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Decisions by Subject

1. Overview

Below is a listing of topics presented to the Career Service Hearing Office. Click on any highlighted topic to be redirected to summaries of appeal decisions that discussed the topic.

2. Abandonment (of appeal)

Appellant failed to present extraordinary circumstances to set aside dismissal of his appeal for failure to file a pre-hearing statement where he claimed illness but produced no medical letter, and claimed a delay in the receipt of the show-cause order, but failed to submit even a late pre-hearing statement. In re Maestas(PDF, 348KB), CSA 33-11, 1 (Order 8/9/11).

Motions to set aside final orders will be considered only upon a showing of extraordinary circumstances. In re Maestas(PDF, 348KB), CSA 33-11, 1 (Order 8/9/11).

Appeal was abandoned when appellant failed to file a pre-hearing statement after receiving two extensions of time to do so. In re Gonzales(PDF, 97KB), CSA 64-08, 1-2 (Order 10/10/08).

An appeal that appellant withdrew, then attempted to revive with a fourth motion to continue that lacked good cause, resulted in dismissal with prejudice. In re Long(PDF, 99KB), CSA 78-07 (Order 6/10/08).

Appellant abandoned his appeal when he failed to file a status report as ordered, request a continuance or extension of time, and failed to keep the hearing office informed of his current contact information. In re Fernandez(PDF, 47KB), CSA 17-08 (Order 5/19/08).

Where appellant did not respond to some of the issues raised in a show cause order, unaddressed issues are dismissed as abandoned. In re Kemp(PDF, 67KB), CSA 07-08 (Order 2/19/08).

Appeal was dismissed as abandoned when appellant failed to file a prehearing statement, request an extension of time to do so, or respond to a telephone message left by hearing office staff. In re Trujillo(PDF, 58KB), CSA 23-06 (Order 5/16/06).

Appeal was dismissed as abandoned when appellant failed to respond to show cause order or file a request for extension of time to do so. In re Ursone,(PDF, 49KB) CSA 12-06 (Order 3/24/06).

Appeal was dismissed as abandoned and as prejudicial to the agency when appellant failed to appear at the scheduled hearing, after her telephoned request for a continuance eight minutes before hearing was denied for lack of good cause. In re Mondragon, CSA 121-05 (Order 1/19/06).

3. Admissibility of Evidence

The rules of evidence are not strictly applied in administrative hearings. In re Kemp(PDF, 2MB), CSB 19-13, 4-5 (7/28/14).

Inmate witness statements were properly admitted as evidence regarding the decision-maker's state of mind in determining that deputy violated departmental rules on use of force. In re Kemp(PDF, 2MB), CSB 19-13, 4-5 (7/28/14), citing Zamora v. Board of Education for Las Cruces Public Schools, 553 Fed. Appx. 786, 790 (10th Cir. 2004).

Admission of evidence of misconduct not contained in disciplinary letters did not violate due process where hearing officer did not consider that evidence in determining the issues on appeal. In re Redacted, CSB 67-11, 2-3 (4/4/13).

Documents provided by appellant during settlement negotiations, may not be used by agency for impeachment at hearing. In re Murphy, CSA 09-11, 1-2 (Order 10/7/11).

Under CRE 408, an agency is precluded from introducing as evidence in appeal the documents appellant produced during settlement negotiations. In re Murphy, CSA 09-11, 1-2 (Order 10/7/11).

Hearsay may be admitted for purposes other than to prove the truth of the statement. In re Carter(PDF, 756KB), CSB 87-09 (7/1/10).

The Administrative Procedure Act permits state administrative hearing officers to receive hearsay evidence ordinarily not admissible under the rules of evidence. In re Carter(PDF, 756KB), CSB 87-09, 2 (7/1/10), citing Industrial Claims Appeals Office v. Flower Stop Marketing Corp., 782 P.2d 13, 18 (Colo. 1989); CSR 19-50 A.

In disciplinary actions, the decision maker is rarely the person who investigates misconduct and must rely on information provided from others. Her testimony about that information is permissible. In re Carter(PDF, 756KB), CSB 87-09, 2 (7/1/10).

Strict compliance with the Colorado rules of evidence is not required in career service hearings. In re Norman-Curry,(PDF, 166KB) CSB 28-07 & 50-08, 3 (9/3/09); CSR 19-50.

Appellant's claim that hearing officer relied on evidence to which there was a sustained objection is without merit where that evidence had been admitted prior to the objection. In re Norman-Curry,(PDF, 166KB) CSB 28-07 & 50-08, 3 (9/3/09).

Physician-patient privilege protects that information acquired in attending to a patient which is necessary to treat the patient. In re Cullen(PDF, 185KB), CSA 127-08, 2 (1/7/09), citing CRS 13-90-107(d).

Physician-patient privilege may be impliedly waived when a party raises an affirmative defense for which his physical condition is the basis. In re Cullen(PDF, 185KB), CSA 127-08, 2 (1/7/09).

Waiver of physician-patient privilege does not constitute a general disclosure of the patient's entire medical history, but is limited to the cause and extent of injuries and damages claimed. In re Cullen(PDF, 185KB), CSA 127-08, 2 (1/7/09), citing Cardenas v. Jerath, 180 P.3d 415, 424 (Colo. 2008).

Appellant’s challenge to legality of background check questions is not properly before hearing officer on appeal when appellant answered those questions without objection, and did not assert a discrimination claim in the appeal. In re Mitchell(PDF, 453KB), CSA 05-05, 8 (6/27/05).

4. Americans With Disabilities Act (ADA)

5. Appeals

See also Rule 19

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,(PDF, 1MB) CSB 63-09, 1 (3/17/11), citing In re Norman-Curry(PDF, 166KB), CSB 28-07, 11 (11/15/07).

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(PDF, 180KB), CSA 103-09 and 21-10, 3 (Order 5/26/10), citing In re Felix(PDF, 87KB), CSA 82-07 (Order 2/14/08).

Hearing office records are open to the public unless there is a legitimate reason for non-disclosure. In re Norris,(PDF, 63KB) CSA 86-09 (order 1/8/10); see CSR 19-54.

An order sealing the record of appeal may not be based solely upon an agreement between the parties. The hearing officer must conduct a balancing test inquiry, weighing the public’s presumed right to open access against the potential harm to the privacy of a person in interest. In re Norris,(PDF, 63KB) CSA 86-09 (order 1/8/10), citing Anderson v. Home Ins. Co., 924 P.2d 1123 (Colo. App. 1996); CRCP 121 § 1-5.

Motion to seal records must be denied where the motion lacks information from which privacy versus public access interests could be balanced. In re Norris,(PDF, 63KB) CSA 86-09 (order 1/8/10).

Appellants who appealed agency's merit increase calculation must overcome presumption of validity in administrative actions with a showing that the calculation was arbitrary, capricious, or contrary to rule or law. In re Vasquez & Lewis(PDF, 216KB), CSA 08-09 & 09-09, 4 (5/20/09).

There is a presumption of validity in administrative actions. In re Vasquez & Lewis(PDF, 216KB), CSA 08-09 & 09-09, 4 (5/20/09), citing Velasquez v. Dept. of Higher Education, 93 P.3d 540 (Colo.App. 2003); Garner v. Colorado State Dept. of Personnel, 835 P.2d 527 (Colo.App. 1992); Renteria v. Colorado State Dept. of Personnel, 811 P.2d 797 (Colo. 1991).

Appellants stated a claim for relief under the jurisdictional rule 19-20 B. 1. A. [former CSR 19-10 A.2.b.i.] where they alleged a rule violation that negatively impacted their pay, rather than wrongful PEP results, which they could not appeal due to their high ratings. In re Vasquez & Lewis(PDF, 216KB), CSA 08-09 & 09-09, 2-3 (5/20/09).

An employee may not appeal the unfavorable disposition of a grievance of a written reprimand, even though there is no alternative forum for appeal. In re Black(PDF, 58KB), CSA 16-09 (Order 3/12/09).

The Career Service Hearing Office lacks jurisdiction over written reprimands. In re Black(PDF, 58KB), CSA 16-09 (Order 3/12/09).

The hearing officer has no authority to consider the arguments or merits of an appeal if CSR 19, which is jurisdictional, does not identify the action as a matter that may be appealed, or if the hearing officer lacks authority to grant the remedy sought. In re Valdez(PDF, 66KB), CSA 96-06, 1 (11/16/06).

A written reprimand may not be appealed. In re Valdez(PDF, 66KB), CSA 96-06, 1 (11/16/06); CSR 19-20 B. 4. A. (former CSR 19-10 B 2.e.).

CSR 19 does not authorize a direct appeal of the amount of accrued vacation leave and compensatory time. In re Lovin(PDF, 87KB), CSA 27-06 (5/18/06).

CSR 19 authorizes a direct appeal to challenge only the acts of an appointing authority, defined as the “municipal official designated by the annual appropriation ordinance to approve expenditures for a given appropriation.” In re Lovin(PDF, 87KB), CSA 27-06, 1 (5/18/06).

A “successful” performance rating may not be appealed. In re Stenke(PDF, 81KB), CSA 14-06 (3/15/06); CSR 19-20 B. 4. a.

Appellant’s challenge to legality of background check questions is not properly before hearing officer on appeal when appellant answered the questions without objection, and did not assert a discrimination claim in the appeal. In re Mitchell,(PDF, 453KB) CSA 05-05, 8 (6/27/05).

6. Appellate Review

Appellate Review Generally

In an appeal of an administrative agency action, the reviewing court may not weigh the evidence or substitute its judgment for that of the agency. In re Rocha, DDC 19-16, 2 (7/5/18).

The limited matters which a reviewing district court may properly consider on appellate review under C.R.C.P. 106 are whether the agency or governmental body: (1) exceeded its jurisdiction and/or (2) abused its discretion based on the evidence in the record which was presented to that agency. In re Rocha, DDC 19-16, 2 (7/5/18), citing C.R.C.P. 106(a)(4)(I); see also Bd. Of County Comm’rs of Routt County v. O’Dell, 920 P.2d 48, 50 (Colo. 1996).

“[A]bsent a clear abuse of discretion” by a governmental agency, “courts should not interfere with the[ir] decision[.]” In re Rocha, DDC 19-16, 3 (7/5/18), citing Bd. Of County Comm’rs of Routt County v. O’Dell, 920 P.2d 48, 50 (Colo. 1996).

An administrative agency or governmental entity exceeds its jurisdiction or abuses its discretion only if it misapplies the law or if there is no competent evidence in the record to support its decision. In re Rocha, DDC 19-16, 2 (7/5/18), citing Bd. of County Comm’rs v. Conder, 927 P.2d 1339, 1343 (Colo. 1996).

An agency’s misinterpretation of the governing law may constitute a basis for finding an abuse of discretion under Rule 106(a)(4). In re Rocha, DDC 19-16, 2 (7/5/18), citing Whitelaw v. Denver City Council, 405 P.3d 433, 438 (Colo.App. 2017).

“No competent evidence” means that the agency’s decision is “so devoid of evidentiary support that it can only be explained as an arbitrary and capricious exercise of authority.” In re Rocha, DDC 19-16, 3 (7/5/18), citing Whitelaw v. Denver City Council, 405 P.3d 433, 437 (Colo.App. 2017).

In a C.R.C.P. 106 review, the reviewing court cannot consider if the agency’s “findings are right or wrong, substitute [its] judgment for that of the [agency], or interfere in any manner with the [agency’s] findings if there is any competent evidence to support the same.” In re Rocha, DDC 19-16, 3 (7/5/18), citing State Civil Serv. Comm’n v. Hazlett, 201 P.2d 616, 619 (Colo. 1948).

“The administrative agency, not the reviewing courts, has the task of weighing the evidence and resolving any conflicts.” In re Rocha, DDC 19-16, 3 (7/5/18), citing Bd. of Assessment Appeals of State of Colo. v. Colorado Arlberg Club, 762 P.2d 146, 151 (Colo. 1088).

“Where…the evidence is conflicting, the [agency’s factual] finding is binding on appeal, and a reviewing court may not substitute its judgment for that of the [agency].” In re Rocha, DDC 19-16, 3 (7/5/18), citing Marek v. State, Dept. of Revenue, Motor Vehicle Div., 709 P.2d 978, 979 (Colo.App. 1985).

“[A]n agency’s reasonable interpretation of its own regulations” is entitled to deference unless the interpretation “is inconsistent with the plain language of the regulation…” In re Rocha, DDC 19-16, 3 (7/5/18), citing Rags Over the Arkansas River, Inc. v. Colorado Parks & Wildlife Bd., 360 P.3d 186, 192 (Colo.App. 2015).

The CSB performed its role to weigh the evidence and concluded that Appellant who handcuffed an inmate who did not threaten anyone, violated DSD DO 5013.1E(4), which forbids the use of restraints as punishment, and the Court will not re-evaluate the evidence. In re Rocha, DDC 19-16, 6-7 (7/5/18).

The CSB properly construed DSD DO 5013.1E(4)(C)’s prohibition against restraints on inmates who pose no threat [to others], to mean the others in an inmate’s immediate vicinity, consistent with the plain language of the DO In re Rocha, DDC 19-16, 7 (7/5/18).

§ 2.6.4 of the Charter and C.R.S. § 16-70 grant the Manager of Safety [now Executive Director] the authority to appoint others to discipline deputy sheriffs and the CSB did not abuse its discretion in concluding that the Manager properly so appointed the Civilian Review Administrator in this case. In re Rocha, DDC 19-16, 8 (7/5/18).

Two-year delay between the incident and punishment for a minor event justified mitigated penalty where Agency claimed deputy failed to take responsibility but hearing officer and CSB found part of the reason was the delay. In re Leyba, DDC 59-14, 9 (8/21/17).

CSB did not abuse its discretion in determining a mitigated penalty was warranted where its findings were adequately supported by the record, including: Leyba’s performance evaluations, recommendations, and commendations; she had one prior written reprimand 4 years earlier; the current incident was minor; and the Agency originally believed only a written reprimand was warranted. In re Leyba, DDC 59-14, 9 (8/21/17).

Hearing officer and CSB did not abuse discretion in applying CSR 16-41 [then CSR 16-20] where hearing officer found Agency failed to weigh and document mitigation adequately, necessitating a reduction in penalty; and hearing officer and CSB considered totality of circumstances, including the severity of the offense and Leyba’s past record, with the goal of imposing a disciplinary penalty that would correct the situation. In re Leyba, DDC 59-14, 9 (8/21/17).

Hearing Officer and CSB did not abuse discretion in mitigating penalty where 2-year delay between the minor incident and Agency’s assessment of discipline was partly the cause of deputy’s failure to take responsibility. In re Leyba, DDC 59-14, 9 (8/21/17).

A governmental body abuses its discretion when its decision is not supported by any competent evidence in the record or if the agency misconstrued or misapplied applicable law.In re Leyba, DDC 25-16, 3 (4/4/18) citing Giuliani v. Jefferson County Bd. Of County Com’rs, 303 P.3d 131 (Colo.App. 2012).

Agency decisions are given substantial deference because such decisions are left to the discretion of the agency rendering the decision. In re Leyba, DDC 25-16, 3 (4/4/18), citing Nixon v. City and County of Denver, 343 P.3d 1051, 1056 (Colo.App. 2014).

Administrative decisions cannot be found as arbitrary or an abuse of discretion when the reasonableness of the agency’s action is open to fair difference of opinion, or when there is room for more than one opinion. In re Leyba, DDC 25-16, 3 (4/4/18), citing Bennett v. Price, 446 P.2d 419, 420-1 (Colo. 1968).

CSB affirmance of agency discipline of appellant and decision to not apportion discipline between appellant and others, for appellant who left an inmate stranded in the elevator when she ended her shift, was supported by the record and was neither arbitrary or capricious. In re Leyba, DDC 25-16, 4-5 (4/4/18).

CSB determination, that appellant’s misconduct constituted a Conduct Category D violation was reasonable and based on adequate evidence violation under the Discipline Handbook Matrix where appellant left an inmate stranded in an elevator which resulted in a search to locate the inmate. In re Leyba, DDC 25-16, 6-7

CSB did not abuse its discretion or misapply applicable in affirming 10-day suspension where evidence supported the discipline, selection of conduct category was not arbitrary and capricious, and agency’s determination of aggravating circumstances had no effect on penalty. In re Leyba, DDC 25-16, 5-7 (4/4/18).

In a C.R.C.P. 106(a)(4) review, the court is limited to determining whether a governmental agency exercising its quasi-judicial function has exceeded its jurisdiction or abused its discretion. In re Jochem, DDC 25-15, 4 (7/4/18), citing City of Commerce City v. Enclave West, Inc., 185 P.3d 174, 178 (Colo. 2008).

The reviewing court may defer to the agency’s construction of a code, ordinance, statutory provision, or matters within the agency’s expertise. In re Jochem, DDC 25-15, 4 (7/4/18), citing City of Commerce City v. Enclave West, Inc., 185 P.3d 174, 178 (Colo. 2008).

“[I]n the law enforcement context, ‘police department regulations are entitled to considerable deference because of the State’s substantial interest in creating and maintaining an efficient police organization.’” In re Jochem, DDC 25-15, 4 (7/4/18), citing Khelik v. City and County of Denver, 411 P.3d 1020, 1023 (Colo.App 2016).

A reviewing court is not bound by the agency’s interpretation of applicable law because the law is reviewed de novo. In re Jochem, DDC 25-15, 4 (7/4/18), citing City of Commerce City v. Enclave West, Inc., 185 P.3d 174, 178 (Colo. 2008).

A reviewing court may reverse an agency decision only when there is no competent evidence to support the decision or when the agency has exceeded its jurisdiction. In re Jochem, DDC 25-15, 4 (7/4/18), citing City of Commerce City v. Enclave West, Inc., 185 P.3d 174, 178 (Colo. 2008).

An agency abuses its discretion if its decision is not reasonably supported by any competent evidence in the record, or if the agency has misconstrued or misapplied applicable law. In re Jochem, DDC 25-15, 4 (7/4/18), citing Freedom Colorado Info., Inc., v. El Paso Cty. Sheriff’s Dep’t, 196 P.3d 892, 899-900 (Colo. 2008).

A motion to dismiss for lack of subject matter jurisdiction is governed by C.R.C.P. 12(b)(1). In re Hernandez and Garegnani, DDC 25 & 26-17, 2 (6/5/19).

Under the Colorado constitution, district courts have general subject matter jurisdiction in civil cases with the power to consider questions of law and of equity. In re Hernandez and Garegnani, DDC 25 & 26-17, 2 (6/5/19), citing SR Condos., LLC v. K. C. Constr., Inc., 176 P.3d. 866, 869 (Colo.App. 2007).

Subject matter jurisdiction concerns the court’s authority to deal with the class of cases in which it renders judgment, not its authority to enter a particular judgment in that class. In re Hernandez and Garegnani, DDC 25 & 26-17, 2 (6/5/19), citing SR Condos., LLC v. K. C. Constr., Inc., 176 P.3d. 866, 869 (Colo.App. 2007).

In determining whether subject matter jurisdiction exists, a court must consider the facts alleged and the relief requested. In re Hernandez and Garegnani, DDC 25 & 26-17, 2 (6/5/19), citing SR Condos., LLC v. K. C. Constr., Inc., 176 P.3d. 866, 869 (Colo.App. 2007).

In considering a Rule 12(b)(1) motion, a trial court is authorized to make appropriate factual findings relating to its subject matter jurisdiction and need not treat the facts alleged in the complaint as true. In re Hernandez and Garegnani, DDC 25 & 26-17, 2 (6/5/19), citing Medina v. State, 35 P.3d. 443, 452 (Colo. 2001).

Where the parties have presented all relevant evidence to the court and the underlying facts relating to jurisdiction are undisputed, the trial court may decide the issue as a matter of law. In re Hernandez and Garegnani, DDC 25 & 26-17, 2-3 (6/5/19), citing Medina v. State, 35 P.3d. 443, 452 (Colo. 2001).

If jurisdictional facts are in dispute, the trial court may hold an evidentiary hearing to resolve any dispute upon which the existence of subject matter jurisdiction depends. In re Hernandez and Garegnani, DDC 25 & 26-17, 3 (6/5/19), citing Trinity Broad. of Denver v. City of Westminster, 848 P.2d. 916, 925 (Colo. 1993).

Colorado courts will not interfere with administrative proceedings until the agency reaches a decision constituting a point of administrative finality. In re Hernandez and Garegnani, DDC 25 & 26-17, 4 (6/5/19), citing Colo. Health Facilities Review Council v. District Court in and for the City & County of Denver, 689 P.2d. 617, 621 (Colo. 1984).

Without a final administrative decision, the court lacks subject matter jurisdiction. For a decision to be final, there must be nothing further for the agency to decide. In re Hernandez and Garegnani, DDC 25 & 26-17, 4 (6/5/19), citing Cadnetix Corp. v. City of Boulder, 807 P.2d. 1253, 1254 (Colo.App. 1991).

An appeal has not reached a point of administrative finality where the CSB has remanded the case to the Hearing Officer for determination of a penalty. In re Hernandez and Garegnani, DDC 25 & 26-17, 4 (6/5/19), citing Cadnetix Corp. v. City of Boulder, 807 P.2d. 1253, 1254 (Colo.App. 1991).

A party may seek judicial review under C.R.C.P. 106(a)(4) if there is no plain, speedy, and adequate remedy otherwise available but only after a final administrative decision is made. In re Hernandez and Garegnani, DDC 25 & 26-17, 5 (6/5/19), citing Buck v. Park, 839 P.2d 498, 409 (Colo.App. 1992).

Abuse of discretion is the legal standard applied once a case is already ripe for judicial review, providing a court with the requisite subject matter jurisdiction. In re Hernandez and Garegnani, DDC 25 & 26-17, 5 (6/5/19), citing Aurora v. Hood, 570 P.2d 246, 247 (Colo. 1977).

APPELLATE REVIEW OF CAREER SERVICE RULES AND DEPARTMENTAL ORDERS

An agency abuses its discretion if its decision is not reasonably supported by any competent evidence in the record, or if the agency has misconstrued or misapplied applicable law. In re Leyba, DDC 59-14, 4 (8/21/17), citing Freedom Colo. Info., Inc. v. El Paso Cty. Sheriff’s Dep’t., 196 P.3d 892, 899-900 (Colo. 2008).

Agency proceedings are to be given “a presumption of validity and all reasonable doubts as to correctness of administrative rulings must be resolved in favor of the agency.” In re Leyba, DDC 59-14, 4 (8/21/17), citing Van Sickle v. Boyes, 797 P.2d 1267, 1272 (Colo. 1990).

If there is a reasonable basis for the agency’s application of the law, the decision may not be set aside on review. In re Leyba, DDC 59-14, 4 (8/21/17), citing Platte River Envtl. Org. v. Nat’l Hog Farms, Inc., 804 P.2d 290, 292 (Colo.App. 1990).

A reviewing court will give “deference to the interpretation provided by the officer or agency charged with the administration of the code or statute unless that interpretation is inconsistent with the legislative intent manifested in the text of the statute or code.” In re Leyba, DDC 59-14, 4 (8/21/17), citing Waste Mgmt. of Colo. Inc. v. City of Commerce City, 250 P.3d 722, 725 (Colo.App. 2010).

“[T]he agency’s interpretation of the rule should be given great weight unless plainly erroneous or inconsistent with the rule.” In re Leyba, DDC 59-14, 4 (8/21/17), citing Bryant v. Career Serv. Auth., 765 P.2d 1037, 1038 (Colo.App. 1988).

“In the law enforcement context, ‘police department regulations are entitled to considerable deference because of the State’s substantial interest in creating and maintaining an efficient police organization.’” In re Leyba, DDC 59-14, 4 (8/21/17), citing Puzick v. City of Colorado Springs, 680 P.2d 1283, 1286 (Colo.App. 1983).

[A] reviewing court is not bound by an agency’s construction because review of the law is de novo. In re Leyba, DDC 59-14, 4 (8/21/17), citing City of Commerce City v. Enclave W., Inc., 185 P.3d 174, 178 (Colo. 2008).

CSB correctly construed DSD Rule 200.15.3 as requiring that Appellant violate both portions of the Rule, which are joined by the conjunction “and,” to commit insubordination. In re Leyba, DDC 59-14, 5 (8/21/17).

In reviewing the CSB construction of the DSD Rule, the basic rules of statutory interpretation apply, and the language must be given its ordinary and common sense meaning, In re Leyba, DDC 59-14, 5-6 (8/21/17), citing Khelik v. City & Cnty. of Denver, 411 P.3d 1020, 1023 (Colo.App. 2016).

“When construing an ordinance in the C.R.C.P. 106(a)(4) context, ‘we give effect to every word and, if possible, harmonize potentially conflicting provisions.’” In re Leyba, DDC 59-14, 6 (8/21/17), citing Khelik v. City & Cnty. of Denver, 411 P.3d 1020, 1023 (Colo.App. 2016) (quoting Enclave W., Inc., 185 P.3d at 178).

Interpretations should be avoided which would render language superfluous or redundant, or which would lead to an absurd result. In re Leyba, DDC 59-14, 6 (8/21/17), citing Leaffer v. Zarlengo, 44 P.3d 1072, 1078-9 (Colo. 2002).

Court’s ability to review the CSB determination of mitigation for abuse of discretion does not include reweighing the mitigating factors by reconsidering the evidence and considering evidence outside the record. In re Leyba, DDC 59-14, 7 (8/21/17).

CSB and the Hearing Officer properly considered the agency’s two-year delay in disciplining appellant, for her brief and minor misconduct, and its impact on appellant’s recollection of the incident, about which she lacked credibility. In re Leyba, DDC 59-14, 9 (8/21/17).

An agency’s decision is not arbitrary or an abuse of discretion when the reasonableness of the agency’s action is open to a difference of opinion. In re Jochem, DDC 25-15, 4 (7/4/18), citing Khelik v. City and County of Denver, 411 P.3d 1020, 1023 (Colo.App. 2016).

CSB properly construed RR 400.12, which prohibits the provision of unauthorized items to inmates without the express permission from a supervisor, to require deliberate and explicit permission for such provision. In re Jochem, DDC 25-15, 5 (7/4/18).

CSB properly construed DO 7710.00 § 6, which requires employees to keep tobacco products and paraphernalia away from inmates, to prohibit a deputy from giving, as well as instructing a subordinate to give, an inmate a cigarette. In re Jochem, DDC 25-15, 6 (7/4/18).

CSB reinstated Appellant’s penalty but failed to make the factual findings therefor, as required by CSR 19-70 [now CSR 19-58], thus C.R.C.P. 106(a)(4)(IX) required a remand of the case for additional findings regarding Appellant’s penalty determination. In re Jochem, DDC 25-15, 8 (7/4/18).

CSB properly found that deputy who gave inmate a cigarette without express permission violated RR 400.12, which prohibits the provision of unauthorized items to inmates without the express permission from a supervisor. In re Jochem, DDC 25-15, 5 (7/4/18).

CSB properly found that deputy who responded to subordinates questioning his conduct with “rank has its privileges,” and who instructed a subordinate to give an inmate a cigarette in violation of DSD rules, violated RR 1100.8, Failure to Supervise. In re Jochem, DDC 25-15, 7 (7/4/18).

CSB properly found that deputy who gave, and instructed a subordinate to give, an inmate a cigarette violated DO 7710.00 § 6, which requires employees to keep tobacco products and paraphernalia away from inmates. In re Jochem, DDC 25-15, 6 (7/4/18).

§ 2.6.4 of the Charter and CSR 16-70 grant the Manager of Safety [now Executive Director] the authority to appoint others to discipline deputy sheriffs and the CSB did not abuse its discretion in concluding that the Manager properly so appointed the Civilian Review Administrator in this case. In re Rocha, DDC 19-16, 8 (7/5/18).

7. Arbitrary and Capricious

See also 19-10 A.2.c

An administrative action is presumed to be valid absent proof that it is arbitrary and capricious. In re Bohner(PDF, 97KB), CSA 13-17, 6 (6/5/17), citing In re Vasquez & Lewis(PDF, 216KB), CSA 08-09 & 09-09, 4 (5/20/09); Velasquez v. Dept. of Higher Education, 93 P.3d 540 (Colo.App. 2003); Garner v. Colo. State Dept. of Personnel, 835 P.2d 527 (Colo.App. 1992); Renteria v. Colo. State Dept. of Personnel, 811 P.2d 797 (Colo. 1991).

An action is arbitrary and capricious if the agency (1) fails to use reasonable diligence to determine facts necessary to its decision, (2) fails to give proper consideration to facts relevant to the decision, or (3) bases its action on conclusions reasonable people would not reach on the same facts. In re Bohner(PDF, 97KB), CSA 13-17, 6 (6/5/17), citing In re Foley(PDF, 921KB), CSA 19-06, 8 (11/10/06); Lawley v. Dept. of Higher Education, 6 P.3d 1239, 1252 (Colo. 2001).

Appellant failed to prove his layoff was arbitrary, capricious, or that it violated the CSR 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).

In an appeal of a layoff, the employee bears the burden to prove the agency action was arbitrary, capricious, or contrary to rule or law. In re Sanders(PDF, 2MB), CSA 62-09, 4 (9/24/10), citing Dept of Institutions v. Kinchen, 886 P.2d 700, 712 (Colo. 1994).

A body reviewing agency action under the arbitrary or capricious standard must determine whether the agency considered all relevant factors and whether there has been a clear error of judgment. In re Hamilton(PDF, 7MB), CSA 100-09 & 107-09, 13 (9/17/10), citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971).

An agency decision is an abuse of discretion if it is made without a rational explanation, departs from established policies, or rests on considerations not intended by the governing law. In re Hamilton(PDF, 7MB), CSA 100-09 & 107-09, 13 (9/17/10), citing Wong Wing Hang v. INS, 360 F.2d 715, 719 (2nd Cir. 1965).

A discretionary agency action is capricious or arbitrary if the agency (1) fails to use reasonable diligence to procure facts necessary to its decision, (2) does not consider relevant evidence, or (3) bases its action on conclusions reasonable persons could not reach. In re Hamilton(PDF, 7MB), CSA 100-09 & 107-09, 13 (9/17/10), citing Maggard v. Dept. of Human Services, 226 P.3d 1209, 1212 (Colo.App. 2009).

A performance review may only be reversed if appellant proves it was arbitrary, capricious, and without rational basis or foundation. In re Harrison(PDF, 4MB), CSA 55-07, 89-07 & 90-07, 43 (6/17/10) [NOTE: rule applying to this case was amended to allow an appeal of only an “Unacceptable” rating]; see CSR 19-20 B. 1. b. (former CSR 19-10 A.2.c).

A layoff decision must be upheld unless it is determined to be arbitrary, capricious or contrary to rule or law. In re Owens-Manis & Pettway(PDF, 3MB), CSA 73-09 & 75-09, 11 (3/11/10), citing Velasquez v. Dept. of Higher Education, 93 P.3d 540 (Colo.App. 2003).

An employee challenging a layoff must overcome the presumption of regularity afforded an agency in fulfilling its legal mandate with a showing that it was arbitrary, capricious, or contrary to rule or law. In re Owens-Manis & Owens-Manis & Pettway(PDF, 3MB), CSA 73-09 & 75-09, 11 (3/11/10), citing Motor Vehicle Mfrs. Ass’n v. State Farm, 463 U.S. 29, 44 (1983); In re Vasquez & Lewis(PDF, 216KB), CSA 08-09 & 09-09, 4 (5/20/09); In re Foley(PDF, 921KB), 19-06, 8 (11/10/06); Brennan v. Dept. of Local Affairs, 786 P.2d 426 (Colo.App. 1989).

The duty of a court reviewing agency action under the arbitrary or capricious standard is to ascertain whether the agency examined the relevant data and articulated a rational connection between the facts it found and its decision. In re Owens-Manis & Pettway(PDF, 3MB), CSA 73-09 & 75-09, 11 (3/11/10), quoting Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1574 (10th Cir. 1994); Motor Vehicle Mfrs. Ass’n v. State Farm, 463 U.S. 29, 43 (1983).

The body reviewing an agency decision must determine whether the agency considered all relevant factors and whether there has been a clear error of judgment. In re Owens-Manis & Pettway(PDF, 3MB), CSA 73-09 & 75-09, 11 (3/11/10), citing Motor Vehicle Mfrs. Ass’n v. State Farm, 463 U.S. 29, 43 (1983); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971).

Where there are no competent evidentiary facts to support the agency’s findings of ultimate fact, its decision must be reversed as arbitrary, capricious or contrary to rule or law. In re Owens-Manis & Pettway(PDF, 3MB), CSA 73-09 & 75-09, 11 (3/11/10), citing Womack v. Industrial Commission, 451 P.2d 761, 764 (Colo. 1969); Ricci v. Davis, 627 P.2d 1111, 1118 (Colo. 1981).

An agency decision would be arbitrary and capricious if it relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, offered an explanation that runs counter to the evidence, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. In re Owens-Manis & Pettway(PDF, 3MB), CSA 73-09 & 75-09, 11-12 (3/11/10), quoting Motor Vehicle Mfrs. Ass’n v. State Farm, 463 U.S. 29, 43 (1983).

While a reviewing body may not supply a reasoned basis for an agency action that the agency has itself not provided, it will uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned. In re Owens-Manis & Pettway(PDF, 3MB), CSA 73-09 & 75-09, 12 (3/11/10), citing S.E.C. v. Chenery Corp., 332 U.S. 194, 196 (1947); Bowman Transp. Inc. v. Arkansas-Best Freight System, 419 U.S. 281, 286 (1974).

Appellants failed to prove the agency's interpretation of Denver City Council Bill 44 and calculation of merit increases pursuant to Rule 13 were arbitrary, capricious or contrary to rule or law where imprecise and confusing language of 13-34A was susceptible to a fair interpretation consistent with other CSRs through reference to earlier versions of the rule. In re Vasquez & Lewis(PDF, 216KB), CSA 08-09 & 09-09, 3-5 (5/20/09) (former CSR 13-10 F).

Appellants challenging agency's merit increase calculation must overcome presumption of validity in administrative actions with a showing that the calculation was arbitrary, capricious, or contrary to rule or law. In re Vasquez & Lewis(PDF, 216KB), CSA 08-09 & 09-09, 4 (5/20/09); see Velasquez v. Dept. of Higher Education, 93 P.3d 540 (Colo.App. 2003); Garner v. Colorado State Dept. of Personnel, 835 P.2d 527 (Colo.App. 1992); Renteria v. Colorado State Dept. of Personnel, 811 P.2d 797 (Colo. 1991).

Appellants failed to prove agency action was arbitrary or capricious by a preponderance of the evidence where agency presented compelling business efficiency reason for its action and evidence that it promoted consistency and fairness. In re Vasquez & Lewis(PDF, 216KB), CSA 08-09 & 09-09, 3-5 (5/20/09).

Appellants failed to prove action was arbitrary or capricious where agency demonstrated that limiting merit increase processing to two days per month simplified pay periods and promoted a consistent and fair merit system. In re Vasquez & Lewis(PDF, 216KB), CSA 08-09 & 09-09, 3-5 (5/20/09).

An act is arbitrary and capricious if a reasonable person, considering all the evidence in the record, would fairly and honestly be compelled to reach a different conclusion. In re Proctor,(PDF, 549KB) CSA 52-07, 3 (1/3/08), citing In re Leal-McIntyre,(PDF, 7MB) CSA 77-03, 134-03 & 167-03, 5 (1/27/05); Wildwood Child & Adult Care Program, Inc. v. Colo. Dept. of Public Health Care and Environment, 985 P.2d 654, 658 (Colo.App. 1999).

An agency action is arbitrary and capricious if an agency 1) fails to use reasonable diligence to determine facts necessary to its decision, 2) fails to give proper consideration to facts relevant to the decision, or 3) bases its action on conclusions that reasonable persons considering the facts would not reach. In re Foley(PDF, 921KB), CSA 19-06, 8 (11/10/06), citing Lawley v. Dept. of Higher Education, 6 P.3d 1239, 1252 (Colo. 2001).

The core of the concept of arbitrary and capricious action is rationality. In re Foley(PDF, 921KB), CSA 19-06, 8 (11/10/06), citing Columbia Broadcasting System v. F.C.C., 454 F.2d 1018, 1028 (D.C. Cir. 1971).

An act is arbitrary and capricious if a reasonable person, considering all the evidence, would fairly and honestly be compelled to reach a different conclusion. In re Padilla,(PDF, 196KB) CSA 25-06, 11 (9/13/06), citing In re Leal-McIntyre(PDF, 7MB), CSA 77-03, 134-03 & 167-03, 5 (1/27/05); Wildwood v. Colo. Dept. of Public Health Care, 985 P.2d 654 (Colo.App. 1999).

Express finding that PEPR rating was arbitrary, capricious and without rational basis or foundation is sole basis for its reversal, which an error in rating calculations does not warrant. In re Padilla, CSA 25-06, 11 (9/13/06), affirmed In re Padilla(PDF, 196KB), CSB 25-06A (2/15/07).

PEPR rating was arbitrary, capricious, and without rational basis or foundation where deficiencies noted in PEPR were not clearly related to performance standards set in the PEP, PEPR was fraught with mathematical errors and procedural problems, and convincing evidence showed that supervisor actively disliked appellant. In re Padilla(PDF, 726KB), CSA 25-06, 10-12 (9/13/06).

Agency may not discipline an employee both for engaging in and, at the same time, failing to engage in the same conduct. In re Martinez(PDF, 584KB), CSA 69-05, 3 (1/4/06) (decided under former CSR 16-50 A.1).

Agency neglected to use reasonable diligence to determine whether laid-off employee possessed the qualifications to perform the essential duties of the demotional appointment, gave undue weight to its own interpretation of the nature of the position, and disregarded more objective evidence, and thus exercised its discretion 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, 6 P.3d 1239, 1252 (Colo. 2001).

8. Burden of Proof - Non-Sheriff Discipline

In General

In non-Sheriff disciplinary actions, the agency bears the burden to establish that appellant violated specified CSRs by a preponderance of the evidence and that the specified type and degree of discipline was within the appropriate range of discipline under the circumstances. In re Vega(PDF, 1MB), CSA 12-14, 2-3 (7/3/14), citing In re Carter, CSB 87-09, 2 (7/1/2010); see also In re Gomez(PDF, 4MB), CSA 02-12, 3 (5/14/12); In re Roberts(PDF, 703KB), CSA 40-10 & 48-10, 9 (11/15/10); In re Jackson(PDF, 2MB), 39-10, 6 (10/7/10).

A Performance Improvement Plan (PIP) is not a prerequisite to disciplinary action for failure to perform assigned tasks. In re Serna,(PDF, 866KB) CSB 39-12, 3 (2/21/14).

Appellants bear the burden of demonstrating subject matter jurisdiction in response to a motion to dismiss. In re Vasquez & Lewis(PDF, 245KB), CSA 08-09 & 09-09 (Order 3/11/09); In re Anderson(PDF, 76KB), CSA 102-09 (Order 1/8/10).

Appellant has burden to prove he was a career service employee entitled to invoke the jurisdiction of the hearing office to appeal his termination. In re Sample, CSA 72-07, 5 (6/12/08), citing CSR 5-35 B. 1. (former CSR 5-62 1); Rule 16; C.R.S. 24-4-105(7).

Failure To Mitigate

Agency has burden to prove the defense of failure to mitigate damages by evidence the employee failed to take reasonable steps to minimize damages. In re Maes, CSA 180-03, 7 (Order 6/20/08).

Agency fails to carry burden to prove failure to mitigate if mitigation would require inordinate or unreasonable measures or if there were reasonable grounds for the failure. In re Maes, CSA 180-03, 7 (Order 6/20/08), citing Berger v. Security Pac. Info. Sys., Inc., 795 P.2d 1380, 1385 (Colo. App. 1990).

Hiring

Appellant who challenged agency hiring decision must prove choice was arbitrary, capricious, or contrary to law. In re Macieyovski(PDF, 227KB), CSA 60-04, 4 (7/27/05), citing In re Bossert, CSA 170-03 (3/26/04).

Performance Review [Formerly known as PEPR]

An express finding that PEPR rating was arbitrary, capricious, and without rational basis or foundation is the sole basis for its reversal. An error in rating calculations does not warrant reversal. In re Padilla, CSA 25-06, 11 (9/13/06); affirmed In re Padilla(PDF, 196KB), CSB 25-06 (2/15/07). [note: currently only work review ratings of “unacceptable” are appealable].

Appellant bears the burden of proving that a PEPR rating was arbitrary, capricious and without rational basis or foundation. In re Macieyovski, CSA 62-06, 3 (12/14/06) [note: currently only work review ratings of “unacceptable” are appealable].

Preponderance of Evidence

In a grievance appeal, appellant bears the burden to prove, by a preponderance of the evidence, that the agency actions violated CSRs, the City Charter, ordinance(s) relating to the Career Service, executive orders, or written agency policies, and that the agency actions negatively affected her pay, benefits, or status, under CSR 19-20 B.1.a. [former CSR 19-10 A.2.b.i.]. In re Anderson & Connors,(PDF, 400KB) 61-10, 63-10, 66-10 & 67-10, 5 (12/22/10).

An employee bears the burden to prove a retaliation claim by a preponderance of the evidence. In re Sanders(PDF, 2MB), CSA 62-09, 4 (9/24/10).

Appellant, as the proponent of a whistleblower claim, must prove the claim by a preponderance of the evidence. In re Harrison(PDF, 4MB), CSA 55-07, 89-07 & 90-07, 43 (6/17/10), citing C.R.S. 24-4-105; Velasquez v. Dept. of Higher Education, 93 P.3d 540, 542 (Colo.App. 2003); Dept. of Inst. v. Kinchen, 886 P.2d 700 (Colo. 1994).

De Novo Review

The degree of discipline is a matter that must be determined de novo by the hearing officer. In re Morgan(PDF, 987KB), CSA 63-08, 18 (4/6/09).

Clearly Erroneous - Non-Sheriff Discipline

Hearing officer’s findings and conclusions that are not clearly erroneous will not be overturned by the CSB. In re Gerovic(PDF, 116KB), CSB 77-17A, 3 (6/20/19).

A Hearing Officer’s decision is clearly erroneous if the record lacked factual support for his findings. In re Gerovic(PDF, 116KB), CSB 77-17A, 2 (6/20/19).

Clearly Erroneous - Sheriff Discipline

Appellant bears the burden to prove the agency discipline was arbitrary, that is, based substantially on considerations unsupported by record evidence, or is clearly excessive. In re Johnson(PDF, 285KB), CSA 24-17, 4 (2/15/19).

Pursuant to CSR 20-56, appellant bears the burden of proof to prove the agency’s disciplinary decision or application of the disciplinary matrix was clearly erroneous. In re Johnson(PDF, 285KB), CSA 24-17, n.6 (2/15/19).

Deputy’s claim that the DSD bears the burden to prove she violated cited rules is incorrect as CSR 20 places burden on appellants to prove the violations were clearly erroneous. In re Sparer(PDF, 210KB), CSB 71A-18, 2 (7/18/19).

9. Career Service Rules

In General

A procedural rule can be applied retroactively to cases pending at the time of the adoption of the rule. In re Keller(PDF, 246KB), CSB 47-14A, 3 (6/20/19), citing People in the Interest of R.F.A., 744 P.2d 1202, 1204 (Colo.App. 1987); Brownson-Rausin v. Industrial Claims Appeals Office, 131 P.3d 1172, 1178 (Colo.App. 2006).

The Hearing Officer’s retroactive application of CSR 20 in this case is not error, although the Hearing Officer applied it prospectively in other cases where the parties did not raise its retroactive application. In re Keller(PDF, 246KB), CSB 47-14A, 4 (6/20/19).

