Discrimination

In General

Career Service Hearing Office has jurisdiction to hear appeal under CSR 19-10 A.2., where Appellant filed a formal complaint of discrimination/harassment, the agency investigated the complaint, concluding the allegations were unsupported, and the agency dismissed his complaint.  In re Hill, CSA 52-10, 1-2 (CSB Order 1/6/11).  

Judicial assistant failed to support her claim that her second suspension was motivated by disability discrimination and/or by her request for reasonable accommodation at the pre-disciplinary meeting on her first suspension, where she informed those present that she is somewhat disabled by reactions to her medications for three medical conditions, however, she presented no evidence that her impairments substantially limited her from performing any major life function and no support for her claim that the discipline was motivated by her request for reasonable accommodation.  In re Roberts, 40-10, 48-10, 14 (11/15/2010). 

Without showing some connection between an adverse agency action and a protected status, an assertion that someone else may have been treated more favorably is not a form of discrimination that is protected by discrimination law.  In re Lucero, CSA 59-09, 4 (12/15/09). 

Test for discrimination requiring a comparison to employees in a non-protected group is one of the methods by which discrimination may be proven.   In re Norman-Curry, CSB 28-07 and 50-08, 1 (9/3/09), citing Sorbo v United Parcel Service, 432 F 3d 1169, 1173-1174 (10th Cir. 2005). 

Once a case is fully tried on the merits, the existence of a prima facie case and shifting burdens of proof are no longer relevant.   In re Morgan, CSA 63-08, 10 (4/6/09), citing Ansonia Board of Education v. Philbrook, 479 US 60, 68 (1986).  

By voluntarily withdrawing layoff appeal, appellant waived his right to bring claim that the layoff was caused by discrimination.   In re Cho, CSA 01-09, 3 (Order 1/21/09).  

Where appellant did not file a formal complaint or grievance alleging discrimination before filing her discrimination appeal under § 19-10 A.2, then her appeal is premature.  In re Williams, CSA 53-08 (Order 8/18/08).  

Appellant's assertions - that he was accused of failing to follow procedure and to perform work because his supervisor did not like him for some reason, that he was terminated two days after being involved in an accident, and that other probationary employees were also involved in accidents without consequence - fail to identify the protected status upon which his discrimination claim was based. In re Mora, CSA 125-08 (Order 11/28/08). 

 Replacement of dismissed employee by employee within the same protected class cuts strongly against any inference of discrimination.  In re Mestas et al., CSA 64-07, 61-07, 62-07, 67-07, 40 (5/30/08), citing Murray v. Gilmore, 406 F.3d 708 (D.C. 2005).   

Evidence showing disparate discipline must compare only those who bear a high degree of similarity to that of the party claiming discrimination.  The compared employees must have reported to the same supervisor, must have been subject to the same performance and discipline standards, and must have engaged in similar conduct, without other circumstances that would distinguish the misconduct or the appropriate discipline for it.  In re Mestas et al., CSA 64-07, 61-07, 62-07, 67-07, 40, (5/30/08), citing In re Owens, CSA 139-04, 10 (3/31/05).  

Intentional discrimination under CSR § 15-101 is proven by evidence of 1) membership in a protected class, 2) an adverse employment action, and 3) evidence that supports an inference that discrimination caused the adverse employment action.  In re Frazier, CSA 24-08, 2 (Order 4/30/08).  

A prima facie case of intentional discrimination is proven by evidence of 1) membership in a protected class, 2) an adverse employment action, and 3) evidence which supports an inference of discriminatory intent. In re Lombard-Hunt, CSA 75-07, 7 (3/3/08), citing In re Ortega, CSA 81-06, 14 (4/11/07). 

Appellant bears the burden of proof to establish unlawful discrimination by a preponderance of the evidence.  In re Lombard-Hunt, CSA 75-07, 7 (3/3/08), citing St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 510-512 (U.S. 1993). 

Intentional discrimination is proven by evidence of 1) membership in a protected class, 2) an adverse employment action, and 3) evidence which supports an inference of discrimination. In re Abdi, CSA 63-07, 30 (2/19/08), citing McDonnell Douglas v. Green, 411 U.S. 792 (1973); Bodaghi v. Dept. of Natural Resources, 969 P.2d 718 (Colo. App. 1998). 

Intentional discrimination is proven by evidence that an employee 1) was a member of a protected class, 2) was qualified to hold his position, 3) suffered an adverse employment action, and 4) that action occurred under circumstances supporting an inference of discriminatory intent.  In re Wehmhoefer, CSA 02-08, 1-2 (2/14/08) citing  In re Ortega, CSA 81-06, 14 (4/11/07);McDonnell Douglas v Green, 411 U.S. 792 (1973).   

The second element of a discrimination claim, proof of qualification to hold a position, requires only a showing that the employee possessed the employer’s stated qualifications for the position, such as educational attainments. In re Wehmhoefer, CSA 02-08, 2 (2/14/08), citing Larson on Employment Discrimination, § 8-02 [3] (Matthew Bender 2007). 

Appellant’s juris doctor degree, five years’ experience practicing law in Colorado, and 17 years experience as a hearing office, leave no doubt he meets the second criterion of theMcDonnell Douglas test, qualification for the job of hearing officer. In re Wehmhoefer, CSA 02-08, 2 (2/14/08). 

The McDonnell Douglas formulation of a prima facie case is not intended as an inflexible rule, but rather an orderly way to evaluate the evidence on intentional discrimination.  In re Wehmhoefer, CSA 02-08, 1-2 (2/14/08), citing Larson on Employment Discrimination, § 8-02 (Matthew Bender 2007). 

