COCODE

24-34-306. Charge - complaint - hearing - procedure - exhaustion of administrative remedies.

Statute text

(1) (a) (I) Any person claiming to be aggrieved by a discriminatory or an unfair practice as defined by parts 4 to 7 of this article 34 may, by oneself or through the person's attorney, make, sign, and file with the division a verified written charge stating the name and address of the respondent alleged to have committed the discriminatory or unfair practice, setting forth the particulars of the alleged discriminatory or unfair practice, and containing any other information required by the division.

(II) The division shall include on any charge form or charge intake mechanism an option to select "harassment" as a basis or description of the type of discriminatory or unfair employment practice that is the subject of the charge.

(b) The commission, a commissioner, or the attorney general on its own motion may make, sign, and file a charge alleging a discriminatory or unfair practice in cases where the commission, a commissioner, or the attorney general determines that the alleged discriminatory or unfair practice imposes a significant societal or community impact. The charge shall be filed in the same manner and shall contain the same information as required for a charge filed by an individual pursuant to paragraph (a) of this subsection (1). When the commission, a commissioner, or the attorney general files a charge pursuant to this paragraph (b), the remedy available for the discriminatory or unfair practice shall be limited to equitable relief to eliminate the discriminatory or unfair practice.

(c) Prior to any other action by the division regarding the charge, the division shall notify the respondent of the charges filed against him or her.

(2) (a) After the filing of a charge alleging a discriminatory or unfair practice as defined by parts 4 to 7 of this article, the director, with the assistance of the division's staff, shall make a prompt investigation of the charge. The director may subpoena witnesses and compel the testimony of witnesses and the production of books, papers, and records if the testimony, books, papers, and records sought are limited to matters directly related to the charge. Any subpoena issued pursuant to this paragraph (a) shall be enforceable in the district court for the district in which the alleged discriminatory or unfair practice occurred and shall be issued only if the person or entity to be subpoenaed has refused or failed, after a proper request from the director, to provide voluntarily to the director the information sought by the subpoena.

(b) The director or the director's designee, who shall be an employee of the division, shall determine as promptly as possible whether probable cause exists for crediting the allegations of the charge, and shall follow one of the following courses of action:

(I) If the director or the director's designee determines that probable cause does not exist, he or she shall dismiss the charge and shall notify the person filing the charge and the respondent of the dismissal. In addition, in the notice, the director or the director's designee shall advise both parties:

(A) That the charging party has the right to file an appeal of the dismissal with the commission within ten days after the date the notification of dismissal is mailed;

(B) That, if the charging party wishes to file a civil action in a district court in this state based on the alleged discriminatory or unfair practice that was the subject of the charge filed with the commission, he or she must do so: Within ninety days after the date the notice specified in this subparagraph (I) is mailed if he or she does not file an appeal with the commission pursuant to sub-subparagraph (A) of this subparagraph (I); or within ninety days after the date the notice that the commission has dismissed the appeal specified in sub-subparagraph (A) of this subparagraph (I) is mailed;

(C) That, if the charging party does not file an action within the time limits specified in sub-subparagraph (B) of this subparagraph (I), the action will be barred, and no district court shall have jurisdiction to hear the action.

(II) If the director or the director's designee determines that probable cause exists, the director or the director's designee shall serve the respondent with written notice stating with specificity the legal authority and jurisdiction of the commission and the matters of fact and law asserted. In addition, the director or the director's designee shall order the charging party and the respondent to participate in compulsory mediation. Immediately after the director or the director's designee serves notice on the respondent, the director or the director's designee shall endeavor to eliminate the discriminatory or unfair practice by conference, conciliation, and persuasion and by means of the compulsory mediation required by this subparagraph (II).

(3) The members of the commission and its staff shall not disclose the filing of a charge, the information gathered during the investigation, or the efforts to eliminate such discriminatory or unfair practice by conference, conciliation, and persuasion unless such disclosure is made in connection with the conduct of the investigation, in connection with the filing of a petition seeking appropriate injunctive relief against the respondent under section 24-34-507, or at a public hearing or unless the complainant and the respondent agree to such disclosure. Nothing in this subsection (3) shall be construed to prevent the commission from disclosing its final action on a charge, including the reasons for dismissing such charge, the terms of a conciliation agreement, or the contents of an order issued after hearing.

