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Executive Orders

EO 16:  USE OF INTERNET 

Agency did not establish violation of E.O. 16, for excess use of the internet by accessing Colorado Public Radio (CPR) and Google websites, where agency did not rebut appellant’s evidence that he listened to music through CPR’s website while working, and used Google to research work-related ergonomic assessments. In re Sienkiewicz, CSA 10-08, 17 (7/14/08).

Appellant’s knowing retrieval of obscene photographs as a result of his internet search on a city computer was a violation of § 15-82, and did not comport with the permissible occasional use of city computers for personal purposes pursuant to § 15-83. In re Strasser, CSA 44-07, 4 (10/16/07).

EO 65 OPERATIONAL SAFETY & HEALTH PROGRAM 

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.     

EO 94:  DRUG & ALCOHOL POLICY - IN GENERAL

Executive Order 94 (E.O. 94) prohibits city employees from being under the influence of drugs or alcohol while performing city business. In re Delgado, CSB 75-08, 1 (7/2/09). 

Under this executive order, a first time drug or alcohol violator may avoid mandatory dismissal by entering into a stipulation and agreement, which includes treatment and follow-up testing. In re Delgado, CSB 75-08, 1 (7/2/09) citing E.O. 94. 

Executive Order 94 applies to all city employees, separate and apart from DOT regulations that apply specifically to commercial driver’s license holders. In re Delgado, CSB 75-08, 1 (7/2/09).

The federal DOT regulations grant employers broad discretion in disciplining employees who hold commercial drivers’ licenses and who test positive for drug use. In re Delgado, CSB 75-08, 3 (7/2/09) citing United Food and Commercial Workers Intern. Union v Foster Poultry Farms, 74 F 3d 169, 171 (9th Cir. 1995); 59 Fed.Reg. 7502 (1994).

Employers and employees have the right to negotiate appropriate discipline and conditions of employment following a positive drug or alcohol test. In re Delgado, CSB 75-08, 3 (7/2/09) citing Eastern Associated Coal Corp. v United Mine Workers of America. 531 U.S. 57, 65 (2000).

Follow-up random testing under a stipulation and agreement after employee’s positive drug test is not subject to DOT regulations governing testing of CDL license holders. In re Delgado, CSB 75-08, 3 (7/2/09), reversing In re Delgado, CSA 75-08 (1/30/09).

At career service hearing on appeal of dismissal for violation of stipulation and agreement under EO 94, city’s drug and alcohol policy, agency needed to prove only that the tests performed by the breath alcohol technician accurately measured excessive blood alcohol level. In re Delgado, CSB 75-08, 4 (7/2/09). 

Executive order 94, the city-wide policy concerning drugs and alcohol, is enforced in the same manner as the Career Service Rules. In re Delgado, CSA 75-08, 2 (1/30/09).

Denver’s career service system provides for merit-based appointment of applicants and performance-based retention of city employees. In re Sample, CSA 72-07, 5-6 (6/12/08), citing D.R.M.C. §18-1, rev’d on other grounds In re Sample, CSB 72-07 (10/16/08).  

EO 94:  DRUG & ALCOHOL POLICY - FOUND

Agency proved Appellant threatened and abused supervisor when she left a meeting with her supervisor, nearly slamming  door on supervisor’s fingers, and where her actions were consistent with incident one day earlier when she slammed door behind supervisor, and the incident was consistent with previous incident of shoving a co-worker out of her way. In re Robinson, CSA 03-13, 8 (6/18/13).

Appellant exhibited abusive, threatening, and intimidating conduct when his supervisor instructed Appellant to apologize to a co-worker and appellant reacted with rage, making intimidating and hostile statements. In re Weiss, CSA 68-10, 10 (2/14/11).

This rule is violated by words a reasonable person would consider threatening or intimidating. In re Cotton, 104-09, p. 11 (10/18/10) citing In re Katros, CSA 129-04, 8 (3/16/05).     

Violation was established where co-worker was reasonably threatened and intimidated by appellant’s angry tone and wild gestures, while standing above co-worker. In re Lykken, CSA 26-10, 6 (7/7/10).

