Decisions by Rules

Below is a list of Career Service Rules and sections of the Denver Revised Municipal Code that have been discussed in decisions issued by  the  Hearing Office. Click on any of the highlighted rules to be redirected to the summaries for decisions pertaining to the rule or code section.

Overview

Below is a list of Career Service Rules and sections of the Denver Revised Municipal Code that have been discussed in decisions issued by  the  Hearing Office. Click on any of the highlighted rules to be redirected to the summaries for decisions pertaining to the rule or code section.

Rule 3:  Recruitment and Selection 

3-25: Responsibilities in Recruitment and Selection Process (Former 3-15)

Assignment of acting duties is not controlled by this rule. In re Anderson & Connors, CSA 61-10, 63-10, 66-10 & 67-10, 8 (12/22/10).  

Agencies are not authorized to administer pre-employment testing except as specifically delegated by the CSA. In re Anderson & Connors, CSA 61-10, 63-10, 66-10 & 67-10, 8 (12/22/10).

3-40 B: Pre-Employment Assessment and Tests (Former 3-30)

CSA examination rules do not apply to assignments of acting duties. In re Anderson & Connors, CSA 61-10, 63-10, 66-10 & 67-10, 8-9 (12/22/10).  

 

Rule 5:  Appointments and Status

5-22: Duration

 An employee in a limited position who successfully completes probation attains Career Service status. In re Martillaro, CSA 42-06, 2 (11/30/06); 5-35 B. 

Agency’s decision not to extend a limited position appointment beyond its stated end date was not a layoff, and therefore was not in violation of Rule 5-35 of the Career Service Rules. In re Martillaro, CSA 42-06, 3 (11/30/06).

A career status employee whose position was extended annually until she chose demotion was not entitled to continuing layoff protection under 5-35 B, to which she would have been entitled, had she not demoted. In re Martillaro, CSA 42-06, 2 (11/30/06).


5-23: Number of Hours Worked

Requirement to work more than forty hours per week does not violate definition of “full time position” as a forty-hour work week. In re Bohner, CSB 13-17, 2 (1/18/18), citing CSR 5-23.

FLSA-exempt employees are constantly called on to work additional time without additional compensation, as that is the nature of their work. In re Bohner, CSB 13-17, 2 (1/18/18).

FLSA-exempt employees work until their tasks are completed. In re Bohner, CSB 13-17, 2 (1/18/18).

It is not abusive of FLSA that certain FLSA-exempt employees are required to respond to emergencies. In re Bohner, CSB 13-17, 2 (1/18/18).

CSR 5-23 and 9-70 through 71 do not entitle FLSA-exempt employee to stand-by pay for regular rotation of after-hours duties for several one-week periods during the year. In re Bohner, CSB 13-17, 2 (1/18/18).


5-30: Employee Status (Former 5-41)

Where employee was reclassified during probation, then accepted another position higher than the job she was hired into but lower than her reclassified position, factual issue exists whether appellant attained career service status at the time of her termination. In re Brooks, CSB 91-07, 2 (Order 4/9/08). 

Hearing officer must determine factual dispute regarding jurisdiction before the CSB will intervene in an interlocutory jurisdiction appeal. In re Brooks, CSB 91-07, 2 (Order 4/9/08). 

An employee in a limited position who successfully completes probation attains Career Service status. In re Martillaro, CSA 42-06, 2 (11/30/06); CSR 5-42 B. 


5-32: On-Call Status

Since an on-call employee does not hold career status under § 5-42, the only issues raised by the appeal are the discrimination claims. In re Wehmhoefer, CSA 02-08, 1 (Order 2/14/08); In re Escalera, CSA 54-06 (Order 8/14/06); 5-42 D. 

Agency’s decision not to extend a limited position appointment beyond its stated end date was not a layoff, and therefore was not in violation of Rule 14 of the Career Service Rules. In re Martillaro, CSA 42-06, 3 (11/30/06).

A career status employee who chose demotion to a limited position in July, 2005, was not entitled to § 5-62 5)’s layoff protection, which only protects employees appointed after January 16, 2004. In re Martillaro, CSA 42-06, 2 (11/30/06).

An on-call employee does not have career status. In re Escalera, CSA 54-06 (Order 8/14/06); CSR 5-42 D. 


5-34: Employment Probationary Status (Former 5-63)

Probationary employee cannot attain career status without having completed mandatory training programs even when the agency failed to request an extension of probation and erroneously certified the employee successfully completed probation. In re Sample, CSB 72-07, 3 (10/16/08). 

Probationary employee’s failure to complete mandatory training automatically extends probation until he completes training. In re Sample, CSB 72-07, 3-4 (10/16/08). 

Hearing officer’s reliance on § 5-42 B.2. in holding that completion of all mandatory training is not a necessary prerequisite for passing probation is erroneous. In re Sample, CSB 72-07, 4 (10/16/08). 

The intent of this rule was to establish how minimum periods of employment probation and promotional probation are calculated when an employee on employment probationary status is promoted. In re Sample, CSB 72-07, 4 (10/16/08). 

The number of successfully completed months of service in both pre and post-promotional positions may be combined to satisfy the six-month probation requirement. In re Sample, CSB 72-07, 4-5 (10/16/08). 

Interpretation of this rule as combining successfully-completed months of service in both pre and post-promotional positions harmonizes with other rule provisions that require successful completion of both the minimum period of employment and mandatory training before an employee attains career status. In re Sample, CSB 72-07 (10/16/08), citing CSRs 5-42 B.1.a; 6-20 C; 5-53 C; and 5-52 B.

An employee may be deemed to have passed employment probation by default, but only if he successfully completed both the minimum probationary period and the mandatory training. In re Sample, CSB 72-07, 3 (10/16/08), citing CSR 5-53 C. 

The purpose of probation is to allow an agency a work-test period after hire for close observation of a new employee to determine if his performance meets required standards, and permit the employee to obtain assistance to adjust to new duties. In re Sample, CSA 72-07, 6 (6/12/08), reversed on other grounds In re Sample, CSB 72-07, 3 (10/16/08).

The rules provide that the CSA, each agency, and the employee all share responsibility for a probationary employee’s completion of training requirements. In re Sample, CSA 72-07, 7 (6/12/08), reversed on other grounds In re Sample, CSB 72-07, 3 (10/16/08).

Using hire date to determine mandatory training requirements for probationary employees rather than a subsequent effective date of a rule on training would require agencies to apply two different training requirements to them, an impractical result that could not have been intended by the CSB. In re Sample, CSA 72-07, 7-8 (6/12/08), reversed on other grounds In re Sample, CSB 72-07 (10/16/08).


5-34 A: Purpose of Probation

Hearing officer erroneously interpreted rules in concluding that a probationary employee can attain career status by default without having completed mandatory training programs if the agency fails to timely request an extension of probation and/or erroneously certifies that the employee successfully completed probation. In re Sample, CSB 72-07, 3 (10/16/08).

A probationary employee’s failure to complete mandatory training automatically extends probation until he completes training. In re Sample, CSB 72-07, 3-4 (10/16/08). 


5-34 F: End of Probation Notification

An employee can be deemed to have passed employment probation by default, but only if he has successfully completed both the minimum probationary period and the mandatory training. In re Sample, CSB 72-07, 3 (10/16/08). 

The responsibility to ensure that a probationary employee completes the training mandatory under  6-20 A. is shared equally among the employee, the agency and CSA. In re Sample, CSB 72-07, 3 (10/16/08).

Prior to the end of the probationary period, the agency is required to notify the employee and CSA in writing whether or not the employee has passed probation. In re Sample, CSB 72-07, 3 (10/16/08). 


5-34 F.3.c: Failure to File End of Probation Notification (Former 5-53 C)

Hearing officer erroneously interpreted rules in concluding that a probationary employee can attain career status by default without completing mandatory training programs if the agency fails to timely request an extension of probation and/or erroneously certifies that the employee successfully completed probation. In re Sample, CSB 72-07, 3 (10/16/08).


5-35: Career Status (Former 5-62)

A career status employee was not entitled to layoff protection when she took a demotion to a limited position in 2005. Under CSR 5-35 B, limited employees appointed after 1/16/04 are not entitled to layoff protection. In re Martillaro, CSA 42-06, 2 (11/30/06). 

Career service employees are entitled to lay-off protection. In re Foley, CSA 19-06, 7 (11/10/06). 

A career status employee is entitled to layoff protection in accordance with Rule 5-35. In re Romberger, CSA 89-04, 5 (3/2/05).

5-61: Employee in Employment Probationary Status

While on employment probationary status, employees are subject to termination or demotion at any time, have limited appeal rights and are subject to other restrictions. In re Sample, CSB 72-07, 3 (10/16/08).

 

Rule 7:  Classification and Compensation

Purpose Statement  

The classification process is intended to ensure like pay for like work within the city’s merit-based personnel system through the use of a systematic method of individual or group classification reviews. In re Hamilton, CSA 100-09 & 107-09, 15 (9/17/10), citing CSR 7 purpose statement.

Using hiring date to determine mandatory training requirements for probationary employees rather than a subsequent effective date of a rule on training would require agencies to apply two different training requirements to them, an impractical result that could not have been intended by the CSB. In re Sample, CSA 72-07, 8 (6/12/08), reversed on other grounds In re Sample, CSB 72-07 (10/16/08).

The temporary assignment of higher level duties to a demoted employee during the transition after a lay-off does not require higher level pay. In re Jackson, CSA 103-04, 4 (6/13/05) (decided under former 9-10 and 7-13).

7-10: Definitions

CSA bears responsibility for maintaining classifications of positions so nearly alike in the essential character of their duties and responsibilities that the same pay grade, title and specification can be applied, and the positions can fairly and equitably be treated alike under like conditions for all other personnel purposes. In re Hamilton, CSA 100-09 & 107-09, 15 (9/17/10), citing CSR 7-10 C.

A position is an aggregate composition of duties and responsibilities performed by one employee. In re Hamilton, CSA 100-09 & 107-09, 15 (9/17/10), citing CSR 7-10 G.

Project manager was the same position as senior architect where: agency transferred the architect duties to project manager; qualifications were almost identical; project manager testified that work was the same; and the job description, evaluations, and workload transition plan defined the work as project management. In re Hamilton, CSA 100-09 & 107-09, 16-17 (9/17/10).


7-20: Classification and Pay Plan

A position is classified by its essential job duties, but the assignments given to each position are controlled by the supervisor. In re Jackson, CSA 103-04, 4 (6/13/05).

Once allocated to a class, only permanent changes to essential duties that comprise a majority of work time and are most important to the position will justify reallocation and a resulting change in pay. In re Jackson, CSA 103-04, 4 (6/13/05) (decided under former 7-13).

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

“Knowledge, skills, ability and expertise” necessary to be entitled to a demotional appointment after lay-off are the characteristics or qualifications that allow an employee to succeed in performing a job’s essential duties. In re Romberger, CSA 89-04, 6 (3/2/05) (decided under former 7-12).

CSA approval is not needed to implement changes to a PEP. In contrast, the job specification establishing the classification and pay to be assigned a job title must be adopted by the Career Service Board. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 4-5, 13 (1/27/05).


7-31: Responsibility for Establishment of Positions and Assignment of Duties

The temporary assignment of higher level duties to a demoted employee during the transition after a lay-off does not require higher level pay. In re Jackson, CSA 103-04, 4 (6/13/05) (decided under former 9-10 and 7-13).


7-33: Re-Allocation of Existing Positions

Agency’s acceptance of a private contractor’s reclassification recommendation without a reclassification audit diverged from the Career Service Rules. In re Hamilton, CSA 100-09 & 107-09, 25 (9/17/10).   

Reduction in a position's pay grade without a re-allocation audit appears to run contrary to the classification rules, as it bypassed the process and framework intended to ensure like pay for like work, a core principal of the merit system under the city charter. In re Hamilton, CSA 100-09 & 107-09, 17 (9/17/10), citing In re Romberger, CSA 89-04, 9 (3/2/05); Hanley v. Murphy, 255 P.2d 1, 4 (Cal. 1953.)


7-34: Audits

The Career Service Rules do not grant an employee the right to suspend performance of a challenged assignment until the completion of an audit. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 8 (1/27/05) (decided under former 7-22).

7-37: Effective Dates

PEPs do not require approval from the CSA before they are effective. In contrast, changes to a classification and pay plan are not effective until approved by the Career Service Board. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 4-5, 13 (1/27/05) (decided under former 7-98).


7-40: Request for Administrative Review

Reclassification is subject to administrative review upon timely request of agency appointing authority. In re Sullivan, CSA 44-08 (Order 6/13/08).

Reclassification was not an involuntary demotion with attendant loss of pay where it was not initiated through discipline, disqualification, or in lieu of separation during a probationary period. In re Sullivan, CSA 44-08 (Order 6/13/08).

The hearing office has no jurisdiction over a reclassification, the sole remedy for which is contained in CSR § 7-40. In re Sullivan, CSA 44-08 (Order 6/13/08).

Administrative review of a classification decision allows an agency to obtain review by the Personnel Director of a classification decision that does not meet its personnel needs. In re Connors, CSA 35-06, 2 (Order 8/9/06).

Personnel Director does not have authority to waive a mandatory educational qualification for an individual applicant. In re Connors, CSA 35-06, 2 (Order 8/9/06), citing In re Bourgeron, CSA 92-03, 102-03 & 113-03 (3/8/04).


7-50: Compensation Policy

Denver’s merit-based career service personnel system ensures that employees in career status are paid like pay for like work under an approved classification and pay plan, and that they may be disciplined or dismissed only for cause. In re Foley, CSA 19-06, 7 (11/10/06). 


 

Rule 9:  Pay Administration

9-31: Promotion and Re-Promotion

Appellant failed to establish a violation of any career service rule, ordinance or charter provision where he was promoted at salary step one with 20% increase in pay, after agency’s withdrawal of offer to pay at step seven. In re Mallard, CSA 129-05, 3 (2/23/06) (decided under former 9-61).

9-33: Demotion

Involuntary demotion with attendant loss of pay is defined as a demotion initiated through discipline, disqualification, or in lieu of separation during probation. In re Sullivan, CSA 44-08 (Order 6/13/08).

Reclassification is not an involuntary demotion with attendant loss of pay under this section. In re Sullivan, CSA 44-08 (Order 6/13/08).

Demotion in lieu of layoff is involuntary, therefore pay is governed by the rule on pay for involuntary demotion. In re Rodriguez, CSA 106-04, 4-5 (3/2/05).  

The phrase “at the top of the growth sector in a pay range” refers to the pay range for the position to which the employee is demoted, not the position from which the employee was demoted. In re Rodriguez, CSA 106-04, 6-7 (3/2/05) (decided under former 9-63).

9-40: On-Call Employees

Sheriff’s Dept. Director’s does not derive authority under this rule to appoint a major to acting division chief, as CSR 9 does not apply to employees in the Undersheriff pay schedule. In re Anderson, et al., CSA 61-10, 63-10, 66-10 & 67-10, 7 (12/22/10).  

Rule does not contemplate additional pay for working less than 30 days in a position out of appellant’s job classification. In re Van Dyck, CSA 143-05, 2 (Order 2/16/06) (decided under former 7-80).

9-50: Differentials and Pay Practices

This rule grants the career service board authority, in its sole discretion, to make a market adjustment in a pay practice or to create a temporary pay practice if certain conditions are met. In re Anderson, et al., CSA 78-08 to 124-08, 2 (Order 1/7/09).

Appeal of denial of pay adjustment based on hire of new employees at higher rate does not state a claim under § D of this rule, which grants CSB sole discretion to make market adjustments in pay practices. In re Anderson, et al., CSA 78-08 to 124-08, 2-3 (Order 1/7/09).

Appeal of denial of pay adjustment based on hire of new employees at higher rate does not state a claim under § E of this rule, which grants CSA personnel director sole discretion to adjust pay within same pay grade for current employees in order to eliminate pay inequity. In re Anderson et al., CSA 78-08 to 124-08, 3 (Order 1/7/09).

9-52: Equipment Differential

Where appellant filed no grievance, jurisdiction over appeal of denial of equipment pay differential is absent. In re Chavez, CSA 09-06 (Order 3/6/06) (decided under former 9-92).

9-55: Standby Pay

This rule authorizes an agency to assign stand-by duty only when there is a reasonable anticipation the employee will have to respond and perform work immediately. In re Bohner, CSB 13-17, 4 (1/18/18).

This provision is inapplicable to employee claiming agency could not assign stand-by duties where she was ineligible for stand-by pay. In re Bohner, CSB 13-17, 4 (1/18/18).

Since agency responded to between 300 and 600 emergency calls per year, it was reasonable in assessment that employee could be anticipated to work in the weeks she was assigned after-hours duty regardless whether she actually responded to an emergency. In re Bohner, CSB 13-17, 4 (1/18/18).

Agency was within its rights to assign after-hours duties to FLSA-exempt employee without stand-by or overtime compensation. In re Bohner, CSB 13-17, 4 (1/18/18).

Agency did not treat FLSA-exempt employee unfairly by assigning her several weeks per year of mandatory after-hours emergency response duties. In re Bohner, CSB 13-17, 4 (1/18/18).

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

 

9-56: Call Back Pay

CSR 9-56 requires a specific, fixed location, “the work site,” to which the agency can require its employees to report back, where they had been working during regular hours. In re Osborne et al, CSA 35-18…38-18, 5 (9/5/18).

9-71: Standard Work Week

CSR 5-23 and 9-70 and 71 do not entitle FLSA-exempt employee to stand-by pay for regular rotation of after-hours duties for several one-week periods during the year. In re Bohner, CSB 13-17, 2 (1/18/18).

CSR 9-71 does not require that an FLSA-exempt employee required to work more than forty hours per week is entitled to stand-by or overtime pay. In re Bohner, CSB 13-17, 2-3 (1/18/18).

Payroll practice to pay salaried employees does not justify absences during a work schedule set by supervisor, or excuse failure to work the standard forty-hour work week set by the CSRs. In re Martinez, CSA 10-17, 5 (7/19/17).

Appellant’s disagreement with her work schedule is not relevant to the claimed rule violations, which were proven by her unauthorized absences from work and deviations from her scheduled shift. In re Martinez, CSA 10-17, 5 (7/19/17). 

Rule 9 permits agencies to pay and schedule their employees in accordance with the standards adopted by the CSB. In re Bohner, CSA 13-17, 6 (6/5/17). 

Under Rule 9, the presumptive forty-hour work week is not the maximum an exempt employee may be required to work. In re Bohner, CSA 13-17, 6-7 (6/5/17), citing Minnick v. City and Cty. of Denver, 784 P.2d 810 (Colo. App. 1989) (holding an intent to establish a basis for liability must be clearly expressed in an ordinance).

The CSRs empower the mayor and appointing authorities to deviate from the forty-hour work week in an emergency or when efficiency dictates a different schedule. In re Bohner, CSA 13-17, 6 (6/5/17), citing CSR 9-72 through 9-80.

 

9-72: Posting of Changes in Work Schedules

CSR 9-72 deals with changes in work schedules and notice of those changes to employees. In re Bohner, CSB 13-17, 3 (1/18/18).

 

Rule 10:  Paid Leave

10-30: Sick and Vacation Leave (Former 5-62)

Agency violated this Rule in disciplining Appellant for use of seven sick leave days in one year, where Agency did not dispute that Appellant was legitimately ill and she used banked leave. In re Rock, CSA 09-10, 6 (10/5/10). 

10-63: Observation of Holiday (Former 10-52)

Subject to a supervisor’s approval and appropriate staffing, the Career Service Rules permitted appellant, who was required to work on a City holiday, to request one hour of holiday leave at the end of a ten-hour shift during the same week as a City holiday. In re Leslie, CSA 10-11, 16 (12/5/11).

Rule 11:  Unpaid Leave

11-20: General Provision of Unpaid Leave

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 medical problems or disabilities. In re Martinez, CSB 09-12, 4-5 (8/15/13), citing 29 CFR 1630.14 (c). 

Sheriff's departmental order on fitness for duty examinations was not intended to allow a supervisor to send an employee for an examination out of spite or on a whim, or without sufficient information to form a reasonable belief that mental or physical issues or disabilities were preventing an employee from performing the job in an acceptable manner. In re Martinez, CSB 09-12, 3 (8/15/13), citing 29 CFR 1630.14 (c).

Supervisor who ordered deputy to undergo fitness for duty examination did not have reasonable basis for concluding that deputy had a breakdown, where she did not witness the incident, and two other supervisors who witnessed it did not conclude deputy was having a breakdown. In re Martinez, CSB 09-12, 3-4 (8/15/13).

Lacking sufficient information to reasonably conclude that appellant's inappropriate behavior prevented her from performing her job acceptably due to medical problems or disabilities, management faced a disciplinary issue, not a medical one. In re Martinez, CSB 09-12, 4 (8/15/13).

Inappropriate behavior does not automatically justify an order for a fitness for duty examination. In re Martinez, CSB 09-12, 4 (8/15/13). 

Deference to management decision-making cannot replace evidence or the requirement that management have sufficient information to form a reasonable belief that a fitness for duty examination is justified. In re Martinez, CSB 09-12, 4 (8/15/13).

An agency has authority to assess leave without pay and to impose disciplinary action for the same incident. In re Lottie, CSB 132-08 (7/7/09).

This rule concerns an agency’s authority to grant an employee’s request for leave without pay, not whether agency may assess leave without pay for an employee’s absence. In re Vigil, CSA 110-05, 6 (3/3/06).

Request for ninety days of leave without pay was not a reasonable accommodation where appellant analyst was behind in his work, causing significant strain on other analysts and on the agency’s obligation to process applications for minority contractors, and appellant could not perform his essential work functions for an indefinite time. In re Torres, CSA 97-05, 3 (2/21/06).

Sick leave for Career Service employees is authorized for necessary care and attendance during sickness, or for death of a member of the employee’s immediate family. In re Espinoza, CSA 30-05, 4 (1/11/06). 

In applying rigid departmental rule mandating discipline after a certain number of sick days, undersheriff’s assumption of leave abuse created irreconcilable friction with career service rules by preventing legitimate application of sick leave rule. In re Espinoza, CSA 30-05, 6-7 (1/11/06). 

Agency’s application of departmental rule mandating discipline after a certain number of sick days violated appellant’s right to take accumulated sick leave. In re Espinoza, CSA 30-05, 7 (1/11/06).  

The purpose of sick leave is to allow leave for personal or family incapacity due to illness or for a death in the family. In re Conway, CSA 40-05, 4 (8/16/05). 

Rule 13:  Pay for Performance

In General

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

The different goals of Rule 13 Pay for Performance and Rule 16 Discipline and Dismissal require different tools. In re Roberts, CSA 84-07, 6 (3/7/08). 

The Career Service Rules do not prohibit rating an employee based on behavior for which discipline was imposed during the rating. In re Roberts, CSA 84-07, 6 (3/7/08). 

Rule 13 provides for an annual evaluation of an employee’s performance for the purposes of setting annual merit increases and giving valuable feedback to the employee. In re Roberts, CSA 84-07, 6 (3/7/08). 

Career Service employees who have passed employment probation are evaluated and rated once per year in a Performance Enhancement Program Report that is based on a comparison between the employee’s perceived performance and expectations set out in the year’s Performance Evaluation Program (PEP). In re Proctor, CSA 52-07, 3 (1/3/08). 

A performance review must be based on objective standards in the PEP or job description in order to give the employee notice of the criteria by which performance will be judged in the performance review. In re Proctor, CSA 52-07, 3 (1/3/08),citing In re Macieyovski, CSA 62-06, 3 (12/14/06). 

The overall performance review rating is not an exact calculation based upon the sum of equally weighted components, but is tied more closely to the expected accomplishments that have considerable influence or effect. In re Proctor, CSA 52-07, 8 (1/3/08) citing In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 6 (1/27/05). 

Evidence of performance issues contained in previous performance reviews may support an inference of notice or inferences relating to credibility. In re Proctor, CSA 52-07, 6 (1/3/08).


13-10 D: Performance Improvement Plan (PIP)

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

13-20: Goal Setting and Performance Reviews

Appellant’s needs improvement performance review was based upon her poor performance and refusal to incorporate suggested changes, rather than retaliation, where she: often arrived late and checked out early; repeated the same mistakes after many reminders; failed to comply with quality control measures; claimed she was undertrained, but refused others’ suggestions to improve; claimed her scanning errors were due to hardware and software problems which no one else encountered; 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, CSA 103-09 & 21-10, 3-6 (10/14/10). 

The purpose of an annual performance review is to evaluate individual performance, and reward successful performance with merit pay increases under the Career Service Rules. In re Padilla, CSA 25-06, 10 (9/13/06).

13-30: Performance Review Process

An employee who received an overall PEPR performance review rating of meets expectations or better may be found deficient under this rule where he failed to meet his performance standards in a specific PEPR category, but late submission of the performance review forced the higher rating. In re Abbey, CSA 99-09, 9 (8/9/10). 

Interpreting the Career Service Rules as limiting agency sanctions for poor performance to downgrading a performance rating would render meaningless the language of CSR 16-20 which permits an agency to assess discipline for inappropriate behavior or performance. In re Cady, CSA 03-10, 4 (4/22/10). 

The purpose of a PIP is to make an employee aware of performance deficiencies and to provide a reasonable opportunity for improvement. It also clarifies management’s expectations of job performance, particularly when an agency seeks to modify performance standards. In re Mounjim, CSB 87-07, 3 (1/8/09).

The objectives of a PIP are not served without clear communication to the employee about management expectations. In re Mounjim, CSB 87-07, 3 (1/8/09).

A PIP should identify performance deficiencies the employee is expected to address, specific actions the employee must take to improve performance, and the standards by which the employee’s performance will be measured. In re Mounjim, CSB 87-07, 3 (1/8/09).

Principles of fairness require that changes in management’s expectations be clearly communicated. In re Mounjim, CSB 87-07, 4 (1/8/09).

When an agency determines that materials submitted by an employee for purposes of a specific PIP requirement are so deficient as to justify disciplinary action, it is incumbent upon the agency to prove such deficiency, rather than on the employee to prove compliance. In re Mounjim, CSB 87-07, 5 (1/8/09).

An evaluation must be fairly based on the standards and measures in the PEP plan in order to give an employee notice of the criteria by which performance will be judged. In re Padilla, CSA 25-06, 10 (9/13/06); See also In re Macieyovski, CSA 62-06, 3 (12/14/06). 

Individual performance evaluations must weigh performance against objective standards to the extent feasible given the job being measured. In re Padilla, CSA 25-06, 10 (9/13/06)

CSRs require agencies to evaluate performance of non-probationary employees once a year. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 4 (1/27/05). 

Agency supervisor may revise the annual PEP, for which CSA authority is not needed, to include new duties an employee performed. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 4 (1/27/05).

While CSA approval is not needed to change a PEP, job specifications establishing  classification and pay for a position must be adopted by the CSB. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 5 (1/27/05). 

Performance is rated against an employee’s achievement of the expected accomplishments set forth in that year’s PEP, which details the duties to be performed by each employee holding a career service position within each agency. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 4 (1/27/05). 

Work review may be rated below expectations when employee failed to meet a significant portion of her expected accomplishments, even though she met more than 50% of her expectations. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 6 (1/27/05) (decided under former 13-23). 

A significant portion of expected accomplishments has been interpreted to refer to expected accomplishments that have considerable influence or effect. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 6 (1/27/05) (decided under former 13-23), citing In re Douglas, CSA 154-02 & 166-02, 4 (1/27/03). 