That the CSB has not previously addressed the retroactive application of CSR 20 does not indicate its intent for CSR to be applied prospectively. In re Keller(PDF, 246KB), CSB 47-14A, 4 (6/20/19).

The agency did not waive its right to the retroactive application of CSR 20 in this case when it did not insist on its retroactive application in other cases. In re Keller(PDF, 246KB), CSB 47-14A, 4 (6/20/19).

The agency and the appellant cannot waive the retroactive application of CSR 20, since it is not a known right or privilege possessed by the agency or appellant, and waiver is the intentional relinquishment of a known right or privilege. In re Keller(PDF, 246KB), CSB 47-14A, 4 (6/20/19), citing Dept. of Health v. Donahue, 690 P.2d 243, 247 (Colo. 1994).

Parties to a hearing can only request a Hearing Officer to apply or not apply a CSR, or apply or interpret a CSR in a particular way, since the CSRs are not a right or privilege possessed by the parties. In re Keller(PDF, 246KB), CSB 47-14A, 4 (6/20/19).

The determination of whether or how a CSR should be applied at a hearing is, in the first instance, a decision solely within the province of the Hearing Officer. In re Keller(PDF, 246KB), CSB 47-14A, 5 (6/20/19).

The agency moved timely for the retroactive application of CSR 20 since it filed its motion within the time limitations for filing of motions set by the Hearing Officer. In re Keller(PDF, 246KB), CSB 47-14A, 5 (6/20/19).

The agency and the appellant cannot forfeit the retroactive application of CSR 20 since it is not a right they possess, and forfeiture is the failure to make the timely assertion of a right. In re Keller(PDF, 246KB), CSB 47-14A, 5 (6/20/19), citing Johnson v. Zerbst, 304 U.S. 458 (1938).

Hearing Officers are not authorized to sit as a court of equity, and therefore cannot grant relief based on the doctrine of laches. In re Keller(PDF, 246KB), CSB 47-14A, 5 (6/20/19).

The agency’s timely motion for the retroactive application of CSR 20, within the deadline set by the Hearing Officer for the filing of motions, was not an unconscionable delay by it. In re Keller(PDF, 246KB), CSB 47-14A, 5 (6/20/19).

The Career Service disciplinary system is not a comparative discipline system. In re Hammernik & Trujillo(PDF, 2MB), CSB 41-17A & 42-17A, 5 (2/7/19).

A single rule may not be interpreted in isolation from its context. In re Bohner(PDF, 97KB), CSA 13-17, 6 (6/5/17), citing Util. Air Regulatory Grp. v. E.P.A., 134 S.Ct. 2427, 2441 (2014).

The career service rules do not require an agency to develop numerical performance standards, but only to provide clear expectations governed by due process, personal accountability, reasonableness and sound business practices. In re Lopez(PDF, 172KB), CSA 61-16, 4 (12/1/16), citing CSR 16, Purpose Statement.

Career Service employees must be familiar with published rules and regulations governing the workplace. In re Shelley & Martinez, CSB 30-13 & 32-13, 2 (12/9/14).

The fact that a large number of rules and regulations were provided to appellant when he began does not relieve his obligation to know all of them and act in accordance with them years later. In re Shelley & Martinez, CSB 30-13 & 32-13, 2 (12/9/14).

It is a reasonable communication of workplace rules simply to hand them to an employee at the outset of his employment. In re Shelley & Martinez, CSB 30-13 & 32-13, 2 (12/9/14).

Alleging misconduct at hearing, in the absence of an underlying rule violation, is an impermissible use of the disciplinary process. The agency fails to provide notice of what conduct it considered in assessing discipline, and the employee is therefore deprived of the opportunity to defend against the allegation. In re Leslie(PDF, 8MB), CSA 10-11, 20 (12/5/11).

Motions to set aside final orders will be considered only upon a showing of extraordinary circumstances. In re Maestas,(PDF, 348KB) CSA 33-11, 1 (Order 8/9/11).

Appellant was not denied due process when his supervisor did not re-schedule cancelled meeting to discuss incident underlying disciplinary proceeding. The pre-disciplinary meeting provided the opportunity to correct any errors and to be heard in explanation or mitigation. In re Weiss(PDF, 3MB), CSA 68-10, 7 (2/14/11); citing CSR 16-40 B.

Appellant’s argument that the Agency disciplined him for invoking his right not to serve as a witness against himself, when he was ordered to apologize to a co-worker, is inapplicable in civil cases. The privilege against self-incrimination applies exclusively to criminal defendants. In re Weiss(PDF, 3MB), CSA 68-10, 7 (2/14/11).

Where Appellant is not given notice of an allegation, and it was not included in the pre-disciplinary letter, the allegation cannot be considered to establish violation of a Career Service Rule. In re Roberts(PDF, 703KB), 40-10 & 48-10, 12 (11/15/10).

Although Agency established a prima facie case that Appellant violated agency rules and policies, where the policies irreconcilably conflicted with the Career Service Rules, the Agency rules and policies are unenforceable. In re Rock(PDF, 5MB), CSA 09-10, 6 (10/5/10).

A lack of precision and a lack of definition within a rule do not render it invalid if it is susceptible to a fair interpretation that is consistent with the other Career Service Rules. In re Vasquez & Lewis(PDF, 216KB), CSA 08-09 & 09-09, 5 (5/20/09).

The Career Service Rules provide the sole jurisdictional basis for appeals heard by the hearing officers. In re Morgan(PDF, 987KB), CSA 63-08, 16 (4/6/09).

Hearing officers lack jurisdiction to rule on the constitutionality of Career Service Rules. In re Sawyer & Sproul,(PDF, 1MB) CSA 33-08 & 34-08, 17 (1/27/09); CSR 19-55.

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(PDF, 495KB), CSB 87-07, 7 (1/8/09).

The policies and rules of the city should be interpreted to be consistent with one another if such a reading would not do violence to the plain meaning of either. In re Williams,(PDF, 25KB) CSA 56-04, 4 (5/6/05).

Since CSR 16-40 D and Executive Order 94 can be read to be consistent, the former does not invalidate Executive Order 94’s language mandating dismissal for second violation of city drug policy in the employee’s career, and agency did not violate career service rule by relying on a first offense that occurred more than five years before second offense. In re Williams(PDF, 25KB), CSA 56-04, 4 (5/6/05).

Construction of Rules

CSR 9-56 requires a specific, fixed location, “the work site,” to which the agency can require its employees to report back. In re Osborne et al(PDF, 78KB), CSA 35-18…38-18, 5 (9/5/18).

Reviewing court interprets agency personnel rules in accordance with basic tenets of statutory construction. In re Gutierrez(PDF, 16MB), Colo.App. 65-11, 9 (5/19/16), citing Abromeit v. Denver Career Serv. Bd., 140 P.2d 44, 49 (Colo.App. 2005).

Reviewing court will not construe a rule to contradict its purpose. In re Gutierrez(PDF, 16MB), Colo.App. 65-11, 9 (5/19/16), citing State v. Nieto, 993 P.2d 493, 501 (Colo. 2000).

A reviewing court must follow the statutory construction that best effectuates the intent of the general Assembly and the purposes of the legislative scheme. In re Gutierrez(PDF, 16MB), Colo.App. 65-11, 8-9 (5/19/16), citing State v. Nieto, 993 P.2d 493, 501 (Colo. 2000).

A court may apply rules of statutory construction to determine the construction that accords with the objective of the legislation. In re Gutierrez(PDF, 16MB), Colo.App. 65-11, 9 (5/19/16), citing People v. Frazier, 77 P.3d 838, 839 (Colo.App. 2003), affirmed 90 P.3d 807 (Colo. 2004).

Reviewing court interprets personnel rules to avoid absurd or illogical results. In re Gutierrez(PDF, 16MB), Colo.App. 65-11, 10 (5/19/16), citing Frazier v. People, 90 P.3d 807, 811-12(Colo. 2004).

Reviewing court interprets personnel rules to produce results contradicting clear legislative intent. In re Gutierrez(PDF, 16MB), Colo.App. 65-11, 10 (5/19/16), citing Frazier v. People, 90 P.3d 807, 811-12(Colo. 2004).

Rules may not be construed to sanction inappropriate conduct merely because it is widespread. In re Gutierrez(PDF, 16MB), Colo.App. 65-11, 13 (5/19/16).

In interpreting rules, the plain and ordinary meaning of words should apply. In re Kemp(PDF, 2MB), CSB 19-13, 5 (7/28/14).

The City Charter empowers a manager to administer an agency by issuing orders necessary and prudent to accomplish the agency’s mission. In re Macieyovski(PDF, 2MB), CSA 55-13, 4 (4/1/14).

The responsibilities imposed by Charter to administer an agency necessarily bestow the powers required to execute those duties. In re Macieyovski(PDF, 2MB), CSA 55-13, 5 (4/1/14).

Where agency’s notice of discipline referred to appellant conducting non-agency business while on duty, but was vague as to whether it found the conduct violated any particular Career Service Rule, the hearing office will not make such a connection on behalf of the agency. In re Gutierrez,(PDF, 1MB) CSA 65-11, 6 (8/28/12).

When each side presents equally credible testimony, the violation remains unproven. In re Leslie(PDF, 8MB), CSA 10-11, 14 (12/5/11).

Under CRS 408, an agency is precluded from introducing documents appellant produced during settlement negotiations in his disqualification appeal. In re Murphy, CSA 09-11, 1-2 (Order 10/7/11).

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(PDF, 147KB), CSA 71-10, 2 (Order 3/11/11), citing CSR 19-30 A.

The abolishment of Appellant’s position and creation of a new position did not contradict Denver City Charter’s merit-based personnel system, which guarantees the right of career service employees not to be displaced by the abolishment of their position and the creation of a new position with substantially the same duties and responsibilities, where lack of supervisory and administrative duties and addition of new responsibilities notably differentiated the new position from Appellant’s abolished position. In re Sanders, CSB 62-09, 1 (2/17/11).

In reviewing whether a newly created position is substantially similar to an abolished one, classification and pay grade may be relevant information, however, the focus should be on the duties and responsibilities performed by incumbents of both positions. In re Sanders, CSB 62-09, 2 (2/17/11).

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 CSRs 19-10(b)(3) and 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).

Settlement agreement reducing Appellant’s sixty-day suspension to forty-five days contemplated that Agency would reimburse Appellant the amount equivalent to fifteen days of pay, where she already served the sixty-day suspension, and each “day” was calculated based on an eight-hour shift, not her actual 10.32-hour shifts that she customarily works. In re James, CSA 33-10 (Order 1/25/11).

Re-opening an appeal after it was dismissed, may be justified only by new and extraordinary circumstances. In re Noel, CSA 88-10, 1 (Order 12/29/10).

The Confrontation Clause of the Sixth Amendment, which entitles the criminally accused to require the presence of witnesses against him, does not apply to civil administrative matters. In re Burke, 60-10, 1 (Order 12/8/10) citing Bennett v. National Transportation Safety Board, 66 F.3d 1130, 1136 (10th Cir. 1995).

Where Appellant was dismissed from his position, in substantial part, upon a report which included his wife’s allegations of domestic violence, he is entitled to an opportunity to confront his wife, however, he must avail himself of the opportunities to cross-examine her, or he will be precluded from asserting error after the hearing. In re Burke, 60-10, 2 (Order 12/8/10).

Reversal of Appellant's layoff requires reinstatement to the new position where her duties where transferred, and not to her former position which was stripped of duties and where she could well be laid off again. In re Hamilton, CSB 100-09 & 107-09, 1-2 (Order 11/9/10).

Reinstatement is implicit in a hearing officer’s reversal of a layoff, even if not explicitly stated. In re Hamilton, CSB 100-09 & 107-09, 1-2 (Order 11/9/10).

Joinder of laid-off employee’s former agency was not necessary to appeal, as the agency was represented by the City for purposes of her appeal. In re Hamilton, CSB 100-09 & 107-09, 2 (Order 11/9/10).

Where an agency chooses to use proficiency standards instead of seniority to determine which employees will be subject to a layoff, as permitted in the Career Service Rules, those proficiency standards must be reasonable and fair. In re Owens-Manis & Pettway, CSB 73-09 & 75-09, 4-5 (10/21/10).

The Career Service Board repeatedly has found a violation under CSR 16-60 Z. requires the agency to prove the employee’s conduct resulted in actual harm to the agency’s mission or actual harm to the City’s reputation or integrity. In re Jones(PDF, 723KB), CSB 88-09 (9/29/10), affirming In re Jones, CSA 88-09 (5/11/10); citing In re Simpleman(PDF, 636KB), CSA 31-06, 10 (10/20/06); In re Hill(PDF, 430KB), CSA 14-07, 7 (6/8/07); In re Strasser(PDF, 328KB), CSA 44-07, 5 (10/16/07); In re Catalina(PDF, 656KB), CSA 35-08, 8 (8/22/08); In re Norman-Curry, CSA 28-07 & 50-08, 28 (2/27/09).

Proposal to expand scope of CSR 16-60 Z., from “actual harm” to “reasonable expectation of harm,” would substitute speculative harm for objective, tangible, measurable standard. In re Jones(PDF, 723KB), CSB 88-09 (9/29/10), affirmed In re Jones(PDF, 2MB), CSA 88-09 (5/11/10).

Violations of CSR 16-60Z must be decided on a case-by-case basis. In re Jones, CSB 88-09 (9/29/10), affirmed In re Jones(PDF, 2MB), CSA 88-09 (5/11/10).

When a governmental agency promulgates rules governing the discharge of its employees, it must strictly comply with those rules. In re Hamilton(PDF, 7MB), CSA 100-09 & 107-09, 23 (9/17/10), citing Brennan v. Dept. of Local Affairs, 786 P.2d 426, 427 (Colo.App. 1989); Mercer v. Bd. of County Com’rs, 671 P.2d 435 (Colo.App.1983).

Agency's use of procedures not in conformity with personnel rules is relevant to the determination of whether the action was arbitrary and capricious, where it stated reasons for using nonconforming procedures were not supported by the evidence. In re Hamilton(PDF, 7MB), CSA 100-09 & 107-09, 24 (9/17/10).

Proposal to expand scope of CSR 16-60Z, from “actual harm” to “reasonable expectation of harm” would create a form of comparative discipline at odds with career service philosophy of imposing discipline based upon the employee’s own conduct. In re Jones, CSB 88-09 (9/29/10), affirmed In re Jones(PDF, 2MB), CSA 88-09 (5/11/10).

Agency proposal to expand scope of CSR 16-60Z based upon seriousness of the violation, rather than upon showing actual harm, would impermissibly result in all serious misconduct becoming the measure of the violation and of the degree of discipline. In re Jones(PDF, 723KB), CSB 88-09 (9/29/10), affirmed In re Jones(PDF, 2MB), CSA 88-09 (5/11/10).

Only an overall rating of “failing” on a PEPR, which is the rating listed on the first page of the PEPR form, is appealable. In re Zacker(PDF, 318KB), 44-10, 1 (Order 7/15/10).

Whistleblower ordinance was not rendered retrospective merely because the facts upon which it operates occur before the date it was adopted. In re Harrison(PDF, 4MB), CSA 55-07, 89-07 & 90-07, 59 (6/17/10), citing Wood v. Beatrice Foods Co., 813 P.2d 821 (Colo.App. 1991); Neodata Services v. Industrial Claim Appeals Office, 805 P.2d 1180 (Colo.App. 1991); Continental Title Co. v. District Court, 645 P.2d 1310 (Colo. 1982). Career Service Rules do not provide a hearing officer with the power to stay operation of a disciplinary suspension before a hearing on an appeal, and such relief is inconsistent with the clear intent of the rules. In re James(PDF, 52KB), CSA 33-10 (Order 5/18/10), citing CSRs 19-66 B and 19-42 C.

If Career Service Board intended to authorize the hearing office to grant temporary relief similar to an injunction or temporary restraining order in state civil courts, it would have specifically included a rule setting forth the procedures and grounds for ruling on the issue. In re James(PDF, 52KB), CSA 33-10 (Order 5/18/10), citing CSRs 19-66 B and 19-42 C; CRCP Rule 65.

An agency is prohibited from disciplining an employee twice based on the same conduct by virtue of the city charter’s requirement that discipline may only be imposed for good cause. In re D’Ambrosio, CSA 98-09, 7 (5/7/10); citing In re Roberts(PDF, 2MB), CSA 179-04, 7 (6/29/05).

Where there is already a rule prohibiting careless performance of work, a separate rule against failure to do assigned work will not be read to bar the same conduct. In re D’Ambrosio, CSA 98-09, 7 (5/7/10).

Since each provision of the Career Service Rules is presumed to have a purpose and use, the board's reenactment of two separate rules is presumed to target separate performance issues. In re D’Ambrosio, CSA 98-09, 7 (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).

If an agency regulation addresses the same subject matter as CSR 16-61, both must comply with the procedural safeguards of 16-61. In re Chavez(PDF, 1MB), CSA 129-08, 4 (2/2/10).

Prohibition of appeals of any "other" aspect of the PEP, at CSR 13-50 C, must be read in conjunction with the immediately preceding rule prohibiting grievance appeals of all ratings save "needs improvement." In re Vasquez & Lewis(PDF, 216KB), CSA 08-09 & 09-09, 2 (5/20/09).

Appellant's interpretation of her PEPR end date as December 31 instead of January 1 of each year was not persuasive, where only one such end date appeared in her five PEPR years; and, since no other rule change or other explanation satisfactorily explained the discrepancy, the most logical conclusion was the exception was clerical error. In re Vasquez & Lewis(PDF, 216KB), CSA 08-09 & 09-09, 3-4 (5/20/09).

Agency supervisor interpretation of CSR, while appropriate for internal purposes, is not binding on the CSB, which delegated its de novo review authority to hearing officers. In re Vasquez & Lewis(PDF, 216KB), CSA 08-09 & 09-09, 4 (5/20/09).

Career service director's interpretation of CSR, while appropriate for internal purposes, is not binding on the CSB, which delegated its de novo review authority to hearing officers. In re Vasquez & Lewis(PDF, 216KB), CSA 08-09 & 09-09, 4 (5/20/09).

A lack of precision and a lack of definition within a rule do not render it invalid if it is susceptible to a fair interpretation consistent with the other Career Service Rules. In re Vasquez & Lewis(PDF, 216KB), CSA 08-09 & 09-09, 5 (5/20/09).

Agency interpretation of Denver City Council Bill 44 (2009) to include appellants' 2008 PEPRs limitation to one-step increase was persuasive where such interpretation was not arbitrary, capricious or contrary to rule or law. In re Vasquez & Lewis(PDF, 216KB), CSA 08-09 & 09-09, 5 (5/20/09).

Jury Trial

In a civil administrative proceeding such as a career service appeal, there is no constitutional right to a trial by jury. In re Luna(PDF, 271KB), CSB 42-07, 4 (1/30/09).

10. Continuance

A motion to continue must be justified by good cause. In re Long(PDF, 99KB), CSA 78-07 (Order 6/10/08).

Request for leave to file a pleading late due to “unseen circumstances” without more, is insufficient cause. In re Romero,(PDF, 167KB) CSA 03-08 (Order 2/6/08).

11. Credibility

Where agency did not allege in its pre-disciplinary documents that appellant improperly obtained mileage reimbursement and obscured reasons for her late arrival at work, agency was precluded from assessing discipline on those bases, but hearing officer could consider them in assessing appellant’s credibility. In re Hinojosa(PDF, 166KB), CSA 33-18, 10 (11/29/18).

It is insufficient to state a multi-part rule was violated without specifying what part or how. In re Wilson(PDF, 201KB), CSA 38-17, 13 (12/8/17).

Wrongdoing raised for the first time at hearing was an impermissible use of the disciplinary process, as the agency failed to provide notice what conduct it considered in assessing discipline, and the employee was deprived of the opportunity to defend against the allegation. In re Leslie(PDF, 8MB), CSA 10-11, 20 (12/5/11).

Motions to set aside final orders must state extraordinary circumstances. In re Maestas,(PDF, 348KB) CSA 33-11, 1 (Order 8/9/11).

Appellant was not denied due process when his supervisor did not re-schedule meeting to discuss the incident preceding discipline. The pre-disciplinary meeting provided the opportunity to correct any errors, to explain, or to mitigate. In re Weiss(PDF, 3MB), CSA 68-10, 7 (2/14/11); citing CSR 16-40B.

Appellant’s argument that the agency disciplined him for invoking his right not to serve as a witness against himself is inapplicable in civil cases. The privilege against self-incrimination applies exclusively to criminal defendants. In re Weiss(PDF, 3MB), CSA 68-10, 7 (2/14/11).

Agency's allegation of wrongdoing which was not included in the pre-disciplinary letter may not establish a Career Service Rule violation. In re Roberts(PDF, 703KB), 40-10 & 48-10, 12 (11/15/10).

Even though agency established a prima facie case that appellant violated an agency rule, such rule is unenforcable if it irreconcilably conflictes with the Career Service Rules. In re Rock, CSA 09-10, 6 (10/5/10).

Lack of precision or definition in a rule does not render it invalid if it is susceptible to a fair interpretation that is consistent with the other Career Service Rules. In re Vasquez & Lewis(PDF, 216KB), CSA 08-09 & 09-09, 5 (5/20/09).

The Career Service Rules provide the sole jurisdictional basis for appeals heard by the hearing officers. In re Morgan(PDF, 987KB), CSA 63-08, 16 (4/6/09).

Hearing officers lack jurisdiction to rule on the constitutionality of Career Service Rules. In re Sawyer & Sproul,(PDF, 1MB) CSA 33-08 & 34-08, 17 (1/27/09); CSR 19-55.

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(PDF, 495KB), CSB 87-07, 7 (1/8/09).

The policies and rules of the city should be interpreted to be consistent with one another if such a reading expresses the plain meaning of either. In re Williams(PDF, 25KB), CSA 56-04, 4 (5/06/05).

Since CSR 16-40 D and Executive Order 94 can be read in harmony, the former does not invalidate Executive Order 94’s language mandating dismissal for second violation of city drug policy in the employee’s career and agency did not violate CSR 16-40 D by relying on a first offense that occurred more than five years earlier. In re Williams(PDF, 25KB), CSA 56-04, 4 (5/06/05).

12. Definitions

ABUSE OF DISCRETION

A decision is an abuse of discretion if it was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination or other considerations not intended by the governing law. In re Foley(PDF, 921KB), CSA 19-06, 8 (11/10/06), citing Wong Wing Hang v. INS, 360 F.2d 715 (2nd Cir. 1966); Kaloudis v. Shaughnessy, 180 F.2d 489, 491 (2nd Cir. 1950).

APPOINTING AUTHORITY

An appointing authority is defined in the rules as the municipal official designated by the annual appropriation ordinance to approve expenditures for a given appropriation. In re Lovin(PDF, 87KB), CSA 27-06, 1 (Order 5/18/06); citing CSR 1.

CAUSE OF ACTION

The cause of action in an appeal is defined by the injury for which the claimant seeks redress and not by the legal theory on which the claimant relies. In re Cho, CSA 01-09, 3 (Order 1/21/09) citing 1B J. Moore, J. Lucas & T. Currier, Moore’s Federal Practice § 0.410 (1) (2d Ed. 1988); Argus Real Estate, Inc. v E-470 Public Highway Authority, 109 P3d 604 (Colo. 2005).

DISHONESTY (See also 16-60E and F)

Dishonesty is any misrepresentation made within the employment context. In re Mounjim(PDF, 495KB), CSB 87-07, 5-6 (1/8/09).

Dishonesty is the knowing communication by an employee of a false statement within the employment relationship. In re Stone(PDF, 742KB), CSA 70-07, 9 (2/25/08).

Dishonesty is an act involving intent to deceive. In re Martinez(PDF, 584KB), CSA 69-05 (1/4/06).

INTIMIDATION (See also 15-110 and 16-60 M)

Intimidation is defined as unlawful coercion; duress; putting in fear. In re Rivas(PDF, 821KB), CSA 49-07, 10 (1/9/08), citing Black’s Law Dictionary 957 (4th ed.1951).

In re Gutierrez, CSB 65-11, 2 (4/4/13).

“Neglect of duty” implies failure to perform a duty. In re Martinez(PDF, 541KB), CSA 30-06 (Order 10/3/06); see also In re Simpleman(PDF, 636KB), CSA 31-06 (10/20/06).

OBJECTIVE STANDARD

Objective standard does not permit consideration of the parties’ intent, rather the fact finder must evaluate conduct in light of how a reasonable person would act or respond in similar circumstances. In re Gutierrez, Colo.App. 65-11, 7-8, (5/19/16), citing Survey Sols., Inc. v. Indus. Claim Appeals Office, 956 P.2d 1275, 1276 (Colo.App. 1998).

RES JUDICATA (Claim preclusion)

Res judicata prevents a party from relitigating a legal claim that was or could have been the subject of a previously issued final judgment. In re Cho, CSA 01-09, 2 (Order 1/21/09), citing Satsky v Paramount Communications, Inc., 7 F.3d 1464, 1467 (10th Cir. 1993).

Res judicata, also known as claim preclusion, requires proof of three elements: 1) a final judgment on the merits in an earlier action, 2) same parties, and 3) same causes of action in both suits. In re Cho, CSA 01-09, 2 (Order 1/21/09), citing Wilkes v Wyo. Dept. of Employment Div. of Labor Standards, 314 F.3d 501, 504 (10th Cir. 2003).

Res judicata bars later actions based on the same cause of action. In re Cho, CSA 01-09 (Order 1/21/09).

WILLFULNESS

Board adopts a common sense definition of "willful." In re Redacted, CSB 56-11, 3 (12/20/12).

Circumstances demonstrating willfulness are those demonstrating that the action was taken intentionally, knowingly, or voluntarily, without justifiable excuse. In re Redacted, CSB 56-11, 3 (12/20/12), citing Black's Law Dictionary, Fifth Edition, p. 1434.

WORK SITE

CSR 9-56 requires “the work site” to be a specific, fixed location. In re Osborne et al(PDF, 78KB), CSA 35-18…38-18, 5 (9/5/18).

Telecommuting is a practice that occurs regularly from a fixed location, thus remote locations where appellants were sent for work were not telecommuting as contemplated by this rule. In re Osborne et al(PDF, 78KB), CSA 35-18…38-18, 5 (9/5/18), citing CSR 9-80.

13. De Novo Review

The City Charter requires that appeals from employment actions must be decided based on a de novo determination of the facts. In re Duran(PDF, 3MB), CSA 10-10, 7 (10/1/10), citing Turner v Rossmiller, 532 P.2d 751 (Colo. App. 1975); In re Luna(PDF, 271KB), CSB 42-07, 4 (1/30/09).

The career service hearing is a de novo hearing in which a hearing officer must consider all the evidence on all the issues presented in the appeal as though no previous action had been taken. In re Luna(PDF, 271KB), CSB 42-07, 4 (1/30/09), citing Turner v Rossmiller, 532 P.2d 751 (Colo. App. 1975); In re Simpleman(PDF, 636KB), CSA 31-06, 3 (10/20/06); In re Martinez(PDF, 541KB), CSA 30-06 (10/3/06).

An appeal de novo means that evidence will be heard as though no previous action had been taken. In re Simpleman(PDF, 636KB), CSA 31-06, 3 (10/20/06), citing Turner v Rossmiller, 532 P.2d 751 (Colo. App. 1975), affirmed In re Simpleman(PDF, 148KB), CSB 31-06 (8/2/07); See also In re Martinez,(PDF, 541KB) CSA 30-06 (10/3/06).

A de novo hearing means the hearing officer makes findings of fact independently of the agency’s findings, assesses credibility, and resolves factual disputes. In re Clayton(PDF, 368KB), CSA 128-05, 3 (3/21/06), citing Turner v. Rossmiller, 532 P. 2d 751 (Colo. App. 1975).

Hearing officermay conduct a de novoreview of the reasonableness of discipline in light of the facts as they exist at the time of hearing. This approach balances the need for prompt resolution of disciplinary appeals and the requirement of certainty in outcome. In re Williams(PDF, 507KB), CSA 65-05, 7 (11/17/05).

The City Charter requires that Career Service appeals must be determined de novo. Such a determination requires an independent fact-finding hearing and the resolution of factual disputes. In re Owens, CSA 139-04, 5 (3/31/05), citing City Charter C5.25 (4); Turner v. Rossmiller, 532 P.2d 751 (Colo. App. 1975).

An appellant is entitled to a hearing de novo on the disputed factual issues. In re Katros(PDF, 4MB), CSA 129-04, 6-7 (3/16/05), citing Turner v. Rossmiller, 532 P.2d 751 (Colo. App. 1975); City Charter C5.25 (4).

14. Disability

See also CSR 5-84

A prima facie case of discrimination is proven by evidence of 1) membership in a protected class, 2) a materially adverse employment action, and 3) evidence which supports an inference of discriminatory intent. In re Tenenbaum, CSA 57-16 (Order 7/26/17), citing In re Lombard-Hunt, CSA 75-07, 7 (3/3/08), citing In re Ortega, CSA 81-06, 14 (4/11/07); In re Mallard, CSA 129-05, 3 (2/23/06).

Mere inconvenience or alteration of job conditions are adverse employment actions in the context of a discrimination claim. In re Tenenbaum, CSA 57-16 (Order 7/26/17).

A change in work hours is discriminatory only if employee shows she is disabled, and that an accommodation in her schedule is necessary for her to perform the essential duties of her position. In re Tenenbaum, CSA 57-16 (Order 7/26/17).

No violation established where claim was based on non-witness statement that appellant said “fxxk this stupid bxtch, it’s not my fault she has a fxxking disability. I ain’t the one here begging for free services and assistance. I have a job,” but appellant denied making the statement, alleged victim did not testify, her statement was not sworn, it remained unknown how disinterested she was, and there was no corroboration for her statement. In re Garcia(PDF, 112KB), CSA 35-17, 3-4 (10/4/17), citing Industrial Claims Appeals Office v. Slower Stop Marketing Corp., 782 P.2d 13, 18 (Colo. 1989).

Allegation that appellant incurred work-related injuries did not support disability discrimination claim since it did not relate her disability to an adverse agency action. In re Frazier,(PDF, 143KB) CSA 24-08, 2 (4/30/08).

Time off to participate in a treatment program is a reasonable accommodation for an employee disabled by alcoholism under the ADA. In re Cullen(PDF, 403KB), CSB 165-04, 6 (1/18/07), citing Renaud v. Wyoming Dept. of Family Services, 203 F.3d 723, 729-731 (10th Cir. 2000).

Alcoholism is recognized as an impairment under the ADA. In re Cullen(PDF, 403KB), CSB 165-04, 4 (1/18/07), citing Bragdon v Abbott, 524 U.S. 624, 632-633 (1998); Poindexter v Atchison, 168 F.3d 1228, 1230-31 (10th Cir. 1999); ADA, H.R. Rep. No. 101-485 (II) at 51 (1990).

The ADA prohibits employers from discriminating against a qualified individual with a disability with regard to job application procedures, hiring, advancement, or discharge of employees, employee compensation, job training and other terms, conditions and privileges of employment. In re Vigil(PDF, 477KB), CSA 110-05, 7 (3/3/06), citing 42 USC 12112(a).

The ADA defines disability as any of the following: 1) A physical or mental impairment that substantially limits one or more of the major life activities of an individual; 2) a record of such impairment; or 3) being regarded [by the employer] as having such impairment. In re Vigil,(PDF, 477KB) CSA 110-05, 7 (3/3/06); 29 CFR 1630.2(g).

Major life activities include caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, learning, or working. In re Vigil,(PDF, 477KB) CSA 110-05, 7 (3/3/06); 29 CFR 1630.2.

Appellant failed to make a prima facie showing of disability as defined by the ADA when he did not establish how insomnia or breathing difficulties affected a major life activity, did not offer any documentation of a record of impairment, or establish how the agency regards her as disabled. In re Vigil,(PDF, 477KB) CSA 110-05, 7 (3/3/06).

Appellant’s failure to establish disability under the ADA renders moot a disparate treatment discrimination claim based upon disability under CSR 5-84 A. In re Vigil(PDF, 477KB), CSA 110-05, 7 (3/3/06).

Appellant’s requested accommodation, “talking to an employee about an issue,” is not a reasonable accommodation encompassed by the ADA. In re Vigil,(PDF, 477KB) CSA 110-05, 7 (3/3/06).

Appellant’s request to have her supervisor talk to her when issues arise is not a request for a reasonable accommodation for insomnia and breathing difficulties. In re Vigil(PDF, 477KB), CSA 110-05, 7 (3/3/06).

To establish that she is disabled, appellant must show how her impairments affect a major life activity such as caring for herself, performing manual tasks, walking, seeing, hearing, speaking, learning, or working. In re Vigil(PDF, 477KB), CSA 110-05, 7 (3/3/06); 29 CFR 1630.2.

The ADA prohibits employers from discriminating against qualified individuals with disabilities because of their disabilities. In re Torres(PDF, 243KB), CSA 97-05, 2 (2/21/06), citing In re Aguirre(PDF, 1MB), CSA 03-04, 6 (8/16/04); 42 USC 12101.

To maintain a claim for disability discrimination, a terminated employee must demonstrate that 1) he is a disabled person within the meaning of the ADA, 2) he is able to perform the essential functions of the job with or without reasonable accommodation, and 3) the employer terminated him because of his disability. In re Torres(PDF, 243KB), CSA 97-05, 2 (2/21/06).

Request for ninety days of leave without pay was not a reasonable accommodation when appellant-analyst’s work was already backlogged, causing significant strain on other analysts and the agency was obligated to process analysts' work timely. In re Torres(PDF, 243KB), CSA 97-05, 3 (2/21/06).

Disabled appellant who was unable to return to work in any capacity for an indefinite period, was not able to perform the essential functions of his position, and was therefore not a qualified person with a disability within the meaning of the ADA. In re Torres(PDF, 243KB), CSA 97-05, 3 (2/21/06).

Agency did not discriminate against disabled employee based on his disability by disqualifying him, since employee was unable to perform the essential functions of his position with or without reasonable accommodations. In re Torres(PDF, 243KB), CSA 97-05, 5 (2/21/06).

Terminated appellant failed to establish a prima facie case of disability discrimination, when his claim was supported only by evidence that his doctor imposed a thirty-pound lifting restriction after termination. In re Mestas(PDF, 514KB), CSA 37-05, 8 (8/4/05).

Allegation that supervisor made his life a living hell while he was on worker’s compensation does not establish nexus with specific agency actions alleged to be discriminatory. In re Yardeny,(PDF, 90KB) CSA 26-05 (6/2/05).

A person is substantially limited in a major life activity if she is unable to perform or is significantly restricted as to the condition, manner or duration under which she can perform a particular major life activity, as compared to the average person's ability to perform that activity. In re Solano(PDF, 29KB), CSA 107-04, 5 (4/29/05), citing EEOC Compliance Manual § 902.4(a)(1).

To be substantially limited in performing manual tasks, an individual must have a permanent or long-term impairment that prevents or severely restricts the individual from engaging in activities that are of central importance to most people's daily lives. In re Solano(PDF, 29KB), CSA 107-04, 5 (4/29/05).

The determination of whether an individual is substantially limited in a major life activity is based upon the effect of that impairment on the life of the individual, and as such must be made on a case-by-case basis. In re Solano(PDF, 29KB), CSA 107-04, 5 (4/29/05), citing Toyota Motor Mfg. v. Williams, 534 U.S. 184 (2002).

Disability is a physical impairment which substantially limits one or more major life activities. In re Owens(PDF, 9MB), CSA 139-04, 5 (3/31/05), citing 29 CFR 1614.203(a) (1); Poindexter v. Atchison, Topeka & Santa Fe Railway Co., 168 F.3d 1228 (10th Cir. 1999).

The essential duties of a position are those used by the CSA to allocate each job to a classification and pay plan under 7-12. In re Romberger,(PDF, 5MB) CSA 89-04, 6 (3/2/05).

15. Disqualification

IN GENERAL

The Career Service Rules require the disqualification of an employee who becomes unable to perform satisfactorily the essential functions of his position due to a legal impairment. In re Lucero(PDF, 213KB), CSA 59-09 (12/15/09), citing CSR 14-30.

The agency has the burden of proof to establish by a preponderance of the evidence that a disqualification complied with the Career Service Rules governing disqualifications. In re Crescente,(PDF, 792KB) CSA 82-06, 6 (2/2/07), citing In re Cullen(PDF, 403KB), CSB 165-04 (1/18/07); CRS 13-25-127(1) (2006).

FOUND

A prima facie case for disqualification was established were agency 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’s contention, that others whose licenses were revoked were allowed to keep their jobs, was not established where such employee did not testify, agency supervisors did not recall such an occurrence, supervisors testified no one in that division has been granted such exception, and no other evidence corroborated appellant’s assertion. In re Lucero(PDF, 213KB), CSA 59-09, 3 (12/15/09).

Appellant’s claim, that DMV permitted installation of an interlock ignition device that would enable Appellant to keep his job, was not established where: no supervisor recalled Appellant mentioning an interlock device at his pre-disciplinary meeting; agency maintains zero-tolerance policy against loss of driver’s license; appellant failed to produce proof of restricted license at his pre-disciplinary meeting, and at hearing over four months later still produced no such DMV authorization, lending doubt as to its existence. In re Lucero(PDF, 213KB), CSA 59-09, 3 (12/15/09).

Appellant’s claims, that agency could reassign him to non-driving position after his license was revoked or assign him a chauffeur, were properly denied by agency where: appellant’s position required him to drive in order to supervise his crew; appellant’s division was already understaffed so there was no one available to drive him; and agency was not obligated to accommodate such request for reassignment or for chauffeur. In re Lucero(PDF, 213KB), CSA 59-09, 4 (12/15/09).

16. Discipline (See also Rule 16)

In General

Progressive Discipline

Degree of Discipline

Demotion

Dismissal

Suspension continued

Temporary Reduction in Pay

17. Discipline Continued

[check back later for updated content!]

18. Discovery

IN GENERAL

Request for past thirty six months of all discipline involving three agency regulations cited by agency in present case not relevant where appellant argued CSB reduced penalty in other cases where similar violations resulted in varying levels of discipline, but in those decisions, there was no deceptive conduct or intent to punish, and they were based on comparison of highly similar scenarios after full hearing on the merits. In re Roybal(PDF, 97KB), CSA 44-16 (Order 8/3/16).

Discipline of other employees is not relevant unless the circumstances are alike in all important respects. In re Roybal(PDF, 97KB), CSA 44-16 (Order 8/3/16), citing In re Napoli(PDF, 2MB), CSB 74-10, 3 (8/18/11); In re Simpleman(PDF, 148KB), CSB 31-06, 2-3 (8/2/07).

Even if appellant had raised discrimination claim, he would be required to show all relevant employment circumstances, including work history, make him similarly situated to comparable employees. In re Roybal,(PDF, 97KB) CSA 44-16 (Order 8/3/16).

Granting discovery for cases with non-similarly situated employees creates a danger of re-litigating discipline in past cases claimed to be similar to present case. In re Roybal(PDF, 97KB), CSA 44-16 (Order 8/3/16).

Deliberative process privilege claims and determinations are controlled by City of Colo. Springs v. White, 967 P.2d 1042 (Colo. 1998). In re Steckman,(PDF, 2MB) CSA 30-15, 2 (Order 8/21/15).

The main purpose of the deliberative process privilege is to protect the open exchange of opinions critical to the government’s decision-making process when disclosure would discourage such exchanges in the future. In re Steckman(PDF, 2MB), CSA 30-15, 2 (Order 8/21/15).

Exchanges among governmental agency employees are protected only when the material sought to be disclosed is (1) pre-decisional and (2) deliberative. In re Steckman(PDF, 2MB), CSA 30-15, 2 (Order 8/21/15), citing City of Colo. Springs v. White, 967 P.2d 1042 (Colo. 1998).

The “pre-decisional” component of the deliberative process privilege is a communication made before a decision within the ambit of the agency or a decision was made with respect to policy. In re Steckman(PDF, 2MB), CSA 30-15 (Order 8/21/15), citing City of Colo. Springs v. White, 967 P.2d 1042 (Colo. 1998).

“Deliberative” materials must truly reflect the opinions and give-and-take of the process – “the ideas and theories that go into the making of policy” including recommendations, advisory opinions, proposals suggestions and other subjective documents reflecting the personal opinions of the writer and are so candid or personal that disclosure would likely stifle future frank discussion. In re Steckman(PDF, 2MB), CSA 30-15, 2 (Order 8/21/15), citing City of Colo. Springs v. White, 967 P.2d 1042 (Colo. 1998).

When the nature of documents sought is contested as to whether they are protected under the deliberative process privilege, the hearing officer must make an independent determination of the extent to which the privilege applies to each of the documents by balancing the appellant’s interests in disclosure with the agency’s interest in confidentiality. In re Steckman(PDF, 2MB), CSA 30-15, 2 (Order 8/21/15), citing City of Colo. Springs v. White, 967 P.2d 1042 (Colo. 1998).

When a hearing officer determines whether the deliberative process privilege applies, the initial burden falls on the agency, by way of a “Vaughn Index” to show why non-disclosure should be maintained. In re Steckman(PDF, 2MB), CSA 30-15, 2 (Order 8/21/15), citing City of Colo. Springs v. White, 967 P.2d 1042 (Colo. 1998).

A Vaughn Index should describe specifically each document which the agency claims is protected, including the author, recipient, and subject matter of each document; should explain why each document qualifies for the privilege, including how the document played a role in the deliberative process; should, by affidavit, explain why disclosure of each document would be harmful; and should distinguish between those portions of the document which may be disclosed and those that are allegedly privileged. In re Steckman,(PDF, 2MB) CSA 30-15, 2 (Order 8/21/15), citing City of Colo. Springs v. White, 967 P.2d 1042 (Colo. 1998).

Agency’s Vaughn Index generic description of fifteen emails sought to be protected as “pre-decisional email communication between IOM and IAB regarding investigation and interview considerations” is inadequate to evaluate the nature of the disputed documents. In re Steckman(PDF, 2MB), CSA 30-15, 2 (Order 8/21/15).

Affidavit accompanying Vaughn index is inadequate when it states in conclusory fashion that the documents are all pre-decisional and that disclosure would have a chilling effect. In re Steckman(PDF, 2MB), CSA 30-15, 2 (Order 8/21/15), citing City of Colo. Springs v. White, 967 P.2d 1042 (Colo. 1998) (“The government cannot meet [disclosure] requirements by conclusory and generalized allegations of privilege”).

An appellant may obtain discovery imposed on other employees by the same supervisor under closely similar circumstances, for the purpose of contesting the level of discipline. In re Singleton, CSA 17-15 (Order 5/13/15), citing In re Diaz(PDF, 536KB), CSA 72-06 (1/19/07); St. Croix v. U. Colo. Health Sciences Ctr., 166 P.3d 230 (Colo.App. 2007).

Request for similar discipline under similar circumstances dating back two years is not unduly burdensome. In re Singleton, CSA 17-15 (Order 5/13/15).

Where communications at issue included the OIM, and were either pre-decisional or contained recommendations to the agency, they were protected by the deliberative process privilege. In re St. Germain, CSA 24-14 (Order 9/18/14).

A request for discovery which is not limited in time is overbroad. In re Gutierrez, CSA 65-11, 2 (Order 12/27/11).

Appellant’s request for documents from a non-party without naming the custodian of records is unenforceable. In re Gutierrez, CSA 65-11, 2 (12/27/11).

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

Recording of Career Service Board hearing was discoverable where: the Board approved agency’s reorganization plan; appellant claimed agency unlawfully deconsolidated its appropriation accounts based on age; appellant claimed agency assigned him into that unit based on age discrimination; and consolidation decisions require a showing of a high correlation between the activities of units sought to be consolidated. In re Hill, CSA 52-10, 2 (Order 1/20/11).

