Rule 14: Separation Other Than Dismissal

Rule 14: Separation Other than Dismissal

A resignation is presumed voluntary. In re Smith, CSB 14-10 A. (11/4/10), reversing on other grounds In re Smith, CSA 14-10(6/4/10).

When an expression of intent to quit is clear and unambiguous, employer’s past willingness to relent does not transmogrify an employee’s present expression of intent to quit into an ambiguous expression.In re Smith,, CSB 14-10 A. (11/4/10), reversing In re Smith, CSA 14-10 (6/4/10).

Where appellant had just been warned by his supervisor that, if he threatened to quit again, his resignation would be accepted, appellant’s subsequent utterance “I quit” expressed clear intent which was properly accepted by agency. In re Smith,, CSB 14-10 A. (11/4/10), reversing In re Smith, CSA 14-10 (6/4/10).

The situation in In re Augustine, CSB 05-09 (9/30/09) is distinguished because the agency interfered with appellant’s freedom of choice to resign, whereas here, the agency did nothing to interfere with appellant’s choice. In re Smith,, CSB 14-10 A. (11/4/10), reversing In re Smith, CSA 14-10 (6/4/10).

The subjects of job abolishment, demotion appointments and layoff are properly before the hearing officer pursuant to Rules 4 & 14. In re Hurdelbrink, CSA 109-04, 119-04, 4 (1/5/05).


14-20: Disqualification 

Under the Lautenberg Amendment to the Gun Control Act, deputy sheriff’s conviction of child abuse involving physical force prohibits him from carrying a firearm and thus presents cause for disqualification where carrying a weapon is a requirement.   In re Luna, CSB 42-07, 5 (1/30/09).

When an agency has notice that appellant’s sleeping on duty probably related to oxygen deprivation, it may neither discipline nor disqualify the employee for sleeping without first engaging in an interactive process pursuant to § 5-84 E. In re Muniz, CSA 77-07, 5 (7/21/08).

14-21: Disqualification, general 

Generally

The Career Service Rules require the disqualification of an employee who becomes unable to perform satisfactorily the essential functions of his position due to a legal impairment. In re Lucero, CSA 59-09 (12/15/09), citing CSR 14-21.

Disqualification affirmed

A prima facie case for disqualification was established were agency showed that maintaining a valid driver’s license was an essential function of appellant’s position, and appellant acknowledged his license was revoked. In re Lucero, CSA 59-09, 3 (12/15/09).

Appellant’s contention, that others whose licenses were revoked were allowed to keep their jobs, was not established where such employee did not testify, agency supervisors did not recall such an occurrence, supervisors testified no one in that division has been granted such exception, and no other evidence corroborated appellant’s assertion.In re Lucero, CSA 59-09, 3 (12/15/09).

Appellant’s claim, that DMV permitted installation of an interlock ignition device that would enable Appellant to keep his job, was not established where: no supervisor recalled Appellant mentioning an interlock device at his pre-disciplinary meeting; agency maintains zero-tolerance policy against loss of driver’s license; appellant failed to produce proof of restricted license at his pre-disciplinary meeting, and at hearing over 4 months later still produced no such DMV authorization, lending doubt as to its existence.  In re Lucero, CSA 59-09, 3 (12/15/09).

Appellant’s claims, that agency could reassign him to non-driving position after his license was revoked or assign him a chauffeur, were properly denied by agency where: appellant’s position required him to drive in order to supervise his crew; appellant’s division was already understaffed so there was no one available to drive him; and agency was not obligated to accommodate such request for reassignment or for chauffeur.  In re Lucero, CSA 59-09, 4 (12/15/09). 

Disqualification is not selectively enforced where appellant failed to prove similarly situated employees were treated more favorably. In re Martinez, CSA 83-06, 3 (12/27/06).

Whether driving privileges were termed revoked or suspended did not affect decision to disqualify appellant for loss of driver’s license. In re Martinez, CSA 83-06, 3 (12/27/06).

Disqualification does not require proof of wrongdoing or prior disciplinary history. In re Martinez, CSA 83-06, 4 (12/27/06).

This rule requires agencies to disqualify employees who have a legal impairment that prevents them from performing the essential functions of their positions. In re Martinez, CSA 83-06, 2 (12/27/06).

Agency is not obligated to provide special accommodation prior to disqualification to an employee who lost his driving privileges and was therefore unable to perform the essential job function of driving. In re Martinez, CSA 83-06, 4 (12/27/06), citing In re Montabon, CSA 122-03, 9 (3/31/05).

Appellant’s claim that disqualification was too harsh in light of his disciplinary record fails because the decision to disqualify is not based on wrongdoing. In re Martinez, CSA 83-06, 4 (12/27/06), citing In re Aguirre, CSA 03-04, 19 (8/16/04).

Disqualification is required if a legal, physical, or emotional impairment occurring or discovered after appointment prevents satisfactory performance of the essential functions of the position. In re Cullen, CSA 165-04 (7/7/06), affirmed in part and reversed in part, CSB 1/18/07.

Social Security Administration guidelines for determining whether a mental impairment exists require medical evidence consisting of signs, symptoms, and laboratory findings. In re Cullen, CSA 165-04, 5(7/7/06), citing 20 CFR 404.1528, affirmed in part and reversed in part, CSB 1/18/07.

An alcoholic employee’s performance issues that are not protected by the ADA may be addressed through disciplinary action. In re Cullen, CSA 165-04, 8-9 (7/7/06), affirmed in part and reversed in part, CSB 1/18/07; citing Nielsen v. Moroni Feed Co., 162 F.3rd 604 (10th Cir. 1998).

