Case No.

123456789

Charging Party Charging Party

123 Main Street
Clifton, CO 81520

Trucking, LLC Respondent

123 Industrial Park Lane
Grand Junction, CO 81504

DETERMINATION

Under the authority vested in me by C.R.S. §24-34-306 (2), I conclude from our investigation
that there is insufficient evidence to support the Charging Party’s claim of discharge. As such, a
No Probable Cause determination is hereby issued with respect to this claim.

The Respondent is an employer within the meaning of C.R.S. §24-34-401 (3), as re-enacted, and
the timeliness and all other jurisdictional requirements pursuant to Title 24, Article 34, Parts 3
and 4 have been met.

The Charging Party alleges that on or about November 24, 2009, he was discharged from the
position of Class A Driver based on his religion (agnostic). The Respondent denies that it
discriminated against the Charging Party and contends that the Charging Party was discharged
due to three unexcused absences.

The legal framework under which civil rights matters are examined is as follows: The Charging
Party bears the burden of proving that discrimination has occurred. Each key or essential
element (“prima facie”) of the particular claim must be proven, through a majority
(“preponderance”) of the evidence. If the Charging Party meets this initial burden of proof, then
the Respondent has the burden of explaining, with sufficient clarity, a non-discriminatory
justification for the action taken. This is in response to the specifically alleged action named in
the charge. In addition, the Respondent has the burden to produce documents and other
information requested by the administrative agency during the civil rights investigation. If the
Respondent offers a non-discriminatory reason, then the burden once again shifts back to the
Charging Party to prove that this proffered legitimate reason is merely a pretext for
discrimination. At this stage, the Charging Party must prove, again through sufficient evidence,
that the true and primary motive for the Respondent’s actions is unlawful discrimination.

“Unlawful discrimination” means treatment that is primarily based on the Charging Party’s
asserted protected group or status. The Respondent’s stated reasons for its actions are presumed
to be true, unless and until the Charging Party, again through a preponderance of the evidence in
the record, adequately shows that the Respondent’s reason is pretext (i.e., is not to be believed),
and that the Charging Party’s protected status was the main reason for the adverse action taken.
The Charging Party does not need to submit additional evidence, in response to the Respondent’s
position, but the available evidence must be legally sufficient so that a reasonable person would
find that the Respondent intended to discriminate against the Charging Party because of his/her
protected civil rights status. See Colorado Civil Rights Commission v. Big O Tires, Inc., 940
P.2d 397 (Colo. 1997); Ahmad Bodaghi and State Board of Personnel, State of Colorado v.
Department of Natural Resources, 995 P.2d 288 (Colo. 2000).

On or about November 23, 2009, the Charging Party was hired by the Respondent, which is an
“oil and gas services company” that employees more than 15 people.

According to the Charging Party, on or about November 24, 2009, he completed several hours of
driver training. During this time, his personal vehicle was parked in front of the main office of
the Respondent. As the work day drew to a close, Training Instructor Ed Johansson (religion:
Christian) concluded the day by outfitting the Charging Party with work appropriate “gear,” such
as coveralls and fittings, and by showing him where to put his timecard, paperwork and other
items.

According to the Charging Party, after he had turned in his timecard he was told to meet with
Bob Butter (religion: Christian). The Charging Party alleges that when he entered Butter’s office,
he was immediately informed by Butter that his employment was “not going to work out” and
that he needed to “find work elsewhere.” According to the Charging Party, Butter then
mentioned that he saw a sticker on the Charging Party’s personal vehicle, which he found
“offensive.” The sticker was an illustrated depiction of a “Calvin” figure (often found urinating
on various objects, including automobile logos) urinating upon the words “Jesus Christ.”

The Charging Party alleges he then asked why the decal would render him unable to perform the
duties of the job. The Charging Party further alleges that he offered to cover up the sticker, park
his vehicle in a different place, or bring a different vehicle to work. According to the Charging
Party, Butter told him that he did not believe they would “get along” and that the Charging
Party’s employment was simply “not going to work out.” The Charging Party alleges that Butter
also told him that “if [I] had known those were [your] beliefs, [I] would not have hired [you].”

According to the Charging Party, he responded to Butter’s statements by asserting that his
religious beliefs “have nothing to do with this job.” The Charging Party also claims that he said
to Butter, “now you’re saying I don’t have a job here?” and Butter replied, “yep, that’s what I’m

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telling you.” The Charging Party states he then “dropped” his items, such as coveralls and
paperwork, on the floor of Butter’s office and exited the Respondent’s premises.

According to Butter’s description of the above events, “late in the afternoon” of November 24,
he observed a white Hummer parked “directly” in front of the main office building; Employee
parking is apparently located in a separate lot to the southeast. Butter noticed the vehicle was
adorned with “several” decals of skulls, “what appeared to be a chrome gargoyle head attached
to the roof,” and the previously mentioned sticker of “Calvin” urinating on the words Jesus
Christ. Butter alleges that he found this sticker to “possibly be very controversial, if not
confrontational,” in addition to being “highly offensive.” Butter does state, however, that he did
not find the “skull” stickers to be offensive.

