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Appeals (See also Rule 19)

Complaints of discrimination, harassment or retaliation may not be brought though a grievance under CSR 18-10 C.2.  In re Gallo, CSA 63-09, 1 (CSB 3/17/11).

Although appellant did not use the correct procedure for raising a discrimination complaint, her grievance put the agency on notice of her complaint of sexual harassment under CSR 15. In re Gallo, CSA 63-09, 1 (CSB 3/17/11).

Under 19-10 A.2.a, employee may appeal agency's failure to address a grievance where grievance operated as a formal complaint of sexual/racial harassment under CSR 15.  In re GalloCSA 63-09, 3 (CSB 3/17/11).

Hearing office records are open to the public unless there is a legitimate reason for non-disclosure.  In re Norris, CSA 86-09 (Order 1/8/10).  See § 19-54.

Abandonment

Appeal is abandoned when appellant failed to file a pre-hearing statement after two extensions of time to do so. In re Gonzales, CSA 64-08, 2 (10/10/08).  

Appellant’s failure to file a pre-hearing statement was an abandonment of his appeal.  In re Lucero, CSA 54-08 (8-21-08).

An appeal that is withdrawn will be dismissed with prejudice. In re Long, CSA 78-07 (6/10/08).

Where appellant failed to file a status report as required by hearing officer’s order, failed to request a continuance or extension of time in which to do so, and failed to keep the hearing office informed of his current contact information, he abandoned his appeal.  In re Fernandez, CSA 17-08 (5/19/08). 

Where appellant responded only to some of the issues raised in a show cause order, unaddressed issues are dismissed as abandoned. In re Kemp, CSA 07-08 (2/19/08).

Appeal was dismissed as abandoned when appellant failed to file a prehearing statement, request an extension of time to do so, or respond to a telephone message left by hearing office staff. In re Trujillo, CSA 23-06 (5/16/06).

Appeal was dismissed as abandoned when appellant failed to respond to show cause order or file a request for extension of time to do so. In re Ursone, CSA 12-06 (3/24/06).

Appeal was dismissed as abandoned when appellant failed to appear at the scheduled hearing, after a telephoned request for a continuance eight minutes before hearing was denied for lack of good cause, and as prejudicial to the agency. In re Mondragon, CSA 121-05 (1/19/06).

 Dismissal

While an employee may grieve any work review (PEPR) rating, only a “failing” rating may be directly appealed to the Hearing Office. In re Muhammad, CSA 06-11 (Order 2/8/11), citing  CSR 19-10(b)(3); CSR 18-40(E)(1). 

If the grievance of a PEPR rating is denied, appellant must establish the rating negatively affected pay, benefits or status in order for an appeal to stand.  In re Muhammad, CSA 06-11 (Order 2/8/11),

No aspect of the PEPR program, other than a performance rating, may be grieved or appealed.  In re Muhammad, CSA 06-11 (Order 2/8/11) citing CSR 13-50 C.

Hearing Office lacks jurisdiction to consider appeal from denial of grievance of “successful” PEPR rating where appellant did not allege his pay, benefits or status were affected. In re Muhammad, CSA 06-11 (Order 2/8/11).

An employee must have Career Service status to invoke the jurisdiction of the hearing office except on grounds of discrimination or whistleblower violation.  In re Patino, CSA 59-10, 1 (Order 8/20/10).

Only evaluations with an overall rating of "failing" may be appealed.  In re Zacker, 44-10, 1 (Order 7/15/10); citing CSR § 19-10 A.2.c. (as amended Jan. 1, 2010).    

Retaliation appeal must be dismissed where appellant failed to file a complaint of retaliation prior to filing an appeal, as required by CSR § 19-10 A.2.a.  In re Rems, 31-10, 2 (Order 5/12/10). 

Appeal alleging retaliation and whistleblower claims must be dismissed when only the pre-disciplinary letter was included, and appellant failed to allege that she reported official misconduct to any official.  In re Thomas, CSA 13-10 (Order 3/15/10). 

Where documents outside the pleadings demonstrate there is no genuine issue of material fact supporting a claim, summary judgment is appropriate.  In re Abeyta, CSA 110-09, 2 (Order 2/9/10).