(4) When the director is satisfied that further efforts to settle the matter by conference, conciliation, and persuasion will be futile, he shall so report to the commission. If the commission determines that the circumstances warrant, it shall issue and cause to be served, in the manner provided by section 24-4-105 (2), a written notice and complaint requiring the respondent to answer the charges at a formal hearing before the commission, a commissioner, or an administrative law judge. Such hearing shall be commenced within one hundred twenty days after the service of such written notice and complaint. Such notice and complaint shall state the time, place, and nature of the hearing, the legal authority and jurisdiction under which it is to be held, and the matters of fact and law asserted.

(5) In accordance with rules adopted by the commission, discovery procedures may be used by the commission and the parties under the same circumstances and in the same manner as is provided by the Colorado rules of civil procedure after the notice of hearing under subsection (4) of this section has been given.

(6) The respondent may file a written answer prior to the date of the hearing. When a respondent has failed to answer at a hearing, the commission, a commissioner, or the administrative law judge, as the case may be, may enter his default. For good cause shown, the entry of default may be set aside within ten days after the date of such entry. If the respondent is in default, testimony may be heard on behalf of the complainant. After hearing such testimony, the commission, a commissioner, or the administrative law judge, as the case may be, may enter such order as the evidence warrants.

(7) The commission or the complainant shall have the power to reasonably and fairly amend any complaint, and the respondent shall have like power to amend his answer.

(8) The hearing shall be conducted and decisions rendered in accordance with section 24-4-105; except that the decision shall also include a statement of the reasons why the findings of fact lead to the conclusions. The case in support of the complaint shall be presented at the hearing by one of the commission's attorneys or agents, but no one presenting the case in support of the complaint shall counsel or advise the commission, commissioner, or administrative law judge who hears the case. The director and the staff shall not participate in the hearing except as a witness, nor shall they participate in the deliberations of, or counsel or advise, the commission, commissioner, or administrative law judge in such case. At any such hearing, the person presenting the case in support of the complaint shall have the burden of showing that the respondent has engaged or is engaging in an unfair or discriminatory practice, and the respondent's conduct shall be presumed not to be unfair or discriminatory until proven otherwise.

(9) If, upon all the evidence at a hearing, there is a statement of findings and conclusions in accordance with section 24-4-105, together with a statement of reasons for such conclusions, showing that a respondent has engaged in or is engaging in any discriminatory or unfair practice as defined in parts 4 to 7 of this article, the commission shall issue and cause to be served upon the respondent an order requiring such respondent to cease and desist from such discriminatory or unfair practice and to take such action as it may order in accordance with the provisions of parts 4 to 7 of this article.

(10) If, upon all of the evidence at a hearing, there is a statement of findings and conclusions in accordance with section 24-4-105, together with a statement of reasons for such conclusions, showing that a respondent has not engaged in any such discriminatory or unfair practice, the commission shall issue and cause to be served an order dismissing the complaint on the person alleging such discriminatory or unfair practice.

(11) (a) The jurisdiction of the commission over the complaint ceases if:

(I) Written notice that a formal hearing will be held is not served within four hundred fifty days after the filing of the charge;

(II) The complainant has requested and received a notice of right to sue pursuant to subsection (15) of this section; or

(III) The hearing is not commenced within the one-hundred-twenty-day period prescribed by subsection (4) of this section.

(b) If the jurisdiction of the commission ceases pursuant to subsection (11)(a) of this section, the complainant may seek the relief authorized under this part 3 and parts 4 to 7 of this article 34 against the respondent by filing a civil action in the district court for the district in which the alleged discriminatory or unfair practice occurred. The complainant must file a civil action within ninety days after the date upon which the jurisdiction of the commission ceased. If the complainant fails to file the action within the time specified in this subsection (11)(b), the action is barred, and the district court does not have jurisdiction to hear the action.

(12) The division shall maintain a central file of decisions rendered under parts 3 to 7 of this article, and such file shall be open to the public for inspection during regular business hours.