Where Appellant claimed her agency should have notified her that she qualified for FMLA leave, she legitimately requested discovery about what training the agency provided supervisors regarding health conditions that qualify for FMLA leave. In re Martinez, CSA 85-10, 2 (Order 1/5/11).

Appellant’s request for personnel files of Appellant’s co-workers who were similarly disciplined is improper, where Appellant’s request was untimely, and he failed to provide good cause excusing his delay. Allowing such a substitution for discovery would prejudice opposing parties’ ability to prepare timely responses, and, if opposed, may delay hearing. In re Napoli, CSA 74-10, 1 (Order 1/6/11).

Appellant’s request to have agency identify particular language in a Career Service Rule is improper since the Career Service Rules are available to the public for review on the City’s website. In re Martinez, CSA 85-10, 1 (Order 1/5/11).

A discovery request with compound assumptions, renders it unduly vague. In re Martinez, CSA 85-10, 2 (Order 1/5/11).

Where Appellant claimed her agency should have notified her that she qualified for FMLA leave, her discovery request was legitimate which asked what training the agency provides supervisors regarding health conditions that qualify for FMLA leave. In re Martinez, CSA 85-10, 2 (Order 1/5/11).

Appellant’s discovery request for more than five interrogatories was denied, where the Rules presumptively limit interrogatories to five, and she failed to provide good cause to enlarge that number. In re Martinez, CSA 85-10, 2-3 (Order 1/5/11).

Where appellant challenged discipline for her use of sick leave, her request for the production of documents was valid which asked for memoranda, notes, policies, and correspondence that provided notice that an employee may not substitute vacation/compensatory time for sick time when sick time was exhausted but appellant was legitimately ill. In re Martinez, CSA 85-10, 3 (Order 1/5/11).

Requests for production from entities not party to an appeal must be served upon the entities themselves. In re Martinez, CSA 85-10, 3-4 (Order 1/5/11).

In appeal of termination in part for dishonest use of sick leave, appellant waived privilege to shield physician-patient communications regarding his treatment for migraine on day covered by leave request. In re Cullen(PDF, 185KB), CSA 127-08, 2 (1/7/09).

Records from the Employee Assistance Program relevant to appellant's compliance with his stipulation and agreement and not covered by any privilege are discoverable. In re Cullen(PDF, 185KB), CSA 127-08, 2-3 (1/7/09).

Police reports related to a domestic incident and transportation to a detox facility are discoverable on the issue of the state and level of appellant's intoxication in an appeal of termination for breach of a stipulation and agreement related to use of alcohol. In re Cullen(PDF, 185KB), CSA 127-08, 3 (1/7/09).

Credit card and bank records to prove previous purchases of alcohol are not sufficiently probative of issues where termination was for use of alcohol on one particular day. In re Cullen(PDF, 185KB), CSA 127-08, 3 (1/7/09).

Records of detox facility are discoverable on the issue of whether appellant was intoxicated on the day he claimed sick leave for a migraine. In re Cullen,(PDF, 185KB) CSA 127-08, 3 (1/7/09).

Requests for documents from non-parties, including other agencies, must be supported by good cause and show the relevance of the requested documents to the appeal. In re Harrison(PDF, 83KB), CSA 55-07, 89-07 & 90-07 (Order 11/18/08), citing CSR 19-45 B.

Requests for subpoenas to compel the attendance of witnesses must be supported by good cause, and call for testimony that is relevant to the appeal. In re Harrison(PDF, 83KB), CSA 55-07, 89-07 & 90-07 (Order 11/18/08), citing CSR 9-45 C.

A motion for a subpoena made after the deadline imposed by pre-hearing order may be denied as untimely. In re Harrison(PDF, 83KB), CSA 55-07, 89-07 & 90-07 (Order 11/18/08).

The Career Service Rules disfavor extensive discovery. In re Rogers(PDF, 90KB), CSA 25-08 (5/13/08); CSR 19-45 A.

Appellant must comply with discovery order after withdrawal of his attorney. In re Bradley,(PDF, 29KB) CSA 60-06, 2 (Order 12/7/06).

Appellant’s failure to comply with discovery orders is not excused by withdrawal of his attorney where appellant had sole access to requested information. In re Bradley,(PDF, 29KB) CSA 60-06, 2 (Order 12/7/06).

Because the hearing process is designed to provide a fair but relatively quick and inexpensive resolution to employment disputes, the rules disfavor extensive discovery, as it places an undue burden on those who are hard-pressed to afford protracted litigation expenses. In re Ortega, CSA 81-06 (Order 11/13/06).

Extensive discovery, including the taking of depositions, is limited to extraordinary circumstances, defined as “good cause.” In re Ortega, CSA 81-06 (Order 11/13/06); CSR 19-45.

DEPOSITIONS

Depositions are permitted If it is not feasible for a subpoenaed witness to appear at hearing. In re Rogers,(PDF, 90KB) CSA 25-08 (5/13/08); CSR 19-45 D.

Motion to depose a witness was denied when appellant was unaware if witness would be unavailable to attend hearing. In re Rogers(PDF, 90KB), CSA 25-08 (5/13/08); CSR 19-45 D.

Untimely motion for deposition that failed to request an extension of time or state good cause for tardiness was denied. In re Rogers,(PDF, 90KB) CSA 25-08 (5/13/08).

SUBPOENA DUCES TECUM (subpoena to produce documents)

A motion requesting a document that is already designated as an exhibit in the appeal will be denied as unnecessary. In re Harrison,(PDF, 83KB) CSA 55-07, 89-07 & 90-07 (Order 11/18/08).

A motion for a subpoena to produce which fails to demonstrate any probative value to an issue on appeal will be denied as a failure to state good cause. In re Harrison(PDF, 83KB), CSA 55-07, 89-07 & 90-07 (Order 11/18/08).

Subpoenarequest for entire file of doctor pertaining to death of a jail inmate while under appellant deputy sheriff‘s watch isrelevant or may lead to the discovery of relevant information in appellant’s dismissal. In re Rogers,(PDF, 90KB) CSA 25-08 (5/13/08).

19. Discrimination (See also § 15-100)

IN GENERAL

Proving a violation of CSR against discrimination requires more than establishing a demeaning remark, action or gesture. A derogatory statement, whether by word, deed, or other means, must be objectively discriminatory or harassing based on a protected status. In re Gustin(PDF, 208KB), CSA 02-17, 4 (8/8/17).

Discipline of other employees is not relevant unless the circumstances are alike in all important respects. In re Roybal,(PDF, 97KB)CSA 44-16 (Order 8/3/16), citing In re Napoli,(PDF, 2MB) CSB 74-10, 3 (8/18/11); In re Simpleman(PDF, 148KB), CSB 31-06, 2-3 (8/2/07).

Appellant bears burden to prove his discrimination claim by a preponderance of the evidence. In re Macieyovski(PDF, 2MB), CSA 55-13 (4/1/14).

Complaints of discrimination, harassment or retaliation may not be brought through a grievance under CSR 18-10 C.2. In re Gallo(PDF, 1MB), CSB 63-09, 1 (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(PDF, 1MB), CSB 63-09, 1 (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(PDF, 1MB), CSB 63-09, 3 (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(PDF, 1MB), CSB 63-09, 1 (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(PDF, 1MB), CSB 63-09, 1 (3/17/11).

Career Service Hearing Office has jurisdiction to hear appeal under CSR 19-10 A.2, where Appellant filed a formal complaint of discrimination/harassment, the agency investigated the complaint, concluding the allegations were unsupported, and the agency dismissed his complaint. In re Hill(PDF, 70KB), CSB 52-10, 1-2 (Order 1/6/11).

Judicial assistant failed to support her claim that her second suspension was motivated by disability discrimination and/or by her request for reasonable accommodation at the pre-disciplinary meeting on her first suspension, where she informed those present that she is somewhat disabled by reactions to her medications for three medical conditions, however, she presented no evidence that her impairments substantially limited her from performing any major life function and no support for her claim that the discipline was motivated by her request for reasonable accommodation. In re Roberts(PDF, 703KB), 40-10 & 48-10, 14 (11/15/10).

Without showing some connection between an adverse agency action and a protected status, an assertion that someone else may have been treated more favorably is not a form of discrimination that is protected by discrimination law. In re Lucero(PDF, 213KB), CSA 59-09, 4 (12/15/09).

Test for discrimination requiring a comparison to employees in a non-protected group is one of the methods by which discrimination may be proven. In re Norman-Curry,(PDF, 166KB) CSB 28-07 & 50-08, 1 (9/3/09), citing Sorbo v United Parcel Service, 432 F 3d 1169, 1173-1174 (10th Cir. 2005).

At sex discrimination claim hearing, appellant's burden is not simply to present a prima facie case of discrimination in order to avoid a dismissal; rather, appellant bears the burden of proving that the discipline imposed on her was the result of unlawful sex discrimination. In re Norman-Curry,(PDF, 166KB) CSB 28-07 & 50-08, 2 (9/3/09).

Appellant bears the burden of proving discrimination, harassment, retaliation, and denial of a grievance. In re Morgan(PDF, 987KB), CSA 63-08, 9 (4/6/09), citing CRS 24-4-105 (7); Department of Institutions v Kinchen, 886 P2d 700 (Colo. 1994).

Actions resulting in alleged discrimination based on religion are appealable under the Career Service Rules. In re Morgan(PDF, 987KB), CSA 63-08, 10 (4/6/09); CSR 19-10 A.2.a.

The existence of a prima facie case of discrimination and shifting burdens of proof loses relevance after the case is tried on the merits. In re Morgan(PDF, 987KB), CSA 63-08, 10 (4/6/09), citing Ansonia Board of Education v. Philbrook, 479 US 60, 68 (1986).

The employer bears the burden to prove that it offered a reasonable accommodation to an employee whose religious practice conflicts with a work requirement, or that it was unable to reasonably accommodate without undue hardship. In re Morgan(PDF, 987KB), CSA 63-08, 13 (4/6/09), citing Thomas v. National Association of Letter Carriers, 225 F.3d 1149, 1156 (10th Cir. 2000).

Once a case is fully tried on the merits, the existence of a prima facie case and shifting burdens of proof are no longer relevant. In re Morgan(PDF, 987KB), CSA 63-08, 10 (4/6/09), citing Ansonia Board of Education v. Philbrook, 479 US 60, 68 (1986).

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

Appellant's assertions - that he was accused of failing to follow procedure and to perform work because his supervisor did not like him for some reason, that he was terminated 2 days after being involved in an accident, and that other probationary employees were also involved in accidents without consequence - fail to identify the protected status upon which his discrimination claim was based. In re Mora(PDF, 70KB), CSA 125-08 (Order 11/28/08).

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(PDF, 65KB), CSA 53-08 (Order 8/18/08).

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(PDF, 65KB), CSA 53-08 (Order 8/18/08), affirmed In re Williams(PDF, 134KB), CSB 53-08 (5/14/09).

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

Evidence showing disparate discipline must compare only those who bear a high degree of similarity to that of the party claiming discrimination. The compared employees must have reported to the same supervisor, must have been subject to the same performance and discipline standards, and must have engaged in similar conduct, without other circumstances that would distinguish the misconduct or the appropriate discipline for it. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 40, (5/30/08), citing In re Owens(PDF, 9MB), CSA 139-04, 10 (3/31/05).

Intentional discrimination under CSR § 15-101 is proven by evidence of 1) membership in a protected class, 2) an adverse employment action, and 3) evidence that supports an inference that discrimination caused the adverse employment action. In re Frazier(PDF, 143KB), CSA 24-08, 2 (Order 4/30/08).

A prima facie case of intentional discrimination is proven by evidence of 1) membership in a protected class, 2) an adverse employment action, and 3) evidence which supports an inference of discriminatory intent. In re Lombard-Hunt, CSA 75-07, 7 (3/3/08), citing In re Ortega,(PDF, 962KB) CSA 81-06, 14 (4/11/07).

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

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

Intentional discrimination is proven by evidence that an employee 1) was a member of a protected class, 2) was qualified to hold his position, 3) suffered an adverse employment action, and 4) that action occurred under circumstances supporting an inference of discriminatory intent. In re Wehmhoefer, CSA 02-08, 1-2 (Order 2/14/08) citing In re Ortega(PDF, 962KB), CSA 81-06, 14 (4/11/07); McDonnell Douglas v Green, 411 U.S. 792 (1973).

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

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

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

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

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

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

Appellant bears the burden of proof on a claim that unlawful discrimination motivated her dismissal from employment. In re Diaz,(PDF, 160KB) CSB 72-06, 1 (9/20/07).

Evidence in support of appellant’s claim that her dismissal was motivated by unlawful discrimination is admissible at hearing on a dismissal appeal brought under 19-10 A. In re Diaz(PDF, 160KB), CSB 72-06, 1 (9/20/07).

Implicit in the hearing officer’s jurisdiction to hear a dismissal appeal under 19-10 A. is the authority to hear and decide all evidence relevant to that dismissal, including a claim that the dismissal was motivated by unlawful discrimination. In re Diaz,(PDF, 160KB) CSB 72-06, 1 (9/20/07).

Hearing officer’s finding that supervisor’s criticism of employee was based on her failure to pick up a package in a timely manner rather than her race was not unsupported by the evidence. In re Diaz(PDF, 160KB), CSB 72-06, 2 (9/20/07).

Hearing officer’s finding that dismissal decision was not based on race was supported by the record where the evidence of race consisted of appellant’s testimony that supervisor told her it would be a difficult time to be unemployed, and supervisor’s failure to discipline a probationary employee based on the same mistakes committed by appellant, a non-probationary employee. In re Diaz(PDF, 160KB), CSB 72-06, 2 (9/20/07).

Issue is precluded from re-hearing where appellant alleges the same adverse employment action that was the subject of a previous unsuccessful appeal. In re Felix,(PDF, 191KB) CSA 46-07, 1 (8/23/07).

Appellant retains the burden of persuasion to prove discrimination by a preponderance of the evidence. In re Felix,(PDF, 320KB) CSA 87-06, 3 (1/29/07), citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-512 (U.S. 1993).

Appellant retains the burden of persuasion throughout the case to prove race discrimination by a preponderance of the evidence. In re Felix(PDF, 320KB), CSA 87-06, 3 (1/29/07), citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-512 (U.S. 1993).

In the context of a discrimination claim under Career Service Rules, an adverse action is an employment action which affects pay, benefits or status. In re Felix(PDF, 320KB),(PDF, 320KB) CSA 87-06, 4 (1/29/07), citing Sanchez v. Denver Public Schools, 164 F.3d 527 (10th Cir. 1998).

The denial of a lateral transfer not affecting pay, benefits or status is not an adverse employment action as a matter of law. In re Felix(PDF, 320KB), CSA 87-06, 4 (1/29/07), citing McCrary v. Aurora Pub. Schs, 57 Fed. Appx. 362, 368-369 (10th Cir. 2003); Henderson v. UPS, 2006 U.S. Dist. LEXIS 37302, 37-38 (D. Colo. 2006); Sanchez v. Denver Public Schools, 164 F.3d 527 (10th Cir. 1998).

Appellant bears the initial burden to establish a prima facie showing that the agency discriminated against her on basis of her membership in a protected class. If appellant meets that obligation, the burden shifts to the agency to produce evidence of a legitimate, non-discriminatory reason for the action. If the agency does so, appellant may then show the agency’s proffered reasons are in reality a pretext for unlawful discrimination. In re Felix(PDF, 320KB), CSA 87-06, 3 (1/29/07), citing Sanchez v. Denver Pub. Sch., 164 F.3d 527, 531 (10th Cir. 1998).

Appeal will not be dismissed where appellant’s claim states facts illustrating disparate treatment because of membership in a protected group. In re Boden, CSA 86-06 (Order 11/22/06),citing In re Benoit, CSA 123-02 (9/18/02); In re Douglas(PDF, 1MB), CSB 317-01 (3/22/02).

Claim of disability discrimination that is not supported by evidence or argument is dismissed. In re Foley,(PDF, 921KB) CSA 19-06, 14 (11/10/06).

Appellant who presented no testimony that her working conditions were intolerable based upon any protected status failed to establish claim of harassment. In re Foley,(PDF, 921KB) CSA 19-06, 14 (11/10/06).

Appellant bears initial burden to prove discrimination on basis of his membership in a protected class. In re Delmonico(PDF, 479KB), CSA 53-06, 7 (10/26/06), citing St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993).

Appellant’s failure to present evidence of his membership in any protected class is fatal to discrimination claim. In re Delmonico,(PDF, 479KB) CSA 53-06, 7 (10/26/06).

Appellant bears initial burden to prove discrimination on the basis of his membership in a protected class. In re Delmonico,(PDF, 479KB) CSA 53-06, 7 (10/26/06), citing St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993).

Discrimination appeal will not be dismissed where factual issue exists. In re Cooley,(PDF, 116KB) CSA 28-06, 2 (6/12/06).

Probationary employee bears burden of persuasion to prove separation was based on discrimination by a preponderance of the evidence. In re Allen,(PDF, 283KB) CSA 16-06, 3 (6/6/06).

When terminated probationary employee establishesprima facie evidence of discrimination, employer must respond with non-discriminatory reason for termination. In re Allen,(PDF, 283KB) CSA 16-06, 3 (6/6/06).

Where terminated probationary employee submits prima facie evidence of discrimination in appeal and agency establishes non-discriminatory reason for termination, appellant may offer evidence that proffered reason for termination was pretext for discrimination. In re Allen,(PDF, 283KB) CSA 16-06, 3 (6/6/06), citing St. Mary’s Honor Ctr. v Hicks, 509 U.S. 502 (U.S. 1993).

Failure to offer a zoo uniform to administrative assistant was justified by a business reason, the lack of a uniform budget for administrative employees, and was not racial in nature. In re Diaz(PDF, 432KB), CSA 13-06, 7 (5/31/06).

Credibility of co-worker’s evidence of supervisor’s racial remark was greatly undermined by his failure to report it for two years after he alleges it was said, despite opportunities to do so. In re Diaz(PDF, 432KB), CSA 13-06, 7 (5/31/06).

To establish employment discrimination, appellant must show 1) membership in a class protected from discrimination, 2) qualification for the position, 3) an adverse employment decision despite the qualifications, and 4) circumstances supporting an inference that discrimination was the cause of the adverse action. In re Hernandez(PDF, 755KB), CSA 03-06, 9 (5/3/06), citing In re Cobb,CSA 163-03 (2/5/04).

Rules 19-10 B.1, 15-103 B, and 15-104, when read together, clearly intend to afford an agency notice of the nature of the alleged harassment or discrimination, as well as a real opportunity to investigate, evaluate, and correct any harassment or discrimination. In re Lewis(PDF, 202KB), CSA 22-06, 2 (5/2/06).

Since supervisor’s angry comments did not adversely affect appellant’s employment, discrimination claims cannot stand. In re Crenshaw(PDF, 229KB), CSA 18-06, 2 (4/6/06).

Discrimination made unlawful by federal, state or local law or regulation is likewise prohibited by the City and County of Denver. In re Johnson(PDF, 268KB), CSA 135-05, 3 (3/10/06).

Intentional discrimination under 15-101 is proven by evidence of 1) membership in a protected class, 2) an adverse employment action, and 3) evidence which supports an inference of discrimination. In re Johnson(PDF, 268KB), CSA 135-05, 3 (3/10/06), citing In re Jackson(PDF, 3MB), CSA 103-04, 5 (6/13/05); O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996).

Tangible employment action capable of invoking Title VII jurisdiction is a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. In re Johnson(PDF, 268KB), CSA 135-05, 3-4 (3/10/06), citing Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761(1998).

Order to attend remedial training was not a tangible employment action capable of invoking Title VII jurisdiction. In re Johnson(PDF, 268KB), CSA 135-05, 3-4 (3/10/06), citing Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998).

Neither a single order to undergo remedial training to correct an observed performance deficiency nor criticism contained in a logbook is an adverse action agency as that term is interpreted in case law on discrimination. In re Johnson(PDF, 268KB), CSA 135-05, 4 (3/10/06).

A female appellant is a member of a protected class based on her sex. In re Johnson(PDF, 268KB), CSA 135-05, 3 (3/10/06).

Recent favorable review by same supervisor raises a strong presumption that no discrimination occurred, as the supervisor would not abruptly develop antipathy toward appellant because of her sex. In re Johnson(PDF, 268KB), CSA 135-05, 5 (3/10/06), citing Vallabhapurapu v. First National Bank, 998 F. Supp.906; Lowe v J.B. Hunt Transport, Inc., 963 F.2d 173, 174-175 (7th Cir. 1992).

Title VII identifies as unlawful employment practices hiring, firing, and discrimination with respect to compensation, terms, conditions, or privileges of employment. The Supreme Court has defined a tangible employment action under capable of invoking Title VII as a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. In re Johnson(PDF, 268KB), CSA 135-05 (3/10/06), citing Burlington Industries, Inc. v. Ellerth, 524 U.S.742, 761 (1998); 42 USC 2000e-2(a)(1).

A prima facie case for discrimination requires some adverse agency action. In re Mallard(PDF, 195KB), CSA 129-05, 3 (2/23/06).

Where appellant was hired into the position he sought, there was no adverse agency action upon which a discrimination claim could lie. In re Mallard,(PDF, 195KB) CSA 129-05, 3 (2/23/06) (decided under former CSR 9-61).

To establish a prima facie case of hostile work environment harassment, appellant must show that harassment was pervasive or severe enough to alter the terms, conditions, or privilege of employment. Evidence must show that the workplace was permeated with discriminatory intimidation, ridicule, and insult sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment. In re Van Dyck(PDF, 110KB), CSA 143-05, 2 (2/16/06), citing Bloomer v UPS, 94 Fed Appx. 820 (10th Cir.2004).

Transfer having no effect on pay or working conditions is not an adverse action required to prove discrimination. In re Conway,(PDF, 89KB) CSA 127-05, 2 (2/13/06).

Appellant’s belief that he was a victim of discrimination is not evidence upon which discrimination may be found. In re Macieyovski,(PDF, 227KB) CSA 60-04, 4 (7/27/05).

Appellant failed to establish disparate discipline by failing to produce evidence about other employees’ protected status, the nature of their violations, and whether or how they were disciplined for those violations. In re Garcia(PDF, 3MB), CSA 175-04, 7 (7/12/05).

Appellant’s failure to provide any notice of discrimination claim prior to hearing is fatal to claim. In re Garcia(PDF, 3MB), CSA 175-04, 7 (7/12/05).

Appellant has the burden to establish the existence of a prima facie case of discrimination. In re Roberts(PDF, 2MB), CSA 179-04, 5 (6/29/05), citing McDonnell Douglas v. Green, 411 U.S. 792 (1973).

Conclusory statement that appellant believed he was discriminated against does not state sufficient facts from which hearing officer could conclude there was a prima facie showing of discriminatory termination. In re Hartzog(PDF, 46KB), 198-03 (6/22/05).

To establish a prima facie case for discrimination, appellant must show the following: 1) he is a member of a protected class; 2) an adverse employment action was taken against him; and 3) the action was taken under circumstances tending to show that the action was motivated by discrimination against the employee because of his membership in the protected class. In re Herzog(PDF, 168KB), CSA 23-05 (5/26/05); see In re Daniels(PDF, 566KB), CSB 05-03 (5/16/03); In re Crenshaw(PDF, 474KB), CSA 156-02 (3/11/03), citing Colo. Civ. Rights Comm. v. Big O Tires, Inc., 940 P2d 397 (Colo. 1997);In re Daneshpour(PDF, 686KB), CSA 88-03 (12/30/03).

Assignment of a particular workspace is not an adverse agency action, particularly where all staff were invited to participate in space assignments and appellant declined to participate, appellant received larger workspace than he had before, and the new workspace suited his work needs. In re Herzog(PDF, 168KB), CSA 23-05 (Order 5/26/05).

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

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

AGE

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(PDF, 147KB), CSA 71-10, 1-2 (3/11/11).

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

Allegation that appellant is over 40 does not support an inference that age discrimination played a part in the layoff. In re Frazier(PDF, 143KB), CSA 24-08, 2 (Order 4/30/08).

Appellant’s age discrimination claim fails where she alleges she is over the age of 40, but did not state facts that support an inference that age discrimination played a part in her layoff. In re Frazier,(PDF, 143KB) CSA 24-08, 2 (4/30/08).

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

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

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

Appointing authority’s question to appellant about when she planned to retire, and comment that there are too many retired people at the agency, did not establish that layoff was the result of age discrimination where appellant admitted she did not think appointing authority was biased against her based on her age. In re Foley(PDF, 921KB), CSA 19-06, 14 (11/10/06).

Appellant failed to support inference of age discrimination when he did not establish that any younger person who committed similar conduct was disciplined less severely, or that supervisor imposing discipline was aware of appellant’s age. In re Hernandez(PDF, 755KB), CSA 03-06, 10 (5/3/06).

Appellant’s age discrimination claim fails where evidence showed that applicant chosen over appellant was older, better qualified, and tested higher. In re Macieyovski,(PDF, 227KB) CSA 60-04, 4 (7/27/05).

Age discrimination claim not made by mere allegation that supervisor, who did not take action complained of, assigning him a workspace with a window, was under forty and appellant was over forty. In re Herzog(PDF, 168KB), CSA 23-05 (5/26/05).

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

To establish prima facie case of age discrimination, appellant must show 1) he is a member of the protected class (more than forty years old); 2) he is otherwise qualified for the position; 3) a younger person was promoted instead of him; and 4) the circumstances of the agency action give rise to an inference of unlawful discrimination. In re Hurdelbrink(PDF, 5MB), CSA 109-04 & 119-04, 7 (1/5/05), citing In re Kanan,(PDF, 603KB) CSB 09-02 (1/26/04).

LEGITIMATE NON-DISCRIMINATORY REASON

Where all supervisors unanimously decided to deny appellant’s transfer request because it would set a bad precedent to allow transfer based only on employee preference for a particular supervisor, agency established non-discriminatory reason for decision. In re Felix(PDF, 320KB), CSA 87-06, 4 (1/29/07).

NATIONAL ORIGIN

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

Evidence showing disparate discipline must compare only those who bear a high degree of similarity to that of the party claiming discrimination. The compared employees must have reported to the same supervisor, been subject to the same performance and discipline standards, and must have engaged in similar conduct, without other circumstances that would distinguish the misconduct or the appropriate discipline for it. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 40 (5/30/08), citing In re Owens(PDF, 9MB), CSA 139-04, 10 (3/31/05).

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

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

Appellant, a Somali native fired for helping a relative obtain benefits for which she was ineligible, failed to establish a nexus between her dismissal and her national origin by evidence that she complained to her supervisors that her agency hired only Ethiopian interpreters and no Somali interpreters. In re Abdi(PDF, 1MB), CSA 63-07, 30 (2/19/08).

Supervisor’s description of herself as the uniform Nazi and the key Nazi did not establish discriminatory intent against Hispanic employee who did not inform supervisor that the word Nazi offended her. In re Diaz(PDF, 432KB), CSA 13-06, 7 (5/31/06).

Appellant failed to establish inference of national origin discrimination when the only evidence offered was that another Hispanic employee was disciplined during the same year for a different offence, and another nurse of unknown national origin used similar terms of endearment. In re Hernandez,(PDF, 755KB)CSA 03-06, 9 (5/3/06), citing Mensah-Sowah v. Bridgestone/Firestone,1996 U.S. App. LEXIS 24967 (10thCir. 1996).

Where appellant complained he was treated less favorably than co-worker, but did not state that co-worker’s national origin differs from his own, claim of disparate treatment discrimination fails. In re Schultz(PDF, 92KB), CSA 78-05 (8/15/05).

Appellant’s complaint that his PEPR rating was based on national origin discrimination fails to state an adverse action where that supervisor 1) did not issue the PEPR and 2) previously rated appellant as exceeds expectations or outstanding. In re Schultz,(PDF, 92KB) CSA 78-05 (8/15/05).

POLITICAL AFFILIATION

Political affiliation refers to membership in a political party. In re Wehmhoefer, CSA 02-08, 4 (Order 2/14/08), citing In re Maes(PDF, 1MB), CSA 180-03, 6 (10/21/04).

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

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

Appellant’s affiliation with previous mayor twenty-two years ago did not establish political discrimination when manager who expressed resentment over that affiliation was not the deciding official in the layoff. In re Foley(PDF, 921KB), CSA 19-06, 14 (11/10/06).

Where appellant failed to articulate his political affiliation or that of his supervisor and provided no basis from which to infer how political affiliation may have motivated adverse agency action, appellant failed to state a claim of political affiliation discrimination. In re Herzog(PDF, 168KB), CSA 23-05 (5/26/05).

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

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

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

PRETEXT

Evidence that two employees of a different race than appellant were allowed informal transfers during reorganization did not prove agency’s stated reason for denying transfer was pretext for discrimination where appellant was given that same option during reorganization, and reorganization circumstances were substantially different than those present in this transfer request. In re Felix(PDF, 320KB), CSA 87-06, 4-5 (1/29/07).

PREGNANCY

Denial of informal transfer from one type of unit to another was not discriminatory when it was in keeping with agency practice prohibiting transfers within same functional units. In re Felix,(PDF, 320KB) CSA 87-06, 5 (1/29/07).

Pretext was not established where appellant was denied transfer from one outgoing unit to another, even though another employee was allowed such transfer because of performance problems. In re Felix(PDF, 320KB), CSA 87-06, 5 (1/29/07).

Appellant failed to prove pretext for race discrimination based on another employee’s transfer from one Outgoing unit to another where she failed to establish the other employee’s race, or rebut agency’s showing that other employee’s transfer was allowed for performance reasons. In re Felix,(PDF, 320KB) CSA 87-06, 5 (1/29/07).

Appellant establishes a prima facie case of pregnancy discrimination if she establishes: 1) she was a member of a protected group; 2) she was qualified for the modified-duty position sought; 3) she was denied the modified-duty position; and 4) the denial occurred under circumstances which give rise to an inference of unlawful discrimination. In re Allen(PDF, 283KB), CSA 16-06, 3 (6/6/06), citing EEOC v. Horizon Healthcare Corp., 220 F. 3d 1184 (10th Cir. 2000).

Pregnant appellant is a member of a protected group. In re Allen(PDF, 283KB), CSA 16-06, 3 (6/6/06).

Pregnant appellant failed to prove disparate treatment by evidence that another pregnant employee had been granted a transfer to a vacant position, since the comparison employee was a member of the same protected group. In re Allen(PDF, 283KB), CSA 16-06, 4 (6/6/06).

Agency demonstrated non-discriminatory reasons for denial of transfer to pregnant probationary employee. In re Allen(PDF, 283KB), CSA 16-06, 4 (6/6/06).

Agency demonstrated non-discriminatory reasons for termination of probation of pregnant employee. In re Allen(PDF, 283KB), CSA 16-06, 4 (6/6/06).

Appellant failed to prove her termination was discriminatory on the basis of her pregnancy. In re Allen(PDF, 283KB), CSA 16-06, 5 (6/6/06).

RACE

Where lesser discipline of white employee was based on her recent improvement, and Hispanic employee was not terminated for a smaller number of tardies, appellant failed to prove his dismissal for continued tardiness in three branches and under four different supervisors constituted disparate treatment based on national origin. In re Lopez(PDF, 172KB), CSA 61-16, 5, (12/1/16).

Appellant failed to state a claim of race discrimination where: he failed to state his race; failed to present any evidence what connection there may have been between his disqualification and his protected status; his only statement regarding discrimination was in his opening statement; and he produced no witness, document or other evidence to support his claim.In re Lucero(PDF, 213KB), CSA 59-09, 4 (12/15/09).

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

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

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

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

Allegation that appellant was the only black female in administration did not establish race discrimination since it did not link her color or race to an adverse agency action. In re Frazier(PDF, 143KB), CSA 24-08, 2 (4/30/08).

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

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

It is unlikely the supervisor, who is same race as appellant and who hired her 3 months before her termination, would develop a discriminatory attitude toward her a short time after her hire. In re Lombard-Hunt, CSA 75-07, 8 (3/3/08), citing In re Johnson,(PDF, 268KB) CSA 135-05, 5 (Order 3/10/06); Vallabhapurapu v. First National Bank, 998 F. Supp. 906; Lowe v J.B. Hunt Transport, Inc., 963 F2d. 173, 174-175 (7th Cir. 1992).

The test to establish a prima facie case for discrimination announced in McDonnell Douglas v. Green has been adopted by Colorado. In re Abdi(PDF, 1MB), CSA 63-07, 30 (2/19/08), citing Bodaghi v. Department of Natural Resources, 969 P.2d 718 (Colo. App. 1998) (reversed on other grounds).

Appellant’s race, African-American, meets first criterion for prima facie discrimination case: membership in a protected class. In re Abdi(PDF, 1MB), CSA 63-07, 30 (2/19/08).

Dismissal is an adverse action for purposes of proving second element of prima facie case of discrimination. In re Abdi(PDF, 1MB), CSA 63-07, 30 (2/19/08).

An adverse employment action is necessary to prove a claim of race discrimination under the disparate treatment theory. In re Crenshaw(PDF, 229KB), CSA 18-06, 2 (4/6/06), citing McDonnell Douglas v. Green, 411 U.S. 792 (1973).

RELIGIOUS AFFILIATION

The career service rules permit an appellant to appeal an action "resulting in alleged discrimination … because of … religion." In re Morgan(PDF, 987KB), CSA 63-08, 16 (4/6/09), citing CSR 19-10 A.2.a.

Claim of religious discrimination is dismissed where agency offered reasonable accommodations of appellant's Saturday Sabbath observance. In re Morgan(PDF, 987KB), CSA 63-08, 16 (4/6/09).

Agency's offer of a reasonable accommodation rebuts appellant's religion-based discrimination claim. In re Morgan(PDF, 987KB), CSA 63-08, 16-17 (4/6/09).

Actions resulting in alleged discrimination based on religion are appealable under the career service rules. In re Morgan(PDF, 987KB), CSA 63-08, 10 (4/6/09); 19-10 A.2.a.

Under Title VII of the Civil Rights Act of 1964, employers are prohibited from discriminating against an individual's religious belief, which includes any aspect of religious observance or practice, unless the employer demonstrates an inability to reasonably accommodate the religious observance or practice without undue hardship on the conduct of the employer's business. In re Morgan(PDF, 987KB), CSA 63-08, 10 (4/6/09) citing 42 USCA 2000e.

Reasonable accommodation and undue hardship are separate legal concepts requiring separate analyses in a religious accommodation case. In re Morgan(PDF, 987KB), CSA 63-08, 12-13 (4/6/09) citing Ansonia Board of Education v Philbrook, 479 US 60, 68 (1986).

In religious accommodation cases, the employer bears the burden to prove it offered a reasonable accommodation to an employee whose religious practice conflicts with a work requirement, or that accommodation was not reasonably obtainable without undue hardship. In re Morgan(PDF, 987KB), CSA 63-08, 12-13 (4/6/09) citing Thomas v. National Association of Letter Carriers, 225 F.3d 1149, 1156 (10th Cir. 2000).

The reasonableness of an accommodation offer is dependent on the facts of each case. In re Morgan(PDF, 987KB), CSA 63-08, 13 (4/6/09), citing Anderson v. General Dynamics Convair, Etc., 589 F.2d 397, 400 (9th Cir. 1979), cert. denied, sub nom.

Once it is determined that the employer's efforts to accommodate were reasonable, the inquiry is at an end. "The employer need not further show that each of the employee's alternative accommodations would result in undue hardship." In re Morgan(PDF, 987KB), CSA 63-08, 13 (4/6/09), citing Smith v. Pyro Mining, 827 F.2d 1081, 1086 (6th Cir. 1987).

Any reasonable accommodation by the employer is sufficient to meet its accommodation obligation. In re Morgan(PDF, 987KB), CSA 63-08, 13 (4/6/09), citing Ansonia Board of Education v Philbrook, 479 US 60, 68 (1986).

An employer's encouragement of voluntary shift swaps is a reasonable accommodation of an employee's religious practice. In re Morgan,(PDF, 987KB) CSA 63-08, 14 (4/6/09).

"A seniority system is bona fide under Title VII, and thus immune to successful challenge, if it is free of intentional discrimination whether the system was created before or after Title VII's effective date." In re Morgan(PDF, 987KB), CSA 63-08, 15 (4/6/09), citing 45A Am. Jur. 2d Job Discrimination § 613; American Tobacco Co. v. Patterson, 456 U.S. 63 (1982).

The mere fact that the department utilized criteria other than seniority to make shift assignments during an eight-month transition period based on needs arising from its important public safety function does not demonstrate a discriminatory intent in the creation or operation of the seniority system. In re Morgan(PDF, 987KB), CSA 63-08, 15 (4/6/09).

Since the agency offered accommodations that were reasonable, no undue hardship analysis was required. In re Morgan(PDF, 987KB), CSA 63-08, 16 (4/6/09).

Reasonable accommodation is an interactive process requiring both parties to cooperate to achieve resolution of the conflict. In re Morgan(PDF, 987KB), CSA 63-08, 13, 15 (4/6/09), citing Brener v Diagnostic Center Hospital, 671 F2d 141, 145-46 (5th Cir. 1982).

Agency's offers of reasonable accommodation in the form of shift votes, shift swaps, and transfers were not rendered unreasonable by appellant's partial cooperation toward resolution. In re Morgan(PDF, 987KB), CSA 63-08, 16 (4/6/09).

The opportunity to vote for Saturdays off during the shift bid process is a reasonable accommodation of appellant's Sabbath observance. In re Morgan(PDF, 987KB), CSA 63-08, 16 (4/6/09).

The ability to swap shifts with other employees is a reasonable accommodation of appellant's Sabbath observance. In re Morgan(PDF, 987KB), CSA 63-08, 16 (4/6/09).

Transfers are a reasonable accommodation of a Saturday Sabbath, even if the employee is unlikely to obtain the transfer based on others' superior seniority rights. In re Morgan,(PDF, 987KB) CSA 63-08, 15, 16 (4/6/09).

The possibility that the agency could have done more than it did to accomplish shift swaps does not render the offered accommodation unreasonable. In re Morgan(PDF, 987KB), CSA 63-08, 14 (4/6/09).

Agency's utilization of criteria other than seniority to make shift assignments during an eight-month transition period based on needs arising from its important public safety function does not demonstrate a discriminatory intent in the creation or operation of the seniority system. In re Morgan(PDF, 987KB), CSA 63-08, 15 (4/6/09).

The religious needs of some employees are not entitled to greater weight than the shift and job preferences of other employees. In re Morgan(PDF, 987KB), CSA 63-08, 15 (4/6/09), citing TWA Inc. v Hardison, 432 U.S. 63, 81 ((1977).

Collective bargaining contracts and seniority systems must be considered separately when analyzing their effect on the duty to accommodate. In re Morgan(PDF, 987KB), CSA 63-08, 15 (4/6/09), citing TWA, Inc. v. Hardison, 432 U.S. 63, 79 (1977).

Appellant’s testimony that supervisor made several remarks about his being Jewish fails to state a claim of religious affiliation discrimination. In re Yardeny,(PDF, 90KB) CSA 26-05 (Order 6/2/05).

While appellant established first element of claim for religious affiliation discrimination by establishing he follows different religion than his supervisor, he failed to establish an adverse action in agency’s choice of workspace assignment when he refused the opportunity to participate in space selection committee. In re Herzog(PDF, 168KB), CSA 23-05 (5/26/05).

SEX

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

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

Test for sex discrimination that requires a comparison of employee in a protected group to employees in a non-protected group, is one of the methods by which discrimination claim may be established. In re Norman-Curry(PDF, 166KB), CSB 28-07 & 50-08, 1 (9/3/09), citing Sorbo v United Parcel Service, 432 F 3d 1169, 1173-1174 (10th Cir. 2005).

The current legal standard to establish the third prong of sex discrimination is "under circumstances giving rise to an inference of discrimination," rather than comparing the employee in a protected group to employees in a non-protected group. In re Norman-Curry,(PDF, 166KB) CSB 28-07 & 50-08, 2 (9/3/09), citing Sorbo v. United Parcel Service, 432 F.3d 1169, 1173 (10th Cir. 2005).

These standards describe only the threshold of evidence an appellant must produce to withstand a summary judgment motion, rather than the level of evidence to prove the claim after all the evidence is heard, that the discipline imposed was the result of unlawful sex discrimination. In re Norman-Curry(PDF, 166KB), CSB 28-07 & 50-08, 1-2 (9/3/09).

Sex discrimination is proven by evidence of 1) membership in a protected class, 2) an adverse employment action, and 3) evidence the appellant was treated less favorably than her male counterparts. In re Norman-Curry(PDF, 166KB), CSA 28-07 & 50-08, 13 (2/27/09).

Female deputy sheriff who was disciplined for wearing butterfly hair sticks that did not comply with agency's uniform policy established first two elements necessary to prove sex discrimination claim, but lack of evidence that she was treated less favorably than similarly situated males invalidates her claim. In re Norman-Curry(PDF, 166KB), CSA 28-07 & 50-08, 13 (2/27/09).

NOT FOUND

Violation not established where appellant said, “here comes another one” to approaching customer and customer found the comment to be offensive, but objective indications were that the comment was not based on a protected status. In re Gustin(PDF, 208KB), CSA 02-17, 4-5 (8/8/17).

20. Dismissal

See also Jurisdiction and CSR 19-10

Where a court is a trier of fact, as in Career Service appeals, a motion for a directed verdict is deemed a motion to dismiss pursuant to C.R.C.P. 41(b). In re Garegnani & Jones(PDF, 89KB), CSA 29-16 & 30-16, 5 (3/6/17), citing Frontier Exploration v. Am. Nat., 849 P.2d 887 (Colo. App. 1992); Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988).

In a motion to dismiss allegations are not accorded every reasonable inference that can be legitimately drawn from the evidence in favor of the appellant under C.R.C.P. 41(b)(1) In re Garegnani & Jones(PDF, 89KB), CSA 29-16 & 30-16, 5 (3/6/17), citing Rowe v. Bowers, 417 P.2d 503, 505 (Colo. 1996); Blea v. Deluxe/Current, Inc., W.C. Nos 3-940-062 (June 18, 1997).

In appellant’s motion to dismiss disciplinary action, hearing officer decides if judgment for appellant is justified on the agency’s evidence. In re Garegnani & Jones(PDF, 89KB), CSA 29-16 & 30-16, 6 (3/6/17), citing American National Bank v. First National Bank, 28 Colo.App. 486, 476 P.2d 304 (Colo.App. 1970); Bruce v. Moffat County Youth Care Center, W. C. No. 4-311-203 (March 23, 1998); Campbell v. Commercial Credit Plan, Inc., 670 P.2d 813 (Colo.App. 1983); C.R.C.P. 41(b)(1); C.R.C.P. 52.

Where the only agency witness testified she was not the decision-maker, and was not delegated such authority, her testimony conveying reasons for discipline were inadmissible hearsay. In re Garegnani & Jones,(PDF, 89KB) CSA 29-16 & 30-16, 6 (3/6/17).

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(PDF, 597KB), CSB 57-11, 3 (12/20/12), citing People v. Segovia, 196 P.3d 1126 (Colo. 2008).

Where the standard of review is whetherthe hearing officer’s findings were clearly erroneous, appellant’s fourteen-page recitation of her version of the facts failed to address that standard. In re Roybal,(PDF, 504KB) CSB 60-11 (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(PDF, 348KB), CSA 33-11, 1 (Order 8/9/11).

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 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).

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(PDF, 155KB), CSA 59-10, 1 (Order 8/20/10).

Only evaluations with an overall rating of "failing" may be appealed. In re Zacker(PDF, 318KB), CSA 44-10, 1 (Order 7/15/10);citing CSR 19-10 A.2.c. (as amended 1/1/10).