The effect of a failure to perform determines whether the inadequacy of the performance merits a below expectations rating. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 6 (1/27/05) (decided under former 13-23).

The proportion of positive to negative remarks in a supervisor’s day-to-day notes regarding an employee does not determine whether a performance must be rated at a certain level. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 6 (1/27/05) (decided under former 13-23).

An agency’s determination of what constitutes a significant portion of an employee’s accomplishments will not be overturned unless it is arbitrary, capricious, and without rational basis or foundation. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 6 (1/27/05) (decided under former 13-23). 

Agency did not abuse its discretion in determining attendance, personal relations, personal contact,  safety, and security constituted a significant portion of appellant’s duties when her failure to perform in those areas exerted a considerable negative effect on her overall performance. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 6 (1/27/05) (decided under former 13-23). 

Below expectations rating for attendance was not arbitrary when appellant’s pattern of leaving work without permission when angry undermined her supervisor’s authority to control staffing. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 7 (1/27/05). 

Below expectations rating in “personal relations” justified by Appellant’s confrontational criticism of her co-workers and refusal to comply with instructions on three occasions. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 7 (1/27/05). 

Below expectations rating in the area of personal contact for appellant’s continued confrontation of her co-workers was not comparable to a co-worker’s single heated exchange with another worker. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 7 (1/27/05). 

Violations that occurred outside the rating period cannot be used to support a below expectations rating. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 7-8 (1/27/05) (decided under former 13-10).

Below expectations rating for safety and security, which measured appellant’s compliance with agency rules and directives, was not arbitrary, based on appellant’s refusal to do assigned work until a job audit was completed, calling a co-worker an asshole, and leaving work without permission. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 8 (1/27/05). 

Below expectations rating for inappropriate conduct stemming from employee’s objection to fingerprinting duty was not arbitrary, although that duty was not specifically included in PEP plan. Appellant had been performing the duty since her hire three years previously, and was on notice for over two months that the agency considered her objection unfounded. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 9-10 (1/27/05). 

Career Service Rules do not support appellant’s argument that she may refuse to perform a duty that appears on a different job description and not on hers. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 9 (1/27/05). 

While PEPs do not require approval from the CSA before they are effective, changes to a classification and pay plan are not effective until approved by the CSB. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 13 (1/27/05) (decided under former 13-23).


13-39: Grievances and Appeals Related to Performance Reviews (Former 13-50)

While an employee may grieve any performance review rating, only an “unacceptable” rating may be directly appealed to the Hearing Office. In re Muhammad, CSA 06-11 (Order 2/8/11), citing CSR 19-20 B.1.b.i, 18-30 A.2.  

If the agency denies the grievance of a performance review rating then, on appeal, appellant must establish the rating negatively affected pay, benefits, or status. In re Muhammad, CSA 06-11 (Order 2/8/11). 

No aspect of the performance review program, other than a performance rating, may be grieved or appealed. In re Muhammad, CSA 06-11 (Order 2/8/11). 

Hearing Office lacked jurisdiction to consider appeal from denial of grievance of “successful” performance review rating. In re Muhammad, CSA 06-11 (Order 2/8/11).

This rule's prohibition, at § 13-50 C, of appeals of “any other aspect” of the PEP must be read in conjunction with the immediately preceding rule prohibiting grievance appeals of all ratings save "needs improvement." [now only “unacceptable”]. In re Vasquez & Lewis, CSA 08-09 & 09-09, 2 (5/20/09). 

Though no aspect of the performance review is appealable save grievance of an "Unsuccessful" rating, where appellants do not challenge the performance review rating, but allege a rule violation that has negatively impacted their pay, appellants have stated a claim for relief under the jurisdictional rules 19-10 A.2.b.i. In re Vasquez & Lewis, CSA 08-09 & 09-09, 2-3 (5/20/09).

While an employee may grieve any performance rating, only those matters that negatively affect pay, benefits, or status may be appealed if the agency denies the grievance. In re Stenke, CSA 14-06, 1 (3/15/06). 

NOT FOUND   

Appellant’s rating of “Unacceptable” [previously “failing” or “needs improvement”] was in accordance with the clear standards set out in the performance review, which allowed no more than one significant error in courtroom management per month, but appellant committed six significant errors. In re Roberts, CSA 84-07, 6 (3/7/08).

Agency’s “Unacceptable” [previously “failing” or “needs improvement”] rating was appropriate for appellant, who made thirty data entry errors in two quarters, exceeding the PEP standard for a successful rating of two errors per quarter, and who mistakenly processed a file as “dead” instead of dismissed. In re Roberts, CSA 84-07, 7 (3/7/08).

Appellant’s performance was “Unacceptable” [previously “failing” or “needs improvement”] in co-worker relations category where she admitted making angry and confrontational statements that adversely affected the work environment between her and her supervisor. In re Roberts, CSA 84-07, 7 (3/7/08).

“Unacceptable” [previously “failing” or “needs improvement”] rating for punctuality was not arbitrary, capricious, or without rational basis or foundation where standard was four late starts per quarter, but appellant was late thirteen times in two quarters. Her use of crutches mitigated the penalty, but did not render the rating incorrect. In re Roberts, CSA 84-07, 7 (3/7/08).

An overall rating of “Unacceptable” [previously “failing” or “needs improvement”] is not rendered arbitrary, capricious, or without rational basis or foundation simply because all the deficiencies on which it is based occurred in one part of the rating period. In re Roberts, CSA 84-07, 8 (3/7/08), citing In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03 (1/27/05).

“Unacceptable” [previously “failing” or “needs improvement”] rating for work performance in early part of rating period was not rendered arbitrary, capricious, or without rational basis or foundation by appellant’s impressive performance improvements during the latter part of the rating period. In re Roberts, CSA 84-07, 8 (3/7/08).

Administrator’s “Unacceptable” [previously “failing” or “needs improvement”] rating for her teamwork was not arbitrary, capricious or without rational basis or foundation where she left two new branch managers on their own to determine their training and duties, and she failed to ensure they were adequately equipped. In re Proctor, CSA 52-07, 5 (1/3/08).

Agency’s “Unacceptable” [previously “failing” or “needs improvement”] rating of administrator’s respect for self and others was justified by testimony that administrator was tactless and abrasive, and by concerns about her demeanor in five previous performance reviews. In re Proctor, CSA 52-07, 6-7 (1/3/08).

Agency’s “Unacceptable” [previously “failing” or “needs improvement”] rating of administrator for “other duties” category was not arbitrary, capricious or without rational basis or foundation where she did not meet with or mentor two new managers, and passed them from probation without consulting her supervisor. In re Proctor, CSA 52-07, 7 (1/3/08).

“Unacceptable” [previously “failing” or “needs improvement”] rating of administrator was not arbitrary, capricious, or without rational basis or foundation where she failed to meet significant portion of her expected accomplishments, and her shortcomings were critically important to her supervisory status. In re Proctor, CSA 52-07, 8 (1/3/08).


 

Rule 14:  Separation Other Than Dismissal

14-20 A: Resignation (former 14-51)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

14-20 C: Job Abandonment (former 14-50 C)

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

14-30: Disqualification (Former 14-20)

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

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

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

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

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

14-31 A: Physical or Mental Impairment or Incapacity (Former 14-21 A)

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

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

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

14-31 B: Licensure, Certification and Other Legal Requirements (Former 14-21 B)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

14-32: Disqualification Procedure (Former 14-22)

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

14-40: Separation of Employees Holding At-Will, Trainee, or Intern Probationary or Employment Probationary Status (Former 14-30)

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

14-50: Layoff (Former 14-40)

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, 34-16, 6 (8/8/18).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

14-51: Definition of Layoff (Former 14-41)

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

 

14-52: Order of Layoff (Former 14-42)

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

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

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

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

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

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

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

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

 

14-54: Sequence of Layoffs (Former 14-44)

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

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

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

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

 

14-54 C: Effect of Proficiency (Former 14-44 C)

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

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

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

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

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

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

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

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

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

 

14-55 A: Reassignment or Transfer Appointment

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

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

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

 

14-55 B: Demotional Appointment (Former 14-45 B)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

14-56 A: Layoff Planning (Former 14-46 A)

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

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

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

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

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

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

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

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

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

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

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

 

14-56 C: 30-Day Notice (Former 14-46 C)

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

14-57: Re-Instatement (Former 3-41)

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

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

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

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

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

 

Rule 16:  Code of Conduct and Discipline

PURPOSE STATEMENT 

A post-hearing re-jiggering of evidence to meet specific violations cannot correct a pre-hearing deficiency of notice. In re Schofield, CSA 08-17, 15 (10/9/17).

Career service system provides for merit-based appointment of applicants, and performance-based retention of city employees. In re Sample, CSA 72-07, 5-6 (6/12/08), citing City Charter 1.2.1; D.R.M.C. 18-1, reversed on other grounds, In re Sample, CSB 72-07 (10/16/08).

Disciplinary rules for career service employees are governed by the principles of due process, personal accountability, reasonableness, and sound business practice. Therefore, discipline is proper if it would promote those principles. In re Burghardt, CSA 81-07, 5 (3/28/08), reversed In re Burghardt, CSB 81-07 (8/28/08).

16-10: Service of Written Notice and Computation of Time

IN GENERAL

Disciplinary notices must be in writing and must be served on the employee. In re Webster, CSA 03-11, 1 (Order 1/14/11).

Disciplinary notices under Rule 16 must be served "in person with a certificate of hand delivery, or by first class U.S. mail, with a certificate of mailing to the employee's last known address." In re Kemp, CSA 61-08, 2 (Order 9/17/08)[amended to include service by email].

16-21: Compliance with Code of Ethics and Executive Orders

Appellant violated DRMC 2-67 by using her public office to help her sister’s fraudulent application for public assistance. In re Abdi, CSA 63-07, 29 (2/19/08).

Deputy sheriff who asked police for “professional courtesy” to avoid prosecution when arrested for failing to pay for a beer while off duty sought undue advantage in violation of ordinance. In re Mergl, CSA 131-05, 6 (3/13/06) (decided under former 15-20).

16-22: Harassment, Discrimination and Retaliation

HARASSMENT - IN GENERAL

Rule is intended to prohibit harassing conduct taken at least partially on account of the victim’s gender. In re Novitch, CSB 49-15, 3 (9/15/16).

Sexual harassment does not require proof that actor disliked the victim’s gender. In re Novitch, CSB 49-15, 2 (9/15/16).

Interpretation of sexual harassment that requires finding of animus misinterprets this rule. In re Novitch, CSB 49-15, 2 (9/15/16).

Rule 16-22 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, CSB 63-09, 4-5 (3/17/11).

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, CSA 87-09, 6 (2/17/10).

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

To establish harassment, appellant must show under the totality of the circumstances that 1) the harassment was pervasive or severe enough to alter the terms, conditions or privileges of employment, and 2) the harassment was based on a protected status or stemmed from animus against a protected status. In re Hernandez, CSA 03-06, 10 (5/3/06).

EEOC has defined harassment as unwelcome actions taken because of an employee’s membership in a protected class when such conduct has the purpose or effect of unreasonably interfering with performance or creating an intimidating, hostile or offensive working environment. In re Roberts, CSA 179-04, 6 (6/29/05), citing 29 CFR 1604.11(a).

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, 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 re Roberts, CSA 179-04, 6 (6/29/05).

Claims that discipline constituted harassment and retaliation are rendered moot by decision reversing discipline. In re Martinez, CSA 19-05, 9 (6/27/05).

Where appellant failed to establish a prima facie case for harassment, directed verdict is proper. In re Hurdelbrink, CSA 109-04 & 119-04, 7 (1/5/05).

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, 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, 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, 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, CSB 49-15, n.9 (9/15/16).

HARASSMENT - NOT FOUND

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, CSA 87-09, 7 (2/17/10); citing Hicks v Gates Rubber Co., 833 F. 2d 1406, 1413 (10th Cir. 1987).

Supervisor’s reprimand for failing to type his notes due to poor handwriting and other criticisms did not establish harassment where tension between appellant and supervisor was a mutual creation. In re Hernandez, CSA 03-06, 11 (5/3/06).

Order to take remedial training did not permeate appellant’s employment by any objective measure as necessary to prove harassment. In re Johnson, CSA 135-05, 4 (Order 3/10/06), citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).

Logbook containing supervisors’ disagreement with deputy sheriff’s encounters with inmates as well as numerous compliments did not establish harassment on the basis of sex. In re Johnson, CSA 135-05, 4 (Order 3/10/06).

Harassment was not proven by evidence that supervisor imposed a written reprimand and inquired once about the employee’s brother, who was divorced from the supervisor’s sister. In re Williams, CSA 65-05, 8 (11/17/05).

A supervisor’s comments critical of appellant’s performance do not by themselves constitute harassment. In re Williams, CSA 65-05, 9 (11/17/05).

Appellant failed to establish hostile work environment by evidence that a prior supervisor asked her not to speak Spanish. In re Garcia, CSA 175-04, 7 (7/12/05).

A single undated incident in which a co-worker called appellant an unspecified name, which was promptly corrected by management, fails to state a claim of harassment. In re Owoeye, CSA 11-05, 7 (6/10/05); citing In re Marin, CSA 64-02 (5/19/02).

16-22 B:  TYPES OF HARASSMENT 

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, CSA 87-09, 6 (2/17/10), citing In re Norman-Curry, CSA 28-07 & 50-08, 10 (2/27/09); Hicks v Gates Rubber Co., 833 F. 2d 1406, 1413 (10th Cir. 1987).

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, CSA 70-08, 5 (3/2/09).

The disciplinary rule prohibiting harassment has no requirement that derogatory statements or conduct must be accompanied by derogatory intent, nor does it require an agency to prove a violation of state or federal anti-discrimination laws. In re Burghardt, CSB 81-07, 3 (8/28/08).

In order to establish that a single comment constitutes harassment based on a protected status sufficient to impose discipline, the agency bears the burden of persuasion that the statement was intentionally derogatory. In re Burghardt, CSA 81-07, 7 (3/28/08), reversed In re Burghardt, CSB 81-07 (8/28/08).

Based on agency’s failure to prove appellant intended his question to be derogatory on the basis of co-worker’s national origin, agency failed to prove appellant violated code of conduct prohibiting harassment based on a protected status. In re Burghardt, CSA 81-07, 7 (3/28/08), reversed In re Burghardt, CSB 81-07 (8/28/08).

DISCRIMINATION - IN GENERAL

The requirements for establishing an employment discrimination case are 1) the employee belongs to a protected class, 2) the employee was qualified for the job at issue, 3) despite his qualifications, the employee suffered an adverse employment decision, e.g., a demotion, discharge or failure to promote, and 4) the circumstances give rise to an inference of unlawful discrimination. In re Hernandez, CSA 03-06, 9 (5/3/06), citing In re Cobb, CSA 163-03 (2/5/04).

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

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

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

Appellant may prove discipline is pretext for discrimination by showing that he was treated differently than other similarly-situated, non-protected employees who violated work rules of comparable seriousness. In re Trujillo, CSA 44-05, 5 (11/14/05).

An employee is similarly situated to appellant if they have the same supervisor and are subject to the same standards governing performance and discipline.  The hearing officer should also compare the relevant employment circumstances, such as work history and company policies to determine whether they are similarly situated. In re Trujillo, CSA 44-05, 5 (11/14/05), citing Kendrick v. Penske Transp. Servs., 220 F.3d 1220 (10th Cir. 2000).

Agency may be found to discriminate if agency head acted as a rubber stamp, or “cat’s paw”, for a subordinate employee’s prejudice, even if agency head lacked discriminatory intent. In re Trujillo, CSA 44-05, 5 (11/14/05), citing Kendrick v. Penske Transp. Servs., 220 F.3d 1220 (10th Cir. 2000).

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

AGE

To establish a prima facie case of age discrimination, appellant must show membership in a protected age group, more than forty years old, an adverse employment action, and that similarly situated employee was treated differently. In re Hernandez, CSA 03-06, 9-10 (5/3/06).

Age discrimination case fails where appellant did not show that a younger person was disciplined less severely or at all for the same conduct, or that his supervisor was aware of his age. In re Hernandez, CSA 03-06, 10 (5/3/06).

Age discrimination is dismissed for failure to establish a prima facie case where appellant failed to present evidence of his age, that his supervisor was aware of his age, or that the suspension was imposed because of his age. In re Owens, CSA 139-04, 10 (3/31/05), citing O'Connor v. Consolidated Coin Caterers Group, 517 U.S. 368 (1996).

DISABILITY 

Assignment to a different supervisor is not a reasonable accommodation under the ADA. In re Felix, CSA 82-07 (Order 2/14/08).

Appellant failed to prove she was disabled because there was no evidence as to how her insomnia and breathing difficulties affected a major life activity, what record of impairment she suffers, or how the agency regarded her as being disabled. In re Vigil, CSA 110-05, 7 (3/3/06).

Under the ADA, a person may prove a disability in three ways: 1) the actual existence of a physical or mental impairment substantially limiting a major life activity, 2) a record of such impairment, or 3) being regarded as having such an impairment. In re Solano, CSA 107-04, 4 (Order 4/29/05), citing 42 USC 12102 (2)(A); 29 CFR 1630.2 (g) (1994 ed. and Supp. V).

A disability is a physical or psychological impairment which substantially limits one or more major life activity. In re Solano, CSA 107-04, 4 (Order 4/29/05), citing 42 USC 12102 (2)(A).

Each phrase in the definition of disability is interpreted strictly to create a demanding standard for qualifying as disabled based upon the legislative findings and purposes that motivate the ADA. In re Solano, CSA 107-04, 4 (Order 4/29/05), citing Toyota Motor Mfg v. Williams, 534 U.S. 184 (2002); expressly overruled by ADAAA 2009. 

Major life activities are those basic activities that the average person in the general population can perform with little or no difficulty. In re Solano, CSA 107-04, 4 (Order 4/29/05), citing 29 CFR pt. 1630 app. § 1630.2(i).

Performing manual tasks is a major life activity. In re Solano, CSA 107-04, 4 (Order 4/29/05), citing 29 CFR 1630.2 (i).

A person is substantially limited in a major life activity if she is unable to perform or 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, CSA 107-04, 5 (Order 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 doing activities that are of central importance to most people's daily lives. The impairment’s impact must also be permanent or long-term. In re Solano, CSA 107-04, 5 (Order 4/29/05), citing Toyota Motor Mfg. v. Williams, 534 US 184 (2002); expressly overruled by ADAAA 2009.

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, CSA 107-04, 5 (Order 4/29/05), citing Toyota Motor Mfg. v. Williams, 534 US 184 (2002); expressly overruled by ADAAA 2009.

In determining the effect of an impairment on an employee’s life, the fact-finder must consider the nature and severity of the impairment, its duration or expected duration, and its permanent, long-term, or expected impact. In re Solano, CSA 107-04, 5 (Order 4/29/05), citing 29 CFR 1630.2 (j).

An individualized assessment of the effect of an impairment is particularly necessary when the impairment is one whose symptoms vary widely from person to person, such as carpal tunnel syndrome. In re Solano, CSA 107-04, 5 (Order 4/29/05), citing Toyota Motor Mfg. v. Williams, 534 U.S. 184 (2002); expressly overruled by ADAAA 2009.

A temporary condition or a condition of indefinite duration may also be a disability if it is severe in nature. In re Solano, CSA 107-04, 5 (Order 4/29/05), citing EEOC Compliance Manual § 902.4(d).

Temporary carpal tunnel syndrome symptoms of numbness and tingling in the hands indicate that condition was mild in nature. In re Solano, CSA 107-04, 5 (Order 4/29/05).

A temporary inability to meet typing and filing deadlines does not establish that numbness and tingling in hands substantially limited employee’s ability to perform manual tasks. In re Solano, CSA 107-04, 5 (Order 4/29/05), citing Gelabert-Ladenheim v. American Airlines, Inc., 252 F.3d 54 (1st Cir. 2001); Ouzts v. USAIR, 24 ADD 704 (D. Pa. 1996); Wilmarth v. City of Santa Rosa, 945 F.Supp. 1271 (N.D. Cal. 1996).

The ADA also protects a person who has a history of a disability or who has been classified or misclassified as having a disability. In re Solano, CSA 107-04, 6 (Order 4/29/05), citing 42 USC 12102 (2)(B); 29 CFR 1630.2 (k).

Doctor's notes showing a diagnosis of non-disabling carpal tunnel syndrome is not a record of a disability. In re Solano, CSA 107-04, 6 (Order 4/29/05).

A record of a condition that is not a disability is insufficient to support a claim that employee has a history of disability under the ADA. In re Solano, CSA 107-04, 6 (Order 4/29/05), citing Colwell v. Suffolk County Police Dept., 158 F.3d 635 (2nd Cir. 1998).

A person who is perceived as disabled is also protected from discrimination based on Congress’ recognition that society’s accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment. In re Solano, CSA 107-04, 6 (Order 4/29/05), citing 42 USC § 12102(2)(C); School Board of Nassau County v. Arline, 480 U.S. 273 (1987).

The focus of a discrimination claim against an employee regarded as disabled is on the employer's state of mind, such as concerns about productivity, safety, insurance, liability, attendance, cost of accommodation and accessibility, and acceptance by co-workers and customers. In re Solano, CSA 107-04, 6 (Order 4/29/05), citing EEOC Compliance Manual § 902.8; House Judiciary Report at 30.

Appellant may prove disability discrimination by presenting evidence that 1) the agency perceives her as having an impairment that substantially limits a major life activity, and 2) the agency made an employment decision because of the perception of disability. In re Solano, CSA 107-04, 6 (Order 4/29/05), citing 29 CFR 1630.2 (l)(1); 29 CFR pt. 1630, pt. 1630.2(1).

Where appellant’s work restrictions based on carpal tunnel syndrome were removed several months before the performance evaluation, and supervisor had forgotten about them, appellant failed to prove the agency perceived her as disabled. In re Solano, CSA 107-04, 7 (Order 4/29/05). 

An employer’s knowledge and accommodation of work restrictions is insufficient evidence that an employee was regarded as disabled. In re Solano, CSA 107-04, 7 (Order 4/29/05), citing Plant v. Morton Int’l, Inc., 212 F.3d 929 (6th Cir. 2000); Gorbitz v. Corvilla, Inc., 196 F.3d 879 (7th Cir. 1999).

Evidence of performance problems alone does not support a finding that appellant was perceived as disabled. In re Solano, CSA 107-04, 7 (Order 4/29/05).

Appellant’s failure to prove she was disabled defeated her harassment and retaliation claims because appellant did not prove she was a member of a legally protected class. In re Solano, CSA 107-04, 7 (Order 4/29/05).

Evidence that drowsiness is a side-effect of appellant’s medication does not demonstrate a physical limitation substantially limiting a major life function in the absence of evidence as to the nature of the impairments, and effect on appellant’s life and ability to do the essential functions of his job. In re Owens, CSA 139-04, 10-11 (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); Toyota Motor Mfg. v. Williams, 534 US 184 (2002).

It is insufficient for individuals attempting to prove disability status to merely submit evidence of a medical diagnosis of an impairment. In re Owens, CSA 139-04, 11 (3/31/05), citing Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), citing 29 CFR 1630.2 (j)(2) (ii-iii); expressly overruled by ADAAA 2009.

Without proof of a disability, the necessity to reasonably accommodate does not arise under the ADA. In re Owens, CSA 139-04, 11 (3/31/05).

Appellant’s claim that the agency should have waived its rule against sleeping on duty as a reasonable accommodation of his need to take a medicine that can cause drowsiness is not well founded. In re Owens, CSA 139-04, 11 (3/31/05).

The law prohibiting discrimination based upon a record of a substantially limiting impairment is intended to prevent discrimination because of a history of disability or a misclassification as disabled. In re Owens, CSA 139-04, 11 (3/31/05), citing ADA Handbook, EEOC Interpretive Guidance, 43; 29 CFR 1630.2 (k).

Discrimination against those who are regarded as disabled by their employer is Congress’ acknowledgement that society’s accumulated myths and fears about disability and diseases are as handicapping as are the physical limitations that flow from actual impairment. In re Owens, CSA 139-04, 11 (3/31/05); citing School Board of Nassau County v. Arline, 480 U.S. 273, 284 (1987).

Appellant failed to prove he was considered or misclassified as disabled based on testimony that he had given former supervisor medical documents regarding his heart stint, since documents were not in appellant’s file, and current supervisor knew only that he had a heart stint. In re Owens, CSA 139-04, 11 (3/31/05).

POLITICAL AFFILIATION 

To establish a prima facie case of political affiliation discrimination, 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, CSA 109-04 & 119-04, 9 (1/5/05), citing Barker v. City of Del City, 215 F.3d 1134, 1138 (10th Cir. 2000).

There appears to be a valid first amendment argument that lack political affiliation should be included in the concept of political affiliation discrimination. In re Hurdelbrink, CSA 109-04 & 119-04, 9 (1/5/05), citing Whitfield v. Pennsylvania Gas Works, 1997 U.S. Dist. LEXIS 18550 (D. Pa., 1997).

PREGNANCY 

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 position; and 4) the denial occurred under circumstances which give rise to an inference of unlawful discrimination. In re Allen, CSA 16-06, 3 (6/6/06), citing EEOC v Horizon Healthcare Corp., 220 F. 3d 1184 (10th Cir. 2000).

RACE 

Coworker’s testimony that he believed race may have played a role in hastening his departure from the agency, and appellant’s conclusory statements in her prehearing and closing statements are insufficient to establish a prima facie case of race discrimination. In re Diaz, CSA 45-05, 9 (9/7/05).

Appellant failed to prove that demotion in lieu of layoff to a specific division was motivated by discriminatory intent when the other divisions were outside the layoff unit and appellant offered no proof that agency knew demotion would deny her future promotional opportunities. In re Jackson, CSA 103-04, 5-6 (6/13/05).

In the absence of evidence that employees of a different race were treated more favorably than African American employees, appellant has failed to present evidence that the actions taken against her were motivated by discriminatory intent. In re Jackson, CSA 103-04, 6 (6/13/05).

Appellant fails to establish disparate treatment on the basis of race when the more-favored employee is the same race as appellant. In re Jackson, CSA 103-04, 8 (6/13/05).

In the absence of evidence that the lay-off which followed race-neutral rules had a disproportionate effect on members of her race, appellant failed to establish a prime facie case of adverse impact discrimination. In re Jackson, CSA 103-04, 7 (6/13/05).

Discipline given to other employees for different violations does not establish disparity in treatment based on race or color. In re Owens, CSA 139-04, 10 (3/31/05).

ADVERSE ACTION

Neither a single order of training intended to correct an observed performance deficiency nor criticisms in a logbook are adverse actions as necessary to prove discrimination. In re Johnson, CSA 135-05, 4 (Order 3/10/06).

Testimony that agency favored another candidate for a promotion is not an adverse action where both appellant and the other candidate were African American, and appellant was selected for the promotion. In re Jackson, CSA 103-04, 5 (6/13/05).

Statement that appellant was expected to continue performing higher level duties after demotion in lieu of layoff was not an adverse action where agency relieved appellant of those duties at her request. In re Jackson, CSA 103-04, 6 (6/13/05).

Agency’s reassignment of her former higher-level duties to a Caucasian coworker was not an adverse action where appellant requested that reassignment. In re Jackson, CSA 103-04, 6 (6/13/05).

DISPARATE TREATMENT 

Misconduct is not comparable for purposes of proving disparate discipline where appellant recreation supervisor lost his composure at a game, faced off with referee, and refused to leave after being ejected from building, when compared to an incident where another recreation supervisor merely responded to a referee’s call by saying, “that’s bullsh-” without finishing the word, drawing a technical foul. In re Trujillo, CSA 44-05, 5-6 (11/14/05).

