Lowery v. ICAO

25CA0078 Lowery v ICAO 09-18-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA0078
Industrial Claim Appeals Office of the State of Colorado
DD No. 24300-2024

Angel Lowery,

Petitioner,

v.

Industrial Claim Appeals Office of the State of Colorado and Dillon Companies,
Inc.,

Respondents.

ORDER AFFIRMED

Division A
Opinion by JUDGE HAWTHORNE*
Román, C.J., and Martinez*, J., concur

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

Ira Sanders, Golden, Colorado, for Petitioner

No Appearance for Respondent Industrial Claim Appeals Office of the State of
Colorado

Cozen O’Connor, Jacob M. Rubinstein, Boulder, Colorado, for Respondent
Dillon Companies, Inc.

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2025.
¶1 Angel Lowery appeals the denial of her application for

unemployment benefits.1 We affirm.

I. Background

¶2 Lowery worked as a pharmacy technician at King Soopers for

over a year before King Soopers terminated her employment.

Shortly thereafter, a deputy for the Division of Unemployment

Insurance (Division) approved her application for unemployment

benefits.

¶3 King Soopers appealed the deputy’s decision to the Division,

which then held an evidentiary hearing. The hearing officer found

that King Soopers discharged Lowery for violating the company’s

1 Though Lowery’s counsel certified his compliance with C.A.R. 28,

his brief lacks fundamental components that Rule 28 plainly
requires, including (1) a table of contents; (2) a table of authorities;
(3) a concise statement identifying the nature of the case; and (4) a
summary of the arguments. “The appellate rules are not mere
technicalities but rather are designed to facilitate appellate review,”
and, thereby, the administration of justice. People v. Durapau, 280
P.3d 42, 50 (Colo. App. 2011); O’Quinn v. Baca, 250 P.3d 629, 631
(Colo. App. 2010). Counsel’s deficient brief is subject to being
stricken. See Castillo v. Koppes-Conway, 148 P.3d 289, 291 (Colo.
App. 2006) (division refused to consider noncompliant brief).
However, for judicial economy, we consider the noncompliant brief
and caution counsel to comply with this court’s appellate rules.
Valentine v. Mountain States Mutual Casualty Co., 252 P.3d 1182,
1186 (Colo. App. 2011).

1
loyalty card program terms. He also concluded that Lowery was at

fault for her job termination and that she was disqualified under

section 8-73-108(5)(e)(XX), C.R.S. 2025, from receiving benefits

(failure to meet established job performance or other defined

standards). The Industrial Claim Appeals Office (Panel) affirmed the

hearing officer’s factual findings and legal conclusions.

II. Discussion

¶4 Lowery argues the Panel (and, before it, the hearing officer)

erred in assessing the evidence, making factual findings, and

applying the law. We disagree.

A. Standard of Review and Guiding Legal Principles

1. Standard of Review

¶5 We defer to the Panel’s factual findings to the extent

substantial record evidence supports them. § 8-74-107(4), C.R.S.

2025. Substantial evidence is “probative, credible, and competent,

of a character which would warrant a reasonable belief in the

existence of facts supporting a particular finding, without regard to

the existence of contradictory testimony or contrary inferences.”

Rathburn v. Indus. Comm’n, 566 P.2d 372, 373 (Colo. App. 1977).

We decide as a matter of law whether substantial evidence exists.

2
Pub. Serv. Co. of Colo. v. Pub. Util. Comm’n, 26 P.3d 1198, 1205

(Colo. 2001).

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

acted without or in excess of its powers; (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). We review de novo the Panel’s legal conclusions.

M&A Acquisition Corp. v. Indus. Claim Appeals Off., 2019 COA 173,

¶ 11.

2. Disqualification

¶7 Section 8-73-108(5)(e), provides that a claimant shall be

disqualified from receiving benefits if their employment separation

occurred for “any” of several specifically enumerated reasons. See

M&A Acquisition Corp., ¶ 21. To determine what caused a

claimant’s job separation, the hearing officer considers the totality

of the evidence. Eckart v. Indus. Claim Appeals Off., 775 P.2d 97,

99 (Colo. App. 1989).

¶8 Section 8-73-108(5)(e)’s disqualification provisions “must be

read in the light of the express legislative intent . . . to provide

benefits to those who become unemployed through ‘no fault’ of their

3
own.” Cole v. Indus. Claim Appeals Off., 964 P.2d 617, 618 (Colo.

