An El Paso County jury will decide whether the University of Colorado fired an employee because he was rude, abusive and unprofessional, or because he filed a whistleblower complaint against his supervisor, the state's second-highest court ruled on Thursday.
A trial judge previously found the evidence showed Russell Allen's supervisors were concerned about his persistently bad behavior on the job, and a reasonable jury could not view the whistleblower report as a factor behind his firing. But a three-judge panel for the Court of Appeals determined the facts could also show CU decided to terminate him only after Allen alleged his direct supervisor was misusing public resources for personal gain.
"Although we agree with the district court that the evidence supports an inference that the University had reason to terminate Allen’s employment, and might have done so anyway," wrote Judge Karl L. Schock, "that evidence does not foreclose a finding that Allen’s report played an important or significant part in that decision."
Under Colorado law, government employees are protected against disciplinary action for disclosing information about the waste of public funds or abuse of authority. Allen's case arrived at the Court of Appeals after CU moved for summary judgment, asserting that the key, undisputed facts showed Allen's whistleblower complaint against executive chef Corey King at the University of Colorado Colorado Springs played no role in Allen's firing.
Allen began working at UCCS as the catering chef and bakery manager in February 2016. Six months later, the university placed him on a performance improvement plan because of his abrasive behavior toward others. Allen completed the plan a month later, although university staff continued to hear reports that Allen acted unprofessionally.
In spring 2018, Allen received two new supervisors: King and Robin Margolin, the executive director of auxiliary services. Both of them learned of Allen's ongoing rudeness and anger toward coworkers, students and vendors. By late September, Margolin was working with the human resources department to address Allen's behavior, with options including another performance improvement plan or even termination. Margolin had not yet made up her mind about what to do.
On October 8, both Margolin and King left for a conference, with Margolin planning to speak to Allen upon her return. Four days later, Allen alleged to the financial office that King had used UCCS suppliers and equipment to cater his family events, which Allen believed violated the ethics code.
The university initiated an audit, with UCCS and Allen later disputing whether the findings exonerated King.
Days after Allen's complaint, Margolin wrote that she was in the process of writing another performance improvement plan for Allen, but his report "complicates things." Instead, she sent five pages of complaints against Allen to Anja Wynne, the director of human resources, in order to show "that this is not a retaliatory act on our part."
On November 13, a vendor emailed King, "Per your request," to describe Allen's reaction to a shipment of vegetables that arrived late and was infested with worms. The vendor noted Allen was "rightfully" upset, but yelled and used profane language.
Wynne and Margolin agreed that firing Allen was appropriate, as his outburst was the "last straw." Three days later, UCCS terminated him.
Allen filed suit to allege the university actually fired him in violation of the whistleblower protection law, and also claimed UCCS did not follow its own policies in dismissing him.
In November 2021, District Court Judge Michael McHenry granted summary judgment for the university, believing "no reasonable jury" could find the whistleblower report was a substantial factor in Allen's termination given all of the other concerns about his performance.
Although the termination occurred only a month after Allen's report, "the altercation with the vendor, which took place after the filing of the fiscal misconduct report and after the University had been documenting concerns about Plaintiff's behavior, was an intervening event that defeats any inference of retaliation based on timing," McHenry noted.
Allen appealed to the Court of Appeals, where the panel took a different view of the facts.
On the one hand, Schock detailed in the March 2 opinion, it was plausible the university fired Allen simply because he was a problem employee for nearly two years. Margolin was going to take some type of action against him anyway, but Allen's outburst to the vendor convinced her that Allen was not a good fit for UCCS.
On the other hand, Allen's behavior was not new and Margolin's preferred option appeared to be another performance plan — that is, until Allen's whistleblower report "complicated" things. Afterward, Margolin abandoned her intention to meet with Allen, instead sending a list of grievances to human resources. The list, plus the vendor's email to Allen's supervisors — sent per their request — could have provided UCCS with cover to get rid of him.
"Because we conclude the evidence could reasonably support either of these narratives (or perhaps a middle ground), it is not our role to choose between them," Schock wrote. "Rather, our role is simply to decide whether a reasonable jury could find that Allen’s report was a substantial or motivating factor in the termination of his employment. We conclude that a reasonable jury could so find."
The panel returned the whistleblower claim to the trial court, while agreeing McHenry properly dismissed Allen's other claims that UCCS fired him in violation of university policy.
The case is Allen v. Board of Regents.
