Rule 14: Separation Other Than Dismissal

A resignation is presumed to be voluntary. In re Smith(PDF, 331KB), CSB 14-10 (11/4/10), reversed In re Smith(PDF, 238KB), CSA 14-10 (6/4/10).

Where Appellant had just been warned by his supervisor that if he threatened to quit again his resignation would be accepted, Appellant's subsequent utterance "I quit" expressed clear intent to resign, and was properly accepted by the Agency. In re Smith,(PDF, 331KB) CSB 14-10 (11/4/10), reversed In re Smith(PDF, 238KB), CSA 14-10 (6/4/10).

Hearing officer's finding that resignation was involuntary was reversed where appellant told his supervisor and director "I quit" after being warned they would accept any future threats to quit, and words unambiguously expressed a clear intent to resign. In re Smith,(PDF, 331KB) CSB 14-10 (11/4/10), citing In re Augustine(PDF, 140KB), CSB 05-09 (9/30/09). 

Fact that agency did not accept employee's previous resignation does not change the meaning of the words used, or transmogrify the agency's acceptance of the current resignation into a "gotcha" dismissal. In re Smith(PDF, 331KB), CSB 14-10 (11/4/10). 

The standard by which an employee must prove his resignation was involuntary is by a preponderance of the evidence. In re Smith(PDF, 238KB), CSA 14-10, 3 (6/4/10), reversed In re Smith(PDF, 331KB), CSB 14-10 (11/4/10).

Resignation tendered under emotional distress should not be held to be irrevocable or relieved only by the consent of the agency. In re Smith(PDF, 238KB), CSA 14-10, 5 (6/4/10), reversed In re Smith(PDF, 331KB), CSB 14-10 (11/4/10).

Where an employee’s actions surrounding his alleged resignation are susceptible to different interpretations as to his intent, the agency may not conclude the employee resigned voluntarily. In re Smith(PDF, 238KB), CSA 14-10 (6/4/10), citing In re Augustine(PDF, 140KB), CSB 05-09 (9/30/09); reversed In re Smith(PDF, 331KB), CSB 14-10 (11/4/10).

Where appellant had a history of uttering “I quit,” and the agency had a history of overlooking the utterance by allowing him to recant, then the agency should have known there was reason to doubt Smith’s intent. In re Smith(PDF, 238KB), CSA 14-10, 4 (6/4/10), reversed In re Smith,(PDF, 331KB) CSB 14-10 (11/4/10).

If resignation is involuntary, agency improperly dismissed appellant and dismissal must be reversed. In re Smith(PDF, 238KB), CSA 14-10, 4 (6/4/10), reversed In re Smith,(PDF, 331KB) CSB 14-10 (11/4/10).

Since resignations are presumed to be voluntary, burden of proof resides with employee to prove his resignation was not voluntary. In re Smith(PDF, 238KB), CSA 14-10, 3 (6/4/10), reversed on other grounds, In re Smith(PDF, 331KB), CSB 14-10 (11/4/10).

Agency interfered with Appellant's freedom of choice to resign rendering the resignation involuntary. In re Augustine(PDF, 140KB), CBS 05-09 (9/30/09); distinguised in In re Smith,(PDF, 331KB) CSB 14-10 (11/4/10).

Where appellant was unaware the agency had sent him a dismissal letter before he resigned, appellant did not prove he was thereby unduly influenced to resign. In re Qualls(PDF, 309KB), CSA 71-08, 5 (12/4/08).

Where appellant failed to prove that the agency unduly influenced his resignation before he became aware of agency's dismissal letter, the agency's dismissal action became moot. In re Qualls,(PDF, 309KB) CSA 71-08, 5 (12/4/08).

Where appellant's claim that he was badgered into resigning was not more credible than the agency's denials, appellant failed to meet his burden to prove his resignation was involuntary. In re Qualls(PDF, 309KB), CSA 71-08, 3-5 (12/4/08).

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(PDF, 309KB), CSA 71-08, 3-4 (12/4/08).  

Appellant bears the burden to prove his agency unduly influenced his resignation, i.e.: engage in duress, coercion or deceit to induce appellant's resignation. In re Qualls(PDF, 309KB), CSA 71-08, 3 (12/4/08), citing Essman v. Dept. of Transportation, 71 MSPR 107, 109 (1996).

Manager's order that appellant must turn in his city bus pass and resign in person at work did not affect the voluntariness of appellant's resignation. In re Qualls(PDF, 309KB), CSA 71-08, 3-5 (12/4/08).  

Friend and co-worker's advice to resign rather than be fired did not render appellant's resignation involuntary. In re Qualls(PDF, 309KB), CSA 71-08, 3-5 (12/4/08).

