SUMMARY

November 14, 2019

2019COA172

No. 18CA1987, Williams v. Elder — Employment — Colorado 

Anti-Discrimination Act — Age Discrimination — Compensatory 

Damages; Government — Colorado Governmental Immunity Act

In this employment discrimination case, a division of the court 

of appeals considers for the first time whether the Colorado 

Anti-Discrimination Act (CADA) permits the recovery of 

compensatory damages for age and retaliation claims against a 

public sector employer or whether such claims are barred by the 

Colorado Governmental Immunity Act (CGIA). The division 

concludes that the plain language of section 24-34-405(3)(g), C.R.S. 

2019, precludes a plaintiff from recovering compensatory damages 

for an age discrimination claim. The division further concludes that 

the CADA permits the recovery of compensatory damages for a 

retaliation claim and that the CGIA does not bar recovery. Finally, 

The summaries of the Colorado Court of Appeals published opinions 

constitute no part of the opinion of the division but have been prepared by 

the division for the convenience of the reader. The summaries may not be 

cited or relied upon as they are not the official language of the division. 

Any discrepancy between the language in the summary and in the opinion 

should be resolved in favor of the language in the opinion.
the division disagrees with the majority in Houchin v. Denver Health 

& Hospital Authority, 2019 COA 50M, and concludes that section 

24-34-405(8)(g) exempts compensatory damages for discrimination 

claims (except for age discrimination) from the CGIA. The order is 

affirmed in part and reversed in part.
COLORADO COURT OF APPEALS 2019COA172

Court of Appeals No. 18CA1987

El Paso County District Court No. 18CV30745

Honorable Erin Sokol, Judge

Timothy Williams,

Plaintiff-Appellee,

v.

Bill Elder, in his official capacity as Sheriff of El Paso County, Colorado; and El 

Paso County Sheriff’s Office

Defendants-Appellants.

ORDER AFFIRMED IN PART AND REVERSED IN PART 

Division I

Opinion by JUDGE FREYRE

Pawar and Graham*, JJ., concur

Announced November 14, 2019

Livelihood Law, LLC, Euell Thomas, Rachel E. Ellis, Denver, Colorado, for 

Plaintiff-Appellee

Diana K. May, County Attorney, Kenneth R. Hodges, Senior Assistant County 

Attorney, Brian E. Schmid, Senior Assistant County Attorney, Peter A. 

Lichtman, Senior County Attorney, Colorado Springs, Colorado, for 

Defendants-Appellants

Cornish & Dell’olio, P.C., Ian D. Kalmanowitz, Bradley J. Sherman, Colorado 

Springs, Colorado, for Amicus Curiae Colorado Plaintiff Employment Lawyers 

Association

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. 

VI, § 5(3), and § 24-51-1105, C.R.S. 2019.
1

¶ 1 This employment discrimination case presents an issue of first 

impression — whether a complaint that seeks compensatory 

damages under the Colorado Anti-Discrimination Act (CADA) is 

barred by the Colorado Governmental Immunity Act (CGIA). 

Defendants, El Paso County Sheriff Bill Elder and the El Paso 

County Sheriff’s Office (collectively EPSO), challenge the district 

court’s order finding that the relief requested by plaintiff, Timothy 

Williams, is equitable and, therefore, not subject to the CGIA. For 

the reasons detailed below, we affirm in part and reverse in part. 

I. Factual and Procedural Background

¶ 2 According to the complaint, the EPSO hired Mr. Williams in 

2002 and promoted him to the rank of lieutenant in 2015. On 

March 17, 2016, Sheriff Elder ordered all EPSO employees to 

complete a survey that asked for their retirement eligibility date. 

Mr. Williams reported that his retirement eligibility date was June 

1, 2018. 

¶ 3 On November 6, 2016, Sheriff Elder met with Mr. Williams, 

made derogatory remarks about wanting employees to “check out,” 

and told Mr. Williams that if he “couldn’t cut it,” he needed to “get 

out.” The next day, Sheriff Elder demoted Mr. Williams from 
2

lieutenant to senior deputy. To avoid adverse retirement benefit 

consequences, Mr. Williams resigned on November 8, 2016. The 

EPSO replaced him with a younger employee. Mr. Williams then 

filed age discrimination charges with the Colorado Civil Rights 

Division and Equal Employment Opportunity Commission, on April 

4, 2017.