Retaliation appeal must be dismissed where appellant failed to file a complaint of retaliation prior to filing an appeal, as required by CSR 19-10 A.2.a. In re Rems, CSA 31-10, 2 (Order 5/12/10).

Appeal alleging retaliation and whistleblower claims must be dismissed when only the pre-disciplinary letter was included, and appellant failed to allege that she reported official misconduct to any official. In re Thomas(PDF, 160KB), CSA 13-10 (Order 3/15/10).

Where documents outside the pleadings demonstrate there is no genuine issue of material fact supporting a claim, summary judgment is appropriate. In re Abeyta, CSA 110-09, 2 (Order 2/9/10).

Party opposing a motion for summary judgment may not rest upon mere allegations or denials in his pleadings, but must set forth by affidavit or otherwise specific facts showing there is a genuine issue for trial. In re Abeyta, CSA 110-09, 2 (Order 2/9/10), citing C.R.C.P. 56(e).

Where appellant failed to present any evidence supporting his grievance appeal that he was entitled to be awarded his bid for the original graveyard shift based on seniority or otherwise, summary judgment must be granted for the agency. In re Abeyta, CSA 110-09, 2 (Order 2/9/10).

Where appellant failed to show that the reasons given by the agency for elimination of the shift were a pretext for retaliation and not the real reasons for the action, summary judgment must be granted on the claim of retaliation. In re Abeyta, CSA 110-09, 2-3 (Order 2/9/10), citing Gates v. Caterpillar, Inc., 513 F.3d 680 (7th Cir. 2008).

In a motion to dismiss, appellant bears the burden to prove subject matter jurisdiction. In re Anderson(PDF, 76KB), CSA 102-09 (Order 1/8/10).

Where matters outside the pleadings are presented by a motion to dismiss, the motion is treated as a motion for summary judgment, presenting the issue of whether there are genuine issues of material fact requiring a trial. In re Anderson(PDF, 76KB), CSA 102-09, 2 (Order 1/8/10), citing C.R.Civ.P. Rules 12(c); 56.

Grievance appeal is not subject to dismissal as untimely where parties present conflicting facts as to when appellant should be charged with notice of the facts which form the basis of the appeal. In re Anderson(PDF, 76KB), CSA 102-09, 2 (Order 1/8/10).

Whether person who took action was a supervisor/manager whose actions could be grieved is a factual issue which prevents the granting of summary judgment. In re Anderson(PDF, 76KB), CSA 102-09, 2 (Order 1/8/10), citing CSR 18-10 C.

Use of a complaint form instead of a grievance form does not justify dismissal of appeal where the form submitted gave the agency notice of the issue raised and the agency treated the issue as an appealable grievance. In re Anderson(PDF, 76KB), CSA 102-09 (Order 1/8/10).

Dismissal is inappropriate where a fair reading of an appeal makes the basis for jurisdiction apparent. In re Anderson(PDF, 76KB), CSA 102-09, 1 (Order 1/8/10), citing In re Bane(PDF, 98KB), CSA 82-09, 2 (Order 10/26/09); In re Williams,(PDF, 65KB) CSA 53-08 (Order 8/18/08).

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 & Lewis,(PDF, 216KB) CSA 08-09 & 09-09, 2-3 (5/20/09).

Appeal is not subject to dismissal for lack of subject matter jurisdiction where grievance appeal alleges calculation of merit increases violated 13-60 B and negatively impacted pay. In re Vasquez & Lewis,(PDF, 216KB) CSA 08-09 & 09-09, 2 (5/20/09); CSR 19-10 A.2.b.i.

Appellant failed to establish jurisdiction where he did not submit a copy of a grievance or a departmental denial of any such grievance. In re Morgan(PDF, 987KB), CSA 63-08, 17 (4/6/09).

Appellant bears the burden of demonstrating subject matter jurisdiction in response to a motion to dismiss appeal. In re Vasquez & Lewis(PDF, 245KB), CSA 08-09 & 09-09 (Order 3/11/09).

To survive a motion to dismiss, appellant needs only to raise a colorable claim under CSR 19. In re Vasquez & Lewis(PDF, 245KB), CSA 08-09 & 09-09 (Order 3/11/09).

Where appellants challenged agency's interpretation of merit date rule, CSR 13-F, and alleged their merit increases were negatively impacted by agency's interpretation, appellants successfully established jurisdiction, under CSR 19 A, in opposition to agency's motion to dismiss. In re Vasquez & Lewis,(PDF, 245KB) CSA 08-09 & 09-09 (Order 3/11/09).

Layoff appeal was dismissed after withdrawal of prior layoff appeal where both had identical parties and causes of action challenging the same layoff under Rule 14. In re Cho, CSA 01-09, 2 (Order 1/21/09).

The doctrine of claim preclusion, also known as res judicata, prevents a party from relitigating a legal claim that was or could have been the subject of a previously issued final judgment. In re Cho, CSA 01-09, 2 (Order 1/21/09) citing Satsky v Paramount Communications, 7 F.3d 1464, 1467 (10th Cir. 1993).

Res judicata, or claim preclusion, requires proof of three elements: 1) a final judgment on the merits in an earlier action, 2) identity of parties, and 3) identity of the causes of action in both suits. In re Cho, CSA 01-09, 2 (Order 1/21/09), citing Wilkes v. Wyo. Dept. of Employment Div of Labor Standards, 314 F.3d 501, 504 (10th Cir. 2003).

The doctrine of claim preclusion bars later actions based on the same cause of action. In re Cho, CSA 01-09, 3 (Order 1/21/09).

By voluntarily withdrawing his first appeal, appellant also waived his right to challenge the same agency action subsequently under a different legal theory. In re Cho, CSA 01-09, 3 (Order 1/21/09).

Appeal is dismissed with prejudice where appellant's written statement, "I do not want to appeal my layoff", affirmed by his attorney, indicates a voluntary decision with advice of counsel to withdraw the appeal based on a lack of interest in pursuing a hearing on the merits. In re Cho, CSA 01-09 (Order 1/21/09).

Dismissal with prejudice based on appellant's voluntary withdrawal of the appeal, confirmed by his attorney, was a final judgment on the merits where neither appellant nor his attorney moved for relief from the dismissal. In re Cho, CSA 01-09 (Order 1/21/09).

November 2008 notice of layoff that erroneously gave February 28, 2008 as the effective date of layoff did not render the layoff appeal premature and so nullify the appeal's dismissal where appellant's motion to withdraw did not raise prematurity as grounds for the motion, and subsequent filings made clear that he was not misled by the notice of layoff's mistaken substitution of 2008 for 2009. In re Cho, CSA 01-09, 2 (Order 1/21/09).

Appellant's second appeal of a layoff does not raise a separately appealable action by claiming that the layoff violated a different part of the same rule allegedly violated in the withdrawn first appeal where appellant did not claim he became aware of the grounds for the first claim after he moved for its dismissal, or that the facts supporting that claim were concealed from him. In re Cho, CSA 01-09, 2 (Order 1/21/09).

By voluntarily withdrawing layoff appeal, appellant also waived his right to challenge the layoff under a different legal theory that could have been made part of the original appeal. In re Cho, CSA 01-09, 3 (Order 1/21/09); CSR 19-10A.

By voluntarily withdrawing a layoff appeal, appellant waived his right to bring claims of discrimination that could have been brought as part of the direct appeal of his layoff. In re Cho, CSA 01-09, 3 (Order 1/21/09).

Appellant need not file an internal complaint of discrimination before appealing a layoff on the basis of discrimination. In re Cho, CSA 01-09, 3 (Order 1/21/09); CSR 19-10A.

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(PDF, 198KB)., 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.,(PDF, 198KB) 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(PDF, 198KB)., CSA 78-08 to 124-08, 3 (1/7/09).

Appeal of grievance regarding denial of pay adjustment is moot as to twenty-three appellants whose requests for pay adjustment were granted under 9-50 E. In re Anderson, et al(PDF, 198KB)., 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(PDF, 198KB)., CSA 78-08 to 124-08, 3 (1/7/09), citing In re Boden,(PDF, 142KB) CSA 86-06 (Order 11/22/06); Dorman v. City and County of Denver, 03CV4712 (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(PDF, 495KB), CSB 87-07, 7 (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,(PDF, 495KB) CSB 87-07, 8 (1/8/09), citing Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985).

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).

Appeal was dismissed based on finding that appellant's resignation was voluntary. In re Qualls,(PDF, 309KB) CSA 71-08 (12/4/08).

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,(PDF, 70KB) 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(PDF, 70KB), 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(PDF, 70KB), 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(PDF, 70KB), CSA 125-08 (11/28/08).

Motion to dismiss was denied where termination was appealable under § 19-10, and questions of fact were raised by discrimination claim. In re Gonzales(PDF, 97KB), CSA 64-08, 2 (10/10/08).

Allegations made in an appeal must be assumed as true for purposes of motion to dismiss. In re Gonzales(PDF, 97KB), CSA 64-08, 2 (10/10/08), citing Strout Realty, Inc. v. Snead, 530 P.2d 969 (Colo. App. 1975).

For purposes of a motion to dismiss, allegations made in an appeal which raise questions of fact are assumed to be true. In re Gonzales(PDF, 97KB), CSA 64-08, 2 (10/10/08), citing Strout Realty, Inc. v Snead, 530 P2d. 969 (Colo. App. 1975).

Agency is not entitled to dismissal under C.R.C.P 12 b. where it failed to produce pre-hearing affidavits or testimony that established the absence of genuine issues of material fact raised by appeal. In re Gonzales(PDF, 97KB), CSA 64-08, 2 (10/10/08) citing C.R.C.P. 56.

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(PDF, 65KB), CSA 53-08 (Order 8/18/08), citing In re Muller(PDF, 64KB), 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(PDF, 65KB), 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 19-10A.2, then her appeal is premature. In re Williams,(PDF, 65KB) CSA 53-08 (Order 8/18/08).

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(PDF, 65KB), CSA 53-08 (order 8/18/08), affirmed In re William(PDF, 134KB), CSB 53-08 (5/14/09).

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 appellant cannot prove that the acts, as he alleges them, would entitle him to relief. In re Maes(PDF, 103KB), CSA 36-08 (6/17/08), citing In re Van Dyck(PDF, 110KB), CSA 143-05 (Order 2/16/06).

Where grievance appeal requests as relief the granting of a job interview, it does not affect pay, benefits, or status, and therefore appeal does not state a claim that would entitle appellant to relief. In re Maes(PDF, 103KB), CSA 36-08 (6/17/08).

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(PDF, 143KB), CSA 24-08, 3 (4/30/08).

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(PDF, 143KB), CSA 24-08 (4/30/08), citing In re Van Dyck(PDF, 110KB), CSA 143-05, 1 (2/16/06); Dorman v Petrol Aspen, Inc., 914 P.2d 909, 911 (Colo. 1996).

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(PDF, 67KB), 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(PDF, 87KB), CSA 82-07 (2/14/08).

Hearing officer has no jurisdiction over breach of contract and pain and suffering claims. In re Felix,(PDF, 87KB) 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(PDF, 87KB), 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,(PDF, 87KB) 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,(PDF, 87KB) 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,(PDF, 167KB) 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,(PDF, 167KB) 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,(PDF, 29KB) 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(PDF, 226KB), 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); In re Douglas,(PDF, 1MB) 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).

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 (Order 11/22/06), citing Dorman v. Petrol Aspen, Inc., 914 P.2d 909, 911 (Colo. 1996); In re Martinez,(PDF, 226KB) CSA 176-03 (6/25/04).

Agency motion to dismiss appellant’s sex-discrimination appeal must be denied where agency claim stated esprit de corps represented rational basis for distinction, since it was unknown if the agency’s esprit de corps could be materially affected if its male members were permitted to wear earrings. Appellant should be entitled to present evidence that esprit de corps would not be affected. 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(PDF, 35KB), CSA 54-06 (8/14/06); CSRs 5-64, 5-42 (decided under former CSR 5-64).

Appeal was dismissed where it was filed outside the fifteen-day deadline imposed by 19-20 A.1 and appellant offered no good cause 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(PDF, 55KB), 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(PDF, 87KB), 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,(PDF, 87KB) 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(PDF, 202KB), 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(PDF, 229KB), 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 CRCP Rule 12(b). In re Crenshaw,(PDF, 229KB) 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,(PDF, 229KB) 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 CRCP Rule 56. In re Crenshaw(PDF, 229KB), CSA 18-06, 2 (4/6/06).

Supervisor’s order to attend training was not disciplinary in nature, and therefore denial of grievance based thereon was not appealable as discipline. In re Johnson(PDF, 268KB), CSA 135-05, 3 (3/10/06).

An order requiring remedial training is not a disciplinary action as defined in the Career Service Rules. In re Johnson(PDF, 268KB), CSA 135-05, 3 (3/10/06).

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 CRCP Rule 56. In re Johnson,(PDF, 268KB) CSA 135-05, 2 (3/10/06).

Employee who was promoted at salary step one after the withdrawal of an offer of pay at step seven 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(PDF, 195KB), CSA 129-05, 3 (2/23/06) (decided under former CSR 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(PDF, 195KB), CSA 129-05, 3 (2/23/06); CSR 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(PDF, 110KB), 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(PDF, 110KB), 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,(PDF, 110KB) 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(PDF, 110KB), CSA 143-05, 1 (2/16/06), citing Dorman v Petrol Aspen, Inc., 914 P.2d 909, 911 (Colo. 1996); In re Martinez(PDF, 226KB), CSA 176-03 (6/28/04); In re Schultz,(PDF, 155KB) CSA 130-05 (2/27/06).

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(PDF, 41KB), CSA 134-05 (1/23/06) (decided under former CSRs 19-10.e and 18-12).

21. Drug Testing

Last chance agreements before loss of public employment are not rendered involuntary by the threat of that loss inherent in the agreement. In re Williams(PDF, 25KB), CSA 56-04, 5 (5/06/05).

Consent to random drug testing was not rendered involuntary by its inclusion in a last chance agreement under which a public employee kept his job on condition of no further drug use and submission to random testing. In re Williams,(PDF, 25KB) CSA 56-04, 5 (5/06/05),citing Jinzo v. City of Albuquerque, 1999 US App. LEXIS 14912 (10th Cir. 1999); Mararri v. WCI Steel, 130 F.3d 1180 (6th Cir. 1997); Schneckloth v. Bustamonte, 412 U.S. 218 (1973); McCall v. USPS, 839 F.2d 664 (Fed. Cir. 1988); Stewart v. USPS, 926 F.2d 1146 (Fed. Cir. 1991).

22. Due Process

DUE PROCESS

That the CSB has not previously addressed the retroactive application of CSR 20 does not indicate its intent for CSR to be applied prospectively. In re Keller(PDF, 246KB), CSB 47-14A, 4 (6/20/19).

Hearing Officers are not authorized to sit as a court of equity, and therefore cannot grant relief based on the doctrine of laches. In re Keller(PDF, 246KB), CSB 47-14A, 5 (6/20/19).

Appellant must show the agency violated his due process rights by impairing his defense against his alleged misconduct, through its delay in prosecuting its discipline of him, in order to obtain relief. In re Keller(PDF, 213KB), CSA 47-14, 14 (6/14/18), citing In re Espinoza, CSB 14-16A, 2 (3/8/17).

Alleged violation first raised by agency at hearing will be dismissed since pre-hearing notice of each violation, and the basis for it, is required in order to provide the accused employee an opportunity to prepare a defense to it. In re Rocha(PDF, 76KB), CSA 19-16, 3 (9/14/16), citing In re Mounjim, CSB 87-07A, 8 (1/8/09).

A claimed neglect of a duty under a separate rule violation may not serve to double each such separate violation. In re Rocha(PDF, 76KB), CSA 19-16, 3 (9/14/16), citing In re Wright, CSA 40-14, 7 (11/17/14).

The City did not violate Appellant’s due process rights by requiring him to bear the burden of proof at the post-termination hearing. In re DeMello, CSB 12-18A, 4 (4/17/19) citing Benavidez v. City of Albuquerque, 101 F.3d 620, 627-8 (10th Cir. 1996).

Appellant waived his spoliation argument because he did not raise it before the hearing officer. In re DeMello, CSB 12-18A, 5 (4/17/19).

Appellant waived his claim that the agency’s Civilian Review Administrator lacked authority to discipline him as he did not address it before the hearing officer. In re DeMello and Fazio(PDF, 97KB), CSA 12-18 & 14-18, 6 (6/7/18).

Due Process is not denied in denying jurisdiction over the amount of accrued vacation and compensatory time due to former employee, as Hearing Office is not a court of general jurisdiction, hearing only such actions as defined by the rules under which it operates. In re Lovin,(PDF, 87KB) CSA 27-06 (Order 5/18/06).

No prejudice to appellant when the Executive Director of Safety, who is the aunt of an arrestee at the core of the case, did not send the case to an outside investigator. There was no indication the decision maker was aware of appellant’s complaint and decision maker credibly denied EDOS played any role in the discipline. In re Wilson(PDF, 201KB), CSA 38-17, 13 (12/8/17).

Agency’s failure to follow its internal guidelines in investigating its employee did not implicate constitutional due process concerns. In re Wilson(PDF, 201KB), CSA 38-17, 13 (12/8/17), citing In re Gale, CSB 02-15, 6 (7/21/16).

CSB finding that sixteen months between incident and assessment of discipline did not justify mitigation, was not abuse of discretion, where appellant failed to provide credible basis to depart from general rule that timeliness of investigation should not be considered as mitigation or aggravation. Sixteen months between incident and assessment of discipline did not result in demonstrable prejudice to appellant where she was reassigned but failed to demonstrate basis for prejudice. In re Leyba(PDF, 2MB), DDC 31-16 8-9 (11/15/17).

Using appellant’s statements at pre-disciplinary meeting against her in assessing discipline did not violate her right to contest the charges brought against her. In re Leyba(PDF, 656KB), CSB 25-16, 2 (8/3/17).

An appellant’s rights in the appeal process include an appeal to a hearing officer; discovery; the right to testify; the right to have witnesses testify; introduction of documentary evidence; cross-examination; and the right to appeal to the Career Service Board. In re Leyba(PDF, 656KB), CSB 25-16, 2 (8/3/17).

Due process requires dismissal of charge where agency alleged at hearing that deputy failed to treat an inmate with dignity and respect, but failed to provide notice of that allegation in any charging document. In re Rocha(PDF, 2MB), CSB 19-16, 5 (7/6/17).

Charging documents must explain the charges and the evidence supporting them. In re Rocha(PDF, 2MB), CSB 19-16, 5 (7/6/17).

Appellant’s due process rights violated, requiring dismissal of charge, where there was no way for her to know before hearing that she needed to prepare a defense to an allegation made only during hearing. In re Rocha(PDF, 2MB), CSB 19-16, 5 (7/6/17).

Dismissal of charge required for violation of deputy’s due process rights, when agency failed to provide notice, before hearing, that she needed to prepare to defend against allegation that she violated the dignity and respect of an inmate. In re Rocha(PDF, 2MB), CSB 19-16, 5 (7/6/17).

Dismissal of charge of neglect of duty or careless performance of duty required, even though agency’s guiding principles require inmates to be treated with dignity and respect, and deputies are charged with knowledge thereof, where charging documents fail to state, with any specificity, how the agency believed the employee did not do her job or performed it carelessly. In re Rocha(PDF, 2MB), CSB 19-16, 6 (7/6/17).

Agency may not require employee to engage in guesswork as to the basis for charges against her. In re Rocha,(PDF, 2MB) CSB 19-16, 6 (7/6/17).

The failure to provide even a modicum of specifics is fatal to the viability of a charge. In re Rocha(PDF, 2MB), CSB 19-16, 6 (7/6/17).

Due process issues arose when agency removed allegation of lack of candor after employee’s pre-disciplinary meeting, yet claimed at hearing her lack of candor was basis to aggravated the penalty. Such action punishes employee for misconduct that fails to provide meaningful opportunity to defend against the allegation. In re Rocha(PDF, 2MB), CSB 19-16, 7 (7/6/17).

Even if appointing authority did not strictly adhere to its own internal rules or guidelines, discipline will be upheld as long as the lack of strict adherence does not deprive employee of right to a falr hearing or one in compliance with applicable law. In re Leyba(PDF, 1MB), CSB 31-16, 4 (3/2/17).

Since hearing officer is free to accept or reject opinion testimony, even if decision-maker’s analysis was false and unproven, that would not constitute violation of due process requiring overturning hearing officer’s decision. In re Lovingier(PDF, 9MB), CSB 48-13, 4 (11/7/14).

Agency's failure to include in the pre-disciplinary letter the decision-maker's testimony about specific training did not deny deputy's due process rights. In re Kemp(PDF, 2MB), CSB 19-13, 4 (7/28/14).

Agency gave sufficient explanation of the facts and circumstances supporting its use of force discipline, and manager of safety's testimony regarding one aspect of agency's training not included in disciplinary letter did not deny deputy's due process rights. In re Kemp,(PDF, 2MB) CSB 19-13, 4 (7/28/14).

Appellant’s failure to attend her pre-disciplinary meeting is not job abandonment under CSR 14-50 C. In re Robinson(PDF, 3MB), CSA 03-13, 10-11 (6/18/13).

A party has been afforded constitutionally adequate pre-deprivation due process when the pre-disciplinary meeting includes oral or written notice of the charges, an explanation of the employer's evidence, and an opportunity to present his side of the story. In re Redacted CSB 67-11 (4/4/13), citing Cleveland BOE v. Loudermill, 470 U.S. 532 (1985); Riggins v. Goodman, 572 F.3d 1101 (10th Cir. 2009).

Decision-maker's consideration of matters not contained in the disciplinary letters did not result in a substantial violation of appellant's rights where hearing officer did not consider that evidence at the post-deprivation hearing. In re Redacted, CSB 67-11 (4/4/13).

Admission of evidence of matters not contained in disciplinary letters did not violate due process where hearing officer considered that evidence as background and not on the substantive issues on appeal. In re Redacted, CSB 67-11 (4/4/13).

Board is authorized to reverse an agency's discipline based on rule violations resulting in a substantial violation of an employee's rights. In re Redacted, CSB 67-11 (4/4/13).

Mere evidentiary rulings made by the hearing officer do not necessarily provide grounds for overturning the decision. In re Redacted, CSB 67-11 (4/4/13).

Admission of evidence of matters not contained in disciplinary letters did not violate due process where hearing officer did not consider that evidence in determining the issues on appeal. In re Redacted, CSB 67-11 (4/4/13).

Due process rights were not violated by decision-maker's reliance on matters not included in disciplinary letters where appellant was granted a de novo hearing and the hearing officer made an independent judgment on the discipline based only on evidence of allegations contained in the disciplinary letters. In re Redacted, CSB 67-11 (4/4/13).

Sheriff department captain had notice of his duties to conduct himself professionally, to lead by example, and to correct sexual banter among his subordinates where he acknowledged: his conduct with a co-worker was unbecoming of his duties; he failed to prevent crude banter from occurring on his watch; and his supervisor told him repeatedly to cease his crude banter and to act more in conformity with his supervisory position. In re Gutierrez(PDF, 1MB), CSA 65-11, 5 (8/28/12).

No due process violation found even though a panel member at appellant’s pre-disciplinary meeting was having an affair with appellant’s principal accuser. Appellant had an opportunity to respond to the allegations against him, panel member had no voice in the discipline decision, and appellant had an independent post-deprivation hearing. In re Gutierrez(PDF, 1MB), CSA 65-11, 15-16 (8/28/12).

Appellant’s claim he was deprived of due process because Deputy Manager of Safety merely rubber-stamped subordinate’s recommendation not proven where the Deputy Manager credibly denied the claim, and the Director recommended a more severe penalty than was actually assessed. In re Gutierrez(PDF, 1MB), CSA 65-11, 16 (8/28/12).

Reversal of appellant’s suspension not required even though agency failed to comply strictly with Career Service Rule requiring disciplinary action or request for extension within fifteen days after pre-disciplinary meeting since Appellant did not show her rights were substantially violated. In re Berlin(PDF, 69KB), CSA 81-10, 1 (Order 1/19/11).

The fundamental requisites of due process are notice and the opportunity to be heard. In re Burke, CSA 60-10, 2 (Order 12/8/10), citing Jefferson v. Colorado Dept. of Social Services, 874 P.2d 408, 409 (Colo.App. 1993).

Where an administrative adjudication turns on questions of fact, due process requires the parties to be apprised of all the evidence to be considered, to be afforded a reasonable opportunity to confront and cross examine adverse witnesses, and to present evidence and argument in furtherance of their position. In re Burke, CSA 60-10, 2 (Order 12/8/10), citing Goldberg v. Kelly, 397 U.S. 254, 269 (1970); Jefferson, v. Colorado Dept. of Social Services, 874 P.2d 408, 409. (Colo. App. 1993).

An agency may not penalize an employee without first providing an opportunity for rebuttal, including cross-examination. In re Burke, 60-10, 2 (Order 12/8/10).

Where government action seriously injures an individual and the reasonableness of the action depends on fact findings, the evidence used to prove the Government’s case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. In re Burke, CSA 60-10, 2 (Order 12/8/10), quoting Bennett v. National Transportation Safety Board, 66 F.3d 1130, 1136 (10th Cir. 1995); citing Hannah v. Larche, 363 U.S. 420, 440 n. 16 (1960).

When appellant has notice of the documents to be produced at hearing, he had an opportunity to inspect them, the proponent of the statements in the documents is known and subject to subpoena, and appellant could have requested a continuance to procure attendance of the witness, but the appellant failed to utilize these options, the appellant cannot complain he did not have the opportunity to cross-examine the witness. In re Burke, CSA 60-10, 1-2 (Order 12/8/10), citing Bennett v. National Transportation Safety Board, 66 F.3d 1130, 1136 (10th Cir. 1995); Jefferson v. Colorado Dept. of Social Services, 874 P.2d 408, 409 (Colo. App. 1993).

Appellants were not denied adequate notice of the multiple agency rule violations where appellants were represented by counsel, failed to raise the claim at the pre-disciplinary hearing, and agency claims were not unduly complex, voluminous or otherwise unclear. In re Sawyer & Sproul(PDF, 1MB), CSA 33-08 & 34-08, 16 (1/27/09).

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(PDF, 495KB), CSB 87-07, 8 (1/8/09), citing Cleveland Board Education v. Loudermill, 470 U.S. 532, 546 (1985).

A voluminous recitation of facts which support each particular rule violation is not required in an agency’s pre-disciplinary letter. In re Mounjim(PDF, 495KB), CSB 87-07, 7 (1/8/09).

Property interests may be created by ordinance or implied contract. In re Romero(PDF, 167KB), CSA 03-08 (Order 2/6/08), citing Bishop v. Wood, 426 U.S. 341, 344, 48 L. Ed. 2d 684, 96 S. Ct. 2074 (1976).

A public employee must have a legitimate claim of entitlement to continued public employment for a property interest to arise. Only once a property right is established will the question arise what process is due under the federal Constitution. In re Romero(PDF, 167KB), CSA 03-08 (Order 2/6/08), citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541-45, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985).

A unilateral expectation of continued public employment is not sufficient to create a property interest in continued employment. In re Romero(PDF, 167KB), CSA 03-08 (Order 2/6/08), citing Kingsford v. Salt Lake City Sch. Dist., 247 F.3d 1123, 1129 (10th Cir. 2001); Board. of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972).

Whether the CSA or the agency established rules or mutually explicit understandings which allow appellant to state a claim for deprivation of property without due process of law depends on whether the circumstances of his employment gave him a legitimate claim of entitlement. In re Romero,(PDF, 167KB) CSA 03-08 (Order 2/6/08), citing Adams County School Dist. No. 50 v. Dickey, 791 P.2d 688, 694 (Colo. 1990).

The sufficiency of an employee's claim of entitlement is determined by reference to state law. The hallmark of property is an individual entitlement grounded in state law, which cannot be removed except for cause. In re Romero(PDF, 167KB), CSA 03-08 (Order 2/6/08), citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 430, 71 L. Ed. 2d 265, 102 S. Ct. 1148 (1982).

Even if appellant was not afforded a pre-disciplinary meeting while other probationary employees were, he has no property interest in his continued employment that would entitle him to such pre-termination protection. In re Romero(PDF, 167KB), CSA 03-08 (Order 2/6/08).

The only process due a probationary employee is notice sent to the employee that he is expected to fail probation and an opportunity to meet to discuss the termination of probation. In re Allen,(PDF, 283KB) CSA 16-06, 3 (6/6/06).

Hearing office is not a court of general jurisdiction, but rather an administrative forum which hears only actions defined by the rules under which it operates. In re Lovin(PDF, 87KB), CSA 27-06, 2 (Order 5/18/06).

Threshold issue in every due process challenge is whether appellant has been deprived of a protected interest in property or liberty. Only after determining the deprivation of a protected interest may the hearing officer assess whether agency’s procedures comported with due process. In re Vigil(PDF, 477KB), CSA 110-05, 5 (3/3/06), citing In re Douglas(PDF, 1MB), CSB 317-01, 3 (3/22/02); American Mfg. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999).

In appeal alleging deprivation of a protected property interest by agency’s assessment of 2.5 hours leave without pay, the deprivation was de minimus and therefore not entitled to due process protections. In re Vigil(PDF, 477KB), CSA 110-05, 5-6 (3/3/06), citing Gabel v. Jefferson County School District R-1, 824 P.2d 26, 28 (Colo. App. 1991).

Supervisor’s decision to discipline appellant for taking earned sick leave, even if he had believed her leave was legitimate, rendered appellant’s pre-disciplinary hearing meaningless, in violation of her right to be heard. In re Espinoza,(PDF, 500KB) CSA 30-05, 7 (1/11/06), affirmed on other grounds, In re Espinoza(PDF, 142KB), CSB 30-05 (8/23/06).

To trigger the due process protections of U.S. Const. amend. XIV, a plaintiff must show that she possesses either a property or liberty interest in the benefits of which she claims to have been deprived. In re Martinez,(PDF, 584KB) CSA 69-05, 7 (1/4/06), citing Pfenninger v. Exempla, Inc., 116 F. Supp.2d 1184 (D. Colo. 2000).

Neither the Career Service Rules nor due process requires personal notice of public hearings to any person who may be affected thereby. In re Jackson(PDF, 3MB), CSA 103-04, 4 (6/13/05), citing United States v. Florida East Coast R. Co., 410 U.S. 224 (1973).

Agency’s failure to deliver disciplinary letters to appellant’s last known address did not deprive appellant of an opportunity to be heard since the postal forwarding order had expired, rendering any such delivery ineffective. In re Kinfe(PDF, 2MB), CSA 161-04, 4 (3/16/05), citing Loudermill v. Cleveland Board of Education, 470 U.S. 532 (1985).

23. Equal Protection

Where the only injury claimed is the agency’s failure to grant a pre-disciplinary meeting - a right that does not exist for a probationary employee - appellant failed to state a claim for which there is jurisdiction under CSR 19-10. In re Romero(PDF, 167KB), CSA 03-08 (Order 2/6/08).

24. Evidence

IN GENERAL

The existence of mitigating evidence does not entitle a deputy to a mitigated penalty. In re Jordan(PDF, 152KB), CSB 21-18A, 3 (5/16/19).

That the hearing officer did not ascribe the same weight to mitigating factors as appellant does not amount to error. In re Jordan(PDF, 152KB), CSB 21-18A, 3 (5/16/19).

The CSRs give the Hearing Officer discretion to issue subpoenas upon analyzing the appellant’s offer of proof supporting a request for subpoenas. In re Gerovic(PDF, 116KB), CSB 77-17A, 3 (6/20/19).

The seriousness of misconduct and degree of discipline are not fact findings to which the CSB is bound, but are ultimate findings over which the CSB may exercise discretion. In re Mancuso(PDF, 190KB), CSB 76-17, 2-3 (9/6/18).

It is incumbent on an agency at least nominally to connect the dots between its factual allegations and its citation to each Career Service Rule violation. In re Schofield(PDF, 343KB), CSA 08-17, 4 (10/9/17), citing In re Gutierrez(PDF, 1MB), CSA 65-11, 6 (8/28/12), affirmed In re Gutierrez(PDF, 5MB), CSB 65-11 (4/4/13); In re Owens-Manis & Pettway(PDF, 3MB), CSA 73-09, 75-09 (3/11/10).

An agency’s failure to connect the dots between its factual allegations and its citation to a Career Service Rule constitutes a failure of proof where the evidence is not otherwise evident. In re Schofield(PDF, 343KB), CSA 08-17, 4 (10/9/17).

Hearing officer is not required to mention every piece of evidence admitted, and is free to consider whatever record evidence is relevant and persuasive. In re Barra(PDF, 679KB), CSB 01-16, 2 (8/3/17).

Hearing officer may reject irrelevant and unpersuasive evidence. In re Barra(PDF, 679KB), CSB 01-16, 2 (8/3/17).

Hearing officer’s failure to mention evidence proffered by appellant was not erroneous in light of appellant’s admissions of misconduct. In re Barra(PDF, 679KB), CSB 01-16, 2 (8/3/17).

Hearing officer may reject irrelevant and unpersuasive evidence. In re Barra(PDF, 679KB), CSB 01-16, 2 (8/3/17).

Hearing officer’s failure to consider evidence that required speculative outcomes in her favor did not render findings clearly erroneous. In re Barra(PDF, 679KB), CSB 01-16, 3 (8/3/17).

Hearing officer may reject irrelevant and unpersuasive evidence. In re Barra(PDF, 679KB), CSB 01-16, 2 (8/3/17).

Statements made by appellant during her pre-disciplinary meeting could be used against her in assessing discipline. In re Leyba(PDF, 656KB), CSB 25-16, 2 (8/3/17).

It is hearing officer’s responsibility to resolve conflicts of evidence and to assess the weight to be afforded any particular piece of evidence. In re Rocha,(PDF, 2MB) CSB 19-16, 2 (7/6/17).

Statements made by employee during pre-disciplinary proceedings may be used to justify an aggravated or mitigated penalty. In re Espinoza(PDF, 496KB), CSB 14-16, 2 (3/8/17).

A party’s failure to provide proper notice of a witness or the content of such witness’s testimony subjects that witness to exclusion. In re Garegnani & Jones(PDF, 89KB), CSA 29-16 & 30-16, 5 (3/6/17), citing Jordan v. City and County of Denver, 16CV30960, 4 (Denver Dist. Ct. 2/10/16); CSR 19-44C.

Evidence mistakenly used in Agency’s decision to terminate deputy’s employment does not justify overturning hearing officer’s affirmation of dismissal, where he did not consider the misattributed evidence in de novo hearing. In re Steckman(PDF, 866KB), CSB 30-15, 2 (1/19/17).

It is against sound policy for hearing officer to rely on the interpretation of written orders by two supervisors, where their interpretation was contrary to the actual terms of the orders. In re Shelley & Martinez, CSB 30-13 & 32-13, 2 (12/9/14).

The Career Service Board may reverse a hearing officer’s decision for insufficient evidence only if the findings are clearly erroneous. In re Lovingier(PDF, 9MB), CSB 48-13, 2 (11/7/14).

A factual finding is clearly erroneous when it is unsupported by substantial evidence in the record considered as a whole, meaning the factual finding has no support in the record. In re Lovingier(PDF, 9MB), CSB 48-13, 2 (11/7/14), citing In re the Estate of Perry, 33 P.3d 1235, 1237 (Colo. App. 2001); Phoenix Capital, Inc. v. Dowell, 176 P.3d 835, 841 (Colo. App. 2007).

Hearing officer’s finding misconduct and unreasonableness of appellant’s perceptions were overwhelmingly supported by evidence showing audio and video support for findings along with testimony from a judge who was present during the incident. In re Lovingier(PDF, 9MB), CSB 48-13, 2 (11/7/14).

In excessive force case, it was not error for hearing officer to find the video record and testimony from 2 non-law enforcement witnesses was more persuasive than testimony of five law enforcement officers who said the appellant-deputy did nothing wrong. In re Lovingier(PDF, 9MB), CSB 48-13, 2 (11/7/14).

It is the hearing officer’s responsibility, not that of the CSB, to weigh evidence and assess credibility. In re Lovingier(PDF, 9MB), CSB 48-13, 2 (11/7/14).

A hearing officer is free to accept or reject opinions offered by witnesses. In re Lovingier(PDF, 9MB), CSB 48-13, 2 (11/7/14).

Whether to adopt an expert’s opinion is a matter within the discretion of the hearing officer. In re Lovingier(PDF, 9MB), CSB 48-13, 2 (11/7/14).

Finding an expert not credible is a matter within the discretion of the hearing officer. In re Lovingier(PDF, 9MB), CSB 48-13, 2 (11/7/14).

Potential evidence of a rule violation strewn throughout the case must be assembled into a coherent claim by the agency, not the hearing officer. In re Lovingier(PDF, 9MB), CSB 48-13, 2 (11/7/14).

Hearing officer’s comments about the shortcomings in appellant’s defense does not shift the burden of proof to the appellant. In re Lovingier(PDF, 9MB), CSB 48-13, 3 (11/7/14).

A use of force analysis must be based upon the perceptions of a reasonable officer, not a reasonable person. In re Lovingier(PDF, 9MB), CSB 48-13, 3-4 (11/7/14).

Hearing officer properly analyzed use of force evidence where he weighed totality of the circumstances known to the officer at the time. In re Lovingier(PDF, 9MB), CSB 48-13, 3 (11/7/14).

Deputy Manager of Safety [now “Deputy Executive Director of Safety], analyzed evidence in excessive force case from proper perspective where he found video and testimony of some witnesses more persuasive than the testimony of others. In re Lovingier(PDF, 9MB), CSB 48-13, 4 (11/7/14).

Even if decision-maker’s analysis of conduct underlying discipline was false and unproven, that would not be grounds for overturning hearing officer’s decision, since hearing officer is free to accept or reject that opinion testimony. In re Lovingier(PDF, 9MB), CSB 48-13, 4 (11/7/14).

Absent a claim that the pre-disciplinary notice is so defective as to deprive the employee of due process, it is immaterial whether decision-maker’s analysis is factually and legally correct. In re Lovingier(PDF, 9MB), CSB 48-13, 4 (11/7/14).

Hearing officers’ job is to hear evidence, weigh evidence, assess credibility and make findings. In re Lovingier(PDF, 9MB), CSB 48-13, 4 (11/7/14).

Where the City Charter vests authority in the Executive Director of the Department of Safety to provide oversight of the Sheriff’s Department, appellant was incorrect in alleging the civilian decision maker was in no position to pass judgment on a law enforcement officer’s opinions. In re Lovingier(PDF, 9MB), CSB 48-13, 4 (11/7/14).

Appellant’s claim – that the civilian Manager of Safety [now the Executive Director of the Department of Safety] may not judge the opinions of trained law enforcement officers – would wrongfully strip the Manager of the ability to perform his Charter-imposed duty to exercise control over the Sheriff’s Department. In re Lovingier(PDF, 9MB), CSB 48-13, 4 (11/7/14).

Appellant’s claim – that the civilian Manager of Safety [now the Executive Director of the Department of Safety] may not judge the opinions of trained law enforcement officers – would set unlawful policy and precedent. In re Lovingier(PDF, 9MB), CSB 48-13, 4 (11/7/14).

It is not error for hearing officer to admit evidence of subsequent remedial measures in the form of new policies and equipment designed to prevent erroneous release, since the rules of evidence do not apply strictly to our hearings. In re Mitchell(PDF, 828KB), CSB 57-13, 4 (11/7/14).

Evidence of subsequent remedial measures is admissible if not offered to prove negligence or culpable conduct. In re Mitchell(PDF, 828KB), CSB 57-13, 4 (11/7/14), citing CRE 407.

Consideration of documents not formally admitted into evidence does not warrant reversal for insufficient evidence. In re Koonce(PDF, 1MB), CSB 36-13, 2 (10/16/14).

Consideration of documents not formally admitted into evidence does not warrant reversal given all the other evidence properly admitted and considered by the hearing officer. In re Koonce(PDF, 1MB), CSB 36-13, 2 (10/16/14).

Appellant failed to establish error in hearing officer’s finding of dishonesty where the video relied upon by hearing officer constituted substantial evidence to support the conclusion that appellant lied, even though the video is subject to interpretation. In re Kemp(PDF, 2MB), CSB 19-13, 2 (7/28/14).

Hearing office hearings are administrative hearings which do not need to apply strictly the rules of evidence. In re Kemp(PDF, 2MB), CSB 19-13, 4 (7/28/14).

Written statements by inmates were properly admitted to show decision-maker’s state of mind in determining whether deputy violated department orders. In re Kemp(PDF, 2MB), CSB 19-13, 4-5 (7/28/14), citing Zamora v. Bd. of Education for Las Cruces Public Schools, 2014 WL 260293 (10th Cir. 2004).

The preferred practice for taking administrative notice is for hearing officer to advise parties at hearing that he is taking administrative notice under CRE 201(e), rather than declaring such in his decision. In re Redacted, CSB 57-11 (12/20/12).

The CSB will not re-weigh the credibility of witnesses where there is evidence in the record to support hearing officer’s determination, and the determination is not clearly erroneous. In re Redacted, CSB 57-11 (12/20/12).

Hearing Officer’s determination, that petitioner was not credible, was not clearly erroneous where petitioner claimed no intent to steal, but left a store without paying for over $600 in merchandise in her cart. In re Redacted, CSB 57-11 (12/20/12).

Where agency’s notice of discipline referred to appellant’s conducting non-agency business while on duty, but was vague as to whether the conduct violated any particular Career Service Rule, the hearing office will not make such a connection on behalf of the agency. In re Gutierrez(PDF, 1MB), CSA 65-11, 6 (8/28/12).

Alone, petitioner’s belief in her own credibility provides no basis to reverse contrary finding of hearing officer. In re Roybal(PDF, 504KB), CSB 60-11, 2 (8/2/12).

It is not the Board’s responsibility to sift through the record looking for evidence that may support or refute an argument made on petition for review. In re Carothers(PDF, 90KB), CSB 13-11 (7/16/12).

Decision was not clearly erroneous where witnesses who appellant claimed were not made available by the agency, were known to appellant and appellant failed to subpoena them. In re Webster(PDF, 1MB), CSB 03-11, 4 (4/14/12).

Where video evidence was clear and unambiguous, what non-appearing witnesses may have seen is insufficient basis to reverse hearing officer’s conclusions. In re Webster(PDF, 1MB), CSB 03-11, 4 (4/14/12).

Appellant’s claim that agency had a duty to produce inmate-witnesses at hearing and to preserve their testimony, impermissibly intermingles agency rules with constitutional criminal law which has no applicability to Career Service hearings, Appellant could have subpoenaed those witnesses. In re Webster(PDF, 1MB), CSB 03-11, 4 (4/14/12).

Where video recording of the incident was clear and unambiguous, what another witness may have observed is insufficient ground to disturb hearing officer’s findings. In re Webster(PDF, 1MB), CSB 03-11, 4 (4/14/12).

Alleging misconduct in the absence of an underlying violation is an impermissible use of the disciplinary process under the Career Service Rules. Such a practice fails to notify an employee what conduct was considered by the Agency in assessing discipline, thus depriving the employee of the opportunity to defend against the allegation. In re Leslie(PDF, 8MB), CSA 10-11, 20 (12/5/11).

The fact that appellant does not agree with the hearing officer's findings does not make them clearly erroneous when those findings are supported by the evidence in the record. In re Gallo(PDF, 1MB), CSB 63-09, 5 (3/17/11).

Administrative hearings are not subject to strict compliance with the civil rules of evidence in order to promote the fact finding process. In re Burke, 60-10, 1-2 (Order 12/8/10), citing Fish v. Charnes, 652 P.2d 598, 602 (Colo. 1982).