Appellant failed to establish disparate discipline by producing no evidence about the other employees’ protected status, the nature of their violations, and whether or how they were disciplined for those violations. In re Garcia, CSA 175-04, 7 (7/12/05).

To establish disparate treatment, it is necessary to show that the employees whose treatment is being compared to appellant’s are similarly situated in all relevant respects. In re Jackson, CSA 103-04, 6-7 (6/13/05), citing Ward v. Proctor & Gamble Paper Products Co., 111 F. 3d 558, 560 (8th Cir. 1997).

Disparate discipline claim must compare only similarly situated employees. They must have reported to the same supervisor, must have been subject to the same performance and discipline standards, and must have engaged in conduct similar to that of appellant, without other circumstances that would distinguish the misconduct or the appropriate discipline for it. In re Owens, CSA 139-04, 10 (3/31/05), citing Mazzella v. RCA Global Communications, Inc., 642 F.Supp. 1531, 1546-47 (S.D.N.Y. 1986).

Discriminatory intent may be proven circumstantially by evidence that the agency treated employees outside the protected class more favorably under similar circumstances. In re Owens, CSA 139-04, (3/31/05), citing McDonnell Douglas v. Green, 411 US 792 (1973); Furnco Construction Corp. v. Waters, 438 US 567 (1978); Smith v. City of Jackson, 2005 U.S. LEXIS 2931.

DISPARATE IMPACT

Disparate impact discrimination is proven if employment practices that are facially neutral in their treatment of different groups fall more harshly on one group than another and cannot be justified by business necessity. In re Jackson, CSA 103-04, 6 (6/13/05), citing International Brotherhood of Teamsters v. U.S., 431 US 324 (1977).

In disparate impact discrimination, it is necessary to show that the employees whose treatment is being compared are similarly situated in all relevant respects. In re Jackson, CSA 103-04, 6-7 (6/13/05), citing Ward v. Proctor & Gamble Products Co., 111 F.3d 558, 560 (8th Cir. 1997).

Layoff that had no disproportionate effect on members of appellant’s race did not have a disparate impact on the basis of race. In re Jackson, CSA 103-04, 6 (6/13/05).

DISPARATE IMPACT- NOT FOUND

Hispanic male disciplined for a different offense, excessive absenteeism, was not similarly situated to appellant, who was disciplined for addressing coworkers with terms of endearment after being instructed to stop. In re Hernandez, CSA 03-06, 9 (5/3/06), citing Mensah-Sowah v. Bridgestone/Firestone, 1996 U.S.App. LEXIS 24967 (10th Cir. 1996).

Other employee who used terms of endearment was not similarly situated to appellant where there was no proof of his national origin or supervisor, or whether he had been instructed to stop or disciplined for that behavior. In re Hernandez, CSA 03-06, 9 (5/3/06), citing Mensah-Sowah v. Bridgestone/Firestone, 1996 U.S.App. LEXIS 24967 (10th Cir. 1996).

Agency presented valid business reason to discipline employee based on his failure to heed prior discipline for addressing coworkers with unwelcome terms of endearment. In re Hernandez, CSA 03-06, 9 (5/3/06).

Evidence that prior supervisor disciplined appellant for same offense does not prove discrimination caused the current discipline when appellant testified he took no issue with the previous discipline. In re Hernandez, CSA 03-06, 9 (5/3/06).

Recent favorable action, including favorable reviews and compliments by the 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, CSA 135-05, 5 (Order 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).

Where appellant presented no evidence that she is a member of a protected group, she failed to meet her burden of proof on her discrimination claim. In re Roberts, CSA 179-04, 5-6 (6/29/05).

Layoff that followed 2004 rules governing demotional appointments did not discriminate against African American employee even though 2003 layoff rules would have treated her more favorably. In re Jackson, CSA 103-04, 6 (6/13/05).

Agency’s failure to make an exception to its rules on layoff units and seniority is not proof of intent to discriminate. In re Jackson, CSA 103-04, 6 (6/13/05).  

Chart of discipline imposed on employees by race did not compare similarly situated employees, and did not prove disparity in discipline based on race. In re Owens, CSA 139-04, 10 (3/31/05). 

Evidence that appellant believed she was treated differently but did not know why failed to establish membership in a protected group, the first element of a prima facie case of discrimination. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 4 (1/27/05); citing McDonnell Douglas v. Green, 411 U.S. 792 (1973).

When evidence reveals no grounds to support inference of age or political affiliation discrimination, directed verdict is properly granted as to both claims. In re Hurdelbrink, CSA 109-04 & 119-04, 8-9 (1/5/05).


16-22 D: Retaliation Prohibited (Former 16-23)

IN GENERAL

Appellant claiming retaliation made a showing that 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).

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 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, it is incumbent on appellant to 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); Hawkins v. PepsiCo, Inc., 203 F.3d 274, 278 (4th Cir. 2000).

In order to establish retaliation, appellant must demonstrate causation between his protected activity and the agency’s adverse action, as well as proof that the agency action was intentionally retaliatory. In re Hernandez, CSA 03-06, 11 (5/3/06), citing Robben v. Runyon, 2000 U.S. APP. LEXIS 1358 (10th Cir. 2000); Gunnell v. Utah Valley State College, 152 F.3d 1253 (10th Cir. 1998).

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, CSA 135-05, 4 (Order 3/10/06), citing Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000).

Appellant bears the burden of persuasion throughout the entire process to prove retaliation. In re Garcia, CSA 175-04, 5 (7/12/05).  

This Rule 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, CSA 17-05, 7 (7/7/05). 

ADVERSE ACTION 

Agency could find appellant dishonest for claiming to be unaware of its policy requiring personal identification card to access its secure sites even though agency did not enforce that policy. In re Hinojosa, CSA 33-18, 7 (11/29/18).

Appellant dishonestly obtained reimbursement claimed mileage for trip she could not have made in the time available to her. In re Hinojosa, CSA 33-18, 7 (11/29/18).

Appellant was dishonest in denying to her supervisor that she missed any mandatory meetings where she purposefully conflated a meeting that she did not have to attend with a mandatory meeting. In re Hinojosa, CSA 33-18, 8 (11/29/18).

Appellant dishonestly reported her work hours where she claimed more hours than she could have worked in the time available to her. In re Hinojosa, CSA 33-18, 8 (11/29/18).

Dishonesty established by appellant’s less-than-forthcoming conversation with the city attorney in which he inferred he sought legal advice about a third person, but actually sought legal advice about his own situation. In re Mancuso, CSB 76-17, n.1 (9/6/18).

Dishonesty established albeit appellant did not hide his name in his call to an assistant city attorney, where he hid the purpose of his call, did not identify himself as a city employee until pressed repeatedly, and did not disclose he was calling to seek legal advice about his personal situation until pressed. In re Mancuso, CSB 76-17, 5 (9/6/18).

Dishonesty-by-omission established where appellant failed to disclose critical information any reasonable person would know to disclose, and did so intentionally and knowingly for the purpose of attempting to obtain information he was not otherwise entitled to receive. In re Mancuso, CSB 76-17, 6 (9/6/18).

A pre-disciplinary letter is not an adverse action, a necessary element of a retaliation claim. In re Thomas, CSA 13-10 (Order 3/15/10).

Retaliation claim must be supported by evidence of an adverse action, i.e., an action likely to deter employees from engaging in protected activity. In re Johnson, CSA 135-05, 4 (Order 3/10/06), citing Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000).

Adverse action is not limited to monetary losses, and the relevant factors will be examined on a case-by-case basis. In re Johnson, CSA 135-05, 4 (Order 3/10/06).

Mere inconvenience or alternative of job responsibilities is not an adverse action, nor is everything that makes an employee unhappy.  Otherwise, the term would become dependent on the sensitivity of individual employees, and no objective test would be possible. In re Johnson, CSA 135-05, 4 (Order 3/10/06), citing Couture v. Belle Bonfils Mem. Blood Center, 151 Fed.Appx. 685, 690 (10th Cir. 2005).

ADVERSE ACTION - NOT FOUND

Appellant not dishonest where agency asked her where she parked in its garage, and appellant identified her parking privileges in the garage lower level, even though she had not parked there recently. In re Hinojosa, CSA 33-18, 6-7 (11/29/18). 

Four-year separation between appellant’s action and agency’s discipline was too remote to establish or infer causation. In re Redacted, CSA 190-03, 9 (2/13/06).

Claim of retaliation, made only in opening statement and not followed by any evidence, must be dismissed. In re Mestas, CSA 37-05, 8 (8/4/05).

Appellant failed to prove retaliation claim by failing to rebut Agency’s evidence of its legitimate, non-retaliatory purpose in upholding its regulations against e-mail abuse. In re Garcia, CSA 175-04, 6 (7/12/05).

Appellant failed to prove retaliation claim for complaining about other employees’ work, since she failed to establish that she reported any unlawful activity for which whistleblower protection might apply. In re Garcia, CSA 175-04, 6 (7/12/05). 

Appellant failed to prove retaliation claim based on the Agency denial of her application for bi-lingual pay differential, since she failed to show that that her application is a protected activity. In re Garcia, CSA 175-04, 6 (7/12/05).

Appellant failed to prove retaliation claim based on the Agency’s denial of her request for promotion to an unspecified position, as appellant failed to establish a protected activity or causation. In re Garcia, CSA 175-04, 6 (7/12/05).

Appellant failed to prove retaliation claim where the discipline was confirmed by the co-managers who had previously protected appellant from suspected retaliation, discipline occurred eighteen months after the protected activity, appellant reported no threat to his job for almost a year, the misconduct was witnessed by two credible co-workers, the managers against whom appellant claimed retaliation did not instigate the discipline, and the misconduct bore no relation to the protected activity. In re Smith, CSA 17-05, 8 (7/7/05).

Allegations of retaliation made in appellant’s closing argument are not considered in the decision unless supported by evidence brought forth at the hearing. In re Jackson, CSA 103-04, 8 (6/13/05).  

Appellant failed to prove retaliation claim where the only evidence to support it was appellant’s argument that her supervisor favored another for hire to her position, and appellant believed the supervisor later influenced those who made lay-off decision. In re Jackson, CSA 103-04, 7 (6/13/05).

An eighteen-month gap between EEO activity and an adverse action does not support an inference of a causal connection between the protected activity and the discipline, absent evidence explaining the gap or that otherwise supports a finding of causation. In re Owens, CSA 139-04, 12 (3/31/05), citing Richmond v. Oklahoma University Board of Regents, 1998 U.S. App. LEXIS 26600; Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1395 (1997).

Appellant’s good faith reporting of improper co-worker practices constituted whistleblowing activity protected from retaliation. In re Freeman, CSA 40-04 & 75-04, 7 (3/3/05) citing Poe v. Shari’s Mgmt. Corp., 188 F. 3d 519 (10th Cir.1999).

Proof of retaliation requires contemporaneous or very close temporal proximity between the protected employee action and the adverse agency action. In re Freeman, CSA 40-05 & 75-04, 8 (3/3/05), citing Poe v. Shari’s Mgmt. Corp., 188 F. 3d 519 (10th Cir.1999).


16:25: Political Activities

Harassment and discrimination based on age and political affiliation are proper subjects for appeal. In re Hurdelbrink, CSA 109-04 & 119-04, 4 (1/5/05).

Unsuccessful applicant for promotion failed to prove political affiliation discrimination claim as he failed to show the agency knew of successful applicant’s political support of mayor, and therefore failed to establish nexus between his layoff and his political affiliation. In re Hurdelbrink, CSA 109-04 & 119-04, 7 (1/5/05).

16-28: Grounds for Discipline

Where an agency’s proffered evidence fails to prove its disciplinary claims, the hearing officer may not substitute another rule violation that better fits the evidence. In re Mestas, Salazar, Fuentes and Sierra, CSA 64-07, 61-07, 62-07 and 67-07 pp. 37 (5/30/08).

16-28 A: Neglect of Duty or Carelessness in Performance of Duties and Responsibilities (Former 16-60 A & 16-60 B)

IN GENERAL

To sustain a violation under CSR 16-60 A [now 16-28 A], the agency must establish that appellant failed to perform a known duty. In re Rocha, CSA 19-16, 3 (9/14/16), citing In re Gomez, CSA 02-12 (5/14/12); In re Abbey, CSA 99-09, 6 (8/9/10).

To sustain a violation under CSR 16-28 A, the Agency must establish that Appellant failed to perform a known duty or performed it in a substandard fashion. In re Maestas, CSA 18-19, 4 (6/17/19), citing In re Gomez, CSA 02-12 (5/14/12).

The correct standard to establish neglect of duty is that an employee failed to perform a job duty she knew she was supposed to perform. In re Hull, CSA 78-18, 6 (4/12/19), citing In re Serna, CSB 39-12, 4 (2/21/14).

To sustain a violation under CSR 16-29 A, the Agency must establish that Appellant failed to perform a known duty. In re Nguyen, CSA 19-17, 2 (7/25/17), citing In re Gomez, CSA 02-12 (5/14/12).

Appellant’s primary duties, relevant herein, are “to provide safety and security for the care and custody of inmates by operating safe, secure, efficient, and humane facilities.” In re Nguyen, CSA 19-17, 1 (7/25/17).

To sustain a violation under this rule, the agency must establish that the appellant failed to perform a known duty. In re Burdett, CSA 28-17, 3 (2/13/18).

To prove a violation of this rule, the agency is obligated to prove it provided notice of a specific duty outside those defined under other rule violations. In re Schofield, CSA 08-17, 4 (10/9/17).

Both parts of this rule require notice of a duty and either the failure to perform it (neglect), or a substandard performance of that duty (carelessness). In re Gustin, CSA 02-17, 2 (8/8/17), citing  In re Abbey, CSA 99-09, 6 (8/9/10); In re Simpleman, CSA 31-06, 4-5 (10/20/06).

To sustain a violation under this rule, the agency must establish appellant performed a known duty deficiently or not at all. In re Marez, CSA 58-16, 6 (1/26/17), citing In re Leslie, CSA 10-11 (12/5/11).

This rule may not be used to mirror other rule violations, since such practice would permit a neglect of the duty to violate every other rule, order, or policy. In re Marez, CSA 58-16, n.5 (1/26/17).

Even though a violation under this rule might be cobbled together from available evidence, it is not up to the hearing officer to do so. In re Johnson, CSA 11-16, 3 (5/26/16), citing In re Gutierrez, CSA 65-11, 6 (8/28/12).

Neglect may not be established simply by proving another rule violation, a practice that would automatically double every CSR violation. In re Rolando, CSA 40-15, 3 (1/26/16), citing  In re Robinson, CSA 03-13, 4 (6/18/13); In re Mitchell, CSB 57-13, 3 (11/7/14); In re Mack, CSA 43-12, 8 (3/18/13).  

If this rule were interpreted broadly to prohibit any neglect of duty as a failure to comply with an order, the rules would merge impermissibly into one. In re Macieyovski, CSA 28-14, 7 (10/13/14).

An agency need not establish that appellant “utterly failed to perform her duty” in order to prove neglect of duty under this rule. In re Serna, CSB 39-12, 3 (2/21/14), citing In re Compos, Herrera, Sandler & Sena, CSB 56-08, 57-08, 58-08 & 59-08 (6/18/09).

The correct standard to establish neglect of duty is that an employee failed to perform a job duty she knew she was supposed to perform. In re Serna,CSB 39-12, 4 (2/21/14); citing In re Compos, Herrera, Sandler & Sena, CSB 56-08, 57-08, 58-08 & 59-08 (6/18/09).

A supervisor's overall responsibility to run a program is not a duty within the meaning of this rule, since otherwise a legitimate exercise of business judgment could lead to discipline. In re Mack, CSA 43-12, 8 (3/18/13).

In order to establish a violation under the neglect of duty portion of this rule, the Agency must prove (1) a reasonable duty was communicated to the employee and (2) the employee failed to perform that duty. In re Gutierrez, CSA 65-11, 5 (8/28/12), citing In re Mounjim, CSA 87-07, 4 (7/10/08).

To sustain a violation of Neglect of Duty under CSR 16-29 A., the Agency must establish appellant failed to perform a job duty known to him. In re Romero, CSA 01-12, 7 (4/17/12), citing In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-08, 7 (12/15/08), affirmed  In re Compos, Herrera, Sandler & Sena, CSB 56-08, 57-08, 58-08 & 59-08 (6/18/09). 

The duty at issue must have been communicated in such manner as would make a reasonably astute employee aware of its requirements. In re Leslie, CSA 10-11, 8 (12/5/11), citing In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 16 (5/30/08).  

Obedience to a direct, legitimate order always trumps a more general duty. In re Leslie, CSA 10-11, 9 (12/5/11). 

A person exercises reasonable care when he acts with that degree of care which a reasonable person would use under similar circumstances. In re Gonzales, CSA 42-10, 6 (12/30/10), citing In re Feltes, CSA 50-06, 6 (11/24/06).   

“General practice” of an agency is insufficient proof of a duty under this rule without proof appellant was on notice that failure to follow such general practice could result in discipline. In re Cotton, CSA 104-09, 7 (10/18/10).

Carelessness and neglect of duty rules share elements of proof, but carelessness reviews an employee's acts (performance), while neglect of duty reviews his omissions. In re O’Meallie, CSA 92-09, 4 (6/18/10), citing In re Simpleman, CSA 31-06, 4-5 (10/20/06).

Substandard work performance resulting in a performance review downgrade under CSR 13 may also subject an employee to the panoply of penalties under CSR 16-28. In re Cady, CSA 03-10, 4 (4/22/10).

The duty to show up for, and complete, daily work is fundamental to any position. In re Lottie, CSA 132-08, 3 (3/9/09).

Intentional wrongdoing falls outside the scope of this rule. In re Mounjim, CSA 87-07, 6 (7/10/08).

Agency bears the burden to prove that it made the employee aware of a performance standard it claims is well-known or self-evident. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 16 (5/30/08), citing In re Routa, CSA 123-04 (1/27/05).

“Well-known” or “self-evident” standards represent dangerously subjective measures of performance, and, when challenged, are difficult to prove. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 16 (5/30/08), citing In re Encinias, CSB 02-07, 2 (10/18/07).

Violation under Section 16-28 A does not require the element of deliberation or consciousness. In re Simpleman, CSA 31-06, 5 (10/20/06), see also In re Martinez, CSA 30-06, 4 (10/3/06).

Neglect of duty implies a failure to perform a duty, while carelessness in the performance of duties implies a slipshod practice of duty. In re Simpleman, CSA 31-06, 4-5 (10/20/06), see also In re Martinez, CSA 30-06, 4 (10/3/06).

FOUND

Hearing Officer erred by dismissing a charge that a deputy violated CSR 16-60A (Neglect) [now 16-28A] because the alleged misconduct would be addressed under CSR 16-60 L (Violation of agency regulation) [now 16-28 R]. In re Hernandez and Garegnani, CSB 25 & 26-17A, 5 (1/17/19).

Hearing Officer erred in refusing to consider the charge that deputy violated CSR 16-60A (Neglect) [now 16-28A] because the alleged misconduct would also be addressed under CSR 16-60L (Violation of agency regulation) [now 16-28R]. In re Johnson, CSB 24-17A, 5 (1/17/19).

The CSRs and the concepts of fundamental fairness do not prohibit one act of misconduct from violating several CSRs. In re Johnson, CSB 24-17A, 5-6 (1/17/19).

Pursuant to CSR 16-60A [now 16-28A], a ranking officer at the scene of a crisis situation cannot improperly usurp the authority of his subordinates by acting in a manner consistent with his higher rank. In re Johnson, CSB 24-17A, fn.2 (1/17/19).

Pursuant to CSR 16-60A, [now 16-28 A], a ranking officer at the scene of a crisis situation must exercise authority and control, lead or direct, or make decisions, but cannot simply sit back and watch. In re Johnson, CSB 24-17A, fn.2 (1/17/19).

Appellant violated CSR 16-28 A. by missing three work days, failing to notify her supervisor in advance of her absences, and failing to issue a timely work schedule, which inconvenienced the Agency staff and customers. In re Maestas, CSA 18-19, 4 (6/17/19).

Appellant neglected his duty through his failure to: (1) provide necessary leadership at the service counter, especially during a fire alarm, (2) perform his required Office inventory, (3) enforce the policy eliminating scheduled breaks, and (4) become expert on Agency software and train his team on it. In re Hull, CSA 78-18, 7-9 (4/12/19).

Agency proved Appellant neglected his duty to provide for the safety and security of inmates by exceeding the least amount of force necessary when he used a Taser on a locked inmate who had prevented him from securing the door flap to the inmate’s cell. In re Nguyen, CSA 19-17, 3 (7/25/17).

Appellant, Vehicle Impound employee, violated CSR 16-29A [now 16-28A] when he learned of bullets in an impounded auto but failed to secure or report them, or ensure they remained in the vehicle. In re Tamburino, CSA 40-17, 7 (4/23/18).

Employee who failed to work required mandatory overtime neglected her duty in violation of this rule.  In re Colquitt, CSA 34-15, 4 (10/30/15).

No error in finding violation of 16-29A where hearing officer found inmate more credible than deputy despite a claimed discrepancy in inmate’s testimony.  Hearing officer found witness credible and other witnesses contributed to that conclusion. In re Simons, CSB 71-16, 4 (1/18/18).

Violation established where courtroom deputy, while faced with competing demands, acknowledged she left the courtroom without coverage to use the restroom, and had to be reminded by the judge to take a defendant into custody. In re Leyba, DDC 31-16, 5-6 (11/15/17).

Violation established by appellant’s admission she raised her middle finger at a person. In re Garcia, CSA 35-17, 4 (10/4/17).

Violation found where supervisor had duty to treat customers with dignity and respect, but made racially-charged, offensive comment to customer, and none of his explanations justified the comment. In re Gustin, CSA 02-17, 3 (8/8/17).

Agency proved armed deputy carelessly performed her duty to protect the inmate and public while guarding a hospitalized inmate by falling asleep. In re Andrews, CSA 16-17, 3 (8/1/17).

Deputy’s three deceptive statements about facts material to the investigation proved that he neglected his duty as a law enforcement officer to be truthful in his statements to investigators. In re Turner, CSA 01-17, 7 (6/26/17).

Deputy who choked and punched inmate being held by another officer while bent over a metal desk violated his duty to provide for the safety and security of prisoners. In re Turner, CSA 01-17, 8-9 (6/26/17).

Violation found where appellant was aware of his duties to show respect for inmates, treat them fairly, use integrity, good judgment and show professionalism, but he referred to Black inmates as “monkeys,” called others “snitches,” and told an inmate shot by DPD officer that he would have killed him. In re Simons, CSA 71-16, 3 (5/5/17).

Violation of second part of this rule established where Appellant admitted she failed to make all required rounds and failed to obtain required coverage when she left her post, in violation of her duty to provide for the care and safety of inmates in her charge. In re Barra, CSA 1-16, 3 (3/10/17).

Supervisor was careless in duty to meet deadline where she submitted document three days late. In re Lee, CSA 70-16, 4 (3/3/17).

Proof that courtroom deputy carried her weapon within reach of inmates does not require contemporaneous complaint by the judge to prove carelessness. In re Leyba, CSB 31-16, 5 (3/2/17).

Neglect of duty to safeguard courtroom by courtroom deputy was supported by evidence that deputy left a courtroom in session for five minutes without permission. In re Leyba, CSB 31-16, 5 (3/2/17).

Cadet program leader neglected her duty to promote positive relationships within the group by a pattern of favoritism, profanity, gossiping, and inappropriate physical contact. In re Fresquez, CSA 63-16, 5 (2/24/17).

Legal secretary for DA’s office performed carlessly her duty to issue subpoena when she issued it to the wrong person. In re McKisson, CSA 69-16, 3 (1/31/17). 

Neglect of duty to care for inmates supported by video evidence showed inmates patting down other inmates directly in front of deputy who barely looked up from his desk. Deputy was not required to know what every inmate was doing at all times. In re Steckman, CSB 30-15, 2 (1/19/17).

Deputy neglected his duty to keep inmate safe when he shoved him in the back without a legitimate reason, leading to a long physical struggle and the involvement of many officers. In re Fuller, CSA 46-16, 6 (10/11/16).

Courtroom deputy neglected her duty to provide court security by absenting herself without permission for five minutes during a sentencing hearing, and by failing to take custody of a defendant after judge issued jail sentence. In re Leyba, CSA 31-16, 5 (8/29/16), affirmed In re Leyba, CSB 31-16 (3/2/17).

Violation established where appellant, through previous counselling and discipline, had ample notice of a duty he continued to perform deficiently. In re Johnson, CSA 11-16, 3-4 (5/26/16).

Violation established where appellant was previously under a Performance Improvement Plan to be accurate and prepared in his daily briefings, but he failed to determine cleanup of area he specified to subordinates had been done the previous day. In re Johnson, CSA 11-16, 3 (5/26/16).

Violation established where appellant was previously under Performance Improvement Plan to adhere to inventory controls, including ink supplies at customer service booths under his supervision, but he subsequently failed to inventory ink needs of those booths. In re Johnson, CSA 11-16, 4 (5/26/16).

Operations supervisor was careless in his duty to prepare site for demonstration where he failed to see a manhole he inspected was blocked and unusable. In re Lucero, 58-15 (4/11/16).  

Carelessness is proven by work performance conducted in an unsatisfactory manner. In re Macieyovski, CSA 28-14, 5 (10/13/14); In re Vega, CSA 12-14, 3 (7/3/14); In re Gomez, CSA 02-12, 3 (5/14/12).    

Carelessness established by appellant’s acknowledgment that he did not complete assigned work. In re Macieyovski, CSA 28-14, 5 (10/13/14).

Appellant’s intentional failure to change filters according to known schedule was neglect of that duty, regardless of his claim they were not sufficiently dirty, or that a computer tower blocked his access. In re Macieyovski, CSA 28-14, 5 (10/13/14).

Dispatcher handled call in careless manner where she failed to consider whether a theft from the Mayor's office was a security breach, failed to dispatch officers, and missed the thirty-minute callback deadline. In re Rhodes, CSA 23-14, 5 (7/25/14).

Dispatcher carelessly handled call about two armed males at a restaurant when she failed to air call code, aired the call improperly to all units, and failed to add a responding unit to the call, endangering officers on the scene, in violation of established protocol. In re Rhodes, CSA 23-14, 5 (7/25/14).

Dispatcher was careless in failing to check her equipment for three minutes, leaving the police channel unmonitored for three minutes and caused several missed calls, after she leaned against the console with headphones, an action she admitted pulled the jack out of the console 75% of the time in the past. In re Rhodes, CSA 23-14, 5-6 (7/25/14).

Parking magistrate neglected his duty to handle customers in front of him when he left the bench early, requiring customer to be escorted back to the waiting area. In re Vega, CSA 12-14, 3 (7/3/14).

Neglect of duty to add case comments was proven when appellant-case worker failed to add her comments for two days, despite her supervisor's reminders and coaching about that duty and her own admission that it continued to slip her mind even after the reminders. In re Black, CSA 03-14, 4 (6/9/14).

Case management coordinator neglected duty to perform required eligibility interview of new client when she spent less than one minute with client because she was disturbed by client’s disabled appearance, and failed to prove her claim that the client tried to harm her. In re Perry-Wilborne, CSA 62-13, 6 (5/22/14).