Since an agency is not obligated to inform an employee of his right to counsel or to hearing before the employee resigns, the agency cannot be said to have unduly the employee's decision to resign for those reasons. In re Qualls,(PDF, 309KB) CSA 71-08, 5 (12/4/08).

Section 19-10 A provides no basis for a direct appeal of the determination of the amount of accrued vacation leave and compensatory time after a resignation. In re Lovin(PDF, 87KB), CSA 27-06, 1 (Order 5/18/06).

The subjects of job abolishment, demotion appointments and layoffs are properly before the hearing officer. In re Hurdelbrink(PDF, 5MB), CSA 109-04 & 119-04, 4 (1/5/05).   

Appellant’s failure to attend her pre-disciplinary meeting is not job abandonment. In re Robinson(PDF, 3MB), CSA 03-13, 10-11 (6/18/13).

Under the Lautenberg Amendment to the Gun Control Act, deputy sheriff’s conviction of child abuse involving physical force prohibited him from carrying a firearm, an essential job duty, and thus required disqualification. In re Luna(PDF, 271KB), CSB 42-07, 5 (1/30/09).

When agency had notice that appellant’s sleeping on duty probably related to oxygen deprivation, it could neither discipline nor disqualify appellant for sleeping without first engaging in an interactive process pursuant to CSR 12-40. In re Muniz, CSA 77-07, 5 (7/21/08) (decided under former 5-84 E).

Appellant failed to prove agency selectively enforced disqualification where he failed to prove any similarly situated employees were treated more favorably. In re Martinez(PDF, 232KB), CSA 83-06, 3 (12/27/06).

Disqualification does not require proof of wrongdoing or prior disciplinary history. In re Martinez(PDF, 232KB), CSA 83-06, 4 (12/27/06).

Appellant’s claim that disqualification was too harsh in light of his good disciplinary record fails because the disqualification is not based on wrongdoing. In re Martinez(PDF, 232KB), CSA 83-06, 4 (12/27/06), citing In re Aguirre(PDF, 1MB), CSA 03-04, 19 (8/16/04).

When agency had notice that appellant’s sleeping on duty probably related to oxygen deprivation, it may neither discipline nor disqualify appellant for sleeping without first engaging in an interactive process pursuant to 12-40. In re Muniz, CSA 77-07, 5 (7/21/08) (decided under former 5-84 E).

An alcoholic employee’s performance issues that are not protected by the ADA may be addressed through disciplinary action. In re Cullen(PDF, 538KB), CSA 165-04, 8-9 (7/7/06), affirmed in part, and reversed in part on other grounds In re Cullen(PDF, 403KB), CSB 165-04 (1/18/07); citing Nielsen v. Moroni Feed Co., 162 F.3rd 604 (10th Cir. 1998).

If an employee becomes unable to perform the essential functions of his position because of legal, physical, mental or emotional impairment or incapacity and the incapacity was discovered after appointment to the position, the agency is required to disqualify the individual. In re Torres(PDF, 243KB), CSA 97-05, 4 (2/21/06).

Agency established a prima facie case for disqualification where it showed that maintaining a valid driver’s license was an essential function of appellant’s position, and appellant acknowledged his license was revoked. In re Lucero(PDF, 213KB), CSA 59-09, 3 (12/15/09). 

Appellant did not prove his contention that others whose licenses were revoked were allowed to keep their jobs where alleged beneficiary did not testify and no evidence supported the argument. In re Lucero(PDF, 213KB), CSA 59-09, 3 (12/15/09).

Appellant did not prove his claim that DMV permitted installation of an interlock ignition device that would enable him to keep his job where there was no evidence appellant had a restricted license or that DMV permitted such a device. In re Lucero(PDF, 213KB), CSA 59-09, 3 (12/15/09).

Appellant did not prove his claim that agency could reassign him to non-driving position after his license was revoked or assign him a chauffeur where his position required him to drive in order to supervise his crew, and agency was not obligated to accommodate such requests. In re Lucero(PDF, 213KB), CSA 59-09, 4 (12/15/09). 

Carrying a firearm is an essential duty of a deputy sheriff, so appellant’s legal impairment to possessing a weapon under the Lautenberg Amendment constitutes grounds for disqualification from employment. In re Luna(PDF, 271KB), CSB 42-07, 5 (1/30/09).

The Lautenberg Amendment makes it unlawful for any person who has been convicted of a misdemeanor crime of domestic violence to possess a firearm. In re Luna,(PDF, 271KB) CSB 42-07, 2 (1/30/09), citing 18 USC 922 (g)(9).