The essence of discrimination is proof of the discriminatory intent behind the adverse action. In re Wehmhoefer, CSA 02-08, 2 (2/14/08). 

Replacement by a person not in the protected group is not the only evidence tending to show an intention to discriminate.  In re Wehmhoefer, CSA 02-08, 2-3 (2/14/08) citing O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308 (1996). 

An inference of discriminatory intent can be drawn from evidence establishing replacement by a person not in the protected group, evidence of statements indicating hostility toward the protected group, more favorable treatment of employees not in the protected group, or a statistical disparity in those hired, retained, or terminated.  In re Wehmhoefer, CSA 02-08, 3 (2/14/08). 

Evidence in support of appellant’s claim that her dismissal was motivated by unlawful discrimination is admissible at hearing on a dismissal appeal brought under § 19-10 A.  In re Diaz, CSA 72-06, 1(CSB 9/20/07). 

Implicit in the hearing officer’s jurisdiction to hear a dismissal appeal under § 19-10 A. is the authority to hear and decide all evidence relevant to that dismissal, including a claim that the dismissal was motivated by unlawful discrimination.  In re Diaz, CSA 72-06, 1 (CSB 9/20/07). 

Hearing officer’s finding that supervisor’s criticism of employee was based on her failure to pick up a package in a timely manner rather than her race was not unsupported by the evidence. In re Diaz, CSA 72-06, 2 (CSB 9/20/07). 

Hearing officer’s finding that dismissal decision was not based on race was supported by the record where the evidence of race consisted of appellant’s testimony that supervisor told her it would be a difficult time to be unemployed, and supervisor’s failure to discipline a probationary employee based on the same mistakes committed by appellant, a non-probationary employee.  In re Diaz, CSA 72-06, 2 (CSB 9/20/07). 

Issue is precluded from re-hearing where appellant alleges the same adverse employment action that was the subject of a previous unsuccessful appeal.  In re Felix, CSA 46-07, 1 (8/23/07).  

Appellant retains the burden of persuasion throughout the case to prove race discrimination by a preponderance of the evidence.  In re Felix, CSA 87-06, 3 (1/29/07), citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-512 (U.S. 1993). 

 In the context of a discrimination claim under Career Service Rules, an adverse action is an employment action which affects pay, benefits or status.  In re Felix, CSA 87-06, 4 (1/29/07),citing Sanchez v. Denver Public Schools, 164 F.3d 527 (10th Cir. 1998).  

The denial of a lateral transfer not affecting pay, benefits or status is not an adverse employment action as a matter of law. In re Felix, CSA 87-06, 4 (1/29/07), citing McCrary v. Aurora Pub. Schs, 57 Fed. Appx. 362, 368-369 (10th Cir. 2003); Henderson v. UPS, 2006 U.S. Dist. LEXIS 37302, 37-38 (D. Colo. 2006); Sanchez v. Denver Public Schools, 164 F.3d 527 (10th Cir. 1998).  

Appellant bears the initial burden to establish a prima facie showing that the agency discriminated against her on basis of her membership in a protected class.  If appellant meets that obligation, the burden shifts to the agency to produce evidence of a legitimate, non-discriminatory reason for the action.  If the agency does so, appellant may then show the agency’s proffered reasons are in reality a pretext for unlawful discrimination.  In re Felix, CSA 87-06, 3 (1/29/07), citing Sanchez v. Denver Pub. Sch., 164 F.3d 527, 531 (10th Cir. 1998). 

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). 

Claim of disability discrimination that is not supported by evidence or argument is dismissed.  In re Foley, CSA 19-06, 14 (11/10/06). 

Appellant who presented no testimony that her working conditions were intolerable based upon any protected status failed to establish claim of harassment.  In re Foley, CSA 19-06, 14 (11/10/06). 

Appellant bears initial burden to prove discrimination on basis of his membership in a protected class.  In re Delmonico, CSA 53-06, 7 (10/26/06), citing St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). 

Appellant’s failure to present evidence of his membership in any protected class is fatal to discrimination claim.  In re Delmonico, CSA 53-06, 7 (10/26/06). 

Discrimination appeal will not be dismissed where factual issue exists. In re Cooley, CSA 28-06, 2 (6/12/06). 

When terminated probationary employee establishes prima facie evidence of discrimination, employer must respond with non-discriminatory reason for termination.  In re Allen, CSA 16-06, 3 (6/6/06). 

Where terminated probationary employee submits prima facie evidence of discrimination in appeal and agency establishes non-discriminatory reason for termination, appellant may offer evidence that proffered reason for termination was pretext for discrimination.  In re Allen, CSA 16-06, 3 (6/6/06), citing St. Mary’s Honor Ctr. v Hicks, 509 U.S. 502 (U.S. 1993). 

Failure to offer a zoo uniform to administrative assistant was justified by a business reason, the lack of a uniform budget for administrative employees, and was not racial in nature.  In re DiazCSA 13-06, 7 (5/31/06).  

Credibility of co-worker’s evidence of supervisor’s racial remark was greatly undermined by his failure to report it for two years after he alleges it was said, despite opportunities to do so. In re DiazCSA 13-06, 7 (5/31/06). 

To establish employment discrimination, appellant must show 1) membership in a class protected from discrimination, 2) qualification for the position, 3) an adverse employment decision despite the qualifications, and 4) circumstances supporting an inference that discrimination was the cause of the adverse action. In re HernandezCSA 03-06, 9 (5/3/06), citing In re Cobb, CSA 163-03 (2/5/04). 