Public and angry expression toward her supervisor over who should handle a customer was a violation of the rule, and appellant's response that she was first to deal with customer was irrelevant. In re Lykken, CSA 26-10, 6 (7/7/10).

Airport parking agent's actions in banging on hood of car, screaming and swearing in a rageful manner reasonably caused driver to fear agent would attack her based on his extreme response to a simple parking issue, in violation of this rule. In re D’Ambrosio, CSA 98-09, 8 (5/7/10).        

Employee communicated intent to inflict harm or loss on customer in violation of this rule by telling him he could have his car towed or have him arrested for not having his license, actions that were beyond his authority. In re D’Ambrosio, CSA 98-09, 8 (5/7/10).

Violation established where appellant asked co-worker who gave a statement to internal affairs why he snitched and told him to watch his back, and co-worker reasonably felt threatened and intimidated as a result. In re Carter, CSA 87-09, 8 (2/17/10).

Deputy sheriff's unjustified use of force against inmate violated this rule. In re Norman-Curry, CSA 28-07 & 50-08, 22 (2/27/09).

Deputy’s unexpected hard slap on the buttocks of a fellow officer which was accompanied by insulting banter with another officer constitutes abuse of an employee in violation of this rule. In re Rogers, CSA 57-07, 6 (3/18/08).

Neither provocation nor mutual combat is a defense to a charge of “fighting . . . for any reason.” In re Delmonico, CSA 53-06, 4 (10/26/06).

Supervisor’s admission she called subordinate “you f---ing bitch” establishes violation of rule. In re Redacted, CSA 190-03, 6, 8 (2/13/06).

Appellant retaliated against his supervisor for disciplinary action by requesting or directing his nephews to assault his supervisor. In re Moreno, CSA 138-04 (5/25/05).

Testimony about appellant's threats toward supervisors arising from resentment over recent suspension was more believable than appellant's denial of behavior, because co-workers were initially reluctant to report the threats until they began negatively affecting crew morale. In re Katros, CSA 129-04, 7 (3/16/05).

Co-worker's testimony of threats by appellant did not demonstrate a motive to lie in order to harm appellant. In re Katros, CSA 129-04, 7-8 (3/16/05).

Statements communicating appellant's continued animosity toward his supervisors were reasonably perceived as threats of harm by his co-workers. In re Katros, CSA 129-04, 9 (3/16/05).

Attendant circumstances, including appellant's past display of temper and suspension, tense work atmosphere, and circumstances surrounding appellant's negative comments, indicate that comments were reasonably considered threats. In re Katros, CSA 129-04, 10 (3/16/05).

Appellant's slap of co-worker's face established physical maltreatment or abuse of the co-worker, and thus violated rule against fighting. In re Freeman, CSA 40-05 & 75-04, 5 (3/3/05).

A control officer abused a member of the public where he pushed a security door into him for several seconds in an unauthorized attempt to prevent him from leaving. In re Gonzales, CSA 42-10, 8 (12/30/10).     

Officers neglected their duty to require reasonable suspicion testing under this rule, even though one was unsure if it was alcohol, where both smelled something like alcohol on the employee, observed he had red eyes, stumbled, repeated himself, fumbled with keys, and could not open his locker. In re Shelley & Martinez, CSB 30-13 & 32-13, 2 (12/9/14).

Follow-up drug and alcohol testing, required for continued employment under a stipulation and agreement, need not comply with DOT regulations controlling holders of CDL licenses. In re Delgado, CSB 75-08, 4 (7/2/09), reversing In re Delgado, CSA 75-08 (1/30/09).

Agency’s failure to produce a printed blood-alcohol test pursuant to DOT regulations did not invalidate test under a stipulation and agreement pursuant to city alcohol policy. In re Delgado, CSB 75-08, 4-5 (7/2/09), reversing In re Delgado, CSA 75-08 (1/30/09).

Where appellant was to refrain from any alcohol consumption under his stipulation and agreement, and he told his supervisor he consumed alcohol the night before his alcohol test, appellant’s admission is evidence, independent of his alcohol test, that he failed to comply with his stipulation and agreement. In re Delgado, CSB 75-08, 4-5 (7/2/09), reversing In re Delgado, CSA 75-08 (1/30/09).