Human services intake worker was careless in her duty to serve disabled clients when she spent less than one minute with a client because she was disturbed by the client's disabled appearance. In re Perry-Wilborne, CSA 62-13 (5/22/14).

Carelessness of duty to ensure proper prisoner release was proven when deputy released inmate he assumed was eligible because he was in civilian clothes, instead of following protocol to check his record. In re Mitchell, CSA 57-13, 5 (5/7/14).

Deputy neglected duty to release inmate only to proper authority where his distraction permitted an inmate to walk out of jail. In re Mitchell, CSA 57-13, 4-5 (5/7/14).

Court administrator neglected customer service duty when he delayed a response to a request for reasonable accommodation because a defendant did not file a formal motion, but the administrator acknowledged thousands of requests are forwarded to the courts for disposition without formal motions, the agency emphasizes the need for excellent customer care, and the administrator enforces those standards. In re Trujillo, CSA 53-13, 3-4 (4/14/14).

Administrator neglected customer service duty when he delayed a response to a request for reasonable accommodation because he believed it would be giving legal advice and he failed to forward the request to a judicial officer for four months and after three reminders. In re Trujillo, CSA 53-13, 4-5 (4/14/14).

Appellant neglected his duty to wear his current uniform by wearing non-uniform shorts to a company picnic while on duty. In re Macieyovski, CSA 55-13, 4 (4/1/14).

Appellant's failure to complete research on thirty-two of forty-five tasks and to assign tasks for overtime by the deadline constituted carelessness in the performance of her duties. In re Serna, CSA 39-12, 7 (5/23/13).

Appellant neglected duty to set example of professional behavior when he engaged in sexual banter and tolerated it in subordinates where he admitted the conduct; admitted it was unbecoming of his duties; admitted he was aware of need to prevent such behavior in subordinates; and his supervisor repeatedly advised him to cease his crude banter and act more professionally. In re Gutierrez, CSB 65-11, 3 (4/4/13).

Hearing officer did not misinterpret this rule by finding supervisor neglected her duty to issue timely PEPRs and providing feedback to employees after being put on notice that she was expected to issue timely and meaningful PEPRs, and finding was conclusively demonstrated by the record. In re Redacted, CSB 56-11, 2 (12/20/12).

Sheriff Dept. Captain neglected his duty to set a professional example for his subordinates when he engaged in sexual banter with a co-worker and failed to correct such behavior in his subordinates after being repeatedly counseled by a supervisor to become more professional and prevent sexual comments in the workplace. In re Gutierrez, CSA 65-11, 5 (8/28/12).

Appellant drove his plow truck carelessly when he struck parked car with sufficient force to cause the car to jump a curb, cross a lawn, and slide into a house, severely damaging both. In re Gomez, CSA 02-12, 4 (5/14/12). 

Appellant drove his plow truck carelessly where he claimed his accident was unavoidable, but at his pre-disciplinary meeting, his representative admitted the accident was avoidable. In re Gomez, CSA 02-12, 4 (5/14/12). 

Appellant drove his plow carelessly where his explanation was not credible and his actions were proximate cause of damage to another vehicle and house. In re Gomez, CSA 02-12, 4 (5/14/12).

Appellant neglected duty to plow assigned route where GPS data showed his truck did not move for period when he claimed to have plowed, and his supervisor went to location and saw no evidence of plowing. In re Gomez, CSA 02-12, 4 (5/14/12). 

Deputy neglected his general duty to work for pay when he fraternized with an inmate for thirty to forty-five minutes on one occasion and socialized with her on several other occasions. In re Romero, CSA 01-12, 7 (4/17/12).

Dispatcher was careless of duty to follow protocol where she conceded she failed to follow written standard operating procedure, resulting in her miscoding the type of emergency and failing to dispatch required responders. In re Leslie, CSA 10-11, 8 (12/5/11).

Appellant neglected his duty to maintain professional standards of conduct during a phone conversation with his supervisor, where he was previously advised of the expectations for professional standards of conduct in PEPRs and during biweekly coaching sessions with his supervisor, but he reacted with rage, and was defensive and loud, in refusing his supervisor’s order to apologize to his co-worker for his conduct in a prior interaction. In re Weiss, CSA 68-10, 7 (2/14/11).    

Animal control officer was careless in enforcing animal control laws in accordance with Division policies, where he forcefully pushed a door against a dog owner for several seconds in an unauthorized attempt to prevent him from leaving. In re Gonzales, CSA 42-10, 7 (12/30/10).

Judicial assistant was careless in the performance of her duties where she conceded that she committed thirteen work errors in a four-month period and another four errors in the subsequent two-month period. Appellant successfully performed the same tasks without errors on numerous other occasions, was adequately trained, and had supervisory assistance available, but did not ask for assistance. In re Roberts, CSA 40-10 & 48-10, 10 (11/15/10). 

Violation by judicial assistant established where she failed duty to scan a pleading timely into the case processing system. Default judgment entered against defendant and error required additional work by staff to reverse the default. In re Roberts, CSA 40-10 & 48-10, 10 (11/15/10).   

Judicial assistant was careless in the performance of her duties where the Agency established she erred in not following clear court procedure by not forwarding a Writ of Restitution to the Clerk’s inbox for issuance, substantially delaying restoration of the party’s property. In re Roberts, CSA 40-10 & 48-10, 10 (11/15/10).   

Judicial assistant was careless in the performance of her duties when her two omissions on appeal bond forms resulted in inaccurate accounting and case records in two separate appeals. In re Roberts, CSA 40-10 & 48-10, 10 (11/15/10).   

Appellant case manager’s conceding she did not complete “basically all” her cases correctly, was careless performance of her duty to provide clients with the necessary and timely benefits to which they were entitled. In re Rodriguez, CSA 12-10, 7 (10/22/10).

Neglect established where appellant case manager was trained to process cases timely, but failed to do so. In re Rodriguez, CSA 12-10, 5 (10/22/10).

Appellant case manager was negligent for failing her duties to process timely thirteen rederminations of eligibility; seven applications for benefits; responses to numerous correspondences from clients; ten to fifteen termination certificates after clients fell out of compliance; voter registration forms in time for those clients to vote; requests for services; and a stack of mail within requisite ten-day deadline, all of which caused delays in processing and approving childcare assistance, and caused unlawful continued payment to ex-clients. In re Rodriguez, CSA 12-10, 5 (10/22/10). 

Call-center agent was careless in the performance of her customer service duties where she handled an irate caller poorly by sitting silently for prolonged periods, responding sarcastically, and failing to transfer the caller to a supervisor despite her repeated requests. In re Jackson, CSA 39-10, 7 (10/7/10). 

Call-center agent was careless in the performance of her duty to be available for customer calls during her shift, where she was absent from her workstation and did not accurately report her breaks and absences to her supervisor. In re Jackson, CSA 39-10, 7 (10/7/10).   

Call-center agent neglected her duty to be present and ready to take telephone calls, when she was tardy three times, absent from her desk without authorization for thirty-nine minutes on one occasion, and an unknown amount of time on a second occasion, all within two months. In re Jackson, CSA 39-10, 6 (10/7/10). 

Call-center agent neglected her duty to follow established escalation process to refer an irate caller to a supervisor in light of caller’s repeated requests for a supervisor and abusive behavior toward the agent. In re Jackson, CSA 39-10, 6-7 (10/7/10).  

DIA plumber neglected his work duty to provide fire protection, prevent frozen pipes, and maintain an operational airport where he failed to comply with attendance rules, and failed to respond to mandatory, emergency snow duty. In re Duran, CSA 10-10, 8 (10/1/10).

DIA plumber was careless in the performance of his duty to file a complete and accurate disbursement report where he failed to do so and his supervisor had recently counseled him regarding the same. In re Duran, CSA 10-10, 8 (10/1/10).

Youth counselor neglected his duty to issue discipline for youth residents wrongdoings after he became aware of a fight, although he did not see it. In re Abbey, CSA 99-09, 7 (8/9/10). 

Youth counselor neglected his duty to report to work at the start of his shift where he was placed on a PIP for attendance issues and the terms of punctuality were explained to him, rebutting his claim that he was confused. In re Abbey, CSA 99-09, 7 (8/9/10).    

Youth counselor was careless in performing his duty to safeguard the well-being of youth in his care where he acknowledged he took them to see an unapproved violent movie. In re Abbey, CSA 99-09, 8 (8/9/10).

Youth counselor violated this rule by failing to ensure safety of youth residents by keeping them in his line of sight, when he left the building to get food for twenty-five minutes, and allowed youths on a field trip to run out of sight unsupervised. In re Abbey, CSA 99-09, 6 (8/9/10). 

Appellant neglected his duty to comply with established call-in procedure where his PIP for attendance issues gave a specific call-in procedure to follow, and his call to a staff member was outside of the procedure. In re Abbey, CSA 99-09, 7 (8/9/10). 

Appellant neglected his duty to account accurately for his time where a time-stamped video and badge records showed he failed to punch out when he was absent for twenty-five minutes, and agency policy requires employees to punch out if absent for more than fifteen minutes. In re Abbey, CSA 99-09, 7 (8/9/10). 

Appellant violated this rule where he failed to provide a doctor’s note for his absence, as required by his supervisor. In re Abbey, CSA 99-09, 7 (8/9/10). 

The carlessness portion of this rule is violated by poor performance rather than failing to perform an important duty. In re Abbey, CSA 99-09, 7-8 (8/9/10), citing In re Simpleman, CSA 31-06, 4-5 (10/20/06). 

Neglect of duty was established where appellant was directed to remain in one of the designated work areas, but was found in a sleeping area with his shirt and equipment off. In re Norris, CSA 68-09, 5 (7/12/10).

Neglect of duty was established by appellant’s frequent, unexplained absences during work hours, despite repeated attempts to counsel him and a direct order to remain in his work area. In re Norris, CSA 68-09, 5 (7/12/10).

Violation established by Appellant's frequent absences where he claimed he could have been on a special assignment, but did not provide evidence of it, and his supervisor testified that he would have heard a special assignment over the radio. In re Norris, CSA 68-09, 6 (7/12/10).

A violation of the carless portion of this rule occurs for performing poorly rather than neglecting to perform an important duty. In re O’Meallie, CSA 92-09, 4 (6/18/10).

Deputy was careless in performing her duty to transport aggressive inmate separately, failed duty to issue verbal commands or use control hold on aggressive inmates, and failed to file a complete incident report as required. In re Koehler, CSA 113-09, 17 (4/29/10).

Carelessness is proven by absence of ordinary care in performing an assigned duty. In re Koehler, CSA 113-09, 17 (4/29/10), citing In re Mitchell, CSA 05-05, 7 (6/27/05).

Where appellant was aware of the procedures to process bonds correctly and avoid mistakes, each mistake in processing bonds established a separate violation of this rule. In re Cady, CSA 03-10, 4-5 (4/22/10). 

Neglect of duty to care for residents was established when youth crisis center worker failed to conduct half the required bed checks. In re Carrillo, CSA 95-09, 3 (3/16/10).

Neglect of duty to supervise was proven where youth crisis center worker responsible for constant surveillance failed to see a male resident enter and close the door of a female resident’s room. In re Carrillo, CSA 95-09, 3 (3/16/10).

Neglect was proven by employee’s admission that he drove a city vehicle on personal business during work hours four times, GPS tracking data confirmed another six occasions, and he provided unconvincing denials of two other occasions. In re Valdez, CSA 90-09, 4 (3/1/10).   

Neglect of supervisory duties established by supervisor engaging in personal business during work hours instead of supervising his crew. In re Valdez, CSA 90-09, 4 (3/1/10). 

Where appellants were aware of their duty to complete daily logs accurately and logs contained inaccurate or missing entries, appellants violated this rule. In re Compos, Herrera, Sandler & Sena, CSB 56-08, 57-08, 58-08 & 59-08, 2 (6/18/09). 

Appellant was neglectful of his duty to be present at work when his unexcused failure to report to work after a training session placed an undue burden on his co-workers. In re Lottie, CSA 132-08, 3 (3/9/09).

Where the agency established the appellant took an unexcused absence, the appellant was neglectful of his duty to be present at work. In re Lottie, CSA 132-08, 4 (3/9/09). 

Since one of deputy sheriff's primary duties was the safe-keeping of inmates, her failure to secure potentially lethal objects was a careless performance of that duty. In re Norman-Curry, CSA 28-07 and 50-08, 3 (2/27/09).

Deputy sheriff's repeated slamming of inmate's face into a plexiglass window was careless performance of her duty to keep inmates safe. In re Norman-Curry, CSA 28-07 & 50-08, 22 (2/27/09).

Where appellant’s PEPR required her to maintain professional demeanor, and she had received a “needs improvement” rating, her actions in initiating and escalating a confrontation with her supervisors is neglect of that PEPR duty. In re Mounjim, CSB 87-07, 7 (1/8/09). 

Appellant’s two unapproved absences from work, for forty-five minutes and two hours were neglect of work duties. In re Galindo, CSA 39-08, 9 (9/5/08).

Appellant neglected duty to return found property, a wedding ring, to either its rightful owner, who was known to him, or to the agency custodian. In re Galindo, CSA 39-08, 9 (9/5/08).

Where preserving confidentiality of client information under state law was important work duty, appellant’s access and sharing of identity of child abuse informant with another employee constituted neglect of that duty. In re Catalina, CSA 35-08, 7 (8/22/08).

Paralegal neglected her work duties by spending 1½ hours to have her badge enabled by security but evidence showed no security delays, and appellant testified at hearing that she tried to but did not get her badge enabled that day. In re Blan, CSA 40-08, 4 (7/31/08).

Payroll supervisor violated this rule where she acknowledged a duty to meet thirty-day deadline for processing separation documents, and her failure to do so delayed final pay to twenty-one separated employees. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 23 (5/30/08).

An employee violates this rule when he fails to exercise ordinary care in the performance of a job duty. In re Sandrowski,CSA 58-07, 10 (2/6/08), citing In re Richmond, CSA 18-07, 5 (8/7/07).

Facilities superintendent was careless in administering a service contract by failing to evaluate the work to be performed or make an attempt to reduce its cost, and where his claim that he was required to get work done regardless of cost was not supported by the evidence. In re Hill, CSA 69-07, 5-6 (1/23/08).

Facilities superintendent, whose job it is to oversee service contracts, was careless when he agreed to pay a per-unit price for installation of plumbing parts without first ascertaining the scope of the work to be done, the hours needed to do it, the contractor’s normal hourly rate, or whether a per-unit price would save costs, when the reasonable cost of the work was $24,000 less than the price agreed to by appellant. In re Hill, CSA 69-07, 5 (1/23/08).

Appellant neglected her duty to manage a contract by requesting a reassignment based on a claimed conflict of interest instead of admitting she needed information to complete the task. In re Butler, CSA 78-06, 5 (1/5/07).

Supervisor was careless in failing to supervise payroll clerk who did not deduct leave from her own pay and who used donated leave before the donation occurred. In re Feltes, CSA 50-06, 6 (11/24/06).

Violation established where supervisor allowed subordinates to perform their duties in an obviously inaccurate manner over an extended period. In re Feltes, CSA 50-06, 5 (11/24/06), citing Gubser v. Dept. of Employment, 271 Cal.App.2d 240, 242 (Cal. App. 1969).

Supervisor neglected her duty to supervise payroll clerk who failed to deduct leave from her own pay and who used donated leave before the donation occurred, despite supervisor’s notice of these improper leave and pay practices. In re Feltes, CSA 50-06, 6 (11/24/06).

Where deputy sheriffs shared the duty to ensure jail door was locked, and one unlocked the door, their failure to lock the door for fifteen to twenty minutes while they played cards was neglect of duty. In re Simpleman, CSA 31-06, 6-7 (10/20/06), affirmed In re Simpleman, CSB 31-06 (8/2/07); In re Martinez, CSA 30-06, 5-7 (10/3/06).

Deputy sheriff neglected his duty to monitor inmate activity when he was so absorbed in playing cards with fellow officer that he failed to observe approach of supervisor until supervisor was three feet away. In re Simpleman, CSA 31-06, 5-6 (10/20/06), affirmed In re Simpleman, CSB 31-06 (8/2/07); In re Martinez, CSA 30-06, 5 (10/3/06).

Appellant was careless in her duty to maintain the security of the database when, a month after being informed of the withdrawal of a co-employee’s access to a database, she allowed the unauthorized co-employee to use her security code. In re Chavez, CSA 29-06, 6 (8/17/06).

Administrative assistant who continued to make the same type of performance errors for three years was careless in the performance of her duties. In re Diaz, CSA 13-06, 4 (5/31/06).

Operations supervisor neglected his duty to prepare equipment and work site for a product demonstration where he failed to bring the equipment requested by the contractor and failed to notice that the manhole to be used for drainage was plugged with cement. In re Lucero, CSA 58-15, 4 (4/12/16).  

Appellant performed her clerical duties in a careless manner when her supervisor was frequently required to perform appellant's duties. In re Diaz, CSA 92-05, 9 (1/31/06).

An employee acts with carelessness when she fails to take that degree of care an ordinarily careful person would exercise under the circumstances. In re Diaz, CSA 92-05, 9 (1/31/06).

Carelessness is acting in the absence of that degree of care an ordinarily careful person would exercise under the circumstances. In re Hobley, CSA 61-05, 7 (12/19/05),citing Black’s Law Dictionary  146 (Abridged 6thed.1991); see also In re Lucero, CSA 162-04 (4/15/05).

Appellant acted carelessly when he had two accidents with city vehicles within six weeks, and misplaced city equipment twice in one month, causing over $1,600 in damage, despite serious previous discipline for the same type of offense. In re Hobley, CSA 61-05, 7-8 (12/19/05).

Tardy employee was careless where new supervisor emphasized promptness by distributing assignment calendars and imposed discipline for tardiness. In re Williams, CSA 65-05, 6 (11/17/05).

Agency proved employee was careless in misfiling another employee’s confidential medical disclosure when filing confidential documents was a requirement of her job, and appellant was aware of that requirement. In re Diaz, CSA 45-05, 8 (9/7/05).

The fact that the polar bear endangered by appellant's failure to secure the animals did not suffer injury did not disprove the carelessness charge. In re Owoeye, CSA 11-05, 5 (6/10/05).

Where zookeeper's primary responsibility was animal safety and he was amply trained and experienced in that duty, his failure to secure a polar bear, resulting in imminent danger of harm to other polar bears or zoo keepers, was a violation of this rule. In re Owoeye, CSA 11-05, 6 (6/10/05).

Zookeeper's argument that an added job responsibility distracted him from failing to secure a polar bear does not overcome agency's proof of negligence where evidence showed that other zookeepers performed the same duty under the same circumstances. In re Owoeye, CSA 11-05, 4 (6/10/05) (decided under former 16-50 A. 1).

Evidence of a single failure to obtain supplies for a before-school recreation program class for which appellant was responsible establishes carelessness in the performance of job duties. In re Lucero, CSA 162-04, 7-8 (4/15/05).

NOT FOUND 

No violation of CSR 16-29A (Neglect) [now 16-28A] will be found where the duties appellant allegedly violated pertain only to other, specified rules. In re Hammernik and Trujillo, CSA 41-17 & 42-17, 3 (3/21/18), citing In re Gordon, CSA 10-14, 2 (11/28/14); In re Wright, CSA 40-14, 7 (11/17/14). Rule 16 Code of Conduct and Discipline. [but see In re Hernandez/Garegnani, CSB A025-17A, A026-17A (1/17/19)].

Agency did not prove Appellant violated CSR 16-29A (Neglect) [now 16-28A] through her alleged violations of the City’s STARS values of Teamwork and Respect for Self and Others, as these aspirational goals do not provide notice of an enforceable duty. In re Gerovic, CSA 77-17, 3 (6/1/18).

Agency cannot prove Appellant violated CSR 16-29A (Neglect) [now 16-28A] through her alleged neglect of duty to be honest, which is specifically covered by CSR 16-29D (Dishonesty) [now 16-28D], as the CSRs do not contemplate such redundancy of violations. In re Gerovic, CSA 77-17, 4 (6/1/18), citing In re Gordon, CSA 10-14, n.1 (11/28/14); In re Wright, CSA 40-14, 7 (11/17/14); In re Marez, CSA 58-16 n.5 (1/26/17).

No violation of CSR 16-29A (Neglect) [now 16-28A] will be found where the duty appellant allegedly violated is specific to another agency rule. In re Fergerson, CSA 64-17, 3 (3/16/18).

No separate violation is found under this rule where the potential claims under this rule were also alleged under other, more specific duties. In re Burdett, CSA 28-17, 3 (2/13/18).

Conclusory statements such as “[appellant] also neglected her general duty to adhere to all policies and procedures” fail to identify any duty not otherwise identified by another specific rule and fail to provide notice of what wrongdoing may have violated this rule. In re Koonce, CSA 34-17, 4 (12/22/17).

Violation not established where alleged basis for violation was that appellant neglected duties which derive directly from other specified orders and rules. In re Koonce, CSA 34-17, 4 (12/22/17).

Where duties stated under this rule replicate those under another rule, no doubling of violations may be established. In re Schofield, CSA 08-17, 4 (10/9/17), citing In re Gale, CSA 02-15, 5 (11/23/15); In re Mitchell, CSB 57-13, 3 (11/7/14).

Appellant’s disparagement of her supervisor within the hearing of business partners did not prove careless performance of any duty appellant directly owed to the business partners. In re Martinez, CSA 10-17, 7 (7/19/17). 

Violation not established even though agency’s guiding principles require inmates to be treated with dignity and respect, and deputies are charged with knowledge thereof, where notice of discipline failed to state, with any specificity, how the agency believed the employee did not do her job or performed it carelessly. In re Rocha, CSB 19-16, 6 (7/6/17).

No violation established where notice of discipline only broadly referred to having “tremendous responsibility, especially as it pertains to the authority to use force,” and more specific use of force duties were cited elsewhere. In re Garegnani & Jones, CSA 29-16 & 30-16, 3 (3/6/17).

Employee did not neglect a known duty where certification was not required in her PEP or by her prior supervisor, and employee promptly renewed her certification once informed it must be kept active. In re Lee, CSA 26-16, 3 (3/3/17).

Supervisor did not neglect her duty to manage an employee’s performance issues where supervisor spent significant time trying to improve performance, and both OHR and supervisor’s directors approved an open-ended PIP in an effort to stabilize employee’s performance. In re Lee, CSA 26-16, 3 (3/3/17).

No violation established where agency’s only evidence was a supervisor’s conclusory statement that appellant neglected his duty to reach a certain level of productivity, which duplicated claim under another, more specific rule. In re Marez, CSA 58-16, 6 (1/26/17).

Minute-long obstruction of a courtroom deputy’s line of sight while deputy was performing other duties does not prove neglect of duty to maintain order. In re Leyba, CSA 31-16, 5 (8/29/16).

No violation established where it was not apparent what duty appellant failed to perform. In re Johnson, CSA 11-16, 3 (5/26/16).

The "failure to use sound judgment" does not automatically establish neglect of duty under this rule. In re Rolando, CSA 40-15, 3 (1/26/16).  

Neglect of duty may not be established by finding the failure of the duty under other CSRs.  Such practice would result in impermissible stacking of charges. In re Rolando, CSA 40-15, 3 (1/26/16), citing In re Mitchell, CSB 57-13, 3 (11/7/14).

No violation found where agency failed to prove a sergeant gave preferential treatment to an inmate, or that sergeant neglected a duty to avoid preferential treatment. In re Rolando, CSA 40-15, 3 (1/26/16).  

No violation established where agency presented no evidence that employee’s attendance at a one-hour meeting for a city group caused the employee to perform any duty in a careless manner. In re Jackson, CSA 21-15, 6 (1/15/16).

Agency failed to prove violation of careless portion of this rule where it failed to give employee notice that it considered its provisional deadline for batching documents or that employee performed that work in a substandard manner. In re Jackson, CSA 21-15, 5-6 (1/15/16).

No violation established where appellant performed her discharge duties, although her actions were not in full conformity with agency policies, procedures and training. In re Rhodes, CSA 23-14, 5 (7/25/14).

Agency failed to establish a violation under this rule where it did not explain the basis for its conclusion that appellant performed his duty to conduct hearings in a careless manner. In re Vega, CSA 12-14, 3 (7/3/14).

Agency did not prove employee carelessly deleted emails where agency failed to prove he had a duty to preserve them. In re Trujillo, CSA 53-13, 5 (4/14/14).

Appellant’s failure to follow a supervisor’s directive is more in the nature of a violation of CSR 16-29 F, rather than a neglect of duty under this rule. In re Robinson, CSA 03-13, 4 (6/18/13).

Neglect may not be proven only as a failure to abide by other Career Service Rules. In re Robinson, CSA 03-13, 4 (6/18/13). 

No violation is established where supervisor did not cite any duty appellant violated. In re Robinson, CSA 03-13, 4 (6/18/13). 

Agency failed to prove the neglect portion of this rule where employee had duty to research assigned tasks and the evidence showed employee and her team completed twelve of the forty-five overdue tasks. In re Serna, CSA 39-12, 5 (5/23/13).

Agency did not prove appellant was careless in her duty to administer city contracts where relationship was a partnership under an MOU paid for by federal grant rather than a city-funded contract. In re Mack, CSA 43-12, 8 (3/18/13).

Agency did not prove appellant neglected her duty to administer city contract where relationship was a partnership under an MOU paid for by federal grant rather than a city-funded contract. In re Mack, CSA 43-12, 8 (3/18/13).

Appellant was not careless in the performance of a standard operating procedure when she obeyed her supervisor’s explicit directive in contravention of the procedure. In re Leslie, CSA 10-11, 9 (12/5/11). 

Agency failed to establish appellant was careless of duty to sign training acknowledgement timely where: supervisors were unsure of the policy. In re Leslie, CSA 10-11, 9 (12/5/11).   

Agency failed to establish dispatcher was careless, under a standard operating procedure (SOP), in failing to dispatch Denver Fire Department to an injury-accident where her co-worker confirmed twice the accident was non-injury, and her supervisor explicitly directed her not to send DFD, in contravention of standard operating procedure. In re Leslie, CSA 10-11, 9 (12/5/11).  

Agency failed to show Aviation Emergency Dispatcher was careless in failing to obtain a caller’s name, telephone number, or involvement in a bus rollover, where she established the first priority is to determine the location of an emergency in order to dispatch appropriate resources, and her supervisor acknowledged the most important task is to obtain a correct location. In re Leslie, CSA 10-11, 9 (12/5/11).   

Agency failed to establish Aviation Emergency Dispatcher was careless in failing to determine the correct location of a bus accident where the caller twice told her that he didn’t know the location, she consulted others in the call center to ascertain the location, and she was unaware of a snow alert that may have altered the normal bus route. In re Leslie, CSA 10-11, 9 (12/5/11). 

Agency failed to establish Aviation Emergency Dispatcher was careless in failing to follow a standard sequence where three co-workers revealed they regularly modify the sequence based on the circumstances of the call. In re Leslie, CSA 10-11, 11 (12/5/11).    

Agency failed to establish dispatcher carelessly documented an injury as a broken leg, instead of an injured arm, where she had logged out of the computer and her relief inaccurately logged the injury using her identification. In re Leslie, CSA 10-11, 10 (12/5/11).  

Since obedience to a direct, legitimate instruction always trumps a more general duty, appellant did not act carelessly when she followed her supervisor’s explicit direction in contravention of an Agency standard operating procedure. In re Leslie, CSA 10-11, 9 (12/5/11).  

Appellant did not neglect her duty for failing to double-check her work where the Agency did not specify that double-checking was a requirement. In re Roberts, CSA 40-10 & 48-10, 9 (11/15/10).