Rules 19-10 B. 1), 15-103 B., and 15-104, when read together, clearly intend to afford an agency notice of the nature of the alleged harassment or discrimination, as well as a real opportunity to investigate, evaluate, and correct any harassment or discrimination.  In re Lewis, CSA 22-06, 2 (5/2/06). 

Since supervisor’s angry comments did not adversely affect appellant’s employment, discrimination claims cannot stand.  In re Crenshaw, CSA 18-06, 2 (4/6/06). 

Discrimination made unlawful by federal, state or local law or regulation is likewise prohibited by the City and County of Denver.  In re Johnson, CSA 135-05, 3 (3/10/06). 

Intentional discrimination under § 15-101 is proven by evidence of 1) membership in a protected class, 2) an adverse employment action, and 3) evidence which supports an inference of discrimination.  In re Johnson, CSA 135-05, 3 (3/10/06), citing In re Jackson, CSA 103-04, 5 (6/13/05); O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996). 

Tangible employment action capable of invoking Title VII jurisdiction is a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.  In re Johnson, CSA 103-04, 3-4 (3/10/06), citing Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761(1998).  

Order to attend remedial training was not a tangible employment action capable of invoking Title VII jurisdiction.  In re Johnson, CSA 135-05, 3-4 (3/10/06), citing Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998).  

Intentional discrimination is proven by evidence of 1) membership in a protected class, 2) an adverse employment action, and 3) evidence which supports an inference of discrimination. In re Johnson, CSA 135-05, 3 (3/10/06). 

Neither a single order to undergo remedial training to correct an observed performance deficiency nor criticism contained in a logbook is an adverse action agency as that term is interpreted in case law on discrimination.  In re Johnson, CSA 135-05, 4 (3/10/06). 

A female appellant is a member of a protected class based on her sex.  In re Johnson, CSA 135-05, 3 (3/10/06). 

Recent favorable review by same supervisor raises a strong presumption that no discrimination occurred, as the supervisor would not abruptly develop antipathy toward appellant because of her sex. In re Johnson, CSA 135-05, 5 (3/10/06), citing Vallabhapurapu v. First National Bank, 998 F. Supp.906; Lowe v J.B. Hunt Transport, Inc., 963 F.2d 173, 174-175 (7th Cir. 1992). 

Title VII identifies as unlawful employment practices hiring, firing, and discrimination with respect to compensation, terms, conditions, or privileges of employment.  The Supreme Court has defined a tangible employment action under capable of invoking Title VII as a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.  In re Johnson, CSA 135-05 (3/10/06), citing Burlington Industries, Inc. v. Ellerth, 524 U.S.742, 761 (1998); 42 U.S.C. § 2000e-2(a) (1).    

A prima facie case for discrimination requires some adverse agency action.  In re Mallard, CSA 129-05, 3 (2/23/06). 

Where appellant was hired into the position he sought, there was no adverse agency action upon which a discrimination claim could lie.  In re Mallard, CSA 129-05, 3 (2/23/06) (decided under former §9-61). 

To establish a prima facie case of hostile work environment harassment, appellant must show that harassment was pervasive or severe enough to alter the terms, conditions, or privilege of employment.  Evidence must show that the workplace was permeated with discriminatory intimidation, ridicule, and insult sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.  In re Van Dyck, CSA 143-05, 2 (2/16/06), citing Bloomer v UPS, 94 Fed Appx. 820 (10th Cir.2004). 

Transfer having no effect on pay or working conditions is not an adverse action required to prove discrimination.  In re Conway, CSA 127-05, 2 (2/13/06). 

Appellant’s belief that he was a victim of discrimination is not evidence upon which discrimination may be found. In re Macieyovski, CSA 60-04, 4 (7/27/05). 

Appellant failed to establish disparate discipline by failing to produce evidence about other employees’ protected status, the nature of their violations, and whether or how they were disciplined for those violations. In re Garcia, CSA 175-04, 7 (7/12/05). 

Appellant’s failure to provide any notice of discrimination claim prior to hearing is fatal to claim. In re Garcia, CSA 175-04, 7 (7/12/05). 

Conclusory statement that appellant believed he was discriminated against does not state sufficient facts from which hearing officer could conclude there was a prima facie showing of discriminatory termination.  In re Hartzog, 198-03 (6/22/05). 

To establish a prima facie case for discrimination, appellant must show the following:  1) he is a member of a protected class; 2) an adverse employment action was taken against him; and 3) the action was taken under circumstances tending to show that the action was motivated by discrimination against the employee because of his membership in the protected class.  In re Herzog, CSA 23-05 (5/26/05).  See also In re Daniels, CSA 05-03 (5/16/03); In re Crenshaw, CSA 156-02 (3/11/03), citing Colo. Civ. Rights Comm. v. Big O Tires, Inc., 940 P2d 397 (Colo. 1997); In re Daneshpour, CSA 88-03 (12/30/03). 

Assignment of a particular workspace is not an adverse agency action, particularly where all staff were invited to participate in space assignments and appellant declined to participate, appellant received larger workspace than he had before, and the new workspace suited his work needs.  In re Herzog, CSA 23-05 (Order 5/26/05). 

Appellant bears the initial burden of proving unlawful discrimination. In re Owens, CSA 139-04, 9 (3/31/05). 

prima facie case of discrimination consists of four elements: 1) the appellant is a member of the protected class; 2) he was qualified for the position he held; 3) the agency took an adverse action; and 4) the suspension was imposed because the agency intended to discriminate against appellant, or, in an age claim, older workers were disproportionately and adversely impacted. Discriminatory intent may be proven circumstantially by evidence the agency treated employees outside the protected class more favorably under similar circumstances. In re Owens, CSA 139-04, 9 (3/31/05), citing McDonnell Douglas v. Green, 411 U.S. 792 (1973); Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978); Smith v. City of Jackson, 2005 U.S.Lexis 2931.  