A “misdemeanor crime of domestic violence,” as defined under the Lautenberg Amendment, has three components: (1) it is classified as a misdemeanor under federal, state or tribal law; (2) it has as an element, the use or attempted use of force, or the threatened use of a deadly weapon; and (3) it occurs between parties who share a domestic relationship. In re Luna(PDF, 271KB), CSB 42-07, 2 (1/30/09), citing 18 USC 921 (a)(33).

Under Colorado law, reckless conduct and accidental conduct are not synonymous for the purpose of determining the use or attempted use of force under the Lautenberg Amendment. In re Luna(PDF, 271KB), CSB 42-07, 2-3 (1/30/09).

Appellant’s admissions during hearing that he grabbed his son’s arm and took his stepson down to the ground using a wrestling move met the use of force requirement of a misdemeanor crime of domestic violence under the Lautenberg Amendment. In re Luna(PDF, 271KB), CSB 42-07, 5 (1/30/09).

Whether driving privileges were termed revoked or suspended did not affect decision to disqualify appellant for loss of driver’s license. In re Martinez(PDF, 232KB), CSA 83-06, 3 (12/27/06).

This rule requires agencies to disqualify employees who have a legal impairment that prevents them from performing the essential functions of their position. In re Martinez(PDF, 232KB), CSA 83-06, 2 (12/27/06).

Agency is not obligated to provide special accommodation prior to disqualification of employee who lost his driving privileges and was therefore unable to perform the essential job function of driving. In re Martinez(PDF, 232KB), CSA 83-06, 4 (12/27/06), citing In re Montabon(PDF, 648KB), CSA 122-03, 9 (3/31/04).

Disqualification was proper where Appellant was convicted of the municipal violation of misdemeanor assault and battery and domestic violence, resulting in Appellant’s prohibition under the Lautenberg Amendment from owning a firearm, a job requirement. In re Ray(PDF, 320KB), CSA 57-06 (12/4/06).

Disqualification is required if a legal, physical, or emotional impairment, occurring or discovered after appointment, prevents satisfactory performance of the essential functions of the position. In re Cullen(PDF, 538KB), CSA 165-04, 4 (7/7/06), affirmed in part and reversed in part on other grounds In re Culllen(PDF, 403KB), CSB 165-04 (1/18/07).

Notice of disqualification that contained substantially the same advisement of rights and reasons before taking any action as contained in a pre-disciplinary contemplation notice complies with procedure for disqualification. In re Torres(PDF, 243KB), CSA 97-05, 4 (2/21/06).

Since good cause is not required to support termination of a probationary employee, his right to appeal his termination is limited to a complaint of discrimination. In re Cooley(PDF, 116KB), CSA 28-06 (Order 6/12/06) [now limited to whistleblower complaints].

CSR 14-45A, which requires that an employee selected to be laid off shall be given a transfer appointment to any vacancy for which the employee qualified within the lay-off unit, is self-executing. In re Tenorio(PDF, 101KB), 34-16, 6 (8/8/18).

No analysis is required of the comparability between an employee’s former position, from which the employee was laid off and a different position for which she qualified, and to which she was entitled to a transfer appointment under CSR 14-45 or a reinstatement under CSR 14-47, as these CSRs are self-executing. In re Tenorio(PDF, 101KB), 34-16, 7 (8/8/18). 

Appellant’s abolished position did not have substantially the same duties and responsibilities as a newly created position, which lacked supervisor and administrative duties of the abolished position and added short and long term strategic planning. In re Sanders, CSB 62-09, 1 (2/17/11).

The CSRs permit an agency to use proficiency standards instead of seniority to determine which employees will be subject to a layoff, but those standards must be reasonable and fair. In re Owens-Manis & Pettway(PDF, 1MB), CSB 73-09 & 75-09, 4-5 (10/21/10).  

An agency may not abolish an employee’s position and lay him off under the guise of reorganization while transferring his functions to a position in a different agency if the qualifications and duties of both positions are substantially similar. In re Sanders(PDF, 2MB), CSA 62-09, 5 (9/24/10), citing In re Hamilton(PDF, 7MB), CSA 100-09 & 107-09, 19 (9/17/10), Bardsley v. Colorado Dept. of Public Safety, 870 P.2d 641 (Colo.App. 1994).  

Some key elements in determining whether an abolished position and a new position in a different agency to which the functions were transferred are substantially similar are whether there was a fundamental change to the agency's structure, positions or functions. In re Sanders(PDF, 2MB), CSA 62-09, 5 (9/24/10).

A layoff may be arbitrary or capricious if a position in one appropriation account is abolished and an identical, or nearly-identical position is recreated in another appropriation account and filled with a different employee. In re Sanders(PDF, 2MB), CSA 62-09, 6 (9/24/10).