If an individual is prevented by a legal, physical, mental or emotional impairment from performing the essential functions of his position and the incapacity was discovered after appointment to the position, the agency is required to disqualify the individual. In re Torres, CSA 97-05, 4 (2/21/06).

14-22: Grounds for disqualification

A prima facie case for disqualification was established were agency showed that maintaining a valid driver’s license was an essential function of appellant’s position, and appellant acknowledged his license was revoked. n re Lucero, CSA 59-09, 3 (12/15/09). 

Carrying a firearm is an essential duty of a deputy sheriff, so that appellant’s legal impairment to possessing a weapon under the Lautenberg Amendment constitutes grounds for disqualification from employment.   In re Luna, CSB 42-07, 5 (1/30/09).

The Lautenberg Amendment to the Gun Control Act makes it unlawful for any person who has been convicted of a misdemeanor crime of domestic violence to possess a firearm.   In re Luna, CSB 42-07, 2 (1/30/09), citing 18 U.S.C. §922(g) (9). 

A “misdemeanor crime of domestic violence,” as defined under the Lautenberg Amendment, has three components: (1) it is classified as a misdemeanor under federal, state or tribal law; (2) it has as an element, the use or attempted use of force, or the threatened use of a deadly weapon; and (3) it occurs between parties who share a domestic relationship.   In re Luna, CSB 42-07, 2 (1/30/09), citing 18 U.S.C. § 921(a) (33). 

Under Colorado law, reckless conduct and accidental conduct are not synonymous for the purpose of determining the use or attempted use of force under the Lautenberg Amendment.   In re Luna, CSB 42-07, 2- 3 (1/30/09). 

Appellant’s admissions during hearing that, during an argument with his son, he grabbed his son’s arm, and during another argument with his stepson, he took his stepson down to the ground using a wrestling move, met the use of force requirement of a misdemeanor crime of domestic violence under the Lautenberg Amendment.   In re Luna, CSB 42-07, 5 (1/30/09).

When an agency has notice that appellant’s sleeping on duty probably related to oxygen deprivation, it may neither discipline nor disqualify the employee for sleeping without first engaging in an interactive process pursuant to § 5-84 E. In re Muniz, CSA 77-07, 5 (7/21/08).

Federal gun control legislation prohibiting any individual convicted of a misdemeanor crime of domestic violence from possessing a firearm applies to deputy sheriff convicted of assault and battery in municipal court, and therefore sheriff’s department properly disqualified deputy sheriff. In re Ray, CSA 57-06 (12/4/06).

14-22 B: Physical or mental impairment or incapacity 

If an individual is prevented by a legal, physical, mental or emotional impairment from performing the essential functions of his position and the incapacity was discovered after appointment to the position, the agency is required to disqualify the individual. In re Torres, CSA 97-05, 4 (2/21/06). 

If an individual is prevented by a legal, physical, mental or emotional impairment from performing the essential functions of his position and the incapacity was discovered after appointment to the position, the agency is required to disqualify the individual. CSA 97-05, 4 (2/21/06). 


14-22 C: Licensure, certification, and other legal requirements 

Since one of appellant’s essential functions was to maintain a valid driver’s license in order to operate city vehicles and equipment, a suspension of his driving privilege requires the agency to disqualify him if no exception applies. In re Martinez, CSA 83-06, 2 (12/27/06). 

Federal gun control legislation prohibiting an individual convicted of a misdemeanor crime of domestic violence from possessing a firearm applies to deputy sheriff convicted of assault and battery in municipal court, and therefore sheriff’s department properly disqualified deputy sheriff. In re Ray, CSA 57-06 (12/4/06).

14-23: Disqualification procedure 

Notice of disqualification that contained substantially the same advisement of rights and reasons for the action as contained in a pre-disciplinary contemplation notice complies with procedure for disqualification. In re Torres, CSA 97-05, 4 (2/21/06).


14-31: Termination during employment probationary status – basis 

Probationary employee’s right to appeal his termination is limited to a complaint of discrimination, since good cause is not required to support termination of a probationary employee. In re Cooley, CSA 28-06 (6/12/06). 

Notice of disqualification that contained substantially the same advisement of rights and reasons for the action as contained in a pre-disciplinary contemplation notice complies with procedure for disqualification. CSA 97-05, 4 (2/21/06). Probationary employee’s right to appeal his termination is limited to a complaint of discrimination, since good cause is not required to support termination of a probationary employee. CSA 28-06 (6/12/06).

14-40: Layoff 

The abolishment of Appellant’s position and creation of a new position did not contradict Denver City Charter’s merit-based personnel system, which guarantees the right of career service employees not to be displaced by the abolishment of their position and the creation of a new position with substantially the same duties and responsibilities, where lack of supervisory and administrative duties and addition of new responsibilities notably differentiated the new position from Appellant’s abolished position.  In re Sanders, 62-09, 1 (CSB 2/17/11). 

In reviewing whether a newly created position is substantially similar to an abolished one, classification and pay grade may be relevant information, however, the focus should be on the duties and responsibilities performed by incumbents of both positions.  In re Sanders, 62-09, 2 (CSB 2/17/11).   

Appellant’s abolished position did not have substantially the same duties and responsibilities as a newly created position where the new position lacked supervisor and administrative duties of the abolished position and added short and long term strategic planning. In re Sanders, 62-09, 1 (CSB 2/17/11).

Where an agency chooses to use proficiency standards instead of seniority to determine which employees will be subject to a layoff, as permitted in the Career Service Rules, those proficiency standards must be reasonable and fair.  In re Owens-Manis and Pettway, 73-09 A. and 75-09 a., 4-5 (10/21/2010).  