(13) Any member of the commission and any person participating in good faith in the making of a complaint or a report or in any investigative or administrative proceeding authorized by parts 3 to 7 of this article shall be immune from liability in any civil action brought against him for acts occurring while acting in his capacity as a commission member or participant, respectively, if such individual was acting in good faith within the scope of his respective capacity, made a reasonable effort to obtain the facts of the matter as to which he acted, and acted in the reasonable belief that the action taken by him was warranted by the facts.

(14) No person may file a civil action in a district court in this state based on an alleged discriminatory or unfair practice prohibited by parts 4, 5, and 7 of this article 34 and excluding part 6 of this article 34 and section 24-34-505.6 without first exhausting the proceedings and remedies available to the person under this part 3 unless the person shows, in an action filed in the appropriate district court, by clear and convincing evidence, that the person's ill health which is of such a nature that pursuing administrative remedies would not provide timely and reasonable relief and would cause irreparable harm. This subsection (14) does not apply to civil actions filed in district court based on alleged discriminatory or unfair practices prohibited by either part 6 of this article 34 or section 24-34-505.6.

(15) The charging party in any action may request the division to issue a written notice of right to sue at any time prior to service of a notice and complaint pursuant to subsection (4) of this section. The charging party shall make the request for notice of right to sue in writing. The division shall promptly grant a claimant's request for notice of right to sue made after the expiration of one hundred eighty days following the filing of the charge. If a claimant makes a request for a notice of right to sue prior to the expiration of one hundred eighty days following the filing of the charge, the division shall grant the request upon a determination that the investigation of the charge will not be completed within one hundred eighty days following the filing of the charge. A notice of right to sue shall constitute final agency action and exhaustion of administrative remedies and proceedings pursuant to this part 3.

History

Source: L. 79: Entire part R&RE, p. 925, 3, effective July 1. L. 87: (4), (6), (8), and (11) amended, p. 965, 70, effective March 13. L. 89: (2), (6), and (11) amended and (13) and (14) added, pp. 1039, 1041, 4, 5, effective July 1. L. 91: (2)(a) amended and (2)(c) added, p. 1373, 1, effective June 4. L. 93: (11) amended and (15) added, p. 554, 1, effective April 29. L. 96: (2)(a) and (2)(c) amended, p. 343, 3, effective April 16. L. 2002: (2)(c) amended, p. 129, 1, effective March 26. L. 2009: (1), (2), and (15) amended, (SB 09-110), ch. 238, p. 1083, 6, effective July 1. L. 2022: (11) amended, (HB 22-1367), ch. 473, p. 3456, 2, effective August 10. L. 2023: (14) amended, (HB 23-1032), ch. 271, p. 1613, 1, effective May 25; (1)(a) amended, (SB 23-172), ch. 389, p. 2323, 2, effective August 7.

Annotations

Editor's note: Section 7(2) of chapter 389 (SB 23-172), Session Laws of Colorado 2023, provides that the act changing this section applies to employment practices occurring on or after August 7, 2023.

Annotations

Cross references: (1) For the legislative declaration in HB 22-1367, see section 1 of chapter 473, Session Laws of Colorado 2022.

(2) For the short title ("Protecting Opportunities and Workers' Rights (POWR) Act") in SB 23-172, see section 1 of chapter 389, Session Laws of Colorado 2023.

Annotations

ANNOTATION

Annotations

Law reviews. For article, "Fair Housing in Colorado", see 42 Den. L. Ctr. J. 1 (1965). For note, "Investigative Procedures of the Colorado Civil Rights Commission", see 40 U. Colo. L. Rev. 97 (1967). For comment on the application of res judicata to agencies with parallel jurisdiction in light of Umberfield v. Sch. Dist. No. 11, 185 Colo. 165, 522 P.2d 730 (1974), see 52 Den. L. J. 595 (1975). For article, "Practicing Before the Colorado Civil Rights Commission", see 17 Colo. Law. 259 (1988). For article, "An ADR Forum for the Disabled", see 18 Colo. Law. 915 (1989). For article, "Recent Developments in Administrative Law", see 31 Colo. Law. 45 (Aug. 2002).

Commission charge premised on claim of aggrieved person. This section authorizes a commission complaint (now charge) only in those instances where a specific person or persons have been aggrieved by the alleged discriminatory practices charged. Sisneros v. Woodward Governor Co., 192 Colo. 454, 560 P.2d 97 (1977).

