Jurisdiction

See also Rules: § 19-10;  19-43

 


TOPICS

 


Discrimination 

Complaints of discrimination, harassment or retaliation may not be brought through 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).

Hearing office's jurisdiction under this rule was limited to the complaint appellant reported to the agency: sexual/racial harassment. 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).

Complaints of discrimination, harassment or retaliation should not be brought through a grievance under CSR 18-10 C.2, but through filing 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). 

Hearing office's jurisdiction under this rule was limited to the complaint appellant reported to the agency: sexual/racial harassment.  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). 

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.   

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. 

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  Grievance 

Under CSR 15, an agency has specific obligations when a complaint of discrimination, harassment or retaliation is filed to investigate and take effective, thorough and objective steps to address the complaint. In re Gallo, CSA 63-09, 2 (CSB 3/17/11). 

A grievance over a transfer that does not impact an employee's pay, benefits or employment status may not be appealed under 19-10 A.2.b.   In re Gallo, CSA 63-09, 3 (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). 

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). 

A grievance over a transfer that does not impact an employee's pay, benefits or employment status may not be appealed under 19-10 A.2.b.   In re Gallo, CSA 63-09, 3 (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). 

Whether person who took leave action was a supervisor/manager whose actions could be grieved is a factual issue requiring resolution at hearing.   In re Anderson, CSA 102-09, 2 (Order 1/8/10). 

Use of a complaint form to raise grievance  did not justify dismissal of appeal where form gave agency notice of grievable issue, and the agency itself treated the issue as an appealable grievance.   In re Anderson, CSA 102-09, 2 (Order 1/8/10). 

Grievance appeal is not subject to dismissal as untimely where parties presented 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). 

Grievance appeal is not subject to dismissal on jurisdictional grounds where parties dispute whether appellant met prerequisites for filing a grievance.   In re Anderson, CSA 102-09, 2 (Order 1/8/10). 

Dispute as to when appellant had notice of facts which form the basis of her appeal raises fact issue that requires a hearing.   In re Anderson, CSA 102-09, 2 (Order 1/8/10).  

Appellant’s failure to use official grievance form did not deprive her of the remedy of an appeal where the form used gave the agency notice of a grievable issue that it treated as an appealable grievance.   In re Anderson, CSA 102-09, 2 (Order 1/8/10). 

In order to establish jurisdiction over a challenge to the denial of a grievance, appellant must show that he filed a grievance of an action negatively affecting his pay, benefits, or status that violated a rule,  Charter provision, executive order, or policy.  § 19-10 A.2.b.  In re Morgan, CSA 63-08, 17 (4/6/09). 

Appellants' claim that the grieved action violated a rule and negatively affected their pay established hearing office jurisdiction over their grievance appeal.   In re Vasquez and Lewis, CSA 08-09, 09-09 (Order 3/11/09). 

Career Service Rules clearly provide the hearing officer with jurisdiction over grievances to which an agency has failed to respond.  In re Luft, CSB 43-08 (12/12/08).   

Implicit in this rule is the grant of authority to the hearing officer to order an agency to respond to a grievance.  In re Luft, CSB 43-08 (12/12/08). 

In appeal of agency's failure to respond to grievance, hearing officer correctly determined he did not retain jurisdiction over the grievance after the agency responded to the grievance.  In re Luft, CSB 43-08 (12/12/08).  

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 In general 

A petition for review which fails to invoke any of the five grounds for review under CSR 19-61 is subject to dismissal for lack of jurisdiction. In re [Redacted], CSB 57-11A (12/20/12). 

In determining whether a pro-se petition for review states a claim for which the CSB has jurisdiction, the CSB should interpret the petition liberally. In re [Redacted],, CSB 57-11A (12/20/12), citing Hall v. Bellmon, 935 F.2d 1106, 1110)(10th Cir. 1991) (“A pro-se litigant’s pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.”). 

Jurisdiction under CSR 19-61 B. requires more than a conclusory statement that some unidentified rule was interpreted incorrectly.   In re Napoli, CSB 74-10, 3 (8/18/11).      

No violation under CSR 19-61 C. (policy setting precedent), where Appellant’s suggestion, that hearing officer’s decision renders any City employee subject to termination without notice of his violations, was contrary to two notices he received about the policy he violated.   In re Napoli CSA 74-10, 3 (CSB 8/18/11).    

