Colorado § 24-50-125.3 - Discrimination appeals.

§ 24-50-125.3. Discrimination appeals.

An applicant or employee who alleges discriminatory or unfair employment practices, as defined in part 4 of article 34 of this title, in the state personnel system may appeal within ten days of the alleged practice by filing a complaint in writing with the board or the Colorado civil rights division in the department of regulatory agencies, which shall investigate such complaint on behalf of the board pursuant to the procedures and time limits set forth in section 24-34-306. In an appeal involving the civil rights division, the state personnel board shall contract with a third party to investigate the complaint. If, after said civil rights division or third party has found no probable cause or has attempted after a finding of probable cause to resolve the complaint by conference, conciliation, and persuasion, the applicant or employee remains dissatisfied, such person shall have ten days from the date he is notified of the civil rights division's or third party's action in which to appeal to the board. The board may set the complaint for hearing or adopt the findings of the civil rights division or third party as its own. If the complaint is set for hearing, it shall be subject to the same time limits as other appeals heard by the board. If the board adopts a no probable cause finding as its own, such action shall not operate to deny an employee a hearing to which he is otherwise entitled by law or rule.

Source: L. 84: Entire section added, p. 712, § 11, effective July 1.

ANNOTATION

Complaints about selection and examination process not involving allegations of discrimination are required to be filed with the director pursuant to former § 24-50-112 while claims of discrimination with respect to process are required to be filed with state personnel board or civil rights commission pursuant to this section. Cunningham v. Dept. of Hwys., 823 P.2d 1377 (Colo. App. 1991).

State personnel board did not have authority to review a nonemployee's claim that the Colorado state patrol acted arbitrarily or capriciously in declining to reinstate the nonemployee. This section grants the board the express authority to review nonemployee claims based on discrimination in the employee-selection process. The state personnel director has the express authority pursuant to § 24-50-112.5 to review a nonemployee's claim that an appointing authority acted in an arbitrary or capricious manner. One cannot infer that the general assembly intended to implicitly provide the board with the same authority that is expressly provided to the director. Williams v. Dept. of Pub. Safety, 2015 COA 180, 369 P.3d 760.

Although as general rule agency lacks jurisdiction to review complaint which is not filed within statutory 10-day period, where state employee is not given notice of right to pursue claim of discrimination and he has no actual knowledge of procedure, said period will start to run only after employee receives such notice. Cunningham v. Dept. of Hwys., 823 P.2d 1377 (Colo. App. 1991).

This section is unambiguous. It states an employee who alleges discriminatory employment practices may file an appeal with 10 days of the alleged practice. Hence when an employee alleges the employer engaged in actions that constitute more than one discriminatory or unfair employment practice and the actions are closely related to each other, the employee must file the appeal within 10 days of the last such practice. Ward v. Dept. of Natural Res., 216 P.3d 84 (Colo. App. 2008).

Where right to hearing only related to alleged racial discrimination, the personnel board was without jurisdiction to probe the basis for termination decision, except to determine merits of discrimination claim. Williams v. Colo. Dept. of Corr., 926 P.2d 110 (Colo. App. 1996).

Nothing in the statutory procedure for discrimination appeals pursuant to this section requires or authorizes the filing of exceptions pursuant to § 24-4-105. Hussein v. Regents of the Univ. of Colo., 124 P.3d 871 (Colo. App. 2005).