Party opposing a motion for summary judgment may not rest upon mere allegations or denials in his pleadings, but must set forth by affidavit or otherwise specific facts showing there is a genuine issue for trial.  In re Abeyta, CSA 110-09, 2 (Order 2/9/10), citing C.R.C.P. 56(e).  

Where appellant failed to present any evidence supporting his grievance appeal that he was entitled to be awarded his bid for the original graveyard shift based on seniority or otherwise, summary judgment must be granted for the agency.  In re Abeyta, CSA 110-09, 2 (Order 2/9/10).

Where appellant failed to show that the reasons given by the agency for elimination of the shift were a pretext for retaliation and not the real reasons for the action, summary judgment must be granted on the claim of retaliation.  In re Abeyta, CSA 110-09, 2-3 (Order 2/9/10), citing Gates v. Caterpillar, Inc., 513 F.3d 680 (7th Cir. 2008).

In a motion to dismiss, appellant bears the burden to prove subject matter jurisdiction.  In re Anderson, CSA 102-09 (Order 1/8/10).

Dismissal is inappropriate where a fair reading of an appeal makes the basis for jurisdiction apparent.  In re Anderson, CSA 102-09, 1 (Order 1/8/10), citing In re Bane, CSA 82-09, 2 (Order 10/26/09); In re Williams, CSA 53-08 (Order 8/18/08).   

Where matters outside the pleadings are presented by a motion to dismiss, the motion is treated as a motion for summary judgment, presenting the issue of whether there are genuine issues of material fact requiring a trial.  In re Anderson, CSA 102-09, 2 (Order 1/8/10), citing C.R.Civ.P. Rules 12(c); 56.

Grievance appeal is not subject to dismissal as untimely where parties present conflicting facts as to when appellant should be charged with notice of the facts which form the basis of the appeal.  In re Anderson, CSA 102-09, 2 (Order 1/8/10).

Whether person who took action was a supervisor/manager whose actions could be grieved is a factual issue which prevents the granting of summary judgment.  In re Anderson, CSA 102-09, 2 (Order 1/8/10), citing CSR § 18-10 C.

Use of a complaint form instead of a grievance form does not justify dismissal of appeal where the form submitted gave the agency notice of the issue raised and the agency treated the issue as an appealable grievance. In re Anderson, CSA 102-09 (Order 1/8/10).

Where appellants state a claim for relief under the jurisdictional rules, appeal is not subject to dismissal for lack of subject matter jurisdiction.  In re Vasquez and Lewis, CSA 08-09, 09-09, 2-3 (5/20/09).

Appeal is not subject to dismissal for lack of subject matter jurisdiction where grievance appeal alleges calculation of merit increases violated § 13-60 B and negatively impacted pay. § 19-10 A.2.b.i.   In re Vasquez and Lewis, CSA 08-09, 09-09, 2 (5/20/09).

Appellant failed to establish jurisdiction where he did not submit a copy of a grievance or a departmental denial of any such grievance.   In re Morgan, CSA 63-08, 17 (4/6/09). 

Appellant bears the burden of demonstrating subject matter jurisdiction in response to a motion to dismiss appeal.  In re Vasquez and Lewis, CSA 08-09, 09-09 (Order 3/11/09).

To survive a motion to dismiss, appellant needs only to raise a colorable claim under CSR 19.   In re Vasquez and Lewis, CSA 08-09, 09-09 (Order 3/11/09).

Where appellants challenged agency's interpretation of merit date rule, CSR 13-F, and alleged their merit increases were negatively impacted by agency's interpretation, appellants successfully established jurisdiction, under CSR 19 A., in opposition to agency's motion to dismiss.  In re Vasquez and Lewis, CSA 08-09, 09-09 (Order 3/11/09).

Layoff appeal was dismissed after withdrawal of prior layoff appeal where both had identical parties and causes of action challenging the same layoff under Rule 14.   In re Cho, CSA 01-09, 2 (Order 1/21/09).

The doctrine of claim preclusion, also known as res judicata, prevents a party from relitigating a legal claim that was or could have been the subject of a previously issued final judgment.   In re Cho, CSA 01-09, 2 (Order 1/21/09) citing Satsky v Paramount Communications, 7 F.3d 1464, 1467 (10th Cir. 1993).