Laid off employee not entitled to bump down to position outside the targeted layoff unit. In re Sanders(PDF, 2MB), CSA 62-09, 7 (9/24/10).

Appellant’s layoff was not arbitrary or capricious where agency abolished his position as part of a reorganization that transferred its functions to a position in a different agency, and the qualifications and duties of the newly created position were substantially different. In re Sanders(PDF, 2MB), CSA 62-09, 5-6 (9/24/10), distinguishing In re Hamilton(PDF, 7MB), CSA 100-09 & 107-09, 19 (9/17/10).

Appellant’s layoff was not arbitrary or capricious where the agency abolished his position as part of its reorganization that transferred its functions to a position in a different agency, for which the chosen employee scored substantially higher in a blind-scored exam and his qualifications were well-suited to the specific needs of the position, while appellant possessed weaker qualifications and experience. In re Sanders(PDF, 2MB), CSA 62-09, 6 (9/24/10). 

Agency complied with Executive Order 65, requiring it to have a safety professional, where agency designated said professional from another agency, and executive order did not require agency's safety professional to be on its payroll. In re Sanders(PDF, 2MB), CSA 62-09, 7 (9/24/10); EO 65 § 5.4.   

Appellant’s layoff was not arbitrary, capricious or contrary to rule or law, where appellant did not prove that the agency (1) failed to use reasonable diligence to determine facts necessary to its decision, (2) failed to give proper consideration to facts relevant to the decision, or (3) based its action on conclusions that reasonable persons considering the facts would not reach. In re Sanders(PDF, 2MB), CSA 62-09, 7 (9/24/10) citing Lawley v. Department of Higher Educ., 36 P.3d 1239, 1252 (Colo. 2001).   

Appellant failed to prove that his layoff was arbitrary, capricious, or contrary to rule or law, where its economic and structural problems were legitimate concerns, for which abolishing non-core functions was a reasonable solution. In re Sanders(PDF, 2MB), CSA 62-09, 7 (9/24/10).

Agency used reasonable diligence to determine the need to abolish twelve positions, including appellant’s, when it commissioned a CSA study to develop alternatives and efficiencies, and it reasonably decided to abolish non-core functions. In re Sanders(PDF, 2MB), CSA 62-09, 7 (9/24/10).

Appellant failed to prove his layoff was arbitrary, capricious, or contrary to rule or law, where the Agency based its decision to abolish twelve positions on the relevant facts, it reasonably decided to eliminate non-core functions for structural and economic reasons, and it hired a candidate for a newly created limited position based on the objective criteria of test score, education, and experience. In re Sanders(PDF, 2MB), CSA 62-09, 8 (9/24/10) citing Lawley v. Department of Higher Educ., 36 P.3d 1239, 1252 (Colo. 2001).

Appellant failed to prove his layoff was arbitrary, capricious, or contrary to rule or law, where the Agency based its decision to abolish twelve positions, including Appellant’s, on the relevant facts, it reasonably decided to eliminate non-core functions for structural and economic reasons, and it hired a candidate for a newly created limited position that made recommendations for City-wide safety needs based upon the objective criteria of test score, education, and experience. In re Sanders(PDF, 2MB), CSA 62-09, 8 (9/24/10) citing Lawley v. Department of Higher Educ., 36 P.3d 1239, 1252 (Colo. 2001).

The CSRs provide that layoffs shall be by positions, not incumbents, and the order of layoff must be in accordance with the layoff rules. In re Hamilton(PDF, 7MB), CSA 100-09 & 107-09, 24 (9/17/10).  

Agency violated this rule where it reversed the order of layoff and actions in lieu of layoff, such that layoffs occurred by incumbents, not positions. In re Hamilton(PDF, 7MB), CSA 100-09 & 107-09, 24 (9/17/10).

Agency violated this rule where it failed to conduct layoffs before the actions in lieu of layoff, such that it failed to consider seniority in filling the vacancies created by the transfer of function. In re Hamilton(PDF, 7MB), CSA 100-09 & 107-09, 24 (9/17/10).

Agency violated 14-42d and 14-44 by reversing the order of layoff and actions in lieu of layoff for reasons unsupported by the evidence, which rendered its layoffs a process of elimination rather than a selection by layoff seniority groups. In re Hamilton(PDF, 7MB), CSA 100-09 & 107-09, 25 (9/17/10).

Layoffs are determined by an appointing authority's selection of positions to be abolished by class within an approved layoff unit, followed by CSA’s approval of the layoff plan. In re Martillaro(PDF, 148KB), CSA 42-06, 3 (11/30/06).