An agency may not abolish an employee’s position and lay him off under the guise of reorganization while transferring his functions to a different agency if the qualifications for and duties of the positions are substantially similar. In re Sanders, CSA 62-09, 8-9 (9/24/10), citing In re Hamilton, CSA 100-09, 107-09, 19 (9/17/10), citing Bardsley v. Colorado Dept. of Public Safety, 870 P.2d 641 (Colo. App. 1994) (add’l cites omitted). 

Some key elements in determining whether a position transferred to a different agency is substantially similar to an abolished position are whether there was a fundamental change to the agency's structure, positions or functions.  In re Sanders, CSA 62-09, 5 (9/24/10).

A layoff may be arbitrary or capricious if a position in one appropriation account is abolished and an identical, or nearly-identical position is recreated in another appropriation account and filled with a different employee.  In re Sanders, CSA 62-09, 5 (9/24/10).

Laid off employee not entitled to bump down to position outside the targeted layoff unit.  In re Sanders, CSA 62-09, 7 (9/24/10)

Appellant’s layoff was not arbitrary or capricious where agency abolished position as part of a reorganization that transferred the functions of his position to a different agency, and the qualifications and duties of the newly created position were substantially different.  In re Sanders, CSA 62-09, 5 (9/24/10), distinguishing In re Hamilton, CSA 100-09, 19 (9/17/10).

Appellant’s layoff was not arbitrary or capricious where a position transferred to another agency was substantially different in duties and pay.  In re Sanders, CSA 62-09, 5 (9/24/10).

Appellant’s layoff was not arbitrary or capricious where the agency abolished position as part of its reorganization, transferring the functions of his position to a different agency, and the chosen candidate scored substantially higher in a blind-scored exam and his qualifications were especially well-suited to the specific needs of the position, while appellant only had some qualifications and experience related to the position.  In re Sanders, CSA 62-09, 6 (9/24/10). 

Agency did not violate executive order requiring it to have a safety professional where agency designated an employee from another agency to perform that function, and executive order did not require an agency's safety professional to be on that agency's payroll.  In re Sanders, CSA 62-09, 7 (9/24/10); E.O. 65, § 5.4.      

Appellant’s layoff was not arbitrary, capricious or contrary to rule or law, where appellant did not establish that the agency (1) failed to use reasonable diligence to determine facts necessary to its decision, (2) failed to give proper consideration to facts relevant to the decision, or (3) based its action on conclusions that reasonable persons considering the facts would not reach.  In re Sanders, CSA 62-09, 7 (9/24/10) citing Lawley v. Department of Higher Educ., 36 P.3d 1239, 1252 (Colo. 2001).         

Appellant failed to establish that his layoff was arbitrary, capricious, or contrary to rule or law, where economic and structural problems were legitimate concerns, and abolishing non-core functions was a reasonable solution to those concerns.  In re Sanders, CSA 62-09, 7 (9/24/10).

Agency used reasonable diligence to determine the need to abolish twelve positions, including appellant’s, when it commissioned a CSA study to develop alternatives and efficiencies, and its decision to abolish non-core functions was reasonable.  In re Sanders, CSA 62-09, 7 (9/24/10).
 
Agency decisions to lay off appellant and eliminate non-core functions for structural and economic reasons were reasonable, and therefore not an abuse of discretion.  In re Sanders, CSA 62-09, 7-8 (9/24/10).

Agency's decision to hire a candidate other than appellant based on objective criteria, including test score, education and experience, was not an abuse of discretion.  In re Sanders, CSA 62-09, 8 (9/24/10).
 
Agency did not abuse its discretion when it decided to absorb its safety functions into one limited position that would make recommendations for city-wide safety needs, a function outside the duties of Appellant’s position.  In re Sanders, CSA 62-09, 7-8 (9/24/10).

Appellant failed to establish that his layoff was arbitrary, capricious, or contrary to rule or law, where the Agency based its decision to abolish twelve positions, including Appellant’s, on conclusions that reasonable persons considering the facts would reach, including agency’s decision to eliminate non-core functions for structural and economic reasons, and its decision to hire a candidate for a limited position that made recommendations for City-wide safety needs was based upon the objective criteria of test score, education, and experience.  In re Sanders, CSA 62-09, 8 (9/24/10) citing Lawley v. Department of Higher Educ., 36 P.3d 1239, 1252 (Colo. 2001).  

Layoffs are determined by an appointing authority’s selection of positions to be abolished by class within an approved layoff unit, followed by approval of the layoff plan by the Career Service Authority. In re Martillaro, CSA 42-06, 3 (11/30/06). 

Agency’s decision not to extend a limited position appointment beyond its stated end date was not a layoff, and therefore was not in violation of Rule 14 of the Career Service Rules. In re Martillaro, CSA 42-06, 3 (11/30/06).

A career status employee originally appointed to a limited position in 2001 whose position was extended annually until she chose demotion to another limited position in July, 2005, was not entitled to layoff protection under § 5-62 5), as the appointment to the limited position from which she was separated occurred after January 16, 2004. In re Martillaro, CSA 42-06, 2 (11/30/06).

Career service rules protect career status employees from separation resulting from the abolishment of their position by the requirement that such separations comply with §§ 14-40 to 14-49. In re Foley, CSA 19-06, 7 (11/10/06).

An agency layoff decision must be based upon factors that would be relevant to a reasonable person fairly and honestly considering the matter, including the governing laws and rules. In re Foley, CSA 19-06, 12 (11/10/06), citing Lawley v. Dept. of Higher Education, 36 P.3d 1239 (Colo. 2001).

Agency’s failure to consider relevant facts, including budget, funding, job analysis, vacancies, and seniority demonstrates layoff decision was arbitrary and capricious and contrary to layoff rules. In re Foley, CSA 19-06, 13 (11/10/06).