Appellant’s pre-hearing motion to exclude police reports containing ex-spouse’s adverse statements denied where: a subpoena had issued for her presence, but he failed to request a continuance until service was perfected, he failed to request discovery or deposition, and he had the opportunity to review the police report and witness statements before hearing. In re Burke, 60-10, 1-2 (Order 12/8/10).

A hearing officer may not infer proof which is neither explicit nor clearly implicit from the evidence. In re Abbey(PDF, 3MB), CSA 99-09, 10 (8/9/10).

Strict rules of evidence shall not apply in career service hearings. In re Carter(PDF, 756KB), CSB 87-09, 2 (7/1/10), citing CSR 19-50 A; Industrial Claims Appeals Office v. Flower Stop Marketing Corp., 782 P.2d 13, 18 (Colo. 1989).

A career service hearing is a de novo hearing in which the agency has the burden of independently proving alleged misconduct, and the hearing officer is charged with the responsibility of making an independent determination regarding that misconduct based on the evidence presented. In re Carter(PDF, 756KB) CSB 87-09, 2 (7/1/10).

The raw evidentiary facts upon which an agency bases its decision must be reviewed de novo by the career service hearing officer; that is, all the evidence on the issues presented must be considered as though no previous action had been taken. In re Owens-Manis & Pettway(PDF, 3MB), CSA 73-09 & 75-09, 10 (3/11/10), citing In re Luna(PDF, 271KB), CSB 42-07, 4 (1/30/09); Turner v. Rossmiller, 532 P.2d 751 (Colo.App. 1975).

Challenge to legality of background check is not properly before hearing officer on appeal when appellant answered the questions without objection, and did not assert a discrimination claim in the appeal. In re Mitchell(PDF, 453KB), CSA 05-05, 8 (6/27/05).

CREDIBILITY

Hearing Officer should not reject the testimony of a nurse, that she requested a deputy to release his pressure on an inmate, because a second nurse did not recall the comment, as the failure to recall it was not a denial of the testimony. In re Hernandez and Garegnani(PDF, 2MB), CSB 25 & 26-17A, 4 (1/17/19).

Hearing Officer should not reject the testimony of a nurse, that she requested a deputy to release his pressure on an inmate, because a second nurse who was not present, per the video evidence, purported to contradict the testimony. In re Hernandez and Garegnani(PDF, 2MB), CSB 25 & 26-17A, 4 (1/17/19).

Hearing officers are not required to accept unconditionally everything the Civilian Review Administrator testifies to. In re Hammernik & Trujillo(PDF, 2MB), CSB 41-17A & 42-17A, 3 (2/7/19).

The agency’s Civilian Review Administrator is entitled to testify, regardless of law enforcement experience, why the agency believes a deputy’s conduct has violated agency rules. In re Hammernik & Trujillo(PDF, 2MB), CSB 41-17A & 42-17A, 3 (2/7/19).

In resolving an appeal, the Hearing Officer is responsible to evaluate the evidence, assign it the weight he deems appropriate, assess the credibility of witnesses, and resolve conflicts in the evidence. In re Gerovic(PDF, 116KB), CSB 77-17A, 2 (6/20/19).

The Career Service Board cannot and does not make credibility determinations, nor does it substitute its judgment for that of the hearing officer. In re Strauch(PDF, 1MB), CSB 40-13, 4 (7/17/14).

When an agency finds the credibility of its principal accuser lacking then, regardless of the veracity of that belief, a hearing officer should not give the accuser’s statements more weight than the agency gave them. In re Gutierrez(PDF, 1MB), CSA 65-11, 4 (8/28/12).

Factors which raise questions about a witness’ credibility include her prior suspension for dishonesty, misappropriation of non-agency funds, denial of engaging in sexual banter in the workplace which was rebutted by other witnesses, denying friendship with a co-worker with whom she socialized, went out to lunch, and bought him a gift. In re Gutierrez(PDF, 1MB), CSA 65-11, 4-5 (8/28/12).

Appellant’s credibility concerning her claim that she didn’t intend to shoplift, despite leaving store without paying for a cart full of merchandise, was questionable where: she admitted leaving the store without paying; due to personal emergency she could not leave cart since personal items were buried, but photo evidence revealed they were not; both alleged options to deal with personal emergency required appellant to make an extra trip back to the store, belying her claim that she needed to save time; appellant stated she was frantic about personal emergency, yet held out hope situation would improve to the point where she could finish shopping. In re Redacted CSA 57-11, 4 (5/31/12).

Hearing officers are charged with judging the credibility of witnesses, and the weight to be given to testimony and other evidence. In re Webster(PDF, 1MB), CSB 03-11 (4/14/12).

Appellant was less credible than agency witnesses where: testimony by agency witnesses remained credible while appellant’s testimony was ever evolving; his assertions would require implausible conclusions; his explanation of a critical recollection defied common sense; opposing witnesses’ written reports were consistent with each other; appellant failed to produce evidence of his conspiracy theory; he remained silent in circumstances normally demanding a response; his statements to witnesses provided evidence of a motive to lie; his claim that his memory improved over time was implausible; and evidence that he was always honest with his supervisors was not compelling evidence of truthfulness in the present situation. In re Strauch(PDF, 2MB), CSA 37-11, 3-4 (12/20/11).

It is within the hearing officer's province to assess the credibility of witnesses and weigh the strengths and weaknesses of the evidence presented in reaching a decision. In re Gallo,(PDF, 1MB) CSB 63-09, 5 (3/17/11).

Appellant’s claim, that she stayed late to make up for arriving late because she was simply mistaken about her schedule, was not credible where she acknowledged two emails from her supervisor specifying her work hours, her supervisor specifically ordered her not to stay beyond her scheduled hours, and her schedule was changed at her own request. In re Rodriguez(PDF, 6MB), CSA 12-10, 20 (10/22/10).

Appellant’s denial of his absence for more than allotted fifteen minutes was not credible in light of video surveillance and his badge records which confirmed he was absent twenty-five minutes. In re Abbey(PDF, 3MB), CSA 99-09, 9-10 (8/9/10).

Appellant’s explanation for his unauthorized absence in excess of allotted fifteen minutes - that he first did errands within the building so that his absence outside the building was less than fifteen minutes - was not credible in light of video surveillance and his badge records which confirmed his absence from the building for twenty-five minutes. In re Abbey(PDF, 3MB), CSA 99-09, 9-10 (8/9/10).

Appellant’s explanation for being away from post – because he was consoling a friend - was not credible where he was found in a sleeping area with his shirt and equipment off, he jumped up suddenly when his supervisor entered, and his friend did not testify to confirm his account. In re Norris(PDF, 2MB), CSA 68-09, 5 (7/12/10).

Appellant's claim that his co-workers' testimony was motivated by revenge for their loss of virtually unlimited overtime was rebutted by fact that co-workers initially covered up for his absences, and more credible evidence that another employee caused the change in overtime and that co-workers grew weary of his constant absences. In re Norris(PDF, 2MB), CSA 68-09, 5 (7/12/10).

Appellant's claim that he may have been away from his post because of a special assignment was not credible where he presented no evidence that such an order was issued over the radio, as required. In re Norris(PDF, 2MB), CSA 68-09, 6 (7/12/10).

It is within the province of the hearing officer to judge the credibility of witnesses and the strengths or weaknesses of the evidence presented. In re Carter(PDF, 756KB), CSB 87-09, 2 (7/1/10).

Appellant’s credibility was questionable where his testimony that he was late due to snowy weather was contradicted by his own evidence that .01” of snow fell the entire day, and his testimony on many matters was contradicted by other credible evidence. In re Redacted(PDF, 2MB), CSA 08-10 (5/24/10).

In determining credibility, the quality of testimony is controlling, not the number of witnesses. In re Carter(PDF, 2MB), CSA 87-09, 4 (2/17/10).

Factors to consider in evaluating the credibility of a witness include opportunity to see or hear the events, motive to collude or fabricate testimony, plausibility of the testimony, consistency with other evidence, existence of bias, hostility or other attitude affecting truthfulness, expectation of benefit for testifying, and interest in the outcome of the case. In re Carter(PDF, 2MB), CSA 87-09, 4 (2/17/10), citing Kinney v. People, 187 P.3d 548 (Colo. 2008); AMJUR Witnesses §1003-1007 (2009).

An appellant always has an interest in the outcome of his case, although that interest may not affect the truthfulness of his testimony. In re Carter(PDF, 2MB), CSA 87-09, n. 1 (2/17/10).

Testimony of co-workers was more credible than appellant’s where they had a good relationship with appellant and their testimony was plausible and consistent with one another, whereas appellant’s testimony was inconsistent over time, and he had an interest in the outcome of the appeal: preservation of his job. In re Carter(PDF, 2MB), CSA 87-09, 4 (2/17/10).

EXPERTS

Whether to adopt an expert’s opinion is a matter within the discretion of the hearing officer. In re Lovingier(PDF, 9MB), CSB 48-13, 2 (11/7/14).

Finding an expert not credible is a matter within the discretion of the hearing officer. In re Lovingier(PDF, 9MB), CSB 48-13, 2 (11/7/14).

Expert witness testimony properly rejected where it was based upon unreliable evidence. In re Strauch(PDF, 1MB), CSB 40-13, 4-5 (7/17/14).

Hearing offers are empowered to reject testimony they find not persuasive or not credible. In re Strauch(PDF, 1MB), CSB 40-13, 4 (7/17/14).

Opinion of appellant’s expert property rejected where expert’s conclusions, that appellant-deputy’s palm-heel strike to the face of a motorist and firing eight rounds at the driver was unreasonable and inconsistent with agency policy. In re Strauch(PDF, 1MB), CSB 40-13, 5 (7/17/14).

HEARING OFFICERS

Hearing officer’s dicta in suggesting training for officers is an inappropriate intrusion into the operational province of the Agency. In re Shelley & Martinez(PDF, 675KB), CSB 30-13 & 32-13 (12/9/14).

Hearing officers do not have the authority to dictate to an agency the nature and amount of training for its employees. In re Shelley & Martinez(PDF, 675KB), CSB 30-13 & 32-13, 1-2 (12/9/14).

Whether to conduct training and in what amount and type is an agency management decision outside the province of a hearing officer. In re Shelley & Martinez(PDF, 675KB), CSB 30-13 & 32-13, 2 (12/9/14).

It is error to rely on interpretation of orders by supervisors when those interpretations is inconsistent with the actual terms of the orders. In re Shelley & Martinez(PDF, 675KB), CSB 30-13 & 32-13, 3 (12/9/14).

Appellant’s claim is untenable policy in advocating hearing officers, as civilians, are not in a position to dispute any belief expressed by law enforcement officers concerning the use of force. In re Lovingier(PDF, 9MB), CSB 48-13, 4 (11/7/14).

Hearing officers job is to hear evidence, weigh evidence, assess credibility and make findings. In re Lovingier(PDF, 9MB), CSB 48-13, 4 (11/7/14).

Where it is the main function of hearing officer to hear evidence, assess credibility and make findings, Appellant was incorrect in claiming hearing officer must defer to trained law enforcement officers’ opinions. In re Lovingier(PDF, 9MB), CSB 48-13, 4 (11/7/14).

Appellant’s argument – that in excessive force cases, hearing officers should defer to testimony of trained law enforcement officers – fails because it would wrongfully strip hearing officers of their ability to hear and decide cases. In re Lovingier(PDF, 9MB), CSB 48-13, 4 (11/7/14).

Hearing offers are empowered to reject testimony they find not persuasive or not credible. In re Strauch(PDF, 1MB), CSB 40-13, 4 (7/17/14).

HEARSAY

Hearsay is an out of court statement offered to prove the truth of the matter asserted in the statement. In re Carter(PDF, 756KB), CSB 87-09, 1 (7/1/10).

An out of court statement may be admitted into evidence if offered for a purpose other than to prove the truth of the matter asserted. In re Carter(PDF, 756KB), CSB 87-09, 1 (7/1/10).

Information from internal affairs report was not hearsay where it was admitted to explain the reasons for director's disciplinary decision. In re Carter(PDF, 756KB), CSB 87-09, 2 (7/1/10).

In disciplinary actions, the decision-maker is rarely if ever the person who actually investigates allegations of misconduct and therefore must rely on information provided from others. In re Carter(PDF, 756KB), CSB 87-09, 2 (7/1/10).

The use of hearsay evidence alone does not violate due process as long as the hearsay is sufficiently reliable and trustworthy and the evidence possesses probative value commonly accepted by reasonable and prudent persons in the conduct of their affairs. In re Carter(PDF, 756KB), CSB 87-09, 3 (7/1/10), citing Industrial Claims Appeals Office v. Flower Stop Marketing Corp., 782 P.2d 13, 18 (Colo. 1989).

Passing reference to internal affairs report in decision that carefully weighed and analyzed witness testimony belies appellant's claim that hearing officer relied on the report in making decision. In re Carter(PDF, 756KB), CSB 87-09, 2 (7/1/10).

Hearing officer was not required to determine reliability or trustworthiness of report as hearsay evidence where decision was based on the testimony of eight fact witnesses and did not rely on the report, unlike Flower Stop case where the only evidence presented was hearsay. In re Carter(PDF, 756KB), CSB 87-09, 2 (7/1/10).

Appellant’s claim - that principles of fairness and due process required the hearing officer to make a determination about the reliability of a hearsay report which was not admitted into evidence - lacked legal support. In re Carter(PDF, 756KB), CSB 87-09, 3 (7/1/10).

Appellant had notice of and access to an internal affairs report where it was included as an agency exhibit, and witnesses interviewed also testified at the career service hearing. In re Carter(PDF, 756KB), CSB 87-09, 3 (7/1/10); CSR 19-45.

PRIVILEGE

Physician-patient privilege protects information acquired in attending a patient which is necessary to enable a physician to treat the patient. In re Cullen(PDF, 185KB), CSA 127-08, 2 (1/7/09), citing CRS 13-90-107(d).

Physician-patient privilege may be impliedly waived when a party raises an affirmative defense that makes his physical condition the basis of the affirmative defense. In re Cullen(PDF, 185KB), CSA 127-08, 2 (1/7/09).

Waiver of physician-patient privilege does not amount to a general disclosure of the patient's entire medical history, but rather is limited to the cause and extent of the injuries and damages claimed. In re Cullen(PDF, 185KB), CSA 127-08, 2 (1/7/09), citing Cardenas v. Jerath, 180 P.3d 415, 424 (Colo. 2008).

RELEVANCE

Hearing officer may reject irrelevant and unpersuasive evidence. In re Barra(PDF, 679KB), CSB 01-16, 2 (8/3/17).

25. Family Medical Leave Act

See also CSR §11-150

Employee failed to establish that the Agency had the responsibility to provide her with accurate leave balances, as part of the Agency’s responsibility to “provide other required information about FMLA leave,” where FMLA does not require an employer to notify an employee that she has or lacks paid leave, and does not create the right to paid leave if none was earned under the Agency’s benefit policies. In re Anderson(PDF, 1MB), 102-09, 4 (7/20/10).

The Agency’s benefit policies control the existence of paid leave, not the FMLA, which only permits an eligible employee to choose to use accrued paid leave, provided by the employer and accrued pursuant to established policies of the employer, concurrently with unpaid FMLA leave, provided the employee complies with any additional requirements in an employer’s paid leave policy. In re Anderson(PDF, 1MB), 102-09, 4 (7/20/10).

Agency did not violate CSR § 11-154, governing the use of FMLA leave, when it did not inform appellant of her correct leave balances, where neither federal law nor the Career Service Rules require that an employer re-send a designation form every time there is a change in the amount of paid leave. In re Anderson(PDF, 1MB), 102-09, 5 (7/20/10).

Detrimental reliance on a draft leave history does not render the Agency’s FMLA designation improper under CSR § 11-154, where Appellant unreasonably relied on the draft leave history, which she knew was high and was not final, and she had access to her own leave balances, and she failed to confirm her leave balance prior to taking extended leave. In re Anderson(PDF, 1MB), 102-09, 5 (7/20/10).

The federal FMLA prohibits an employer from interfering with an employee’s right to apply for leave under the Act, or retaliating against an employee for the exercise of those rights. In re Dessureau,(PDF, 545KB) CSA 59-07, 5 (1/16/08); 29 USCS 2615(a).

FMLA requires an employer to examine the certification of a health care provider in order to determine whether FMLA leave should be granted. In re Dessureau,(PDF, 545KB) CSA 59-07, 5 (1/16/08); 29 USCS 2613.

Where appellant raised a medical issue as reason for a restroom stop, agency’s decision not to inquire further based on the FMLA did not support finding of neglect of duty. In re Dessureau(PDF, 545KB), CSA 59-07, 5 (1/16/08).

26. Good Cause

IN GENERAL

Good cause for late filing of an appeal is determined on a case-by case basis after considering all relevant circumstances. In re Cervantes,(PDF, 102KB) CSA 45-08 (Order 6/11/08).

NOT FOUND

Late filing was not caused by forces beyond appellant’s control where she received the notice of termination the day after it was mailed. In re Cervantes(PDF, 102KB), CSA 45-08 (Order 6/11/08), citing In re Apodaca,(PDF, 55KB) CSA 40-06 (Order 7/28/06).

Good cause for a late appeal was not established by allegation that the agency’s mailing of the termination letter extended the deadline, or that equipment problems caused the appeal to be filed six minutes late.In re Cervantes,(PDF, 102KB) CSA 45-08 (Order 6/11/08), citing In re Wehmhoefer, CSA 02-08, 5 (Order 2/14/08).

Motionfor continuance was not supported by good cause where it was filed on the eve of hearing, appellant failed to hire attorney after 2 prior continuances were granted to allow her to do so, and the agency was prejudiced by appellant’s delays. In re Long,(PDF, 99KB) CSA 78-07, p. 2 (Order 6/10/08).

27. Grievances

Where appellants filed their grievances after the deadline, they cannot obtain relief from the agency or in their appeals of its denials of their grievances. In re Osborne et al(PDF, 78KB), CSA 35-18, 36-18, 37-18, 38-18, 3-4 (9/5/18).

In an appeal of a grievance, appellants retain the burden of proof, by a preponderance of the evidence, to prove the agency denials of their grievances were arbitrary, capricious or contrary to rule or law. In re Osborne et al(PDF, 78KB), CSA 35-18, 36-18, 37-18, 38-18, 2 (9/5/18), citing CSR 19-55 C and E; In re Gallo(PDF, 2MB), CSA 63-09 (8/27/10).

Hearing Office has no jurisdiction to resolve a challenge to an FLSA-exempt status, or to order re-classification, as necessary to reverse the agency action. In re Bohner(PDF, 97KB), CSA 13-17, 3 (6/5/17).

In grievance appeal appellant bears the burden to prove the agency violated a CSR or Charter provision which negatively impacted appellant’s pay, benefits or status. In re Bohner(PDF, 97KB), CSA 13-17, 2 (6/5/17).

Burden of proof in this forum is inconsistent with FLSA law. In CSA appeal, appellant bears burden of proof in a grievance appeal, while in FLSA exemption case, employer bears burden to prove “plainly and unmistakably” that an exemption applies. In re Bohner(PDF, 97KB), CSA 13-17, 4 (6/5/17), citing FLSA, 29 USCA 213(a)(1); Combs v. Jaguar energy Svcs., LLC, 187 F. Supp.3d 1258 (D.Colo. 2016).

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(PDF, 1MB), CSB 63-09, 2 (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(PDF, 1MB), CSB 63-09, 3 (3/17/11).

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 13-50C.

An agency’s denial of a grievance may be appealed if the action violates a career service rule and negatively affects the grievant’s pay, benefits or status. In re Abeyta, CSA 110-09, 2 (Order 2/9/10); CSR 19-10 A.2.b.i.

Where appellant failed to present any evidence supporting his grievance allegation that he was entitled to be awarded his bid for the original graveyard shift based on seniority or otherwise, summary judgment must be granted for the agency on the grievance appeal. In re Abeyta, CSA 110-09, 2 (2/9/10).

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(PDF, 76KB), 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(PDF, 76KB), 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(PDF, 76KB), 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(PDF, 76KB), 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(PDF, 76KB), 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,(PDF, 76KB) 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. In re Morgan(PDF, 987KB), CSA 63-08, 17 (4/6/09); CSR 19-10 A.2.b.

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 & Lewis(PDF, 245KB), 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,(PDF, 121KB) 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(PDF, 121KB), 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,(PDF, 121KB) CSB 43-08 (12/12/08).

28. Harassment

IN GENERAL

Alleged hostile work environment may not be evaluated based on its internal culture, since, under that analysis, the more pervasive the inappropriate conduct, the more difficult it would be to bring a claim. In re Gutierrez(PDF, 16MB), Colo.App. 65-11, 10 (5/19/16), citing Williams v. Gen. Motors Corp., 187 F. 3d 553, 564 (6th Cir. 1999).

Sexual harassment review does not depend on the work environment, or pervasiveness of objectively offensive conduct such as sexual banter and crude jokes. In re Gutierrez(PDF, 16MB), Colo.App. 65-11, 10 (5/19/16), citing Williams v. Gen. Motors Corp., 187 F. 3d 553, 564 (6th Cir. 1999).

Crude or offensive behavior is not acceptable in work environments where it is common. In re Gutierrez(PDF, 16MB), Colo.App. 65-11, 10 (5/19/16), citing Williams v. Gen. Motors Corp., 187 F. 3d 553, 564 (6th Cir. 1999).

Witness claim of sexual harassment based on appellant’s frequent phone greeting “what are you wearing?” not shown where she willingly participated in the practice. In re Gutierrez(PDF, 1MB), CSA 65-11, 5-7 (8/28/12).

Rule 15-100 et. seq. procedures serve to maintain a workplace free of any unlawful harassment, deter future harassment and minimize the City's exposure to potential liability in Title VII lawsuits. In re Gallo,(PDF, 1MB) CSB 63-09, 4-5 (3/17/11).

An employee who believes she has been subjected to sexual harassment in violation of CSR 15 does not have to wait until the harassing behavior has become severe and pervasive enough to alter the conditions of her employment and create a hostile work environment (the level of proof required to sustain a Title VII lawsuit) before reporting such harassment. In re Gallo,(PDF, 1MB) CSB 63-09, 5 (3/17/11).

An interpretation of Rule 15 that suggests the rule requires proof that the harassing behavior was severe and pervasive enough to create a hostile work environment is contrary to the express language of 15-101, which prohibits all harassment on the basis of sex, race or other protected status. In re Gallo,(PDF, 1MB) CSB 63-09, 5 (3/17/11).

General annoyances or insults are not actionable. In re Gallo(PDF, 2MB), CSA 63-09, 5 (8/27/10), citing Hicks v. Gates Rubber Co., 833 F.2d 1406, 1412 (10th Cir. 1987); Johnson v. Bunny Bread Co., 646 F.2d 1250, 1257 (8th Cir. 1981); In re Gallo(PDF, 1MB), CSB 63-09, 5 (3/17/11).

Harassment claimant must show a steady barrage of opprobrious racial comments, not a few isolated incidents of racial enmity. In re Gallo(PDF, 2MB), CSA 63-09, 5 (8/27/10), citingHicks v. Gates Rubber Co., 833 F.2d 1406, 1412 (10th Cir. 1987); Snell v. Suffolk Co., 782 F.2d 1094, 1103 (2nd Cir. 1986); Johnson v. Bunny Bread Co., 646 F.2d 1250, 1257 (8th Cir. 1981); In re Gallo,(PDF, 1MB) CSB 63-09, 5 (3/17/11).

To establish a hostile work environment, employee must prove the actions were pervasive or severe enough to alter the terms, conditions, or privilege of her employment, and (2) the harassment was race-based or stemmed from racial animus. In re Gallo(PDF, 2MB), CSA 63-09, 5 (8/27/10), citing Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986); In re Gallo,(PDF, 1MB) CSB 63-09, 5 (3/17/11).

In evaluating whether an environment is hostile or abusive, the frequency and severity of the conduct may be considered, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee’s work performance. In re Gallo(PDF, 2MB), CSA 63-09, 5 (8/27/10), citing EEOC v. PVNF, LLC, 2007 U.S. App. LEXIS 11276 (10th Cir. 2007).

Since nearly all of the alleged harassment was committed by unidentified co-workers, employee must show that supervisor knew or should have been aware of the harassment and failed to intervene. In re Gallo(PDF, 2MB), CSA 63-09, 5 (8/27/10), citing Myers v. LeFlore County Bd. of Comm’rs, 1998 U.S. App. LEXIS 1491, 6-7 (10th Cir. 1998); Harrison v. Eddy Potash, 112 F.3d 1437, 1444 (10th Cir. 1997).

Infantile pranks and vague gestures or looks do not establish racial harassment. In re Gallo(PDF, 2MB), CSA 63-09, 6 (8/27/10).

Rumors of a sexual relationship between white deputy and African-American deputy did not prove racial harassment where the frequency of their visits together made gossip likely even in the absence of racial disparity. In re Gallo(PDF, 2MB), CSA 63-09, 6 (8/27/10).

Change in lunch schedule which reduced employee's opportunity to have lunch with African-American co-worker did not establish race harassment where employee did not rebut employer's business explanation for the change. In re Gallo(PDF, 2MB), CSA 63-09, 6 (8/27/10).

Fact that supervisor excessively and publicly criticized deputy though she made no more mistakes than anyone else did not prove race harassment. In re Gallo(PDF, 2MB), CSA 63-09, 7 (8/27/10).

There are two types of sexual harassment: quid pro quo—where submission to sexual conduct is made a condition of concrete employment benefits, and hostile work environment—where harassment creates an offensive working environment. In re Carter(PDF, 2MB), CSA 87-09, 6 (2/17/10), citing Hicks v Gates Rubber Co., 833 F. 2d 1406, 1413 (10th Cir. 1987).

A hostile work environment occurs when an employee is subjected to comments of a sexual nature, offensive sexual materials, or unwelcome physical contact as a regular part of the work environment. In re Carter(PDF, 2MB), CSA 87-09, 6 (2/17/10).

Generally, a single incident does not create a hostile work environment unless it is outrageous conduct. In re Carter(PDF, 2MB), CSA 87-09, 7 (2/17/10), citing Hicks v Gates Rubber Co., 833 F. 2d 1406, 1413 (10th Cir. 1987).

Appellant-deputy’s announcement on the jail public address system, inviting inmates to guess the sexual orientation of another deputy was not, by itself, sufficiently outrageous to create a hostile work environment. In re Carter(PDF, 2MB), CSA 87-09, 7 (2/17/10); citing Hicks v Gates Rubber Co., 833 F. 2d 1406, 1413 (10th Cir. 1987).

In order to establish harassment on the basis of religion, appellant must present credible evidence that the workplace was permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create abusive working environment. In re Morgan(PDF, 987KB), CSA 63-08, 16 (4/6/09), citing Meritor Savings Bank FSB v Vinson, 477 U.S. 57, 65 (1986).

Evidence that agency scheduled appellant's work on days he observed the Sabbath did not support claim of harassment based on religion. In re Morgan(PDF, 987KB), CSA 63-08, 16 (4/6/09).

Appellant's evidence, that agency scheduled his work on his Sabbath, alone was insufficient to prove religious harassment claim. In re Morgan,(PDF, 987KB) CSA 63-08, 16 (4/6/09).

By insulting co-workers on the basis of their national origin, age, and sex, appellant injected an element into the workplace that is barred by the personnel rules governing both conduct and discipline. In re Schultz(PDF, 344KB), CSA 70-08, 5 (3/2/09); CSRs 15-102A and 16-60R.

There are two forms of sexual harassment, quid pro quo, and hostile work environment. In re Norman-Curry, CSA 28-07 & 50-08, 10 (2/27/09), citing Hicks v Gates Rubber Co., 833 F. 2d 1406, 1413 (10th Cir. 1987).

A claim of quid pro quo sexual harassment is shown by evidence a supervisor conditioned a tangible employment benefit upon a subordinate's submission to sexual conduct. In re Norman-Curry, CSA 28-07 & 50-08, 10 (2/27/09), citing Hicks v Gates Rubber Co., 833 F. 2d 1406, 1413 (10th Cir. 1987).

Hostile work environment sexual harassment occurs where sexual conduct unreasonably interferes with the employee's work performance or creates an intimidating, hostile, or offensive working environment. This form of sexual harassment must be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment. In re Norman-Curry, CSA 28-07 & 50-08, 11 (2/27/09), citing Faragher v City of Boca Raton, 524 U.S. 775, 805 (1998).

Appellant's assertions - that he was accused of failing to follow procedure and to perform work because his supervisor did not like him for some reason, that he was terminated two days after being involved in an accident, and that other probationary employees were also involved in accidents without consequence - fail to identify the protected status upon which his harassment claim was based. In re Mora(PDF, 70KB), CSA 125-08 (Order 11/28/08).

A claim of hostile work environment requires identification of a protected status and an extreme incident or pattern of behavior that caused an alteration of workplace conditions. In re Macieyovski, CSA 62-06, 6 (12/14/06), citing In re Chappell(PDF, 426KB), CSB 02-02, 34 (3/22/02).

Harassment is proved by evidence that 1) the behavior was pervasive or severe enough to alter the terms, conditions, or privilege of employment, and 2) the behavior was based upon a protected status or stemmed from animus against a protected status. In re Hernandez(PDF, 755KB), CSA 03-06, 10 (5/3/06), citing Bloomer v. UPS, 94 Fed. Appx. 820 (10th Cir. 2004).

A hostile-environment constructive discharge claim must show working conditions so intolerable that a reasonable person would have felt compelled to resign. Unless conditions are beyond ordinary discrimination, a complaining employee is expected to remain on the job while seeking redress. In re Lewis,(PDF, 202KB) CSA 22-06, 3 (Order 5/2/06), citing Pennsylvania State Police v. Suders, 542 U.S. 129 (2004); Wilson v. Board of County Commissioners, 703 P.2d 1257 (Colo.1985); Irving v. Dubuque Packing Co., 689 F.2d 170 (10th Cir. 1982).

CSRs 19-10 B. 1), 15-103 B., and 15-104, when read together, clearly intend to afford an agency notice of the nature of the alleged harassment or discrimination, or retaliation, and a real opportunity to investigate, evaluate, and correct it. In re Lewis,(PDF, 202KB) CSA 22-06, 2 (Order 5/2/06).

Appellant bears the burden to prove actions taken by employer constituted discrimination, i.e., that the actions were imposed because of appellant’s membership in a protected class and that they were “so severe or pervasive as to alter the conditions of a victim’s employment and [create] an abusive working environment.” In re Lewis,(PDF, 202KB) CSA 22-06, 3 (Order 5/2/06), citing Faragher v City of Boca Raton, 524 U.S. 775 (1998); 42 USC 2000e-2(a)(1).

Racial harassment may be proven by two separate theories: tangible employment action harassment or hostile environment harassment. In re Crenshaw,(PDF, 229KB) CSA 18-06, 2 (Order 4/6/06), citing Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2257, 2268 (1998).

Tangible employment action harassment requires proof of a significant change in employment status. In re Crenshaw,(PDF, 229KB) CSA 18-06, 2 (Order 4/6/06), citing Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2257, 2268 (1998); Notice No. 915.002, § IV (B), EEOC Compliance Manual (June 18, 1999).

Harassment complaint must be filed first with supervisor, appointing authority or human resources department before an appeal is filed. In re Vigil,(PDF, 477KB) CSA 110-05, 7-8 (3/3/06).

To establish a prima facie case of hostile work environment harassment, appellant must show, under the totality of the circumstances, that harassment was pervasive or severe enough to alter the terms, conditions, or privilege of employment. Evidence must show that workplace was permeated with discriminatory intimidation, ridicule, and insult sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment. In re Van Dyck(PDF, 110KB), CSA 143-05, 2 (2/16/06), citing Bloomer v. UPS, 94 Fed Appx. 820 (10th Cir. 2004).

Discriminatory harassment is actionable only if it is so severe or pervasive as to alter the conditions of the victim’s employment and create an abusive working environment. Appellant must also show harassment was related to protected status. In re Williams(PDF, 507KB), CSA 65-05, 8 (11/17/05), citing Clark County School District v Breeden, 532 U.S. 268 (2001).

To establish a prima facie case of hostile work environment harassment, a plaintiff must show that, under the totality of the circumstances, 1) the harassment was pervasive or severe enough to alter the terms, conditions, or privilege of employment, and 2) the harassment was based upon a protected status. A showing of pervasiveness requires more than a few isolated incidents of racial enmity. A plaintiff must produce evidence to show that the workplace was permeated with discriminatory intimidation, ridicule, and insult sufficiently severe or pervasive to alter the conditions of his employment and create an abusive working environment. In re Mestas(PDF, 514KB), CSA 37-05, 8 (8/4/05), citing Bloomer v. UPS, 94 Fed. Appx. 820 (10th Cir. 2004); In re Garcia,(PDF, 3MB) CSA 175-04, 7 (7/12/05).

Whether an environment is hostile or abusive can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee’s work performance. In(PDF, 3MB) re Garcia(PDF, 3MB), CSA 175-04, 7 (7/12/05).

Harassment is a theory of discrimination which allows an employee to establish harm without proof of an adverse employment action such as discipline or termination. In re Roberts,(PDF, 2MB) CSA 179-04, 6 (6/29/05).

Harassment is not a basis for discrimination; i.e., it does not substitute as proof of membership in a protected group. In(PDF, 2MB) re Roberts(PDF, 2MB), CSA 179-04, 6 (6/29/05).

Under the Career Service Rules, a claim of harassment is perfected when an employee reports the unwelcome conduct to a supervisor in compliance with 15-103 B. Only the supervisor's disposition of such a report may be appealed pursuant to 19-10f. In re Roberts(PDF, 2MB), CSA 179-04, 6 (6/29/05).

To establish a prima facie case of hostile work environment, appellant must show that under the totality of the circumstances 1) the harassment was pervasive or severe enough to alter the terms, conditions, or privileges of employment, and 2) the harassment was racial or stemmed from an unlawful animus. In re Martinez(PDF, 93KB), CSA 144-04 (Order 6/21/05).

A showing of pervasiveness requires more than a few isolated incidents of racial enmity. An appellant must produce evidence to show the workplace was permeated with discriminatory intimidation, ridicule, and insult sufficiently severe or pervasive to alter the conditions of her employment and create an abusive working environment. In re Martinez,(PDF, 93KB) CSA 144-04 (Order 6/21/05), citing Bloomer v. UPS, 94 Fed. Appx. 820 (10th Cir. 2004).

Jurisdiction over a harassment claim requires a basic statement of the facts tending to make a colorable claim that the action complained of was taken against the employee because of membership in a protected class. In re Yardeny(PDF, 90KB), CSA 26-05 (6/2/05), citing In re Hull(PDF, 232KB), CSA 139-02, 2 (Order 9/18/02); In re Douglas,(PDF, 1MB) CSB 317-01 (3/22/02); In re Montabon,(PDF, 1004KB) CSB 21-02, 7 (11/8/02).

Harassment is the creation of a hostile work environment. Whether an environment is hostile or abusive can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. The effect on the employee's psychological well-being is relevant to determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other relevant factor, may be taken into account, no single factor is required. In re(PDF, 5MB) Hurdelbrink(PDF, 5MB),(PDF, 5MB) CSA 109-04 & 119-04, 6 (1/5/05), citing Pa. State Police v. Suders, 124 S. Ct. 2342, 2352 (U.S. 2004); Mitchell v. City & County of Denver, 2004 U.S. App., LEXIS 21188 (10th Cir. 2004); Harris v. Forklift Systems, 510 U.S. 17 (U.S. 1993).

HARASSMENT - FOUND

Sexual harassment was proven where female manager chose to trick a male subordinate into kissing her on the lips because she considered him like a little brother. In re Novitch(PDF, 1MB), CSB 49-15, 3 (9/15/16).

Kiss was unwanted touching under this rule where female manager tricked male subordinate into kissing her by moving her head towards him after asking him for a kiss on the cheek. In re Novitch(PDF, 1MB), CSB 49-15, 3 (9/15/16).

Harassing conduct in which a person’s gender played a part is sufficient to prove sexual harassment under this rule. In re Novitch(PDF, 1MB), CSB 49-15, 2 (9/15/16).

A manager’s coercing of a subordinate to kiss her on the mouth in the workplace is so clearly inappropriate that, absent an intimate relationship or invitation by the subordinate, a res ipsa loquitor finding of misconduct is not unreasonable. In re Novitch(PDF, 1MB), CSB 49-15, n.9 (9/15/16).

NOT FOUND

Appellant who presented no evidence that supervisor conditioned an employment benefit upon sexual favors or conduct failed to establish claim of quid pro quo sexual harassment. In re Norman-Curry, CSA 28-07 & 50-08, 10 (2/27/09).

Appellant failed to establish sexual harassment claim where: appellant's assertions as to physical contact were inconsistent; none of the witnesses observed the alleged offensive contact that was the basis for the claim; the appellant failed to mention the offensive contact to the investigator of the incident; and the alleged victim of similar conduct recanted her claim. In re Norman-Curry, CSA 28-07 & 50-08, 12 (2/27/09).

Appellant failed to establish racial and sexual harassment claims based upon allegation that supervisor targeted minorities about their hair where she offered no evidence regarding the frequency or severity of the conduct, or whether it was physically threatening or humiliating or a mere offensive utterance, or whether it unreasonably interfered with deputies' work performance. In re Norman-Curry, CSA 28-07 & 50-08, 12 (2/27/09), citing EEOC v PVNF, L.L.C., 2007 U.S. App. LEXIS 11276 (10th Cir. 2007).

Appellant failed to establish claim of harassment based on his failure to state his protected status or an extreme incident or pattern of behavior constituting an alteration of workplace conditions. In re Macieyovski, CSA 62-06, 6 (12/14/06).

Appellant who presented no testimony that her working conditions were intolerable based upon any protected status failed to establish claim of harassment. In re Foley(PDF, 921KB), CSA 19-06, 14 (11/10/06).

Harassment claim was not established where appellant presented no evidence that the “needs improvement” PEPR was caused by her membership in any class protected from discrimination or harassment under CSR 15-100. In re Padilla(PDF, 726KB), CSA 25-06, 12 (9/13/06).

Evidence that supervisor required appellant to type reports due to poor handwriting and that supervisor frequently communicated others’ complaints about him to appellant did not establish that appellant was harassed by supervisor on the basis of national origin or age. In re Hernandez,(PDF, 755KB) CSA 03-06, 11 (5/3/06), citing Shorter v. ICG Holdings, Inc., 188 F.3d 1204, 1207 (10th Cir. 1999); Bloomer v. UPS, 94 Fed. Appx. 820, 825 (10th Cir. 2004).

Allegations that new work and office assignments and denial of attendance at a conference constituted harassment were not supported by a showing that they were imposed because of appellant’s protected status, or that they were so severe or pervasive as to alter the conditions of employment and create an abusive work environment. In re Lewis,(PDF, 202KB) CSA 22-06, 3 (Order 5/2/06), citing Faragher v. City of Boca Raton, 524 U.S. 775 (1998).

Retirement was voluntary rather than proof of constructive discharge caused by harassment when appellant failed to show that his working conditions were objectively unendurable as viewed by a reasonable person. In re Lewis,(PDF, 202KB) CSA 22-06, 3 (Order 5/2/06).

Three unpleasant encounters with a supervisor over the course of three years do not establish a pervasive pattern of actions creating a hostile or offensive work atmosphere. In re Crenshaw(PDF, 229KB), CSA 18-06, 3 (Order 4/6/06).

Conduct that was not frequent, severe, or physically threatening, and that did not unreasonably interfere with work performance does not establish the existence of a hostile work environment. In re Crenshaw,(PDF, 229KB) CSA 18-06, 3 (Order 4/6/06), citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).

Supervisor’s angry orders do not constitute a tangible employment action needed to prove racial harassment. In re Crenshaw(PDF, 229KB), CSA 18-06, 2 (Order 4/6/06).

Evidence does not show supervisor’s order for training and performance notes raised claim of hostile work environment on the basis of sex. In re Johnson,(PDF, 268KB) CSA 135-05, 4 (Order 3/10/06).

Harassment claim based on co-worker incident that was immediately corrected by supervisor, among other incidents, was not established when appellant failed to file an internal complaint before filing an appeal, and the evidence showed that other employees were similarly affected by the remaining incidents. In re Schultz(PDF, 155KB), CSA 130-05, 3 (2/27/06).

Appellant’s admission that his supervisor immediately dealt with his complaint of harassment by his co-workers negated his claim under § 15-100 et seq. In re Schultz,(PDF, 155KB) CSA 130-05, 3 (2/27/06).

Where appellant failed to notify agency of his harassment grievance, motion to dismiss was properly granted. In re Mallard,(PDF, 195KB) CSA 129-05, 3 (2/23/06) (decided under former CSR 9-61).

When appeal is of a grievance, appellant may not raise harassment for the first time on appeal. Grievance must have given agency meaningful notice and an opportunity to respond to the allegations before the issue is ripe for appeal. In re Mallard,(PDF, 195KB) CSA 129-05, 3 (2/23/06), citing In re Douglas,(PDF, 1MB) CSB 317-01, 12 (3/22/02).

Complaints that supervisor was unfair, told appellant she was not doing her job, embarrassed her in front of co-workers, and told her she would “suffer the consequences” if she called someone failed to prove actions that were pervasive or severe enough to alter the terms, conditions, or privilege of the appellant’s employment. In re Van Dyck(PDF, 110KB), CSA 143-05 (Order 2/16/06).

Harassment appeal is premature when appellant did not file a formal harassment complaint before filing appeal. In re Schultz(PDF, 92KB), 78-05 (Order 8/15/05).

No work environment harassment established where appellant’s only evidence was that a prior supervisor asked her not to speak Spanish on some unspecified date. In(PDF, 3MB) re Garcia(PDF, 3MB), CSA 175-04, 7 (7/12/05).

Hearing officer has no jurisdiction over harassment claim when supervisor about whom complaint was made no longer works for agency. In re Ligouri,(PDF, 73KB) CSA 76-04 & 108-04 (Order 6/29/05).

Appellant’s allegations of harassment including “telling me to go back to my hole;” “embarrassed me in front of coworkers;” “gave my [computer] replacement to another employee;” “excluded me from the official introduction to our new Manager of Safety;” and that “(an employee’s) demeanor was not kind toward me” are insufficient to establish the workplace was permeated with discriminatory intimidation, ridicule, and insult sufficient to alter the conditions of her employment, prerequisite to a finding of harassment. In re Martinez(PDF, 93KB), CSA 144-04 (Order 6/21/05).

Where appellant’s only evidence of harassment was his testimony that another employee called him an offensive name, no harassment was found. In re Owoeye,(PDF, 3MB) CSA 11-05, 7 (6/10/05).

Appellant’s statement that another employee took “harassing and hostile actions” fails to establish how agency workspace assignment created hostile work environment. In re Herzog,(PDF, 168KB) CSA 23-05 (Order 5/26/05).

Where no evidence linked appellant’s age or political affiliation to a series of workplace events that frustrated appellant, appellant failed to prove a hostile work environment. In re Hurdelbrink(PDF, 5MB), CSA 109-04 & 119-04, 7 (1/5/05).

29. Harmless Error

Harmless Error

Hearing Officer committed harmless error by imputing “significant” risk into DO 5013.1E(4)(B) where the DO does not contain that qualifier, but prisoner posed no risk of offense by violent inmate or offense by an unruly inmate as required by this DO. In re Rocha,(PDF, 2MB) CSB 19-16A, 3 (7/6/17).