¶ 4 While those charges were pending, the EPSO received a 

Colorado Open Records Act (CORA) request for documents 

concerning the Commission on Accreditation of Law Enforcement 

Agencies. In its response, the EPSO alleged that Mr. Williams took 

accreditation documents with him when he retired. Mr. Williams

claimed this was false and that the assertion constituted retaliation 

for alleging age discrimination.

¶ 5 On March 27, 2018, Mr. Williams filed his complaint in district 

court alleging (1) age discrimination and (2) retaliation related to the 

CORA request. The EPSO filed a motion to dismiss under C.R.C.P. 

12(b)(5). Then, the court permitted Mr. Williams to amend his 

complaint. The EPSO moved to dismiss the amended complaint 

under C.R.C.P. 12(b)(1) and (b)(5), alleging that Mr. Williams failed 

to exhaust his administrative remedies on the retaliation claim, 
3

failed to state a claim for relief, and both compensatory damages 

and front pay were legal remedies barred by the CGIA. 

¶ 6 In a detailed written order, the district court found that Mr. 

Williams had exhausted all his administrative remedies and that his 

complaint stated claims for relief, but it ordered supplemental 

briefing on whether his requested relief — front pay and 

compensatory damages — were legal remedies barred by the CGIA. 

In a second thorough written order, the district court found that 

front pay is an equitable remedy not barred by the CGIA. It further 

found that under the 2013 amendments to the CADA, 

compensatory damages are not barred by the CGIA. 

¶ 7 The EPSO seeks review of this second order under section 24-

10-108, C.R.S. 2019. After briefing was completed, a division of 

this court announced Houchin v. Denver Health & Hospital 

Authority, 2019 COA 50M, ¶ 20, in which the majority held that

back pay is an equitable remedy, exempt from the CGIA. It further 

held that while the 2013 amendments to the CADA expanded the 

remedies available to victims of discrimination to include 

compensatory damages, such expansion did not apply to the 

Denver Health and Hospitals Authority (a political subdivision of the 
4

state), but only to Colorado state employers. Id. at ¶ 22. Thus, it 

concluded that Houchin’s request for compensatory damages was a 

legal remedy subject to the CGIA. Id. at ¶ 25.

¶ 8 The partial dissent disagreed with this construction of “state,” 

believed that “state” includes political subdivisions of the state, and

concluded that subsection 8(g) of the CADA, making the CGIA 

inapplicable to CADA claims, should allow Houchin to seek 

compensatory damages. Id. at ¶¶ 28-32 (Berger, J., concurring in 

part and dissenting in part).

¶ 9 We requested supplemental briefing on Houchin’s application 

to this case. After considering the supplemental briefs and the 

statutory language, we conclude that the 2013 amendments require 

us to analyze the age discrimination and retaliation claims

separately. We first conclude that a plaintiff may not obtain

compensatory damages for an age discrimination claim under the 

CADA because the plain language of section 24-34-405(3)(g), C.R.S. 

2019, limits the remedies for such claims to those set forth in 

section 24-34-405(2), which do not include compensatory damages. 

Therefore, we reverse the portion of the court’s order concluding

that compensatory damages for age discrimination are not subject 
5

to the CGIA. We conclude that the CGIA bars the recovery of 

compensatory damages for age discrimination. 

¶ 10 However, we conclude that front pay for an age discrimination 

claim constitutes an equitable remedy under the CADA and is not 

barred by the CGIA. Therefore, we affirm the portion of the court’s 

order denying EPSO’s motion to dismiss for age discrimination 

related to front pay.

¶ 11 We next conclude that the CADA does not restrict the 

remedies for a retaliation claim and that this claim is subject to 

section 24-34-405(8)(g). We conclude that compensatory damages 

under the CADA are merely incidental to CADA’s fundamental 

purpose of eliminating discriminatory practices in the workplace. 

We also agree with the partial dissent in Houchin that the word 

“state” in subsection (8)(g) includes agencies like the EPSO. See 

Houchin, ¶¶ 58-59 (Berger, J., concurring in part and dissenting in 

part). Accordingly, we affirm the court’s order denying EPSO’s 

motion to dismiss the retaliation claim.

II. Age Discrimination

¶ 12 We first address the EPSO’s challenge to Mr. Williams’ age 

discrimination claim because the General Assembly has chosen to 
6

treat this form of discrimination differently from others. Under the 

plain language of section 24-34-405(3)(g), which limits the remedies 

for age discrimination to those set forth in section 24-34-405(2), we 

conclude that Mr. Williams may not obtain compensatory damages 

for this claim and reverse this portion of the order. However,

because section 24-34-405(2)(a)(II) plainly provides front pay relief, 

we affirm that portion of the court’s order denying EPSO’s motion to 

dismiss this claim. 