14-42: Order of Layoff 

The career service rules provide that lay-offs shall be by positions, not incumbents, and the order of lay-off must be in accordance with the lay-off rules.  In re Hamilton, CSA 100-09, 24 (9/17/10).

Lay-offs occurred by incumbents, not positions, as a result of the agency’s reversal of the order of lay-off and actions in lieu of lay-off.  In re Hamilton, CSA 100-09, 24 (9/17/10).

Agency failed to consider seniority in filling the vacancies created by the transfer of function, as it may have if it had conducted the lay-offs before the actions in lieu of lay-off.  In re Hamilton, CSA 100-09, 24 (9/17/10).

Agency’s reversal of the order of lay-off and actions in lieu of lay-off for reasons that were not supported by the evidence rendered the lay-offs a process of elimination rather than a selection by lay-off seniority groups, in violation of §§ 14-42 d) and 14-44. In re Hamilton, CSA 100-09, 25 (9/17/10).

The career service rules provide that lay-offs shall be by positions, not incumbents, and the order of lay-off must be in accordance with the lay-off rules.  In re Hamilton, CSA 100-09, 24 (9/17/10).

Lay-offs occurred by incumbents, not positions, as a result of the agency’s reversal of the order of lay-off and actions in lieu of lay-off.  In re Hamilton, CSA 100-09, 24 (9/17/10).

Agency failed to consider seniority in filling the vacancies created by the transfer of function, as it may have if it had conducted the lay-offs before the actions in lieu of lay-off.  In re Hamilton, CSA 100-09, 24 (9/17/10).

Agency’s reversal of the order of lay-off and actions in lieu of lay-off for reasons that were not supported by the evidence rendered the lay-offs a process of elimination rather than a selection by lay-off seniority groups, in violation of §§ 14-42 d) and 14-44.  In re Hamilton, CSA 100-09, 25 (9/17/10).

Changes to layoff units must be approved by the Career Service Board based on business functions after a mandatory public hearing. In re Foley, CSA 19-06, 7 (11/10/06).

Changes to layoff units must be approved by the Career Service Board based on business functions after a mandatory public hearing. In re Foley, CSA 19-06, 7 (11/10/06). 

Where appointing authority identified appellant for layoff based on performance reasons, layoff violated § 14-42 d)’s prohibition against basing layoff decision on the incumbents of the position rather than the positions to be abolished. In re Foley, CSA 19-06, 11 (11/10/06).

After his layoff, appellant was not entitled to be selected for a position created in a different appropriation account and layoff unit. In re Hurdelbrink, CSA 109-04, 119-04, 10 (1/5/05). 

14-44: Sequence of Layoffs 

Employees who have served for longer periods are entitled to more protection from lay-off than those with less seniority within the same lay-off unit and classification.  In re Hamilton, CSA 100-09, 15 (9/17/10), citing City Charter § 9.1.1.; CSR Rule 3.

Agency failed to consider seniority in filling the vacancies created by the transfer of function, as it may have if it had conducted the lay-offs before the actions in lieu of lay-off. In re Hamilton, CSA 100-09, 24 (9/17/10).

Agency decision to reverse the order of lay-off and hiring was improper where it was made to avoid the lay-off rules, resulting in the lay-off of an employee with 18 years of seniority and retention of an employee with two years’ seniority.  In re Hamilton, CSA 100-09, 24 (9/17/10).

Agency’s reversal of the order of lay-off and actions in lieu of lay-off for reasons that were not supported by the evidence rendered the lay-offs a process of elimination rather than a selection by lay-off seniority groups, in violation of §§ 14-42 d) and 14-44. In re Hamilton, CSA 100-09, 25 (9/17/10).

Employees who have served for longer periods are entitled to more protection from lay-off than those with less seniority within the same lay-off unit and classification.  In re Hamilton, CSA 100-09, 15 (9/17/10), citing City Charter § 9.1.1.; CSR Rule 3.

Agency failed to consider seniority in filling the vacancies created by the transfer of function, as it may have if it had conducted the lay-offs before the actions in lieu of lay-off.  In re Hamilton, CSA 100-09, 24 (9/17/10).

Agency decision to reverse the order of lay-off and hiring was improper where it was made to avoid the lay-off rules, resulting in the lay-off of an employee with 18 years of seniority and retention of an employee with two years' seniority.  In re Hamilton, CSA 100-09, 24 (9/17/10).

Agency’s reversal of the order of lay-off and actions in lieu of lay-off for reasons that were not supported by the evidence rendered the lay-offs a process of elimination rather than a selection by lay-off seniority groups, in violation of §§ 14-42 d) and 14-44.  In re Hamilton, CSA 100-09, 25 (9/17/10).

14-44 C: Effect of Proficiency 

Career service rules do not require agency to give employees in layoff group prior notice of the tasks to be measured for proficiency rankings, nor prohibit an agency from using data gathered before the layoff decision was made.  In re Owens-Manis and Pettway, CSA 73-09, 12 (3/11/2010). 

Tasks selected to establish proficiency conformed to the layoff rule because the three measured tasks were highly relevant to the important work of the layoff group, they fairly compared the knowledge, skills, abilities and expertise of group members, performance was tracked for a sufficient amount of time, employees were on notice of the tasks being measured, each was given an equal opportunity to perform the measured tasks, and all employees were instructed to complete the highest-weighted task before any other work.  In re Owens-Manis and Pettway, CSA 73-09, 13 (3/11/2010).   

Agency’s decision to measure only the objectively measurable tasks performed by all employees in the classification was reasonable from a business perspective, and the alternatives suggested by appellant were not more reasonable.  In re Owens-Manis and Pettway, CSA 73-09, 13 (3/11/2010).