Res judicata, or claim preclusion, requires proof of three elements: 1) a final judgment on the merits in an earlier action, 2) identity of parties, and 3) identity of the causes of action in both suits.   In re Cho, CSA 01-09, 2 (Order 1/21/09), citing Wilkes v. Wyo. Dept. of Employment Div of Labor Standards, 314 F.3d 501, 504 (10th Cir. 2003).

The doctrine of claim preclusion bars later actions based on the same cause of action.   In re Cho, CSA 01-09, 3 (Order 1/21/09).

By voluntarily withdrawing his first appeal, appellant also waived his right to challenge the same agency action subsequently under a different legal theory.   In re Cho, CSA  01-09, 3 (Order 1/21/09).

Appeal is dismissed with prejudice where appellant's written statement, "I do not want to appeal my layoff", affirmed by his attorney, indicates a voluntary decision with advice of counsel to withdraw the appeal based on a lack of interest in pursuing a hearing on the merits.   In re Cho, CSA 01-09 (Order 1/21/09).

Dismissal with prejudice based on appellant's voluntary withdrawal of the appeal, confirmed by his attorney, was a final judgment on the merits where neither appellant nor his attorney moved for relief from the dismissal.   In re Cho, CSA 01-09 (Order 1/21/09).

November 2008 notice of layoff that erroneously gave February 28, 2008 as the effective date of layoff did not render the layoff appeal premature and so nullify the appeal's dismissal where appellant's motion to withdraw did not raise prematurity as grounds for the motion, and subsequent filings made clear that he was not misled by the notice of layoff's mistaken substitution of 2008 for 2009.   In re Cho, CSA 01-09, 2 (Order 1/21/09).

Appellant's second appeal of a layoff does not raise a separately appealable action by claiming that the layoff violated a different part of the same rule allegedly violated in the withdrawn first appeal where appellant did not claim he became aware of the grounds for the first claim after he moved for its dismissal, or that the facts supporting that claim were concealed from him.   In re Cho, CSA 01-09, 2 (Order 1/21/09).

By voluntarily withdrawing layoff appeal, appellant also waived his right to challenge the layoff under a different legal theory that could have been made part of the original appeal.   CSR § 19-10 A.   In re Cho, CSA 01-09, 3 (Order 1/21/09).

By voluntarily withdrawing a layoff appeal, appellant waived his right to bring claims of discrimination that could have been brought as part of the direct appeal of his layoff.   In re Cho, CSA 01-09, 3 (Order 1/21/09).      

Appellant need not file an internal complaint of discrimination before appealing a layoff on the basis of discrimination.   In re Cho, CSA 01-09, 3 (Order 1/21/09); CSR § 19-10 A           

Dismissal based on settlement must be supported by a finding that decision to settle is a voluntary  one.  In re Schultz, CSA 70-08 (Order 12/22/08).

Where appellant promptly filed a statement that that he no longer wished to accept the agency's  settlement offer, there could be no finding that settlement was voluntary, and therefore dismissal  was inappropriate.  In re Schultz, CSA 70-08 (Order 12/22/08). 

Appeal was dismissed based on finding that appellant's resignation was voluntary.  In re Qualls, CSA  71-08 (12/5/08).

Appeal of terminated probationary employee who failed to identify the protected status alleged to be the basis of the discrimination and harassment claims must be dismissed.  In re Mora, CSA 125-08 (11/28/08).

Appeal of terminated probationary employee who failed to identify the protected activity alleged to be the basis of retaliation claim must be dismissed.  In re Mora, CSA 125-08 (11/28/08).

Appellant’s act of scheduling a meeting with management to discuss his situation does not assert a protected activity as required to assert a retaliation claim.  In re Mora, CSA 125-08 (11/28/08).

Motion to dismiss was denied where termination was appealable under § 19-10, and questions of  fact were raised by discrimination claim.  In re Gonzales, CSA 64-08, 2 (10/10/08).

Allegations made in an appeal must be assumed as true for purposes of motion to dismiss.  In re  Gonzales, CSA 64-08, 2 (10/10/08), citing Strout Realty, Inc. v. Snead, 530 P.2d 969 (Colo. App.  1975).