A. Standard of Review and Law

¶ 13 Because the district court decided a question of law, we review 

the issue de novo. City of Colorado Springs v. Conners, 993 P.2d 

1167, 1171 (Colo. 2000). We read statutes “with a goal of giving 

‘consistent, harmonious, and sensible effect to all its parts.’” People 

v. Summer, 208 P.3d 251, 254 (Colo. 2009) (quoting People v. Dist. 

Court, 713 P.2d 918, 921 (Colo. 1986)). “But we avoid construing a 

statute to render any of its words superfluous or to lead to an 

absurd result.” People in Interest of M.C., 2012 COA 64, ¶ 13.

¶ 14 The CGIA provides public entities, like the EPSO, immunity 

against all “claims for injury which lie in tort or could lie in tort,” 

subject to nine exceptions not at issue. § 24-10-106(1), C.R.S. 
7

2019. True tort claims seek compensation for injuries caused by 

wrongful conduct that has been recognized as detrimental to an 

ordered society. See Castro v. Lintz, 2014 COA 91, ¶ 27. The 

purpose of the CGIA is to limit the potential liability of public 

entities and the overburdening of taxpayers for compensatory 

damages in tort. § 24-10-102, C.R.S. 2019. 

¶ 15 In contrast, CADA claims, while similar to torts, are “not 

designed primarily to compensate individual claimants.” Connors, 

993 P.2d at 1174. Instead, their purpose is “to fulfill the ‘basic 

responsibility of government to redress discriminatory employment 

practices on the basis of race, creed, color, sex, age, national origin, 

or ancestry.’” Id. (quoting Colo. Civil Rights Comm’n ex rel. Ramos v. 

Regents of the Univ. of Colo., 759 P.2d 726, 731 (Colo. 1988)).1

Thus, “any benefits to an individual claimant, such as the recovery 

of back pay, are ‘merely incidental’ to [CADA’s] greater purpose of 

eliminating workplace discrimination.” Connors, 993 P.2d at 1174

(quoting Brooke v. Rest. Servs., Inc., 906 P.2d 66, 71 (Colo. 1995)). 

 1 Section 24-34-402(1)(a) has been amended since Connors to 

include disability, sexual orientation, and religion. Ch. 295, sec. 2, 

§ 24-34-402(1)(a), 2007 Colo. Sess. Laws 1254. 
8

The CADA remedies, therefore, are equitable in nature, do not 

sound in tort, and are not barred by the CGIA. Id. at 1176-77. 

¶ 16 In 2013, the General Assembly expanded the remedies 

available under the CADA to include punitive and compensatory 

damages. Ch. 168, sec. 1, § 24-34-405, 2013 Colo. Sess. Laws 550. 

A claimant may now seek compensatory and punitive damages 

against an employer who “is found to have engaged in an 

intentional discriminatory or unfair employment practice . . . .” 

§ 24-34-405(3)(a).2 As relevant here, section 24-34-405(3)(g) 

provides as follows:

In a civil action involving a claim of 

discrimination based on age, the plaintiff is 

entitled only to the relief authorized in 

subsection (2) of this section . . . if the court 

finds that the defendant engaged in a 

discriminatory or unfair employment practice 

based on age.

(Emphasis added.)

¶ 17 Section 24-34-405(2)(a) provides:

In addition to the relief authorized by section 

24-34-306(9), the commission or the court 

may order affirmative relief that the 

 2 Punitive damages, not at issue here, may not be sought against 

state or political subdivision employers. § 24-34-405(3)(b)(I), C.R.S. 

2019. 
9

commission or court determines to be 

appropriate, including the following relief, 

against a respondent who is found to have 

engaged in an unfair or discriminatory 

employment practice:

(I) Reinstatement or hiring of employees, with 

or without back pay. If the commission or 

court orders back pay, the employer, 

employment agency, or labor organization 

responsible for the discriminatory or unfair 

employment practice shall pay the back pay to 

the person who was the victim of the practice.

(II) Front pay; or

(III) Any other equitable relief the commission 

or court deems appropriate.

(Emphasis added.)

¶ 18 Section 24-34-405(3)(e) provides:

Compensatory or punitive damages awarded 

pursuant to this subsection (3) are in addition 

to, and do not include, front pay, back pay, 

interest on back pay, or any other type of relief 

awarded pursuant to subsection (2) of this 

section. 

