Opinion
June 26, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Gorsuch, Kirgis, Campbell, Walker & Grover, John L. Ferguson, Denver, for plaintiff-appellee.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Jeffrey I, Sandman, Asst. Atty. Gen., Denver, for defendant-appellant.
DWYER, Judge.
On November 28, 1969, Richard Olivarez was discharged from his employment as assistant manager of the camera department of a K-Mart Discount Store (K-Mart). Olivarez filed a complaint under the Colorado Antidiscrimination Act of 1957, C.R.S.1963, 80--21--1 et seq., alleging that his discharge by K-Mart was due to discrimination based in whole or in part on his Mexican-American ancestry. K-Mart denied that Olivarez was discharged on the basis of his ancestry and asserted that the reason for his discharge was violation of a company rule against fraternization between employees.
A hearing was held before a hearing officer appointed by the Colorado Civil Rights Commission. The hearing officer made findings of fact upon which he concluded there was no discrimination involved in Olivarez's discharge. On review, the Commission adopted the findings of fact of the hearing officer, but reversed his conclusion. The Commission concluded that K-Mart in discharging Olivarez had engaged in a discriminatory and unfair employment practice in violation of the Act.
K-Mart commenced this action in the Jefferson County District Court to review the order of the Commission. The district court reversed the order of the Commission, and the Commission has appealed. We affirm the judgment entered by the district court.
Evidence was received at the hearing concerning an incident which the employer contended constituted a violation of the company's rule against fraternization between employees. The hearing officer found that since the incident occurred after working hours and had no direct effect on the employer's business, K-Mart did not have 'good cause' for discharging Olivarez. The hearing officer further found:
'If there were any evidence to indicate that Respondent's (K-Mart's) action, which I consider to be unfair, was motivated by his ancestry, I would conclude that Respondent had violated the Act. There is no evidence that (female employee's) report to Respondent mentioned Complainant's (Olivarez's) ancestry or that it was taken into consideration by the officials who made the decision to discharge. Neither is there any evidence that persons of different ancestry under the same or similar circumstances were treated differently. The only evidence as to Respondent's employment practices with respect to minorities is that approximately 10 out of 100 employees are of Mexican-American ancestry. I do not infer from this that Respondent had a discriminatory motivation against Complainant particularily in view of the fact that he had been rehired after he had once quit.'
The Civil Rights Commission, on review, entered the following findings and order:
'The findings of fact made by the hearing officer are concurred in and adopted by the Commission. The conclusions of the hearing officer are disapproved and set aside, and in place thereof the Commission finds that the Respondents have engaged in a discriminatory and unfair employment practice, as alleged, in violation of C.R.S.1963, 80--21--6(1) and (2).'
In Colorado Civil Rights Commission v. State of Colorado, 30 Colo.App. 10, 488 P.2d 83, this court announced certain principles applicable to proceedings before the Civil Rights Commission and to judicial review of such proceedings. The fact-finding process is entrusted to the Commission and its findings are conclusive on review if supported by substantial evidence. C.R.S.1963, 80--21--8(6). Direct evidence of discrimination is not a prerequisite to a finding of discrimination under the Act. Discrimination may be established by proof of facts and circumstances from which a fair inference of discrimination can legitimately be drawn. Where such facts and circumstances appear in the record, the finding of discrimination is supported by substantial evidence.
In the present case, the Commission's conclusion is based solely on the hearing officer's findings that Olivarez was of Mexican-American ancestry and that he was discharged without 'good cause'. Such findings, standing alone, do not justify an inference of discrimination. Colorado Civil Rights Commission v. State of Colorado, Supra. The hearing officer specifically found that there was no evidence of discrimination and the record reveals none. Accordingly, the Commission's conclusion of discrimination is not supported by its findings, nor is it supported by substantial evidence in the record, thus its order was properly set aside by the court.
Judgment affirmed.
SILVERSTEIN, C.J., and ENOCH, J., concur.