Colorado’s second-highest court agreed last month that a Colorado Department of Transportation employee demonstrated his supervisors likely demoted him not for performance-related reasons, but because he spoke with a civil rights investigator about misconduct in the agency.

Weeks after Marcus Maes shared his knowledge of multiple racist or hostile workplace incidents, his superiors elected to end his probationary period as a high-level supervisor and demote, or revert, him to a lower-paying position. Maes challenged the department’s actions as violating Colorado’s Whistleblower Act.

An administrative law judge sided with Maes and, following CDOT’s appeal, a three-judge panel for the Court of Appeals concluded the evidence supported a theory that CDOT illegally retaliated against him.

“After having worked for CDOT for more than a decade, Maes was reverted approximately two weeks after partaking in the interview” with a civil rights investigator, wrote Judge Terry Fox in the June 8 opinion. There was “no indication, before Maes’ January 14 interview, that Maes was on a reversion track.”

Case: Maes v. Department of Transportation

Decided: June 8, 2023

Jurisdiction: Colorado State Personnel Board

Ruling: 3-0

Judges: Terry Fox (author)

Craig R. Welling

W. Eric Kuhn

Background: Appeals court reinstates lawsuit of UCCS chef who alleges illegal firing

On Aug. 22, 2020, Maes began a six-month trial period as a higher-level maintenance supervisor. Less than four months into his promotion, CDOT received an anonymous report of discrimination involving another supervisor, Michael Martinez. Civil rights manager Patricia Bowling then launched an investigation.

The following month, her office received a second complaint, which implicated additional supervisors. Maes was listed as a witness. On Jan. 14, 2021, after assuring Maes he would be protected from retaliation, Bowling interviewed Maes about Martinez’s alleged misconduct. 

Bowling, relying in part on Maes’ testimony, issued findings in response to each report. Martinez, she concluded, had referred to a Black employee as a character from “Planet of the Apes,” was involved to some degree with placing a dead rat on a Muslim employee’s prayer rug, and had potentially violated workplace policy by bringing a gun to work.

In response, Deputy Director of Maintenance Brent Spahn conducted his own investigation and decided there was insufficient evidence to warrant disciplining Martinez. Instead, on Feb. 4, Spahn reverted Maes to his previous, lower-level position at the end of the trial period.

Spahn based his decision on two performance complaints against Maes, involving a December incident when he allegedly failed to ensure a maintenance truck carried proper signage, and a January incident in which Maes allegedly neglected to send out the proper notification for a bridge repair. Both complaints came from supervisor William Riddle and, unlike with Martinez, Spahn did not investigate them further.

Maes challenged his demotion and an administrative law judge heard two days of testimony. The judge, Susan J. Tyburski, then concluded CDOT’s reasons for demoting Maes were not credible.

Specifically, she found Riddle himself, and not Maes, was to blame for failing to send out the notification for a bridge repair. As for the other incident, Tyburski similarly found Maes was not responsible.

The misplaced concerns about Maes’ performance, coupled with Spahn’s unequal treatment of the allegations against Martinez and Maes, suggested CDOT demoted Maes to punish him for his testimony in the civil rights investigation, Tyburski decided. She awarded Maes $1,000 per month in lost wages and housing stipend, and ordered his reinstatement to the higher-paying position.

CDOT appealed, arguing Tyburski had relied only on the “coincidence in timing” between Maes’ testimony and his demotion, without considering whether Maes’ interview was a substantial factor in CDOT’s decision to demote him.

“Can’t that timing and those circumstances be circumstantial evidence?” asked Judge Craig R. Welling during oral arguments.

Along those lines, even if the performance complaints falsely assigned blame to Maes, Welling wondered, how could they signal retaliation if they arose prior to the interview with Bowling?

“It’s not only that it’s not true, it’s what they did with it,” responded attorney Christopher M.A. Lujan on behalf of Maes.

Ultimately, the appellate panel found multiple pieces of evidence supported Tyburski’s belief that CDOT’s explanation for demoting Maes did not reflect its true motivations. Spahn’s differential treatment of Maes and Martinez, the dubious complaints against Maes and the timing of Spahn’s decision all suggested the civil rights interview made a key difference in CDOT’s decision to demote.

“It is not our role to choose between competing narratives,” Fox wrote. But the evidence indicated Maes’ interview was “a substantial or motivating factor” in his demotion.

The government has since asked the panel to reconsider its decision, arguing Tyburski herself never explicitly found the interview was a substantial or motivating factor, only that Maes could cast doubt on CDOT’s motivations.

The case is Maes v. Department of Transportation.