim Appeals Off., 2017 CO

78, ¶ 17. However, we review de novo ultimate conclusions of fact

and ultimate legal conclusions. Simon v. Indus. Claim Appeals Off.,

2023 COA 74, ¶ 19.

B. Applicable Law

¶8 A claimant’s eligibility for unemployment benefits depends on

the reason for the separation from employment. Id. at ¶ 20. In

making this determination, “the trier of fact must evaluate the

totality of the evidence and determine the motivating factors in the

employee’s separation and then determine whether, based upon

those factors, [the] claimant is entitled to, or disqualified from, the

receipt of benefits.” Eckart v. Indus. Claim Appeals Off., 775 P.2d

97, 99 (Colo. App. 1989).

¶9 An individual is disqualified from receiving unemployment

benefits if, as relevant here, the separation from employment

occurred based on the “[r]udeness, insolence, or offensive behavior

of the worker not reasonably to be countenanced by a customer,

supervisor, or fellow worker.” § 8-73-108(5)(e)(XIV). In determining

whether this subsection applies, the hearing officer and Panel must

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apply an objective standard by considering “whether a reasonable

person in the position of the fellow worker and others would have

found [the] claimant’s action to be so rude, insolent, or offensive as

not to be countenanced.” Davis v. Indus. Claim Appeals Off.,

903 P.2d 1243, 1245 (Colo. App. 1995).

¶ 10 A worker, like Payne, can receive benefits only if he is

unemployed through no fault of his own. § 8-73-108(1)(a); see

Bara v. Indus. Claim Appeals Off., 2023 COA 19, ¶ 11. For

purposes of the unemployment statutes, fault does not require

culpability; rather, it requires “some volitional act” or that the

employee “exercised some control over the circumstances resulting

in the discharge from employment.” Cath. Health Initiatives Colo. v.

Indus. Claim Appeals Off., 2021 COA 48, ¶ 13 (quoting Gonzales v.

Indus. Comm’n, 740 P.2d 999, 1003 (Colo. 1987)). Whether a

claimant is at fault for termination from employment must be

determined “on a case-by-case basis, with due consideration given

to the totality of the circumstances in each particular situation.”

Morris v. City & County of Denver, 843 P.2d 76, 79 (Colo. App.

1992).

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C. Analysis

¶ 11 The hearing officer found that Payne was called into a

counseling session with his supervisor after throwing trash bags

near, but not into, the trash compactor. The officer found that

Payne was frustrated and “used the f-word multiple times,” and

that such behavior was rude, insolent, and offensive. Further, the

officer found that “no persuasive evidence was offered to determine

the claimant did not exercise choice or control” over his actions.

And the officer found that based on the totality of the

circumstances, a similarly situated reasonable customer,

supervisor, or fellow worker would find the behavior to be rude,

insolent, or offensive and that the behavior should not have been

excused or tolerated.

¶ 12 The record contains substantial evidence supporting the

hearing officer’s findings. Payne’s supervisor testified that she met

with him to discuss corrective action after he was seen throwing

trash near the dumpster instead of placing it in the trash

compactor. She testified that during the meeting, Payne was

“aggressive” and repetitively used inappropriate language, including

the word “fucking.” She estimated that such language was used

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four times during their conversation. And she clarified that Great

Wolf Resorts discharged Payne for his inappropriate behavior and

use of profanity during their meeting, not for his failure to put the

trash in the compactor.

¶ 13 Payne argues that the hearing officer erred by finding that he

had used profanity during the meeting because he testified that he

did not remember using such language. Indeed, Payne testified

that he “argue[d] a little bit” and remembered “being really

frustrated” but did not recall what he said during the meeting with

his supervisor. But it was within the hearing officer’s discretion, as

the fact finder, to assess the witnesses’ credibility and weigh

Payne’s testimony against that of his supervisor. See Hoskins,

¶ 10. And we may not reweigh that evidence on appeal. Id.

Accordingly, because the hearing officer’s finding that Payne used

profanity during the meeting is supported by the record, we are

bound by it. Id.; § 8-74-107(4).

¶ 14 Payne also argues that the hearing officer erred by finding that

his behavior caused his termination because Great Wolf Resorts did

not prove that he could have placed the trash in the compactor;

Payne claims it was full at the time he threw the trash. However,

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the hearing officer specifically found that Payne was discharged

“because he used profanity” during the meeting with his

supervisor — behavior deemed “rude, insolent, or offensive

behavior” under section 8-73-108(5)(e)(XIV). Thus, whether the

trash compactor was full at the time Payne threw the trash bags

had no bearing on whether he was disqualified from receiving

unemployment benefits under section 8-73-108(5)(e)(XIV).

¶ 15 Based on the foregoing, we discern no basis to set aside the

determination that Payne was at fault for his job termination and

disqualified from benefits under section 8-73-108(5)(e)(XIV). See

§ 8-74-107(6).

III. Disposition

¶ 16 We affirm the Panel’s order.

JUDGE FREYRE and JUDGE PAWAR concur.

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