Madruga v. DOR

24CA1160 Madruga v DOR 05-29-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1160
State Personnel Board No. 2023S048

Joao (John) Madruga,

Complainant-Appellant,

v.

Department of Revenue,

Respondent-Appellee,

and

State Personnel Board,

Appellee.

ORDER AFFIRMED

Division III
Opinion by JUDGE SCHOCK
Dunn and Brown, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 29, 2025

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

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

No Appearance for Appellee
¶1 Complainant, Joao (John) Madruga, appeals an order of the

Colorado State Personnel Board (the Board) affirming the initial

decision of an administrative law judge (ALJ). The ALJ found that

Madruga failed to prove that the respondent, Colorado Department

of Revenue (the Department), discriminated against him based on

his national origin when it did not select him for a promotion.

Because the record supports the Board’s decision, we affirm.

I. Background

¶2 Madruga was born in Portugal. He 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 two master’s degrees — one in business

administration and one in accounting and financial management.

¶3 Madruga has worked for the Department’s Division of Gaming

(the Division) since 2005. He was hired as a Senior Investigator,

promoted to Supervisory Investigator in 2010, and promoted to

Agent in Charge (AIC) in 2017. As one of four AICs in the Division,

Madruga supervises the Division’s licensing and background

investigations sections. Throughout his tenure at the Division,

Madruga has met or exceeded expectations in his annual

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performance evaluations. His three most recent annual evaluations

rated him as exceptional, satisfactory plus, and exceptional.

A. Application and Hiring Process

¶4 In October 2022, the Department posted a job announcement

for the position of Deputy Director/Chief of Investigations — Sports

Betting within the Division (the position). The minimum

qualifications for the position included four years of “professional

regulatory investigative experience,” two of which demonstrated

leadership or supervisory duties. The job posting also identified

several “preferred qualifications and competencies.” Madruga

applied for the position, which would have been a promotion.

¶5 A human resources analyst determined that seventeen

candidates, including Madruga, met the minimum qualifications for

the position. Three Division subject matter experts — the Director

of the Division, Dan Hartman; the Deputy Director, who was

retiring from the position; and the Division’s Chief Auditor — then

performed a “comparative analysis” of the minimally qualified

applicants and selected six for interviews. Two more candidates

were referred for interviews based on their veterans’ preference.

Colo. Const. art. XII, § 15(1)(a)(II) (“If a nonnumerical method is

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used [for the comparative analysis], applicants entitled to [a

veterans’ preference] shall be added to the interview eligible list.”).

Madruga was notified that he was not selected for an interview.

¶6 All candidates who advanced to the interview phase went

through a “meet and greet” and then a panel interview. The meet

and greet panel included two Division sports betting employees.

The interview panel included a director of another section, a former

director of another division, an industry representative, and an

assistant attorney general. The interview panel identified the top

four candidates, and Hartman — the position’s supervisor and the

decisionmaker — conducted a “final interview” of all four.

¶7 After final interviews for the position had been completed but

before a hiring decision had been made, the Department notified

Madruga that he was eligible to receive an interview based on

veterans’ preference after all. The Department attributed this shift

to a discrepancy in the interpretation of dates on the form attached

to his application. The Department human resources analyst later

testified at the hearing that, in fact, Madruga was not eligible for a

veteran’s preference because the position would be a promotion.

See Colo. Const. art. XII, § 15(5). But he was given an interview

3
because another applicant for whom the position would also be a

promotion had mistakenly been granted a veterans’ preference.1

¶8 Madruga moved on to the meet and greet and interview panel

that the other applicants had already completed. One member of

the meet and greet panel negatively viewed a couple of Madruga’s

comments — including that “the higher one goes in the Division,

the less one knows” — and shared her concerns with Hartman. The

interview panel rated Madruga among the top five candidates but

noted that he had less experience in sports betting than one

candidate and less familiarity with national stakeholders than two

others. Madruga then completed a final interview with Hartman.