Appellant failed to prove she was targeted for layoff for filing grievances against her supervisor where the proficiency rankings were based solely on employees’ time reporting records, and the errors included in the rankings were evenly spread among all employees in the layoff group.  In re Owens-Manis and Pettway, CSA 73-09, 13 (3/11/2010).

Eight-factor proficiency test was appropriately tailored to retain the three most proficient employees based solely on the scores and rankings derived from the test.  In re Owens-Manis and Pettway, CSA 73-09, 14 (3/11/2010).

Where layoff decision was intended to be the direct result of accurate calculations from the proficiency test, de novo review requires an analysis of whether the agency implemented that intention by careful consideration of appropriate evidence, and reasonable conclusions flowing from that evidence.  In re Owens-Manis and Pettway, CSA 73-09, 14 (3/11/2010).

Erroneous data used to rank proficiency must be disregarded in determining whether to uphold a layoff using the resulting proficiency rankings.  In re Owens-Manis and Pettway, CSA 73-09, 14 (3/11/2010).

Agency’s failure to carefully calculate performance numbers and derive accurate ranking from those numbers constitutes a failure to use reasonable diligence to produce and consider the most appropriate evidence to support its determination of proficiency.  In re Owens-Manis and Pettway, CSA 73-09, 14 (3/11/2010).

Finding that appellant was not one of the three most proficient employees lacks competent evidence to support it where erroneous data was used to rank proficiency.  In re Owens-Manis and Pettway, CSA 73-09, 14 (3/11/2010). 

14-45: Actions in Lieu of Layoff 

Actions in lieu of lay-off are intended to be determined after a lay-off, as shown by the rule’s repeated use of the phrase “an employee selected to be laid off” to describe those eligible for actions in lieu of lay-off. In re Hamilton, CSA 100-09, 24 (9/17/10).

This rule strictly limits demotion rights to positions in the class series from which the employee was laid off, and requires that the employee must be affected by the lay-off in order to exercise a right to such a demotion.  In re Hamilton, CSA 100-09, 24 (9/17/10).

The rule makes a reasonable distinction between mandatory rights in a limited number of positions, and minimal rights based on any other demotion accepted during a lay-off period.  In re Hamilton, CSA 100-09, 24 (9/17/10).

Where the duties and qualifications of a position eliminated by lay-off and a replacement position are the same, on-the-job experience is a factor that would be considered by a reasonable administrator attempting to fill the replacement position on the bases of merit and ability.  In re Hamilton, CSA 100-09, 21 (9/17/10); City Charter § 9.1.1.  

Agency acted in an arbitrary and capricious manner in transferring the same work to different agency under different classification, without considering the experience, performance or seniority of employees laid off, or the fact that the duties were identical and qualifications nearly identical.  IIn re Hamilton, CSA 100-09, 21 - 22 (9/17/10).  

Where the sole factor used in selecting for demotions in lieu of lay-off was the interview score, and the interview questions and scoring criteria are unknown, the agency’s failure to consider any other factors relevant to merit and ability was arbitrary and capricious.  In re Hamilton, CSA 100-09, 22 (9/17/10).

Where the duties and qualifications of a position are identical, an incumbent career status employee is not required to undergo a second competitive testing process in order to remain in her position. In re Hamilton, CSA 100-09, 23 (9/17/10).

The unvalidated results of a single interview session cannot be deemed to outweigh more directly relevant factors on the issues of merit and ability, including years of experience and performance of the same duties to be performed in the new position.  In re Hamilton, CSA 100-09, 23 (9/17/10).

Agency’s decision to complete actions in lieu of lay-off before the actual lay-off is relevant to the determination of whether the action was arbitrary and capricious where its stated reasons for reversing the order of those actions were not supported by the evidence.  In re Hamilton, CSA 100-09, 23 - 24 (9/17/10).

The lay-off rules distinguish between demotions to a lesser classification within the lay-off group and other demotions.  In re Hamilton, CSA 100-09, 24 (9/17/10).

Agency’s use of competitive hires, transfers, promotions, and demotions in lieu of lay-off to fill vacancies, and its consideration of seniority rights only after selections were completed, failed to consider seniority or retention rights during the selection process itself. In re Hamilton, CSA 100-09, 25 (9/17/10).

The lay-off rules require that lay-offs and certain actions in lieu of lay-offs shall be according to seniority.  In re Hamilton, CSA 100-09, 25 (9/17/10).

Agency’s consideration of salaries but not seniority in granting actions in lieu of lay-off is relevant to determining whether the action was arbitrary and capricious where appellant’s higher salary placed her at a disadvantage as against candidates with less seniority.  In re Hamilton, CSA 100-09, 25 (9/17/10).

The fiscal purpose and results of the lay-off plan are relevant to an evaluation of the reasonableness of the Agency’s actions. In re Hamilton, CSA 100-09, 26 (9/17/10).

Lay-off plan’s failure to implement mayor’s directions to reduce budget and staff in accordance with fiscal purpose of lay-off is relevant to whether lay-off was arbitrary and capricious.  In re Hamilton, CSA 100-09, 26 (9/17/10).

The Agency’s act in contracting out a substantial portion of the unit’s workload further placed in doubt its achievement of savings, one of the stated reasons for the lay-off plan. In re Hamilton, CSA 100-09, 26 (9/17/10).

Agency’s failure to consider money-saving and other suggestions to avoid lay-off was a failure to give candid and honest consideration to relevant evidence in its exercise of discretion. In re Hamilton, CSA 100-09, 27 (9/17/10).

Appellant was not entitled to “bump down” when the agency abolished his position, since bumping rights apply only within the portion of the agency targeted for layoff, and appellant was the only employee within his layoff unit, leaving no positions into which he could bump.  In re Sanders, CSA 62-09, 7 (9/24/10).