EO 94:  DRUG & ALCOHOL POLICY - NOT FOUND

EO 94 does not support hearing officer’s interpretation requiring the concurrence of two supervisors before reasonable suspicion testing must be ordered. In re Shelley & Martinez, CSB 30-13 & 32-13, 3 (12/9/14).

It is error to rely on interpretation of orders by supervisors when those interpretations are inconsistent with the actual terms of the orders. In re Shelley & Martinez, CSB 30-13 & 32-13, 3 (12/9/14).

Where positive results of follow-up alcohol test were not printed out as required by the U.S. DOT regulations governing the testing procedures, the test was nullified and could not serve as proof of violation of this rule. In re Delgado, CSA 75-08, 8 (1/30/09), reversed In re Delgado, CSB 75-08 (7/2/09).

Where appellant had not exhibited indicia of having consumed alcohol on the day he took a follow-up alcohol test, agency failed to prove rule violation because sole remaining proof was positive alcohol test result that was nullified by its non-compliance with DOT regulations governing testing procedures. In re Delgado, CSA 75-08, 8 (1/30/09), reversed In re Delgado, CSB 75-08 (7/2/09).

EO 112:  VIOLENCE IN THE WORKPLACE - IN GENERAL

Appellant’s verbal abuse of her supervisor constituted violence in the workplace under executive order 112. In re Martinez, CSA 10-17, 7 (7/19/17).

The same facts which establish a violation of Executive Order 112 also establish a violation of this Career Service Rule. In re Lykken, CSA 26-10, 7 (7/7/10).

Violence in the workplace, in all its forms, is among the most serious offenses under the Career Service Rules. In re Lykken, CSA 26-10, 7 (7/7/10).

The same facts and findings which established violation of EO 112 and agency policy against violence in the workplace also establish a violation of this rule. In re Lykken, CSA 26-10, 7 (7/7/10).

That the mayor, agency, and Career Service Rules have addressed violence in the workplace separately demonstrates the emphasis interested authorities have placed on the prevention of and punishment for threats of violence and violent behaviors. In re Lykken, CSA 26-10, 7 (7/7/10). 

Abuse is defined as “to violate; to defile; to treat harshly; to use insulting, coarse, or bad language about or to; to revile.” In re Leslie, CSA 10-11, 12 (12/5/11), citing In re D’Ambrosio, CSA 98-09, 8 (5/7/10); In re Owens, CSA 69-08, 6 (2/6/09).  

The word abuse as used in this rule means harsh or insulting treatment or language. In re Perry-Wilborne, CSA 62-13, 8 (5/22/14), citing  In re Leslie, CSA 10-11, 12 (12/5/11); In re D’Ambrosio, CSA 98-09, 8 (5/7/10); In re Owens, CSA 69-08, 6 (2/6/09). 

Violations under this rule require a level of wrong to an employee, or to a member of the public, which significantly surpasses wrongs to employees  described under CSR 16-60 O. In re Roybal, CSA 60-11, 6 (3/13/12), citing In re Harrison, CSA 55-07, 89-07 & 90-07, 52 (6/17/10); In re D’Ambrosio, CSA 98-09, 7-8 (5/7/10); In re Owens, CSA 69-08, 6-7 (2/6/09); In re Lykken, CSA 26-10, 6 (7/7/10).  

The degree of mean-spiritedness required to find a violation under this rule contemplates abuse by defiling, insulting, using bad language about or reviling someone; or intimidation by making one fearful, frightened or compelling them by threat. In re Roybal CSA 60-11, 7 (3/13/12), citing WEBSTER’S UNABRIDGED DICTIONARY (1979). 

Intimidation is an unlawful threat intended to coerce another. In re Leslie, CSA 10-11, 12 (12/5/11).   

Abuse is defined as “to violate; to defile; to treat harshly; to use insulting, coarse, or bad language about or to; to revile.” In re Leslie, CSA 10-11, 12 (12/5/11), citing In re D’Ambrosio, CSA 98-09, 8 (5/7/10); In re Owens, CSA 69-08, 6 (2/6/09).  

An employee violates this rule by inflicting abuse on another. In re Gonzales, CSA 42-10, 8 (12/30/10).  

Abuse includes physical maltreatment. In re Gonzales, CSA 42-10, 8 (12/30/10).

