Malczewski v. ICAO
Malczewski v. ICAO
Malczewski v. ICAO
Opinion
24CA0727 Malczewski v ICAO 08-29-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0727
Industrial Claim Appeals Office of the State of Colorado
DD No. 2965-2024
Melissa Malczewski,
Petitioner,
v.
Industrial Claim Appeals Office of the State of Colorado and Colorado State
Department of Corrections 440001,
Respondents.
ORDER AFFIRMED
Division III
Opinion by JUDGE MOULTRIE
Dunn and Yun, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced August 29, 2024
Melissa Malczewski, Pro Se
No Appearance for Respondents
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¶ 1 Melissa Malczewski seeks review of a final order of the
Industrial Claim Appeals Office (the Panel) disqualifying her from
receiving unemployment insurance benefits based on her job
separation from the Colorado Department of Corrections (CDOC).
We affirm the Panel’s order.
I. Background
¶ 2 Malczewski worked as a Correctional Officer I for the CDOC for
seven months in 2023, until the CDOC terminated her employment.
At all relevant times, Malczewski had a medical condition causing
blood loss, which she mitigated by routinely injecting herself with a
physician-prescribed vitamin B12 shot. The CDOC terminated
Malczewski’s employment after she brought a needle and syringe to
work to administer herself a B12 shot — without appropriately
documenting the item as required by CDOC policy — and later
losing the needle.
¶ 3 Malczewski applied to receive unemployment benefits from the
Division of Unemployment Insurance. After reviewing evidence
regarding the reason for Malczewski’s job separation, a hearing
officer adjudicated Malczewski disqualified from receiving benefits
under section 8-73-108(5)(e)(XX), C.R.S. 2024.
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¶ 4 The Panel affirmed the hearing officer’s factual findings and
legal conclusions.
II. Discussion
A. Standard of Review
¶ 5 We may only set aside the Panel’s decision if the factual
findings are not supported by substantial evidence or related
reasonable inferences, if the factual findings do not support the
legal conclusion, or if the decision is erroneous as a matter of law.
§ 8-74-107(4), (6), C.R.S. 2024; Yotes, Inc. v. Indus. Claim Appeals
Off., 2013 COA 124, ¶ 10. 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).
B. Applicable Law
¶ 6 Section 8-73-108(5)(e)(XX) disqualifies a claimant from
receiving benefits if her “failure to meet established job performance
or other defined standards” proximately caused her job separation.
To evaluate proximate cause, the hearing officer considers the
totality of the evidence and determines the motivating factors in the
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employee’s separation. Eckart v. Indus. Claim Appeals Off., 775
P.2d 97, 99 (Colo. App. 1989.)
¶ 7 The disqualifying provisions of section 8-73-108(5)(e) “must be
read in the 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); § 8-73-108(1)(a). 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.” Cole,
separation is an ultimate legal conclusion based on the established
findings of evidentiary fact. Id. at 618-19.
C. Proximate Cause
¶ 8 Malczewski argues the hearing officer erred in determining the
proximate cause of her discharge. We do not address other
potential reasons for the discharge, as Malczewski urges, because
substantial evidence in the record supports the hearing officer’s
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¶ 9 The evidence presented to the hearing officer included a
written description of Malczewski’s job duties, as set forth in a
performance improvement plan she received in August 2023. Those
duties included “maintain[ing]” the Trinidad Correctional Facility’s
“safety and security” by ensuring “the proper use of controlled
items, keys, tools, [and] equipment” and “enforc[ing] security
procedures and control[ling] contraband.” Her job description also
explicitly required “adherence to [the CDOC’s] Administrative
Regulations.”
¶ 10 Associate Warden David Sliger testified he terminated
Malczewski for violating a CDOC a regulation that “identifies
needles and sharps as . . . controlled item[s] which must be
accounted for,” as well as another regulation that prohibits
employees from engaging in activities that could jeopardize the
facility’s security or safety. Both Sliger and Malczewski testified
that Malczewski failed to declare the needle at the facility’s entrance
or complete an inventory sheet accounting for it as required, and
the needle was later lost inside the facility.
¶ 11 The hearing officer determined that the CDOC terminated
Malczewski “because she did not follow [CDOC] procedures.” In
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doing so, the hearing officer found that “she brought a syringe and
needle into the prison facility to administer prescribed B12 shots to
herself” and “should have declared these items and an inventory
sheet should have been completed.” She then “lost the needle.”
The hearing officer also found that Malczewski “signed that she had
read and understood all policies and procedures” and the syringe
and needle “were considered dangerous contraband.”