App. 1998); see § 8-73-108(1)(a). Thus, even if the hearing officer’s

findings may support a disqualification under that section, a

claimant may still be entitled to benefits if the totality of the

circumstances establishes that their job separation occurred

through no fault of their own. Cole, 964 P.2d at 618. In this

context, “fault” requires 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.” Id.

B. Factual Findings

¶9 It is undisputed that King Soopers operates an incentive

program for shoppers. Specifically, shoppers receive “fuel points”

for every purchase they make at King Soopers, allowing them

discounts at King Soopers gas stations. When purchasing products

at King Soopers, shoppers scan their “loyalty cards” (or enter their

loyalty card number manually), and the fuel points earned in

connection with the purchase are recorded on the loyalty card

account.

4
¶ 10 The hearing officer found that King Soopers employees “are

prohibited from using their own loyalty card[s] to obtain points

fraudulently for purchases made by customers.” He further found

that, though Lowery acknowledged receiving a written copy of this

policy, “during [Lowery’s] employment[,] she used her own loyalty

card for customer purchases a total of five times.” And he found

that, “[o]n these occasions[,] customers offered [Lowery] their fuel

points[,] which required her to use her card on their purchases.”

Ultimately, the hearing officer concluded that King Soopers

“discharged [Lowery] for violation of the loyalty card program when

she used her loyalty card on customer purchases.”2 The hearing

officer also found that Lowery was at fault for her job separation

because she was aware of the policy and acted voluntarily in

2 To the extent Lowery urges us to interpret the preceding two

sentences as an incorrect finding that Lowery used her loyalty card
to purchase customers’ products for them, we reject that
interpretation. No evidence in the record suggests loyalty cards
operate as currency. Rather, we read these sentences as finding
that Lowery used her loyalty card to record points on her account
that were earned via customers’ purchases. We also reject Lowery’s
argument that Gonzales v. Industrial Commission, 740 P.2d 999
(Colo. 1987) commands a different result. That argument presumes
the hearing officer (and Panel) found that Lowery used her card to
purchase customers’ products for them.

5
violating it. Substantial evidence in the record supports these

findings.

¶ 11 Lowery testified that she received a copy of the employee

handbook. She also signed a document, entered into evidence,

acknowledging that she (1) received the handbook, (2) understood

that she was responsible for reading and understanding it, (3)

understood her responsibility to comply with the policies therein,

and (4) understood that failure to comply with those policies could

result in employment termination.

¶ 12 The King Soopers employee handbook, admitted into evidence

at the hearing, expressly states that employees “are prohibited from

using their Loyalty Card to obtain Loyalty Card . . . points, or other

rewards, for purchases for customers.” During the hearing, Lowery

testified that a customer asked if she wanted loyalty points earned

from their purchases, and that she took them up on their offer; she

had the loyalty points corresponding with the customer’s purchases

recorded on her loyalty card account.

¶ 13 At the hearing, King Soopers presented testimony from

Deborah Anderson, the assistant store manager and human

resources director for the store where Lowery worked. Anderson

6
testified that Lowery was terminated for violating the loyalty card

policy.

¶ 14 Lowery argues that the hearing officer (and then the Panel)

mischaracterized and misconstrued the evidence underlying the

findings. She further contends that the hearing officer erred in

admitting certain evidence and declining her request to take judicial

notice of a statute — and that the Panel thus erred in affirming the

order. None of Lowery’s arguments provide a basis for setting aside

the Panel’s order.

1. Misstatement of Gift Policy

¶ 15 Lowery points out that the hearing officer misstated one

provision in the King Soopers employee handbook, but we disagree

that this error was dispositive. True, at one point, the hearing

officer stated that King Soopers forbids employees from accepting

“gifts or accommodations of nominal value,” though the handbook

actually precludes accepting anything of “more than nominal value.”

(emphasis added.) This error was harmless. The gifts policy,

correctly stated, does not obviate the policy forbidding employees

from using their loyalty cards to record points generated by

customers’ purchases. That Lowery may not have violated the gifts

7
policy does not require reversing her disqualification for violating

the loyalty card policy.

2. Fraud

¶ 16 Next, Lowery argues that the loyalty card policy only forbids

employees from capturing customers’ loyalty points when they do so

with fraudulent intent, as defined by several authorities, including

Colorado common law, the Illinois administrative code, and the

Colorado Office of the State Auditor. She then argues that no

evidence supports a finding that she intended to defraud customers

under the authorities’ definitions. We reject this argument.