According to Butter, his “immediate concern” was that the vehicle, being parked directly in front
of the main office, could potentially be offensive to clients. He then learned through coworkers
that the vehicle belonged to the Charging Party. Subsequently, Butter alleges that he asked the
Charging Party to come into his office, leaving the door open, to engage in a “discussion” of the
Respondent’s “code of conduct policies.” Upon the Division’s review of the Respondent’s
written policies, it is not entirely clear that displaying such a sticker is in violation of the
Respondent’s “code of conduct policies.”

According to Butter, after the Charging Party entered his office, Butter informed the Charging
Party that there was a decal on his vehicle that made him feel “uneasy.” According to Butter, the
Charging Party then became “instantly agitated and argumentative,” standing before Butter’s
desk, “making accusations” and addressing Butter in an “aggressive tone.” Butter alleges that he
then instructed the Charging Party to leave his office and return the next day to further continue
the conversation.

According to Butter, “this only fueled [the Charging Party’s] anger,” causing the Charging Party
to approach his desk in a “combative fashion.” The Charging Party allegedly demanded to know
why his religious beliefs were at issue. Butter alleges that he tried to bring the conversation back
to a discussion of the Respondent’s code of conduct, “to no avail.”

Butter alleges he again asked the Charging Party to leave and return the next day, and that in the
interim, the Charging Party should “evaluate weather [sic] or not he wanted to work for” the
Respondent. The Charging Party then asked what that statement meant and whether he had a job
or not. Butter states that he told him he was “not to [sic] sure.”

Safety Coordinator Jake John (religion: Christian) and Johansson both affirm Butter’s account of
his meeting with the Charging Party, claiming that they were both within acoustic range of the
conversation. As the interaction wore on, John claims that he stepped into the room, in case he
needed to intervene.

The Charging Party then “dropped” his gear and paperwork on the floor of the office, according
to Butter, and asked again if he had a job or not. Butter allegedly replied again that he was “not
sure.” According to Butter, he kept the Charging Party’s items in his office for three days,

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waiting for the Charging Party’s return, before preparing a personal action form indicating
separation between the Charging Party and the Respondent.

According to the Charging Party, he was immediately terminated. The Charging Party alleges
that on the next day, on or about November 25, 2009, he drove to the Respondents office in
Clifton, Colorado, to pick up his paycheck. When he arrived, he was purportedly told that the
check was not ready yet, and that he would receive a phone call when it was ready. After
approximately one hour, the Charging Party claims that he was called and told to return. When
he arrived, allegedly three people were standing in the office, his check was tendered and he left
the office.

The Respondent denies the Charging Party was immediately terminated, as the Charging Party
alleges, but was instead terminated following three days of absence from the Respondent. The
document asserting separation between the two parties is dated November 27, 2009, as is the
Charging Party’s paycheck. Although requested, the Respondent failed to provide the
religious/creed identification of anyone other than the three involved members of management,
whom were all Christian. The Charging Party did not provide the names of any witnesses.

Discharge:

In order for a prima facie claim of discriminatory discharge to be established, a preponderance of

the evidence in the record must show that the Charging Party: (1) is a member of a protected
class; (2) was performing satisfactorily; and (3) was discharged; (4) under circumstances that
give rise to an inference of unlawful discrimination based on a protected class.

The evidence does not establish a case of discriminatory discharge. The Charging Party is a
member of a protected class. There is no evidence to indicate that the Charging Party did not
perform the functions of the job satisfactorily. The Charging Party claims that he was discharged
because the sticker on his vehicle was overtly anti-Christian. The Respondent claims the
Charging Party was discharged after he failed to show for work for three consecutive days. There
is nothing within the context of the evidence to suggest that the Charging Party was terminated
on November 24, 2009. However, there is ample evidence that suggests the Charging Party was,
in fact, terminated from employment on or about November 27, 2009. This evidence includes
the separation documentation, a signed statement from Butter, and finally, the Charging Party’s
single paycheck, dated November 27, 2009.

Even if the Charging Party could establish a prima facie case, the Respondent has provided a
legitimate, non-discriminatory reason for discharging the Charging Party. Namely, the Charging
Party was discharged due to “three unexcused absences.”

To establish pretext, it must be shown either that a discriminatory reason more likely than not
motivated the decision maker or that the employer’s proffered explanation is unworthy of
credence. Based upon the evidence provided, there is no reason to suggest that the Respondent’s
decision was based on the Charging Party’s protected class or activity.

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Based on the evidence contained above, I determine that the Respondent has not violated C.R.S.
24-34-402, as re-enacted, with respect to the Charging Party’s claims. In accordance with C.R.S.
24-34-306(2)(b)(I)(A) and Rule 10.6(A)(1) of the Commission's Rules of Practice and
Procedure, the Charging Party may appeal the dismissal of his claim to the Commission as set
forth in the enclosed form.

If the Charging Party wishes to file a civil action in a district court in this state, which action is
based on the alleged discriminatory or unfair practice that was the subject of the charge filed
with the Commission, such must be done:

a. Within ninety days of the mailing of this notice if no appeal is filed with the
Colorado Civil Rights Commission or

b. Within ninety days of the mailing of the final notice of the Commission
dismissing the appeal.

If Charging Party does not file an action within the time limits specified above, such action will
be barred and no State District Court shall have jurisdiction to hear such action [CRS 24-34-
306(I)].

On Behalf of the Colorado Civil Rights Division

Steven Chavez, Director Date

Or Authorized Designee