Agency's decision to hire a candidate other than appellant based on objective criteria, including test score, education and experience, was not an abuse of discretion.  In re Sanders, CSA 62-09, 8 (9/24/10).
 
Agency did not abuse its discretion when it decided to absorb its safety functions into one limited position that would make recommendations for city-wide safety needs, a function outside the duties of Appellant’s position.  In re Sanders, CSA 62-09, 7-8 (9/24/10).

Appellant failed to establish that his layoff was arbitrary, capricious, or contrary to rule or law, where the Agency based its decision to abolish twelve positions, including Appellant’s, on conclusions that reasonable persons considering the facts would reach, including agency’s decision to eliminate non-core functions for structural and economic reasons, and its decision to hire a candidate for a limited position that made recommendations for City-wide safety needs was based upon the objective criteria of test score, education, and experience.  In re Sanders, CSA 62-09, 8 (9/24/10) citing Lawley v. Department of Higher Educ., 36 P.3d 1239, 1252 (Colo. 2001).     

Actions in lieu of lay-off are intended to be determined after a lay-off, as shown by the rule’s repeated use of the phrase “an employee selected to be laid off” to describe those eligible for actions in lieu of lay-off.  In re Hamilton, CSA 100-09, 24 (9/17/10).

This rule strictly limits demotion rights to positions in the class series from which the employee was laid off, and requires that the employee must be affected by the lay-off in order to exercise a right to such a demotion.  In re Hamilton, CSA 100-09, 24 (9/17/10).

The rule makes a reasonable distinction between mandatory rights in a limited number of positions, and minimal rights based on any other demotion accepted during a lay-off period.  In re Hamilton, CSA 100-09, 24 (9/17/10).

Where the duties and qualifications of a position eliminated by lay-off and a replacement position are the same, on-the-job experience is a factor that would be considered by a reasonable administrator attempting to fill the replacement position on the bases of merit and ability.  In re Hamilton, CSA 100-09, 21 (9/17/10); City Charter § 9.1.1. 

Agency acted in an arbitrary and capricious manner in transferring the same work of one position to a replacement position in a different agency under different classification, without considering the experience, performance or seniority of employees laid off, or the fact that the duties were identical and qualifications nearly identical.  In re Hamilton, CSA 100-09, 21 - 22 (9/17/10). 

Where the sole factor used in selecting for demotions in lieu of lay-off was the interview score, and the interview questions and scoring criteria are unknown, the agency’s failure to consider any other factors relevant to merit and ability was arbitrary and capricious.  In re Hamilton, CSA 100-09, 22 (9/17/10).

Where the duties and qualifications of a position are identical, an incumbent career status employee is not required to undergo a second competitive testing process in order to remain in her position.  In re Hamilton, CSA 100-09, 23 (9/17/10).

The unvalidated results of a single interview session cannot be deemed to outweigh more directly relevant factors on the issues of merit and ability, including years of experience and performance of the same duties to be performed in the new position.  In re Hamilton, CSA 100-09, 23 (9/17/10).

Agency’s decision to complete actions in lieu of lay-off before the actual lay-off is relevant to the determination of whether the action was arbitrary and capricious where its stated reasons for reversing the order of those actions were not supported by the evidence.  In re Hamilton, CSA 100-09, 23 - 24 (9/17/10).

The lay-off rules distinguish between demotions to a lesser classification within the lay-off group and other demotions.  In re Hamilton, CSA 100-09, 24 (9/17/10).

Agency’s use of competitive hires, transfers, promotions, and demotions in lieu of lay-off to fill vacancies, and its consideration of seniority rights only after selections were completed, failed to consider seniority or retention rights during the selection process itself.  In re Hamilton, CSA 100-09, 25 (9/17/10).

The lay-off rules require that lay-offs and certain actions in lieu of lay-offs shall be according to seniority.  In re Hamilton, CSA 100-09, 25 (9/17/10).

Agency’s consideration of salaries but not seniority in granting actions in lieu of lay-off is relevant to determining whether the action was arbitrary and capricious where appellant’s higher salary placed her at a disadvantage as against candidates with less seniority.  In re Hamilton, CSA 100-09, 25 (9/17/10).

The fiscal purpose and results of the lay-off plan are relevant to an evaluation of the reasonableness of the Agency’s actions.  In re Hamilton, CSA 100-09, 26 (9/17/10).

Lay-off plan’s failure to implement mayor’s directions to reduce budget and staff in accordance with fiscal purpose of lay-off is relevant to whether lay-off was arbitrary and capricious.  In re Hamilton, CSA 100-09, 26 (9/17/10).

Agency’s act in contracting out a substantial portion of the unit’s workload further placed in doubt its achievement of savings, one of the stated reasons for the lay-off plan.  In re Hamilton, CSA 100-09, 26 (9/17/10).

Agency’s failure to consider money-saving and other suggestions to avoid lay-off was a failure to give candid and honest consideration to relevant evidence in its exercise of discretion.  In re Hamilton, CSA 100-09, 27 (9/17/10).

Language in appeal documents citing agency’s failure to find equivalent employment in lieu of layoff clearly challenged the layoff as improper under  this rule.   In re Cho, CSA 01-09, 2 (Order 1/21/09).

Appellant was not entitled to a reassignment or transfer appointment under § 14-45 a), which gives transfer rights only within the layoff unit, when there were no like positions within the layoff unit. In re Jackson, CSA 103-04, 4 (6/13/05).

A supervisor’s temporary assignment of higher level duties to a demoted employee during the transition after a layoff does not require higher level pay. In re Jackson, CSA 103-04, 4 (6/13/05).

Career Service Rules do not entitle an employee to a specific position or assignment, but entitle an employee only to an existing position in the same layoff unit when the conditions set forth in § 14-45 b) are met. In re Jackson, CSA 103-04, 5 (6/13/05).