Judicial assistant did not neglect her cashier duties for leaving her post for thirty-five minutes while she undertook another duty, and returned only when she was informed customers were waiting.  The Agency failed to establish duty to remain at her post, or that the duration of her absence was excessive. In re Roberts, CSA 40-10 & 48-10, 9 (11/15/10). 

DIA equipment operator was not careless in the performance of his duty to provide customer service where the Agency failed to establish that, as part of that duty, he was to refer all customers who could not locate their cars to Parking Facilities, instead of driving a customer around to find the car. In re Cotton, CSA 104-09, 7 (10/18/10).

Neglect was not proven by evidence that youth worker allowed residents behind staff desk, since residents at times had permission to be there. In re O’Meallie, CSA 92-09, 4 (6/18/10).

Youth worker did not neglect his duty of supervision by allowing residents at family crisis center to do pushups on staff desk where there was no evidence how such activity violated that duty. In re O’Meallie, CSA 92-09, 4 (6/18/10). 

Neglect of duty was not proven where agency did not allege an omission to perform a duty. In re Cady, CSA 03-10, 4 (4/22/10).

Agency failed to prove neglect where it claimed youth crisis center worker was sleeping, but worker testified she closed her eyes only momentarily, and no objective evidence rebutted that testimony. In re Carrillo, CSA 95-09, 3 (3/16/10).

Supervisor’s testimony that appellant’s notebook was unacceptable to satisfy PIP requirements did not meet agency’s burden to prove neglect of duty where appellant credibly testified to the contrary and agency did not produce the only evidence of unacceptability - the notebook. In re Mounjim, CSB 87-07, 5 (1/8/09).

Supervisor’s testimony that appellant’s notebook was unacceptable to satisfy PIP requirements did not meet agency’s burden to prove carelessness where appellant testified to the contrary and agency did not produce the notebook. In re Mounjim, CSB 87-07, 5 (1/8/09). 

Four minor errors in recording travel time and locations on newly implemented activity log did not constitute negligence where log's function was limited to giving supervisor the general idea of where employees were and what they were doing. In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-08, 14, 19 (12/15/08).  

Appellant did not neglect his duty to share information by his failure to re-file HR documents in office files where appellant had not been instructed to re-file documents within a certain time period. In re Sienkiewicz, CSA 10-08, 14 (7/14/08).

Appellant did not neglect his duties by volunteering incorrect information to a co-worker, and then correcting it within the hour. In re Sienkiewicz, CSA 10-08, 16 (7/14/08).

Agency failed to prove violation where it failed to establish appellant had a duty not to discard his copies of compensation documents, or that the loss of documents discarded by appellant rendered the remaining documents inaccurate in any respect. In re Sienkiewicz, CSA 10-08, 13 (7/14/08).

Agency failed to prove violation where it presented no evidence as to what duty was violated, or how the duty was communicated to appellant. In re Mounjim, CSA 87-07, 4 (7/10/08).

Agency failed to prove violation of this rule where it failed to prove payroll technician was trained in and capable of creating timely personnel actions for suspended employee. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 10 (5/30/08).

Agency failed to prove payroll technician was negligent in failing to create personnel action forms for suspended employees because agency’s training did not clearly cover that topic, technician did not receive copy of training guide in time to use it to process the personnel action, and payroll was employee’s first priority. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 9-10 (5/30/08).

Claim that payroll technician submitted separation audit source documents late, rather than not at all, fails to establish neglect of duty. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 11 (5/30/08).

Audit errors committed by supervisor’s subordinates did not establish supervisor neglected her duty of oversight where agency failed to tie any of subordinates’ errors to supervisor’s duty. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 24 (5/30/08).

Agency failed to prove supervisor negligently supervised technicians for their failure to check certification list before issuing report to duty forms where agency failed to prove technicians had duty to do so. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 25 (5/30/08).

Agency failed to prove payroll technician neglected to check certification list before issuing hiring form where evidence did not show that checking that list was a duty of the technicians. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 30, 35-36 (5/30/08).

Agency failed to prove payroll technician neglected her duty to submit documents to auditor within thirty days because evidence did not show technician had notice of the deadline. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 30 (5/30/08).

Agency’s belief that the FMLA restricted it from further medical inquiry where appellant raised diarrhea as reason for restroom stop did not support its finding of neglect of duty. In re Dessureau, CSA 59-07, 5 (1/16/08).

Where supervisor's order could not be performed, there can be no violation of rule. In re Martinez, CSA 19-05, 7 (6/27/05) (decided under former 16-50 A.1).

Where agency's evidence was inconsistent about what duty appellant refused to perform, agency failed to prove violation of rule. In re Martinez, CSA 19-05, 6 (6/27/05) (decided under former 16-50 A.1).


16-28 B: Theft, Destruction, or Neglect in Use of City Property or Property or Materials of Any Other Person or Entity (Former 16-60 C)

IN GENERAL 

This rule requires an intent to permanently deprive another of his property. In re Schultz, CSA 156-04, 6 (Order 6/20/05) (decided under former 16-50 A.2).

FOUND 

The Agency proved appellant violated CSR 16-29 B (Destruction of Property) [now 16-28B] by damaging his supervisor’s car, where the video evidence showed that appellant was the only person, besides his supervisor, who accessed that portion of the car when the damaged occurred. In re Coates, CSA 9-18 & 18-18, 7 (12/19/18).

Appellant’s failure to collect a deposit and charge rent for the use of a City facility did not constitute theft, as defined by C.R.S. § 18-4-401, as she committed these failures unintentionally, therefore her conduct did not meet the “knowing” requirement of a theft. In re Rodriguez, CSB 60-17A, 3-4 (9/20/2018).

Reinstatement from dismissal to a non-management, non-supervisory position without backpay is proper penalty for manager whose negligence proved she should not be a supervisor or manager, but agency failed to prove she acted dishonestly or committed theft. In re Rodriguez, CSB 60-17A, 5 (9/20/2018).

An employee acts with neglect in the use of City property if he causes an accident or property damage. In re Gomez, CSA 02-12, 4 (5/14/12), citing In re Lewis, CSA 37-11, 4 (9/22/11). 

DIA plumber violated this rule in removing items from a stockroom where his duties did not require any of the parts he removed, he failed to list a work order number on the disbursement report, he was engaged in a private job involving plumbing around the same time and all witnesses contradicted his account. In re Duran, CSA 10-10, 9-10 (10/1/10).

Agency established appellant stole a co-worker's ring in violation of this rule where appellant made inconsistent statements during the investigation, the security camera showed appellant reaching into place where ring was left, and no other employee was in the area during the pertinent time. In re Galindo, CSA 39-08, 10 (9/5/08).

Appellant neglected city property when he had two accidents with city vehicles within six weeks, and misplaced city equipment twice in one month, causing over $1,600 in damage, despite his training, experience, and serious previous discipline for the same type of offense. In re Hobley, CSA 61-05, 8 (12/19/05).

NOT FOUND 

No violation established where agency claimed appellant snow plow driver’s accident caused damage to truck, but the damage was discovered five days after the accident; the truck had been driven in the interim; and evidence was vague as to whether the crack could have occurred before the accident. In re Gomez, CSA 02-12, 4 (5/14/12).

Unrebutted evidence that employee damaged city equipment because he forgot to retrieve it from the roof of his city vehicle does not establish that the acts were committed willfully or with utter lack of responsibility. In re Hobley, CSA 61-05, 5 (12/19/05) (decided under former 16-50 A.2).

Since a pen in supervisor's office was for the use of city employees in the performance of their jobs, and appellant's possession of the pen was consistent with that use, the agency did not establish that appellant was guilty of intent to permanently deprive within the meaning of 16-28 B. In re Schultz, CSA 156-04, 6 (Order 6/20/05) (decided under former 16-50 A.2).

Employee's request to a city vendor for pens used as a marketing tool does not prove theft. In re Schultz, CSA 156-04, 6 (Order 6/20/05) (decided under former 16-50 A.2).


16-28 C: Unauthorized Operation or Use of Any City Vehicles, Machines or Equipment (Former 16-60 D)

IN GENERAL 

In order to establish a violation of this rule, the agency must prove appellant used a city vehicle for a purpose not intended by his assignment to that vehicle. In re Dessureau, CSA 59-07, 6 (1/16/08) citing In re Oliver, CSA 28-02, 21 (10/17/02).

FOUND 

Appellant violated CSR 16-29C where she allowed a customer to use a City Center, in violation of the Center’s policy and the City ordinance, hence the customer’s use of the Center was unauthorized. In re Rodriguez, CSA 60-17, 3 (2/5/18), rev’d on other groundsIn re Rodriguez, CSB 60-17A (9/20/18).

Appellant violated CSR 16-29C where she joined a customer’s party at a City Center, whom she authorized to use the Center in violation of the Center’s policy and the City ordinance, hence her use of the Center was also unauthorized. In re Rodriguez, CSA 60-17, 3 (2/5/18), rev’d on other grounds, In re Rodriguez, CSB 60-17A (9/20/18). 

Appellant’s frequent access to social networking website on her work computer, during work hours, knowing such internet use was unauthorized, was violation of this rule. In re Rodriguez,  CSA 12-10, 7 (10/22/10).

Appellant violated this rule where he was prohibited from using his work computer while on investigatory leave, yet he accessed his work email account for his personal use. In re Cotton, CSA 104-09, 8 (10/18/10). 

Agency proved airport employee who entered a restricted-access command vehicle without authorization on three occasions violated this rule. In re Jones, CSA 88-09, 4 (5/11/10).

Airport technician's use of her city vehicle to meet a firefighter for a liaison in the firehouse was an unauthorized use of a city vehicle in violation of this rule. In re Jones, CSA 88-09, 4 (5/11/10).

Supervisor’s use of his assigned agency vehicle for personal business constitutes unauthorized use of city equipment. In re Valdez, CSA 90-09, 5 (3/1/10).   

Appellant violated rule when she changed confidential information in agency database about a former client after her authority to access computer lapsed. In re Abdi, CSA 63-07, 6 (2/19/08).

Appellant who used an agency computer for personal purposes during working hours violated the rule prohibiting unauthorized operation of city equipment. In re Garcia, CSA 175-04, 5 (7/12/05) (decided under former 16-51 A.7).

NOT FOUND 

Agency did not prove deputy engaged in unauthorized use of internet where website was minimized on deputy's screen at the time he released an inmate who was not eligible for release, and screen did not interfere with deputy's duties. In re Mitchell, CSA 57-13, 5 (5/7/14).

Agency failed to prove appellant misused shredder by placing documents in it where retention policy required confidential documents to be shredded. In re Sienkiewicz, CSA 10-08, 13 (7/14/08).

Appellant did not misuse agency’s internet service by listening to music through radio station’s website during work hours, and using Google to research ergonomic issues. In re Sienkiewicz, CSA 10-08, 17 (7/14/08).

Appellant did not violate rule by providing agency investigator with confidential information from agency database where supervisor found no impropriety in the disclosure. In re Abdi, CSA 63-07, 6-7 (2/19/08).

Allegation that appellant caused a co-worker to provide her with client file did not establish violation of this rule where agency did not assert misuse of any city vehicle, machine or equipment. In re Abdi, CSA 63-07, 7 (2/19/08).

Agency failed to present any evidence that appellant’s use of assigned vehicle to stop for a restroom break during the work day was an abuse of the vehicle in violation of rule. In re Dessureau, CSA 59-07, 6 (1/16/08).


16-28 D: Any Act of Dishonesty (Former 16-60 E)

IN GENERAL 

Honest timekeeping is an essential function for all Career Service employees, as it is the promise to provide a valuable service in exchange for a substantial portion of each taxpayer dollar. In re Marez, CSA 58-16, 8 (1/26/17).

A violation of this rule includes any knowing misrepresentation made within the employment context. In re Marez, CSA 58-16, 3 (1/26/17), citing In re Rodriguez, CSA 12-10, 7 (10/22/10).

Intent to deceive may be inferred from circumstances. In re Steckman, CSB 30-15, 4 (1/19/17), citing In re Gale, CSB 02-15 (7/21/16).

Agency's consideration of dishonesty in assessing discipline is an impermissible use of the disciplinary process where dishonesty was not charged. Such practice fails to notify an employee what conduct was considered by the Agency in assessing discipline and deprives the employee of the opportunity to defend against it. In re Leslie, CSA 10-11, 20 (12/5/11).

Lying during a disciplinary proceeding is especially egregious, as it undercuts the agency’s efforts to seek the truth in important matters involving employment rules and the rights of employees, and weakens the ability of an agency to place its trust in the statements of its employee. In re Duran, CSA 10-10, 10 (10/1/10), citing In re Galindo, CSA 39-08, 10 (9/5/08).  

Dishonesty claims are often determined by credibility. In re Redacted, CSA 08-10 (5/24/10).

Credibility is critical in determining whether dishonesty has been proven, since the agency must establish the employee knowingly misrepresented the truth. In re Clayton, CSA 111-09, 4-5 (4/6/10).

In determining whether an employee knowingly misrepresented the truth, the concept of acting knowingly derives from the criminal code, which defines the term as being aware or acting willfully. In re Clayton, CSA 111-09, 5 (4/6/10), citing CRS 18-1-501(6) (2009). 

Silence, when the situation calls for a response, is just as dishonest as an overt expression of dishonesty, since both are intended to deceive. In re Clayton, CSA 111-09, 5 (4/6/10).

This rule almost always requires an analysis of credibility. In re Carter, CSA 87-09, 4 (2/17/10), aff’d CSB 87-09A (7/1/10).

This rule is not limited to false statements made to superiors, but includes any knowing misrepresentation made within the employment context. In re Mounjim, CSB 87-07, 6 (1/8/09).

Dishonesty is the knowing communication by an employee of a false statement within the employment relationship. In re Dessureau, CSA 59-07, 6 (1/16/08), citing In re Davis, CSA 46-06, 7 (6/8/07); In re Roberts, CSA 179-04, 4 (6/29/05).

In order to find a violation under this rule, dishonesty connected to the employee’s workplace must be established. In re Redacted, CSA 190-03, 5 (2/13/06) (decided under the former 16-50 A. 3), citing In re Espinoza, CSA 66-04 (12/8/04); In re Maes, CSA 180-03, 19 (6/9/04).

Rule is intended to include all types of dishonesty related to an employee's service with the city. In re Schultz, CSA 156-04, 7 (6/20/05) (decided under former 16-50 A.3.).

FOUND 

Appellant violated CSR 16-29D (Dishonesty) [now 16-28D] by posting her employment as “police officer” on Facebook, where she had an affinity for affiliating herself with the DPD through clothing, insignia and in writing. In re Gerovic, CSA 77-17, 4-5 (6/1/18).

Appellant violated CSR 16-29D (Dishonesty) [now 16-28D] by claiming the photographs she posted of herself in DPD attire were a joke, where her postings and their responsive comments show she intended to represent herself as a police officer. In re Gerovic, CSA 77-17, 5 (6/1/18).

Appellant violated CSR 16-29D (Dishonesty) [now 16-28D] by claiming agency promised her a permanent position at the DPD District 5 Station, but Agency witness, its rules, and Appellant’s job specification state assignments are made as needed. In re Gerovic, CSA 77-17, 6 (6/1/18).

Vulgar language/disrespectful exchange not proven where agency cited that violation in its notice of discipline but presented no evidence of the exchange at hearing, so appellant’s denial at hearing rebutted the agency’s allegation. In re Gerovic, CSA 77-17, 5 (6/1/18).

Employee who told one supervisor all the reasons for her absence but failed to repeat all of them to a second supervisor did act dishonestly under this rule. In re Colquitt, CSA 34-15, 5 (10/30/15).

Agency could find appellant dishonest for claiming to be unaware of its policy requiring personal identification card to access its secure sites even though agency did not enforce that policy. In re Hinojosa, CSA 33-18, 7 (11/29/18).

Appellant dishonestly obtained reimbursement claimed mileage for trip she could not have made in the time available to her. In re Hinojosa, CSA 33-18, 7 (11/29/18).

Appellant was dishonest in denying to her supervisor that she missed any mandatory meetings where she purposefully conflated a meeting that she did not have to attend with a mandatory meeting. In re Hinojosa, CSA 33-18, 8 (11/29/18).

Appellant dishonestly reported her work hours where she claimed more hours than she could have worked in the time available to her. In re Hinojosa, CSA 33-18, 8 (11/29/18).

Dishonesty established by appellant’s less-than-forthcoming conversation with the city attorney in which he inferred he sought legal advice about a third person, but actually sought legal advice about his own situation. In re Mancuso, CSB 76-17, n.1 (9/6/18).

Dishonesty established albeit appellant did not hide his name in his call to an assistant city attorney, where he hid the purpose of his call, did not identify himself as a city employee until pressed repeatedly, and did not disclose he was calling to seek legal advice about his personal situation until pressed. In re Mancuso, CSB 76-17, 5 (9/6/18).

Dishonesty-by-omission established where appellant failed to disclose critical information any reasonable person would know to disclose, and did so intentionally and knowingly for the purpose of attempting to obtain information he was not otherwise entitled to receive. In re Mancuso, CSB 76-17, 6 (9/6/18).

Dishonesty established when senior recreation center supervisor issued free passes to individuals he knew were not entitled to them. In re Santistevan, CSB 75-16, 2 (11/16/17).

Dishonesty established when deputy misrepresented position of inmate’s hands on cell door flap, which tended to minimize the risk of injury to inmate when deputy kicked door flap. In re Roybal, CSB 44-16, 2 (5/18/17).

Dishonesty established when deputy claimed kicking door flap to inmate’s cell was necessary to entice dangerous inmate to back away to secure door flap, but after kicking the flap, deputy walked away without securing it, and inmate was not aggressive at the time. In re Roybal, CSB 44-16, 2 (5/18/17).

Dishonesty by omission was established by deputy’s omission, twice, to mention to his supervisor that he used force in kicking door flap to inmate’s cell, was intentional considering his obligation to report all use of force, and in light of reporting only inmate’s aggression preceding the kick. In re Roybal, CSB 44-16, 2 (5/18/17).

Program manager knowingly falsified work hours by approving fewer work hours than she knew were actually worked by an employee. In re Fresquez, CSA 63-16, 6 (2/24/17).

Dishonesty established where discrepancies in timekeeping were established and appellant’s claims - that the timekeeping system was unreliable, that he merely credited himself time to assist another, and that he made a simple timekeeping error - were unconvincing in view of credible testimony that a co-worker alone performed that work, appellant failed to introduce objective evidence of timekeeping malfunction, and appellant’s latest three violations were also for improper timekeeping, so he understood importance of accurate timekeeping. In re Marez, CSA 58-16, 3-4 (1/26/17).

Dishonesty established in falsified timekeeping where project claimed by appellant was assigned to a co-worker and appellant was assigned to an earlier shift that day. In re Marez, CSA 58-16, 4 (1/26/17).

Dishonesty in timekeeping established where appellant had the experience, motivation and opportunity to change time he had reported, supervisor credibly testified from records that the job was assigned to a co-worker, and appellant could not have assisted contractor as claimed because the contractor was not present. In re Marez, CSA 58-16, 5 (1/26/17).

Dishonesty established where appellant entered time he allegedly assisted a contractor, but the job was assigned to someone else, and appellant claimed only generally he sometimes helps out. In re Marez, CSA 58-16, 5 (1/26/17).

Dishonesty in timekeeping established where appellant entered time in record-keeping system for assisting on a project, but the job was assigned to someone else and his supervisor credibly testified such work is never done during appellant’s shift, and is not the type of work ever performed by appellant. In re Marez, CSA 58-16, 6 (1/26/17).

Dishonesty in timekeeping established where evidence indicated appellant claimed two hours for work he did not do; once under investigation, he reversed that entry; he had been disciplined previously for lack of production; and he was under pressure to show increased productivity. In re Marez, CSA 58-16, 5 (1/26/17).

Dishonesty in timekeeping established where appellant claimed time worked for project assigned to someone else. Appellant claimed the timekeeping entry was a mistake, but after having been disciplined for the same problem before, each of ten faulty time submissions progressively decreased the credibility of his claim. In re Marez, CSA 58-16, 6 (1/26/17).

Finding of dishonesty was reasonable where deputy denied seeing pat-search directly in front of him, but video recording showed inmate who was pat searched collapsing directly in front of him and deputy admitted seeing two or three incidents of hazing during same period. In re Steckman, CSB 30-15, 3 (1/19/17).

Operations supervisor falsely reported thirteen or fourteen manholes per day prepared for street paving where he did not ask for daily reports, and both crew and director affirmed the crew completed only six or seven a day. In re Lucero, CSA 58-15, 5 (4/11/16). 

Supervisor falsely stated he asked his crew to volunteer for a project where four credible statements from his crew affirmed he had not made that request. In re Lucero, CSA 58-15, 6 (4/11/16).   

Appellant falsified records in violation of this rule when he reported changing filters that were exceedingly dirty a short time later, when he reported 1.25 hours for work he did not perform, and when he reported excessive time in three other work orders although he did no work. In re Macieyovski, CSA 28-14, 6 (10/13/14).

Finding that deputy lied during an investigation when he denied slapping an inmate was not clearly erroneous, even though video was subject to interpretation, where jail video showed the incident. In re Kemp, CSB 19-13, 2 (7/28/14).

Agency proved deputy was dishonest in denying that he slapped the inmate where the slap was proven by witness testimony and jail video showing deputy's hand connecting to the inmate's head, followed by inmate’s head snapping back. In re Kemp, CSA 19-13, 12 (1/2/14).

Hearing officer’s determination that petitioner was dishonest during internal affairs investigation was not clearly erroneous where it was based on determination of credibility supported by record evidence. In re Redacted, CSB 57-11 (12/20/12).

Appellant’s admission, that she intended to pay for merchandise she took without paying, was a knowing misrepresentation within the employment context, in violation of CSR 16-28 D [former CSR 16-60 E], where the reasons she provided to investigator of her intent to pay were not credible. In re Redacted, CSA 57-11, 5-6 (5/31/12), affirmed  In re Redacted, CSB 57-11 (12/20/12).

Deputy sheriff’s denial of a personal relationship with a female inmate was dishonest where his best friend saw him being intimate with the inmate and, several times, appellant had other deputies authorize inmate’s transfer to locations where he could visit with her. In re Romero, CSA 01-12, 8 (4/17/12). 

Supervisor was dishonest in obtaining free replacement phones for herself and other employees where she: 1) claimed the phones were broken in normal use where they were not; 2) claimed the phones were defective although she mishandled hers and another was run over by an employee, and 3) she knew the contract for the phones did not allow for free replacement. In re Roybal, CSA 60-11, 5 (3/13/12), affirmed In re Roybal, CSB 60-11 (8/2/12).

Supervisor violated this rule for using deception to obtain free phone replacements even though she could have obtained legitimate free replacements through other means. In re Roybal, CSA 60-11, 5 (3/13/12), affirmed In re Roybal, CSB 60-11 (8/2/12).

A violation under this rule is established where appellant misrepresented the amount of time she was absent from her desk on 12/10/09, knowing the times she reported to her supervisor would be the period her supervisor would enter into KRONOS. In re Rodriguez,  CSA 12-10, 8 (10/22/10). 

DIA plumber was dishonest in his pre-disciplinary meeting when he denied he engaged in a private plumbing job, but admitted it at hearing. In re Duran, CSA 10-10, 10 (10/1/10).  

Dishonesty was proven where appellant failed to punch out for a twenty-five minute absence yet claimed pay for that time. In re Abbey, CSA 99-09, 8 (8/9/10).

Dishonesty established where co-workers' specific and documented testimony, that appellant was frequently absent during work, was more credible than appellant's general denial. In re Norris, CSA 68-09, 6 (7/12/10).

Appellant was dishonest where he claimed pay for 8 hours of jury duty, but served less than three hours, for which discrepancy he gave with varying and implausible explanations. In re Redacted, CSA 08-10, 3-8 (5/24/10).

Deputy was untruthful during investigation in stating that inmate was aggressive and refused his order, where jail video shows deputy shoved inmate into an elevator a second after inmate calmly made a request. In re Koehler, CSA 113-09, 15-16 (4/29/10).

Deputy was dishonest when he told investigator he ordered inmate off elevator, although admitting at hearing he did not issue that order. In re Koehler, CSA 113-09, 16 (4/29/10).

Because employee was aware of her supervisor's directive against overtime when she claimed it, employee was dishonest in violation of the rule. In re Clayton, CSA 111-09, 5 (4/6/10).

Dishonesty was proven where appellant was aware of a directive prohibiting overtime for committee meetings, thereafter claimed overtime for three meetings, submitted an overtime pay request to a fill-in supervisor without informing him of the directive, attempted to circumvent the rule by pretending ignorance of it, and changed her explanation for her overtime claims several times. In re Clayton, CSA 111-09, 6 (4/6/10).

Dishonesty in requesting pay for attending a meeting was established by evidence that appellant supported her request for pay by detailing the location, attendance at and contents of the meeting which had been cancelled. In re Clayton, CSA 111-09, 6 (4/6/10).

Agency proved violation where employee told his supervisor he was at the office but GPS tracking on his car showed he was at home. In re Valdez, CSA 90-09, 5 (3/1/10). 

Dishonesty was proven where several agency witnesses corroborated each other with plausible testimony, and all had a good relationship with appellant, whereas appellant’s statements were inconsistent over time, and he had an interest in the outcome of the case: preservation of his job. In re Carter, CSA 87-09, 4 (2/17/10), affirmed In re Carter, CSB 87-09 (7/1/10).

Appellant’s denial that he intended to intimidate a co-worker was dishonest where he admitted saying, “I’m talking to you man, why did you rat me out like that?  You’d better watch your back,” which the co-worker reasonably interpreted as attempted intimidation. In re Carter, CSA 87-09, 5 (2/17/10), affirmed In re Carter, CSB 87-09 (7/1/10).

Appellant was dishonest to internal affairs investigator when he denied asking another deputy to give a false statement to IA where the other deputy’s testimony was corroborated by other witnesses. In re Carter, CSA 87-09, 5 (2/17/10), affirmed In re Carter, CSB 87-09 (7/1/10).  

Where evidence showed that use of crochet needles in jail setting was potentially harmful, and the directive to cease bringing crocheting materials to work were clear to other deputies present when directive was given, appellant's assertion that order applied only to yarn was dishonest. In re Norman-Curry, CSA 28-07 & 50-08, 4 (2/27/09), affirmed In re Norman-Curry, CSB 28-07 & 50-08 (9/3/09).

Deputy sheriff's denial that sergeant's "please do not do this again" was an order to cease knitting on post was dishonest in light of the obvious intent of the words and the sergeant's authority over appellant. In re Norman-Curry, CSA 28-07 & 50-08, 4 (2/27/09), affirmed In re Norman-Curry, CSB 28-07 & 50-08 (9/3/09).

Violation of this rule proven where deputy sheriff claimed she was justified in use of force against an out-of-control inmate who kicked and head-butted another deputy, but that deputy testified he had complete control over the inmate and the inmate did not kick or head butt. In re Norman-Curry, CSA 28-07 & 50-08, 21 (2/27/09), affirmed In re Norman-Curry, CSB 28-07 & 50-08 (9/3/09).

Violation under this rule is sustained where digital recording supported sheriff's department allegation that appellant-deputy repeatedly slammed inmate's head into a window, contrary to deputy's claim that she merely held the inmate's head against it. In re Norman-Curry, CSA 28-07 & 50-08, 21-2 (2/27/09), affirmed In re Norman-Curry, CSB 28-07 & 50-08 (9/3/09).

