Alexander v. ICAO

25CA0128 Alexander v ICAO 11-26-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA0128
Industrial Claim Appeals Office of the State of Colorado
DD No. 24153-2024

Daniel Alexander,

Petitioner,

v.

Industrial Claim Appeals Office of the State of Colorado and Luna Freight, LLC,

Respondents.

ORDER AFFIRMED

Division A
Opinion by JUDGE BERNARD*
Román, C.J., and Taubman*, J., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 26, 2025

Daniel Alexander, Pro Se

No Appearance for Respondent Industrial Claim Appeals Office

Ogletree, Deakins, Nash, Smoak & Stewart, PC, William Cusack, Denver,
Colorado, for Respondent Luna Freight, LLC

*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 Claimant, Daniel Alexander, appeals the denial of his claim for

unemployment benefits. We affirm.

I. Background

¶2 Claimant worked as a delivery driver until his employer, Luna

Freight, LLC, terminated his employment. A short time later, a

deputy from the Division of Unemployment Insurance denied his

claim for unemployment benefits. The division’s deputy found

claimant was disqualified from receiving benefits under section 8-

73-108(5)(e)(XIV), C.R.S. 2025 (disqualifying claimants terminated

for rudeness, insolence, or offensive behavior).

¶3 Claimant appealed, and the division scheduled an evidentiary

hearing to address the reasons why employer terminated his

employment. Upon reviewing the evidence, the hearing officer

found employer had terminated him because he had made a “lewd”

comment in a communications app used by employer’s drivers. But

the hearing officer reversed the deputy’s decision and approved

claimant’s benefits claim.

¶4 Unlike the deputy, the hearing officer did not evaluate the

facts under section 8-73-108(5)(e)(XIV). Rather, he considered only

subsection (5)(e)(XX), which disqualifies claimants who fail to meet

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“established job performance or other defined standards.” He found

that claimant’s lewd post did not violate any of Employer’s

established job performance or other defined standards. In

practice, the hearing officer noted, employees often used the app to

vent about “cris[e]s and frustration[s],” and, in doing so, they

“would regularly use language that was generally considered lewd.”

Although the hearing officer found that employer had been

“offended” by the comment and that the comment “may have been a

violation of a written policy or code of conduct[,]” it was nonetheless

“not a violation of [employer’s] actual standard.” As a result, the

hearing officer decided the claim was not disqualified under

subsection (5)(e)(XX).

¶5 The hearing officer also decided claimant was not at fault for

his job termination. Specifically, the hearing officer noted that

“[i]nsufficient persuasive evidence exists on the record to indicate

that [claimant] exercised choice or control over the circumstances”

leading to his “separation from employment because he did not act

as believed and he was unaware that his language at that time

might be considered inappropriate by the employer.” Accordingly,

the hearing officer reversed the deputy’s decision.

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¶6 Employer appealed the decision to a panel of the Industrial

Claims Appeals Office, which reversed it. The panel first referred to

the hearing officer’s finding that employer terminated claimant’s

employment because he had made an offensive comment in the

driver communications app. Deferring to that finding, the panel

next considered it, as the hearing officer had, through the lens of

section 8-73-108(5)(e)(XIV), which disqualifies claimants who are

terminated for rudeness, insolence, or offensive behavior.

¶7 Applying an objective standard for offensiveness, the panel

found that claimant’s statement met the statutory standard, that it

was reasonable for employer to be offended by the comment, and

that, consequently, claimant was disqualified under subsection

(5)(e)(XIV). The panel also decided claimant had exercised volition

when he posted the offensive message in the communications app,

and he was, therefore, at fault for his job termination and not

otherwise entitled to unemployment benefits.

II. Discussion

A. Standard of Review and Legal Principles

¶8 Under section 8-74-107, C.R.S. 2025, we will not disturb

factual findings “supported by substantial evidence,” and we will

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only set aside the panel’s decision if (1) it acted without or in excess

of its powers; (2) the decision was procured by fraud; (3) the factual

findings did not support its decision; or (4) the decision is erroneous

as a matter of law. 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.” Rathburn

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

¶9 Section 8-73-108(5)(e) provides claimants will be disqualified

from receiving benefits if their employment separation occurred for

“any” of several specifically enumerated reasons. See M&A

Acquisition Corp. v. Indus. Claim Appeals Off., 2019 COA 173, ¶ 21.

It is well established that “the statute contemplates that hearing

officers and the [p]anel will consider all potentially applicable . . .

disqualifying provisions.” Id. at ¶ 14.