Legitimate non-discriminatory reason

 Where all supervisors unanimously decided to deny appellant’s transfer request because it would set a bad precedent to allow transfer based only on employee preference for a particular supervisor, agency established non-discriminatory reason for decision.  In re Felix, CSA 87-06, 4 (1/29/07).  


Pretext

Evidence that two employees of a different race than appellant were allowed informal transfers during reorganization did not prove agency’s stated reason for denying transfer was pretext for discrimination where appellant was given that same option during reorganization, and reorganization circumstances were substantially different than those present in this transfer request.  In re Felix, CSA 87-06, 4-5 (1/29/07).  

Denial of informal transfer from one type of unit to another was not discriminatory when it was in keeping with agency practice prohibiting transfers within same functional units.  In re Felix, CSA 87-06, 5 (1/29/07). 

Pretext was not established where appellant was denied transfer from one outgoing unit to another, even though another employee was allowed such transfer because of performance problems. In re Felix, CSA 87-06, 5 (1/29/07). 

Appellant failed to prove pretext for race discrimination based on another employee’s transfer from one Outgoing unit to another where she failed to establish the other employee’s race, or rebut agency’s showing that other employee’s transfer was allowed for performance reasons.  In re Felix, CSA 87-06, 5 (1/29/07).  

Age discrimination

 No jurisdiction 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). 

Request for documents which may assist Appellant in a claim in his appeal is proper.  In re Hill, CSA 52-10, 1 (Order 1/20/11).  

Allegation that appellant is over 40 does not support an inference that age discrimination played a part in the layoff.  In re Frazier, CSA 24-08, 2 (Order 4/30/08).    

Appellant’s age discrimination claim fails where she alleges she is over the age of 40, but did not state facts that support an inference that age discrimination played a part in her layoff.  In re Frazier, CSA 24-08, 2 (4/30/08). 

Appellant’s age and the fact that he was terminated when other employees were not did not establish age discrimination where appellant did not allege the ages of the other employees, the age of the director who took the action, or other facts supporting an inference that the director’s motive was to discriminate against appellant based on his age.  In re Wehmhoefer, CSA  02-08, 3 (2/14/08). 

The director’s failure to meet with appellant is not sufficiently serious to amount to an adverse action as necessary to establish a prima facie case of age discrimination.  In re Wehmhoefer, CSA 02-08, 3 (2/14/08). 

Director’s changes to hearing officer’s recommended decision is not sufficiently serious to amount to an adverse action as necessary to establish a prima facie case of age discrimination.  In re Wehmhoefer, CSA 02-08, 3 (2/14/08). 

Appointing authority’s question to appellant about when she planned to retire, and comment that there are too many retired people at the agency, did not establish that layoff was the result of age discrimination where appellant admitted she did not think appointing authority was biased against her based on her age.  In re Foley, CSA 19-06, 14 (11/10/06).

Appellant failed to support inference of age discrimination when he did not establish that any younger person who committed similar conduct was disciplined less severely, or that supervisor imposing discipline was aware of appellant’s age.  In re HernandezCSA 03-06, 10 (5/3/06). 

Appellant’s age discrimination claim fails where evidence showed that applicant chosen over appellant was older, better qualified, and tested higher.  In re Macieyovski, CSA 60-04, 4 (7/27/05). 

Age discrimination claim not made by mere allegation that supervisor, who did not take action complained of, assigning him a workspace with a window, was under 40 and appellant was over 40.  In re Herzog, CSA 23-05 (5/26/05). 

Circumstances do not raise an inference of age discrimination where 1) appellant’s supervisor stated he was intimidated by appellant’s longevity with the city, 2) supervisor failed to meet with appellant as much as other staff, 3) supervisor failed to intervene when requested by appellant, and 4) supervisor hired person younger than appellant to newly created position.  In re Hurdelbrink, 109-04, 119-04, 7 (1/5/05). 

To establish prima facie case of age discrimination, appellant must show 1) he is a member of the protected class (more than 40 years old); 2) he is otherwise qualified for the position; 3) a younger person was promoted instead of him; and 4) the circumstances of the agency action give rise to an inference of unlawful discrimination.  In re Hurdelbrink, CSA 109-04, 119-04, 7 (1/5/05), citing In re Kanan, CSA 09-02 (1/26/04).  

Disability discrimination (See also §§ 5-84 and 15-100)

Allegation that appellant incurred work-related injuries did not support disability discrimination claim since it did not relate her disability to an adverse agency action.  In re Frazier, CSA 24-08, 2 (4/30/08). 

The ADA prohibits employers from discriminating against a qualified individual with a disability with regard to job application procedures, hiring, advancement, or discharge of employees, employee compensation, job training and other terms, conditions and privileges of employment.  In re Vigil, CSA 110-05, 7 (3/3/06), citing 42 USC 12112(a).  

Appellant’s failure to establish disability under the ADA renders moot a disparate treatment discrimination claim based upon disability under § 5-84 A.  In re Vigil, CSA 110-05, 7 (3/3/06).

The ADA prohibits employers from discriminating against qualified individuals with disabilities because of their disabilities.  In re Torres, CSA 97-05, 2 (2/21/06), citing In re Aguirre, CSA 03-04, 6 (8/16/04); 42 U.S.C.12101

To maintain a claim for disability discrimination, a terminated employee must demonstrate that 1) he is a disabled person within the meaning of the ADA, 2) he is able to perform the essential functions of the job with or without reasonable accommodation, and 3) the employer terminated him because of his disability.  In re Torres, CSA 97-05, 2 (2/21/06). 