For purposes of a motion to dismiss, allegations made in an appeal which raise questions of fact are assumed to be true. In re Gonzales, CSA 64-08, 2 (10/10/08), citing  Strout Realty, Inc. v Snead, 530 P2d. 969 (Colo. App. 1975).

Agency is not entitled to dismissal under C.R.C.P 12 b. where it failed to produce pre-hearing affidavits or testimony that established the absence of genuine issues of material fact raised by appeal. In re Gonzales, CSA 64-08, 2 (10/10/08) citing C.R.C.P. 56.

A hearing officer is not bound by appellant's statement of remedies on the appeal form, but must  determine by an examination of the appeal documents whether there is an appropriate remedy  within the jurisdiction provided by the rules if the agency action is overturned.  In re Williams, CSA  53-08 (Order 8/18/08).

When appellant later clarified her intent to appeal suspension, appeal was not subject to dismissal  based on appeal form's statement challenging her transfer and past denials of pay. In re Williams,  CSA 53-08 (Order 8/18/08).

Appeal of discrimination claim under 19-10 A.2 is premature where appellant did not file a  formal  complaint or grievance alleging discrimination.  In re Williams, CSA 53-08 (Order 8/18/08), affirmed CSB 5/14/09.

Statements in the appeal must be viewed in the light most favorable to the appellant, all appellant’s assertions of material facts must be accepted as true, and the motion to dismiss must be denied unless it appears beyond doubt that appellant cannot prove that the acts, as he alleges them, would entitle him to relief.  In re Maes, CSA 36-08 (6/17/08), citing In re Van Dyck, CSA 143-05 (Order 2/16/06).

Where grievance appeal requests as relief the granting of a job interview, it does not affect pay, benefits, or status, and therefore appeal does not state a claim that would entitle appellant to relief.  In re Maes, CSA 36-08 (6/17/08). 

Dismissal of disqualification appeal alleging disability discrimination was appropriate given the undisputed facts established at the  pre-hearing conference that appellant would accept only reassignment to another supervisor as a reasonable accommodation, where the agency had no duty to accommodate a restriction of not working under her assigned supervisor. In re Felix, CSA 82-07, 3 (CSB 6/5/08).  

Since agency is not required to place appellant’s name on reinstatement list until after the date of her layoff, her claim that the agency failed to do so prior to layoff must be dismissed without prejudice as premature.  In re Frazier, CSA 24-08, 3 (4/30/08).

In an agency motion to dismiss, statements in the appeal must be viewed in the light most favorable to the appellant, all appellant's assertions of material facts must be accepted as true, and the motion to dismiss must be denied unless it appears beyond doubt that the appellant cannot prove that the facts as she alleges them would entitle her to relief.  In re Frazier, CSA 24-08 (4/30/08), citing In re Van Dyck, CSA 143-05, 1(2/16/06); Dorman v Petrol Aspen, Inc., 914 P.2d 909, 911 (Colo. 1996). 

Where hearing office jurisdiction over PEPR rating was negated by agency’s oral change of rating from needs improvement to satisfactory, dismissal is without prejudice to the right to refile if change is not confirmed in writing.  In re Martin, CSA 15-08 (4/17/08).   

Appeal of a grievance is premature if filed before the agency’s response to the grievance is due. In re Kemp, CSA 07-08, 1 (Order 2/19/08).

Appeal was dismissed without prejudice where appellant failed to comply with multiple discovery orders despite having access to the relevant documents requested, and failed to appear at the hearings set on compliance with discovery and on the merits of the appeal. In re Bradley, CSA 60-06, 2 (Order 12/7/06).

In an agency motion to dismiss prior to hearing, statements in the appeal must be viewed in the light most favorable to the appellant, all appellant’s assertions of material facts must be accepted as true, and the motion to dismiss must be denied unless it appears beyond doubt that the appellant cannot prove that the facts as alleged would entitle him to relief. In re Boden, CSA 86-06 (Order 11/22/06), citing Dorman v. Petrol Aspen, Inc., 914 P.2d 909, 911 (Colo. 1996); In re Martinez, CSA 176-03 (6/28/04).

Appeal will not be dismissed where appellant’s claim states facts illustrating disparate treatment because of membership in a protected group. In re Boden, CSA 86-06 (Order 11/22/06),citing In re Benoit, CSA 123-02 (9/18/02); In re Douglas, CSA 317-01 (4/3/02).