Changes to layoff units must be approved by the CSB based on business functions after a mandatory public hearing. In re Foley(PDF, 921KB), CSA 19-06, 7 (11/10/06), citing 14-42 b).

Agency layoff violated 14-42 D’s prohibition against relating the incumbents of the positions to the positions to be abolished by identifying appellant for layoff base on performance. In re Foley(PDF, 921KB), CSA 19-06, 11 (11/10/06).

After his layoff, appellant was not entitled to be selected for a position created in a different appropriation account and layoff unit. In re Hurdelbrink(PDF, 5MB), CSA 109-04 & 119-04, 10 (1/5/05). 

Employees with more seniority are entitled to more protection from layoff than those with less seniority within the same layoff unit and classification. In re Hamilton(PDF, 7MB), CSA 100-09 & 107-09, 15 (9/17/10), citing City Charter § 9.1.1.; CSR 3.

Agency violated this rule where it failed to conduct layoffs before the actions in lieu of layoff, such that it failed to consider seniority in filling the vacancies created by the transfer of function. In re Hamilton(PDF, 7MB), CSA 100-09 & 107-09, 24 (9/17/10).

Agency intentionally and improperly circumvented the layoff rules by reversing the order of layoff and hiring, resulting in the layoff of an employee with eighteen years of seniority and retention of an employee with two years of seniority. In re Hamilton(PDF, 7MB), CSA 100-09 & 107-09, 24 (9/17/10).

Agency violated 14-42 D and 14-44 by reversing the order of layoff and actions in lieu of layoff for reasons that were not supported by the evidence, which rendered its layoffs a process of elimination rather than a selection by layoff seniority groups. In re Hamilton(PDF, 7MB), CSA 100-09 & 107-09, 25 (9/17/10).

CSRs do not require agency to give employees in layoff group prior notice of the tasks to be measured for proficiency rankings, nor prohibit it from using data gathered before it made the layoff decision. In re Owens-Manis & Pettway(PDF, 3MB), CSA 73-09 & 75-09, 12 (3/11/10). 

The agency selected measured tasks to establish layoff group’s proficiency in conformance with the layoff rule as the tasks were highly relevant to the important work of the group; fairly compared the knowledge, skills, abilities and expertise of group members; and the agency tracked performance of the employees for a sufficient amount of time, notified them of the tasks being measured, gave each an equal opportunity to perform the tasks, and instructed all employees to complete the highest-weighted task first. In re Owens-Manis & Pettway(PDF, 3MB), CSA 73-09 & 75-09, 13 (3/11/10).

Agency’s election to measure only objectively-measurable tasks performed by all employees in the classification was reasonable business decision, and not rebutted by appellants whose suggestions were not more reasonable. In re Owens-Manis & Pettway(PDF, 3MB), CSA 73-09 & 75-09, 13 (3/11/10).

Appellant failed to prove she was targeted for layoff for filing grievances against her supervisor, where the proficiency rankings were based solely on employees’ data; agency’s errors in rankings were evenly spread among all employees in the layoff group; and agency did not evidence any favoritism. In re Owens-Manis & Pettway(PDF, 3MB), CSA 73-09 & 75-09, 13 (3/11/10).

The agency tailored its eight-factor proficiency test in conformance with the rule, to retain the three most proficient employees based solely on test scores and rankings derived from the test. In re Owens-Manis & Pettway(PDF, 3MB), CSA 73-09 & 75-09, 14 (3/11/10).

De novo review requires an analysis of whether the agency implemented its layoff decision as the direct result of accurate calculations from its proficiency test, by careful consideration of appropriate evidence, and reasonable conclusions flowing from it. In re Owens-Manis & Pettway(PDF, 3MB), CSA 73-09 & 75-09, 14 (3/11/10).

Erroneous data used to rank proficiency of employees must be disregarded in determining whether to uphold a layoff using the resulting proficiency rankings. In re Owens-Manis & Pettway(PDF, 3MB), CSA 73-09 & 75-09, 14 (3/11/10).

Agency failure to carefully calculate performance numbers and derive accurate rankings from them constituted a failure to use reasonable diligence to produce and consider the most appropriate evidence to support its determination of proficiency. In re Owens-Manis and Pettway(PDF, 3MB), CSA 73-09 and 75-09, 14 (3/11/10).

Agency finding that appellant was not one of the three most proficient employees lacked competent evidence for support where agency used erroneous data to rank proficiency, and agency calculations could not be reproduced. In re Owens-Manis & Pettway(PDF, 3MB), CSA 73-09 & 75-09, 14 (3/11/10).

Appellant had no right to assume the newly-created position where his closed position and newly-created position were not substantially similar. In re Tenorio & Delgado, CSB 34-16 & 36-16, 2 (12/21/17). 