Under CSR 19-61 D., the Board may reverse the hearing officer’s decision only if it not supported by the evidence in the record and is clearly erroneous.  In re Napoli, CSB 74-10, 3 (8/18/11).   

Although the Board had jurisdiction to review the sufficiency of the evidence, the Board may not substitute its own conclusions for those of the hearing officer based on conflicting testimony that may support a different result.   In re Napoli, CSB 74-10, 3 (8/18/11).     

It is the hearing officer’s responsibility to judge the credibility of witnesses, determine motive, bias or prejudice, and decide the weight given to the evidence. In re Napoli, CSB 74-10, 3 (8/18/11). 

Where there is conflicting evidence that may support an alternate conclusion to the Hearing Officer’s, the Board is required to review the Hearing Officer’s decision under a “clearly erroneous” standard.  In re Napoli, CSB 74-10, 4 (8/18/11).    

Appeals to the Hearings Office, other than for whistleblowing claims, must be filed within fifteen days after the date of notice of the action being appealed.  In re Webster, CSA 78-10 (Order 12/7/10).

 While an attorney’s neglect figures prominently in post-judgment remedies, such as CRCP 60 (b), exceptions to jurisdictional filing deadlines are limited to exceptional circumstances, such as an agency’s misleading an appellant concerning his filing deadline. In re Webster, CSA 78-10 (Order 12/7/10). 

In the absence of showing extraordinary circumstances, the failure of appellant’s attorney to file an appeal timely requires dismissal of the appeal. In re Webster, CSA 78-10 (Order 12/7/10). 

Sanctions against appellant’s attorney for failure to file client’s appeal timely are not a matter within the jurisdiction of the Hearings Office. In re Webster, CSA 78-10 (Order 12/7/10). 

Appellant’s assertion that computer problems delayed the timely submission of her appeal does not meet the high standard for extraordinary circumstances that would warrant justification for an extension after the deadline.  In re Noel, CSA 88-10, 1 (Order 12/28/2010). 

A separate penalty hearing is appropriate to complete a de novo determination on the appropriateness of the penalty imposed, where the Agency terminated employee but established that he violated only three out of ten rules asserted in the disciplinary letter, inexplicably gave substantially different penalties to the parties for their roles in the same incident, and failed to read twenty witness statements asserting that employee was not the aggressor in the incident, and the employee had no previous disciplinary history.  In re Cotton, 104-09, 13 (10/19/2010).     

Hearing office has jurisdiction over layoff appeal of employee with career status.  In re Sanders, CSA 62-09, 4 (9/24/10), citing CSR § 19-10 A.1.e., City Charter §§ 9.1.1.E.(vi), 9.8.2.(A).   

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). 

An employee who was a Career Service employee at the time of his termination from employment is entitled to file a direct appeal of his termination under CSR 19-10 A.1.a, and by the City’s Charter, §§9.1.1E.(vi); 9.8.2 (A).  In re Abbey, CSA 99-09, 6 (8/9/10). 

Appellant has the burden to establish jurisdiction over the denial of her grievance under CSR 19-10 A.2.b.i. In re Anderson, 102-09, 3 (7/20/2010). 

Use of wrong form does not automatically divest Hearing Office of jurisdiction over an appeal.  In re Anderson, 102-09, 3 (7/20/2010). 

Where grievance was proper format for her allegations, Appellant’s filing of a complaint instead of a grievance does not divest Hearings Office of jurisdiction over her appeal, as long as the complaint substantially complied with grievance requirements under CSR 18. In re Anderson, 102-09, 3 (7/20/2010). 

Hearing was required on disputed issues of fact where Appellant raised a colorable claim of jurisdiction, even though she filed a complaint, instead of a grievance, asserting that the Agency violated a Career Service Rule that negatively impacted her pay.  In re Anderson, 102-09, 3 (7/20/2010). 

Hearing office has jurisdiction over Agency denial of Appellant’s grievance which, resulted in an alleged Rule violation and negatively impacted employee’s pay.  In re Anderson, 102-09, 3 (7/20/2010).

 Jurisdiction for a grievance appeal established by Agency’s acceptance of a designation from another City agency, where appellant filed a grievance regarding the designation of FMLA leave with agency that was designated by the appointing authority to designate FMLA leave, notify the employee of the designation, and “provide other required information about FMLA leave.”  In re Anderson, 102-09, 3 (7/20/2010). 