Agency motion to dismiss appellant’s sex-discrimination appeal must be denied where agency claim stated esprit de corps represented rational basis for distinction, since it was unknown if the agency’s esprit de corps could be materially affected if its male members were permitted to wear earrings. Appellant should be entitled to present evidence that esprit de corps would not be affected. In re Boden, CSA 86-06 (Order 11/22/06)

An on call employee does not have career status and therefore cannot invoke the jurisdiction of the hearing office in an appeal except on grounds of discrimination. In re Escalera, CSA 54-06 (8/14/06); §§ 5-64, 5-42

Appeal was dismissed where it was filed outside the15-day deadline imposed by § 19-20 A.1 and appellant offered no good cause for the untimely filing, such as failure to receive notice of the action being appealed or being misinformed about deadlines by someone in a position of authority. In re Apodaca, CSA 40-06 (7/28/06).

Dismissal of appeal challenging amount of accrued vacation pay was not denial of due process, as limited jurisdiction of hearing office covers only defined acts of appointing authorities.In re Lovin, CSA 27-06, 1-2 (5/18/06).

Where hearing office clearly has no jurisdiction under the Career Service Rules, argument that appellant would be denied due process if hearing office does not exercise jurisdiction over his appeal is rejected. In re Lovin, CSA 27-06, 2 (5/18/06).

Neither oral requests for clarification of reprimand nor grievance alleging that supervisor’s behavior was unacceptable is an appealable formal complaint of discriminatory harassment. In re Lewis, CSA 22-06, 2 (5/2/06).

Summary judgment was granted on retaliation claim for lack of evidence that supervisor’s comments constituted an adverse employment action or were caused by appellant’s past grievances, both necessary elements to support the claim. In re Crenshaw, CSA 18-06, 4 (4/6/06).

When matters outside the pleadings have been presented and considered in the resolution of a motion to dismiss, the motion is treated as one for summary judgment pursuant to C.R.C.P. Rule 12(b). In re Crenshaw, CSA 18-06, 2 (4/6/06).

On summary judgment motion, the evidence is viewed in the light most favorable to the non-moving party, and all reasonable inferences are drawn therefrom. In re Crenshaw, CSA 18-06, 2 (4/6/06), citing Bryant v. Farmers Ins. Exch., 432 F.3d 1114 (10th Cir. 2005).

The issue on summary judgment is whether, taking the allegations made in the appeal as true, appellant has presented a genuine issue for hearing under C.R.C.P. Rule 56. In re Crenshaw,CSA 18-06, 2 (4/6/06).

When motion to dismiss and response include matters outside the pleadings, the motion will be treated as a motion for summary judgment by analogy to C.R.C.P. Rule 56. In re Johnson, CSA 135-05, 2 (3/10/06).

Employee who was promoted at salary step 1 after the withdrawal of an offer of pay at step 7 suffered no harm under any career service rule, ordinance or charter provision, and therefore appeal based on withdrawal of the offer was dismissed. In re Mallard, CSA 129-05, 3 (2/23/06) (decided under former § 9-61).

Grievance that failed to give agency meaningful notice and an opportunity to respond to retaliation complaint is not ripe for appeal. In re Mallard, CSA 129-05, 3 (2/23/06); §15-100.

Pro se appeal need not assert each claim with precision, as long as it states a claim for which relief may be granted. In re Van Dyck, CSA 143-05, 1 (2/16/06).

Pro se appeal which fails to assert a claim under the proper career service rule will not be dismissed unless it fails to state a claim for which relief may be granted. In re Van Dyck, CSA 143-05, 1 (2/16/06).

Agency may file a motion for more particular statement or may request discovery if an appeal’s statement of the claim is not sufficient to allow the agency to prepare a response. In re Van Dyck, CSA 143-05, 1 (2/16/06).

In reviewing a motion to dismiss prior to hearing, statements in the appeal must be viewed in the light most favorable to appellant, all assertions of material facts must be accepted as true, and the motion to dismiss must be denied unless it appears beyond doubt that appellant cannot prove the facts as alleged would entitle her to relief. In re Van Dyck, CSA 143-05, 1 (2/16/06), citing Dorman v Petrol Aspen, Inc., 914 P.2d 909, 911 (Colo. 1996); In re Martinez, CSA 176-03 (6/28/04). See also In re Schultz, CSA 130-05 (2/2706).