Hearing officer has jurisdiction over the appeal of an action in lieu of layoff pursuant to §19-10 b). In re Romberger, CSA 89-04, 6 (3/2/05).

Appellant has the burden to prove an action in lieu of layoff was arbitrary, capricious, or contrary to rule or law. In re Romberger, CSA 89-04, 6 (3/2/05), citing Velasquez v. Dept. of Higher Education, 93 P.2d 540 (Colo. App. 2003.); Lawley v. Dept. of Higher Education, 36 P.3d 1239 (Colo. 2001).

“Knowledge, skills, ability and expertise” are the characteristics or qualifications that allow an employee to succeed in performing a job’s essential duties. In re Romberger, CSA 89-04, 6 (3/2/05).

Where 80% of appellant’s position is social work, and the job requires a social work degree, social work is an essential duty of the position, and a social work degree is part of the knowledge, skills, ability and expertise needed to perform the essential duties of the job. In re Romberger, CSA 89-04, 7-8 (3/2/05).

Where social work is an essential duty of demotional appointment, person appointed must possess the knowledge, skills, ability and expertise needed to perform that function. In re Romberger, CSA 89-04, 7-8 (3/2/05).

A supervisor’s power to assign duties does not include the power to waive the minimum qualifications established by the CSA. In re Romberger, CSA 89-04, 9 (3/2/05), citing In re Bourgeron, CSA 92-03, 102-03, 113-03 (3/8/04), upheld in Bourgeron v. City and County of Denver, 03 CV 4712 (order dated 2/4/05).

Agency’s failure to consider the essential functions and qualifications of a position before granting a demotional appointment was arbitrary and capricious where social work was an essential function of the appointment, the laid-off employee lacked the educational prerequisites of the appointed position, and appellant who was bumped from the position continued to perform all of the duties of his former position. In re Romberger, CSA 89-04, 9 (3/2/05).

Agency neglected to use reasonable diligence to determine whether laid-off employee possessed the qualifications to perform the essential duties of the demotional appointment, gave undue weight to its own interpretation of the nature of the position, and disregarded more objective evidence, thereby exercising its discretion in an arbitrary and capricious manner by granting the demotional appointment to an unqualified laid-off employee. In re Romberger, CSA 89-04, 11-12 (3/2/05), citing Lawley v. Dept. of Higher Education, 36 P.3d 1239, 1252 (Colo. 2001).

Agency acted arbitrarily in granting a demotional appointment to an unqualified laid-off employee, and thereafter requiring the displaced employee to perform his former duties at reduced pay. In re Romberger, CSA 89-04, 10 (3/2/05).

Demotion in lieu of layoff is involuntary, therefore pay is governed by rule on pay for involuntary demotion. In re Rodriguez, CSA 106-04, 4 - 5 (3/2/05) (decided under § 9-63).

The subjects of job abolishment, demotional appointments and layoff are properly before the hearing officer pursuant to Rules 4 and 14. In re Hurdelbrink, CSA 109-04, 119-04, 4 (1/5/05).

Appellant did not prove agency intended to harm him by offering to demote him into a position that was later abolished, since appellant would have had bumping rights after the demotional position was abolished if he had accepted the demotion. In re Hurdelbrink, CSA 109-04, 119-04, 12 (1/5/05). 

14-46 a): Layoff planning

Lay-off planning was the responsibility of the appointing authority of agency that transferred the work of one of its divisions to another agency.  Planning included actions in lieu of lay-off where fewer employees would be needed in the receiving agency. In re Hamilton, CSA 100-09, 14 (9/17/10).

Both the giving and receiving agencies in a division transfer were part of the lay-off and transition planning process.  In re Hamilton, CSA 100-09, 14 (9/17/10).

Agency neglected to diligently procure evidence it was authorized to consider in exercising its discretion to manage its workforce, including experience and performance factors. In re Hamilton, CSA 100-09, 27 (9/17/10).

Agency failed to consider evidence on which it was authorized to act by failing to consider the identical nature of the jobs and alternate cost-saving proposals.  In re Hamilton, CSA 100-09, 27 (9/17/10).

Agency was arbitrary and capricious when its transition plan was based on a contractor’s recommendation and deviated from the lay-off rules, and the plan added personnel and contractor costs, contrary to cost-saving reasons behind transition. In re Hamilton, CSA 100-09, 27 (9/17/10).

Agency’s consideration of interview scores to the exclusion of more relevant factors during actions in lieu of lay-off demonstrates that it based its conclusions on factors reasonable persons who are fairly considering the evidence could not reach. In re Hamilton, CSA 100-09, 27 (9/17/10).

Lay-off planning was the responsibility of appointing authority of agency that transferred its division's work to another agency.  Planning included actions in lieu of lay-off where fewer employees would be needed in the receiving agency.  In re Hamilton, CSA 100-09, 14 (9/17/10).

Both the giving and receiving agencies in a division transfer were part of the lay-off and transition planning process.  In re Hamilton, CSA 100-09, 14 (9/17/10).

Agency neglected to diligently procure evidence it was authorized to consider in exercising its discretion to manage its workforce, including experience and performance factors.  In re Hamilton, CSA 100-09, 27 (9/17/10).

Agency failed to consider evidence on which it was authorized to act by failing to consider the identical nature of the jobs and alternate cost-saving proposals.  In re Hamilton, CSA 100-09, 27 (9/17/10).

Agency was arbitrary and capricious when its transition plan was based on a contractor’s recommendation and deviated from the lay-off rules, and the plan added personnel and contractor costs, contrary to cost-saving reasons behind transition.  In re Hamilton, CSA 100-09, 27 (9/17/10).