¶ 19 The 2013 amendments also added section 24-34-405(8)(g), 

which provides: 

A claim filed pursuant to this subsection (8) by 

an aggrieved party against the state for 

compensatory damages for an intentional 

unfair or discriminatory employment practice 

is not subject to the “Colorado Governmental 

Immunity Act”, article 10 of this title. 
10

B. Analysis

¶ 20 We conclude that the plain language of section 24-34-405(3)(g) 

limits age discrimination remedies to those enumerated in 

subsection (2). And, as relevant here, subsection (2) permits relief 

for front pay, but does not include compensatory damages as stated 

in subsection (3)(e). To the extent the EPSO asserts that front pay 

“sounds in tort,” is a legal remedy, and is subject to the CGIA, we 

disagree, because the statutory language refutes that assertion. 

Therefore, we affirm the court’s order permitting Mr. Williams to 

seek front pay for his age discrimination claim, but we reverse the 

court’s order as to his compensatory damages request and conclude 

that it is barred by the CGIA. 

III. Retaliation Claim

¶ 21 The EPSO contends that compensatory damages and front pay 

under the CADA sound in tort or could sound in tort, and, thus, are 

legal remedies barred by the CGIA. It urges us to follow the 

Houchin majority and to hold that compensatory damages are a 

legal remedy subject to the CGIA. 

¶ 22 The Houchin majority narrowly construed Connors and 

reasoned that “the type of claims asserted, and the nature of the 
11

relief sought by the plaintiff, determine[] the framework for deciding 

whether the CGIA applie[s].” ¶ 18. It then held that compensatory 

damages requested under the CADA are not equitable in nature but 

constitute relief for personal injuries “suffered as a consequence of 

prohibited conduct” and, thus, were subject to the CGIA. Id. at ¶ 

20 (quoting Connors, 993 P.2d at 1176). In the majority’s view, the 

CGIA bars some CADA claims for relief (compensatory damages) 

and not others (equitable claims like back pay and reinstatement). 

¶ 23 Taking a broader view of Connors, the partial dissent reasoned 

that whether a statute is subject to the CGIA should be determined 

not only by looking at the nature of the relief sought, but also by 

examining the “‘purposes of [the statute]’ and the ‘nature of the 

injuries.’” Id. at ¶ 35 (Berger, J., concurring in part and dissenting 

in part) (quoting Connors, 993 P.2d at 1173, 1175). Recognizing 

that we are not bound by the majority in Houchin, People v. Smoots, 

2013 COA 152, ¶ 21, we agree with the partial dissent, because its 

reasoning is supported by supreme court precedent subsequent to 

Connors and is consistent with the Connors holding. Colo. Dep’t of 

Transp. v. Brown Grp. Retail, Inc., 182 P.3d 687, 690 (Colo. 2008) 

(“[T]he question of coverage by the [CGIA] ultimately turns on the 
12

source and nature of the government’s liability, or the nature of the 

duty from the breach of which liability arises.”); Robinson v. Colo.

State Lottery Div., 179 P.3d 998, 1006 (Colo. 2008) (“[T]he nature of 

the relief is not dispositive as to the question of whether a claim lies 

in tort. Rather, the relief requested is merely an aid in 

understanding the duty breached or the injury caused to determine 

if the claim lies or could lie in tort.”).

¶ 24 Our supreme court identified the CADA’s purpose as

to make the claimant whole within a particular 

setting, i.e., to place the claimant in the 

position she would have been in but for the 

discriminatory conduct. These forms of relief 

. . . are equitable in nature and are aimed at 

eliminating workplace discrimination, not 

compensating individuals for their particular 

injuries arising from violations of the [CADA].

Connors, 993 P.2d at 1175 (citation omitted). In our view, the 2013 

amendments to the CADA did not change its fundamental purpose. 

Houchin, ¶ 43 (Berger, J., concurring in part and dissenting in 

part). Instead, the expanded remedies available under the 

amendments remain “merely incidental” to the CADA’s primary 

purpose of ending workplace discrimination. See Brooke, 906 P.2d 

at 71.
13

¶ 25 As well, the monetary limitations set by the CADA for 

compensatory damages support its underlying non-tort purpose. 

See § 24-34-405(3)(d)(I)-(II). The compensatory damages cap is 

consistent with the “incidental” nature of any individual benefit a 

claimant receives under the CADA. Thus, the General Assembly’s 

inclusion of compensatory damages in the CADA does not alter the 

CADA’s primary objective of eradicating workplace discrimination.