¶ 10 Section 8-73-108(5)(e)(XIV) disqualifies any claimant

terminated for “[r]udeness, insolence, or offensive behavior . . . not

to be reasonably countenanced by a customer, supervisor, or fellow

worker.” To determine what caused a claimant’s job termination,

the hearing officer considers the totality of the evidence. Eckart v.

Indus. Claim Appeals Off., 775 P.2d 97, 99 (Colo. App. 1989).

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

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

to those who become unemployed through ‘no fault’ of their own.”

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

1998) (quoting § 8-73-108(1)(a)). So, even if the hearing officer’s

findings may support disqualification under that section, claimants

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

establishes that their job separation occurred through no fault of

their own. Id. 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. Claimants’

responsibility or “fault” for their job separation is an ultimate legal

conclusion based on the established findings of evidentiary fact. Id.

at 618-19.

B. Causation

¶ 12 Claimant contends that the panel erred when it determined

the cause of his job termination. He asserts the panel “relied on”

employer’s “inconsistent” statements regarding the cause of his

termination. Indeed, as claimant points out, employer’s witnesses

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testified to a multitude of reasons why claimant no longer works for

employer, including belligerent behavior, job abandonment, poor

performance, and an inappropriate comment.

¶ 13 But we reject claimant’s contention because the panel did not

determine the cause of his job termination. Rather, the panel

deferred to the hearing officer’s factual finding that employer

terminated him for making a “lewd” comment on the drivers’ app.

In the briefs he submitted to the panel, he did not challenge this

finding, and he cannot raise this challenge now. See Wafford v.

Indus. Claim Appeals Off., 907 P.2d 741, 744 (Colo. App.

1995)(declining to consider argument not raised before the panel).

¶ 14 Unlike the hearing officer, the panel considered this fact

through the lens of subsection (5)(e)(XIV). Claimant does not

suggest the panel erred in doing so, and we do not perceive any

error in doing so. To the contrary, the hearing officer erred when he

determined that subsection (5)(e)(XX) did not disqualify claimant

without considering whether any other disqualification provision

applied. See M&A Acquisition Corp., ¶ 14 (noting the statute

contemplates hearing officers and the panel will consider whether

any of the disqualification provisions apply).

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¶ 15 Claimant also appears to contend that he should not be

disqualified from receiving benefits because employer did not

terminate other employees who made similarly lewd or offensive

comments on the drivers’ app. This argument does not succeed for

a couple of reasons.

¶ 16 First, neither the hearing officer nor the panel made a factual

finding that other employees made lewd or offensive remarks and

were not terminated, and we cannot make factual findings. § 8-74-

107 (omitting any factfinding authority from the scope of our

review). Second, even if the hearing officer or panel had made such

a finding, claimant cites no legal authority supporting his argument

that such facts would preclude his own disqualification, as a matter

of law, and we are not aware of any such authority.

¶ 17 Claimant highlights the hearing officer’s findings that, in

making the lewd comment, he did not intend to offend employer or

to violate any work policy. He asserts the panel erred when it did

not address these findings.

¶ 18 We disagree because the panel noted that an “objective

standard” applies in administering subsection (5)(e)(XIV). See Davis

v. Indus. Claim Appeals Off., 903 P.2d, 1243, 1244 (Colo. App.

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1995). It specifically stated that “the required determination is

whether a reasonable person in the circumstances would find the

behavior to be rude, insolent, or offensive and would not

countenance it.” In other words, claimant’s intent was irrelevant to

the analysis.

¶ 19 Claimant next points to the hearing officer’s finding that

employer’s demonstrated expectations regarding use of the drivers’

app differed significantly from its written policy regarding such use.

He submits the panel erred by “ignor[ing]” this finding.

¶ 20 We disagree because claimant does not explain — and we do

not see — how this putative difference would justify reversing the

panel’s decision. Indeed, although this finding supported the

hearing officer’s subsection (5)(e)(XX) analysis, it is unclear to us

how it relates to disqualification under subsection (5)(e)(XIV).

Lacking any citation to legal authority or guidance from claimant,

we decline to consider this contention further. Vallagio at Inverness

Residential Condo. Ass’n, Inc. v. Metro. Homes, Inc., 2017 CO 69, ¶¶

39-40 (we do not consider conclusory propositions devoid of legal

citations or analysis).

¶ 21 The panel’s order is affirmed.

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CHIEF JUDGE ROMÁN and JUDGE TAUBMAN concur.

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