A threat is a communicated intent to inflict harm or loss on another or his property. In re Harrison, CSA 55-07, 89-07 & 90-07, 50 (6/17/10), citing Black's Law Dictionary (8th ed. 2004).

A statement is a threat if a reasonable person would interpret it as such. In re Harrison, CSA 55-07, 89-07 & 90-07, 50 (6/17/10), citing In re Katros, CSA 129-04, 8 (3/16/05).

A threat is a communicated intent to inflict harm or loss on another or his property. In re D’Ambrosio, CSA 98-09, 8 (5/7/10) citing Black’s Law Dictionary (8th ed. 2004).   

Words that are reasonably perceived to be threats of physical harm are prohibited under this rule. In re D’Ambrosio, CSA 98-09, 8 (5/7/10). 

Intimidation is an unlawful threat intended to coerce another. In re D’Ambrosio, CSA 98-09, 8 (5/7/10) citing Black’s Law Dictionary (8th ed. 2004).   

Abuse is physical or mental maltreatment, often resulting in mental, emotional, sexual or physical injury. In re D’Ambrosio, CSA 98-09, 8 (5/7/10) citing Black’s Law Dictionary (8th ed. 2004).  

Gender difference between an actor and target is not determinative of a violation under this rule. In re Owens, CSA 69-08, 6 (2/6/09). 

“Abuse” as an element of this rule is defined as “to violate; to defile; to treat harshly; to use insulting, coarse, or bad language about or to; to revile.” In re Owens, CSA 69-08, 6 (2/6/09), citing WEBSTER’S UNABRIDGED DICTIONARY 1979. 

A violation under this rule is found for excessive physical force, or for cursing, but not where a reasonable person in the same situation as the target would not have been in fear of bodily harm. In re Owens, CSA 69-08, 6 (2/6/09), citing In re Redacted, CSA 190-03, 6, 8 (2/13/06); In re Richmond, CSA 18-07, 8 (8/7/07); In re Rogers, CSA 57-07, 6 (3/18/08). 

Proof that the victim of the threat is a city employee is a fundamental element to establish a violation of this rule. In re Trujillo, CSA 44-05, 3 (11/14/05) (decided under former § 16-50 A. 8). 

A fundamental element of this violation is that the threatened individual must be an employee or officer of the City and County of Denver. In re Mestas, CSA 37-05, 4 (8/4/05), (decided under former § 16-50 A. 8).

Appellant’s actions in aggressively questioning ex-girlfriend at work, kicking wet floor sign in her presence, entering through a secured door, and intimidating another worker constituted violation of rule requiring that employee conduct shall reflect credit on city. In re Mestas, CSA 37-05, 8 (8/4/05). 

Denver's policy regarding workplace violence prohibits threats of violence which are reasonably perceived to be a threat of imminent harm. The Airport Maintenance and Engineering Division's personnel manual establishes a stricter rule, prohibiting use of threatening or abusive language at any time. In re Katros, CSA 129-04, 7 (3/16/05).

A threat made against a supervisor is a serious matter which affects the ability of the agency to maintain a safe workplace for its employees. In re Katros, CSA 129-04, 7-8 (3/16/05), citing Vernon v. USPS, 87 M.S.P.R. 392, 400 (2000).

A statement constitutes a threat if a reasonable person would give that meaning to the words used. In re Katros, CSA 129-04, 8 (3/16/05), citing Metz v. Dept. of Treasury, 780 F.2d 1001 (Fed. Cir. 1986.)

A trier of fact must give heavy weight to objective factors in determining if a reasonable person would consider the words threatening, including the listener's reaction and apprehension of harm, the speaker's intent, any conditional nature of the statement, and the circumstances surrounding an alleged threat. In re Katros, CSA 129-04, 8 (3/16/05), citing Metz v. Dept. of Treasury, 780 F.2d 1001, 1002 - 1003 (Fed. Cir. 1986.)

Issue is not whether appellant was likely to carry out a threat, but whether he intended his statements as a threat. In re Katros, CSA 129-04, 9 (3/16/05), citing Greenough v. Dept. of Army, 73 M.S.P.R. 648 (1997).