See Connors, 993 P.2d at 1174. Accordingly, we conclude that the 

compensatory damages remedy, added to the CADA in 2013, does

not lie in tort and is not subject to the CGIA, because it does not 

relieve “tort-like personal injuries.” Id. at 1175. 

¶ 26 As well, we conclude that section 24-34-405(8)(g) exempts 

compensatory damage requests for discrimination claims (other 

than those for age discrimination) from the CGIA. We observe that 

the General Assembly specifically referenced the CGIA and stated

its intent to prohibit the recovery of punitive damages from state 

employers in section 24-34-405(3)(b)(I) of the amendments. But in 

the same amendment that added compensatory damages to the 

CADA in subsection (3)(g), the General Assembly clarified, in 

subsection (8)(g), that compensatory damages sought against the 
14

state are not subject to the CGIA. Reading these provisions 

together, as we must, and recognizing that the General Assembly 

enacted these amendments knowing that Connors considered the 

CADA remedies to be equitable in nature, we conclude that the 

General Assembly intended that compensatory damages awarded 

under the CADA be excluded from the immunity provisions of the 

CGIA. Cowen v. People, 2018 CO 96, ¶ 12 (“[C]ourts must presume 

that a legislature says in a statute what it means and means in a 

statute what it says there.” (quoting Conn. Nat’l Bank v. Germain, 

503 U.S. 249, 253-54 (1992))); Massihzadeh v. Seaver, 2019 COA 

92, ¶ 13 (“Questions of statutory interpretation necessitate, first 

and foremost, consideration of the statutory text as a whole, giving 

‘consistent, harmonious, and sensible effect to all of its parts and 

avoiding constructions that would render any words or phrases 

superfluous or lead to illogical or absurd results.’” (quoting 

Pineda-Liberato v. People, 2017 CO 95, ¶ 22)).

¶ 27 We are not persuaded to the contrary by the Houchin 

majority’s interpretation of the word “state” in subsection (8)(g).

Hogan v. Bd. of Cty. Comm’rs, 2018 COA 86, ¶ 37. Like the partial

dissent in Houchin, we interpret the word “state” broadly to include 
15

all state entities able to seek immunity under the CGIA. Indeed, we 

see no reason to “limit[] many public employees’ recourse to 

compensatory damages [for unlawful discrimination claims] only 

because they happen to be employed by one of Colorado’s 

numerous political subdivisions, as opposed to the state itself[.]”

Houchin, ¶ 54 (Berger, J., concurring in part and dissenting in 

part). When defining “employers” subject to the CADA in section 

24-34-401(3), C.R.S. 2019, the General Assembly included the 

“state of Colorado . . . and every other person employing persons 

within the state.” If, as argued by the EPSO (and adopted by the 

Houchin majority), the word “state” in subsection (8)(g) is limited to 

state of Colorado employees, then the General Assembly would have 

used the language “state of Colorado” to achieve this limitation. 

Because it did not, and because we must construe all provisions of 

the CADA harmoniously, we conclude that the General Assembly 

intended “state” in subsection (8)(g) to include all state employers, 

not just state of Colorado employers. See Jefferson Cty. Bd. of 

Equalization v. Gerganoff, 241 P.3d 932, 935 (Colo. 2010) (“[O]ur 

interpretation should give consistent, harmonious, and sensible 

effect to all parts of a statute.”). Because we find the statutory 
16

language sufficient to refute the conclusion reached by the Houchin 

majority, we need not decide whether its interpretation violates 

equal protection. Developmental Pathways v. Ritter, 178 P.3d 524, 

535 (Colo. 2008) (noting that the principle of judicial restraint 

requires courts to avoid reaching constitutional questions in 

advance of the necessity of deciding them). 

¶ 28 In sum, we conclude that front pay and compensatory 

damages for a retaliation claim under the CADA are equitable 

remedies not barred by the CGIA. We further conclude that Mr.

Williams is an “aggrieved party” under section 24-34-405(8)(a), that 

EPSO is a state employer, and, thus, that subsection (8)(g) exempts

the compensatory damages remedy from the CGIA. 

IV. Conclusion

¶ 29 We affirm the court’s order as it relates to the retaliation claim, 

and the front pay portion of the court’s order for the age 

discrimination claim. We reverse the compensatory damages 

portion of the court’s order for age discrimination and conclude that 

the CGIA bars it. 

JUDGE PAWAR and JUDGE GRAHAM concur.