Charge must be drawn with sufficient particularity. Before the commission may issue a subpoena on a specific discriminatory or unfair employment practice, the practice must have occurred in fact and not in theory, and the wrongful practice must then be complained of in writing with enough particularity to satisfy the following needs: (1) It must provide the commission with enough information as to the alleged unfair practice that the commission may intelligently investigate and evaluate the unfair practice in order to determine whether a creditable violation of this article may have occurred; and (2) it must afford to the party alleged to have committed the unfair practice enough notice and knowledge of the unfair practice with which it is charged to permit that party to make a written answer to the charges and to refute or defend against the charges at the time it answers or at the time of a hearing on the complaint (now charge). State ex rel. Colo. Civil Rights Comm'n v. Adolph Coors Corp., 29 Colo. App. 240, 486 P.2d 43 (1971).

Commission empowered to strike irrelevant testimony. Although the commission is not bound by strict rules of evidence, it has inherent power as a fact-finding body to strike testimony which has no bearing on any question at issue. Texas Southland Corp. v. Hogue, 30 Colo. App. 560, 497 P.2d 1275 (1972).

Direct evidence is not a prerequisite to a finding of discrimination; a finding may be based on legitimate inferences from the evidence. Texas Southland Corp. v. Hogue, 30 Colo. App. 560, 497 P.2d 1275 (1972).

Commission's finding of discrimination is legitimate inference from evidence where it is established, among other things, that the employee is black, that he has been a good worker, and that the employer's stated reasons for the discharge of the employee are false. Texas Southland Corp. v. Hogue, 30 Colo. App. 560, 497 P.2d 1275 (1972).

Exhaustion of administrative procedures, as set forth in this section, is not a condition precedent to asserting an "unlawful prohibition" claim under 24-34-402.5. Galieti v. State Farm Mut. Auto. Ins. Co., 840 F. Supp. 104 (D. Colo. 1993).

This section clearly requires plaintiffs to exhaust administrative remedies prior to filing a complaint in district court. Where plaintiff did not assert in her complaint that she had filed an administrative claim and she did not receive a right to sue letter until after the complaint was filed, her claim for tortious interference with employment was barred. Brooke v. Restaurant Servs., Inc., 881 P.2d 409 (Colo. App. 1994).

Exhaustion of state remedies not required prior to federal proceedings. Congress has evidenced its intent to provide parallel or overlapping remedies against discrimination. Thus, the exhaustion of state administrative or judicial remedies is not required prior to proceedings in the federal court. Silverman v. Univ. of Colo., 36 Colo. App. 269, 541 P.2d 93 (1975), rev'd on other grounds, 192 Colo. 75, 555 P.2d 1155 (1976).

Administrative remedies under this section need be exhausted only for claims filed pursuant to 24-34-402, not for common-law sex discrimination claims. Brooke v. Restaurant Servs., Inc., 906 P.2d 66 (Colo. 1995).

Exhaustion of administrative remedies under this section is not required for claims based on an alleged breach of a conciliation agreement that resolved claims of discrimination. The claim is not based on an alleged discriminatory act; it is based on an alleged breach of the conciliation agreement and a labor agreement. Given the purely contractual nature of the claim, administrative exhaustion under this section is not required. Cisneros v. ABC Rail Corp., 217 F.3d 1299 (10th Cir. 2000).

Federal court may defer proceedings pending commission's determination. A federal trial court should have discretion, if it so determines, to defer proceedings on a claim pending the determination of the claim by the commission. Silverman v. Univ. of Colo., 36 Colo. App. 269, 541 P.2d 93 (1975), rev'd on other grounds, 192 Colo. 75, 555 P.2d 1155 (1976) (decided under former law).

The 90-day right-to-sue notice issued by the Colorado civil rights division did not trigger the corresponding federal filing period. The division's notice does not fulfill the equal employment opportunity commission's obligation to issue its own right-to-sue notice under title VII, 42 U.S.C. 2000e et seq. Rodriguez v. Wet Ink, LLC, 603 F.3d 810 (10th Cir. 2010).