Hearing officer erroneously concluded appellant could not violate this rule by lying to a non-supervisor. In re Mounjim, CSB 87-07, 6 (1/8/09).

Proof of a fraudulent statement requires knowledge of the falsity of the statement. In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-08, 20 (12/15/08), citing In re Mounjim, CSA 87-07 (7/10/08).

Appellant’s denial that he took a co-worker’s ring during an investigation into the theft was not credible where appellant made inconsistent statements during the investigation and the security tape showed that appellant was the only one in the area during the relevant time. In re Galindo, CSA 39-08, 10 (9/5/08). 

Agency proved appellant was dishonest when she told agency she spent 1 ½ hours having her badge enabled by security, then admitted at hearing that she did not have her badge enabled that day. In re Blan, CSA 40-08, 5 (7/31/08).

Appellant was dishonest when his two statements during investigation contradicted the consistent statements of four witnesses and victim of assault, despite witnesses’ friendship with appellant. In re Rogers, CSA 57-07, 6-7 (3/18/08).

Appellant violated rule where she assisted her sister’s fraudulent application for welfare benefits. In re Abdi, CSA 63-07, 26-27 (2/19/08).

Altering official records related to donated leave and lying to supervisors about whether discipline was imposed on a subordinate are acts of dishonesty in violation of this rule. In re Feltes, CSA 50-06, 7 (11/24/06).

Where agency established that appellant was playing cards on duty, and appellant repeatedly denied playing cards during investigation, each denial was an additional act of dishonesty. In re Martinez, CSA 30-06, 7 (10/3/06), see also In re Simpleman, CSA 31-06, 8 (10/20/06).

Deputy sheriff who was observed sleeping on duty was dishonest when he denied sleeping to supervisor, investigator, and to committee at pre-disciplinary meeting. In re Simpleman, CSA 05-06, 6 (5/16/06).

Appellant was dishonest in claiming sick leave in order to leave early for her scheduled vacation. In re Clayton, CSA 128-05, 5 (3/21/06).

Deputy sheriff acted dishonestly in lying to investigating officers about being intoxicated and stealing a beer when arrested while off duty at a bowling alley. In re Mergl, CSA 131-05, 3 (3/13/06).

Appellant was dishonest in submitting and failing to correct time sheets which misrepresented her work hours, despite notice of the procedures and prior warnings from her supervisor. In re Vigil, CSA 110-05, 4 (3/3/06).

Where supervisor was dishonest about her affair with a superior and dishonest about her mistreatment of a subordinate because she refused to cover up affair, both of which had a direct and significant impact upon the workplace, supervisor violated this rule. In re Redacted, CSA 190-03, 7 (2/13/06).

Dishonesty requires proof that appellant knowingly communicated a false statement within the employment relationship. In re Roberts, CSA 179-04, 4 (6/29/05) (decided under former 16-50 A.3), citing In re Espinoza, CSA 66-04 (12/8/04).  

Employee who asked co-worker to log her in to work as present made a false report of her work hours. In re Roberts, CSA 179-04, 4 (6/29/05).

Dishonesty includes both false statements and acts of deception such as misappropriation. In re Schultz, CSA 156-04, 7 (6/20/05), citing Webster's Unabridged Dictionary 525 (Encyclopedic Ed. 1979) (decided under former 16-50 A.3).

NOT FOUND 

Proving an employee’s dishonesty requires evidence that the employee’s differing accounts of events constitute a knowing misrepresentation of the truth. In re Colquitt, CSB 34-15A, 5 (1/4/18), citing In re Mounjim, CSB 87-07A (1/8/09).

Appellant’s differing but not inconsistent reasons to different supervisors for her absence, which Agency did not refute at hearing, did not constitute a knowing misrepresentation of the truth. In re Colquitt, CSB 34-15A, 4-5 (1/4/18), citing In re Mounjim, CSB 87-07A (1/8/09).

An employee’s failure to address the agency’s allegations to attempt to refute them at a contemplation of discipline meeting is not proof of the allegations. In re ColquittCSB 34-15A, 5 (1/4/18).

Hearing Officer properly construed CSR 16-60(E)’s prohibition of dishonesty to require a knowing misrepresentation made in the employment context. [now CSR 16-28 D.] In re ColquittCSB 34-15A, 5-6 (1/4/18).

Agency’s dismissal of appellant based on its belief that she engaged in dishonest conduct, was unsupported since it failed to prove the dishonest conduct at hearing. In re Rodriguez, CSB 60-17A, 2-3 (9/20/2018).

Agency failed to prove appellant, Vehicle Impound employee, violated CSR 16-29D [now 16-28D] by receiving bullets found in impounded auto but then denying he had received them, where witnesses testified customers left with the bullets. In re Tamburino, CSA 40-17, 7 (4/23/18).

Appellant not dishonest where agency asked her where she parked in its garage, and appellant identified her parking privileges in the garage lower level, even though she had not parked there recently. In re Hinojosa, CSA 33-18, 6-7 (11/29/18).

Errors in appellant’s time card did not by itself prove misrepresentation. In re Martinez, CSA 10-17, 6 (7/19/17). 

Agency’s removal of the charge of dishonesty from its notice of discipline, but assessing aggravated penalty for dishonesty punishes employee for misconduct in a manner that gives her less meaningful opportunity to contest allegations of dishonesty. This is so because the level of discipline is typically a matter within the discretion of the agency whereas actual charges for dishonesty must be proven by a preponderance of the evidence at hearing. In re Rocha, CSB 19-16, 7 (7/6/17).

No dishonesty established where appellant entered then later backed out time for claimed work, but the agency could not establish when he added or removed the time and his supervisor acknowledged it could have been simple mistake. In re Marez, CSA 58-16, 4-5 (1/26/17).

Employee’s note “to Alfresco” did not misrepresent that the document was already available in Alfresco, since anyone familiar with the process knows the scanning itself takes time. In re Jackson, CSA 21-15, 6 (1/15/16).

Employee’s offer to volunteer to help with high priority duties was not a misrepresentation that she was up to date with her own duties, since her desk clearly showed the status of her own workload. In re Jackson, CSA 21-15, 6 (1/15/16).

Version of use of force incident in one witness's delayed report was so contrary to all other evidence, including the video, that it was more probably the product of an imprecise memory than evidence that deputy was dishonest. In re Kemp, CSA 19-13, 12 (1/2/14).

Deputy's statements over two years were not so irreconcilable that they established deputy lied about whether an inmate was trying to stand just before the use of force. In re Kemp, CSA 19-13, 11 (1/2/14).

Where deputy's statements changed little in the two years between in incident and the hearing and differed only in emphasis, evidence did not support a finding of dishonesty. In re Kemp, CSA 19-13, 11 (1/2/14).

Evidence that appellant assigned work after the deadline did not prove that appellant did so with the intent to convey false information. In re Serna, CSA 39-12, 7 (5/23/13).

Agency did not establish dishonesty by evidence that airport technician accepted pay for time she was engaged in sex at the airport, since agency did not prove technician was on the clock at that time. In re Jones, CSA 88-09, 5 (5/11/10).

Where agency alleged appellant misrepresented her compliance with PIP requirements, but appellant’s stated confusion over requirements rebutted the “knowingly false” element, agency failed to prove dishonesty. In re Mounjim, CSB 87-07, 6 (1/8/09).

Appellant’s email reflecting her own belief that she met her PIP requirements did not prove appellant made a knowingly false statement that her supervisor accepted her papers in compliance with her PIP. In re Mounjim, CSB 87-07, 6 (1/8/09). 

Agency failed to prove appellant submitted false attendance information regarding two Girls’ Club classes where appellant’s testimony that the classes were held at a different time than scheduled was corroborated by one of the parents of the participants. In re Mounjim, CSB 87-07, 6 (1/8/09). 

Minor clerical errors in daily activity log which did not mislead supervisor about the work performed did not prove intent to deceive or knowledge of falsity of errors, as necessary to prove violation of this rule. In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-08, 14-15, 19 (12/15/08). 

Agency failed to prove appellant's log was dishonest, where agency's evidence would require finder of fact to credit appellant for an elaborate scheme to conceal his whereabouts at a time not in question, and supervisor noted appellant's trustworthiness in his evaluation two months after the incident. In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-08, 18 (12/15/08). 

Agency failed to prove employee fraudulently attested on his PEPR that he had a valid driver's license where he was suspended in error by the county court after paying a traffic ticket, and employee was unaware of that suspension until after the PEPR was signed. In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-08, 20 (12/15/08). 

Agency failed to prove appellant was dishonest about reason for her four-hour trip to courthouse, where agency proved only that the trip was unnecessary. In re Blan, CSA 40-08, 5 (7/31/08).

Agency failed to prove appellant recreation coordinator falsified records to falsely show that she conducted two classes where evidence showed appellant held the classes on different times on the dates cited. In re Mounjim, CSA 87-07, 7 (7/10/08).

Assistant city attorney who responded inaccurately to his supervisor’s question about a specific case during a hectic docket, then failed to correct the inaccurate statement, was not dishonest where agency provided no evidence appellant sought to deceive his supervisor. In re Stone, CSA 70-07, 9 (2/25/08).

Supplying incorrect information to a supervisor alone is not enough to sustain a charge of dishonesty. In re Stone, CSA 70-07, 9 (2/25/08). 

Agency failed to prove city driver admitted dishonesty by telling his supervisor, “I messed up”, where reply was consistent with his credible testimony that he failed to ask permission before he made a restroom stop, and no other evidence supported allegation of dishonesty. In re Dessureau, CSA 59-07, 7 (1/16/08).

Agency’s determination that appellant had not been dishonest was supported by evidence that appellant told her supervisor she had sent an email because she thought she had done so. In re Butler, CSA 78-06, 5 (1/5/07).

Agency did not establish appellant was intentionally deceptive in requesting a day off to appear in court when the court documents showed that it was a deadline to appear or answer the complaint, as appellant demonstrated she was simply unfamiliar with the nature of the proceedings. In re Edwards, CSA 21-05, 6 (2/22/06).

Appellant was not dishonest in erroneously reporting that she had finished two projects, or in failing to advise her supervisor of her intent to work on Saturday. In re Diaz, CSA 92-05, 5-6 (1/31/06).

Appellant was not dishonest in failing to provide three potential interview questions to all candidates for promotion who had applied previously, since the same eight interview questions were used for the past three to five years, thus past interviewees had the same advantage as those receiving copies of interview questions. In re Martinez, CSA 69-05, 5-6 (1/4/06).

Appellant was not dishonest in her answers to investigators regarding when she provided interview questions to candidates, since the question would only be important if it related to answers from a written examination, which would have violated her CSA examination security agreement prohibiting disclosure of written exam questions. In re Martinez, CSA 69-05, 6-7 (1/4/06).

Where appellant supervisor assisted several candidates testing for an open supervisory position by openly providing information to any of them who sought it, she did not act dishonestly in violation of this rule. In re Martinez, CSA 69-05, 6 (1/4/06).

Employee may reasonably rely on agency's past interpretation of disciplinary rules in the absence of notice of a change in that interpretation. Thus, employee was not dishonest in failing to report offenses that the agency did not require to be reported in past years. In re Mitchell, CSA 05-05, 5 (6/27/05).

Agency failed to prove intent to deceive when it failed to give employees notice of a change in its policy on annual background checks. In re Mitchell, CSA 05-05, 5 (6/27/05).

The act of requesting comp zoo tickets from a person unauthorized to grant them is not itself dishonest without proof of intent to deceive. In re Schultz, CSA 156-04, 7 (6/20/05).

Employee's request to city vendor for free advertising pens did not prove dishonesty. In re Schultz, CSA 156-04, 7 (6/20/05).

Appellant's offer to ask his zookeeper friend to arrange a behind-the-scenes zoo tour did not establish dishonesty in absence of proof that using a zookeeper as an intermediary to request a tour is a violation of the tour approval policy. In re Schultz, CSA 156-04, 7-8 (6/20/05).

Proof that an employee instructed another to assault a supervisor did not establish a false statement or other act of dishonesty. In re Moreno, CSA 138-04 (5/25/05).

Evidence of carelessness, attendance violations and noncompliance with instructions did not prove dishonesty. In re Lucero, CSA 162-04, 8 (4/15/05).


16-28 E: Using Official Position or Authority for Personal Profit or Advantage (Former 16-60 F)

IN GENERAL 

Violation of this rule is established by requesting an advantage by virtue of having an official position, and does not require that an employee actually receive the requested advantage. In re Cotton, CSA 104-09, 8 (10/18/10).  

Violation of this rule requires proof of a significant link between one’s official position or authority and seeking an advantage to which one is not otherwise entitled. In re Sawyer & Sproul, CSA 33-08 & 34-08, 9 (1/27/09), citing In re Mergl, CSA 131-05, 4 (3/13/06); In re Redacted, CSA 190-03, 7 (2/13/06).

Rule requires proof of actual use of official position for personal gain. In re Catalina, CSA 35-08, 8 (8/22/08).   

FOUND 

Appellant violated CSR 16-29E where she joined a customer’s unpaid or underpaid party at a City Center during her working hours, in breach of her fiduciary duty to manage the Center responsibly. In re Rodriguez, CSA 60-17, 4 (2/5/18), rev’d on other groundsIn re Rodriguez, CSB 60-17A (9/20/18). 

DIA equipment operator used his official position for personal advantage where he told a customer that driving him around to locate his car would cost $20. Employee was not entitled to money in addition to his salary, and his attempt violated the rule. In re Cotton, CSA 104-09, 8 (10/18/10).  

Supervisor used his official position for personal advantage where he drove his assigned city vehicle to conduct private business without prior authorization. In re Valdez, CSA 90-09, 5 (3/1/10).      

Deputy sheriff, by identifying himself as a deputy sheriff and asking for professional courtesy when arrested off duty, sought an advantage to which he was not otherwise entitled in violation of this rule. In re Mergl, CSA 131-05, 4 (3/13/06).

Long-term employee who accepted benefit of changed selection criteria to attend conference by supervisor with whom she was having an affair used her position for personal advantage in violation of this rule In re Redacted, CSA 190-03, 7 (2/13/06).

NOT FOUND 

No violation established where, even though appellant obtained a new work phone by deception, she gained no personal profit or advantage since she always carried a work phone. In re Roybal, CSA 60-11, 6 (3/13/12).

An employee’s reference to the fact that he is employed by the city while soliciting outside work is insufficient to violate this rule. In re Sawyer & Sproul, CSA 33-08 & 34-08, 9 (1/27/09). 

Appellants who cited their employment experience with the agency as qualifications when they solicited contracts for their outside business did not violate rule. In re Sawyer & Sproul, CSA 33-08 & 34-08, 9 (1/27/09). 

Agency failed to prove appellant conveyed confidential information to her attorney in return for waiver of his consultation fee. In re Catalina, CSA 35-08, 8 (8/22/08). 

16-28 F: Failure to Comply with Lawful Orders of an Authorized Supervisor or Failing to do Assigned Work Which Employee is Capable of Performing (Former 16-60 J)

IN GENERAL 

A violation of the first part of this rule requires proof that a supervisor communicated a reasonable order and the employee violated that order under circumstances demonstrating willfulness. In re Hull, CSA 78-18, 6 (4/12/19), citing In re Marez, CSA 58- 16, 6 (1/26/17).

The first part of this rule requires the agency to prove an authorized supervisor gave a lawful order to the employee who then failed to comply. In re Schofield, CSA 08-17, 4 (10/9/17).

The second part of this rule cannot require success, only the application of reasonable or best efforts. In re Schofield, CSA 08-17, 7 (10/9/17).

Failure to comply with an order requires intentional refusal of a supervisor’s authority, an act more significant than mere neglect. In re Lee, CSA 70-16, 4 (3/3/17), citing In re Mounjim, CSB 87-07 (1/8/09). 

A violation of the first part of this rule requires proof that a supervisor communicated a reasonable order and the employee violated that order under circumstances demonstrating willfulness. In re Marez, CSA 58-16, 6 (1/26/17), citing In re Macieyovski, CSA 28-14, 6 (10/13/14).

An order is a communication that clearly requires an employee to take certain action. In re Jackson, CSA 21-15, 7 (1/15/16).

An order must convey to a reasonable person what is intended, including the action that is required to be taken. In re Jackson, CSA 21-15, 7 (1/15/16).

The nature of the conduct in question may support a finding of willfulness. In re Macieyovski, CSA 28-14, 6 (10/13/14), citing In re Redacted, CSB 56-11, 3 (12/20/12). 

Misconduct targeted by this rule is different from the mere failure to perform job duties in that knowing disobedience to an order indicates intentional refusal of a supervisor’s authority, a more serious offense, than mere neglect. In re Macieyovski, CSA 28-14, 6 (10/13/14).

An order under this rule includes any words conveying to a reasonable employee that the conduct at issue is mandatory. In re Macieyovski, CSA 28-14, 6 (10/13/14).

A work assignment, under the second phrase in this rule, is general and occurs in the ordinary course of an employee’s duties. An order under the first phrase in this rule is a specific directive from a supervisor to a subordinate. In re Macieyovski, CSA 28-14, 7 (10/13/14).

Under this rule, the employee must have notice that a supervisor’s direction is intended as a direct order of specific behavior, without which intent to refuse cannot be inferred. In re Macieyovski, CSA 28-14, 7 (10/13/14).

A broad interpretation of this rule that prohibits any neglect of duty as a failure to comply with an order is inconsistent with the tenets of statutory interpretation, that the language in the rule is presumed to mean something. In re Macieyovski, CSA 28-14, 7 (10/13/14), citing Colo. Water Conservation Bd. v. Upper Gunnison R. Water Conservancy Dist., 109 P.32 585 (Colo. 2005).

Under the second section of this rule, an employee is prohibited from failing to do assigned work which he is capable of performing. In re Vega, CSA 12-14, 3 (7/3/14), citing In re Mounjim, CSA 87-07, 7 (7/10/08), aff’d In re Mounjim, CSB 87-07 (1/8/09).  

The second part of this rule prohibits a failure to perform a specifically-assigned duty rather than the general work of a position. In re Vega, CSA 12-14, 3 (7/3/14), citing In re Mounjim, CSA 87-07, 7 (7/10/08). 

Order to handle staff communications with sensitivity and respect constitutes a valid, reasonable order to act in a certain way, or to refrain from acting in ways inconsistent with the concepts of dignity and respect. In re Redacted, CSB 56-11, 2 (12/20/12). 

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. 

A finding of willfulness does not require an admission, but can often be inferred from the conduct in question. In re Redacted, CSB 56-11, 3 (12/20/12), citing U.S. v. Guidry, 199 F.3d 1150 (10th Cir. 1999), N.A.S. Import Corp. v. Chenson Enterprises, 968 F.2d 250, 252 (2nd Cir. 1992). 

The existence of a written policy does not constitute a supervisory order to perform a task consistent with this rule. A separate rule addresses such circumstance. In re Jackson, CSA 39-10, 8 (10/7/10).  

A PIP constitutes the direct order of an authorized supervisor under this rule. In re Abbey, CSA 99-09, 8 (8/9/10).

This rule targets the failure to perform work, rather than work done in an inadequate or improper manner. In re D’Ambrosio, CSA 98-09, 7 (5/7/10).

This rule contains two discrete violations: failure to comply with an order and failure to perform assigned work, whether or not under direct order. In re Clayton, CSA 111-09, 7 (4/6/10).

Supervisor's directive need not be prefaced with words like "I order you" to be the lawful order of a superior. In re Norman-Curry, CSA 28-07 & 50-08, 9 (2/27/09). 

The objectives of a PIP are not served without clear communication to the employee about what management expects. In re Mounjim, CSA 87-07, 8 (7/10/08), affirmed  In re Mounjim, CSB 87-07, 3 (1/8/09). 

To establish failure to comply with orders, agency must prove proper instructions were provided, and appellant knew of those instructions, but failed to follow them. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 27 (5/30/08), citing In re Vigil, CSA 110-05, 5 (3/3/06); In re Trujillo, CSA 28-04, 10 (5/27/04).

Proof of intent to disobey order may be established by circumstantial evidence. In re DiazCSA 13-06, 5 (5/31/06) (decided under former CSR 16-50 A.7), citing In re Owens, CSA 139-04, 7 (3/31/05).

Agency must demonstrate that 1) someone with proper authority within the agency gave an order to appellant; 2) the order was reasonable; 3) appellant had reasonable notice of the order; 4) appellant was capable of complying; and 5) appellant refused to comply. In re HernandezCSA 03-06, 4 (5/3/06) (decided under former §16-50 A. 7), citing In re Trujillo, CSA 28-04, 9-10 (5/27/04); In re Martinez, CSA 19-05, 6 (6/27/05); In re Conway, CSA 40-05, 3 (8/16/05).

FOUND 

Through its 2018 Performance Evaluation & Expectations Plan, Hazard training, and various counseling sessions with Appellant’s supervisor, the Agency communicated reasonable orders to him that he serve as a subject matter expert on its software, work and provide leadership at the counter the majority of his time, and train his subordinates; and through direct orders from his supervisor, that he perform the Office inventory personally and enforce the new policy against scheduled breaks. In re Hull, CSA 78-18, 2, 4-5 (4/12/19).

Appellant failed to comply with lawful orders when he did not: (1) provide necessary leadership at the service counter, especially during a fire alarm, (2) perform the Office inventory, (3) enforce the policy eliminating scheduled breaks, and (4) become expert on Agency software and train his team on it. In re Hull, CSA 78-18, 7-9 (4/12/19).

Employee who disregarded order to work mandatory overtime violated both sections of this rule by failing to comply with an order and failing to do assigned work she could perform. In re ColquittCSA 34-15, 4 (10/30/15).

Appellant violated CSR 16-29F where she failed to collect payment from a customer who hosted a party at a City Center and to monitor the activities of the guests and some of them entered restricted areas of the Center. In re Rodriguez, CSA 60-17, 4 (2/5/18), rev’d on other groundsIn re Rodriguez, CSB 60-17A (9/20/18). 

Violation established where supervisor directed appellant to obtain records “ASAP,” and followed up twice with urgent emails.  Appellant’s disagreement with the need for the records was largely irrelevant; her claim that another case took precedence and that another investigator had also failed to obtain the records were unavailing, due to her failure to communicate these issues. In re Schofield, CSA 08-17, 5 (10/9/17).

Appellant’s absences and failure to submit her Kronos time card in a timely manner were failures to comply with her supervisor’s orders to arrive by 9 am and approve her Kronos by 10 am on the last day of the pay period. In re Martinez, CSA 10-17, 5 (7/19/17). 

Violation of second part of this rule established where appellant admitted she understood post order requiring her to conduct twenty-four rounds during her shift, but only conducted fourteen. Appellant’s justification, that other duties prevented full compliance, was unpersuasive where she acknowledged she had other options such as seeking a relief officer or calling a supervisor. In re Barra, CSA 1-16, 3 (3/10/17).

Violation established, where Appellant had been under Performance Improvement Plan to pay close attention to shift scheduling, making accurate and informed staff briefings, and to pay attention to inventory of subordinates’ booths, but continued to perform those duties deficiently. In re Johnson, CSA 11-16, 4 (5/26/16).

Operations supervisor failed to comply with his supervisor’s order and failed to do assigned work where supervisor instructed him to inspect manhole and to prepare proper equipment for a demonstration, but he did neither. In re Lucero, 58-15, 4-5 (4/12/16).  

Appellant violated portion of this rule to do assigned work where he failed to change filters as required on eight occasions, failed to perform repairs, neglected to clean his work area and made inadequate notes on his work orders. In re Macieyovski, CSA 28-14, 7 (10/13/14).

Appellant failed to obey a lawful order by her supervisor to complete a virtual patient transfer when she refused to do so without first reviewing the approval form. In re Black, CSA 03-14, 4 (6/9/14).

Neither fear of being blamed in an audit nor her reservations about the accuracy of her co-worker's approval form justified a caseworker's failure to complete a virtual patient transfer. In re Black, CSA 03-14, 4 (6/9/14).

Case management coordinator violated performance standard to treat all customers with dignity and respect when she said “I can’t handle it,” referring to client’s physical appearance, loudly enough for clients and nearby co-workers to hear. In re Perry-Wilborne, CSA 62-13, 7 (5/22/14).

Appellant’s refusal to return his old uniforms unless shown a rule that required their return was direct evidence that his delay in returning the uniforms was willful. In re Macieyovski, CSA 55-13, 4 (4/1/14).

Appellant violated a direct order to return his old uniform when he did not return it by the date ordered. In re Macieyovski, CSA 55-13, 4-5 (4/1/14).

Appellant’s claim that he was not obligated to turn in old uniforms because, in the absence of written rule or ordinance, he became owner, was without merit since the City Charter authorizes a manager to administer his or her agency by issuing orders necessary and prudent to accomplish agency mission. In re Macieyovski, CSA 55-13, 5 (4/1/14).

Violation proven where appellant was directed in a PIP to be respectful but she refused to participate in meetings, refused to reply to legitimate directives and, when she did respond, was disrespectful. In re Robinson, CSA 03-13, 9 (6/18/13). 

Appellant’s refusal to comply with directive to leave her door open was violation of this rule. In re Robinson, CSA 03-13, 8 (6/18/13). 

Violation established by appellant’s acknowledgment that she had been directed not to attach her personal laptop to city monitor, yet continued to do so. In re Robinson, CSA 03-13, 4-5 (6/18/13). 

Appellant’s explanation for defying supervisor’s order not to attach her personal computer to City monitor - because she had no work assigned – was irrelevant to her unauthorized use of City’s monitor in violation of this rule. In re Robinson, CSA 03-13, 7 (6/18/13). 

Appellant’s explanation for defying supervisor’s order not to attach her personal computer to City monitor – to monitor ill sister’s medical needs – was unpersuasive where she never mentioned the need before hearing, had not explained it to her supervisor, and never mentioned it in her extensive note-taking. In re Robinson, CSA 03-13, 8 (6/18/13). 

Appellant’s refusal to comply with supervisor’s order to accompany her to HR for processing to investigatory leave was violation of this rule where Appellant’s reason for defying order, and entering three secured areas unlawfully, was to seek boxes for her plants. In re Robinson, CSA 03-13, 8 (6/18/13).

Agency proved appellant willfully violated this rule by her failure to give priority to assignment as ordered by her supervisor based on her belief that all her work should be given equal priority. In re Serna, CSA 39-12, 8 (5/23/13). 

Hearing officer did not misinterpret this rule by finding that supervisor disobeyed the order to handle staff communications with sensitivity and respect based on evidence of her angry confrontation with 1 employee and assignment of extra work to other employees just to be, in her words, "an asshole." In re Redacted, CSB 56-11, 2-3 (12/20/12). 

Appellant snow plow driver failed to perform work of which he was capable where GPS tracking data proved his plow did not move during time he claimed to have been plowing. In re Gomez, CSA 02-12, 5 (5/14/12). 

Appellant violated this rule, where his supervisor reasonably instructed him to apologize to his co-worker for his conduct in a negative interaction, emphasizing that Appellant need not admit guilt, and Appellant refused to comply. In re Weiss, CSA 68-10, 9 (2/14/11).      

The Agency established appellant violated this rule by willfully continuing to make up time by working late after her supervisor forbade it. In re Rodriguez, CSA 12-10, 8 (10/22/10). 

Call-center agent failed to comply with the lawful orders of her supervisor, where her supervisor explicitly restricted her from taking unauthorized breaks, when she left her workstation, and the following day, she took an unauthorized break. In re Jackson, CSA 39-10, 8 (10/7/10).    

