McCauley v. Colorado Department of Revenue.
2022 COA 25. No. 20CA1344. State Personnel System—Employment—Withdrawal of Resignation.
February 24, 2022
Complainant was a Colorado Department of Revenue (Department) employee. She submitted a notice of voluntary resignation (notice) to the Department but then changed her mind and sought to withdraw her notice. The Department declined to accept the withdrawal, and complainant appealed to the State Personnel Board (Board). The Department filed a motion for summary judgment, which the administrative law judge (ALJ) denied. The ALJ then determined that the Department’s refusal to accept the withdrawal of resignation was contrary to rule or law. The ALJ reinstated complainant’s employment, awarded her back pay and benefits less any income she earned from the date of her separation from employment to the date of her reinstatement, and awarded her attorney fees from the date that the order denying summary judgment was served on the Department. The Board affirmed the ALJ’s decision but reversed the attorney fees award.
On appeal, the Department argued that the ALJ erred in finding that the Department’s refusal to accept complainant’s withdrawal of resignation was contrary to rule or law. Former Board Rule 7-5 was the sole legal authority allowing an employee to withdraw a resignation before it became effective, and that rule was repealed before complainant’s resignation. Given the absence of legal authority on resignation withdrawal, the Department was not compelled to accept complainant’s withdrawal of resignation, so the ALJ erred.
Complainant cross-appealed the Board’s decision to reverse the attorney fees award. Here, sufficient evidence supported the Board’s decision to reverse the attorney fees award because (1) after the ALJ denied the motion for summary judgment, complainant had not yet withdrawn her claim for retaliation, and the order denying summary judgment did not address the retaliation issue; (2) there was an ongoing dispute over whether the Board had authority to award plaintiff front pay instead of reinstatement; and (3) the ALJ noted that an evidentiary hearing was necessary to afford both parties due process.
The order was affirmed with respect to attorney fees but reversed as to the Board’s conclusion that the Department’s refusal to accept complainant’s withdrawal of resignation was contrary to rule or law, and the case was remanded to the Board to remand to the ALJ to amend the judgment awarding reinstatement, back pay, and lost benefits.