Dismissal (of appeal)

(See also Jurisdiction and §19-10)  

Dismissal justified where Appellant assiduously avoiding fulfilling the duties and responsibilities of her position, treated co-workers and supervisor with scorn, engaged in threatening behavior, refused to comply with directives, breached security, and prior coaching and discipline were ineffective.  In re Robinson, CSA 03-13,11 (6/18/13).

Hearing officer's determination that discharge was appropriate was supported by facts and law where forensic scientist's credibility was damaged by shoplifting incident.  In re [Redacted], CSB 57-11A, 3 (12/20/12).  

Agency is not required to retain appellant - whose duties include testifying in court and who was terminated after her shoplifting charge - based on her speculation that the Colorado Supreme Court could overturn its own decision to allow impeachment of a witness who was charged with shoplifting.  In re [Redacted], CSB 57-11A (12/20/12), citing People v. Segovia, 196 P.3d 1126 (Colo. 2008).

Where the standard of review is whether the hearing officer’s findings were clearly erroneous, appellant’s 14-page recitation of her version of the facts failed to address that standard.  In re Roybal, CSB 60-11A (8/2/12).  

When appeal was dismissed for appellant’s failure to file a pre-hearing statement, he failed to present extraordinary circumstances to set aside dismissal where he stated he was ill but produced no medical letter, and stated he received show-cause order late, but failed to attach even a late pre-hearing statement.  In re Maestas, CSA 33-11, 1 (Order 8/9/11).  

Dismissal was within the range of penalties that may be imposed by a reasonable administrator where DIA plumber’s misconduct, dishonesty, misappropriation of City property, and pattern of excessive leave usage, was serious and intentional, and he failed to take responsibility for his actions, despite having no previous disciplinary history.  In re Duran, CSA 10-10, 13 (10/1/2010).    

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), citing In re Muller, CSA 48-08 (7/24/08).    

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). 

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). 

Only grievances which result in an alleged violation of the career service rules and negatively impact pay, benefits or status may be appealed.  In re Anderson et al, CSA 78-08 to 124-08, 3 (1/7/09). 

When a career service rule grants the discretion to take or not take a certain action under the rule, a hearing officer may not reverse the course taken unless it runs afoul of a supervening rule or law.  In re Anderson et al, CSA 78-08 to 124-08, 3 (1/7/09).  

When a career service rule grants an appointing authority the choice of action or inaction, appellants cannot prove a violation of the rule as required to obtain jurisdiction over an appeal of that grievance. In re Anderson et al, CSA 78-08 to 124-08, 3 (1/7/09).   

Appeal of grievance regarding denial of pay adjustment is moot as to 23 appellants whose requests for pay adjustment were granted under § 9-50 E.  In re Anderson et al, CSA 78-08 to 124-08, 3 (1/7/09).   

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 he alleges them would entitle him to relief.  In re Anderson et al, CSA 78-08 to 124-08, 3 (1/7/09), citing In re Boden, CSA 86-06 (Order 11/22/06); Dorman v. City and County of Denver, 03 CV 4712 (Order 2/4/05). 

The career service rules mirror the provisions of the Denver City Charter in which career service employees may be terminated only for cause and may appeal a termination decision to the board and its hearing officers.  In re Mounjim, CSA 87-07 7 (CSB 1/8/09).

Because of the right to a post-termination hearing, an employee’s pre-termination rights are limited:  due process requires only notice of the charges, a recitation of the employer’s evidence, and an opportunity to be heard.  In re Mounjim, CSA 87-07, 8 (CSB 1/8/09), citing Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985).

Where only bases for appeal are allegations of discrimination, harassment and retaliation, appellant's failure to identify a protected status for his discrimination and harassment claims, and his failure to identify a protected activity for his retaliation claim, require dismissal of appeal.   In re Mora, 125-08 (Order 11/28/08). 

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).

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). 

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).

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).    

Where an appellant seeks one remedy for which the hearing officer has no jurisdiction, but there is jurisdiction that would afford another remedy under the rules, the hearing officer may not dismiss the appeal for lack of jurisdiction.  In re Felix, CSA 82-07 (2/14/08).

Hearing officer has no jurisdiction over breach of contract and pain and suffering claims.  In re Felix, CSA 82-07 (2/14/08).

Disqualification appeal was dismissed for lack of jurisdiction where only remedy that would be acceptable to appellant is a change of supervisors.  In re Felix, CSA 82-07 (2/14/08).

Where hearing officer is without jurisdiction to grant the only relief acceptable to the appellant, appeal may be dismissed upon agency motion or on the hearing officer’s own motion.  In re Felix, CSA 82-07 (2/14/08).

Where the only relief acceptable to appellant was a change of supervisor, appeal was dismissed for lack of jurisdiction.  In re Felix, CSA 82-07, 2 (2/14/08).

Probationary employee has no property interest in continued employment that would entitle him to pre-termination protection.  In re Romero, CSA 03-08 (Order 2/6/08), citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541-45 (1985).

Hearing office has no jurisdiction to hear a claim of discrimination on the grounds of equal protection by a terminated probationary employee based on denial of a pre-disciplinary meeting.  In re Romero, CSA 03-08, 2 (Order 2/6/08). 

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, 2 (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).  

Appellant substantially complied with § 19-10 B.1. by filing grievance raising claim of disparate treatment on the basis of sex. In re Boden, CSA 86-06, 2 (Order 11/22/06), citing In re Benoit, CSA 123-02 (9/18/02), and In re Douglas, CSA 317-01 (4/3/02).

 In sex discrimination appeal of no-earrings policy for male deputy sheriffs, appellant is entitled to present evidence rebutting agency’s argument that the sense of common bond within the sheriff’s department would be adversely affected if its male members were permitted to wear earrings.  In re Boden, CSA 86-06 (Order 11/22/06); citing Rathert and Zybak v. Village of Peotone, 903 F.2d 510 (7th Cir. 1990).

Agency’s argument that no-earrings policy was rationally based on need for public to recognize police officers was not applicable to deputy sheriffs, whose primary duty is the care and custody of inmates in city and county jails.  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 (Decided under former § 5-64).

Appeal was dismissed where it was filed outside the 15-day deadline imposed by § 19-20 A.1 and appellant offered no reason 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).

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