Admission of inmate witness written statements was at most harmless error because the rules of evidence are not strictly applied in administrative hearings, and the finding was also supported by the testimony of other witnesses. In re Kemp(PDF, 2MB), CSB 19-13A, 4-5 (7/28/14).

Although the better practice would have been for Hearing Officer to advise the parties that he was taking administrative notice under CRE 201(e) that furlough days did not typically fall on a Tuesday, error was harmless in that furlough day was not the only factor supporting determination that appellant was not credible. In re Redacted, CSB 57-11A, n.2 (12/20/12).

Hearing Officer's citation to scientific or academic treatises not admitted into evidence was harmless error where it was only a small piece of the evidentiary foundation supporting the extensive factual and legal analysis and the ultimate conclusion. In re Ray(PDF, 271KB), CSB 57-06, 2 (5/20/08).

30. Issues (on appeal)

Alleging misconduct in the absence of an underlying violation is an impermissible use of the disciplinary process under the CSRs. Such a practice fails to notify an employee what conduct the Agency considered in assessing discipline, thus depriving the employee of the opportunity to defend against the allegation. In re Leslie(PDF, 8MB), CSA 10-11, 20 (12/5/11).

A separate penalty hearing is appropriate to complete a de novo determination on the appropriateness of the agency’s termination of appellant, where it established that he violated three out of ten rules asserted in the disciplinary letter, inexplicably gave substantially different penalties to the participants in the incident, and failed to read twenty witness statements asserting that appellant was not the aggressor in the incident, and he had no previous disciplinary history. In re Cotton, CSA 104-09, 13 (10/18/10).

CSR 19-10 [now 19-20] lists the types of matters that may be appealed and is jurisdictional. If the action appealed is not one of the subjects listed within the CSR, or the remedy sought is not one that the Hearing Officer has authority to grant, the Hearing Officer has no authority to consider the appeal. In re Valdez(PDF, 66KB), CSA 96-06 (Order 11/16/06).

The 2006 amendments to the CSRs make it clear that an applicant may no longer appeal a disqualification decision made by the personnel director or his designee. In re Connors,(PDF, 194KB) CSA 35-06, 3 (Order 8/9/06).

CSR 19-10 A [now 19-20] provides no basis for a direct appeal of the amount of accrued vacation leave and compensatory time determined by the city auditor. In re Lovin(PDF, 87KB), CSA 27-06 (Order 5/18/06); CSR 14-51.

A direct appeal under CSR 19-10 [now 19-20] may be taken to challenge the acts of an appointing authority only. In re Lovin,(PDF, 87KB) CSA 27-06 (Order 5/18/06).

While an individual may grieve any performance rating, only those matters that negatively affect pay, benefits, or status may be appealed if a grievance is denied. In re Stenke(PDF, 81KB), CSA 14-06, 1 (Order 3/15/06); CSRs 13-50 A and 18-40 E.4.

Challenge to legality of background check question is not properly before Hearing Officer on appeal when appellant answered the question without objection, and did not assert a discrimination claim in the appeal. In re Mitchell,(PDF, 453KB) CSA 05-05, 8 (6/27/05).

31. Jurisdiction (See also §§ 19-10, 19-43)

See also 19-10 and 19-43

IN GENERAL

Civilian Review Administrator is authorized to issue discipline in DSD appeal. In re Koonce, CSB 34-17A, 6 (6/21/18), citing In re Gale, CSB 02-15A (7/21/16).

In disciplinary actions under CSR 20, Hearing Officer’s review is not de novo. In re Cole(PDF, 259KB), CSA 04-18, 2 (4/6/18).

Civilian Review Administrator is lawfully empowered to assess discipline of DSD deputy. In re Rocha,(PDF, 2MB) CSB 19-16A, 5 (7/6/17), citing In re Gale, CSB 02-15A (7/21/16); see also In re Steckman(PDF, 866KB), CSB 30-15A, 4 (1/19/17).

A petition for review which fails to invoke any of the five grounds for review under CSR 19-61 [now 21-21] 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, 2 (12/20/12), citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

Jurisdiction under CSR 19-61B [now 21-21B] requires more than a conclusory statement that some unidentified rule was interpreted incorrectly. In re Napoli(PDF, 2MB), CSB 74-10A, 3 (8/18/11).

No violation under CSR 19-61C (policy setting precedent) [now 21-21C], where Appellant’s argument 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(PDF, 2MB), CSB 74-10A, 3 (8/18/11).

Under CSR 19-61D [now 21-21D], the CSB may reverse the Hearing Officer’s decision only if it is not supported by the evidence in the record and is clearly erroneous. In re Napoli(PDF, 2MB), CSB 74-10A, 3 (8/18/11).

Although the CSB has jurisdiction to review the sufficiency of the evidence, it 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,(PDF, 2MB) CSB 74-10A, 3-4 (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,(PDF, 2MB) CSB 74-10A, 3 (8/18/11).

Where there is conflicting evidence that may support an alternate conclusion to the Hearing Officer’s decision, the CSB is required to review the decision under a “clearly erroneous” standard. In re Napoli(PDF, 2MB), CSB 74-10A, 4 (8/18/11).

No jurisdiction existed to reinstate appeal where settlement agreement reserved the right to revoke agreement only as it pertained to the Age Discrimination in Employment Act. In re Compton(PDF, 147KB), CSA 71-10 (Order 3/11/11).

Hearing Officer may interpret a settlement agreement as part of the authority “to implement and maintain a fair and efficient process for appeals.” In re Compton(PDF, 147KB), CSA 71-10, 2 (Order 3/31/11), citing CSR 19-30 A [now 19-50].

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 an extension after the deadline. In re Noel, CSA 88-10 (Order 12/28/10).

Appeals to the Career Service Hearing Office, other than for whistleblowing claims, must be filed within 15 days after the date of notice of the action being appealed. In re Webster(PDF, 67KB), 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 misleading an appellant concerning his filing deadline. In re Webster(PDF, 67KB), CSA 78-1 (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(PDF, 67KB), CSA 78-10, 2 (Order 12/7/10).

Sanctions against appellant’s attorney for failure to file client’s appeal timely are not within the jurisdiction of the Career Service Hearing Office. In re Webster(PDF, 67KB), CSA 78-10 (Order 12/7/10).

Only those grounds listed in 19-10A.1. [now 19-20A.1.] are subject to direct appeal, and resignation is not one of them. In re Smith(PDF, 238KB), CSA 14-10, 2 (6/4/10), rev’d on other grounds In re Smith(PDF, 331KB), CSB 14-10A (11/4/10).

If resignation is involuntary, agency improperly dismissed appellant and dismissal must be reversed. In re Smith(PDF, 238KB), CSA 14-10, 5 (6/4/10), rev’d on other grounds In re Smith(PDF, 331KB), CSB 14-10A (11/4/10).

Appellant established jurisdiction by proof of a dispute over whether his resignation was involuntary, having been prompted by emotional distress, and that the agency had at first accepted then rejected his resignation. In re Smith(PDF, 238KB), CSA 14-10, 4-5 (6/4/10), rev’d on other grounds In re Smith(PDF, 331KB), CSB 14-10A (11/4/10).

A separate penalty hearing is appropriate to complete a de novo determination on the appropriateness of the agency’s termination of appellant where it established that he violated only three out of ten rules asserted in the disciplinary letter, inexplicably gave substantially different penalties to the participants in the incident, and failed to read twenty witness statements asserting that appellant was not the aggressor in the incident, and he had no previous disciplinary history. In re Cotton, CSA 104-09, 13 (10/18/10).

Career Service Hearing Office has jurisdiction over layoff appeal of employee with career status. In re Sanders(PDF, 2MB), CSA 62-09, 4 (9/24/10), citing CSR 19-10 A.1.e. [now 19-20A.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 Career Service Hearing Office except on grounds of whistleblower violation. In re Patino(PDF, 155KB), CSA 59-10 (Order 8/20/10).

An employee with Career Service status 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 [now 19-20A.1.a.], and by the City’s Charter, 9.1.1E.(vi); 9.8.2(A). In re Abbey(PDF, 3MB), CSA 99-09, 6 (8/9/10).

Appellant has the burden to establish jurisdiction over the denial of her grievance under CSR 19-20 A.2.b.i. [now 19-20B.1.a.] In re Anderson(PDF, 1MB), 102-09, 3 (7/20/10).

Appellant’s use of wrong form does not automatically divest Career Service Hearing Office of jurisdiction over an appeal. In re Anderson(PDF, 1MB), 102-09, 3 (7/20/10).

Where grievance was proper format for her allegations, appellant’s filing of a complaint instead of a grievance does not divest Career Service Hearing Office of jurisdiction over her appeal, as long as the complaint substantially complied with grievance requirements under CSR 18. In re Anderson(PDF, 1MB), 102-09, 3 (7/20/10).

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 CSR that negatively impacted her pay. In re Anderson(PDF, 1MB), 102-09, 3 (7/20/10).

Career Service Hearing Office has jurisdiction over agency denial of appellant’s grievance which, resulted in an alleged CSR violation and negatively impacted employee’s pay. In re Anderson(PDF, 1MB), 102-09, 3 (7/20/10).

Jurisdiction for a grievance appeal established by agency’s acceptance of a designation from another City agency, to which it had delegated its responsibility to designate FMLA leave, notify the employee of the designation, and “provide other required information about FMLA leave,” which designation the employee grieved. In re Anderson,(PDF, 1MB) 102-09, 3 (7/20/10).

Jurisdiction is created by the CSRs, and cannot be created by any other means, including an outdated appeal form. In re Zacker(PDF, 318KB), 44-10 (Order 7/15/10).

Pro se appellants should not be held to exacting pleading standards, and Hearing Officers must determine their legal causes of action. In re Moore(PDF, 180KB), CSA 103-09 & 21-10, 3 (Order 5/26/10), citing In re Felix(PDF, 87KB), CSA 82-07 (Order 2/14/08).

Appeal of discipline and whistleblower claim filed more than 15 days after discipline is untimely where appellant failed to allege a nominal basis for her claim under whistleblower ordinance. In re Moore(PDF, 180KB), CSA 103-09 & 21-10, 2-3 (Order 5/26/10).

CSRs do not empower Hearing Officer to stay operation of a disciplinary suspension prior to hearing. In re James(PDF, 52KB), CSA 33-10 (Order 5/18/10).

The jurisdiction of the Career Service 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 CSRs. In re Koehler, CSA 113-09, 2 (Order 1/27/10), citing In re Stone, CSA 70-07 (Order 11/20/07); In re Diaz(PDF, 160KB), CSB 72-06A (9/20/07).

The Career Service Hearing Office does not have subject matter jurisdiction over a collective bargaining agreement. In re Paz(PDF, 510KB), CSB 07-09A, 2 (1/21/10), citing In re Espinoza(PDF, 142KB), CSB 30-05A (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 CSRs, not the collective bargaining agreement. In re Paz(PDF, 510KB), CSB 07-09A, 2 (1/21/10).

When appellant filed the appeal of his suspension one day after the 15-day filing deadline, the Hearing Officer lacks jurisdiction to hear the appeal. In re Sundrup(PDF, 42KB), CSA 112-09 (Order 1/13/10), citing In re Delgado(PDF, 77KB), CSA 182-04 (Order 3/9/05); Widener v. District Court, 615 P.2d 33 (Colo. 1980).

Where agency withdrew the action giving rise to the appeal, no justiciable issue remains to be heard. In re Muller(PDF, 64KB), CSA 48-08 (Order 4/15/09).

The Career Service Hearing Office lacks jurisdiction to proceed on an appeal absent proof the agency took an appealable action within 15 days of the date of the appeal. In re Schultz(PDF, 297KB), CSA 21-09, 2 (Order 4/13/09).

The CSRs provide the sole jurisdictional basis for appeals to be heard by Hearing Officers. In re Morgan(PDF, 987KB), 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(PDF, 987KB), 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 CSRs. In re Morgan,(PDF, 987KB) CSA 63-08, 2 (4/6/09), citing City Charter, 9.1.1.E.(vi), 9.8.2.(A); CSR 19-10 A.1.a. [now 19-20A.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(PDF, 987KB), CSA 63-08, 2 (4/6/09).

The Career Service Hearing Office has only such jurisdiction as is conferred by the City Charter and under the CSRs. In re Black,(PDF, 58KB) 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(PDF, 58KB), CSA 16-09 (Order 3/12/09).

Where appeal fails to identify Career Service Hearing Office jurisdiction over the subject matter of the claim, it may not consider the merits of the claim. In re Black(PDF, 58KB), 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,(PDF, 58KB) CSA 16-09 (Order 3/12/09).

Written reprimands may not be appealed. In re Black(PDF, 58KB), 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 & Lewis,(PDF, 245KB) CSA 08-09 & 09-09 (Order 3/11/09), citing City of Boulder v. Public Service Company of Colorado, 996 P.2d 198 (Colo.App. 1999).

Hearing Officer’s jurisdiction is limited to affirming, reversing, or modifying actions which give rise to an appeal. In re Muller(PDF, 90KB), CSB 48-08A, 2 (3/10/09); CSR 19-55 [now 19-58].

Hearing Officers are without jurisdiction to rule on the constitutionality of the CSRs. In re Sawyer & Sproul(PDF, 1MB), CSA 33-08 & 34-08, 17 (1/27/09), citing In re Ray(PDF, 320KB), 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 CSB’s reversal of a Hearing Officer’s decision is a final determination, absent an appeal to the district court pursuant to CRCP 106. In re Sample(PDF, 65KB), CSA 55-08, 2 (Order 1/7/09).

When a CSR grants the appointing authority 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.,(PDF, 198KB) CSA 78-08 to 124-08, 3 (Order 1/7/09).

Appellants’ claim for pay adjustment under 9-50E is moot, where the agency granted them the remedy they requested. In re Anderson et al.,(PDF, 198KB) CSA 78-08 to 124-08, 3 (Order 1/7/09).

Where appellant failed to challenge CSB’s reinstatement of earlier termination action in district court, appeal of his later termination is moot. In re Sample(PDF, 65KB), CSA 55-08, 2 (Order 1/7/09).

Where the agency dismissed appellant for job abandonment and he later resigned, he must first prove his resignation was involuntary, and only then does the burden shift to the agency to prove it properly dismissed him for job abandonment. In re Qualls(PDF, 309KB), 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 under the CSR not sought by the appellant would afford relief, the Hearing Officer may not dismiss the appeal for lack of jurisdiction but 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 lacks 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,(PDF, 87KB) CSA 82-07 (Order 2/14/08).

Where appellant did not allege any exception listed in 19-10 A.2.b. [now 19-20A], 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, 2-3 (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(PDF, 377KB), CSA 42-07, 6 (7/15/08), citing In re Ray(PDF, 271KB), CSB 57-06A (8/14/07).

Hearing Officer’s authority to award back pay derives from CSR 19-55 [now 19-58], which requires a decision affirming, modifying, or reversing the agency action challenged by the appeal. In re Maes(PDF, 683KB), CSA 180-03, 5 (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,(PDF, 683KB) CSA 180-03, 6 (6/20/08).

Career Service 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,(PDF, 683KB) 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 19-61B [now 21-21B], erroneous rules interpretation where such evidence was a small part of the record supporting his findings. In re Ray, CSB 57-06A, 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(PDF, 137KB), CSB 91-07, 2 (4/9/08).

When jurisdiction turns on resolving factual issues, the Hearing Officer must determine those facts before the CSB will intervene on an interlocutory appeal. In re Brooks(PDF, 137KB), CSB 91-07A, 2 (4/9/08).

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

Hearing Officer is without jurisdiction to grant a change in supervisor. In re Felix(PDF, 87KB), CSA 82-07, 2 (Order 2/14/08).

Hearing Officer has no jurisdiction over breach of contract and pain and suffering claims. In re Felix,(PDF, 87KB) CSA 82-07 (Order 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 60-07A (2/1/08).

Hearing Officer has no authority to require changing the supervisor’s comments within a PEPR, even if the Hearing Officer had authority to review Appellant’s PEPR rating. In re Hoffman(PDF, 7KB), 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(PDF, 3MB), 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 CSRs 4 [now 3] and 14. In re Hurdelbrink(PDF, 5MB), CSA 109-04 & 119-04, 4 (1/5/05).

MISCELLANEOUS CLAIMS

Transfer was not an employment action that could be appealed directly to the Career Service Hearing Office under 19-10 A.1. [now 19-20]. In re Gallo(PDF, 1MB), CSB 63-09A, 2-3 (3/17/11).

MOTION TO DISMISS

Dismissal is inappropriate where basis of jurisdiction is apparent from a fair reading of the appeal documents. In re Anderson(PDF, 76KB), CSA 102-09 (Order 1/8/10), citing In re Bane(PDF, 98KB), CSA 82-09, 2 (Order 10/26/09).

Motion to dismiss that alleges facts beyond those contained in the appeal is treated as motion for summary judgment. In re Anderson(PDF, 76KB), CSA 102-09, 3 (Order 1/8/10), citing CRCP Rules 12(c) and 56.

A motion to dismiss treated as motion for summary judgment presents the issue of whether there are genuine issues of material fact that require a hearing. In re Anderson(PDF, 76KB), CSA 102-09 (Order 1/8/10).

Where appellants state a claim for relief under the jurisdictional CSRs, appeal is not subject to dismissal for lack of subject matter jurisdiction. In re Vasquez & Lewis(PDF, 216KB), CSA 08-09 & 09-09, 2-3 (5/20/09).

Though no aspect of appellants’ PEP rating is appealable, where appellants do not challenge the PEP but rather allege a CSR violation that has negatively impacted their pay, appellants have stated a claim for relief under the jurisdictional CSRs. In re Vasquez & Lewis(PDF, 216KB), CSA 08-09 & 09-09, 2-3 (5/20/09), citing CSRs 13-50 [now 13-39], 19-10 A.2.b.i. [now 19-20B.1.a.]

Appellants' claim that agency's failure to grant their requested pay increases violated 13-60 B and negatively impacted their pay was sufficient to acquire subject matter jurisdiction. In re Vasquez & Lewis,(PDF, 216KB) 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 & Lewis(PDF, 216KB), CSA 08-09 & 09-09 (5/20/09).

In response to a motion to dismiss, appellant must demonstrate that the Career Service Hearing Office has jurisdiction over the subject matter of the claim. In re Vasquez & Lewis(PDF, 245KB), 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 CSR 19. In re Vasquez & Lewis,(PDF, 245KB) CSA 08-09 & 09-09 (Order 3/11/09).

Appellants claim that agency interpretation of “merit date” violated 13-10F [now 13-34] and negatively affected their pay was sufficient to establish subject matter jurisdiction under CSR 19. In re Vasquez & Lewis,(PDF, 245KB) 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 which resulted in claim preclusion. In re Cho, CSA 01-09, 3 (Order 1/21/09).

Dismissal as condition of agreement to mediate must be supported by a finding that agreement to dismiss was 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 offer to mediate conditioned on dismissal of his appeal, there could be no finding that dismissal 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 did not retain jurisdiction over the grievance after the agency responded to it. In re Luft(PDF, 121KB), CSB 43-08A (12/12/08).

When appellant clarified her intent to appeal suspension, appeal was not subject to dismissal based on her statement on the appeal form challenging her transfer and past denials of pay. In re Williams(PDF, 65KB), CSA 53-08 (Order 8/18/08).

A Hearing Officer is not bound by appellant’s statement of remedies on the appeal form, but must determine from the appeal documents whether there is an appropriate remedy within the jurisdiction provided by the CSRs if the agency action is overturned. In re Williams(PDF, 65KB), CSA 53-08 (Order 8/18/08),citing In re Muller, CSA 48-08 (7/24/08).

When matters outside the pleadings are presented to the Career Service 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 a motion for summary judgment under CRCP 56. In re Steward(PDF, 198KB), CSA 18-08, 2 (Order 4/11/08), citing CRCP 12(b).

In resolving a motion for summary judgment, the factual allegations in an appeal shall be taken as true without assessment of credibility. In re Steward(PDF, 198KB), CSA 18-08, 2 (Order 4/11/08), citing Norton v. Leadville Corp., 610 P.2d 1348, 1350 (1979); Discovery Land & Dev. Co. v. Colorado-Aspen Dev. Corp., 577 P.2d 1101, 1105 (Colo. App. 1977).

32. Layoff (See also Rule 14 beginning at § 14-40)

See also 14-40 et. seq

In a lay-off, appellant retains the burden of persuasion, by a preponderance of the evidence, to prove her lay-off was arbitrary, capricious or in violation of the CSRs. In re Tenorio(PDF, 101KB), 34-16, 3 (8/8/18), citing In re Sanders, CSA 62-09 (9/24/2010).

A party proves a fact by a preponderance of the evidence when the party proves that the fact is more probable than not. In re Tenorio(PDF, 101KB), 34-16, 6 (8/8/18), citing People v. Ortiz, 381 P.3d 410, 415 (Colo. 2016).

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).

An employee who timely appeals the Agency’s selection of her to be laid off but then leaves the employment before the lay-off date does not lose the ability to litigate her right to a transfer appointment, which vested upon her selection to be laid off. In re Tenorio(PDF, 101KB), 34-16, 6-7 (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).

In mixed burden appeal, agency retains burden of persuasion regarding discipline while appellant retains burden of persuasion regarding whistleblower claim. In re Schofield(PDF, 343KB), CSA 08-17, 3-4 (10/9/17) (decided under former CSR 19).

Hearing Officer’s decision, reversing the agency’s layoff of appellant, reinstated her to the position where her transferred job responsibilities now exist. In re Hamilton, CSB 100-09A & 107-09A, 2 (Order 11/9/10).

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

An employee challenging a layoff must overcome the “presumption of regularity afforded an agency in fulfilling its statutory mandate” with a showing that it was arbitrary, capricious, or contrary to rule or law. In re Blehm(PDF, 2MB), CSA 47-10, 6 (10/29/10), citing Motor Vehicle Mfrs. Ass'n, 463 US at 44, fn.9; In re Vasquez & Lewis(PDF, 216KB), CSA 08-09 & 09-09, 4 (5/20/09); Brennan v. Department of Local Affairs, 786 P.2d 426 (Colo.App. 1989); Velasquez v. Dept. of Higher Education, 93 P.3d 540 (Colo.App. 2003).

An agency layoff decision is arbitrary, capricious, or contrary to rule or law if it 1) fails to use reasonable diligence to procure authorized evidence; 2) fails to give fair consideration to that evidence; or 3) exercises its discretion in an unreasonable manner. In re Blehm(PDF, 2MB), 47-10, 6 (10/29/10), citing Maggard v. Department of Human Services, 226 P.3d 1209 (Colo.App. 2009).

Agency layoff of appellant was not arbitrary, capricious, or contrary to rule or law where the supervisors established that they based the layoff recommendation on an analysis of the duties of the position, including that the time required to complete its duties constituted 15% of a full-time position and that its duties could be performed by employees now on staff, resulting in the savings of a full-time salary with no loss of efficiency, and appellant failed to show that this analysis of her duties was colored in any respect by subjectivity, dislike, or personal bias. In re Blehm(PDF, 2MB), 47-10, 7 (10/29/10).

Appellant failed to establish her layoff was arbitrary and capricious where she asserted the agency reallocated her duties to its directors, who performed them at a higher hourly rate, however, she provided no evidence the directors given her duties could not complete their own duties, nor did she present evidence comparing either the amount of time or the personnel costs consumed by the duties, before and after the layoff. In re Blehm(PDF, 2MB), CSA 47-10, 7-8 (10/29/10).

Agency’s decision to layoff appellant and reassign some of her duties was not arbitrary, capricious, or contrary to rule or law, where the methodology employed by the agency in making its decision was based on factors a reasonable administrator would use in arriving at a business decision: a detailed analysis of the tasks performed, the time needed to complete them, and whether they could be done in a more cost-effective manner by reassignment. In re Blehm(PDF, 2MB), CSA 47-10, 8 (10/29/10).

The Career Service layoff rules do not require an agency to transfer duties from other employees to the employee to be laid off in order to avoid the layoff. In re Blehm(PDF, 2MB), CSA 47-10, 8 (10/29/10).

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

Erroneous data used to rank proficiency 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’s failure to carefully calculate performance numbers and derive accurate ranking from those numbers 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 & Pettway(PDF, 3MB), CSA 73-09 & 75-09, 14 (3/11/10).

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

Employee appealing non-disciplinary layoff has the burden of proof because a discharge for job abolishment does not implicate state constitutional protections. In re Frazier,(PDF, 143KB) CSA 24-08 (Order 4/30/08), citing Velasquez v. Dept. of Higher Education, 93 P.3d 540, 543 (Colo.App. 2003); In re Golden,(PDF, 665KB) CSA 153-03, 2 (1/12/04).

Appellant bears the burden of proof for layoff and discrimination claims in a layoff appeal. In re Frazier,(PDF, 143KB) CSA 24-08, 2 (Order 4/30/08), citing In re Roberts(PDF, 2MB), CSA 179-04, 5 (6/29/05); McDonnell Douglas v. Green, 411 U.S. 792 (1973).

In the appeal of a non-disciplinary layoff, appellant must establish by preponderance of the evidence that the agency’s abolishing appellant’s position was arbitrary, capricious, and without rational basis or foundation. In re Frazier,(PDF, 143KB) CSA 24-08, 1-2 (Order 4/30/08), citing In re Nguyen,(PDF, 1MB) CSA 169-03 (2/18/04).

In an appeal challenging a layoff action, an employee has the burden to prove the agency action was arbitrary, capricious, or contrary to rule or law. In re Foley,(PDF, 921KB) CSA 19-06, 8 (11/10/06), citing In re Romberger,(PDF, 5MB) CSA 89-04, 5 (3/2/05); Velasquez v. Dept. of Higher Education, 93 P.3d 540 (Colo.App. 2003).

Appellant has the burden of proof in an administrative lay-off appeal. In re Jackson(PDF, 3MB), CSA 103-04, 4 (6/13/05), citing Velasquez v. Dept. of Higher Education, 93 P.3d 540 (Colo.App. 2003); In re Vialpando(PDF, 456KB), CSA 100-03 (3/31/04).

Appellant has the burden to prove that an action in lieu of layoff was arbitrary, capricious, or contrary to rule or law. In re(PDF, 5MB) 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).

The subjects of job abolishment, demotional appointments and lay-off are properly before the hearings officer pursuant to the CSR 4 [now 3] and 14. In re Hurdelbrink(PDF, 5MB), CSA 109-04 & 119-04, 4 (1/5/05).

33. Leave

See also Rule 11

Before sending an employee for a fitness for duty examination, a supervisor must reasonably believe the employee cannot perform his or her duties due to mental or physical issues or disabilities. In re Martinez, CSB 09-12A, 3 (8/15/13).

Subject to a supervisor’s approval and appropriate staffing, the CSRs permit employees who are required to work on City holidays to take paid leave on another day during the same week as the holiday. In re Leslie(PDF, 8MB), CSA 10-11, 16 (12/5/11).

Appellant was within her rights to request one hour of holiday leave at the end of a 10-hour shift during the same week as a City holiday, since the CSRs permit employees who must work on City holidays, to take paid leave on another day during the same week. In re Leslie(PDF, 8MB), CSA 10-11, 16 (12/5/11).

Intermittent FMLA leave is used in separate blocks of time for a single qualifying reason. In re Leslie(PDF, 8MB), CSA 10-11, 17 (12/5/11), citing 29 CFR 825.202(a).

Intermittent FMLA leave may be used to provide care for a covered family member, whether for planned or unanticipated treatment of a serious health condition. In re Leslie(PDF, 8MB), CSA 10-11, 17 (12/5/11), citing 29 CFR 825.202(b).

It is improper for an agency to place an absolute limit on an employee’s allowed instances of intermittent FMLA leave based on a physician’s estimate of the number and duration of FMLA-qualifying absences per month listed on a medical certification form. In re Leslie(PDF, 8MB), CSA 10-11, 16-17 (12/5/11).

Intermittent FMLA leave begins at the first absence caused by the qualifying condition and extends to every other absence caused by that condition during the same twelve-month period. In re Leslie(PDF, 8MB), CSA 10-11, 17 (12/5/11).

Intermittent FMLA leave is a single twelve-month period of leave containing a series of absences. In re Leslie(PDF, 8MB), CSA 10-11, 18 (12/5/11).

An employee may take intermittent FMLA leave consistent with the physician’s estimate of care that will be required, up to the twelve-week limit within a twelve-month period. In re Leslie(PDF, 8MB), CSA 10-11, 17 (12/5/11).

An agency may require an employee to provide re-certification of (1) the estimated duration of the medical condition; or (2) circumstances of the leave, when the employee requests an extension of leave, when there is a significant change in circumstances, or when new information raises questions about the validity of the certification. In re Leslie(PDF, 8MB), CSA 10-11, 17-18 (12/5/11), citing 29 CFR 825.308(b)(2), (c)(1)-(3), (e).

An employer may satisfy any doubt regarding the validity of an employee’s FMLA absences by providing the health care provider the employee’s absence pattern and asking if the need for leave is consistent with it. In re Leslie(PDF, 8MB), CSA 10-11, 18 (12/5/11), citing 29 CFR 825.308(e).

An employer has the responsibility to determine when FMLA leave is appropriate, to inquire as to specific facts to make that determination, and to inform the employee of his or her entitlements. In re Leslie(PDF, 8MB), CSA 10-11, 17 (12/5/11), citing Xin Liu v. Amway Corp., 347 F.3d 1125, 1134 (9th Cir. 2003).

It is improper for an agency to designate an employee’s absence as FMLA if the reason for the absence was not FMLA-related. In re Leslie(PDF, 8MB), CSA 10-11, 16 (12/5/11), citing Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 96 (2002).

In order to prove an employee violated agency’s attendance policy, and therefore abused leave in violation of CSR 16-60 K. [now 16-28M], the agency must prove (1) it established an attendance standard; (2) it clearly communicated that standard to the employee; and (3), the employee failed to meet that standard. In re Rock, CSA 09-10, 5 (10/5/10), citing In re Mounjim(PDF, 1MB), CSA 87-07 (7/10/08), aff’d In re Mounjim(PDF, 495KB), CSB 87-07A (1/8/09).

Although a department or agency has the right to control the attendance of its employees, agency policies that create an irreconcilable conflict with the CSRs are unenforceable. In re Rock, CSA 09-10, 5-6 (10/5/10), citing In re Garcia(PDF, 372KB), CSA 123-05, 5 (2/27/06); In re Espinoza(PDF, 142KB), CSB 30-05 (8/23/06).

Agency discipline of appellant for her use of sick leave in excess of its attendance policy was error where it did not dispute the legitimacy of her reason for using sick leave and she used her available banked leave. In re Rock, CSA 09-10, 6 (10/5/10).

Agency violated the CSRs in disciplining appellant for her use of sick leave, more than seven times in one year, where it did not dispute that she was legitimately ill and she used her available banked leave. In re Rock, CSA 09-10, 6 (10/5/10).

Agency had no responsibility to provide appellant with accurate leave balances, as part of its responsibility to “provide other required information about FMLA leave,” where FMLA does not require an employer to notify an employee that she has or lacks paid leave, and does not create the right to paid leave if none had been earned under the agency’s benefit policies. In re Anderson(PDF, 1MB), CSA 102-09, 4 (7/20/10).

The agency’s benefit policies control the existence of paid leave, not the FMLA, which only permits an eligible employee to choose to use accrued paid leave, provided by the employer and accrued pursuant to established policies of the employer, concurrently with unpaid FMLA leave, provided the employee complies with any additional requirements in an employer’s paid leave policy. In re Anderson,(PDF, 1MB) CSA 102-09, 4 (7/20/10).

Agency did not violate CSR 11-154 [now 12-24C], governing the use of FMLA leave, when it did not inform appellant of her correct leave balances, where neither federal law nor the CSRs require that an employer re-send a designation form every time there is a change in the amount of paid leave. In re Anderson(PDF, 1MB), 102-09, 5 (7/20/10).

Appellant’s detrimental reliance on a draft leave history does not render the Agency’s FMLA designation improper under CSR 11-154 [now 12-24C], where she unreasonably relied on the draft leave history, which she knew was high and was not final, she had access to her own leave balances, and she failed to confirm her leave balance prior to taking extended leave. In re Anderson(PDF, 1MB), CSA 102-09, 5 (7/20/10).

Appellant’s challenge to two hours’ vacation leave to cover shortage on time sheet was dismissed for failure to state a claim where he claimed his sick leave should cover the shortage, but he had none. In re Schultz,(PDF, 155KB) CSA 130-05, 2 (2/27/06).

Appellant’s failure to submit a timely request for FMLA leave to care for her daughter prevents her from later claiming she was entitled to FMLA protection for her absence. In re Edwards(PDF, 444KB), CSA 21-05, 5 (2/22/06).

Appellant’s failure to provide requested supplemental information regarding seriousness of condition, abdominal pain and nausea, and failure to indicate whether request was for intermittent leave, justified agency’s denial of FMLA leave based on incomplete medical certification. In re Edwards(PDF, 444KB), CSA 21-05, 5 (2/22/06).

Appellant’s request for 90 days of leave without pay was not a reasonable accommodation, which the agency may grant for good cause, where the evidence showed appellant was unable to perform his essential work functions for an indefinite time. In re Torres(PDF, 243KB), CSA 97-05, 3 (2/21/06).

Sick leave for Career Service employees is authorized for necessary care and attendance during sickness or death of a member of the employee’s immediate family. In re Espinoza(PDF, 500KB), CSA 30-05, 4 (1/11/06), aff’d In re Espinoza(PDF, 142KB), CSB 30-05A (8/23/06).

In applying departmental rule mandating discipline after a certain number of sick days, undersheriff’s assumption that appellant abused sick leave impermissibly violated her right to take accumulated sick leave. In re Espinoza,(PDF, 500KB) CSA 30-05, 7 (1/11/06), aff’d In re Espinoza(PDF, 142KB), CSB 30-05A (8/23/06) (decided under former CSR 16-51 A.5).

Departmental rule conflicts with sheriff’s collective bargaining agreement and CSRs, which allow employees unpunished use of sick leave as long as the leave is earned and is used for a proper reason. In re Espinoza(PDF, 500KB), CSA 30-05, 9 (1/11/06), affirmed In re Espinoza(PDF, 142KB), CSB 30-05A (8/23/06) (decided under former CSR 16-51 A.5).

The purpose of sick leave is to allow leave for personal or family incapacity due to illness or death in the family. In re Diaz(PDF, 507KB), CSA 45-05, 5 (Order 9/7/05).

Agency is not required to grant administrative leave to appellant who requests it for the purpose of preparing appeal for hearing. In re Herzog(PDF, 70KB), CSA 51-05 (Order 7/5/05).

Parties

CSA is not a necessary party in appellant’s discrimination claim against his agency. In re Macieyovski(PDF, 227KB), CSA 60-04, 3 (7/27/05).

34. Penalty (See also Discipline §16-50)

IN GENERAL

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

Agency termination of supervisor was appropriate where her acquisition of free equipment replacements in violation of its contract with vendor damaged its relationship with vendor, her actions placed a subordinate’s career in jeopardy, and she failed to take any responsibility for her actions. In re Roybal(PDF, 787KB), CSA 60-11, 11 (3/13/12).

Agency termination of appellant was appropriate despite her exemplary past performance where the severity of her violations and failure to acknowledge any wrongdoing did not require it to assess a lesser penalty. In re Roybal(PDF, 787KB), CSA 60-11, 10-11 (3/13/12).

A hearing officer is not to disturb the Agency’s determination of the severity of the discipline unless it is clearly excessive or based substantially on considerations which are not supported by a preponderance of the evidence. In re Weeks(PDF, 245KB), CSB 26-09A (12/23/09), citing In re Vigil(PDF, 477KB), CSA 110-05 (3/3/06), rev’d on other grounds City and County of Denver v. Weeks, 2010CV545 (6/21/10).

In the case of a termination, the deciding official must determine that no lesser discipline would "achieve the desired behavior or performance." In re Morgan(PDF, 987KB), CSA 63-08, 18 (4/6/09); CSR 16-20 [now 16-41].

The agency bears the burden to prove that its imposition of discipline was appropriate under the CSRs, and that the level imposed was within the range that could be issued by a reasonable administrator. In re Morgan(PDF, 987KB), CSA 63-08, 9 (4/6/09).

Agency's prior discipline, when considered as part of the same series of current offenses, impermissibly subjects appellant to double discipline for such prior acts. In re Morgan(PDF, 987KB), CSA 63-08, 18 (4/6/09).

The agency fulfills the corrective purpose of discipline when it tailors the penalty to the nature and circumstances of the misconduct and the employee’s past disciplinary history. In re Rogers(PDF, 433KB), CSA 57-07, 7 (3/18/08).

An employee’s steadfast refusal to acknowledge a need for improvement despite numerous mistakes and an extensive disciplinary history justified dismissal. In re Rogers,(PDF, 433KB) CSA 57-07, 7 (3/18/08), citing In re Diaz,(PDF, 82KB) CSB 72-06A, 3 (5/17/07).

Agency’s termination of a deputy sheriff who continued to deny wrongdoing in the face of strong evidence to the contrary was proper. In re Rogers,(PDF, 433KB) CSA 57-07, 7-8 (3/18/08), citing In re Simpleman(PDF, 636KB), CSA 31-06, 10-11 (10/20/06), aff’d In re Simpleman(PDF, 148KB), CSB 31-06A (8/2/07).

Employee’s failure to correct behavior after previous discipline may be considered in determining the appropriate penalty for later offenses. In re Feltes,(PDF, 483KB) CSA 50-06, 7 (11/24/06).

Hearing officer will not disturb an agency’s disciplinary determination unless it is clearly excessive or based substantially on considerations that are not supported by a preponderance of evidence. In re Delmonico,(PDF, 479KB) CSA 53-06, 8 (10/26/06).

An order requiring remedial training is not a disciplinary action as defined in the CSRs. In re Johnson(PDF, 268KB), CSA 135-05, 3 (Order 3/10/06) (decided under former CSR 16-20).

Discipline must be reasonably related to the seriousness of the offense, and appropriate to correct the situation and achieve the desired change in behavior or performance. In re Diaz,(PDF, 647KB) CSA 92-05, 10 (1/31/06) (decided under former CSR 16-10).

In determining whether the discipline is within the range of reasonable alternatives available to a reasonable, prudent administrator, the hearing officer will not disturb the agency’s determination of the severity of discipline unless it is clearly excessive or based substantially on considerations that are not supported by a preponderance of the evidence. In re Garcia(PDF, 3MB), CSA 175-04, 8 (7/12/05), citing In re Armbruster(PDF, 1MB), CSB 377-01A (3/22/02).

Past discipline that is not reversed on appeal is presumed valid. In re Garcia(PDF, 3MB), CSA 175-04, 8 (7/12/05).

FOUND

A two-day suspension is not excessive where appellant's behavior had not improved after previous suspension for insults, threats, a PIP for negative interactions, recurring attendance issues and repeated corrective measures. In re Williams,(PDF, 377KB) CSA 53-08, 6 (12/19/08).

Forty-five-day suspension of deputy sheriff was sustained for slapping fellow officer hard on the buttocks and dishonesty during investigation where appellant had prior violation for dishonesty, in violation of a core directive of the agency. In re Rogers,(PDF, 433KB) CSA 57-07, 8 (3/18/08).

Agency’s three-day suspension of prosecutor was not excessive where he violated the good order and effectiveness of the agency by knowingly facilitating prosecutor-shopping after warning, and failing to correct an inaccurate statement to his manager. In re Stone(PDF, 742KB),(PDF, 742KB) CSA 70-07, 12 (2/25/08).

Agency’s three-day suspension of contract administrator was necessary to emphasize that communication with management was of vital importance to his job where his plan required him to inform his supervisor of the status of ongoing projects, but he continued to believe his actions were impliedly authorized and that he did not violate the plan despite evidence to the contrary. In re Hill,(PDF, 403KB) CSA 69-07, 7 (1/23/08).

Agency’s termination of recreation supervisor was warranted where he endangered a vulnerable minor employee by drinking alcohol with her in closed recreation center on three occasions, and was dishonest during investigation. In re Rivas,(PDF, 821KB) CSA 49-07, 14 (1/9/08).

Thirty-day suspension of appellant was not excessive for fighting with co-worker, despite lesser discipline for co-worker, when appellant escalated an incident involving teasing into a physical confrontation resulting in injuries to co-worker, but his otherwise clear record, and recommendations from supervisors prevented dismissal. In re Delmonico,(PDF, 479KB) CSA 53-06, 8 (10/26/06).

Termination of deputy sheriff with long history of discipline including ongoing dishonesty, who continued to deny wrongdoing was reasonable under CSRs. In re Simpleman,(PDF, 636KB) CSA 31-06, 10-11 (10/20/06), aff’d In re Simpleman(PDF, 148KB), CSB 31-06A (8/2/07).

Thirty-day suspension was appropriate for deputy sheriff who asked for special treatment based on his position when arrested while off duty at a bowling alley for incident arising from his failure to pay for beer. In re Mergl,(PDF, 504KB) CSA 131-05, 9 (3/13/06) (decided under former CSR 16-10).

Agency did not punish appellant twice for the same absences because of its regulation’s imposition of increasing punishment for each additional unscheduled absence after eight absences in a year. In re Garcia,(PDF, 372KB) CSA 123-05, 6 (2/27/06).

Agency’s five-day suspension of appellant based upon her absences over its average was within the range of penalties that may be applied by a reasonable manager. In re Garcia(PDF, 372KB), CSA 123-05, 6 (2/27/06).

Agency’s five-day suspension of appellant was appropriate for unauthorized absences after it had given her ample notice of the seriousness of her absenteeism in the form of stricter attendance expectations, and previously disciplined her for the same misconduct. In re Edwards,(PDF, 444KB) CSA 21-05, 7-8 (2/22/06).

Two-week suspension was appropriate when previous shorter suspension did not correct similar past behavior and performance deficiencies. In re Diaz,(PDF, 647KB) CSA 92-05, 11 (1/31/06) (decided under former CSR 16-10).

Agency’s three-day suspension of appellant/zookeeper was well within range of reasonable alternatives available to it agency where he allowed dangerous animals into close proximity, one of the most serious violations at the zoo, he failed to acknowledge responsibility for the misconduct, and had been recently disciplined for similar conduct. In re Owoeye(PDF, 3MB), CSA 11-05, 8 (6/10/05).

NOT FOUND

In view of appellant's three minor violations occurring within two days, indicating a pattern, his work record was exemplary, and the agency’s prerogative to set and enforce its work rules, twenty-day suspension was appropriately reduced to five days. In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-08, 21 (12/15/08).

CSB reinstated 90-day suspension where, by showing high school intern pornography on city computer, appellant violated agency internet policy and failed to maintain satisfactory work relationships, his second violation of that rule. In re Strasser(PDF, 251KB), CSB 44-07A, 3 (2/29/08).

35. Petition for Review Protective Order

Petition for Review

Agency appeal of Hearing Officer’s reversal of its dismissal of appellant on several charges and substitution thereof with suspensions is moot, since the Hearing Officer affirmed the agency’s dismissal of him on another charge, and it can only discharge him once. In re Keller(PDF, 246KB), CSB 47-14A, 7 (6/20/19).

Hearing officer’s findings and conclusions that are not clearly erroneous will not be overturned by the

CSB. In re Gerovic(PDF, 116KB), CSB 77-17A, 3 (6/20/19).

Appellant’s claim that the Hearing Officer gave insufficient weight to a witness’s testimony does not render the Officer’s findings and conclusions clearly erroneous. In re Gerovic(PDF, 116KB), CSB 77-17A, 2 (6/20/19).

A Hearing Officer’s decision is clearly erroneous if the record lacked factual support for his findings. In re Gerovic(PDF, 116KB), CSB 77-17A, 2 (6/20/19).