Because appellant failed to file a grievance of his PEPR evaluation before filing his appeal, the hearing officer is deprived of subject matter jurisdiction and the appeal must be dismissed.In re Pfeffer, CSA 134-05 (1/23/06) (decided under former §§19-10 e) and 18-12).

Issues

Complaints of discrimination, harassment or retaliation should not be brought though a grievance under CSR 18-10 C.2, but through a formal complaint, although either raises notice of the claims.  In re Gallo, CSA 63-09, 1 (CSB 3/17/11).

Although appellant did not use the correct procedure for raising a discrimination complaint, her grievance put the agency on notice of her complaint of sexual harassment under CSR 15. In re Gallo, CSA 63-09, 1 (CSB 3/17/11).    

Under 19-10 A.2.a, employee may appeal agency's failure to address a grievance where grievance operated as a formal complaint of sexual/racial harassment under CSR 15.  In re Gallo, CSA 63-09, 3 (CSB 3/17/11).           

Pro se appellants should not be held to exacting pleading standards, and hearing officers must determine the legal causes of action particularly in pro se appeals.  In re Moore, CSA 21-10, 2 (Order 5/26/10), citing In re Felix, CSA 82-07 (Order 2/14/08).  

Where grievance appeal challenges agency's merit increase calculation, appellants must overcome presumption of validity in administrative actions with a showing that the calculation was arbitrary, capricious, or contrary to rule or law.   In re Vasquez and Lewis, CSA ## 08-09, 09-09, 4 (5/20/09).

There is a presumption of validity in administrative actions.  In re Vasquez and Lewis, CSA ## 08-09, 09-09, 4(5/20/09), citing Velasquez v Dept. of Higher Education, 93 P3d 540 (Colo. App. 2003); Garner v Colorado State Dept. of Personnel835 P2d 527 (Colo. App. 1992); Renteria v Colorado State Dept. of Personnel, 811 P2d 797 (Colo. 1991).

Though no aspect of the PEP is appealable save grievance of a "Needs Improvement" rating, where appellants do not challenge the PEP but rather allege a rule violation that has negatively impacted their pay, appellants have stated a claim for relief under the jurisdictional rules. §§ 13-50, 19-10 A.2.b.i.   In re Vasquez and Lewis, CSA ## 08-09, 09-09, 2-3 (5/20/09).

The degree of discipline is a matter that must be determined de novo by the hearing officer.   In re Morgan, CSA 63-08, 18 (4/6/09).

An employee may grieve a written reprimand, but may not appeal the unfavorable disposition of the grievance even though there is no alternative forum for appeal.   In re Black, CSA 16-09 (Order 3/12/09).

Written reprimands may not be appealed.   In re Black, CSA 16-09 (Order 3/12/09).

Section 19-10 lists the types of matters that may be appealed and is jurisdictional. If the action appealed is not one of the subjects listed within the rule, or the remedy sought is not one that the hearing officer has authority to grant, the hearing officer has no authority to consider the arguments or merits of the appeal. In re Valdez, CSA 96-06, 1 (11/16/06).

A written reprimand may not be appealed. In re Valdez, CSA 96-06, 1 (11/16/06); §19-10 B 2.e).

The 2006 amendments to the career service rules make it clear that an applicant may no longer appeal a disqualification decision made by the personnel director or his designee. In re Connors, CSA 35-06, 3 (8/9/06).

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

A direct appeal may be taken to challenge the acts of an appointing authority only. § 19-10 A). In re Lovin, CSA 27-06, 1 (5/18/06).

Only a “needs improvement” PEPR may be appealed. In re Stenke, CSA 14-06, 1 (3/15/06).

While an individual may grieve any performance rating, only those matters that negatively affect pay, benefits, or status may be appealed if a grievance is denied. In re Stenke, CSA 14-06, 1 (3/15/06); §§ 13-50 A. and 18-40 E. 4).