Agency did not discriminate against disabled employee based on his disability by disqualifying him, since employee was unable to perform the essential functions of his position with or without reasonable accommodations.  In re Torres, CSA 97-05, 5 (2/21/06).

Terminated appellant failed to establish a prima facie case of disability discrimination, when his claim was supported only by evidence that his doctor imposed a 30-pound lifting restriction after termination. In re Mestas, CSA 37-05, 8 (8/4/05). 

Allegation that supervisor made his life a living hell while he was on worker’s compensation does not establish nexus with specific agency actions alleged to be discriminatory.  In re Yardeny, CSA 26-05 (6/2/05). 

The essential duties of a position are those used by the CSA to allocate each job to a classification and pay plan under § 7-12.  In re Romberger, CSA 89-04, 6 (3/2/05).  

Harassment

Witness claim of sexual harassment based on appellant’s frequent phone greeting “what are you wearing?” not shown where she willingly participated in the practice.  In re Gutierrez, CSA 65-11, 5,-7 (8/28/12). 

Rule 15-100 et. seq. procedures serve to maintain a workplace free of any unlawful harassment, deter future harassment and minimize the City's exposure to potential liability in Title VII lawsuits.  In re Gallo, CSA 63-09, 4-5 (CSB 3/17/11). 

An employee who believes she has been subjected to sexual harassment in violation of CSR 15 does not have to wait until the harassing behavior has become severe and pervasive enough to alter the conditions of her employment and create a hostile work environment (the level of proof required to sustain a Title VII lawsuit) before reporting such harassment.  In re Gallo, CSA 63-09, 5 (CSB 3/17/11). 

An interpretation of Rule 15 that suggests the rule requires proof that the harassing behavior was severe and pervasive enough to create a hostile work environment is contrary to the express language of 15-101, which prohibits all harassment on the basis of sex, race or other protected status.  In re Gallo, CSA 63-09, 5 (CSB 3/17/11). 

Since nearly all of the alleged harassment was committed by unidentified co-workers, employee must show that supervisor knew or should have been aware of the harassment and failed to intervene.  In re Gallo, CSA 63-09, 5 (8/27/10), citing Myers v. LeFlore County Bd. of Comm’rs, 1998 U.S. App. LEXIS 1491, 6-7 (10th Cir. 1998); Harrison v. Eddy Potash, 112 F.3d 1437, 1444 (10th Cir. 1997). 

Infantile pranks and vague gestures or looks do not establish racial harassment.  In re Gallo, CSA 63-09, 6 (8/27/10).  

 Rumors of a sexual relationship between white deputy and African-American deputy did not prove racial harassment where the frequency of their visits together made gossip likely even in the absence of racial disparity.  In re Gallo, CSA 63-09, 6 (8/27/10). 

Change in lunch schedule which reduced employee's opportunity to have lunch with African-American co-worker did not establish race harassment where employee did not rebut employer's business explanation for the change.  In re Gallo, CSA 63-09, 6 (8/27/10). 

Fact that supervisor excessively and publicly criticized deputy though she made no more mistakes than anyone else did not prove race harassment. In re Gallo, CSA 63-09, 7 (8/27/10). 

In order to establish harassment on the basis of religion, appellant must present credible evidence that the workplace was permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create abusive working environment.   In re Morgan,  CSA 63-08, 16 (4/6/09), citing  Meritor Savings Bank FSB v Vinson, 477 U.S. 57, 65 (1986).

 Evidence that agency scheduled appellant's work on days he observed the Sabbath did not support claim of harassment based on religion.   In re Morgan, CSA 63-08, 16 (4/6/09). 

Appellant's assertions - that he was accused of failing to follow procedure and to perform work because his supervisor did not like him for some reason, that he was terminated two days after being involved in an accident, and that other probationary employees were also involved in accidents without consequence - fail to identify the protected status upon which his harassment claim was based. In re Mora, CSA 125-08 (Order 11/28/08). 

National origin discrimination 

Testimony that manager who imposed discipline on Hispanic appellant made comments about how “you guys” dress, nurture people, and always have family around, were denied by manager, and did not rise to the level of discriminatory animus or show that termination was caused by prejudice underlying the statements. In re Mestas et al., CSA 64-07, 61-07, 62-07, 67-07, 40 (5/30/08).     

Evidence showing disparate discipline must compare only those who bear a high degree of similarity to that of the party claiming discrimination.  The compared employees must have reported to the same supervisor, been subject to the same performance and discipline standards, and must have engaged in similar conduct, without other circumstances that would distinguish the misconduct or the appropriate discipline for it.  In re Mestas et al., CSA 64-07, 61-07, 62-07, 67-07, 40 (5/30/08), citing In re Owens, CSA 139-04, 10 (3/31/05).  

Where agency did not discipline Caucasian employee for failing to perform background check on sex offender, appellant failed to establish agency engaged in disparate discipline since alleged comparable employee had no such duty.  In re Mestas et al., CSA 64-07, 61-07, 62-07, 67-07, 40, (5/30/08). 

The fact that dismissed employee was replaced with someone within the same protected class cuts strongly against any inference of discrimination.  In re Mestas et al., CSA 64-07, 61-07, 62-07, 67-07, 40, (5/30/08), citing Murray v. Gilmore, 406 F.3d 708 (D.C. 2005).   