Jurisdiction is created by the career service rules, and cannot be created by any other means, including an outdated appeal form.  In re Zacker, 44-10, 1 (Order 7/15/10).   

Only those grounds listed in 19-10 A.1. are subject to direct appeal, and resignation is not one of them.  In re Smith, CSA 14-10 (6/4/10), rev'd on other grounds, (CSB 11/14/10). 

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

Appellant established jurisdiction by proof that his resignation was involuntary, having been prompted by emotional distress, and that the agency allowed appellant to retract previous resignations was first accepted then rejected.  In re Smith, CSA 14-10 (6/4/10), rev'd (CSB 11/4/10). 

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).   

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).    

Career Service Rules do not empower hearing officer to stay operation of a disciplinary suspension prior to hearing.  In re James, CSA 33-10 (Order 5/18/10).   

When appellant filed the appeal of his suspension one day after the 15-day filing deadline, the hearing office lacks jurisdiction to hear the appeal.  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 P.2d 33 (Colo. 1980). 

The career service hearing office does not have subject matter jurisdiction over a collective bargaining agreement.  In re Paz, CSA 07-09A, 2 (CSB 1/21/10), citing In re Espinoza, CSB 30-05 (8/23/06).  

Even though employee belonged to a trade union and was subject to the terms of a collective bargaining agreement, as a career service employee his conduct was controlled by the career service rules, not the collective bargaining agreement.  In re Paz, CSA 07-09A, 2 (CSB 1/21/10). 

The jurisdiction of the hearing office includes the authority to hear and decide all evidence relevant to a  dismissal, including a claim that the dismissal was unfair under the Career Service Rules.  In re Koehler, CSA 113-09, 3 (Order 1/27/2010), citing In re Stone, CSA 70-07 (Order 11/20/07); In re Diaz, CSA 72-06 (CSB 9/20/07).    

Where agency withdrew the action giving rise to the appeal, there remains no justiciable issue to be heard.  In re Muller, CSA 48-08 (Order 4/15/09). 

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

The career service rules provide the sole jurisdictional basis for appeals heard by hearing officers.   In re Morgan, CSA 63-08, 16 (4/6/09). 

Hearing officers are without jurisdiction to determine matters asserting original jurisdiction under federal law or regulation.   In re Morgan, CSA 63-08, 16 (4/6/09). 

As a civilian employee of the police department, appellant is a member of the career service personnel system, and may appeal discipline under the career service rules.   In re Morgan,CSA 63-08, 2 (4/6/09), citing Denver City Charter, §§ 9.1.1. E.(vi), 9.8.2.(A); CSR § 19-10 A.1.a.  

Police officers belong to the classified service, which provides the rights to organize and bargain collectively and appeal rights under an alternate merit personnel system.  In re Morgan, CSA 63-08, 2 (4/6/09). 

The hearing office has only such jurisdiction as is conferred by the city charter and under the career service rules.   In re Black, CSA 16-09 (Order 3/12/09). 

In the absence of jurisdiction, the hearing officer may not consider the merits of a claim.   In re Black, CSA 16-09 (Order 3/12/09). 

Where appeal fails to identify hearing office jurisdiction over the subject matter of the claim, hearing office may not consider the merits of the claim.   In re Black, CSA 16-09 (Order 3/12/09). 

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). 

The substance of the claim, as evidenced by the facts alleged and the relief requested, determines the existence of subject matter jurisdiction.   In re Vasquez and Lewis, CSA 08-09, 09-09 (Order 3/11/09), citing City of Boulder v Public Service Company of Colorado, 996 P2d 198 (Colo. App. 1999). 

Career service hearing officer’s jurisdiction is limited to affirming, reversing, or modifying actions which give rise to an appeal.   In re Muller, CSB 48-08, 2 (3/10/09); CSR 19-55. 

Hearing officers are without jurisdiction to rule on the constitutionality of the career service rules.   In re Sawyer and Sproul, CSA 33-08, 17 (1/27/09), citing In re Ray, CSA 57-06, 3 (12/4/06). 

Where layoff appeal was dismissed with prejudice on appellant’s own motion, later claim that same layoff was motivated by age discrimination was barred by claim preclusion.   In re Cho, CSA 01-09, 2-3 (Order 1/21/09). 