Hearing Officer’s alleged misinterpretation of matrix language regarding aggravated penalties is immaterial where the Hearing Officer did not issue any aggravated penalty. In re Hammernik & Trujillo(PDF, 2MB), CSB 41-17A & 42-17A, 5 (2/7/19).

Hearing Officer adequately considered the agency’s assignment of a probationary deputy to a special management unit, in violation of agency policy, by using it to mitigate the deputy’s 18-day suspension to a Written Reprimand. In re Hammernik & Trujillo(PDF, 2MB), CSB 41-17A & 42-17A, 5 (2/7/19).

Hearing Officer did not err does by not absolving deputies of their use of force violation because it had not trained them on managing inmates who prevented the deputies from closing their cell door flaps. In re Hammernik & Trujillo(PDF, 2MB), CSB 41-17A & 42-17A, 5 (2/7/19).

Hearing officer was not clearly erroneous in finding deputies could have retreated instead of using force on inmate’s arms though cell door flap where deputies used excessive force on a confined inmate which caused injury to inmate, in violation of policy and put agency at financial risk. In re Hammernik & Trujillo(PDF, 2MB), CSB 41-17A & 42-17A, 4 (2/7/19).

To overturn a hearing officer’s decision based on insufficient evidence, the CSB must find that the decision was “clearly erroneous.” In re Colquitt(PDF, 2MB), CSB 34-15A, 4 (1/4/18), citing In re Redacted, CSA 56-11, 3 (12/20/12).

A factual finding is clearly erroneous when it is unsupported by substantial evidence in the record as a whole; that is, where the factual finding has no support in the record. In re Colquitt(PDF, 2MB), CSB 34-15A, 4 (1/4/18), citing In re Purdy, CSB 67-11A (4/4/13).

The CSB overturns factual findings only if they are clearly erroneous and does not re-weigh the evidence or make a de novo determination of the facts found by the hearing officer. In re Colquitt(PDF, 2MB), CSB 34-15A, 4 (1/4/18), citing In re Koonce, CSB 36-13A, 2-3 (10/16/14).

A decision that is based on evidence in the record is not clearly erroneous, and will not be disturbed on review by the CSB. In re Colquitt(PDF, 2MB), CSB 34-15A, 4 (1/4/18), citing In re Redacted, CSB 57-11A, 2 (12/20/12).

Appellant is prohibited from raising a discrimination claim for the first time on appeal. In re Rodriguez(PDF, 2MB), CSB 60-17A, 4 (9/20/2018).

Pursuant to CSR 19-61D [now 21-21D], the Hearing Officer’s decision is not clearly erroneous where the record contains substantial evidence supporting the decision. In re Tamburino(PDF, 120KB),, CSB 40-17A, 2-3 (5/16/19).

The CSB does not assess credibility, re-weigh evidence, or resolve conflicts in the evidence, all of which lie squarely in the province of the Hearing Officer. In re Tamburino(PDF, 120KB),, CSB 40-17A, 3 (5/16/19).

CSR 19-61(D) [now 21-21D] empowers the CSB to overturn a hearing officer’s decision that is not supported by record evidence, i.e. when the factual findings are clearly erroneous. In re Tamburino(PDF, 120KB),, CSB 40-17A, 2 (5/16/19).

Evidence was sufficient to support finding that appellant did not commit deceptive act where eye witness testified two others took bullets from impounded car when appellant was not present, and second witness affirmed the first eye witness. In re Tamburino(PDF, 120KB),, CSB 40-17A, 3 (5/16/19).

Intent of an employee can be inferred from the employee’s actions and from the circumstances. In re Fazio, CSB 14-18A, 4 (4/17/19).

Circumstances that appellant argued were exigent, which had occurred before the misconduct and were for the most part resolved, did not excuse appellant’s misconduct. In re Fazio, CSB 14-18A, 4 (4/17/19).

Mitigation of appellant’s discipline balanced both parties’ failures to abide by the regulations, the agency through its improper assignment of a probationary deputy with the deputy’s failure to make the required rounds in the detention facility. In re Fazio, CSB 14-18A, 4 (4/17/19).

Appellant waived his spoliation argument because he did not raise it before the hearing officer, but he also failed to show the missing evidence was relevant. In re Fazio, CSB 14-18A, 5 (4/17/19).

CSR 20-56(B)(1)(a)’s prohibition on a hearing officer’s substitution of his judgment for that of the Executive Director of Safety does not mean that a hearing officer cannot change the discipline, as it and CSR 20-59 authorize. In re Fazio, CSB 14-18A, 6 (4/17/19).

Hearing officer’s finding that the agency’s penalty was clearly erroneous and not an alternative available to a reasonable and prudent administrator, with support in the record, was not a misinterpretation of CSR 20-56. In re Fazio, CSB 14-18A, 6 (4/17/19).

Hearing Officer properly considered the agency’s failure to follow its own rules in finding its discipline clearly erroneous pursuant to CSR 20-56(B)(1)(c)(ii), and in partly mitigating appellant’s misconduct, who the agency improperly assigned to where he should not have been assigned. In re Fazio, CSB 14-18A, 6-7 (4/17/19).

The agency’s acknowledgment that it believed it was entitled to and justified in violating its own rules with its improper assignment of appellant is distinct from factoring into its determination of discipline the fact that, but for its violation, appellant would not have been in the situation from which his discipline arose. In re Fazio, CSB 14-18A, 8 (4/17/19).

Hearing Officers are not expected to reference every bit of testimony and every exhibit admitted into evidence and explain why each piece of evidence was or was not important and explain why he or she treated the evidence in a particular manner. In re Simons, CSB 71-16A, n.5 (1/18/18).

It is sufficient for purposes of the CSB’s review of a Hearing Officer’s decision that it is supported by record evidence and offers sufficient justification to the parties and the CSB why the Hearing Officer ruled a particular way. In re Simons, CSB 71-16A, n.5 (1/18/18).

Hearing Officer did not commit error in finding inmate credible despite a claimed discrepancy in that testimony where Hearing Officer relied on the testimony of the inmate and other witnesses for that conclusion. In re Simons, CSB 71-16A, 4 (1/18/18).

CSB lacks authority to issue remedies based on equity alone. In re Bohner(PDF, 833KB), CSB 13-17A, n.7 (1/18/18).

Hearing Officer lacks authority to refer any matter to the Department of Labor on behalf of the City. In re Bohner(PDF, 833KB), CSB 13-17A, n.8 (1/18/18).

Hearing Officer lacks authority to require the City to seek guidance from the Department of Labor on a classification issue. In re Bohner(PDF, 833KB), CSB 13-17A, n.8 (1/18/18).

Different standards of review apply to the agency decision-maker, the Hearing Officer and the CSB. The decision-maker is tasked with determining whether a deputy sheriff has violated DCSR or DSD rules by a preponderance of the evidence. The Hearing Officer reviews the decision-maker’s penalty decision with substantial deference, particularly with respect to a deputy sheriff. The CSB may reverse the Hearing Officer for insufficiency of evidence only for a factual finding that has no support in the record; however, the CSB reviews conclusions of law and mixed questions of fact and law de novo. In re Leyba(PDF, 2MB), DDC 31-16A, 4 (11/15/17).

CSB may increase the penalty assessed against an appellant if it finds a deputy gamed the system by falsely accepting responsibility or claiming contrition for misconduct to obtain a mitigated penalty, only to disavow any wrongdoing at hearing. In re Williams(PDF, 553KB), CSB 52-16A, 3 (6/15/17), citing In re Espinoza(PDF, 810KB), CSB 42-15A (7/21/16).

In determining the nature and extent of discipline, Hearing Officers must focus on the employee’s own conduct. In re Webster(PDF, 1MB), CSB 03-11A, 5 (4/14/12).

19-61 (D)

The Board may reverse a Hearing Officer’s decision only if it is not supported by the evidence in the record and is clearly erroneous. In re Webster(PDF, 1MB), CSB 03-11A, 3 (4/14/12).

Hearing Officers are charged with judging the credibility of witnesses and deciding the weight assigned to testimony and other evidence. In re Webster(PDF, 1MB), CSB 03-11A, 3 (4/14/12).

Decision was not clearly erroneous where witnesses who appellant claimed were not made available by the agency, were known to appellant and he failed to subpoena them. In re Webster(PDF, 1MB), CSB 03-11A, 4 (4/14/12).

Where video evidence was clear and unambiguous, what non-appearing witnesses may have claimed to see is insufficient basis to reverse Hearing Officer’s conclusions. In re Webster(PDF, 1MB), CSB 03-11A, 4 (4/14/12).

CSB may reject argument for reduction in penalty based upon discipline in unrelated cases and which is not cogent in relating them to the present case. In re Webster(PDF, 1MB), CSB 03-11A, 5 (4/14/12).

GROUNDS FOR

The grounds to overturn a Hearing Officer’s decision are limited to: (1) new evidence; (2) erroneous interpretation of applicable authority; (3) policy-setting precedent; (4) insufficient evidence; and (5) lack of jurisdiction. In re Gustin(PDF, 821KB), CSB 02-17A, 1-2 (6/7/18).

Hearing Officer’s discovery and evidentiary rulings are within her/his discretion. In re Gustin(PDF, 821KB), CSB 02-17A, 2 (6/7/18).

Hearing Officer did not commit error where his findings and conclusions were well-supported by the record. In re Gustin(PDF, 821KB), CSB 02-17A, 2-3 (6/7/18).

Hearing Officer did not misinterpret DSD use of force policy where, once deputy stepped back from inmate who was trying to grab him through door flap, deputy was no longer under attack and instead became the aggressor when he re-approached inmate and used his Taser. In re Nguyen(PDF, 689KB), CSB 19-17A, 2 (1/18/18).

Hearing Officer did not misinterpret DSD’s use of force policy in finding deputy’s use of Taser on an inmate through the door flap to secure the flap was unreasonable, where deputy had numerous less-forceful options available. In re Nguyen(PDF, 689KB), CSB 19-17A, 2 (1/18/18).

Deputy’s claim that Hearing Officer’s finding - that deputy’s use of a Taser was unreasonable under DSD policy – sets “bad precedent” that will encourage inmates to refuse to follow orders was unsupported speculation where deputy presented no evidence of such disobedience. In re Nguyen(PDF, 689KB), CSB 19-17A, 4 (1/18/18).

Deputy’s claim was frivolous, that Hearing Officer’s finding that she failed to complete ten of twenty-four required rounds was erroneous, where she admitted her failure to complete rounds in her pre-disciplinary meeting and did not dispute evidence at hearing supporting this finding. In re Barra(PDF, 679KB), CSB 01-16A, 2 (8/3/17).

Hearing Officer’s findings are not clearly erroneous just because there may have been conflicting evidence in the record. In re Rocha(PDF, 2MB), CSB 19-16A, 2 (7/6/17).

Hearing Officer’s modification of penalty from sixteen to ten-day suspension was consistent with principles of progressive discipline where agency’s discipline was overly punitive and lesser punishment was sufficient to ensure future compliance. In re Rocha(PDF, 2MB), CSB 19-16A, 6 (7/6/17).

Hearing Officer did not discourage remedial measures with conclusion that prisoner posed no threat justifying being handcuffed, where record evidence supported finding, and only action discouraged was to handcuff a prisoner in violation of agency rules. In re Rocha(PDF, 2MB), CSB 19-16A, 5 (7/6/17).

Failure of two division chiefs to attend deputy’s pre-disciplinary meeting in violation of its internal procedures did not violate deputy’s right to fair hearing or otherwise cause reversible prejudice. In re Rocha(PDF, 2MB), CSB 19-16A, 5 (7/6/17).

Agency failure to follow its internal polices do not concern Hearing Officer review, in the absence of showing violation of employee’s right to fair hearing, or other prejudice. In re Rocha(PDF, 2MB), CSB 19-16A, 5 (7/6/17).

Hearing Officer did not err in dismissing charge of neglect or carelessness in performance of duty, where agency provided no notice in any charging document of its allegation that appellant failed to treat prisoner with dignity and respect. Such lack of notice violates basic tenets of due process, requiring dismissal of the charge. In re Rocha(PDF, 2MB), CSB 19-16A, 5 (7/6/17).

In re Mounjim was not implicated in Hearing Officer’s dismissal of 16-60A [now 16-28A] charge, where agency failed to put appellant on notice of the basis for the charge before hearing. In re Rocha(PDF, 2MB), CSB 19-16A, 5 (7/6/17).

It would be bad policy to prohibit aggravation of penalty for mistreatment of inmate for mere possibility of lawsuit, since every instance of mistreatment would then warrant imposition of aggravated penalty. In re Rocha(PDF, 2MB), CSB 19-16A, 7 (7/6/17).

Hearing Officer did not err in reducing penalty from maximum aggravated sixteen-day suspension to presumptive ten-day suspension, where agency dismissed lack of candor charge before hearing, yet claimed it as basis to aggravate penalty. In re Rocha,(PDF, 2MB) CSB 19-16A, 7 (7/6/17).

No abuse of discretion for Hearing Officer to affirm unmitigated ten-day suspension where agency and Hearing Officer’s justification were reasonable, supported by the record and were not otherwise improper. In re Romero(PDF, 441KB), CSB 28-16A, 2 (6/15/17).

No improper precedent by Hearing Officer affirming ten-day suspension which was based on the unique facts of the case and an individualized application of the principles in the Matrix. In re Romero(PDF, 441KB), CSB 28-16A, 2-3 (6/15/17).

Ten-day suspension was within range of alternatives available to a reasonable administrator, where prior discipline cited by appellant was too lenient and the record reflected sufficient, reasonable, and articulated justification for ten-day suspension. In re Romero,(PDF, 441KB) CSB 28-16A, 2 (6/15/17), citing In re Lovingier,(PDF, 9MB) CSB 48-14A, n.5 (11/7/14).

Ten-day suspension did not set improper precedent where Hearing Officer’s decision was based on the unique facts of this case and an individualized application of the principles embodied in the agency’s disciplinary matrix. In re Romero,(PDF, 441KB) CSB 28-16A, 2-3 (6/15/17).

CSB affirms Hearing Officer’s decision where the parties’ petition and cross-petition for review both border on frivolous. In re Williams(PDF, 553KB), CSB 52-16A, 2 (6/15/17).

Hearing Officer’s decision was supported by the evidence and did not involve erroneous rules interpretation where appellant admitted he entered incorrect information into inmate’s record, causing inmate to remain jailed for 18 days after his release date, and that error violated the alleged rules. In re Williams(PDF, 553KB), CSB 52-16A, 2 (6/15/17).

That other deputies had an opportunity to catch appellant-deputy’s release error was immaterial to his misconduct. In re Williams(PDF, 553KB), CSB 52-16A, 2 (6/15/17).

That someone could have corrected appellant-deputy’s mistake is not proof he did not make the mistake and does not absolve him from the consequences of his misconduct. In re Williams(PDF, 553KB), CSB 52-16A, 2 (6/15/17).

Appellant showed no erroneous rules interpretation where his brief failed to mention a single rule he claimed Hearing Officer misinterpreted. In re Williams(PDF, 553KB), CSB 52-16A, 2 (6/15/17).

Further reduction of deputy’s five-day suspension would be poor policy, as it would deprecate the seriousness of his mistake that cost inmate 18 days of freedom. In re Williams(PDF, 553KB), CSB 52-16A, 2-3 (6/15/17).

Deputy did not attempt to game system to obtain mitigated penalty where his claims were consistent both before and after discipline was imposed, and no evidence suggested he duped or misled the Agency. In re Williams(PDF, 553KB), CSB 52-16A, 3 (6/15/17).

Deputy did not attempt to game system to obtain mitigated penalty where he admitted, throughout the investigation and appeal, that he made an error but claimed others should have caught it. In re Williams(PDF, 553KB), CSB 52-16A, 3 (6/15/17).

Deputy did not attempt to game system to obtain mitigated penalty where decision-maker was aware, when imposing a mitigated penalty on him, that he claimed he should not be responsible for keeping inmate beyond release date because others should have caught his error. In re Williams(PDF, 553KB), CSB 52-16A, 3 (6/15/17).

Erroneous interpretation of CSRs not established where Hearing Officer merely applied findings to CSRs. In re Fuller(PDF, 841KB), CSB 46-16A, 1-2 (3/16/17).

Hearing Officer is not required to credit appellant’s testimony or accept as true and reasonable his beliefs, especially when those beliefs are called into question by other evidence. In re Fuller(PDF, 841KB), CSB 46-16A, 2 (3/16/17).

Appellant’s personal beliefs and statements, regardless whether they are genuine or credible, do not dictate the outcome of hearings. In re Fuller(PDF, 841KB), CSB 46-16A, 2 (3/16/17).

Appellant did not have a legitimate purpose for shoving inmate in the back where inmate was walking away from appellant and appellant had to follow inmate in order to shove him. In re Fuller(PDF, 841KB), CSB 46-16A, 2 (3/16/17).

Hearing Officer has the obligation of judging the propriety of appellant’s conduct. In re Fuller(PDF, 841KB), CSB 46-16A, 2 (3/16/17).

Absence of analysis of evidence of particular witnesses does not demonstrate that Hearing Officer ignored the testimony, only that she was not persuaded by it. In re Fuller(PDF, 841KB), CSB 46-16A, 3 (3/16/17).

Sufficient evidence in record supported findings that deputy observed, but failed to respond to inmate-conducted pat-searches, where video evidence showed him failing to react meaningfully, and showed inmate who collapsed in front of him was likely injured. In re Steckman(PDF, 866KB), CSB 30-15A, 3 (1/19/17).

No negative policy implication resulted from Hearing Officer’s affirmation of deputy’s termination for failure to intervene in inmate-to-inmate pat searches conducted in front of him, which he claimed imposes an impossible standard on deputies to be aware of all conduct all the time, where actual burden is merely to look up once in a while and do something about wrongful, observed behavior. In re Steckman(PDF, 866KB), CSB 30-15A, 3-4 (1/19/17).

A claim in petitioner’s brief which he did not state in the Petition for Review is not properly before the CSB. In re Webster(PDF, 1MB), CSB 03-11A, 5-6 (4/14/12).

A claim which does not materially impact the outcome or conduct of the hearing does not provide any basis to disturb the ruling of the Hearing Officer. In re Webster(PDF, 1MB), CSB 03-11A, 5 (4/14/12).

Appellant’s claim that he did not timely receive his IAB file does not affect Hearing Officer’s decision where appellant did not argue any material prejudice from his late reception of the file and the record contained sufficient evidence to support the Hearing Officer’s findings. In re Webster(PDF, 1MB), CSB 03-11A, 5 (4/14/12).

Petitioner’s allegations did not constitute a claim under CSR 19-61A, new and material evidence, where he asserted the nonappearance of witnesses at hearing, but he failed to subpoena them or claim good cause for an extension of time to do so. In re Webster(PDF, 1MB) CSB 03-11A, 6 (4/14/12).

Petitioner failed to state a claim under CSR 19-61B, erroneous rules interpretation, where he failed to identify a violation or erroneous interpretation of any rule. In re Webster(PDF, 1MB), CSB 03-11A, 6 (4/14/12).

The constitutional requirements of criminal prosecutions have no applicability Career Service hearings. In re Webster(PDF, 1MB), CSB 03-11, 4 (4/14/12).

36. Protective Order

As a general matter, Career Service Hearing Office records are open to the public unless there is a legitimate reason for non-disclosure. In re Norris(PDF, 63KB), CSA 86-09 (Order 1/8/10).

The decision whether to seal the record may not be based solely on an agreement between the parties. The Hearing Officer must balance the public’s presumed right to open access against the potential harm to the privacy of a person in interest. In re Norris(PDF, 63KB), CSA 86-09 (Order 1/8/10), citing Anderson v. Home Insurance Co., 924 P.2d 1123 (Colo.App. 1996); CRCP 121 § 1-5.

A motion to seal the record must provide sufficient information to determine if good cause exists, to wit: whose privacy or confidences are to be protected; the privacy interests to be protected; the nature of the documents which the parties seek to protect; the duration of the requested seal; and a proposal for the least restrictive means which satisfy privacy concerns while respecting the public’s right to access public information. In re Norris(PDF, 63KB), CSA 86-09 (Order 1/8/10).

Where joint motion to seal the record lacks sufficient information from which the Hearing Officer may balance the interests of privacy and public access, the motion must be denied for lack of good cause. In re Norris(PDF, 63KB), CSA 86-09 (Order 1/8/10).

When a protective order is requested to prevent disclosure of personal materials or information, the Hearing Officer must weigh the competing interests for and against disclosure. In re Nagen,(PDF, 69KB) CSA 27-08 (Order 5/13/08) citing Martinelli v. District Court, 612 P.2d 1083 (Colo. 1980).

Hearing Officer must determine whether good cause exists for issuance of a protective order by balancing the public’s right to open access and the parties’ interests against disclosure. In re Nagen(PDF, 69KB), CSA 27-08 (Order 5/13/08) citing Martinelli v. District Court, 612 P.2d 1083 (Colo. 1980).

Stipulated motion for protective order that lacks sufficient information from which Hearing Officer may weigh all interests is denied for failure to establish good cause. In re Nagen,(PDF, 69KB) CSA 27-08 (Order 5/13/08).

Request for protective order must be supported by good cause, to wit, whose privacy or confidences are sought to be protected, the privacy interests sought to be protected, the documents sought to be protected, and a proposal for the least restrictive means that satisfy privacy concerns while respecting the public’s right to access public information. In re Nagen(PDF, 69KB), CSA 27-08 (Order 5/13/08).

37. Remedies (See also Rule 19 § 19-55 )

See also 19-55

IN GENERAL

CSB does not have authority to issue remedies based on equity alone. In re Bohner(PDF, 833KB), CSB 13-17A, n.7 (1/18/18).

Hearing Officer lacks authority to refer any matter to the Department of Labor on behalf of the City. In re Bohner(PDF, 833KB), CSB 13-17A, n.8 (1/18/18).

Hearing Officer lacks authority to require the City to seek guidance from the Department of Labor on a classification issue. In re Bohner(PDF, 833KB), CSB 13-17A, n.8 (1/18/18).

CSRs do not provide a Hearing Officer with the power to stay a disciplinary suspension before a hearing on an appeal, and such relief is inconsistent with the clear intent of the rules. In re James(PDF, 52KB), CSA 33-10 (Order 5/18/10), citing CSRs 19-66B and 19-42C.

If CSB intended to authorize the Hearing Office to grant temporary relief similar to an injunction or temporary restraining order in state civil courts, it would have specifically included a rule setting forth the procedures and grounds for ruling on the issue. In re James(PDF, 52KB), CSA 33-10 (Order 5/18/10), citing CSRs 19-66B [now 21-25B] and 19-42C [now 19-41D]; CRCP Rule 65.

Hearing Officer lacks authority to award attorney’s fees. In re Muller(PDF, 141KB), CSB 48-08A, 2 (3/10/09).

The CSRs do not grant authority to the Hearing Officer to issue discipline against one employee based upon the request of another. In re Muller, CSA 48-08, 2 (Order 7/24/08).

A Hearing Officer is not bound by the remedies suggested by an appellant, but must determine if any remedy under the CSRs would provide relief. In re Muller, CSA 48-08, 2 (Order 7/24/08), citing In re Felix(PDF, 87KB), CSA 82-07 (Order 2/14/08).

Appeal may not be dismissed for lack of jurisdiction where appellant seeks a remedy for which there is no jurisdiction, but another remedy for which there is jurisdiction would afford relief. In re Felix(PDF, 87KB), CSA 82-07 (Order 2/14/08).

Hearing Officer is without jurisdiction to grant a change in supervisor. In re Felix(PDF, 87KB), CSA 82-07 (Order 2/14/08).

Hearing Officer lacks jurisdiction to grant certain relief, such as a meeting to counsel with superiors, or the provision of a written document, but has jurisdiction to grant relief from unlawful discrimination. In re Cooley(PDF, 116KB), CSA 28-06, 2 (Order 6/12/06).

Hearing Officer lacks authority to grant an employee transfer. In re Van Dyck(PDF, 110KB), CSA 143-05, 1 (Order 2/16/06).

Hearing Officer lacks jurisdiction to order agency to change policies, staffing or building conditions. In re Conway(PDF, 89KB), CSA 127-05, 2 (2/13/06).

Hearing Officer lacks jurisdiction to declare candidate selection process invalid. In re Macieyovski(PDF, 76KB), CSA 81-05 (Order 8/17/05).

Where appellant failed to file timely grievance, Hearing Officer has no jurisdiction to hear appeal under CSR 19-10 d [now 19-20B]. In re Schultz(PDF, 92KB), CSA 78-05 (Order 8/15/05).

Hearing Officer lacks jurisdiction over harassment claim against supervisor who no longer works for agency. In re Ligouri(PDF, 73KB), CSA 76-04 & 108-04 (Order 6/29/05).

Hearing Officer lacks jurisdiction over verbal reprimand. In re Ligouri(PDF, 73KB), CSA 76-04 & 108-04 (Order 6/29/05).

Appellant’s failure to respond to motion to dismiss for over 14 months was deemed confession of motion, depriving Hearing Officer of jurisdiction. In re Hartzog(PDF, 46KB), CSA 198-03 (Order 6/22/05).

Hearing Officer lacks jurisdiction to grant relief sought by appellant, to 1) transfer to another agency, 2) increase PEPR rating from “meets” to “exceeds expectations”, or 3) stop the violence. In re Martinez(PDF, 93KB), CSA 144-04 (Order 6/21/05).

Hearing Officer lacks authority to impose discipline demanded by one employee against another, such as removal of a supervisor. In re Yardeny(PDF, 90KB), CSA 26-05 (Order 6/2/05), citing In re Crutchfield, CSA 13-01 (Order 4/3/01); In re West(PDF, 156KB), CSA 327-01 (Order 12/26/01).

Hearing Officer lacks jurisdiction over an employee’s work assignment. In re Yardeny(PDF, 90KB), CSA 26-05, 2 (Order 6/2/05).

Hearing Officer lacks jurisdiction to establish an independent committee to act on behalf of an employee. In re Yardeny(PDF, 90KB), CSA 26-05 (Order 6/2/05).

Appeal must be dismissed where Hearing Officer lacks jurisdiction to grant any of the relief requested by the appellant. In re Yardeny(PDF, 90KB), CSA 26-05 (Order 6/2/05).

When an agency termination decision is modified to a demotion, all direct results of that agency action must likewise be modified. In re Maes, CSA 180-03, 6 (6/20/08).

Hearing Officer lacks jurisdiction to award damages for breach of contract, including consequential damages arising from appellant’s expectations of opportunities for secondary employment based on his status as a deputy sheriff. In re Maes, CSA 180-03, 6 (6/20/08).

Reversal of the agency action focuses only on the direct results of that action, and not damages flowing from the parties’ expectations of earnings from third parties. In re Maes(PDF, 1MB), CSA 180-03, 6 (10/21/04).

BACK PAY

Where agency seeks a deduction in amount of back pay owed for delay of hearing caused by appellant’s motion for continuance, it must establish that appellant made motion in bad faith or for the purposes of delay, or that the motion otherwise justified an offset from back pay. In re Maes, CSA 180-03, 9-10 (Order 6/20/08).

Reinstatement, restoration of lost pay at the rate applicable to the new position, and payment of benefits lost as a result of the termination are all direct results of modification of a termination to a demotion. In re Maes, CSA 180-03, 6 (6/20/08), citing Lanes v. State Auditor's Office, 797 P.2d 764, 766-67 (Colo.App. 1990) (decided under Colorado State Personnel Rules).

Appellant’s back pay must be offset by interim wages he earned to replace his lost income from the DSD. In re Maes, CSA 180-03, 7 (6/20/08).

Appellant’s back pay should not be offset by imputed earnings when he made reasonable efforts to mitigate his damages but was unable to find employment in law enforcement because DSD’s publicity about the discharge damaged his reputation for integrity within the law enforcement community. In re Maes, CSA 180-03, 7-8 (6/20/08).

38. Retaliation

IN GENERAL

Appellant’s use of FMLA leave was a protected activity for her retaliation claim. In re Gerovic(PDF, 315KB), CSA 77-17, 9 (6/1/18).

Agency’s transfer of Appellant’s job assignment, based on its valid business needs, was not an adverse employment action. In re Gerovic(PDF, 315KB), CSA 77-17, 9-10 (6/1/18).

A retaliation claim requires appellant to establish (1) she engaged in a protected activity; (2) the agency took an action that a reasonable employee would have found materially adverse; and (3) there is a causal connection between the protected activity and the adverse action. In re Burdett(PDF, 220KB), CSA 28-17, 6 (2/13/18), citing In re Koonce(PDF, 1MB), CSB 36-13A (10/16/14); Metzler v. Federal Home Loan Bank of Topeka, 464 F. 3d 1164 (10th Cir. 2006).

Pretext only arises in the context of a McDonnell Douglas analysis, after a plaintiff has proven a prima facie case and the employer has offered a legitimate non-discriminatory or non-retaliatory reason for its action. In re Koonce(PDF, 1MB), CSB 36-13A, 3-4 (10/16/14), citing EEOC v. PVNF, 487 F.3d 790, 805 (10th Cir. 2007).

McDonnel Douglas analytical model applies to summary judgment motions and drops out once there has been a full trial on the merits. In re Koonce(PDF, 1MB), CSB 36-13A, 3-4 (10/16/14).

Temporal proximity is a relevant circumstance that may establish retaliation only if the adverse action followed very closely after the protected activity. In re Burdett(PDF, 220KB), CSA 28-17, 6 (2/13/18), citing Anderson v. Coors Brewing, 181 F.3d 1171, 1179 (10th Cir. 1999).

A two-year gap between the reversal of appellant’s prior suspension and the current suspension is too remote to establish a causal connection between them. In re Burdett(PDF, 220KB), CSA 28-17, 6 (2/13/18), citing Anderson v. Coors Brewing, 181 F.3d 1171, 1179 (10th Cir. 1999).

Appellant established no protected activity where she claimed agency director saw her enter the CFO’s office, but she did not state what she discussed and there was no evidence the director knew what was discussed. In re Burdett(PDF, 220KB), CSA 28-17, 6 (2/13/18).

Denial of impartial Hearing Officer at a pre-disciplinary meeting does not establish an element of retaliation since no Hearing Officer is required at that stage of discipline. In re Burdett(PDF, 220KB), CSA 28-17, 7 (2/13/18).

Disagreement with prior work reviews and Performance Improvement Plan do not establish an element of retaliation. In re Burdett(PDF, 220KB), CSA 28-17, 7 (2/13/18).

Disagreement with a prior verbal reprimand is not a protected activity. In re Burdett(PDF, 220KB), CSA 28-17, 7 (2/13/18).

Supervisor did not establish retaliation where she disagreed with her double demotion based on the agency’s assessment of her problematic interactions with subordinates, but the evidence was overwhelmingly against her. In re Burdett(PDF, 220KB), CSA 28-17, 7 (2/13/18).

For her retaliation claim, appellant was required to prove that she engaged in protected conduct, suffered a materially adverse action and that said action was motivated by retaliatory animus resulting from the protected conduct. In re Koonce(PDF, 1MB), CSB 36-13A, 2 (10/16/14).

CSB rules may protect or prohibit conduct that is beyond the reach of federal or state law. In re Koonce(PDF, 1MB), CSB 36-13A, 5 (10/16/14).

The Supreme Court decision in Nassar making it more difficult to prove retaliation is not sound policy for the City. In re Koonce(PDF, 1MB), CSB 36-13A, 5 (10/16/14), citing Univ. of Texas SW Medical Center v. Nassar, 570 U.S. 338 (6/24/13).

In order to prove retaliation, an appellant must prove that retaliation was a contributing or motivating factor in imposition of an adverse action. In re Koonce(PDF, 1MB), CSB 36-13A, 5 (10/16/14).

In defending a retaliation claim based on discipline, the agency does not bear the burden to justify the discipline. In re Koonce,(PDF, 1MB) CSB 36-13A, 2 (10/16/14).

Appellant at all times bears the burden to establish that agency's discipline was motivated by retaliatory animus resulting from the protected conduct. In re Koonce(PDF, 1MB), CSB 36-13A, 2 (10/16/14).

Appellant bears burden to prove his retaliation claim by a preponderance of the evidence. In re Macieyovski(PDF, 2MB), CSA 55-13, 4 (4/1/14).

A claim of retaliation under the CSRs requires Appellant to prove that she engaged in a protected activity, and that the Agency's discipline was imposed as a result of that activity. In re Mack(PDF, 946KB), CSA 43-12, 10 (3/18/13), citing In re Rock(PDF, 5MB), CSA 09-10, 6-7 (10/5/10); Burlington Northern & Santa Fe Ry. v. White 126 S. Ct. 2405, 2415 (U.S. 2006).

Appellant did not prove retaliation claim where she presented no evidence that she reported financial mismanagement in her grievance or engaged in any other type of protected activity. In re Mack(PDF, 946KB) CSA 43-12, 10 (3/18/13).

Appellant failed to prove that her transfer was motivated by retaliation where there was no evidence in the record inferring that supervisor knew of her protected activity. In re Gallo(PDF, 1MB), CSB 63-09A, 4 (3/17/11).

Burden of proof in a retaliation claim is on appellant to prove that agency action was retaliatory. In re Gallo(PDF, 1MB), CSB 63-09A, 3 (3/17/11).

For her retaliation claim, appellant needed to prove 1) that she engaged in activity in opposition to unlawful discrimination; 2) that a reasonable employee would have found the challenged action to be materially adverse, and 3) there was a causal connection between the adverse employment action and the employee's protected activity. In re Gallo(PDF, 1MB), CSB 63-09A, 3 (3/17/11), citing Montes v. Vail Clinic, Inc., 497 F.3d 1160, 1176 (10th Cir. 2007).

Appellant's statement to internal affairs in support of another deputy's discrimination claim was protected activity. In re Gallo(PDF, 1MB), CSB 63-09A, 3 (3/17/11).

Appellant did not prove that a reasonable employee in the unit would have found the transfer adverse; i.e., that the transfer was both subjectively and objectively adverse. In re Gallo(PDF, 1MB), CSB 63-09A, 4 (3/17/11).

In order to prove causation of a retaliation claim, an employee must demonstrate that the decision-maker knew of the employee's protected activity. Without knowledge, his decision cannot be retaliatory. In re Gallo(PDF, 1MB), CSB 63-09A, 4 (3/17/11), citing Hinds v. Sprint/United Mgmt., 523 F.3d 1187, 1203 (10th Cir. 2008); Montes v. Vail Clinic, Inc., 497 F.3d 1160, 1176 (10th Cir. 2007).

There was sufficient evidence to support finding that supervisor had legitimate, business-related reasons for transferring appellant, particularly when transfer did not impact pay, benefits or status, and employees had no entitlement to an assignment of their choice, as shown by supervisor's own subsequent transfer. In re Gallo(PDF, 1MB), CSB 63-09A, 4 (3/17/11).

Appellant failed to prove his lay-off was in retaliation for filing a grievance over a “needs improvement” PEPR, particularly when his new supervisor readily agreed to remove this rating, and the agency delayed his lay-off for several months to address his concerns and give him additional time to seek other employment opportunities. In re Sanders, CSB 62-09A, 2 (2/17/11).

Retaliation is established where a reasonable employee would have found the challenged agency action materially adverse which, in this context, means it well might have dissuaded a reasonable worker from making or supporting a charge of sexual harassment. In re Moore(PDF, 1MB), CSA 103-09 & 21-10, 3 (10/14/10), citing Burlington Northern & Santa Fe Ry. v. White, 126 S. Ct. 2405 (U.S. 2006).

Even if an employee establishes that her protected conduct was a substantial factor in the agency’s adverse action, the employer may show it would have taken the same action if the protected conduct had not occurred. In re Moore(PDF, 1MB), CSA 103-09 & 21-10, 5 (10/14/10), citing P. Broida, A Guide to Merit Systems Protection Board Law and Practice (Volume II 2010); Mahaffery v. Dept. of Agriculture, 105 MSPR 347, 239, 2007 MSPB 93 ¶20 (2007).

Personal animosity does not automatically establish retaliatory intent. In re Moore(PDF, 1MB), CSA 103-09 & 21-10, 4 (10/14/10).

Retaliation is established where the employee shows that 1) she engaged in a protected activity, 2) the Agency imposed an adverse action, which might well have dissuaded a reasonable employee from engaging in the protected activity, and 3) a causal connection between the two. In re Rock(PDF, 5MB), CSA 09-10, 6-7 (10/5/10), citing Burlington Northern & Santa Fe Ry. v. White 126 S. Ct. 2405, 2415 (U.S. 2006) and Metzler v. Federal Home Loan Bank of Topeka, 464 F.3d 1164, 1171 (10th Cir. 2006).

Appellant failed to establish that the agency retaliated against her for filing an EEOC claim, where her suspension, imposed one and one-half years after her claim, was too remote to prove a causal connection between the two events, and her supervisor had been unaware of her claim. In re Rock(PDF, 5MB), CSA 09-10, 7 (10/5/10).

Appellant failed to establish that the agency retaliated against her for requesting FMLA leave where her supervisor had prepared a contemplation of discipline letter before Appellant’s request for FMLA leave. In re Rock(PDF, 5MB), CSA 09-10, 7 (10/5/10).

A retaliation claim, in the context of this case, is established by showing a layoff might well have dissuaded a reasonable worker from filing a grievance of a PEPR rating, using an objective standard of “material adversity.” In re Sanders(PDF, 2MB), CSA 62-09, 8 (9/24/10), citing Burlington Northern & Santa Fe Ry. v. White, 126 S. Ct. 2405 (U.S. 2006).

The material adversity test necessarily infers causation, which means the agency engaged in some retaliatory act in response to the protected act, the filing of the grievance. In re Sanders(PDF, 2MB), CSA 62-09, 8 (9/24/10), citing Chapin v. Fort-Rohr Motors, Inc., 621 F.3d 673 (7th Cir. 2010); 45A Am.Jur.2d Job Discrimination § 240 (2010); Burlington Northern & Santa Fe Ry. v. White, 126 S.Ct. 2405, 2413 (U.S. 2006).

The kinds of actions described as materially adverse are no longer limited to those actions which negatively affect pay, benefits or employment status, but now include any act which would cause a hypothetical reasonable employee to pause before engaging in the action giving rise to the agency response, whether or not the response took place within the scope of employment. In re Sanders(PDF, 2MB), CSA 62-09, n.6 (9/24/10), citing Burlington Northern & Santa Fe Ry. v. White, 126 S.Ct. 2405 (U.S. 2006).

Appellant's failure to show that the layoff decision followed his grievance constitutes a failure to establish material adversity; i.e., that the retaliation was in response to the protected activity, and therefore he failed in his burden to prove retaliation was a substantial or motivating factor in the layoff. In re Sanders(PDF, 2MB), CSA 62-09, 8 (9/24/10).

Evidence that agency found appellant's "needs improvement" PEPR unsustainable and revised it after he appealed it signified an absence of retaliatory motive. In re Sanders(PDF, 2MB), CSA 62-09, 8-9 (9/24/10).

Evidence that agency delayed appellant's layoff for several months to follow up on his concerns and allow him to seek training and other employment signified an absence of retaliatory motive. In re Sanders(PDF, 2MB), CSA 62-09, 9 (9/24/10).

Appellant failed to prove a retaliation claim where he did not show his layoff followed his grievance, and his supervisor changed his PEPR rating after he appealed it and delayed his layoff to address his concerns and allow him to seek training and employment. In re Sanders(PDF, 2MB), CSA 62-09, 8-9 (9/24/10).

A retaliation claim is established where an employee engages in a protected activity, and the agency response would dissuade a reasonable person in the employee’s position from taking the protected action. In re Gallo(PDF, 2MB), CSA 63-09, 3 (8/27/10); citing Burlington Northern & Santa Fe Ry. v. White, 126 S.Ct. 2405 (U.S. 2006).

Appellant must first prove the new supervisor who transferred her knew about or deferred to her former supervisor’s alleged prejudicial sentiments about her protected activity in order to prove the transfer would dissuade a reasonable person from engaging in a protected activity. In re Gallo(PDF, 2MB), CSA 63-09, 3 (8/27/10), aff’d In re Gallo(PDF, 1MB), CSB 63-09A, 4 (3/17/11).

A reassignment resulting in no loss of pay or benefits may be a materially adverse action supporting a retaliation claim if it is to an objectively less desirable position. In re Gallo(PDF, 2MB), CSA 63-09, n.1 (8/27/10); citing Burlington Northern & Santa Fe Ry. v. White, 126 S.Ct. 2405 (U.S. 2006).

Employee’s support of co-worker’s race discrimination claim in an agency interview, and employee’s own grievance claiming race discrimination and harassment are protected activities. In re Gallo(PDF, 2MB), CSA 63-09, 3 (8/27/10).

Deputy’s transfer was motivated by new supervisor's determination to rebuild jail units according to his mission, not in retaliation for her protected activity. In re Gallo(PDF, 2MB), CSA 63-09, 4 (8/27/10), aff’d In re Gallo(PDF, 1MB), CSB 63-09A, 4 (3/17/11).

Transfer of employee engaged in conflict with another was within the authority of the supervisor, and did not prove race harassment. In re Gallo(PDF, 2MB), CSA 63-09, 8 (8/27/10).

Adverse action necessary to assert retaliation claim is agency action that is reasonably likely to deter employees from engaging in protected activity. In re Rems, 31-10, 2 (Order 5/12/10), citing In re Johnson, CSA 135-05, 4 (3/10/06).

Supervisor's order that appellant take remedial training is not an adverse action sufficient to support a claim of retaliation. In re Rems, 31-10, 2 (Order 5/12/10), citing In re Johnson(PDF, 268KB), CSA 135-05, 4 (3/10/06).

A pre-disciplinary letter is not an adverse action, an element necessary to assert a retaliation claim. In re Thomas(PDF, 160KB), CSA 13-10 (Order 3/15/10).

Appellant claiming retaliation proved he engaged in a protected activity by exercising his right to take FMLA leave. In re Abeyta, CSA 110-09, 2 (Order 2/9/10).

A retaliation claim must include an allegation that the employee suffered an adverse employment action; i.e., an action that is reasonably likely to deter an employee from engaging in a protected activity. In re Abeyta, CSA 110-09, 2 (Order 2/9/10), citing Burlington Northern & Santa Fe Ry. Co v. White, 548 U.S. 53 (2006); EEOC Compliance Manual Section 8, Retaliation, ¶ 8008 (1998).

To survive a motion for summary judgment in a retaliation claim, appellant must show some connection between the adverse action and the protected activity. In re Abeyta, CSA 110-09, 2 (Order 2/9/10), citing CSR 15-106 [now 16-22]; 42 USCA § 2000e-3(a); Nichols v. Harford County Bd. of Educ., 189 F.Supp.2d 325 (D. MD 2002).

Once the agency responds to appellant’s retaliation claim with a legitimate business reason for its actions, appellant must present a genuine dispute of material fact as to whether the agency’s proffered reason is pretextual - i.e., unworthy of belief. In re Abeyta, CSA 110-09, 2-3 (Order 2/9/10), citing McDonnell Douglas v. Green, 411 U.S. 792 (1973); Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997); Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir.1995); Hawkins v. PepsiCo, Inc., 203 F.3d 274, 278 (4th Cir. 2000).

Where appellant failed to show that the reasons given by the agency for elimination of the shift were a pretext for retaliation, summary judgment must be granted on the claim of retaliation. In re Abeyta, CSA 110-09, 3 (Order 2/9/10), citing Gates v. Caterpillar, Inc., 513 F.3d 680 (7th Cir. 2008).