Appellant, a Somali native fired for helping a relative obtain benefits for which she was ineligible, failed to establish a nexus between her dismissal and her national origin by evidence that she complained to her supervisors that her agency hired only Ethiopian interpreters and no Somali interpreters.  In re Abdi, CSA 63-07, 30 (2/19/08). 

Supervisor’s description of herself as the uniform Nazi and the key Nazi did not establish discriminatory intent against Hispanic employee who did not inform supervisor that the word Nazi offended her.  In re DiazCSA 13-06, 7(5/31/06). 

Appellant failed to establish inference of national origin discrimination when the only evidence offered was that another Hispanic employee was disciplined during the same year for a different offence, and another nurse of unknown national origin used similar terms of endearment.  In re Hernandez, CSA 03-06, 9 (5/3/06), citing Mensah-Sowah v. Bridgestone/Firestone, 1996 U.S. App. LEXIS 24967 (10th Cir. 1996). 

Where appellant complained he was treated less favorably than co-worker, but did not state that co-worker’s national origin differs from his own, claim of disparate treatment discrimination fails.  In re Schultz, CSA 78-05 (8/15/05). 

Appellant’s complaint that his PEPR rating was based on national origin discrimination fails to state an adverse action where that supervisor 1) did not issue the PEPR and 2) previously rated appellant as exceeds expectations or outstanding.  In re Schultz, CSA 78-05 (8/15/05).  

Political affiliation discrimination

Political affiliation refers to membership in a political party.  In re Wehmfoefer, CSA 02-08, 4 (2/14/08), citing In re Maes, CSA 180-03, 6 (10/21/04). 

Use of the word “political” to suggest discrimination based on a reward for popularity or connections rather than affiliation with a political party fails to allege a prima facie case of political affiliation discrimination.  In re Wehmhoefer, SA 02-08, 4 (2/14/08). 

Political affiliation discrimination claim requires that an employee’s political affiliation or beliefs was a substantial or motivating factor in an adverse agency action, and that the employee’s position did not require political allegiance.  In re Wehmhoefer, CSA 02-08, 4 (2/14/08), citing In re Hurdelbrink, CSA 109-04, 119-04, 8 (1/5/05). 

Appellant’s affiliation with previous mayor 22 years ago did not establish political discrimination when manager who expressed resentment over that affiliation was not the deciding official in the layoff.  In re Foley, CSA 19-06, 14 (11/10/06). 

Where appellant failed to articulate his political affiliation or that of his supervisor and provided no basis from which to infer how political affiliation may have motivated adverse agency action, appellant failed to state a claim of political affiliation discrimination.  In re Herzog, CSA 23-05 (5/26/05). 

Lack of political affiliation may also fall under the protection of political affiliation discrimination.  In re Hurdelbrink, 109-04, 119-04, 9 (1/5/05), citing Whitfield v. Pennsylvania Gas Works, 1997 U.S. Dist. LEXIS (D. Pa. 1997). 

For a prima facie case for discrimination based upon political affiliation, appellant must establish that 1) political affiliation and/or beliefs were substantial or motivating factors behind the adverse agency action, and 2) his position did not require political allegiance.  In re Hurdelbrink, 109-04, 119-04, 9 (1/5/05). 

Appellant failed to establish prima facie case of discrimination by political affiliation with evidence that he did not support winning mayoral candidate while appointee stated she was an early supporter of mayoral candidate, but her contacts with him were minimal and not political.  In re Hurdelbrink, CSA 109-04, 119-04, 9 (1/5/05).  

Pregnancy discrimination

Appellant establishes a prima facie case of pregnancy discrimination if she establishes: 1) she was a member of a protected group; 2) she was qualified for the modified-duty position sought; 3) she was denied the modified-duty position; and 4) the denial occurred under circumstances which give rise to an inference of unlawful discrimination.  In re Allen, CSA 16-06, 3 (6/6/06), citing EEOC v. Horizon Healthcare Corp., 220 F. 3d 1184 (10th Cir. 2000). 

Pregnant appellant is a member of a protected group.  In re Allen, CSA 16-06, 3 (6/6/06). 

Pregnant appellant failed to prove disparate treatment by evidence that another pregnant employee had been granted a transfer to a vacant position, since the comparison employee was a member of the same protected group.  In re Allen, CSA 16-06, 4 (6/6/06). 

Agency demonstrated non-discriminatory reasons for denial of transfer to pregnant probationary employee.  In re Allen, CSA 16-06, 4 (6/6/06). 

Agency demonstrated non-discriminatory reasons for termination of probation of pregnant employee.  In re Allen, CSA 16-06, 4 (6/6/06). 

Appellant failed to prove her termination was discriminatory on the basis of her pregnancy.  In re Allen, CSA 16-06, 5 (6/6/06).  

Race - based discrimination 

Appellant failed to state a claim of race discrimination where: he failed to state his race; failed to present any evidence what connection there may have been between his disqualification and his protected status; his only statement regarding discrimination was in his opening statement; and he produced no witness, document or other evidence to support his claim.  In re Lucero, CSA 59-09, 4 (12/15/09).  

Where a White deputy knitting with African-American appellant was also disciplined for that activity, race discrimination was not shown.  In re Norman-Curry, CSA 28-07 and 50-08, 6 (2/27/09). 

Where appellant claimed a supervisor failed to discipline a non-minority co-worker for the same conduct for which the supervisor disciplined appellant, appellant failed to state a discrimination claim - whether an adverse employment action was taken against the appellant because of her protected status.   In re Norman-Curry, CSA 28-07 and 50-08, 12 (2/27/09). 