Appellant was not entitled to the new position where his former position and newly-created position were sufficiently distinct and not sufficiently similar so as to give rise to an inference they were substantially similar. In re Tenorio & Delgado, CSB 34-16 & 36-16, 2 (12/21/17). 

Appellant failed to meet his burden to prove his layoff was arbitrary, capricious, or violated the CSRs or law, where his closed position and the newly-created position were not substantially similar. In re Tenorio & Delgado, CSB 34-16 & 36-16, 2 (12/21/17).

Appellant had no bumping rights when the agency abolished his position, since such rights apply only within the portion of the agency targeted for layoff, and appellant was the only employee in his layoff unit, leaving no positions into which he could bump. In re Sanders(PDF, 2MB), CSA 62-09, 7 (9/24/10).

Agency did not abuse its discretion when it hired a candidate other than Appellant for a demotional layoff appointment based on objective criteria, including test score, education and experience. In re Sanders(PDF, 2MB), CSA 62-09, 8 (9/24/10).  

Agency did not abuse its discretion when it subsumed its safety functions into one limited position that would make recommendations for city-wide safety needs, a function outside the duties of Appellant's position. In re Sanders(PDF, 2MB), CSA 62-09, 7-8 (9/24/10).  

Actions in lieu of layoff are intended to be determined after a layoff determination, as shown by the rule’s repeated use of the phrase “an employee selected to be laid off” to describe those eligible for actions in lieu of layoff. In re Hamilton(PDF, 7MB), CSA 100-09 & 107-09, 24 (9/17/10).

This rule strictly limits demotion rights to positions in the class series from which the employee was laid off, and requires that the employee must be affected by the lay-off to exercise a right to a demotion. In re Hamilton(PDF, 7MB), CSA 100-09 & 107-09, 24 (9/17/10).

The rule reasonably distinguishes between mandatory rights in a limited number of positions, those from which employees are laid off, and minimal rights based on any other demotion accepted during a layoff period. In re Hamilton(PDF, 7MB), CSA 100-09 & 107-09, 24 (9/17/10).

Where the sole factor used to select employees for demotions in lieu of layoff was the interview score, but the interview questions and scoring criteria are unknown, the agency’s failure to consider any other factors relevant to merit and ability was arbitrary and capricious. In re Hamilton(PDF, 7MB), CSA 100-09 & 107-09, 22 (9/17/10).

Where the duties and qualifications of a position created after layoff are identical, an incumbent career status employee is not required to undergo a second competitive testing process to remain in her position. In re Hamilton(PDF, 7MB), CSA 100-09 & 107-09, 23 (9/17/10).

Where the duties and qualifications of a position eliminated by layoff and a replacement position are the same, on-the-job experience is a factor that would be considered by a reasonable administrator attempting to fill the replacement position on the bases of merit and ability. In re Hamilton(PDF, 7MB), CSA 100-09 & 107-09, 21 (9/17/10); City Charter 9.1.1.  

Agency acted in an arbitrary and capricious manner in transferring the same work of an eliminated position to a replacement position in a different agency under different classification, without considering the experience, performance or seniority of employees laid off or that the duties were identical and qualifications nearly identical. In re Hamilton(PDF, 7MB), CSA 100-09 & 107-09, 21-22 (9/17/10).  

The un-validated result of a single interview session cannot outweigh more directly relevant factors on the issues of merit and ability, including years of experience and performance of the same duties to be performed in the new position. In re Hamilton(PDF, 7MB), CSA 100-09 & 107-09, 23 (9/17/10).

Agency’s decision to complete actions in lieu of layoff before the actual layoff is relevant to the determination of whether the action was arbitrary and capricious where its stated reasons for reversing the order of those actions were unsupported by the evidence. In re Hamilton(PDF, 7MB), CSA 100-09 & 107-09, 23-24 (9/17/10).

Agency’s use of competitive hires, transfers, promotions, and demotions in lieu of layoff to fill vacancies, and its consideration of seniority rights only after it made its selections, violated the layoff rules’ requirements that it consider seniority rights during the selection process. In re Hamilton(PDF, 7MB), CSA 100-09 & 107-09, 25 (9/17/10).

The layoff rules require that layoffs and certain actions in lieu of layoffs shall be according to seniority. In re Hamilton(PDF, 7MB),  CSA 100-09 & 107-09, 25 (9/17/10).

Agency’s consideration of salaries but not seniority in granting actions in lieu of layoff is relevant to determining whether the action was arbitrary and capricious, where appellant’s higher salary placed her at a disadvantage against candidates with less seniority. In re Hamilton(PDF, 7MB), CSA 100-09 & 107-09, 25 (9/17/10).