¶ 17 As Lowery observes, the hearing officer found (and the Panel

reiterated) that King Soopers forbids employees “from using their

own loyalty cards to obtain points fraudulently for purchases made

¶ 18 by customers.” (emphasis in briefing.) We also note that this

finding echoes language in the employee handbook, stating,

“Associates are prohibited from using their personal loyalty card, or

loyalty card number, to obtain rewards, points, . . . or benefits

fraudulently for purchases by customers.”

¶ 19 The interpretation of a written document, like the loyalty card

policy, presents a legal question subject to de novo appellate review.

8
GMAC Mortg. Corp. v. PWI Grp., 155 P.3d 556, 557 (Colo. App.

2006). As with any written document, we construe it according to

its terms’ plain and ordinary meaning. USI Props. E., Inc. v.

Simpson, 938 P.2d 168, 173 (Colo. 1997). We will not interpret

words and phrases in isolation, but, instead, interpret the policy as

a whole, seeking to give harmonious effect to all its words and

phrases. Gagne v. Gagne, 2014 COA 127, ¶ 53.

¶ 20 Because “fraud” is a commonly used word, and people of

ordinary intelligence need not guess at its meaning, we may

reference a generally familiar dictionary for its definition. Smith v.

State Farm Mut. Auto. Ins. Co., 2017 COA 6, ¶ 17; see also Roalstad

v. City of Lafayette, 2015 COA 146, ¶ 34 (interpreting a commonly

used term in a statute). Merriam-Webster’s online dictionary

defines “fraud” as “an act of deceiving or misrepresenting.”

https://perma.cc/PJ9N-F8UG. We need not, and do not, look to

legal authorities or particular agencies for further guidance.

¶ 21 We apply this definition and read the provision to give effect to

neighboring provisions in the same policy, stating, “[Employees] are

welcome to obtain and enjoy the benefits of [King Soopers’s] Loyalty

Cards for their own personal purchases.” Further, “[Employees’]

9
use of the [King Soopers] Loyalty Cards is limited to their own

purchases, or those of their immediate family (spouse/children).”

¶ 22 Applying the foregoing definition and construing it in the

context of the policy as a whole, King Soopers plainly forbids

employees from misrepresenting to the company that they —

through their own purchases or immediate family members’

purchases — earned loyalty points, when, in fact, those loyalty

points correspond with customers’ purchases. As the hearing

officer found, Lowery signed a statement acknowledging her

responsibility to comply with King Soopers’ policies, including the

loyalty card policy. By recording points earned via customers’

purchases onto her loyalty card account, as the hearing officer

found she did, Lowery effectively misrepresented to King Soopers

that she had earned those points.

¶ 23 While we agree with Lowery that no evidence suggests she

intended to defraud customers, she fails to explain how this affects

our disposition, and we perceive no reason why it would.

3. Hearsay

¶ 24 Lowery next argues that the hearing officer erred in admitting,

and then “relying on,” hearsay. Lowery makes multiple arguments

10
involving Anderson’s testimony, so we provide context to facilitate

the discussion.

¶ 25 It is undisputed that Anderson testified that King Soopers’

“asset protection department” investigated Lowery’s use of her

loyalty card “through” an internal “system” or “team” called

“MACS.”3 She indicated that MACS collected data on Lowery’s

loyalty card use and prompted the asset protection department to

interview Lowery regarding the same. Senior Asset Protection

Specialist, Dillon Skaggs, conducted the interview, and Anderson

attended as a witness. Throughout her hearing testimony,

Anderson referenced an email Skaggs authored, summarizing the

interview.

¶ 26 Lowery appears to argue that the hearing officer erred in

admitting the Skaggs email into evidence because it constituted

hearsay since Skaggs “was not present in the hearing and did not

testify.” We disagree.

3 The hearing transcript uses this spelling.Another King Soopers
employee refers to the entity as “MAX” elsewhere in the record. (F.
p. 97) Lacking further guidance on the correct name, we adopt the
transcript’s spelling.

11
¶ 27 The email would have constituted hearsay, regardless of

whether Skaggs was present or testified at the hearing. CRE 801(c);

see Nat’l Can. Corp. v. Dikeou, 868 P.2d 1131, 1138 (Colo. App.

1993) (reports prepared out of court constitute hearsay). But more

importantly, Lowery’s counsel expressly acquiesced to admitting the

email into evidence. The hearing officer began the proceedings by

identifying the exhibits each party and the Division had provided.