Where appellant alleged racism by her immediate supervisor, but the adverse action was assessed by the agency manager, and appellant did not claim acquiescence in or ratification of racism by the manager, appellant failed to establish required link between her status and adverse agency action.  In re Norman-Curry, CSA 28-07 and 50-08, 13 (2/27/09). 

The question to resolve in a race discrimination claim is whether an adverse employment action was taken against the appellant because of her protected status.   In re Norman-Curry, CSA 28-07 and 50-08, 12 (2/27/09), citing Fallis v Kerr-McGee Corp., 944 F.2d 743, 744 (10th Cir. 1991). 

Allegation that appellant was the only black female in administration did not establish race discrimination since it did not link her color or race to an adverse agency action.  In re Frazier, CSA 24-08, 2 (4/30/08).  

Appellant established a prima facie case for race and color discrimination by evidence she is African-American, has darker skin, was terminated from her position, and that her supervisor was a member of a sorority that appellant believes favored for membership lighter-skinned African American women with straight hair. In re Lombard-Hunt, CSA 75-07, 7-8 (3/3/08). 

Appellant failed to rebut agency’s reasons for termination where 1) termination was based on two negative training evaluations and 15 days of misreported work hours, 2) supervisor’s sorority sisters were all darker in skin tone than the supervisor, and 3) appellant was hired by the supervisor after a face-to-face interview three months before her termination. In re Lombard-Hunt, CSA 75-07, 8 (3/3/08). 

It is unlikely the supervisor, who is same race as appellant and who hired her three months before her termination, would develop a discriminatory attitude toward her a short time after her hire. In re Lombard-Hunt, CSA 75-07, 8 (3/3/08), citing In re Johnson, CSA 135-05, 5(3/10/06); Vallabhapurapu v. First National Bank, 998 F. Supp. 906; Lowe v J.B. Hunt Transport, Inc., 963 F2d. 173, 174-175 (7th Cir. 1992). 

The test to establish a prima facie case for discrimination announced in McDonnell Douglas v. Green has been adopted by Colorado.  In re Abdi, CSA 63-07, 30 (2/19/08), citing Bodaghi v. Department of Natural Resources, 969 P.2d 718 (Colo. App. 1998) (rev’d on other grounds). 

Appellant’s race, African-American, meets first criterion for prima facie discrimination case: membership in a protected class. In re Abdi, CSA 63-07, 30 (2/19/08). 

Dismissal is an adverse action for purposes of proving second element of prima facie case of discrimination.   In re Abdi, CSA 63-07, 30 (2/19/08). 

An adverse employment action is necessary to prove a claim of race discrimination under the disparate treatment theory.  In re Crenshaw, CSA 18-06, 2 (4/6/06), citing McDonnell Douglas v. Green, 411 U.S. 792 (1973).  

Religion - based discrimination 

The career service rules permit an appellant to appeal an action "resulting in alleged discrimination . . . because of . . . religion".   In re Morgan, CSA 63-08, 16 (4/6/09) citing CSR § 19-10 A.2.a. 

Claim of religious discrimination is dismissed where agency offered reasonable accommodations of appellant's Saturday Sabbath observance.   In re Morgan, CSA 63-08, 16(4/6/09). 

Agency's offer of a reasonable accommodation rebuts appellant's religion-based discrimination claim.   In re Morgan, CSA 63-08, 16, 17 (4/6/09). 

Actions resulting in alleged discrimination based on religion are appealable under the career service rules.   In re Morgan, CSA 63-08, 10 (4/6/09); § 19-10 A.2.a.   

Under Title VII of the Civil Rights Act of 1964, employers are prohibited from discriminating against an individual's religious belief, which includes any aspect of religious observance or practice, unless the employer demonstrates an inability to reasonably accommodate the religious observance or practice without undue hardship on the conduct of the employer's business.   In re Morgan, CSA 63-08, 10 (4/6/09) citing 42 USCA § 2000e. 

Reasonable accommodation and undue hardship are separate legal concepts requiring separate analyses in a religious accommodation case.  In re Morgan, CSA 63-08, 12-13 (4/6/09) citing Ansonia Board of Education v Philbrook, 479 US 60, 68 (1986). 

In religious accommodation cases, the employer bears the burden to prove it offered a reasonable accommodation to an employee whose religious practice conflicts with a work requirement, or that accommodation was not reasonably obtainable without undue hardship.   In re Morgan, CSA 63-08, 12-13 (4/6/09) citing Thomas v. National Association of Letter Carriers, 225 F.3d 1149, 1156 (10th Cir. 2000). 

The reasonableness of an accommodation offer is dependent on the facts of each case.   In re Morgan, CSA 63-08, 13 (4/6/09) citing Anderson v. General Dynamics Convair, Etc., 589 F.2d 397, 400 (9th Cir. 1979), cert. denied, sub nom.   

Once it is determined that the employer's efforts to accommodate were reasonable, the inquiry is at an end.  "The employer need not further show that each of the employee's alternative accommodations would result in undue hardship."   In re Morgan, CSA 63-08, 13 (4/6/09) citing Smith v. Pyro Mining, 827 F.2d 1081, 1086 (6th Cir. 1987).    
 
Any reasonable accommodation by the employer is sufficient to meet its accommodation obligation.   In re Morgan, CSA 63-08, 13 (4/6/09) citing Ansonia Board of Education v Philbrook, 479 US 60, 68 (1986). 

An employer's encouragement of voluntary shift swaps is a reasonable accommodation of an employee's religious practice.   In re Morgan, CSA 63-08, 14 (4/6/09). 