DIA equipment operator willfully failed to comply with his supervisor’s reasonable order where he was prohibited from making contact with the City or using the City’s network, yet he used his employee email account seventeen times over a two-month period. In re Cotton, CSA 104-09, 9 (10/18/10).  

DIA plumber failed to comply with the lawful orders of an authorized supervisor where he ignored the third day of a mandatory snow callout during a snowstorm, despite the critical nature of his duties and his knowledge of emergency snow policies. In re Duran, CSA 10-10, 11 (10/1/10).    

Appellant’s generic claim that he was singled out unfairly was not a defense to his failure to comply with an order in his PIP to be at his work station no later than the beginning of his shift, a policy that applied to all staff, where he had a history of tardiness and he was given several reminders by his supervisors. In re Abbey, CSA 99-09, 8 (8/9/10).

Violation of first part of this rule is established where appellant’s supervisor gave direct order to remain in his work area, appellant acknowledged order and then immediately breached it. In re Norris, CSA 68-09, 6 (7/12/10).

By arriving late and disappearing for substantial periods during his shift, appellant failed to perform his assigned tasks. In re Norris, CSA 68-09, 6 (7/12/10). 

Project manager willfully failed to comply with order to cease threatening and hostile communications with contractors when she demanded detailed financial information or she would engage the resources of the city attorney, accounting department and auditor, while acknowledging that her supervisor was not in agreement with the demand and her demand could not be circumvented by others. In re Harrison, CSA 55-07, 89-07 & 90-07, 50 (6/17/10).

Employee willfully failed to comply with order to send director a contract issues log when she instead sent emails and copies of the contracts themselves, and did not send log until three weeks later, requiring her supervisor, in order to avoid further delay, to discuss the issues with the contractor without the log. In re Harrison, CSA 55-07, 89-07 & 90-07, 51 (6/17/10).

A supervisor’s explicit directive forbidding overtime for attending after-work meeting was a lawful order under this rule. In re Clayton, CSA 111-09, 7 (4/6/10).

Appellant’s claim for overtime pay to attend after-work meetings was a failure to comply with an order prohibiting overtime for meetings where she evaded the order by submitting it to a fill-in supervisor, claimed the order was ambiguous, and changed her explanation several times. In re Clayton, CSA 111-09, 6 (4/6/10).

Supervisor failed to do assigned work where he engaged in personal business and went home during working hours instead of supervising and meeting with his crew. In re Valdez, CSA 90-09, 6 (3/1/10). 

Appellant deputy sheriff's continued arguing with supervisor after receiving direct, lawful order prohibiting her conduct, was a violation of department order against disrespecting supervisor under this rule. In re Norman-Curry, CSA 28-07 & 50-08, 6 (2/27/09).

Appellant violated rule when he parked in restricted space using non-compliant disabled veteran license plates after being advised repeatedly of reasonable parking restrictions by his supervisors, by a friend, and after being given a warning for a first violation. In re Owens, CSA 69-08, 3-4 (2/6/09). 

The first element of this violation, communication of a reasonable order by a supervisor, is proven by appellant’s acknowledgment he received pertinent handbook containing parking instructions, in conjunction with supervisor’s directives on parking restrictions at appellant’s orientation. In re Owens, CSA 69-08, 4 (2/6/09). 

The second element needing proof, violation of a supervisor’s order, was established: where appellant claimed his disabled veteran plates should allow him to park in restricted space, but he did not dispute agency evidence that such plates do not meet its requirements; appellant claimed he had a valid handicap placard, but his claim was rebutted by his own friend as well as other employees; appellant claimed agency supervisor told him he could park in restricted space, but supervisor rebutted that testimony and appellant raised claim only after pre-disciplinary meeting. In re Owens, CSA 69-08, 4-5 (2/6/09). 

The third element proven, circumstances demonstrating willfulness, was established where appellant claimed he was unaware of parking restrictions but: he acknowledged having received supervisor’s letter explaining parking restrictions; parking restrictions were explained to him on his first day of work; he never asked for parking accommodations before being cited; he disregarded his friend’s warning about parking in disabled space; and even after supervisor showed appellant where he could park, appellant parked in handicap space the next day. In re Owens, CSA 69-08, 5 (2/6/09).  

Supervisor’s orders to sever ties with outside employer within ninety days, request written permission to compete with employer, and require an employee not to renew contract with outside employer were reasonable regulation of outside employment. In re Sawyer & Sproul, CSA 33-08 & 34-08, 9-10 (1/27/09), citing Dalton v. City of Russellville, 720 S.W. 2d 918 (1986); Johnson v. Trader, 52 So. 2d 33 (Fla. 1951); Phillips v. Hall, 447 N.E. 2d 418 (D. Ill. 1983); 72 A.L.R. 5th 671 (1998).

Conflict of interest that arose as a direct result of appellants’ failure to obey order demonstrated the reasonableness of the order that was designed to prevent the conflict. In re Sawyer & Sproul, CSA 33-08 & 34-08, 10 (1/27/09). 

Appellants’ willful failure to withdraw from a contract after being ordered to do so violated this rule where the agency’s later contract with the same party required the agency to cooperate with Appellants, resulting in a conflict of interest the order was designed to avoid. In re Sawyer & Sproul, CSA 33-08 & 34-08, 10 (1/27/09). 

Where supervisor approved training leave on the condition that appellant submit a leave slip, appellant violated her supervisor's order by attending training without submitting the leave slip. In re Williams, CSA 53-08, 5-6 (12/19/08).

Appellant with ongoing attendance issues who was specifically ordered to comply with timely punch-in policies violated supervisor's order when she arrived at work timely but forgot to punch in. In re Williams, CSA 53-08, 6 (12/19/08). 

Appellants violated orders by exceeding agency's limit of two-mile radius for traveling to lunch in an agency vehicle. In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-08, 17 (12/15/08). 

Appellant failed to comply with his supervisor’s orders by leaving campus during work hours and taking long breaks and lunch hours. In re Galindo, CSA 39-08, 12 (9/5/08).

Agency proved that appellant failed to perform assigned work when she spent four hours on an unnecessary trip away from her work site. In re Blan, CSA 40-08, 5 (7/31/08).

Agency proved supervisor failed duty to oversee subordinates’ submission of audit documents within thirty days, in violation of second part of this rule, where the evidence showed that supervisor had notice of this duty, was capable of performing it, and failed to train and oversee her subordinates to ensure documents were submitted within the deadline. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 27 (5/30/08).

Where HR technician’s five-month delay in processing separation documents caused customer dissatisfaction and violated PEP directive to fulfill customer service standards, agency proved violation of this rule. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 38 (5/30/08).

Where appellant was signatory to a user agreement prohibiting unauthorized access to a database but allowed an unauthorized coworker to access the database, appellant violated this rule. The user agreement was a term and condition of appellant’s work and she had been ordered to restrict the co-employee’s access. In re Chavez, CSA 29-06, 6 (8/17/06).

Appellant refused to obey order to discuss performance issues with her supervisor after having been disciplined for similar behavior. In re Diaz, CSA 13-06, 5 (5/31/06) (decided under former CSR 16-50 A.7).

Appellant failed to comply with instructions to perform several routine tasks after being given reasonable notice of those instructions. In re DiazCSA 13-06, 5 (5/31/06) (decided under former CSR 16-51 A.10).

Appellant intentionally ignored agency order to cease addressing female co-workers by terms of endearment, despite past discipline for same conduct. In re HernandezCSA 03-06, 6 (5/3/06) (decided under former CSR 16-50 A.7).

Where supervisor continually disapproved appellant’s practice of working through lunch in order to leave early, appellant failed to comply with supervisor’s instructions to obtain prior approval of leave. In re Vigil, CSA 110-05, 5 (3/3/06) (decided under former CSR 16-51 A.10).

Appellant failed to comply with instructions on attendance by failing to call her supervisor two hours before start of her shift seven times, and by leaving work before the end of her shift without informing her supervisor. In re Edwards, CSA 21-05, 7 (2/22/06) (decided under former CSR 16-51 A.10).

Supervisor’s contemporaneous notes were more convincing than Appellant’s qualified denials in establishing that Appellant failed to comply with supervisor’s instructions to perform her clerical duties, avoid personal phone calls, and not use golf cart for deliveries. In re Diaz, CSA 92-05, 10 (1/31/06) (decided under former CSR 16-51 A.10).

Agency established that appellant refused to obey supervisor’s order prohibiting personal phone calls by taking fifteen calls and leaving her duty station to continue a phone call. In re Diaz, CSA 92-05, 6 (1/31/06) (decided under former CSR 16-50 A.7).

Appellant failed to obey orders when she refused to speak with her supervisor about work issues without a union representative, limited her contact with supervisor to checking her email every hour, and did work assigned by email without replying to supervisor’s messages. In re Diaz, CSA 92-05, 3, 7 (1/31/06) (decided under former CSR 16-50 A.7).

Admitted failure to promptly begin assigned duty - an orientation meeting for agency clients - despite clear instructions to do so, established failure to obey order. In re Williams, CSA 65-05, 6 (11/17/05) (decided under former CSR 16-51 A.10).

ASA II’s failure to maintain an accurate inventory of radio equipment and failure to lock up valuables despite her supervisor’s orders, established failure to comply with order. In re Diaz, CSA 45-05, 9 (9/7/05) (decided under former CSR 16-51 A.10).

Appellant violated his supervisor's order to cease use of unscheduled leave where the order given was reasonable based on concern for public safety, and appellant was notified many times that future noncompliance would lead to discipline, but appellant continued to take unscheduled leave. In re Conway, CSA 40-05, 3 (8/16/05) (decided under former CSR 16-50 A.7).

Appellant's violations of policy prohibiting smoking in animal areas was a refusal to comply with the orders of his supervisor. In re Schultz, CSA 156-04, 8 (Order 6/20/05) (decided under former CSR 16-50 A.7).

Where appellant was clearly ordered to pay closer attention to proper safety procedures for securing animals four months before this incident, appellant failed to comply with supervisor's instruction by failing to close a polar bear exhibit door. In re Owoeye, CSA 11-05, 7 (6/10/05) (decided under former CSR 16-51 A.10).

Supervisor's testimony and notes that he saw appellant wearing non-uniform clothing, and counseled her after each violation, established that appellant failed to comply with uniform policy. In re Lucero, CSA 162-04, 9 (4/15/05) (decided under former CSR 16-51 A.10).

Where appellant took medicine he knew would make him sleepy, set his alarm for the end of his shift, and lay down on a sofa, agency proved failure to comply with instructions to load and unload trash while appellant slept. In re Owens, CSA 139-04, 7 (3/31/05) (decided under former CSR 16-51 A.10).

Employee's statement that she was not going to process paperwork, followed by an angry exchange with her supervisor and her departure from work without permission, established refusal to obey an order in violation of rule. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 13 (1/27/05) (decided under former CSR 16-50 A.7).

Filing a complaint about performing fingerprinting duties is not a defense to a charge of refusal to complete a different duty. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 3 (1/27/05); citing In re Dollison, CSA 64-03 (8/18/03) (decided under former CSR 16-50 A.7).

A challenge to a work assignment by means of a CSA appeal does not justify a refusal to comply with an order to perform that assignment. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 13 (1/27/05) (decided under former CSR 16-50 A.7).

NOT FOUND 

It is insufficient proof under this rule to state an employee generally failed to comply with directives without identifying either a directive or the failure to accomplish it. In re Schofield, CSA 08-17, 4-5 (10/9/17).

No violation established where supervisor’s claimed that appellant “denies simple requests and has standoffish body language” yet he failed to address those concerns with appellant, which was insufficient notice of wrongdoing. In re Schofield, CSA 08-17, 6 (10/9/17).

No violation established by supervisors claiming appellant was “not a team player,” was “often unavailable” and frequently reacted with “pushback”, as these accusations fail to provide notice of an order to the employee to respond meaningfully. In re Schofield, CSA 08-17, 6 (10/9/17).

No violation established where co-worker complained appellant was never available before 8:30 or after 3:30, but co-worker did not set appellant’s hours, was unaware of her work schedule, and never approached appellant about her concern. In re Schofield, CSA 08-17, 5 (10/9/17).

No violation established where written complaint stated an unidentified person at an unidentified time asked appellant to deliver a document and appellant replied “I’m not an errand boy,” but accuser was identified only at hearing, appellant testified she did not refuse to deliver the document, stated her accuser became rule and hostile, and said a co-worker offered to deliver the document. In re Schofield, CSA 08-17, 6 (10/9/17).

No violation established where agency engaged in “filling in the blanks” only at hearing so as to require employee guess at what to defend, in violation of CSR requirement to disclose evidence before hearing. In re Schofield, CSA 08-17, 6 (10/9/17), citing CSR 19-43 B (former CSR 19-44 C).

No violation established where appellant-investigator refused to give up her time off to accompany a deputy DA to an inmate interview two days before trial and made no arrangements for a substitute, but appellant’s immediate supervisor testified he understood her not wanting to come in on her day off, stated it would have been more reasonable for deputy DA to ask 2-3 days ahead, and stated appellant’s suggestion of a telephone interview was reasonable. In re Schofield, CSA 08-17, 7 (10/9/17).

No violation of second part of this rule established where agency made no connection between any of its allegations and this rule. In re Schofield, CSA 08-17, 7 (10/9/17).

No violation of second part of this rule established where agency claimed appellant-investigator failed to locate a witness that another investigator located in fifteen minutes, but appellant countered, without rebuttal, that she made substantial inquiries and the other investigator found witness only because police serendipitously contacted witness just before his search. In re Schofield, CSA 08-17, 7 (10/9/17).

No violation of second part of this rule established where common complaint was appellant-investigator did not check in or assist in the courtroom as often as she should, but no evidence indicated appellant had notice of an expectation to assist, and there was no requirement that she check in during trial, only a consensus that she was not a “team player,” and her work review rated her as “successful” in volunteering assistance when needed. In re Schofield, CSA 08-17, 8 (10/9/17).

No violation of second part of this rule established by general “expectation” that appellant-investigator failed to come in to assist at trial on her time off, but her supervisors acknowledged her right to take planned time off and her right not to volunteer. In re Schofield, CSA 08-17, 8 (10/9/17).

Supervisor’s three-day late submittal of assignment did not prove failure to comply with order or do the work where supervisor forgot the assignment in rush of other work. In re Lee, CSA 26-16, 4-5 (3/3/17).

Agency did not prove program manager disobeyed a reasonable work order where the order was removed months before the conduct cited in the disciplinary letter. In re Fresquez, CSA 63-16, 6 (2/24/17).

Deputy DA’s stated preference for issuance of subpoenas six to eight weeks before trial was not an order under the first phrase of this rule. In re McKisson, CSA 69-16, 3 (1/31/17).

Late issuance of subpoenas by legal secretary does not violate second part of this rule, which targets failure to perform assigned work at all, rather than work done in an inadequate manner. In re McKisson, CSA 69-16, 3 (1/31/17). 

No violation established where agency’s only evidence was conclusory supervisor’s statement that appellant did not do work he was capable of performing, without establishing what work he failed to do. In re Marez, CSA 58-16, 6 (1/26/17).

The mere existence of pending work does not prove a violation of an implied order to perform that work. In re Jackson, CSA 21-15, 7 (1/15/16).

Agency did not prove employee was capable of completing work by a certain deadline where the employee met that deadline only by setting aside all other work with the approval of her supervisor. In re Jackson, CSA 21-15, 7 (1/15/16).

It was not clearly erroneous for hearing officer to find an order was not given where the evidence is conflicting and the finding is based upon a determination of witness credibility. In re Mitchell, CSB 57-13, 2 (11/7/14).

No violation established where Appellant engaged in work-related experiments outside the scope of his orders, but no evidence indicated such experiments were a refusal to obey an order. In re Macieyovski, CSA 28-14, 7 (10/13/14).

No violation of this rule found where parking magistrate obeyed directive to serve customer he initially declined to serve. In re Vega, CSA 12-14, 3 (7/3/14).

No violation found where parking magistrate did not decline to perform a specific directive, but simply turned back a customer referred to him in the ordinary scope of his work. In re Vega, CSA 12-14, 3 (7/3/14). 

Work that is merely careless does not necessarily violate this rule. In re Perry-Wilborne, CSA 62-13, 6 (5/22/14), citing In re D'Ambrosio, CSA 98-09, 6 (5/7/10).

Although intake coordinator failed to complete intake with a client, no violation of this rule was established since work was incomplete rather than not done at all. In re Perry-Wilborne, CSA 62-13, 6-7 (5/22/14), citing In re D'Ambrosio, CSA 98-09, 7 (5/7/10). 

No violation established where Agency claimed appellant failed to answer calls while on investigatory leave, but evidence was conflicting as to whether Agency had sought and acquired correct contact information. In re Robinson, CSA 03-13, 8 (6/18/13). 

An employee’s failure to attend a pre-disciplinary meeting is not a violation of this rule. In re Robinson, CSA 03-13, 8 (6/18/13). 

Call-center agent did not fail to comply with a supervisor’s order where the basis for agency’s claim was her failure to follow a written policy. In re Jackson, CSA 39-10, 8 (10/7/10).    

Where the agency presented no evidence youth worker violated a direct order in failing to intervene in resident assault, violation of this rule was not proven. In re O’Meallie, CSA 92-09, 5 (6/18/10).

Agency failed to prove employee was given notice in job description or by other means that work done with inadequate customer service was work not performed at all under this rule. In re D’Ambrosio, CSA 98-09, 7 (5/7/10). 

Allegation that appellant was careless in processing bonds does not establish that she failed to do assigned work she was capable of performing. In re Cady, CSA 03-10, 5 (4/22/10).

Agency did not prove employee failed to comply with his supervisor's order to perform an emergency repair by responding, “in this weather?”, since employee immediately left to do the work after his supervisor confirmed his order. In re Valdez, CSA 90-09, 5-6 (3/1/10). 

Merely uttering words that a supervisor’s order could be dangerous is insufficient to establish a good faith refusal to perform work. In re Valdez, CSA 90-09, 6, n. 3 (3/1/10). 

Supervisor’s testimony that appellant’s notebook was unacceptable to satisfy PIP requirements did not meet agency’s burden to prove failure to comply with supervisor’s orders where appellant testified to the contrary and agency did not produce the notebook. In re Mounjim, CSB 87-07, 5 (1/8/09). 

Where appellant was ordered to submit doctor's note to cover sick leave, and supervisor granted sick leave, agency failed to prove violation of order. In re Williams, CSA 53-08, 6 (12/19/08). 

Where agency policy permits employees to take breaks as work allows, and appellants' total breaks were less than the permitted time, agency failed to prove violation of policy. In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-08, 17 (12/15/08). 

Minor clerical errors in daily activity log did not prove failure to comply with supervisor's order where supervisor instructed employees to use the logs to give him the general idea of where they were and what they were doing, and performance review stated employees' records were accurate and complete. In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-08, 15, 19 (12/15/08). 

Where agency deemed appellant failed to comply with supervisor’s order to complete PIP requirements, but supervisor failed to communicate PIP requirements clearly, agency failed to prove appellant violated this rule. In re Mounjim, CSA 87-07, 7 (7/10/08), affirmed In re Mounjim, CSB 87-07, 3 (1/8/09). 

Agency failed to prove appellant did not comply with her supervisor’s orders where agency presented no evidence that the order was communicated to appellant. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 27 (5/30/08).

Agency did not prove appellant failed to perform assigned work where agency presented no evidence that appellant should have been aware of the duty to check new hires’ names against the certification list, or that she should have been aware of that duty through common knowledge or training. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 25 (5/30/08).

Agency did not establish that city driver willfully failed to comply with his supervisor’s order against unauthorized stops where driver’s restroom stop was caused by a legitimate emergency for which he had no opportunity to request permission. In re Dessureau, CSA 59-07, 7 (1/16/08).

Repeated failures to complete tasks because of distraction and memory lapses do not demonstrate an intention to refuse supervisor’s orders when the problems did not recur after discipline was imposed. In re Diaz, CSA 13-06, 5 (5/31/06) (decided under former CSR 16-50 A.7).

Appellant did not refuse to perform a duty when she did perform it at least 52% of the time, and agency did not prove appellant intended to refuse to perform any particular order to do that work. In re Diaz, CSA 92-05, 6 (1/31/06) (decided under former CSR 16-50 A.7).

Appellant’s absence from her desk does not, without more, prove a refusal to cover phones and gate. In re Diaz, CSA 92-05, 6 (1/31/06) (decided under former CSR 16-50 A.7).

Agency did not establish appellant refused her supervisor’s order to return to duty station by proving appellant stayed at location of special project to receive training. In re Diaz, CSA 92-05, 7 (1/31/06) (decided under former CSR 16-50 A.7).

Agency failed to prove appellant violated undersheriff’s written order restricting use of sick leave because order conflicted with Career Service Rule authorizing use of sick leave. In re Espinoza, CSA 30-05, 7 (1/11/06) (decided under former CSR 16-51 A.5).

Employee’s failure to keep his equipment in working order, resulting in a lack of equipment to perform his duties, does not establish a willful refusal to do work. In re Hobley, CSA 61-05, 5 (12/19/05) (decided under former CSR 16-50 A.7).

Where the agency did not offer proof that appellant deliberately damaged his computer in order to avoid work, the evidence does not support a finding that appellant refused to do assigned work. In re Hobley, CSA 61-05, 5-6 (12/19/05) (decided under former CSR 16-50 A.7).

Where employee did not deliberately mislead the agency by stating that equipment must have been taken out of his vehicle, agency did not prove employee refused to do assigned work. In re Hobley, CSA 61-05, 6 (12/19/05) (decided under former CSR 16-50 A.7).

Where appellant was late to an orientation session because she forgot about it, after arriving timely for 2 ½ years, refusal to comply with order was not established. In re Williams, CSA 65-05, 5 (11/17/05) (decided under former CSR 16-50 A.7).

Agency did not prove refusal to comply with order banning use of cell phones during work hours when the policy was not communicated to appellant before the conduct that would violate it occurred. In re Williams, CSA 65-05, 5 (11/17/05) (decided under former CSR 16-50 A.7).

Proof of numerous warnings and counseling on tardiness and absenteeism did not establish that appellant intended to refuse to comply with orders regarding attendance. In re Diaz, CSA 45-05, 5 (9/7/05).

Where the agency did not give appellant notice of the kinds of convictions he needed to disclose, appellant's failure to list his misdemeanor convictions did not constitute disobedience to an instruction. In re Mitchell, CSA 05-05, 8 (6/27/05) (decided under former CSR 16-51 A.10).

When agency failed to provide reasonable notice to appellant as to which of four instructions she was to obey, agency failed to prove appellant violated this rule. In re Martinez, CSA 19-05, 6 (6/27/05) (decided under former CSR 16-50 A.7).

Employee's refusal to sign an acknowledgement that she received a notice was not a refusal to obey an order, since the notice appeared to request a voluntary signature, and there was no evidence she had been ordered to sign it. In re Lucero, CSA 162-04, 9-10 (4/15/05) (decided under former CSR 16-50 A.7).

Agency did not prove that employee refused to obey an order by failing to obtain needed supplies, since the evidence did not indicate the failure was intentional. In re Lucero, CSA 162-04, 10 (4/15/05) (decided under former CSR 16-50 A.7). 


16-28 G: Failure to Meet Established Standards of Performance or Failure to Correct an Unacceptable Performance Rating (Former 16-60 K)

IN GENERAL 

A violation of this rule is established by evidence of (1) an established standard; (2) clear communication of the standard; and (3) employee’s failure to meet the standard. In re Hull, CSA 78-18, 6 (4/12/19), citing In re Schofield, CSA 08-17, 8 (10/9/17).

A violation of this rule is established by evidence of (1) an established standard; (2) clear communication of the standard; and (3) employee’s failure to meet the standard. In re Schofield, CSA 08-17, 8 (10/9/17), citing In re Rodriguez, CSA 12-10, 9-10 (10/22/10); In re Mounjim, CSA 87-07 8 (7/10/08); affirmed In re Mounjim, CSB 87-07, 3-5 (1/8/09); In re Diaz, CSA 45-05, 7 (9/7/05).

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

Agency stated clear performance standards for deputy manager to: support the manager's decisions for a transition, support shared services, serve as senior level advisor and leader, perform information management, and support human resources role in personal matters. In re Redacted, CSB 67-11, 5 (4/4/13).

Job specifications are not enforceable as performance standards under this rule. In re Gutierrez, CSA 65-11, 6 (8/28/12).

An employee is in violation of this rule if she fails to meet an established and communicated standard of performance. In re Roberts, CSA 40-10 & 48-10, 11 (11/15/10), citing In re Mounjim, CSA 87-07, 8 (7/10/08).

Performance standards may be found in a performance evaluation, or in its policies and procedures. In re Rodriguez, CSA 12-10, 10 (10/22/10), citing  In re Routa, CSA 123-04, 3 (1/27/05).   

Aspirational goals do not constitute enforceable standards. In re Rodriguez, CSA 12-10, 11 (10/22/10).

Where the Agency failed to give notice in the pre-disciplinary letter to equipment operator that he failed to maintain collaborative working relationships, testimony establishing a violation of that standard may not be used to support discipline under that rule. In re Cotton, CSA 104-09, 9 (10/18/10). 

In order to prove an employee violated police department attendance policy, and therefore abused leave in violation of rule, 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 MounjimCSB 87-07, 8 (1/8/09).

Standards of performance that give an employee clear notice of the standard imposed and the nature of conduct that would violate the standard are enforceable by discipline. In re Duran, CSA 10-10, 11 (10/1/10), citing In re Lottie, CSA 132-08, 4 (3/9/09).     

An employee who receives an overall PEPR rating of “forced Meets Expectations” or better may violate this rule where the evidence showed he failed to meet his performance standards. In re Abbey, CSA 99-09, 9 (8/9/10).

Aspirational standard in performance evaluation does not provide enforceable measure under this rule. In re O’Meallie, CSA 92-09, 5 (6/18/10).

Agency must give employees notice of what standard it is using to measure performance deficiencies. In re Cady, CSA 03-10, 5 (4/22/10), citing In re Mounjim, CSB 87-07, 4 (1/8/09).

Broad policy statements found in some PEPR standards are generally unenforceable as disciplinary rules because they fail to provide notice of the measures used to determine compliance. In re Valdez, CSA 90-09, 6 (3/1/10).

This rule covers performance deficiencies that can be measured by qualitative or quantitative standards, such as those found in a performance evaluation. In re Lottie, CSA 132-08, 4 (3/9/09); citing In re Castaneda, CSA 79-03, 12 (1/12/04). 

Principles of fairness require that changes in management’s expectations be clearly communicated even to a long-term employee. In re Mounjim, CSB 87-07, 4 (1/8/09). 

A PIP should identify the performance deficiencies the employee is expected to address, the specific actions the employee must take in order to improve performance, and the standards by which the employee’s performance will be measured.  In re Mounjim, CSB 87-07, 3 (1/8/09).

The objectives of a PIP are not served without clear communication to the employee about what management expects. In re Mounjim, CSA 87-07 (7/10/08), affirmed In re Mounjim, CSB 87-07, 3 (1/8/09). 

An employee’s failure to meet established standards of performance is proven by evidence of 1) a prior-established standard; 2) clear communication of that standard to the employee; and 3) the employee’s failure to meet that standard. In re Mounjim, CSA 87-07, 7 (7/10/08), citing In re Diaz, CSA 45-05, 6 (9/7/05).