The fiscal purpose and results of the agency’s layoff plan are relevant to an evaluation of the reasonableness of the its actions. In re Hamilton(PDF, 7MB), CSA 100-09 & 107-09, 26 (9/17/10).

Agency’s failure to implement mayor’s directions to reduce budget and staff in accordance with fiscal purpose of layoff is relevant to whether lay-off was arbitrary and capricious. In re Hamilton(PDF, 7MB), CSA 100-09 & 107-09, 26 (9/17/10).

Agency’s contracting out a substantial portion of the unit’s workload placed in doubt its stated goal  of savings, one of the alleged bases for the layoff plan. In re Hamilton(PDF, 7MB), CSA 100-09 & 107-09, 26 (9/17/10).

Agency’s failure to consider money-saving and other suggestions to avoid layoff was a failure to give candid and honest consideration to relevant evidence in its exercise of discretion. In re Hamilton(PDF, 7MB), CSA 100-09 & 107-09, 27 (9/17/10).

Claim in appeal that agency failed to find equivalent employment in lieu of layoff clearly challenged the layoff as improper under this rule. In re Cho,(PDF, 152KB) CSA 01-09, 2 (Order 1/21/09).

Appellant was not entitled to a reassignment or transfer appointment under  14-55 A, which gives transfer rights only within the layoff unit, when there were no positions available within the layoff unit. In re Jackson,(PDF, 3MB) CSA 103-04, 4 (6/13/05).

A supervisor’s temporary assignment of higher level duties to a demoted employee during the transition after a layoff does not require higher level pay. In re Jackson(PDF, 3MB), CSA 103-04, 4 (6/13/05).

CSRs entitle a laid off employee only to an existing position, not to a specific position, in the same layoff unit when the conditions set forth in 14-55 A are met. In re Jackson(PDF, 3MB), CSA 103-04, 5 (6/13/05).

Hearing officer has jurisdiction over the appeal of an action in lieu of layoff under CSR 14 via 19-20 A.1.e. In re Romberger,(PDF, 5MB) CSA 89-04, 5 (3/2/05).

Appellant has the burden to prove an action in lieu of layoff was arbitrary, capricious, or contrary to rule or law. In re Romberger(PDF, 5MB), CSA 89-04, 5 (3/2/05), citing Velasquez v. Dept. of Higher Education, 93 P.2d 540 (Colo.App. 2003.); Lawley v. Dept. of Higher Education, 36 P.3d 1239 (Colo. 2001).

To be entitled to a demotional appointment, employee must possess the knowledge, skills, ability and expertise to perform the essential duties of the demotional position. In re Romberger(PDF, 5MB), CSA 89-04, 6 (3/2/05).

Where 80% of appellant’s position is social work which requires a social work degree, then social work is an essential duty of the position, and a social work degree is part of the knowledge, skills, ability and expertise needed to perform its essential duties. In re Romberger(PDF, 5MB), CSA 89-04, 7-8 (3/2/05).

A supervisor’s power to assign duties does not include the power to waive the minimum qualifications established by the CSA. In re Romberger(PDF, 5MB), CSA 89-04, 9 (3/2/05), citing In re Bourgeron(PDF, 1MB), CSA 92-03, 102-03 & 113-03 (3/8/04), affirmed in Bourgeron v. City and County of Denver, 03 CV 4712 (Order 2/4/05).

Agency’s failure to consider the essential functions and qualifications of a position before granting a demotional appointment was arbitrary and capricious where social work was an essential function of the appointment, the laid-off employee who bumped into the position lacked its educational prerequisites, and appellant who was bumped from the position continued to perform all the duties of the position. In re Romberger(PDF, 5MB), CSA 89-04, 10-11 (3/2/05).

Agency neglected to use reasonable diligence when it ignored that the laid-off employee lacked the qualifications to perform the essential duties of the demotional appointment into which she bumped, and gave undue weight to its own interpretation of the nature of the position in disregard of more objective evidence, thereby exercising its discretion to grant the demotional appointment in an arbitrary and capricious manner. In re Romberger,(PDF, 5MB) CSA 89-04, 11-12 (3/2/05), citing Lawley v. Dept. of Higher Education, 36 P.3d 1239, 1252 (Colo. 2001).

Agency acted arbitrarily in granting a demotional appointment to an unqualified laid-off employee,  then requiring the displaced employee to perform his former duties at reduced pay. In re Romberger,(PDF, 5MB) CSA 89-04, 10 (3/2/05).

Job abolishment, demotional appointments, and layoff are subjects properly before the hearing officer pursuant to Rules 4 and 14. In re Hurdelbrink,(PDF, 5MB) CSA 109-04 & 119-04, 4 (1/5/05).