Abuse is defined as physical maltreatment. In re Freeman, CSA 40-04 & 75-04, 5 (3/3/05), citing Black's Law Dictionary (Abridged 6th Ed. 1991).

Appellant violated Executive Order 112, prohibiting threatening or hostile behavior in the workplace when his supervisor instructed appellant to apologize to a co-worker, but appellant reacted with rage, making intimidating and hostile statements, and the supervisor’s testimony was credible based on the consistency with which he recounted the incident and based on Appellant’s prior similar conduct. In re Weiss, CSA 68-10, 12 (2/14/11). 

DIA equipment operator did not violate Executive Order 112, prohibiting violent behavior, where his statement “you deserved it,” to his co-worker, referred to reporting the co-worker’s actions to their supervisor, and supervisor who imposed discipline failed to read 20 witness statements confirming co-worker instigated incident, and supervisor failed to consider appellant’s past record. In re Cotton, CSA 104-09, 12 (10/18/10).   

This Executive Order prohibits all forms of violence in the workplace, including actual and attempted physical violence and shouting at another. In re Lykken, CSA 26-10, 7 (7/7/10).

It is the recipient’s reasonable reaction, and not actor’s intent, that is the focus of workplace violence. In re Lykken, CSA 26-10, 7 (7/7/10). 

Violence is an actual or attempted physical assault, threatening behavior, verbal abuse, intimidation, harassment, swearing at, shouting at, or stalking. In re D’Ambrosio, CSA 98-09, 10 (5/7/10).  

Words grouped in a list should be given related meaning to avoid ascribing to one word a meaning so broad that it is inconsistent with its accompanying words. In re D’Ambrosio, CSA 98-09, 7 (5/7/10), citing S.D. Warren Co. v. Maine Bd. of Envir. Prot., 547 US 370, 378 (2006); Gustafson v. Alloyd Co., Inc., 513 US 561, 575 (1995).   

Examples of conduct in the definition of violence are actions that may subject an employee to discipline if performed in a violent manner. In re D’Ambrosio, CSA 98-09, 10 (5/7/10). 

An employee violates this Executive Order where he exhibits violence, defined as an actual or attempted physical assault, threatening behavior, verbal abuse, intimidation, harassment, swearing at, shouting at, or stalking, where any of these actions are performed in a violent manner, since the words grouped in the list should be given related meaning. In re D’Ambrosio, CSA 98-09, 10 (5/7/10). 

A violation may occur even if the target does not feel intimidated, threatened, or the target of hostile behavior, if the actor intended such consequence or a reasonable person would perceive the behavior as intimidating, threatening or hostile. In re Owens, CSA 69-08, 6 (2/6/09).

Violations under this rule must be determined by an examination of the totality of the circumstances. In re Owens, CSA 69-08, 6 (2/6/09).

An attempt to intimidate co-employees or members of the public, even if unsuccessful, can violate this executive order. In re Owens, CSA 69-08, 6 (2/6/09).

EO 112:  VIOLENCE IN THE WORKPLACE - FOUND

Deputy sheriff’s unexpected hard slap onciting  the buttocks of a fellow officer in front of his peers and insulting banter with another officer constitutes physical assault in a city workplace, and thus violates this rule. In re Rogers, CSA 57-07, 6 (3/18/08).

Appellant violated this rule when he assaulted a co-worker in response to his teasing comments made a week earlier. In re Delmonico, CSA 53-06, 4 (10/26/06).

Violation of this Executive Order was established where appellant shouted at co-worker and co-worker was reasonably intimidated. In re Lykken, CSA 26-10, 7 (7/7/10).

EO 112:  VIOLENCE IN THE WORKPLACE - NOT FOUND

Agency failed to prove parking agent's threat to report contractor's procedural violation violated executive order against violence in workplace where employee had authority to oversee contractor. In re D’Ambrosio, CSA 98-09, 10 (5/7/10). 

Evidence which proves only that the actor was loud, frustrated, and upset, without more, is insufficiently egregious to violate this executive order. In re Owens, CSA 69-08, 6 (2/6/09).

Where evidence was conflicting as to whether appellant shoved his parking citation toward parking supervisor in a threatening manner, no violation can be found. In re Owens, CSA 69-08, 6 (2/6/09).

