An administrative law judge ruled on Monday that the Colorado State Patrol violated state law and personnel rules by failing to reinstate a former Captain because he is gay.
In a scathing ruling finding in favor of the former Captain, the judge described the culture of the Colorado State Patrol as “homophobic” and found that the leadership “has permitted this culture to persist unchecked,” even condoning the routine use of anti-gay slurs.
According to the Captain's attorney, Boulder-based Keith Shandalow, the Captain was a 12-year veteran of the Colorado State Patrol who had risen through the ranks establishing an exceptional career, culminating in his appointment to command its policy office. In that role, he was the face of the patrol for the Governor’s Office and the Joint Budget Committee.
Few patrol members achieve such a dramatic rise in prominence, according to the judge, and the former Captain was therefore a “presumptive shoe-in for reinstatement” after he voluntarily left the Patrol to obtain private flight training.
Although his resignation review document had recommended him for rehire, when the Captain sought reinstatement, the Patrol rejected him after a polygraph examiner asked him questions concerning his sexual orientation during a background check. Board policy prohibits polygraph questions pertaining to sexual orientation, and the Captain previously had not disclosed this information, believing it was not relevant to his job performance and fearing retaliation based on the anti-gay culture of the Patrol.
The Commander knew that the examiner had asked prohibited questions about sexual orientation and the Captain’s disclosure, and he ordered a sergeant to obtain support for denying reinstatement based solely on the test results, on an expedited basis. According to the judge, “such an investigation was unprecedented.”
The judge further found the Patrol had conducted a “sham investigation” regarding the polygraph and gave an “incomplete and inaccurate report” that they knew would serve as a core basis for denying reinstatement.
Another officer gave untruthful testimony at a hearing, which he ultimately admitted was false when confronted later. The Commander also “neglected and refused to use reasonable diligence and care in exercising his pivotal role” in denying reinstatement, according to filings.
In February 2010, the Patrol had reinstated another trooper who had failed the drug portion of the polygraph and had hired a new trooper and a Homeland Security employee who had significant reactions to the polygraph.
The Captain’s career at the Patrol was exemplary, according to the judge’s order. Ten weeks before considering his reinstatement request, the Chief had publically commended the Captain’s distinguished career at his going-away party.
The judge found that a reasonable Commander considering the reinstatement of a former Captain with his distinctive record would not so flagrantly disregard Patrol hiring practices and governing hiring standards.
After being denied reinstatement, the Captain was shunned by other troopers, dropped as a friend on Facebook, false rumors were spread about him, and when he saw other troopers at a local restaurant they refused to acknowledge him or speak to him.
The Colorado State Patrol’s decision to deny the reinstatement request violated the Colorado Anti-Discrimination Act and State Personnel Board Rule 9-3, both of which prohibit Colorado state agencies from refusing to hire any person because of his or her sexual orientation.
Finding significant legal violations, the judge wrote that “the anti-gay culture in the Patrol is well-documented in this case.” For example, during a Training Academy, another captain had made fun of homosexuals by using an offensive stereotype, which the judge said “evinces the depth of anti-gay culture permeating the organization at the command level.” The clear presumption of all captains and others in the training was that it was acceptable to publicly denigrate homosexuality at the highest level of the organization, according to the judge. The Commander responded to the incident by issuing a memo reminding the captains to be professional at all times.
The appropriate response would have been to address the behavior specifically, require training at all levels in prevention of a hostile work environment for gay members, and stating his zero tolerance for violations of the Patrol policy and state law barring discrimination on the basis of sexual orientation, according to the judge.
There are no openly gay members of the Patrol, according to the order in this case. Since the Captain would have been the first and only known openly gay male employed at the State Patrol, the judge found “this bare statistic reflects a general policy and practice with respect to minority (here, gay) employment as one of silence and exclusion.”
Concluding that reinstatement is not a viable option, the judge found that the Patrol has not trained its members to treat gay men with respect and dignity and it has not enforced its anti-discrimination policy with respect to gay men. Therefore, returning the former Captain as a trooper could subject him to an “unacceptable level of personal and professional risk as a result of his protected status.”
The Colorado State Patrol denied wrongdoing and claimed it had legitimate business reasons for denying reinstatement.
Remedial orders in this case require the Patrol to incorporate sexual orientation training into all existing diversity trainings immediately, and to designate a command-level point of contact for gay patrol members who will function in a support and resource role.
The judge also took the unusual step in a case like this of awarding the former Captain’s attorneys’ fees for the Captain’s attorney, finding the Patrol acted in “bad faith.”
Attorney Shandalow says that "the State Patrol continues to incur attorneys’ fees and costs at the taxpayer’s expense in its vain attempt to justify its unjustifiable acts. Those individuals within the State Patrol who are responsible for the wrongs done to my client should be held accountable. If the State Patrol is truly willing to change its culture, it can start by doing right by my client and holding those who did him wrong accountable."
The Attorney General’s Office may appeal the decision within 20 days. If the Personnel Board affirms the award of attorneys’ fees, a hearing will be set to determine the amount.