¶9 Shortly after Madruga’s final interview, Hartman offered the

position to Jason Van’t Hof, who had experience in military

investigations, investigations for the National Football League (NFL),

sports betting, and managing and serving as a “broad-based liaison

with stakeholders.” Van’t Hof declined the offer. Hartman then

offered the position to Kevin Farrington, who had served as an FBI

1 After Madruga was initially notified that he was not selected for an

interview, he appealed that decision to the Board, alleging that it
constituted national original discrimination. Madruga dismissed
that appeal after he was notified he would be given an interview.

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agent for twenty-five years and had extensive experience in sports

betting and conducting investigations. Farrington also declined.

¶ 10 The next day, the Board cancelled the recruitment for the

position. Three days later, it reopened the position and extended

the application deadline, saying in the posting that anyone who had

already applied did not need to reapply. Madruga reapplied

anyway. Around that time, Hartman announced his plan to retire,

and the Department again cancelled the posting until Hartman’s

replacement could be hired. The position was never filled.

B. Madruga’s Board Appeal

¶ 11 Madruga filed an appeal with the Board, alleging that the

Department had discriminated against him based on his national

origin in violation of the Colorado Anti-Discrimination Act (CADA).

¶ 12 After a three-day evidentiary hearing, the ALJ issued an initial

decision finding that Madruga had failed to prove his discrimination

claim. Applying the burden-shifting framework outlined in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973),

and Colorado Civil Rights Commission v. Big O Tires, Inc., 940 P.2d

397, 400 (Colo. 1997), the ALJ found that Madruga had established

a prima facie case of national origin discrimination because (1) he

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was of Portuguese descent; (2) he met the minimum qualifications

for the position; (3) he was not selected; and (4) there were

irregularities in the process that permitted an inference of unlawful

discrimination. The ALJ identified four such irregularities:

(1) given Madruga’s knowledge and experience in the

Division, it “defies reasonable expectations” that he was

not among the top six applicants;

(2) the applicants were ranked subjectively and there was a

“dearth of documentation concerning the ranking”;

(3) the Department mishandled Madruga’s veterans’

preference in the selection process; and

(4) after Van’t Hof and Farrington declined their offers, the

Department cancelled the position, reposted it, and then

cancelled it again, ultimately leaving the position unfilled.

¶ 13 The ALJ then found that the Department had articulated

legitimate, nondiscriminatory reasons for these irregularities and

for its decision not to select Madruga for the position. In particular,

the ALJ found that (1) the Department provided a legitimate

explanation for its handling of Madruga’s veterans’ preference;

(2) Department representatives who participated in the selection

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process testified credibly that Van’t Hof and Farrington were their

preferred candidates based on their experience and performance

during the interview process; and (3) Hartman cancelled and

reposted the position because he believed the other candidates were

“a tier below” the candidates who had declined the offers.

¶ 14 Finally, the ALJ found that Madruga failed to prove that the

Department’s reasons for its decision were pretextual. The ALJ

found that Madruga was “not clearly the most qualified and best fit

for the [p]osition.” The ALJ also found that, although Hartman “did

not appear to like [Madruga] very much,” there was no evidence this

attitude was based on Madruga’s national origin. As to the

Department’s handling of Madruga’s veterans’ preference, the ALJ

found that the evidence “left no doubt that such mishandling was

not devised to sabotage [Madruga’s] application,” as indicated by

the fact that Madruga ultimately received a veterans’ preference.

¶ 15 Madruga appealed the ALJ’s initial decision to the Board,

which affirmed the decision.

II. Analysis

¶ 16 Madruga contends that the ALJ and Board erred by finding

that he failed to prove discrimination. He asserts that (1) he was

7
more qualified than the two candidates to whom offers were made,

and (2) the ALJ failed to consider his prima facie evidence in finding

that the Department’s proffered reasons for its decision were not

pretextual. Because substantial evidence in the record supports

the ALJ’s decision, as affirmed by the Board, we affirm the decision.