To prove retaliation, an employee must prove the employer took adverse action against her because she engaged in a protected activity. In re Norman-Curry(PDF, 166KB), CSB 28-07A & 50-08A, 2 (9/3/09), citing Hinds v. Sprint/Unlimited Mgmt. Co., 523 F.3d 1187, 1203 (10th Cir. 2008).

To prove retaliation, an employee must prove a cause and effect relationship between the protected activity in which she engaged and the agency's adverse action against her. In re Norman-Curry(PDF, 166KB), CSB 28-07A & 50-08A, 2 (9/3/09).

As a prerequisite for demonstrating a cause and effect relationship between her protected activity and the agency's adverse action against her, appellant must show those who took the adverse action knew about her protected activity or there can be no inference of a retaliatory motive. In re Norman-Curry(PDF, 166KB), CSB 28-07A & 50-08A, 2 (9/3/09), citing Hinds v. Sprint/Unlimited Mgmt. Co., 523 F.3d 1187, 1203 (10th Cir. 2008).

Appellant bears the burden of proving his retaliation claim. In re Morgan(PDF, 987KB), CSA 63-08, 9 (4/6/09) citing C.R.S. 24-4-105(7); Department of Institutions v. Kinchen, 886 P.2d 700 (Colo. 1994).

A prima facie case of retaliation must show 1) the employee engaged in some action opposed to discrimination, 2) he was later subjected to an adverse employment action, and 3) there is a causal link between the two. In re Morgan(PDF, 987KB), CSA 63-08, 17 (4/6/09), citing In re Felix(PDF, 191KB), CSA 46-07, 1 (Order 8/23/07).

In contrast to discrimination laws, which seek to prevent injury to individuals based on who they are, retaliation laws seek to prevent harm to individuals based on what they do. In re Norman-Curry, CSA 28-07 & 50-08, 13 (2/27/09) citing Burlington Northern & Santa Fe Ry. v. White, 126 S. Ct. 2405, 2412 (U.S. 2006).

To prove retaliation, the appellant must show 1) she engaged in a protected activity in opposition to discrimination, 2) she was subsequently subject to an adverse employment action, and 3) there is a causal link between the protected activity and the adverse action. In re Norman-Curry, CSA 28-07 & 50-08, 13 (2/27/09), citing Burlington Northern & Santa Fe Ry. v. White, 126 S.Ct. 2405, 2412 (U.S. 2006).

Appellant who lodged a sexual harassment grievance against her supervisor and was subsequently suspended for fifteen days met the first two elements of a retaliation claim. In re Norman-Curry, CSA 28-07 & 50-08, 13 (2/27/09).

To establish causation, appellant must either show a very close temporal proximity between the protected activity in which she engaged and the retaliatory conduct, or offer additional evidence of causation. In re Norman-Curry, CSA 28-07 & 50-08, 14 (2/27/09), citing Marquez v. Baker Process, Inc., 42 Fed.Appx. 272, 275-6 (10th Cir. 2002).

A three-month period, standing alone, is insufficient to establish causation in a retaliation claim. In re Norman-Curry, CSA 28-07 & 50-08, 14 (2/27/09), quoting Marquez v. Baker Process, Inc., 42 Fed.Appx. 272, 275-6 (10th Cir. 2002).

Appellant must allege in her retaliation appeal that the agency retaliated because she engaged in some protected activity. In re Frazier(PDF, 143KB), CSA 24-08, 2 (Order 4/30/08).

To establish a prima facie case of retaliation, an appellant must show 1) that she engaged in a protected activity, 2) that she was subsequently subject to an adverse employment action, and 3) that there is a causal link between the protected activity and the adverse action. In re Lombard-Hunt, CSA 75-07, 10 (3/3/08), citing In re Felix(PDF, 191KB), CSA 46-07, 1 (Order 8/23/07); Belgasem v. Water Pik Techs., Inc., 457 F. Supp. 2d. 1205, 1218-1219 (D.Colo. 2006).

An employee who provided a supportive letter for presentation at a co-worker’s pre-disciplinary meeting engaged in a protected activity under CSR 15-105 [now 16-22]. In re Lombard-Hunt, CSA 75-07, 10 (3/3/08).

In a claim of retaliation, appellant must prove that the agency’s adverse action resulted from her complaint to the Denver Board of Ethics, or for reporting discrimination or assisting the City in an investigation of a discrimination complaint. In re Padilla(PDF, 726KB), CSA 25-06, 12 (9/13/06); CSR 15-106 [now 16-22].

In order to prove retaliation, appellant must submit evidence that she engaged in a protected activity such as a report or complaint of discrimination, and that the suspension was motivated by a desire to punish her for that activity. In re Diaz(PDF, 432KB), CSA 13-06, 7 (5/31/06), citing Poe v. Shari’s Mgmt. Corp., 1999 U.S. App. LEXIS 17905 (10th Cir. 1999).

Retaliation is proven by evidence connecting some adverse action by the agency to a protected activity undertaken by appellant and evidence of intent to retaliate. In re Hernandez(PDF, 755KB), CSA 03-06, 11 (5/3/06), citing Robben v. Runyon, 203 F.3d 836 (10th Cir. 2000); Gunnell v. Utah Valley State College, 152 F.3d 1253 (10th Cir. 1998).

Intent to retaliate is too tenuous when agency imposed disciplinary action one and one-half years after the protected activity, appellant’s formal complaint against his supervisor. In re Hernandez(PDF, 755KB), CSA 03-06, 11 (5/3/06), citing Gunnell v. Utah Valley State College, 152 F.3d 1253 (10th Cir. 1998); Freeman v. Santa Fe Ry., 229 F.3d 1163 (10th Cir. 2000); Hemsing v. Philips Semiconductors, 185 F.3d 874 (10th Cir. 1999).

Summary judgment 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 of which are necessary elements of the claim. In re Crenshaw(PDF, 229KB), CSA 18-06, 4 (Order 4/6/06), citing In re Garcia(PDF, 3MB), CSA 175-04, 5 (7/12/05).

A retaliation claim must be supported by evidence of an adverse action; i.e., action that is reasonably likely to deter employees from engaging in protected activity. In re Johnson(PDF, 268KB), CSA 135-05, 4 (Order 3/10/06), citing Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000); Couture v. Belle Bonfils Mem. Blood Center, 151 Fed.Appx. 685, 690 (10th Cir. 2005); Sanchez v. Denver Pub. Sch., 164 F.3d 527, 532 (10th Cir. 1998).

Evidence of an adverse action sufficient to support a retaliation claim is not limited to monetary losses, but a mere inconvenience or alteration of job responsibilities is not an adverse action, nor is everything that makes an employee unhappy. In re Johnson(PDF, 268KB), CSA 135-05, 4 (Order 3/10/06), citing Couture v Belle Bonfils Mem.Blood Center, 151 Fed. Appx. 685, 690 (10th Cir. 2005); Sanchez v. Denver Pub. Schools, 164 F. 3d 527, 532 (10th Cir. 1998).

A supervisor’s order that appellant complete ten paid hours of remedial training during workday does not constitute action likely to deter protected activity, particularly where same supervisor gave appellant “exceeds expectations review 2 weeks before training order. In re Johnson(PDF, 268KB), CSA 135-05, 5 (Order 3/10/06).

A prima facie case for retaliation is made by showing 1) a protected employee action, 2) an adverse agency action after, or contemporaneous with, the employee’s protected action, and 3) a causal connection between the employee’s action and the agency adverse action. In re Vigil(PDF, 477KB), CSA 110-05, 8 (3/3/06), citing Poe v. Shari’s Mgmt.Corp., 188 F.3d 519 (10th Cir. 1999).

Appellant bears the burden to establish a prima facie case on a claim of retaliation. Thereafter, the burden shifts to the agency to establish a legitimate, nondiscriminatory reason for the adverse action. Appellant is then given the opportunity to demonstrate that the claimed reason was a mere pretext for retaliation. In re Williams,(PDF, 507KB) CSA 65-05, 8 (11/17/05), citing In re Garcia(PDF, 3MB), CSA 175-04, 5 (7/12/05); Poe v. Shari’s Mgmt Corp., 1999 U.S. App. LEXIS 17905 (10th Cir. 1999).

Claim of retaliation made in opening statement but unsupported with evidence must be dismissed. In re Mestas(PDF, 514KB), 37-05, 8 (8/4/05).

A prima facie showing of retaliation requires proof that 1) appellant engaged in a protected activity, 2) that was known to the agency, 3) the agency thereafter took an adverse employment action against appellant, and 4) there was a causal connection between the protected activity and the adverse action. In re Garcia(PDF, 3MB), CSA 175-04, 5 (7/12/05), citing Poe v. Shari’s Mgmt. Corp., 1999 U.S. App. LEXIS 17905 (10th Cir. 1999).

Appellant bears the burden of persuasion to prove retaliation. In re Garcia(PDF, 3MB), CSA 175-04, 5 (7/12/05).

Once appellant establishes a prima facie case of retaliation, the burden shifts to the agency to establish a legitimate, nondiscriminatory reason for the adverse action. Appellant then must demonstrate that the proffered reason was a mere pretext for retaliation. In re Garcia(PDF, 3MB), CSA 175-04, 5 (7/12/05), citing Poe v. Shari’s Mgmt. Corp., 1999 U.S. App. LEXIS 17905 (10th Cir. 1999).

Appellant’s evidence that he addressed wrongdoing at agency, and that he was given a verbal reprimand shortly after, established the first two prongs of his retaliation claim. In re Owoeye(PDF, 3MB), CSA 11-05, 7 (6/10/05).

A prima facie case for retaliation is made by showing 1) a protected employee action, 2) an adverse action by an agency either after or contemporaneous with the employee’s protected action, and 3) a causal connection between the employee’s action and the agency’s adverse action. In re Green(PDF, 1MB), CSA 130-04, 4 (1/7/05), citingPoe v. Shari’s Mgmt. Corp., 188 F.3d 519 (10th Cir. 1999), citing Morgan v. Hilti, Inc., 108 F.3d 1319, 1324 (10th Cir. 1997).

NOT FOUND

Appellant did not prove retaliation by her supervisor who lacked authority to discipline her, and about whom she did not complain during the pre-disciplinary proceedings. In re Gerovic(PDF, 315KB), CSA 77-17, 10 (6/1/18).

Employee failed to prove that agency suspended her in retaliation for her use of FML, where she had used approved FML for ten years before the claimed retaliation. In re Colquitt(PDF, 3MB), CSA 34-15, 7 (10/30/15).

Two-year gap between protected activity and adverse employment actions lays to waste any claim that temporal proximity evidenced a causal connection. In re Koonce(PDF, 1MB), CSB 36-13A, 3 (10/16/14), citing Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997).

Retaliatory motive is not established by evidence of appellant's exceptional evaluations, the absence of complaints against her, and that the current departmental chief disagreed with the adverse actions. In re Koonce(PDF, 1MB), CSB 36-13A, 3 (10/16/14).

Agency was not required to produce evidence of a legitimate, non-retaliatory reason for its actions in the absence of Appellant establishing a prima facie claim. In re Koonce(PDF, 1MB), CSB 36-13A, 4 (10/16/14).

Where Appellant failed to establish any causal connection between her protected activity and the adverse employment action, the hearing could have been ended at the close of Appellant’s case-in-chief. In re Koonce(PDF, 1MB), CSB 36-13A, 4 (10/16/14).

Agency could not have been motivated by this appeal when it ordered appellant to produce his current certification, since it issued the order one month before he filed this appeal. In re Macieyovski(PDF, 2MB), CSA 55-13, 4-5 (4/1/14).

Appellant failed to prove that supervisor’s transfer of her was motivated by retaliation where there was no evidence in the record inferring his knowledge of her protected activity. In re Gallo,(PDF, 1MB) CSB 63-09A, 4 (3/17/11).

An agency action, more than one year after appellant engaged in a protected activity, is too remote to be materially adverse. In re Moore(PDF, 1MB), CSA 103-09 & 210-10, 3-4 (10/14/10).

Agency rebutted appellant’s claim, that its “below expectations” PEPR rating of her was motivated by its HR department’s unlawful retaliation, by showing its HR department refused to accept supervisor’s “meets” rating only because it was inconsistent with supervisor’s comments in appellant’s PEPR; and supervisor credibly denied HR exerted any pressure on her to change the rating for any reason other than to make the rating consistent with her comments. In re Moore(PDF, 1MB), CSA 103-09 & 21-10, 4 (10/14/10).

Appellant did not prove retaliation after her supervisor changed her PEPR rating from “meets expectations” to “needs improvement,” where supervisor admitted she always knew the proper rating was “needs” but she “chickened out” to avoid further confrontation with appellant, with whom she had a contentious relationship. In re Moore(PDF, 1MB), CSA 103-09 & 21-10, 4 (10/14/10).

Appellant did not prove retaliation where her continuing errors and refusal to change justified her “needs improvement” PEPR rating. In re Moore(PDF, 1MB), CSA 103-09 & 21-10, 3-6 (10/14/10).

Appellant’s needs improvement PEPR rating was based upon her poor performance and not agency’s retaliation where she: often arrived late and left early; repeated mistakes after many reminders; failed to comply with quality control measures; claimed she was undertrained, but refused others’ suggestions to improve; blamed her scanning errors on phantom hardware and software problems; blamed her supervisor for not catching her (appellant’s) errors; and she failed to accept even a modicum of responsibility for her work product. In re Moore(PDF, 1MB), CSA 103-09 & 21-10, 5-6 (10/14/10).

Appellant must first prove the new supervisor who transferred her knew about or deferred to her former supervisor’s alleged prejudicial sentiments about her protected activity to prove the transfer would dissuade a reasonable person from engaging in a protected activity. In re Gallo(PDF, 2MB), CSA 63-09, 3 (8/27/10), aff’d In re Gallo(PDF, 1MB), CSB 63-09A, 3-4 (3/17/11).

Where the incident appellant claims was an adverse agency action preceded her alleged protected activity, she cannot prove a retaliation claim, since those who take an adverse action first must know about the protected activity. In re Norman-Curry, CSB 28-07A & 50-08A, 2 (9/3/09).

Appellant did not establish the causation element of retaliation where he requested agency to accommodate his religious observance of Sabbath only after he learned he was scheduled to work on Saturdays. In re Morgan(PDF, 987KB), CSA 63-08, 17 (4/6/09).

Without very close temporal proximity between the protected activity and the alleged retaliatory conduct, the appellant must provide additional evidence to establish causation. In re Norman-Curry,(PDF, 1MB) CSA 28-07 & 50-08, 14 (2/27/09), citing Marquez v. Baker Process, Inc., 42 Fed.Appx. 272, 275-6 (10th Cir. 2002).

A seven-month lapse in time between the filing of a grievance and the assessment of discipline is too remote to establish a causal link between the two. In re Norman-Curry, CSA 28-07 & 50-08, 14 (2/27/09).

Appellant failed to prove retaliation where she did not prove she was engaged in some protected activity before the agency laid her off. In re Foley,(PDF, 921KB) CSA 19-06, 14 (11/10/06).

Appellant did not prove her retaliation claim where the evidence indicated no causal connection between her previous career service appeals and the disciplinary action. In re Diaz(PDF, 432KB), CSA 13-06, 7 (5/31/06).

Neither a single order to undergo training nor written notes critical of appellant’s performance is an adverse action needed to prove retaliation claim. In re Johnson(PDF, 268KB), CSA 135-05, 4 (Order 3/10/06).

Appellant did not establish prima facie case of retaliation claim because she failed to prove a causal connection between her protected actions and agency’s actions against her. In re Vigil(PDF, 477KB), CSA 110-05, 8 (3/3/06).

Agency’s evidence of its enforcement of its regulations against appellant’s e-mail abuse rebutted her evidence that she was terminated five days after her testimony for a co-worker. Appellant did not respond, and therefore failed to establish retaliation claim by a preponderance of the evidence. In re Garcia(PDF, 3MB), CSA 175-04, 6 (7/12/05).

Appellant did not prove her claim that her termination was in retaliation for whistle-blowing with evidence that she complained to her supervisors about another employee’s work, since it did not prove she reported any unlawful activity. In re Garcia(PDF, 3MB), CSA 175-04, 6 (7/12/05).

Appellant failed to prove her termination was in retaliation for her application for bi-lingual pay differential, as she failed to show her application was a protected activity, or that the application caused the termination. In re Garcia(PDF, 3MB), CSA 175-04, 6 (7/12/05).

Appellant failed to prove her termination was in retaliation for her request for promotion, which is not a protected activity, and she failed to prove causation. In re Garcia(PDF, 3MB), CSA 175-04, 6 (7/12/05).

Appellant’s statement that others were out to get him was insufficient to establish prima facie case for retaliation. In re Owoeye(PDF, 3MB), CSA 11-05, 7 (6/10/05).

ADVERSE ACTION

Retaliatory motive is not proven by evidence that there were no complaints about appellant's conduct, her evaluations were exceptional, and that the division chief did not agree with the safety manager's decision. In re Koonce(PDF, 1MB), CSB 36-13A, 3 (10/16/14).

McDonnell Douglas burden-shifting model is not applicable to a Hearing Officer's ultimate holding after a trial on the merits, where the single issue is whether there was sufficient evidence to warrant a determination that the agency took adverse action because of appellant’s protected activity. In re Koonce(PDF, 1MB), CSB 36-13A, 4 (10/16/14).

Agency is not required to produce any evidence it took adverse action for legitimate, non-discriminatory reasons where Hearing Officer found the employee failed to produce any evidence of causation, the third element of a prima facie case of retaliation. In re Koonce(PDF, 1MB), CSB 36-13A, 4 (10/16/14).

Retaliation under this rule does not require proof of an appealable adverse action under federal law. In re Koonce(PDF, 2MB), CSA 36-13, 4 (3/17/14), CSRs 15-106 [now 16-22] and 19-10A.1; Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).

Retaliation under the career service rules require an appellant to prove (1) she took action to oppose unlawful discrimination; (2) the employer took materially adverse action against her; and (3) there wasw a causal connection between the advers4e action and the protected activity. In re Koonce(PDF, 1MB), CSA 36-13, 45(3/17/14), citing In re Gallo, CSB 63-09, 3 (3/17/11).

An adverse action sufficient to prove retaliation does not require discipline or loss of pay. In re Koonce(PDF, 2MB), CSA 36-13, 6 (3/17/14).

City rule prohibiting retaliation does not require a heightened measure of proof based on the Supreme Court's Nassar decision under Title VII. In re Koonce(PDF, 1MB), CSA 36-13, 4 (3/17/14), citing Univ. of TX Southwestern Medical Center v. Nassar, 570 U.S. 2517 (2013).

Title VII does not preempt state and local laws which provide greater protection against discriminatory conduct. In re Koonce(PDF, 2MB), CSA 36-13, 5 (3/17/14), citing California Federal Sav. and Loan Ass'n v. Guerra, 479 U.S. 272, 285 (1987).

Given the intent of the CSRs to encourage complaints, investigations and remedial action for less serious behavior than that which violates federal law, retaliation under 15-106 [now 16-22] need not require the same level of evidence necessary to prove retaliation under Title VII. In re Koonce(PDF, 1MB), CSA 36-13, 5, (3/17/14), citing California Federal Sav. and Loan Ass'n v. Guerra, 479 U.S. 272, 285 (1987).

Written reprimand, removal from the position of acting major, and performance improvement plan are all actions that would deter a reasonable person in appellant's position from filing a complaint of discrimination. In re Koonce(PDF, 2MB), CSA 36-13, 6 (3/17/14).

Appellant failed to prove agency removal of her supervisory duties was retaliation for discrimination complaint where the decision-maker took that action to protect the identities of the complainants, appellant's subordinates, and it took the same action against the appellant’s supervisor, the subject of her complaint. In re Koonce(PDF, 1MB), CSA 36-13, 5-6 (3/17/14), citing In re Maestas, Salazar Fuentes & Sierra(PDF, 197KB), CSB 64-07, 61-07, 62-07 & 67-07 (6/30/08).

An adverse employment action is employer conduct that changes employee’s status significantly, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a significant change in benefits. In re Wehmhoefer, CSA 02-08, 3 (2/14/08) citing In re Boden(PDF, 142KB), CSA 86-06, 2 (5/23/07); Burlington Indus., Inc. v. Ellerth, 118 S.Ct. 2257, 2268 (1998).

Appellant proved that she engaged in protected activity with evidence that she complained to human resources department of racial harassment, which investigated her complaint. In re Koonce(PDF, 2MB), CSA 36-13, 5 (3/17/14).

A refusal to mediate is not a report of discrimination or other action that assists the City with a discrimination complaint under CSR 15-106 [now 16-22] and hence, is not a protected activity. In re Koonce(PDF, 2MB), CSA 36-13, 5 (3/17/14).

39. Settlement

Where appellant had legal counsel when she signed settlement agreement, her subsequent “misgivings” about it were insufficient basis to reinstate appeal. In re Compton, CSA 71-10, 1 (Order 3/31/11).

No basis 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, which is outside the jurisdiction of this venue. In re Compton, CSA 71-10, 1-2 (Order 3/31/11).

Settlement agreement reducing appellant’s 60-day suspension to 45 days contemplated that agency would reimburse her the amount equivalent to 15 days of pay, calculated on a daily eight-hour shift and not the 10.32 hour shift that she customarily worked, where she already served the 60-day suspension, and the agency defined her original suspension as 480-hours. In re James, CSA 33-10 (Order 1/25/11).

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).

Appellant’s prompt filing of a statement that that he no longer wished to accept the agency's settlement offer precluded a finding that settlement was voluntary, and therefore dismissal pursuant to it was unavailable. In re Schultz, CSA 70-08 (Order 12/22/08).

Unilateral filing of resignation did not constitute an acceptance of a settlement offer, since offer was in dispute, and there was no evidence offer contemplated acceptance by action of resignation rather than written agreement. In re Gonzales(PDF, 97KB), CSA 64-08, 2 (Order 10/10/08).

TIMELINESS [See 19-20]

Under CRE 408, an agency is precluded from introducing documents into evidence at hearing that appellant had produced during settlement negotiations. In re Murphy, CSA 09-11, 1-2 (Order 10/7/11).

Appeal of discipline and whistleblower claim filed more than 15 days [now 14] after discipline is untimely where appellant failed to allege a nominal basis for the claim under Whistleblower Ordinance. In re Moore(PDF, 180KB), CSA 21-10, 2-3 (Order 5/26/10).

In an appeal containing claims with different filing deadlines including a whistleblower claim, enforcing each filing deadline separately would eviscerate the mandate of the Whistleblower Ordinance to allow 30 days to file a claim. In re Moore(PDF, 180KB), CSA 21-10, 2 (Order 5/26/10).

Hearing Officer may not consider the merits of an appeal if appellant fails to file appeal within 15 days [now 14] of the notice of action being appealed. In re Sundrup,(PDF, 42KB) CSA 112-09 (Order 1/13/10), citing In re Delgado(PDF, 77KB), CSA 182-04 (Order 3/9/05); Widener v. District Court, 615 P.2d 33 (Colo. 1980).

Appeal was untimely when appellant failed to meet 15-day [now 14] by filing his appeal sixteen days after agency mailed original notice of discipline, and he failed to provide copy of amended notice he alleged supported his claim that appeal was timely. In re Sundrup,(PDF, 42KB) CSA 112-09 (Order 1/13/10).

Appeal cannot be dismissed without a hearing where the parties dispute date of notice of the agency action which appellant appeals. In re Anderson(PDF, 76KB), CSA 102-09, 2 (Order 1/8/10).

Where appellant was not a party to the settlement she claims was impermissibly considered, Hearing Officer could reasonably determine admission of settlement into evidence would not frustrate purpose of CRE 408, to promote settlement by assuring parties that their settlement negotiations will not be used later against them. In re Norman-Curry(PDF, 166KB), CSB 28-07A & 50-08A, 3 (9/3/09).

The purpose of CRE 408 is to promote settlement by assuring the parties that their settlement negotiations will not later be used against them. In re Norman-Curry(PDF, 166KB), CSB 28-07A & 50-08A, 3 (9/3/09).

CRE 408 provides that offers of settlement are not admissible into evidence to prove liability, but it permits the admission of such evidence for other purposes. In re Norman-Curry,(PDF, 166KB) CSB 28-07A & 50-08A, 3 (9/3/09).

Hearing Officer properly admitted into evidence City's settlement with non-party witness in order to show harm to the City under CSR 16-60 Z [now 16-28T] (conduct prejudicial), and not to prove appellant's misconduct. In re Norman-Curry(PDF, 166KB), CSB 28-07A & 50-08A, 3 (9/3/09).

Absent proof that the agency took any appealable action within 15 days [now 14] before the date of the appeal, the Career Service Hearing Office lacks jurisdiction to proceed with it. In re Schultz(PDF, 297KB), CSA 21-09, 2 (Order 4/13/09).

Hearing Officer dismissed appeal for lack of jurisdiction where appellant filed it outside the 15-day [now 14] deadline imposed by 19-20 A.1 [now 19-31A.2.] and offered no good cause 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,(PDF, 55KB)CSA 40-06 (Order 7/28/06).

Consent toa last chance agreement to avoid a disciplinary termination is not rendered involuntary by the threat of loss of public employment. In re Williams(PDF, 25KB), CSA 56-04, 5 (5/06/05).

Consent to random drug testing was not rendered involuntary by its inclusion in a last chance agreement under which a public employee keeps his job on condition of no further drug use and submission to random testing. In re Williams(PDF, 25KB), CSA 56-04, 5 (5/06/05), citing Jinzo v. City of Albuquerque, 185 F.3d 874 (10th Cir. 1999); Mararri v. WCI Steel, 130 F.3d 1180 (6th Cir. 1997); Schneckloth v. Bustamonte, 412 U.S. 218 (1973); McCall v. USPS, 839 F.2d 664 (Fed.Cir. 1988); Stewart v. USPS, 926 F.2d 1146 (Fed.Cir. 1991).

40. Status

41. Whistleblower Protection

IN GENERAL

Whistleblower claim fails when, even if whistleblower meets his burden of proof, the agency proves it would have reached the same conclusions about appellant’s violations even in the absence of the protected conduct. In re Wilson,(PDF, 201KB) CSA 38-17, 13 (12/8/17), citing Taylor v. Regents of Univ. of Colo., 179 P.3d 246 (Colo.App. 2007); Ward v. Industrial Commission, 699 P.2d 960, 968 (Colo. 1985).

“Official misconduct” includes any act or omission by any officer or employee…that constitutes a violation of any applicable rule, regulation or executive order, or an abuse of official authority. In re Wilson(PDF, 201KB), CSA 38-17, 11 (12/8/17), citing In re Steward(PDF, 198KB), CSA 18-08, 2-3 (4/11/08); DRMC 2-108.

Discussions between an employee and his supervisor about working conditions that do not assert official misconduct are personnel matters, not disclosures of official misconduct under the Whistleblower Ordinance. In re Wilson(PDF, 201KB), CSA 38-17, 11 (12/8/17), citing In re Steward(PDF, 198KB), CSA 18-08, 2-3 (4/11/08).

“[O]n account of” element in Whistleblower Ordinance requires a claimant to establish his notice of official misconduct was a substantial or motivating factor in the retaliatory act. In re Wilson(PDF, 201KB), CSA 38-17, 12 (12/8/17), citing Taylor v. Regents of Univ. of Colo., 179 P.3d 246 (Colo.App. 2007).

16-month gap between appellant’s alleged reporting of official misconduct and his demotion failed to support the “on account of” element of Whistleblower Ordinance. In re Wilson(PDF, 201KB), CSA 38-17, 12 (12/8/17).

Complaints about workplace or personnel matters are not reports of official misconduct under the Whistleblower Ordinance. In re Wilson(PDF, 201KB), CSA 38-17, 12 (12/8/17), [additional citations omitted].

Appellant’s mere recitation of sources of authority fail to establish official misconduct. In re Wilson(PDF, 201KB), CSA 38-17, 12 (12/8/17).

Appellant did not prove agency misconduct where it matched his claim, that he was unaware of any authority permitting restructuring DSD that made him subordinate to another chief, with an equally persuasive denial. In re Wilson(PDF, 201KB), CSA 38-17, 13 (12/8/17).

Appellant did not prove whistleblower retaliation with allegations that the agency: replaced his agency-provided SUV with a sedan usually associated with a lower rank; excluded him from participation in some meetings; and relocated his office, and agency rebutted those claims with its legitimate right to reorganize. In re Wilson(PDF, 201KB), CSA 38-17, 13 (12/8/17).

Appellant did not prove whistleblower retaliation with his complaint over a personnel matter, which is not intended to be covered under the Whistleblower Ordinance. In re Wilson(PDF, 201KB), CSA 38-17, 13 (12/8/17).

Appellant’s complaint about conditions in a nursing mothers’ room that did not allege a violation of law, waste of resources or abuse of authority was not a report of official misconduct, an essential element of a whistleblower claim. In re Martinez(PDF, 261KB), CSA 10-17, 8 (7/19/17).

A claim under the Whistleblower Ordinance is raised by allegations that a supervisor imposed or threatened an adverse employment action on account of an employee’s disclosure of information about official misconduct, i.e. a violation of law or other authority, a waste of City resources, or an abuse of official authority. In re Schofield(PDF, 343KB), CSA 08-17, 16 (10/9/17), citing In re Wehmhoefer, CSA 02-08, 4 (Order 2/14/08); DRMC 2-106 et seq.

A whistleblower claim is proven by (1) disclosure of official misconduct (2) to an appropriate reporting authority and proof that (3) the whistleblower suffered an adverse employment action (4) on account of that disclosure. In re Schofield(PDF, 343KB), CSA 08-17, 16 (10/9/17).

Appellant did not establish her whistleblower claim “disclosure” element through her conversations with non-supervisory co-workers and her anonymous report to a news reporter. In re Schofield(PDF, 343KB), CSA 08-17, 17 (10/9/17).

Appellant’s verbal complaints to co-workers that the DA’s nephew was an unqualified hiree, failed to assert a “disclosure” under the Whistleblower Ordinance as she did not disclose official misconduct. In re Schofield(PDF, 343KB), CSA 08-17, 17 (10/9/17).

A news reporter is not “an appropriate reporting authority” under the Whistleblower Ordinance. In re Schofield,(PDF, 343KB) CSA 08-17, 17 (10/9/17).

It is questionable whether the DA, as a state employee, is subject to Denver’s Whistleblower Ordinance. In re Schofield(PDF, 343KB), CSA 08-17, 17 (10/9/17).

Claimed retaliation for filing a discrimination complaint does not allege retaliation for reporting official misconduct under the Whistleblower Ordinance. In re Martinez(PDF, 261KB), CSA 10-17, 8 (7/19/17).

The Whistleblower Ordinance prohibits retaliation against an employee on account of the employee's disclosure of official misconduct. In re Macieyovski(PDF, 2MB), CSA 28-14, 8 (10/13/14).

Official misconduct is an act or omission that is: 1) a violation of law, rule, executive order or ethical standards; 2) a waste of city resources; or 3) an abuse of official authority. In re Macieyovski(PDF, 2MB), CSA 28-14, 8 (10/13/14), citing In re Wehmhoefer, CSA 02-08, 4-5 (Order 2/14/08); DRMC 2-107(d).

An agency’s adverse action right after an employee’s protected activity is some evidence of its intent to retaliate for that protected activity. In re Macieyovski(PDF, 2MB), CSA 28-14, 9 (10/13/14), citing Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001).

Factors to evaluate in whistleblower claims include whether the discipline was: supported by good cause, not unduly harsh in light of the seriousness of the conduct and compared to actions taken against similarly situated employees, and based on believable evidence from which a reasonable administrator would take such action. In re Macieyovski(PDF, 2MB), CSA 28-14, 8 (10/13/14).

Dismissal of appellant’s whistleblower claim was proper where appellant argued she did not withdraw all her whistleblower claims, but she did not dispute findings of 2 claims and she did not identify the remaining 3 claims or the Hearing Officer’s error in dismissing them. In re Redacted, CSB 67-11A, 7 (4/4/13).

Whistleblower Ordinance was not rendered retrospective merely because the facts upon which it operates occurred before the date it was adopted. In re Harrison(PDF, 4MB), CSA 55-07, 89-07 & 90-07, 59 (6/17/10), citing Wood v. Beatrice Foods Co., 813 P.2d 821 (Colo.App. 1991); Neodata Services v. Industrial Claim Appeals Office, 805 P.2d 1180 (Colo.App. 1991); Continental Title Co. v. District Court, 645 P.2d 1310 (Colo. 1982).

The legislative history of the Whistleblower Ordinance indicates that it was intended to mesh well with the Colorado whistleblower law, and they use similar wording, so state case law interpreting the statute is persuasive authority in interpreting the ordinance. In re Harrison(PDF, 4MB), CSA 55-07, 89-07 & 90-07, 59-60 (6/17/10).

An allegation of misconduct by a contractor does not assert official misconduct by a City officer or employee, as required to prove whistleblower violation. In re Harrison(PDF, 4MB), CSA 55-07, 89-07 & 90-07, 63 (6/17/10).

Complaints about workplace or personnel matters are not reports of official misconduct under Whistleblower Ordinance. In re Harrison(PDF, 4MB), CSA 55-07, 89-07 & 90-07, 66 (6/17/10), citing Methvin v. Batholomew, 971 P.2d 151 (Alaska 1998).

Inclusion of the word “mismanagement” in Whistleblower Ordinance’s list which also includes violations of law, rules, ethics and abuse of authority, indicates an intent to target serious violations of the standards affecting public employees and the larger interests of the citizens of Denver. In re Harrison(PDF, 4MB), CSA 55-07, 89-07 & 90-07, 66 (6/17/10).

Mistakes or even neglect by a City employee in performing work, without more, do not rise to the level of the type of misconduct targeted by the Whistleblower Ordinance. In re Harrison(PDF, 4MB), CSA 55-07, 89-07 & 90-07, 66 (6/17/10).

Mistakes or oversights during administration of a lengthy service contract that are resolvable by contract amendments or other means are not the type of misconduct addressed by the Whistleblower Ordinance. In re Harrison(PDF, 4MB), CSA 55-07, 89-07 & 90-07, 66 (6/17/10).

Whistleblower Ordinance does not provide for attorney’s fees as a remedy. In re Muller,(PDF, 90KB) CSB 48-08A (3/10/09).

The broad scope of the Whistleblower Ordinance includes direct and indirect forms of discipline and threats of discipline such as withholding work. In re Muller, CSB 48-08A, 2 (10/24/08).

Discussions between employee and supervisor about working conditions that do not assert official misconduct are not disclosures under the Whistleblower Ordinance. In re Steward(PDF, 198KB), CSA 18-08, 4 (Order 4/11/08).

A claim under the Whistleblower 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 Wehmhoefer, CSA 02-08, 4 (Order 2/14/08); DRMC 2-106 et seq.

Official misconduct means any act or omission by any officer or employee that constitutes 1) a violation of law, 2) a violation of any applicable rule, regulation or executive order, 3) a violation of the code of ethics or any other applicable ethical rules and standards, 4) the misuse, misallocation, mismanagement, or waste of any city funds or other city assets, or 5) an abuse of official authority. In re Wehmhoefer, CSA 02-08, 4-5 (Order 2/14/08); DRMC 2-107(d).

CRS 15-106 evidences the Career Service Authority's interest in maintaining an efficient City by providing protection from reprisal to employees who aid City investigations. In re Smith(PDF, 540KB), CSA 17-05, 7 (7/7/05).

When a City audit is an investigation into a complaint about the expenditure of public funds, employees who assist the audit by providing information are protected from retaliation by the rule. In re Smith, CSA 17-05, 7 (7/7/05) (decided under CSR 15-106 [now 16-22]).

Appellant’s good faith reporting of improper co-worker practices constituted whistleblowing activity protected from retaliation. In re Freeman(PDF, 557KB), CSA 40-05 and 75-04, 7 (3/3/05) citing Poe v. Shari’s Mgmt. Corp., 188 F.3d 519 (10th Cir.1999).

FOUND

Where agency placed appellant on investigatory leave immediately after he complained to his supervisor about mismanagement, agency argument that placing appellant on investigatory leave is not an adverse action ignores the broad scope of the Whistleblower Ordinance, and its language including withholding of work as an adverse employment action. In re Muller, CSB 48-08A, 2 (10/24/08).

Agency’s placement of an employee on investigatory leave is “withholding of work” under the Whistleblower Ordinance, since it did not permit him to perform his normal job duties in the workplace. In re Muller, CSB 48-08A, 2 (10/24/08).

Agency’s order to employee on investigatory leave, that he stay at home and have no contact with his co-workers, may be viewed as an indirect form of discipline or penalty within the broad scope of the Whistleblower Ordinance. In re Muller, CSB 48-08A, 2 (10/24/08).

Cases that define an adverse employment action in the context of civil rights claims are inapplicable to the broader language of Denver’s Whistleblower Ordinance. In re Muller, CSB 48-08A, 2 (10/24/08).

Agency’s placement of an employee on investigatory leave is an adverse action under the Whistleblower Ordinance, but it is not an adverse action for other kinds of claims under the CSRs. In re Muller, CSB 48-08A, 2 (10/24/08).

NOT FOUND

Appellant failed to prove the agency’s dismissal of him was retaliation for his whistleblowing where: a supervisor ordered an audit of appellant’s work one week before his alleged whistleblowing; appellant’s supervisors were unaware of his whistleblowing email until three months after his dismissal; and appellant presented no evidence that contradicted the essential facts on which the agency disciplined him. In re Macieyovski(PDF, 2MB), CSA 28-14, 9 (10/13/14).

Appellant did not prove claim that agency committed official misconduct by delaying implementation of energy conservation measures where the director had decided they were fiscally imprudent for a number of reasons, and appellant failed to rebut that evidence. In re Macieyovski(PDF, 2MB), CSA 55-13, 8 (4/1/14).

Appellant’s information was not a disclosure under the Whistleblower Ordinance where agency was aware of the energy audit, which was the original source of his information. In re Macieyovski(PDF, 2MB), CSA 55-13, 7 (4/1/14), citing Ward v. Industrial Commission, 699 P.2d 960 (Colo. 1985).

Appellant did not prove his claim that the agency's failure to implement certain energy audit recommendations violated the fiscal rule requiring that spending must be reasonable and in the best interest of the City, where the director had decided they were fiscally imprudent for a number of reasons, and appellant failed to rebut that evidence. In re Macieyovski(PDF, 2MB), CSA 55-13, 6 (4/1/14).

Appellant did not prove his claim that the agency's failure to implement certain energy audit recommendations violated two executive orders on energy conservation and best management practices where his only evidence was that his supervisor received credit for his conservation ideas. In re Macieyovski(PDF, 2MB), CSA 55-13, 5 (4/1/14).

Appellant’s advocacy of conservation measures was not a disclosure of official misconduct. In re Macieyovski(PDF, 2MB), CSA 55-13, 7 (4/1/14).

Appellant failed to prove whistleblower claim with evidence of her reports in past years to City Council that youth program funds were being blended into other work because 1) she failed to allege that this conduct violated a law or other authority or wasted city funds, 2) she did not prove the new appointee who disciplined her knew of her past reports, and 3) the passage of time since her reports argues against a finding that they motivated the discipline. In re Mack(PDF, 946KB), CSA 43-12, 10 (3/18/13).

Evidence did not support conclusion that appellant reasonably believed a City official or contractor caused or could have caused a default on City bond or distortion of City financial reports, and her disclosure occurred after the agency adverse action and could not have caused it. In re Harrison(PDF, 4MB), CSA 55-07, 89-07 & 90-07, 62 (6/17/10).

Since appellant alleged contract mismanagement by the agency after it imposed adverse actions on her, allegation could not have caused its adverse actions. In re Harrison(PDF, 4MB), CSA 55-07, 89-07 & 90-07, 62 (6/17/10).

A six-week delay in installing a reconciliation function into an unfinished Interactive Voice Recognition design did not constitute fiscal misconduct under the City fiscal accountability rules. In re Harrison(PDF, 4MB), CSA 55-07, 89-07 & 90-07, 62-63 (6/17/10).

City fiscal accountability rules do not mandate reconciliations of individual city contracts. In re Harrison(PDF, 4MB), CSA 55-07, 89-07 & 90-07, 63 (6/17/10).

Appellant did not provide evidence of her allegation that manager tried to delay her report to the auditor of contract mismanagement, and did not establish report of official misconduct under Whistleblower Ordinance. In re Harrison(PDF, 4MB), CSA 55-07, 89-07 & 90-07, 64 (6/17/10).

Appellant failed to prove that terms of investigative leave prevented her from making further disclosures of official misconduct, since she had obtained agency documents and learned her options under the Whistleblower Ordinance from City officials. In re Harrison(PDF, 4MB), CSA 55-07, 89-07 & 90-07, 67 (6/17/10).

Since appellant made no disclosures of official misconduct until after the agency adverse employment actions, she failed to prove her disclosures were a substantial or motivating factor for any of its adverse actions. In re Harrison(PDF, 4MB), CSA 55-07, 89-07 & 90-07, 68 (6/17/10).

Appellant’s mere citation of rules allegedly violated is insufficient to allege that her suspension was based on her disclosure of official misconduct, for purposes of establishing jurisdiction over her jurisdiction claim. In re Moore(PDF, 180KB), CSA 103-09 & 21-10, 2 (Order 5/26/10).

Employee's disagreement about the basis for her discipline and complaints about her treatment by her supervisor do not allege official misconduct for purposes of establishing jurisdiction over her whistleblower claim. In re Moore(PDF, 180KB), CSA 103-09 & 21-10, 2 (Order 5/26/10).

Employee complaint about conduct of co-worker was not a disclosure of official misconduct, as it did not rise to the level of a matter of public concern sufficient to affect the interests of the City and the larger interests of the citizens of Denver. In re Rems, 31-10, 2 (Order 5/12/10), citing In re Steward(PDF, 198KB), CSA 18-08, 4 (Order 4/11/08); Pickering v. Bd. of Educ., 391 U.S. 563 (1968).

A whistleblower claim supported only by a pre-disciplinary letter does not assert an adverse action. In re Thomas(PDF, 160KB), CSA 13-10 (Order 3/15/10).

Hearing Officer lacks jurisdiction over whistleblower appeal based solely on a pre-disciplinary letter, which is not itself an adverse action. In re Thomas(PDF, 160KB), CSA 13-10 (Order 3/15/10).

Agency’s withdrawal of retaliatory action which gave rise to appellant’s whistleblower claim removes that claim from Hearing Officer’s jurisdiction. In re Muller(PDF, 64KB), CSA 48-08 (Order 4/15/09).

Appellant failed to allege an act of official misconduct as necessary to assert a whistleblower claim where he did not state how his director’s revocation of liquor code penalties violated rules and regulations or abused her authority. In re Wehmhoefer, CSA 02-08, 5 (Order 2/14/08).

Appellant did not engage in a protected activity, an element of a retaliation claim, when she complained that she was required to do work that other employees should have performed, as she did not allege waste of public funds, abuse of authority, mismanagement of an agency or any other matter relating to the public interest. In re Leal-McIntyre(PDF, 7MB), CSA 77-03, 134-03 & 167-03, 8-9 (1/27/05), citing CRS 24-50.5-102.

Where employee raised whistleblower complaint, asserting misuse of City equipment, but supervisor took action to correct misuse on the same day, employee did not prove she was adversely affected by her complaint. In re Leal-McIntyre(PDF, 7MB), CSA 77-03, 134-03 & 167-03, 9 (1/27/05).

Contact

Americans with Disabilities Act (ADA)
720-913-5604
OHRFMLAandADA@denvergov.org

OHR Employee Relations Unit
720-913-5710
201 W. Colfax Ave., Dept 412
Denver, CO 80202
ERSTeam@denvergov.org

Workplace Mediation
720-913-5719
workplacemediation@denvergov.org