"A seniority system is bona fide under Title VII, and thus immune to successful challenge, if it is free of intentional discrimination whether the system was created before or after Title VII's effective date."  In re Morgan, CSA 63-08, 15 (4/6/09), citing 45A Am. Jur. 2d Job Discrimination § 613, citing American Tobacco Co. v. Patterson,  456 U.S. 63 (1982).  

The mere fact that the department utilized criteria other than seniority to make shift assignments during an eight-month transition period based on needs arising from its important public safety function does not demonstrate a discriminatory intent in the creation or operation of the seniority system.   In re Morgan, CSA 63-08, 15 (4/6/09).

Since the agency offered accommodations that were reasonable, no undue hardship analysis was required.   In re Morgan, CSA 63-08, 16 (4/6/09).

Reasonable accommodation is an interactive process requiring both parties to cooperate to achieve resolution of the conflict.   In re Morgan, CSA 63-08, 13, 15 (4/6/09) citing Brener v Diagnostic Center Hospital, 671 F2d 141, 145-46 (5th Cir. 1982). 

Agency's offers of reasonable accommodation in the form of shift votes, shift swaps, and transfers were not rendered unreasonable by appellant's partial cooperation toward resolution.   In re Morgan, CSA 63-08, 16 (4/6/09). 

The opportunity to vote for Saturdays off during the shift bid process is a reasonable accommodation of appellant's Sabbath observance.   In re Morgan, CSA 63-08, 16 (4/6/09). 

The ability to swap shifts with other employees is a reasonable accommodation of appellant's Sabbath observance.   In re Morgan, CSA 63-08, 16 (4/6/09). 

Transfers are a reasonable accommodation of a Saturday Sabbath, even if the employee is unlikely to obtain the transfer based on others' superior seniority rights.   In re Morgan, CSA 63-08, 15, 16 (4/6/09). 

The possibility that the agency could have done more than it did to accomplish shift swaps does not render the offered accommodation unreasonable.   In re Morgan, CSA 63-08, 14 (4/6/09). 

Agency's utilization of criteria other than seniority to make shift assignments during an eight-month transition period based on needs arising from its important public safety function does not demonstrate a discriminatory intent in the creation or operation of the seniority system.   In re Morgan, CSA 63-08, 15 (4/6/09). 

The religious needs of some employees are not entitled to greater weight than the shift and job preferences of other employees.   In re Morgan, CSA 63-08, 15 (4/6/09) citing TWA Inc. v Hardison, 432 U.S. 63, 81 ((1977).
  
Collective bargaining contracts and seniority systems must be considered separately when analyzing their effect on the duty to accommodate.   In re Morgan, CSA 63-08, 15 (4/6/09), citing TWA, Inc. v. Hardison, 432 U.S. 63, 79 (1977). 

Appellant’s testimony that supervisor made several remarks about his being Jewish fails to state a claim of religious affiliation discrimination.  In re Yardeny, CSA 26-05 (6/2/05).  

While appellant established first element of claim for religious affiliation discrimination by establishing he follows different religion than his supervisor, he failed to establish an adverse action in agency’s choice of workspace assignment when he refused the opportunity to participate in space selection committee. In re Herzog, CSA 23-05 (5/26/05).  

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Sex-based discrimination  

Claim of sex discrimination for discipline under 16-60 O was not proven where male employees were not similarly situated as either new supervisors or members of the classified service subject to different rules, and male employees did not engage in conduct of comparable seriousness; i.e., consistent failure to perform supervisory duties and creation of a toxic work environment. In re Dineen, CSB 56-11, 4-5, (12/20/12)  citing McGowan v. City of Eufala, 472 F.3d 736, 745 (19th Cir. 2006); Jones v. Denver Post Corp., 203 F.3d 748, 753 (10th Cir. 2000); Furaus v. Citadel Communications Corp., 168 Fed.Appx. 257, 4(10th Cir. 2006).  

Employee failed to prove her female supervisor was motivated by sex discrimination in imposing discipline against her.  In re Dineen, CSB 56-11, 5, (12/20/12) citing Randle v. City of Aurora, 69 F.3d 441, 453 n. 18 (10th Cir. 1995).   

Test for sex discrimination that requires a comparison of employee in a protected group to employees in a non-protected group, is one of the methods by which discrimination claim may be established.  In re Norman-Curry, CSB 28-07 and 50-08, 1 (9/3/09), citing Sorbo v United Parcel Service, 432 F 3d 1169, 1173-1174 (10th Cir. 2005). 

The current legal standard to establish the third prong of sex discrimination is "under circumstances giving rise to an inference of discrimination," rather than comparing the employee in a protected group to employees in a non-protected group.   In re Norman-Curry, CSB 28-07 and 50-08, 2 (9/3/09), citing Sorbo v. United Parcel Service, 432 F.3d 1169, 1173 (10th Cir. 2005). 

These standards describe only the threshold of evidence an appellant must produce to withstand a summary judgment motion, rather than the level of evidence to prove the claim after all the evidence is heard, that the discipline imposed was the result of unlawful sex discrimination.   In re Norman-Curry, CSB 28-07 and 50-08, 1, 2 (9/3/09). 

Sex discrimination is proven by evidence of 1) membership in a protected class, 2) an adverse employment action, and 3) evidence the appellant was treated less favorably than her male counterparts.  In re Norman-Curry, CSA 28-07 and 50-08, 13 (2/27/09). 

Female deputy sheriff who was disciplined for wearing butterfly hair sticks that did not comply with agency's uniform policy established first two elements necessary to prove sex discrimination claim,  but lack of evidence that she was treated less favorably than similarly situated males invalidates her claim.   In re Norman-Curry, CSA 28-07 and 50-08, 13 (2/27/09).  

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