A. Standard of Review and Applicable Law

¶ 17 We may 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. § 24-4-106(7)(b), C.R.S. 2024; 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.

¶ 18 CADA forbids an employer from, as relevant here, refusing to

hire or promote a qualified individual because of their national

origin. § 24-34-402(1)(a)(I), C.R.S. 2024. 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

8
employment decision; and (4) circumstances giving rise to an

inference of unlawful discrimination. Big O Tires, 940 P.2d at 400.

¶ 19 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.

¶ 20 But once the employer 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

record supports the factfinder’s resolution of that ultimate question.

Bodaghi v. Dep’t of Nat. Res., 995 P.2d 288, 301 (Colo. 2000).

9
B. Substantial Evidence

¶ 21 The record contains substantial evidence to support the ALJ’s

and Board’s determination that the Department did not refuse to

select Madruga for the position based on his national origin but

rather because it determined other candidates were more qualified.

1. Qualifications for Position

¶ 22 Multiple Department witnesses testified that Madruga was not

selected because he was less qualified than the two candidates who

were offered the position, particularly with respect to the sports

betting industry and his familiarity with national stakeholders. One

member of the interview panel testified that Madruga “didn’t have

as . . . full knowledge of the issues that were pending for the sports

betting industry” and “was not as familiar with all the

[s]takeholders for the sports betting industry on a [n]ational front as

a result.” Hartman, the Division Director, testified that he was

concerned by Madruga’s extensive focus on gaming during his

interview because the sports betting industry is unique. Other

witnesses similarly described their concerns about Madruga,

including the “depth and breadth” of his experience, his attitude

toward leadership, and his “shortsighted view of the position.”

10
¶ 23 In contrast, several of these same witnesses testified as to why

they believed the two successful candidates were more qualified

than Madruga. For example, Hartman emphasized Van’t Hof’s

experience as a liaison in the military and the NFL, and his

experience in developing the integrity program for sports betting in

the NFL. Another interviewer similarly cited Van’t Hof’s experience

working with different stakeholders. That witness also highlighted

Farrington’s leadership within the FBI, experience with sports

betting, and knowledge of the issues in the industry. Other

witnesses testified more generally about the other candidates’

demeanor and their ability to represent the sports betting team.

¶ 24 The ALJ found the Department’s witnesses credible as to their

assessment of the candidates’ qualifications and fit for the position.

See Bodaghi, 995 P.2d at 303 (“The credibility of witnesses and the

weight to be accorded their testimony lies within the province of the

agency as trier of the facts.”). Because that finding has substantial

support in the record, we may not reweigh the evidence and

“substitute [our] judgment for that of the factfinder.” See id.

¶ 25 Madruga insists that the ALJ erred because the two successful

candidates did not possess the minimum qualification of four years

11
of regulatory investigative experience. But this too turns on

credibility determinations. The Department’s human resources

director testified that the Department interpreted this requirement

broadly to expand the pool of candidates and that it included any

experience that “measure[s] [an] occurrence against a set standard,”

including criminal investigative experience. And the human

resources analyst testified that Van’t Hof’s experience as an

intelligence analyst with the NFL and military and Farrington’s

years of experience with the FBI satisfied this requirement.

¶ 26 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).

¶ 27 Madruga also maintains that he had more of the preferred

qualifications listed in the job posting than the two successful

candidates. The Department addressed this point as well, with one

interview panelist acknowledging, for example, that only the

12
internal candidates had knowledge of the pertinent Colorado rules

and regulations. But that witness explained that a candidate with

knowledge of other rules and regulations could learn the Colorado

rules very quickly. To prove that an employer’s claim that the hired

candidate had superior qualifications is a pretext for discrimination,

the claimant must “come forward with facts showing an

‘overwhelming’ ‘disparity in qualifications.’” Johnson v. Weld Cnty.,

594 F.3d 1202, 1211 (10th Cir. 2010) (citation omitted). The ALJ

found, with record support, that Madruga did not do so.