The Skaggs email was included in the Division’s omnibus exhibit.

Lowery’s counsel acknowledged having received that exhibit. When

directly asked whether he objected to admitting the exhibit, counsel

responded “I do not.”

¶ 28 Finally, Lowery fails to identify any harm she suffered from the

Skaggs email. Even if admitting the email constituted error, we do

not reverse, absent any argument or showing that such error

affected Lowery’s substantial rights. C.A.R. 35(c) (“The court may

disregard any error or defect not affecting the substantial rights of

the parties.”).

¶ 29 Lowery also argues that the hearing officer and then the Panel,

relied on an alleged report from MACS, which was not admitted, in

finding that King Soopers “became aware [Lowery] was using her

12
card on customer purchases through a third-party internal

investigation.” Citing Industrial Claim Appeals Office v. Flower Stop

Marketing Corp., 782 P.2d 13 (Colo. 1989), she argues that the

hearing officer (and, subsequently, the Panel) erred in failing to

consider “the reliability of this information that their finding of fact

was based on.”

¶ 30 According to Lowery, during the hearing, Anderson referred to

this alleged report, but our record review shows that Anderson

never testified that MACS had generated a report. And the

transcript page Lowery cites for this proposition shows no such

testimony. Moreover, under section 8-73-108(5)(e), it is irrelevant

how King Soopers discovered Lowery’s transgression. Also, as

noted above, Lowery testified at the hearing that she had recorded

on her loyalty card account points corresponding with customers’

purchases.

4. Administrative/Judicial Notice

¶ 31 Finally, Lowery argues that the hearing officer erred in

declining to take administrative — or judicial — notice of section

13
18-5-101, C.R.S. 2025.4 As to taking administrative notice of the

statute, we reject that argument because such notice is available

only through the Colorado Administrative Procedures Act, which

does not apply in the context of unemployment benefits hearings.

§ 24-4-105(8), C.R.S. 2025 (an agency “may take notice of general,

technical, or scientific facts within its knowledge”); § 8-74-106 (“The

provisions of the ‘State Administrative Procedure Act’, article 4 of

title 24, C.R.S., and particularly section[] 24-4-105 . . . shall not

apply to hearings and court review under this article.”).

¶ 32 We are also unpersuaded that the hearing officer should have

taken judicial notice of the statute. Rule 201 requires that

tribunals take judicial notice of “adjudicative facts . . . not subject

to reasonable dispute” upon request. CRE 201(a), (b), (d).

Adjudicative facts are “the facts of the particular case, as

distinguished from, among others, facts with relevance to legal

reasoning and the lawmaking process.” Doyle v. People, 2015 CO

10, ¶ 9; see also People in Interest of I.S., 2017 COA 155, ¶ 8 (“By

4 It is unclear which of these concepts Lowery intends to invoke. In
the hearing, her counsel requested administrative notice. In
briefing to this court, counsel seemingly conflates administrative
and judicial notice. We address both.

14
noticing the People’s appendix and the district court’s finding in it,

we recognize the procedural effect of that finding on this appeal, not

any material adjudicative effect it might have on the case’s merits.”).

¶ 33 As a threshold matter, because the Rules of Evidence are

“relaxed” in unemployment benefits proceedings, Lowery’s

argument that Rule 201(d) compelled judicial notice fails.

Richardson v. Indus. Comm’n, 701 P.2d 166, 167 (Colo. App. 1985).

Nor do we conclude that the hearing officer erred in declining to

take the requested notice.

¶ 34 At the hearing, Lowery’s counsel explained that he specifically

requested that the hearing officer take notice “that an individual in

order to commit fraud has to knowingly make a false representation

of an important fact or event.” From this statement, it appears that

Lowery intended to offer section 18-5-101 to inform the hearing

officer’s interpretation of the written policy precluding employees

from “fraudulently” recording customers’ loyalty points on their own

cards. This proposition fails for several reasons.

¶ 35 First, section 18-5-101 does not include any iteration of the

term “fraud.” § 18-5-101 (setting forth definitions applicable to

crimes of forgery, simulation, impersonation, and related offenses in

15
Colorado’s Criminal Code). Moreover, it is unclear why Lowery

maintains this section would constitute an adjudicative fact. While

it is undisputable that the statute exists, applying it in this case as

an interpretive aid is not appropriate, let alone undisputed.