Appellant did not prove agency intended to harm him by offering to demote him into a position that was later abolished since, had he accepted it, appellant would have had bumping rights when the demotional position was abolished. In re Hurdelbrink(PDF, 5MB), CSA 109-04 & 119-04, 12 (1/5/05). 

The appointing authority of agency that transferred the work of one of its divisions to another agency is responsible for layoff planning, including actions in lieu of layoff where fewer employees would staff the receiving agency. In re Hamilton(PDF, 7MB), CSA 100-09 & 107-09, 14 (9/17/10).

Both the transferring and receiving agencies in a division transfer were part of the layoff and transition planning process. In re Hamilton(PDF, 7MB), CSA 100-09 & 107-09, 14 (9/17/10).

Agency neglected to diligently procure evidence it was authorized to consider in exercising its discretion to manage its workforce, including experience and performance factors. In re Hamilton(PDF, 7MB), CSA 100-09 & 107-09, 27 (9/17/10).

Agency failed to consider evidence on which it was authorized to act by failing to consider the identical nature of the jobs and alternate cost-saving proposals. In re Hamilton(PDF, 7MB), CSA 100-09 & 107-09, 27 (9/17/10).

Agency was arbitrary and capricious when its transition plan was based on a contractor’s recommendation and deviated from the layoff rules, and the plan added personnel and contractor costs, contrary to cost-saving rationale for the transition. In re Hamilton(PDF, 7MB), CSA 100-09 & 107-09, 27 (9/17/10).

Agency’s consideration of interview scores to the exclusion of more relevant factors during actions in lieu of layoff demonstrates that it based its conclusions on factors reasonable persons who fairly considered the evidence could not reach. In re Hamilton(PDF, 7MB), CSA 100-09 & 107-09, 27 (9/17/10).

Agency failed to perform layoff planning mandated by this rule where layoff plan was a form letter that was not reviewed by the decision-maker, the stated reason for layoff was incorrect, and agency failed to evaluate position or consider budgetary factors to determine the need for a layoff or the positions to be affected. In re Foley(PDF, 921KB), CSA 19-06, 11 (11/10/06).

Agency’s desire for future budgetary flexibility, by itself, does not justify the abolishment of a career service position, for layoff protection would be a nullity. In re Foley(PDF, 921KB), CSA 19-06, 9 (11/10/06).

Where agency reassigned the duties of appellant’s position, postponed an audit of it, attempted to demote appellant, and disregarded her performance evaluations for two years, agency’s stated reason for layoff, that there were no duties assigned to that position, does not support the layoff decision. In re Foley(PDF, 921KB), CSA 19-06, 10 (11/10/06).

Agency violated CSRs where real reason for appellant’s layoff was its desire to terminate her employment based on concerns with her performance. In re Foley(PDF, 921KB), CSA 19-06, 10 (11/10/06).

Agency’s departure from established personnel policies is relevant to whether layoff was arbitrary and capricious or contrary to rule or law. In re Foley(PDF, 921KB), CSA 19-06, 10-11 (11/10/06).

An employee approved for layoff is entitled to 30 days’ notice before the effective date of a layoff. In re Martillaro(PDF, 148KB), CSA 42-06, 2 (11/30/06).

Appellant’s claim that the agency failed to place her on reinstatement list prior to layoff must be dismissed without prejudice as premature since agency is not required to do so until after the date of her layoff. In re Frazier(PDF, 143KB), CSA 24-08, 3 (Order 4/30/08).

After his lay-off, an appellant who was certified on the lay-off unit reinstatement list was not also entitled to be certified on a general reinstatement list, since the former is the exclusive list to be certified if there are any employees eligible for it. In re Hurdelbrink, (PDF, 5MB)CSA 109-04 & 119-04, 11 (1/5/05).

Appellant was not entitled to be certified on a general reinstatement list which closed before the effective date of his lay-off, and was not prejudiced by his exclusion, since the agency included him in the layoff referral list, from which the appointing authority considered him for the vacancy. In re Hurdelbrink,(PDF, 5MB) CSA 109-04 & 119-04, 11 (1/5/05).

Agency is not required to keep open the certification of eligible laid off employees for an indefinite time in order to allow them to be considered for positions open within the class in which they have attained career status. In re Hurdelbrink,(PDF, 5MB) CSA 109-04 & 119-04, 11 (1/5/05).

Appellant is entitled to be the exclusive candidate certified for consideration in hiring within the unit from which he was laid off, but he is not so entitled for hiring in any other appropriation account. In re Hurdelbrink(PDF, 5MB), CSA 109-04 & 119-04, 10-11 (1/5/05).