The Board’s reversal of a hearing officer’s decision is a final determination.  In re Sample, CSA 55-08 (Order 1/7/09). 

When a career service rule grants the discretion to take or not to 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 (1/7/09). 

Appellants’ claim for pay adjustment under § 9-50 E. is moot, where they were granted the remedy requested. In re Anderson et al., CSA 78-08 to 124-08 (1/7/09). 

Where appellant failed to challenge CSB’s reinstatement of earlier termination action by filing a remedial writ in district court, appeal of later termination is moot.  In re Sample, CSA 55-08 (1/7/09). 

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

Where the appellant seeks one remedy for which the hearing officer has no jurisdiction, but another remedy not sought by the appellant would afford relief under the CSR, the hearing officer may not dismiss the appeal for lack of jurisdiction.  Rather the hearing officer must assess the possible causes of action and avenues of relief to afford the appellant the broadest possible relief under the CSR.  In re Luft, CSA 43-08, 2 (Order 7/24/08). 

Where the hearing officer is without jurisdiction to grant the only relief acceptable to the appellant, the appeal may be dismissed upon agency motion or upon the hearing officer’s own motion.  In re Luft, CSA 43-08, 2 (Order 7/24/08), citing In re Felix, CSA 82-07 (2/14/08), aff’d CSB 6/5/08. 

Where appellant did not allege any exception listed in §19-10 A. 2. b., the agency’s method of assigning employees is entirely within its discretion, and not within the jurisdiction of a hearing officer.  In re Luft, CSA 43-08, 2 (Order 7/24/08). 

Where the appellant seeks one remedy for which the hearing officer has no jurisdiction, but another remedy not sought by the appellant would afford relief under the Career Service Rules, the hearing officer may not dismiss the appeal for lack of jurisdiction.  Rather the hearing officer must assess the possible causes of action and avenues of relief to afford the appellant the broadest possible relief under the Career Service Rules. In re Luft, CSA 43-08, 2 (Order 7/24/08). 

Where the hearing officer is without jurisdiction to grant the only relief acceptable to the appellant, the appeal may be dismissed upon agency motion or upon the hearing officer’s own motion.  In re Luft, CSA 43-08, 2 (Order 7/24/08), citing In re Felix, CSA 82-07 (2/14/08), affirmed, In re Felix, CSB 82-07 (6/5/08). 

Where appellant did not allege any exception listed in CSR 19-10 A. 2. b., agency’s method of assigning employees is entirely within its discretion, and not within the jurisdiction of a hearing officer.  In re Luft, CSA 43-08, 2 (Order 7/24/08). 

Hearing officer must determine whether appellant is disqualified under the federal Lautenberg Amendment independently of sheriff's department and its advisors.  In re Luna, CSA 42-07, 6 (7/15/08), citing In re Ray, CSB 57-06 (8/14/07).  

Hearing officer’s authority to award back pay derives from § 19-55, which requires a decision affirming, modifying, or reversing the agency action challenged by the appeal.  In re Maes, CSA 180-03, 6 (6/20/08). 

Authority to modify or reverse agency termination decision necessarily includes authority to award reinstatement, restoration of lost pay at the applicable rate, and payment of any lost benefits.  In re Maes, CSA180-03, 6 (6/20/08). 

Hearing office lacks jurisdiction to award damages for breach of contract, including consequential damages arising from any lost opportunities for secondary employment.  In re Maes,CSA 180-03, 6 (6/20/08). 

Hearing officer’s citation to authority not in the record does not create jurisdictional ground for appeal to CSB under CSR 19-61 B, erroneous rules interpretation.  In re Ray, CSB 57-06, 2 (5/20/08). 

The hearing officer has the right to determine, in the first instance, whether he has jurisdiction to hear an appeal.  In re Brooks, CSB 91-07, 2 ( 4/9/08). 

When jurisdiction turns on resolving factual issues, the hearing officer must determine those facts before the board will intervene on an interlocutory appeal.  In re Brooks, CSB 91-07, 2 (4/9/08). 

Lack of proper delivery of an ultimate employment decision is not a separate ground for jurisdiction under Rule 19.  In re Wehmhoefer, CSA 02-08, 5 (2/14/08). 