Challenge to legality of background check is not properly before hearing officer on appeal when appellant answered the questions without objection, and did not assert a discrimination claim in the appeal. In re Mitchell, CSA 05-05, 8 (6/27/05).

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Settlement

Where legal counsel represented when she signed settlement agreement, appellant’s subsequent “misgivings” were insufficient basis to reinstate appeal.  In re Compton, CSA 71-10, 1 (Order 3/31/11).

Where parties reached settlement, appellant agreed to withdraw her appeal in its entirety, and appellant with counsel acknowledged she could no longer bring any of the claims in her appeal in the Hearing Office.  In re Compton, CSA 71-10, 1 (3/31/11).

No basis to reinstate Career Service Appeal where settlement agreement reserved the right to revoke agreement only as it pertained to the Age Discrimination in Employment Act,. In re Compton, CSA 71-10, 1-2 (3/31/11).   

Settlement agreement reducing Appellant’s 60-day suspension to 45 days contemplated that Agency would reimburse Appellant the amount equivalent to 15 days of pay, where she already served the 60-day suspension, and each “day” was calculated based on an 8-hour shift, not her actual 10.32-hour shifts that she customarily works.  In re James, CSA 33-10 (Order 1/25/11).

Dismissal based on settlement must be supported by a finding that decision to settle is a voluntary one.  In re Schultz, CSA 70-08 (Order 12/22/08).

Where appellant promptly filed a statement that that he no longer wished to accept the agency's settlement offer, there could be no finding that settlement was voluntary, and therefore dismissal  was inappropriate.  In re Schultz, CSA 70-08 (Order 12/22/08).  

Unilateral filing of resignation did not constitute an acceptance of a settlement offer, since offer was  in dispute, and there was no evidence offer contemplated acceptance by action rather than  agreement.  In re Gonzales, CSA 64-08, 2 (10/10/08).

Timeliness (See §19-20)

Appeal of discipline and whistleblower claim filed more than 15 days after discipline is untimely where whistleblower claim failed to allege a nominal basis for the claim under whistleblower ordinance.  In re Moore, CSA 21-10, 2 (Order 5/26/10).

In an appeal containing claims with different filing deadlines, granting a request to enforce each filing deadline separately would eviscerate the mandate of the whistleblower protection ordinance to allow 30 days in which to a claim.  In re Moore, CSA 21-10, 2 (Order 5/26/10).

Where date of notice of the action which forms the basis of appeal is disputed, matter is not subject to dismissal without a hearing.   In re Anderson, CSA 102-09, 2 (Order 1/8/10).

Hearing officer may not consider the merits of an appeal if appellant fails to file appeal within 15 days of the notice of action being appealed.   In re Sundrup, CSA 112-09 (Order 1/13/10), citing In re Delgado, CSA 182-04 (Order 3/9/05); Widener v District Court, 615 P2d 33 (Colo. 1980).

Appeal must be filed within 15 days after the date that establishes notice of the action being appealed or the hearing officer may not consider the merits of the appeal.   In re Sundrup, CSA 112-09 (Order 1/13/10).

Appellant failed to meet 15-day filing requirement where agency mailed original notice of discipline on December 7, appellant filed his appeal 16 days later, and appellant repeatedly failed to provide copy of a notice he alleged supported his claim that appeal was timely.   In re Sundrup, CSA 112-09 (Order 1/13/10).

Where date of notice of the action which forms the basis of appeal is disputed, matter is not subject to dismissal without a hearing.   In re Anderson, CSA 102-09, 2 (Order 1/8/10). 

Absent proof that the agency took any appealable action within fifteen days of the date of the appeal, the hearing office lacks jurisdiction to proceed on the appeal.   In re Schultz, CSA 21-09, 2 (Order 4/13/09).

Appeal was dismissed where it was filed outside the 15-day deadline imposed by § 19-20 A.1 and appellant offered no good cause for the untimely filing, such as failure to receive notice of the action being appealed or being misinformed about deadlines by someone in a position of authority.  In re Apodaca, CSA 40-06 (7/28/06).

Whistleblowing

Hearing officer lacks jurisdiction over whistleblower appeal based solely on a pre-disciplinary letter, which is not itself an adverse action.  In re Thomas, CSA 13-10 (Order 3/15/10).

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To leave a message, please call:
(720) 913-5710