Agency’s consideration of interview scores to the exclusion of more relevant factors during actions in lieu of lay-off demonstrates that it based its actions on conclusions reasonable persons, who are fairly considering the evidence, could not reach.  In re Hamilton, CSA 100-09, 27 (9/17/10). 

Agency failed to perform layoff planning mandated by this rule where layoff plan was a form letter that was not reviewed by the decision-maker, stated reason for layoff was incorrect, and agency failed to evaluate position or consider budgetary factors to determine the need for a layoff or the positions to be affected. In re Foley, CSA 19-06, 11 (11/10/06).

Agency’s desire for future budgetary flexibility, without more, does not justify the abolishment of a career service position, or layoff protection would be a nullity. In re Foley, CSA 19-06, 9 (11/10/06).

Where agency reassigned the duties of appellant’s position, postponed an audit of the position, attempted to demote appellant, and failed to do performance evaluations for two years, agency’s stated reason for layoff, that there were no duties assigned to that position, does not support the layoff decision. In re Foley, CSA 19-06, 10 (11/10/06).

Where real reason for layoff was agency’s desire to terminate appellant’s employment based on concerns with her performance, layoff failed to comply with career service rules. In re Foley, CSA 19-06, 10 (11/10/06).

Agency’s departure from established personnel policies is relevant to whether layoff was arbitrary and capricious or contrary to rule or law. In re Foley, CSA 19-06, 10-11 (11/10/06).

14-46 c): Thirty-day notice 

An employee approved for layoff is entitled to thirty days’ notice before the effective date of a layoff. In re Martillaro, CSA 42-06, 3 (11/30/06).


14-50 Resignation

            C. Job abandonment

Appellant’s failure to attend her pre-disciplinary meeting is not job abandonment.  In re Robinson, CSA 03-13,10-11 (6/18/13).

14-51: Voluntary resignation 

Hearing officer's finding that resignation was involuntary was reversed where appellant told his supervisor and director "I quit" after being warned they would accept any future threats to quit, and words unambiguously expressed a clear intent to resign.  In re Smith, CSA 14-10A (11/14/10), citing In re Augustine, CSB 05-09 (9/30/09). 

Fact that agency did not accept employee's previous resignation does not change the meaning of the words used, or transmogrify the agency's acceptance of the current resignation into a "gotcha" dismissal.  In re Smith, CSA 14-10A (11/14/10). 

Since resignations are presumed to be voluntary, burden of proof resides with employee to prove his resignation was not voluntary.  In re Smith, CSA 14-10, 3, (6/4/10), rev'd on other grounds, (CSB 11/14/10).

The standard by which an employee must prove his resignation was involuntary is by a preponderance of the evidence.  In re Smith, CSA 14-10, 3 (6/4/10), rev'd on other grounds, (CSB11/14/10).

Resignation tendered under emotional distress should not be held to be irrevocable or relieved only by the consent of the agency.   In re Smith, CSA 14-10, 5 (6/4/10), rev'd (CSB11/14/10).

Where an employee’s actions surrounding his alleged resignation are susceptible to different interpretations as to his intent, the agency may not conclude the employee resigned voluntarily.  In re Smith, CSA 14-10 (6/4/10), citing In re Augustine, CSB 05-09 (9/30/09); rev'd (CSB 11/14/10).

Where appellant had a history of uttering “I quit,” and the agency had a history of overlooking the utterance by allowing him to recant, then the agency should have known there was reason to doubt Smith’s intent.  In re Smith, CSA 14-10, 4 (6/4/10), rev'd (CSB 11/14/10).

If resignation is involuntary, agency improperly dismissed appellant and dismissal must be reversed.  In re Smith, CSA 14-10, 4 (6/4/10), rev'd on other grounds, (CSB 11/4/10).

Where appellant was dismissed for job abandonment and later resigned, appellant must first prove his resignation was not voluntary, and only then does the burden shift to the agency to prove it properly  dismissed appellant for job abandonment. In re Qualls, CSA 71-08, 3-4 (12/4/08).  

Appellant bears the burden to prove his agency unduly influenced his resignation; more specifically, did the agency engage in duress, coercion or deceit to induce appellant's resignation?  In re Qualls, CSA 71-08, 3 (12/4/08), citing Essman v. Dept. of Transportation, 71 MSPR 107, 109 (1996).

Manager's order that appellant must turn in his city bus pass and resign in person at work did not affect the voluntariness of appellant's resignation.  In re Qualls, CSA 71-08, 3-5 (12/4/08).  

Friend and co-worker's advice to resign rather than be fired did not render appellant's resignation involuntary.  In re Qualls, CSA 71-08, 3-5 (12/4/08).

Where appellant's claims - that he was badgered or forced into resigning, and that he did not wish to resign - are not more credible than the agency's denials, appellant failed to meet his burden to prove the agency unduly influenced his resignation.   In re Qualls, CSA 71-08, 3-5 (12/4/08).

Since an agency is not obligated to inform an employee of his right to counsel or to hearing before the employee resigns, the agency cannot be said to have unduly the employee's decision to resign for those reasons.  In re Qualls, CSA 71-08, 5 (12/4/08).

Where appellant was unaware the agency had sent him a dismissal letter before he resigned, appellant did not prove he was thereby unduly influenced to resign.  In re Qualls, CSA 71-08, 5 (12/4/08).

Where appellant failed to prove that the agency unduly influenced his resignation before he became aware of agency's dismissal letter, the agency's dismissal action became moot.  In re Qualls, CSA 71-08, 5 (12/4/08).

Section 19-10 A. provides no basis for a direct appeal of the determination of the amount of accrued vacation leave and compensatory time under §14-51 b). In re Lovin, CSA 27-06, 1 (5/18/06).

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