¶ 12 Thus, there is substantial evidence to support the hearing
officer’s findings, and we may not alter the hearing officer’s findings
of fact if they are supported by the evidence. See Tilley v. Indus.
Claim Appeals Off., 924 P.2d 1173, 1177 (Colo. App. 1996).
D. Fault
¶ 13 Malczewski also appears to argue that the hearing officer erred
by finding her at fault for her job separation. We disagree.
¶ 14 Malczewski doesn’t dispute that she failed to follow CDOC
policies. But she contends that the evidence showed she lost
substantial blood on the date of the incident, rendering her
“confused” and “not in the right state of mind” when she “took the
syringe to work.” Construed liberally, her argument appears to
suggest she therefore lacked control over the circumstances
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surrounding her discharge. See People v. Bergerud, 223 P.3d 686,
696-97 (Colo. 2010) (we construe pro se filings liberally, giving effect
to their substance rather than form).
¶ 15 Here, the hearing officer found that Malczewski had given
“herself a shot at home before leaving for her shift” and had “placed
the syringe, needle and bottle of B12 in her lunch box, which she
then took to work in case she needed to give herself another shot
while at work.” The officer also found, with record support, that
Malczewski should have “declared [the controlled] items,” but did
not. The officer concluded that Malczewski “exercised some choice
or control in the circumstances leading to the separation.”
¶ 16 Malczewski’s testimony regarding her confusion conflicts with
other evidence showing that she had control over her decision to
bring the syringe and needle to work. At the hearing, Malczewski
testified multiple times that she believed the needle and syringe
were allowed in the facility. She does not dispute that she brought
the needle and syringe to work, used them to administer a B12
shot, and then lost the needle.
¶ 17 Malczewski also testified that she had failed to read the
administrative regulations governing procedures for bringing
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medically necessary needles to the facility, and therefore did not
know she was violating protocol. She further testified that, had she
been aware of the protocol, she would not have violated it. But the
record reveals that Malczewski had access to all relevant
regulations.
¶ 18 Because the hearing officer’s finding that Malczewski exercised
control over the circumstances of her job separation is supported by
the record, we won’t disturb it.
E. Other Factual Findings
¶ 19 Malczewski argues the hearing officer made several incorrect
factual findings. Specifically, she asserts that the hearing officer
made incorrect factual findings about (1) certain portions of her
testimony, (2) the length of employment of another employee, (3) the
timeframe in which she administered herself the injection while at
work, and (4) whether another employee failed to inventory the
needle.
¶ 20 Even accepting these assertions as true, substantial evidence
supports the hearing officer’s finding that Malczewski failed to
follow protocol when she brought the controlled items into the
facility without declaring them. This finding supports the hearing
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officer’s legal conclusion that Malczewski’s failure to follow
established job standards proximately caused her job separation.
Thus, any errors in the court’s other factual findings are harmless.
C.A.R. 35(c) (“The appellate court may disregard any error or defect
not affecting the substantial rights of the parties.”).
F. The Panel Acted Within Its Powers in Declining to Remand for
the Hearing Officer to Consider Further Evidence
¶ 21 Malczewski also challenges the hearing officer’s decision to
exclude certain evidence during the hearing — specifically, (1) a
photograph Malczewski took allegedly showing the volume of blood
she hemorrhaged two days before the incident and (2) a doctor’s
note allegedly supporting Malczewski’s contention that she becomes
confused due to the blood loss her medical condition occasions. To
the extent Malczewski argues the Panel erred in failing to remand
her case to the hearing officer to consider that evidence, we
disagree.
¶ 22 The Panel has the authority to “affirm, modify, reverse, or set
aside” a hearing officer’s decision “on the basis of the evidence in
the record previously submitted in the case.” Dep’t of Labor &
Emp. Reg. 11.2.16, 7 Code Colo. Regs. 1101-2. Alternatively, the
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Panel may remand a case for the hearing officer to consider further
evidence, but only if “there has been a compelling demonstration
that such evidence, if credited, would establish that a miscarriage of
justice occurred.” Id.
¶ 23 In this case, the Panel found Malczewski “was provided a fair
opportunity to present evidence in the scheduled hearing.” Thus, it
found “no basis” merited remanding the case to allow Malczewski to
present her excluded evidence. Regulation 11.2.16 authorized the
Panel to make this determination. See id. Malczewski does not
argue that insufficient factual findings or legal error invalidate this
determination, and we perceive none.
III. Disposition
¶ 24 We affirm the Panel’s order.
JUDGE DUNN and JUDGE YUN concur.
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