Hearing officer is without jurisdiction to grant a change in supervisor.  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). 

Hearing officer has no jurisdiction to determine whether agency’s action in denying holiday pay violated a collective bargaining agreement.  In re Sullivan, CSB 60-07,2 (2/1/08). 

The hearing officer has no authority to require changing the supervisor’s comments within a PEPR, even when the overall rating is reversed. In re Hoffman, CSA 25-05 (Order 8/18/05). 

Hearing officer does not have jurisdiction over claim of whistleblowing under CRS § 24-10-109. In re Garcia, CSA 175-04, 6 (7/12/05). 

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

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 Miscellaneous claims

Transfer was not an employment action that could be appealed directly to the hearing office under 19-10 A.1.   In re Gallo, CSA 63-09, 3 (CSB 3/17/11). 

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 Motions to dismiss  

Dismissal is inappropriate where basis of jurisdiction is apparent from a fair reading of the appeal documents.   In re Anderson, CSA 102-09 (Order 1/8/10), citing In re Bane, CSA 82-09, 2 (Order 10/26/09). 

Motion to dismiss is treated as one of summary judgment where it alleges facts beyond those contained in the appeal.   In re Anderson, CSA 102-09 (Order 1/8/10), citing C.R.C.P. Rules 12 (c); 56. 

A motion to dismiss treated as one of summary judgment presents the issue of whether there are genuine issues of material fact that require a hearing.   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). 

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). 

Appellants' claim that agency's failure to grant their requested pay increases violated § 13-60 B and negatively impacted their was sufficient to acquire subject matter jurisdiction.   In re Vasquez and Lewis, CSA ## 08-09, 09-09, 2 (5/20/09). 

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

In response to a motion to dismiss, appellant must demonstrate that the hearing office has jurisdiction over the subject matter of the claim.   In re Vasquez and Lewis, CSA 08-09, 09-09 (Order 3/11/09). 

To establish jurisdiction in response to a motion to dismiss, appellant must raise a colorable claim under Rule 19.   In re Vasquez and Lewis, CSA 08-09, 09-09 (Order 3/11/09). 

Motion to dismiss was denied where appellants' claim that the grievance being appealed violated § 13-10 F and negatively affected their pay was sufficient to establish subject matter jurisdiction under Rule 19.   In re Vasquez and Lewis, CSA 08-09, 09-09 (Order 3/11/09).  

Appeal was dismissed based on appellant’s voluntary withdrawal of previous appeal alleging the same parties and cause of action.   In re Cho, CSA 01-09, 3 (Order 1/21/09). 

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). 

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).  

In appeal of agency’s failure to respond to grievance, hearing officer correctly determined he did not retain jurisdiction over the grievance after the agency responded to the grievance.  In re Luft, CSB 43-08 (12/12/08). 

When matters outside the pleadings are presented to the hearing office on the issue of whether the appeal states a claim upon which relief can be granted, the matter shall be treated and disposed of as one for summary judgment under C.R.C.P. 56.  In re Steward, CSA 18-08 (4/11/08), citing C.R.C.P. 12(b).  

For the purpose of resolving a motion to dismiss, the factual allegations in an appeal shall be taken as true without assessment of credibility.  In re Steward, CSA 18-08 (4/11/08),citing Norton v. Leadville Corp., 610 P.2d 1348 (1979); Discovery Land & Dev. Co. v. Colorado-Aspen Dev. Corp., 577 P.2d 1101 (Colo. App. 1977.) 

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 Remedies

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).   

Hearing Office may interpret a settlement agreement as part of its authority “to implement and maintain a fair and efficient process for appeals.”   In re Compton, CSA 71-10, 2 (3/31/11),citing CSR 19-30A.      

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Whistleblowing 

A claim under the Whistleblower Protection Ordinance is raised by allegations that 1) a supervisor imposed or threatened to impose 2) an adverse employment action upon an employee 3) on account of the employee’s disclosure of information about any official misconduct to any person.  In re Steward, CSA 18-08 (4/11/08), citing In re Wehmhoefer, CSA 2-08 (2/14/08); D.R.M.C. § 2-108. 

Discussions between employee and supervisor about working conditions that do not assert official misconduct are not disclosures under the Whistleblower Protection Act. In re Steward,CSA 18-08 (4/11/08).  

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