¶ 36 As discussed above, interpreting a written document, such as

the subject policy in the employee handbook, is, in the first

instance, a question of law, not fact. GMAC, 155 P.3d at 557. A

factual inquiry only arises if the tribunal finds an ambiguity in the

document. Dorman v. Petrol Aspen, Inc., 914 P.2d 909, 912 (Colo.

1996). In that scenario only, the tribunal may consider evidence

outside of the document itself, to aid its interpretation. Reisig v.

Resol. Tr. Corp., 806 P.2d 397, 400 (Colo. App. 1991). The hearing

officer properly found no ambiguity in the loyalty card policy, nor

did Lowery argue such ambiguity exists. So, section 18-5-101

provided no adjudicative facts, and the hearing officer properly

refused to take judicial notice of it. CRE 201(a), (b).

C. Interpretation and Application of the Law

¶ 37 Lowery contends that the hearing officer erred as a matter of

law in concluding that she was disqualified under section

8-73-108(5)(e)(XX) because that section did not apply. Lowery

16
maintains that only subsection (5)(e)(VII) could possibly apply under

the facts here. That section disqualifies a claimant, in part, for

“[v]iolation of a statute or of a company rule which resulted or could

have resulted in serious damage to the employer’s property or

interests.” § 8-73-108(5)(e)(VII). We are not persuaded.

¶ 38 First, Lowery suggests that subsection (5)(e)(XX) irreconcilably

conflicts with the more “specific” subsection (5)(e)(VII), and that the

latter subsection therefore should have controlled the hearing

officer’s analysis. See BP Am. Prod. Co. v. Patterson, 185 P.3d 811,

813 (Colo. 2008). We do not consider this argument because

Lowery provides no analysis supporting a conclusion that the two

subsections irreconcilably conflict, and we perceive no such

conflict. See Vallagio at Inverness Residential Condo. Ass’n v. Metro.

Homes, Inc., 2017 CO 69, ¶¶ 39-40.

¶ 39 Next, Lowery argues that subsection (5)(e)(XX) cannot apply

because it concerns “job performance” and “other defined

standards,” and no witnesses at the hearing invoked those terms.

Noting that the terms “policy” and “policies,” however, appear in the

hearing transcript many times, she argues that subsection (5)(e)(VII)

is the only applicable disqualification section. According to her, the

17
hearing officer (and, subsequently, the Panel) erroneously applied

subsection (5)(e)(XX), rather than properly invoking subsection

(5)(e)(VII), “because they could not get around [the latter’s]

requirement that the violation of a company rule must result or

could have resulted in serious damage to the employer’s property or

interests.” And, as she points out, she netted a mere $5.00 in fuel

points from customers’ purchases.

¶ 40 The fact that the word “policy” is used multiple times during

the hearing is a non sequitur. Neither subsection (5)(e)(XX) nor

(5)(e)(VII) includes the word “policy.” § 8-73-108(5)(e)(VII), (XX). To

the extent Lowery implies that the term “policy” is more akin to the

term “rule” in subsection (5)(e)(VII) than the term “standard” in

subsection (5)(e)(XX), we do not consider this argument because it

lacks meaningful analysis and legal support. See People v. Wallin,

167 P.3d 183, 187 (Colo. App. 2007) (declining to address

perfunctory, conclusory arguments).

¶ 41 Finally, even if we examine the hearing officer’s factual

findings through the lens of subsection (5)(e)(VII), as Lowery urges,

she fares no better. Though subsection (5)(e)(VII) requires evidence

of substantial harm in some circumstances, it also requires

18
disqualification for “intentional falsification of expense accounts,

inventories, or other records or reports whether or not substantial

harm or injury was incurred.” § 8-73-108(5)(e)(VII) (emphasis

added). As discussed above, the hearing officer’s findings,

supported by substantial evidence in the record, included: (1) that

King Soopers forbids employees from accruing loyalty points earned

from customers’ purchases; (2) that Lowery acknowledged receiving

a copy of this policy; (3) that Lowery did, in fact, record on her

loyalty card account points from customers’ purchases; and (4) that

she acted intentionally in doing so. By recording on her own card

account points belonging to others, Lowery intentionally falsified

her loyalty points record and would therefore be disqualified from

receiving unemployment benefits under subsection (5)(e)(VII).

III. Disposition

¶ 42 We affirm the Panel’s order.

CHIEF JUDGE ROMÁN and JUSTICE MARTINEZ concur.

19