Alleged victim’s claim that appellant “seemed to be using his height and anger to intimidate me which did not work” is an insufficient statement of intimidation to find a violation of this executive order. In re Owens, CSA 69-08, 6 (2/6/09). 

Case worker was not abusive under this rule when she became overwhelmed by a client’s disabled appearance, announced “I can’t deal with this” and left abruptly, where it was not clear the client heard or understood the employee's remark. In re Perry-Wilborne, CSA 62-13, 8 (5/22/14).

This rule only applies to victims who are city employees, officers, or members of the public. Inmates are not members of the public, and therefore, the rule is inapplicable to inmates, particularly as other rules specifically address inmate abuse. In re Carothers, 13-11, 15 (1/5/12); In re Weeks, CSA 26-09, 5 (7/20/09), rev’d on other grounds, City and County of Denver v. Weeks, 10CA1408 (Colo. App. Oct. 13, 2011). 

Violation was not proven where agency relied entirely on the testimony of a witness found not to be credible. In re Gutierrez, CSA 65-11, 12 (8/28/12).

No violation established even though appellant instructed subordinate to use threats and deception to obtain free replacements in violation of agency’s contract with the provider, where there was no evidence she used defiling, insulting or bad language to obtain the phones, and there was no evidence the provider felt threatened, fearful, or frightened. In re Roybal, CSA 60-11, 6 (3/13/12).    

Dispatcher’s loud comments which suggested other employees didn’t know what they were doing, did not rise to the level of conduct prohibited by this rule. In re Leslie, CSA 10-11, 12 (12/5/11).   

Employee did not threaten co-worker by her email indicating that his deeds would repay him in kind, since the statement does not suggest employee would herself take any action against co-worker. In re Harrison, CSA 55-07, 89-07 & 90-07, 52 (6/17/10).   

Interaction that is merely angry does not constitute abuse under this rule. In re Harrison, CSA 55-07, 89-07 & 90-07, 52 (6/17/10), citing In re Owens, CSA 69-08, 7 (2/6/09).    

Co-worker complaints for which employee had already been disciplined may not be used to support later discipline. In re Harrison, CSA 55-07, 89-07 & 90-07, 52 (6/17/10). 

Parking agent's statement to tow truck driver that he would be watching him after witnessing him speeding and without a required badge was not beyond agent's authority or improper for any other reason. In re D’Ambrosio, CSA 98-09, 8 (5/7/10).          

Parking agent's threat to have a customer arrested was not abuse where customer's reaction was to raise his hand and move his car, showing frustration rather than mental or emotional injury, as needed to prove abuse under this rule. In re D’Ambrosio, CSA 98-09, 8 (5/7/10).          

Agency did not prove violation of this rule where it did not prove appellant was aware an investigation was underway when he asked a witness why he snitched. In re Carter, CSA 87-09, 8-9 (2/17/10).

Appellant’s loud, frustrated interaction with a co-worker did not violate the rule where the target of the exchange was not in fear of any bodily harm and incident did not involve physical force or cursing. In re Owens, CSA 69-08, 7 (2/6/09), citing In re Rogers, CSA 57-07, 6 (3/18/08) [physical force]; In re Redacted, CSA 190-03, 6, 8 (2/13/06) [cursing]; In re Richmond, CSA 18-07, 8 (8/7/07) [bodily harm].

Agency failed to establish a violation of this rule where the only evidence in support of its claim was the word of 2 unreliable witnesses. In re Abdi, CSA 63-07, 28 (2/19/08).

Evidence that recreation coordinator used alcohol in recreation center with a subordinate employee was insufficient to prove a violation of this rule in the absence of evidence that appellant put subordinate in fear of bodily or other harm, or coerced her to use alcohol. In re Rivas, CSA 49-07, 10 (1/9/08).

Threats to non-city employees do not violate this rule. In re Trujillo, CSA 44-05, 3 (11/14/05) (decided under former § 16-50 A. 8).

Where agency failed to establish that individual allegedly threatened by appellant was an employee or officer of the City and County of Denver, violation of this rule was not proven. In re Mestas, CSA 37-05, 4 (8/4/05) (decided under former § 16-50 A. 8).

 
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