2. Prima Facie Evidence

¶ 28 Madruga also contends that the ALJ erred by ignoring the

evidence that it found satisfied his prima facie case when deciding

the ultimate question of intentional discrimination. See Bodaghi,

995 P.2d at 303 (holding that no additional evidence is required to

support a finding of discrimination when the employee proved a

prima facie case and the employer’s reasons are pretextual). But

the ALJ did consider the factors that supported Madruga’s prima

facie case and found that they did not prove discrimination.

¶ 29 The ALJ directly addressed the Department’s shifting positions

regarding Madruga’s veterans’ preference and found the witnesses

13
provided a credible, legitimate explanation. Specifically, Madruga

was not eligible for a veterans’ preference, but when the

Department realized it had mistakenly given a veterans’ preference

to another applicant in the same situation, it did the same for

Madruga. And although the Department did not tell Madruga the

real reason for its change in position, the ALJ found that this

“anomal[y] [was] not probative of a discriminatory animus.”

¶ 30 The ALJ also addressed the apparent irregularities in the “on-

again off-again nature” of the job posting, again finding a legitimate

justification for it. As Hartman testified, and the ALJ credited, the

job was cancelled and reposted the first time because Hartman

thought the remaining candidates were in a “band” below the

candidates who had declined offers. The job posting was pulled the

second time because Hartman had announced his plan to retire

and the new Senior Director of the Specialized Business Group

opted to defer filling the position until Hartman’s replacement could

be hired. The ALJ found, with record support, that these

circumstances dispelled any inference of unlawful discrimination.

¶ 31 The other two reasons for the ALJ’s finding that Madruga had

satisfied his prima facie case — his knowledge and experience in

14
the Division and the subjective nature of the ranking system —

were encompassed by the ALJ’s findings regarding the applicants’

respective qualifications. Even if Madruga was qualified, the ALJ

found that the other applicants were “arguably superior.” And

thus, the subjective assessments were not used to justify the

rejection of a candidate that was “objectively better qualified” than

those who were selected. Bodaghi, 995 P.2d at 300. Indeed, other

internal candidates — who also had pure regulatory experience and

familiarity with Colorado regulations — were also not selected. Cf.

St. Croix, 166 P.3d at 237 (holding that different treatment of

similarly situated employees may be evidence of pretext).

¶ 32 Madruga also asserts that the ALJ failed to mention that, nine

months before the position posting, Madruga had complained to the

human resources director that he was the lowest paid AIC in the

Division and that he believed Hartman was discriminating against

him based on his national origin. But the ALJ did mention that

prior complaint, noting that Hartman was not responsible for

setting AIC salaries and that Madruga did not file an appeal related

to that complaint. In any event, Madruga does not explain how this

prior complaint undermines — much less forecloses — the ALJ’s

15
finding that the Department had legitimate nondiscriminatory

reasons for not hiring Madruga for the position nine months later.

¶ 33 Relying on Bodaghi, Madruga argues that the evidence

satisfying his prima facie case was alone sufficient to permit an

inference of intentional discrimination. 995 P.3d at 292. But just

because the evidence might have permitted such an inference does

not mean it compelled one. In Bodaghi, the ALJ found that the

employer had engaged in unlawful discrimination, and the court of

appeals erred by substituting its own findings and conclusions for

those of the ALJ. Id. at 291-92. In this case, the ALJ found there

was no discrimination. We will not make the same error.

III. Attorney Fees

¶ 34 In a single sentence without citation, Madruga requests an

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

case and this appeal.” Because Madruga 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 where requesting

party did not provide any factual recitation or legal authority).

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IV. Disposition

¶ 35 The order is affirmed.

JUDGE DUNN and JUDGE BROWN concur.

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