Purpose of subsection (11) is to avoid duplicative efforts toward relief. The apparent purpose of the subsection (11) provision in relation to the cessation of jurisdiction is to avoid duplicative and possibly conflicting attempts to pursue relief both in the district court and before the commission. Continental Title Co. v. District Court, 645 P.2d 1310 (Colo. 1982); Agnello v. Adolph Coors Co., 695 P.2d 311 (Colo. App. 1984).

The effect of subsection (11) is only to provide an alternative remedy for vindication of the alleged discriminatory and unfair employment practice suffered by an employee, and does not remove an affirmative defense that might otherwise be asserted by the employer, nor does it create substantive rights by retroactively changing what was formerly a lawful employment practice into a discriminatory practice. Cont'l Title Co. v. District Court, 645 P.2d 1310 (Colo. 1982); Agnello v. Adolph Coors Co., 695 P.2d 311 (Colo. App. 1984).

Presentation of an opening statement by counsel was sufficient to "commence the hearing" within the meaning of subsection (11). Accordingly, the commission retained subject matter jurisdiction over the matter because such hearing was held within 120 days of the service of the written notice and complaint on the respondent, as required by subsection (11). May v. Colo. Civil Rights Comm'n, 43 P.3d 750 (Colo. App. 2002).

The conditions set forth in subsection (11) are not the only means by which the commission can lose its jurisdiction over a claim. Therefore, subsection (11) did not bar plaintiff's claim. Scardina v. Masterpiece Cakeshop, Inc., 2023 COA 8, __ P.3d __.

Decision of civil rights commission upholding the dismissal of a claim by the director of the civil rights division upon finding that no probable cause existed to support a claim of discrimination based on existence of a handicap does not constitute a final agency action subject to appellate review. Demetry v. Colo. Civil Rights Comm'n, 752 P.2d 1070 (Colo. App. 1988).

After director determines that no probable cause exists and dismisses a charge, there is no requirement to appeal this dismissal to the commission prior to the institution of a judicial action on the claim. Montoya v. City of Colo. Springs, 770 P.2d 1358 (Colo. App. 1989), cert. denied, 783 P.2d 838 (Colo. 1989).

Omission of a party's name from a charging document should be considered under the relation-back doctrine, C.R.C.P. 15 (c). Craig v. Masterpiece Cakeshop, Inc., 2015 COA 115, 370 P.3d 272, rev'd on other grounds sub nom. Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n, __ U.S. __, 138 S. Ct. 1719, 201 L. Ed. 2d 35 (2018).

Thus, administrative law judge did not err when he denied respondents' motion to dismiss. Craig v. Masterpiece Cakeshop, Inc., 2015 COA 115, 370 P.3d 272, rev'd on other grounds sub nom. Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n, __ U.S. __, 138 S. Ct. 1719, 201 L. Ed. 2d 35 (2018).

Despite the fact that the division's letter of probable cause determination erroneously referenced 24-34-402, and not 24-34-601, that did not violate the requirement that a respondent be notified "with specificity" of the "legal authority and jurisdiction of the commission" as required in this section. The charge of discrimination and the notice of determination correctly referenced 24-34-601, the public accommodations section, several times, and thus the administrative law judge did not err when he denied respondents' motion to dismiss. Craig v. Masterpiece Cakeshop, Inc., 2015 COA 115, 370 P.3d 272, rev'd on other grounds sub nom. Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n, __ U.S. __, 138 S. Ct. 1719, 201 L. Ed. 2d 35 (2018).

The commission's cease-and-desist order did not exceed the scope of its statutory authority. Individual remedies are merely secondary and incidental to the Colorado anti-discrimination act's primary purpose of eradicating discriminatory practices. Since respondents admitted that their refusal to provide a wedding cake for petitioners was because of the company's policy to decline orders for wedding cakes for same-sex weddings and marriage ceremonies, the commission's order was aimed at the specific discriminatory and unfair practice involved in the petitioners' complaint. Craig v. Masterpiece Cakeshop, Inc., 2015 COA 115, 370 P.3d 272, rev'd on other grounds sub nom. Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n, __ U.S. __, 138 S. Ct. 1719, 201 L. Ed. 2d 35 (2018).

Section provides alternative remedy and does not require exhaustion of administrative remedy. Wing v. JMB Prop. Mgmt. Corp., 714 P.2d 916 (Colo. App. 1985).