When employees are placed on a PIP, agencies are obligated to identify and clearly communicate the deficiency and the standard by which compliance will be measured at 2 stages: 1) when the PIP is issued, and 2) when the agency deems compliance deficient, so as to provide the employee a meaningful opportunity to respond to performance-based discipline. In re Mounjim, CSA 87-07, 8 (7/10/08).

When a PIP is issued, the agency must identify specific weaknesses the employee is expected to address, must identify specific actions the employee must take in order to meet performance standards stated in the PIP, and must provide a timeline during which the employee is expected to complete the designated actions. In short, the PIP must answer the questions “what,” “how,” and “when.” In re Mounjim, CSA 87-07, 8 (7/10/08).

A clear communication standard applies to the agency when it deems the employee’s PIP compliance was so deficient that discipline is appropriate. In re Mounjim, CSA 87-07, 8 (7/10/08).

Where a supervisor requires a subordinate to use a certain format to demonstrate compliance with performance objectives, the agency must provide such format to the employee. In re Mounjim, CSA 87-07, 12 (7/10/08).  

Where agency’s evidence is rebutted by appellant, and no other objective evidence proved a violation, the agency fails to establish a violation by a preponderance of the evidence. In re Mounjim, CSA 87-07, 14 (7/10/08).

This rule differs from neglect of duty or carelessness in that it focuses on objective measures of performance rather than on the employee’s performance or failure to perform. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 18-19 (5/30/08).

In a departure from the earlier forms of CSR 16-60 K., this version requires the agency to cite a specific standard the employee failed to meet. Thus, the mere recitation of wrongdoing will no longer suffice to prove a violation. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 19 (5/30/08).

Agency must prove standard for audit errors which gives employee notice what conduct is proscribed in order to establish violation of this rule. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 19 (5/30/08).

This rule requires an agency to cite the specific qualitative or quantitative standards appellant failed to meet, such as the standards one would find in a performance evaluation. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 38 (5/30/08), citing In re Castaneda, CSA 79-03, 12 (1/12/04).

Performance standards may be found in a performance evaluation, classification description, or in an agency or division’s policy and procedures. In re Dessureau, CSA 59-07, 7 (1/16/08), citing In re Routa, CSA 123-04, 3 (1/27/05).

This rule requires proof that appellant failed to meet a performance standard connected to his job. In re Dessureau, CSA 59-07, 7 (1/16/08), citing In re Owoeye, CSA 11-05, 5 (6/10/05).

Failure to meet established standards of performance is proven by evidence of 1) a prior-established standard; 2) clear communication of that standard to the appellant; and 3) appellant’s failure to meet that standard. In re Diaz, CSA 45-05, 6 (9/7/05), citing Pabst v. Industrial Claim Appeals Office, 833 P.2d 64, 64-65 (Colo.App. 1992); In re Routa, CSA 123-04, 3 (1/27/05).

This provision covers performance deficiencies that can be measured by either qualitative or quantitative standards, such as in a performance evaluation, in a classification description, or in an agency or division's policy and procedures. In re Routa, CSA 123-04, 3 (1/27/05), citing In re Cedillo, CSA 130-02 & 85-02 (12/18/02).

FOUND 

Agency established standards for Appellant in his 2018 Performance Evaluation & Expectations Plan, that he become a subject matter expert on its software, train his subordinates on the software, and work and provide leadership at the counter the majority of his time; and through a direct order from his supervisor, that he perform the Office inventory personally and enforce the Office policy against scheduled breaks. In re Hull, CSA 78-18, 4, 7-8 (4/12/19).  

Appellant’s claim that co-worker recommended that he disregard supervisor’s directive that he perform the Office inventory personally could not be a defense to his violation of this Rule since the co-worker lacked authority to supersede the supervisor’s directive. In re Hull, CSA 78-18, 8 (4/12/19).

Appellant failed to meet established standards of performance when he ignored the service counter, especially during a fire alarm, did not learn the Agency software or train his team on it, delegated the Office inventory to an unqualified subordinate, and did not enforce the Office policy on breaks, after his 2018 Performance Evaluations and Expectations Plan required him to master the software, provide leadership at the counter a majority of his time, and train his subordinates, and his supervisor ordered him to conduct the inventory personally and enforce the Office policy on breaks. In re Hull, CSA 78-18, 7-9 (4/12/19).

Appellant violated CSR 16-29G.1 where she joined a customer’s unpaid party at a City Center which she had authorized, meanwhile she also received City compensation for being present at the Center when she otherwise should not have been working. In re Rodriguez, CSA 60-17, 5 (2/5/18), rev’d on other groundsIn re Rodriguez, CSB 60-17A (9/20/18).

The Agency proved appellant violated CSR 16-29 G.1. (Failure to Meet Standards) [now 16-28G1], through his damage to his supervisor’s car in violation of the City’s STARS value of Safety, as it established the sufficiently specific standard of Safety, which it clearly communicated to him. In re Coates, CSA 9-18 & 18-18, 8 (12/19/18).

Agency properly disciplined appellant for violations of performance standards even though it could not discipline her for generally-related STARS values. In re Hinojosa, CSA 33-18, 9 (11/29/18), citing In re Rodriguez, CSA 12-10, 10 (10/22/10); In re Routa, CSA 123-04, 3 (1/27/05).

Violation established where many subordinates complained supervisor refused to help with customers, in violation of her PEP standard, even when they were extremely busy, and appellant-supervisor had no basis to rebut their credibility other than an unsubstantiated conclusion that they conspired against her. In re Burdett, CSA 28-17, 4 (2/13/18).

Violation of supervisor’s PEP standard to treat co-workers with respect established where supervisor provided testimony of several witnesses who found her accessible, but that testimony was consistent with widespread complaints of favoritism and appellant did not undermine their credibility regarding her abuse. In re Burdett, CSA 28-17, 4 (2/13/18).

Violation of PEP standard to train and support new employees established where supervisor failed to support new subordinate who continued to make mistakes through no fault of his own, and whose probation was, consequently, required to be extended. In re Burdett, CSA 28-17, 4 (2/13/18).

Violation of PEP standard to support staff established where Agency standard was to process license plate title receipts within 48 hours, and a subordinate provided over one-hundred title receipts to supervisor over several months, but supervisor processed only one and ignored the rest, resulting in possible license holds against citizens. In re Burdett, CSA 28-17, 4 (2/13/18).

Violation established where appellant-investigator failed to store weapons/evidence in conformance with PEP standard requiring “keeping it secured appropriately and maintaining a proper chain of custody. In re Schofield, CSA 08-17, 12 (10/9/17).

Violation established by appellant’s admission she raised her middle finger at a person. In re Garcia, CSA 35-17, 4 (10/4/17).

Violation of performance standard established where professionalism required with no valid complaints, and appellant-vehicle boot investigator: left scene of confrontation with citizen then returned to re-engage in the confrontation; shouted at and antagonized citizen by feigning inability to hear him; spoke in demeaning manner; failed to provide citizen with reasonable and repeated requests for identification and to call supervisor; approved, then withdrew permission for citizen to park in invalid parking space; lurched forward his city vehicle toward citizen when citizen photographed appellant’s license plate. In re Espinoza, CSA 73-16, 5 (4/14/17).

Violation of performance standard to act professionally at all times established where appellant claimed lack of training how to handle confrontations, but his supervisor credibly testified such training is continuous, ongoing, he engaged in one on one training with appellant, and appellant admitted his obligation “to provide a good rapport with the public. In re Espinoza, CSA 73-16, 6 (4/14/17).

Program manager failed to treat others respectfully and promote positive working relationships based on her observable favoritism, crude insults and inappropriate physical contact, all negatively affecting the cadet team. In re Fresquez, CSA 63-16, 6 (2/24/17).

Program manager failed to submit accurate time sheets based on her false recording of overtime hours. In re Fresquez, CSA 63-16, 7 (2/24/17).  

Violation established where appellant’s performance was substantially below clearly-stated expectations. In re Marez, CSA 58-16, 7 (1/26/17).

Violation established where appellant’s failure to account for the absence of a subordinate, and failure to follow directive to contact specified alternate supervisor, resulted in coverage deficiencies. In re Johnson, CSA 11-16, 4-5 (5/26/16).

Violation established where PIP specified requirement for supervisor to be accurate and prepared in his daily briefings, but he failed to determine that the cleanup of an area he specified to subordinates had been done the previous day. In re Johnson, CSA 11-16, 3 (5/26/16).

Violation established where PIP specified requirement for supervisor to adhere to inventory controls, including ink supplies at customer service booths under his supervision, but he subsequently failed to inventory ink needs of those booths. In re Johnson, CSA 11-16, 4 (5/26/16).

Appellant’s PEP, which required him to “complete 95% of preventive maintenance within assigned timeframe in accordance with the manufacturers and City standards” provided an enforceable performance standard under this rule. In re Macieyovski, CSA 28-14, 7 (10/13/14).

Violation established where appellant was under clear standard to change HVAC filters every six months and he met that standard in less than 50% of his work orders. In re Macieyovski, CSA 28-14, 7 (10/13/14).

Case management coordinator violated performance standard to treat all customers with dignity and respect when she said “I can’t handle it,” referring to client’s physical appearance, loudly enough for clients and nearby co-workers to hear. In re Perry-Wilborne, CSA 62-13, 7 (5/22/14).

Deputy manager violated her performance standard to support her manager's decisions by continuing to argue after decisions were made, criticizing an employee for taking an assignment from the manager, and attempting to force employees to choose sides between her and the manager. In re Redacted, CSB 67-11, 5-6 (4/4/13).

Considerable and undisputed evidence supports the hearing officer's finding that supervisor did not meet her performance standard to submit PEPRs in a timely and meaningful fashion, despite her knowledge that her PEPR required her to do so. In re Redacted, CSB 56-11, 3 (12/20/12).

Appellant failed to meet established standards of performance to 1) serve as an effective representative of the organization; 2) treat all people with dignity, respect, tact, and sensitivity; 3) deal with anger, frustration, and disappointment maturely; 4) listen to others and seeking acceptable solutions; 5) take responsibility for conduct; 6) demonstrate good interpersonal relations; and 7) demonstrate a positive approach to addressing problems where: the standards were clearly stated in his PEPR: his supervisor held biweekly meetings regarding these performance standards; appellant reacted with rage and defiance in an exchange with his supervisor; and appellant invaded a co-worker’s cubicle space while the co-worker was in the middle of an assigned task. In re Weiss, CSA 68-10, 9-10 (2/14/11).

Judicial assistant failed to meet an established performance standard of having no more than two justified complaints a year, where she acknowledged her errors caused the court to charge additional filing fees, delayed legal remedies, and causeda default judgment to issue in error. In re Roberts, CSA 40-10 & 48-10, 11 (11/15/10).   

Judicial assistant failed to meet an established performance standard to provide collaborative, constructive and proactive customer service, with no more than two justified complaints a year, where her seven work errors in two months led to four complaints by attorneys or accounting clerks. In re Roberts, CSA 40-10 & 48-10, 11 (11/15/10).     

Judicial assistant failed to meet an established performance standard for correspondence where she made fourteen correspondence mistakes within a six-month period. In re Roberts, CSA 40-10 & 48-10, 11-12 (11/15/10).    

Appellant violated her PEPR service standard to return client phone calls within forty eight hours and to be proactive in meeting their needs, when her voice mailbox was full on three dates, and clients had called repeatedly without response. In re Rodriguez, CSA 12-10, 10 (10/22/10).

Appellant violated agency service standard to achieve accurate and timely outcome to her cases where her cases were reassigned because she failed to work them correctly or at all. In re Rodriguez, CSA 12-10, 12 (10/22/10).

Appellant violated agency standard to retrieve voicemails daily where her voice mailbox was full on three separate dates. In re Rodriguez, CSA 12-10, 12 (10/22/10).

Appellant violated agency standard to act timely on her cases where she did not reply to numerous faxes and failed to mail ten to fifteen termination certificates. In re Rodriguez, CSA 12-10, 12 (10/22/10).

Appellant case manager violated acknowledged agency requirement to complete case reviews pursuant to state and federal standards where she failed to complete eight redeterminations of eligibility. In re Rodriguez, CSA 12-10, 12-13 (10/22/10).

Call-center agent failed to meet performance standards to identify and meet caller needs, work with the caller to help her solve the problem, and develop a constructive relationship, where she ignored the caller’s nine requests to be transferred to a supervisor, engaged in a non-productive exchange that increased the caller’s frustration, and sat in silence for seventy seconds of the five minute phone call. In re Jackson, CSA 39-10, 8-9 (10/7/10). 

DIA plumber failed to meet standards of performance where he was required to know his leave balance before taking leave, and to participate in mandatory snow removal operations, but he took excessive leave and failed to respond to a mandatory snow callout. In re Duran, CSA 10-10, 11 (10/1/10).    

Youth counselor violated this rule in failing to maintain line of sight in an incident where a youth in his charge was injured in a fight he did not observe, where keeping line of sight was an important safety duty, and he was reminded of its importance during previous discipline. In re Abbey, CSA 99-09, 9 (8/9/10), citing In re Castaneda, CSA 79-03, 12 (1/12/04). 

Employee who received an overall PEPR rating of “forced Meets Expectations” or better nonetheless violated this rule where he failed to meet his performance standards. In re Abbey, CSA 99-09, 9 (8/9/10).

Appellant’s failures to abide by agency policy to call in as required and report his time accurately were violations of established performance standards. In re Abbey, CSA 99-09, 9 (8/9/10).

Appellant breached performance standards on work effort and cooperation by his frequent and substantial tardiness and absences from the work site which caused performance problems for the rest of his crew. In re Norris, CSA 68-09, 7 (7/12/10). 

Appellant violated her PEP standard which required effective oral communication using ideas and words appropriate to the listener and the situation, when she spoke to a customer in a loud, inappropriate and unprofessional manner, although the content of her words was appropriate and helpful, and there was no evidence of the customer's reaction. In re Lykken, CSA 26-10, 5 (7/7/10).

Appellant violated his PEPR performance standards which required that he take responsibility for workplace safety, consider the safety of others, and implement behavior management techniques, where he failed to intervene to prevent a resident assault. In re O’Meallie, CSA 92-09, 5 (6/18/10).

Project manager failed to meet performance standards on effective communication where her supervisor was frequently required to intervene to resolve matters because project manager was defensive and failed to resolve issues, resulting in project delays and a request by the contractor that she be removed as project manager. In re Harrison, CSA 55-07, 89-07 & 90-07, 52 (6/17/10). 

Proof that youth crisis center worker failed to conduct and document regular bed checks of the residents in her care established violation of standard of performance to observe all reporting standards. In re Carrillo, CSA 95-09, 4 (3/16/10).

Appellant's unexcused absence violated agency standard of accountability for working a full day. In re Lottie, CSA 132-08, 4 (3/9/09).

Appellant violated her PEPR duty to maintain a professional demeanor, on which she had received a “needs improvement” rating, by initiating and escalating a confrontation with her supervisors, thereby creating a significant risk of physical harm. In re Mounjim, CSB 87-07, 7 (1/8/09). 

Appellants violated department lunch policy and this rule in the absence of any agency evidence where they admitted they exceeded their lunch break by three minutes. In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-08, 17 (12/15/08). 

Agency proved appellant violated agency lunch policy where appellant admitted he exceeded one lunch period by nine minutes. In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-08, 20 (12/15/08). 

Single infraction of essential confidentiality policy violated service performance standard, given the agency’s mission and its need to give its employees quick access to confidential information to do their jobs. In re Catalina, CSA 35-08, 9 (8/22/08).

Appellant undermined trust among unit employees and violated teamwork performance standards in violation of this rule where she involved three employees in disclosure of confidential information, failed to report the incident to privacy officer as required by agency rule, and gave an incomplete report of the extent of the breach to her supervisor. In re Catalina, CSA 35-08, 9 (8/22/08).

Appellant violated agency standards of accountability and ethics to ensure confidentiality and this rule, where she accessed name of the informant in a child sexual abuse case in violation of state law and agency policy. In re Catalina, CSA 35-08, 10 (8/22/08).

Appellant violated agency standard of accountability and this rule where she failed to inform her supervisor immediately of her breach of confidentiality. In re Catalina, CSA 35-08, 10 (8/22/08).

Agency proved that appellant neglected an important safety duty by failing to share information about a claimant’s permanent work restrictions with the analyst for two weeks, and that this failure could have affected the claimant’s safety, the employer’s ability to obtain needed work from the claimant, and the city’s liability for exacerbation of claimant’s injuries. In re Sienkiewicz, CSA 10-08, 15 (7/14/08).

Appellant failed to convey information within forty hours as required in his standards of performance when he did not communicate a claimant’s permanent work restrictions to analyst for two weeks. In re Sienkiewicz, CSA 10-08, 16 (7/14/08).

Agency proved supervisor failed to meet established standard of performance when she failed to ensure her staff met an acknowledged 30-day deadline for submitting document to auditor’s office. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 27-8 (5/30/08).  

Appellant violated this rule when he failed to tell his supervisor that he authorized, beyond what his supervisor had delegated to him, additional work from a contractor and a unit pricing agreement, where Agency’s job specifications and communication plan required him to inform his supervisor of the status of ongoing projects. In re Hill, CSA 69-07, 6 (1/23/08). 

Deputy sheriff seen sleeping on duty by his supervisor violated standards of performance contained in safety regulations and post orders prohibiting sleeping on job, negligent performance of duties, and departing from truth during investigation. In re Simpleman, CSA 05-06, 7 (5/16/06).

Appellant violated directive in performance review to avoid addressing female co-workers with terms of endearment that would offend or cause discomfort. In re Hernandez, CSA 03-06, 7 (5/3/06).

Appellant failed to meet the standards of performance set in her PEP by requiring her supervisor to perform her duties on a back-up basis well over the expected rate of 20% for performing those duties. In re Diaz, CSA 92-05, 7 (1/31/06).

Appellant failed to meet performance standards for treating employees with courtesy and respect when she refused to talk to her supervisor when requested, commenting at the hearing that she communicated with her just fine. In re Diaz, CSA 92-05, 8 (1/31/06).

Where evidence of performance standards is lacking, the violation is not established. In re Williams, CSA 65-05, 5 (11/17/05).

Appellant’s admission of violating the established standard of punctuality proved a violation of the rule by a preponderance of the evidence. In re Diaz, CSA 45-05, 6 (9/7/05).

Zookeeper violated established and communicated emergency protocol and standards regarding securing predators when he failed to keep polar bears separated and failed to use radio protocol. In re Owoeye, CSA 11-05, 5 (6/10/05).

Appellant violated the established PEP standard of performance of personal relations by her exhibition of a negative attitude towards co-workers and supervisors. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 15 (1/27/05).

NOT FOUND 

The Agency cannot prove appellant violated CSR 16-29 G.1. (Failure to Meet Standards) [now 16-28G1], based on alleged violations of the City’s STARS values of Teamwork and Respect for Self and Others, as these aspirational goals do not provide sufficient notice to constitute enforceable standards. In re Coates, CSA 9-18 & 18-18, 5 (12/19/18), citing In re Oyama, CSA 07-13, 4 (6/4/13); In re Espinoza, CSA 73-16, 7 (4/14/17).

Agency did not prove that employee’s absence violated any specific performance standard where it presented no evidence she fell below any standards. In re ColquittCSA 34-15, 4 (10/30/15), citing In re Mounjim, CSA 87-07, 13 (7/10/08).

Agency failed to prove Appellant violated CSR 16-29G (Standards of Performance) [now 16-28G] because she was not a team player where its evidence on this allegation was unclear. In re Gerovic, CSA 77-17, 7 (6/1/18).

No violation of this rule established where agency claimed appellant-investigator failed to locate a witness that another investigator located in fifteen minutes, but appellant countered, without rebuttal, that she made substantial inquiries and the other investigator found witness only because police serendipitously contacted witness just before his search. In re Schofield, CSA 08-17, 7 (10/9/17).

No violation established where deputy DA complained appellant-investigator failed to pay attention during a witness interview in violation of her PEP standard to assist in trial preparation, but appellant denied the allegation and her immediate supervisor, who was also present did not recall appellant being un-invested and stated his observation of her strength in witness preparation. In re Schofield, CSA 08-17, 9 (10/9/17).

No violation established where deputy DA complained appellant-investigator dozed off during witness meetings, but appellant denied the allegation and her immediate supervisor, who was also present, denied having seen appellant doze off. In re Schofield, CSA 08-17, 9-10 (10/9/17).

No violation established where a deputy DA complained appellant-investigator failed to pay attention during a witness meeting, but the deputy was not a supervising attorney of appellant. In re Schofield, CSA 08-17, 10 (10/9/17).

No violation established where deputy DAs complained appellant-investigator failed to obtain coverage when she called in sick on the last weekday before trial, but it was unclear whether appellant was required to obtain coverage and how it related to her relevant PEP requirement. In re Schofield, CSA 08-17, 10 (10/9/17).

No violation established where deputy DAs complained appellant-investigator failed to accompany one of them to a witness meeting the Saturday before trial, but appellant replied it was her scheduled day off, she was asked to go on Thursday evening, and it was unclear to what extent appellant was required to obtain a replacement. In re Schofield, CSA 08-17, 10 (10/9/17).

No violation established where deputy DA complained appellant-investigator failed to provide a document to defense counsel timely in violation of her PEP standard to prepare investigative reports, but the evidence was too vague to connect the evidence to the allegation. In re Schofield, CSA 08-17, 11 (10/9/17).

No violation established by appellant-investigator asking to leave a witness interview early in front of the witness where the allegation was not more convincing that appellant’s denial. In re Schofield, CSA 08-17, 14 (10/9/17).

No violation established by deputy DA’s complaint that appellant-investigator was impatient during witness and victim meetings, without providing specifics. In re Schofield, CSA 08-17, 14 (10/9/17).

No violation of ethical standards established where agency failed to identify what standard was violated, and only evidence was supervisor’s testimony that appellant was unethical in providing inconsistent statements. In re Espinoza, CSA 73-16, 7 (4/14/17).

No violation established where agency claimed appellant’s actions violated aspirational STARS standards. In re Espinoza, CSA 73-16, 7 (4/14/17).

STARS standards fail to provide notice of what conduct is prohibited. In re Espinoza, CSA 73-16, 7 (4/14/17).

Supervisor’s submission of an assignment three days late does not prove violation of general supervisory duties as stated in PEP. In re Lee, CSA 70-16, 5(3/3/17).

Where agency did not change legal secretary’s PEP performance standard for issuing subpoenas from five to eight weeks before trial, secretary did not violate her five-week standard under this rule, despite deputy DA’s stated preference for the earlier issuance deadline. In re McKisson, CSA 69-16, 4 (1/31/17). 

The general duties listed in the dispatcher job specification did not provide notice to dispatched of the specific performance standards at issue. In re Rhodes, CSA 23-14, 5 (7/25/14), citing In re Gutierrez, CSA 65-11, 6 (8/28/12).

The agency failed to prove employee violated a performance standard where the job description described the duty, but not the standard by which it was to be performed. In re Black, CSA 03-14, 4-5 (6/9/14).

A supervisor's order to complete work is not an established performance standard enforceable under this rule. In re Black, CSA 03-14, 4-5 (6/9/14).

STARS values of teamwork and respect for self and others are not enforceable as specific performance standards under this rule. In re Oyama, CSA 07-13, 4 (6/4/13). 

Evidence that appellant received a below-expectations rating in a category unrelated to the misconduct does not prove a violation of performance standards under this rule where appellant was not given notice of that reason in the disciplinary letter, and all other employees were given the same rating. In re Oyama, CSA 07-13, 4 (6/4/13).

General duties from performance plan do not establish a standard of performance under this rule. In re Serna, CSA 39-12, 8 (5/23/13).

Job specifications citing broad performance expectations do not serve as specific performance standards under this rule. In re Gutierrez, CSB 65-11, 2 (4/4/13).

General statements of aspirational performance goals are not enforceable standards of performance. In re Mack, CSA 43-12, 8 (3/18/13).

Administrator's recommendation of her husband's company to a service provider did not relate to her duty to administer city contracts, since the agency's relationship with that company was not contractual in nature. In re Mack, CSA 43-12, 9 (3/18/13).  

Appellant’s shoplifting charge did not violate this rule where the PEP standard cited by the agency required her to prepare and interpret scientific data in court, a function she always performed competently. In re Redacted, CSA 57-11, 6 (5/31/12).

The mere recitation of wrongdoing will not suffice to prove a violation under this rule. In re Leslie, CSA 10-11, 11 (12/5/11).  

Broad policy statements cannot support alleged violations for established standards of performance, since they fail to provide notice of the measures used to enforce compliance. In re Leslie, CSA 10-11, 11 (12/5/11); citing In re ValdezCSA 90-09, 6 (3/1/10).     

Agency standards to work cooperatively with others, and to maintain the integrity of the organization are too vague to enforce. In re Rodriguez, CSA 12-10, 11 (10/22/10).

Agency did not establish that DIA equipment operator failed to meet standard of performance of maintaining collaborative working relationships, where numerous co-workers testified that Appellant’s criticism of their work and report of their mistakes to the supervisor precluded collaborative working relationships, however, the Agency failed to provide him notice that this behavior was the subject of the discipline. In re Cotton, CSA 104-09, 9 (10/18/10).  

Agency did not establish that DIA equipment operator failed to meet standard of performance of maintaining collaborative working relationships where the Agency presented only speculation, that his relationship with the airport patron who he drove around to locate his car, and from whom he requested $20 for his services, was adversely affected. In re Cotton, CSA 104-09, 10 (10/18/10).   

Conclusory statements that appellant actions adversely affected an airport patron are insufficient to establish a violation under this rule. In re Cotton, CSA 104-09, 10 (10/18/10).  

Although Appellant failed to meet Agency’s PEPR standards for attendance, she did not violate this Rule because agency attendance standards contradicted Career Service Rules where she was absent due to legitimate illnesses and did not exceed the amount of sick time she had banked. In re Rock, CSA 09-10, 5-6 (10/5/10).

Proof that youth crisis center worker failed to supervise the youth in her care did not also establish that worker violated the standard of performance requiring her to provide basic daily care to all resident youth. In re Carrillo, CSA 95-09, 5 (3/16/10).

Employee did not violate a PEPR's broad aspirational accountability and ethics standards of performance as those standards failed to provide notice of the measures used to determine compliance. In re Valdez, CSA 90-09, 6 (3/1/10). 

Agency failed to prove violation of rule where supervisor testified that appellant’s notebook was unacceptable to satisfy PIP requirements but appellant testified to the contrary and agency did not produce the notebook. In re Mounjim, CSB 87-07, 5 (1/8/09). 

Employees who had supervisor's permission to travel and work together as team did not violate standard of performance for efficient performance of job duties by joint travel to supply shops. In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-08, 13 (12/15/08).

Minor clerical errors in two days' activity logs did not prove violation of standards of performance where supervisor reviewed the logs on a daily basis, and performance review reported that the logs were accurate and complete. In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-08, 15, 19 (12/15/08).

Where appellant testified he believed he was on city business when he parked city vehicle on sidewalk in front of city building to check on his pay, and it was undisputed that employees are permitted to park city vehicles on sidewalk there while on city business, agency failed to prove appellant violated an established standard of performance. In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-08, 20 (12/15/08). 

Performance standard of maintaining respect for others and helping to maintain a positive work relationship does not give notice to reasonable employee that confidentiality breaches are covered by that standard, given their specific coverage in other performance standards. In re Catalina, CSA 35-08, 10 (8/22/08).

Agency failed to prove appellant’s involvement of three other employees in her improper disclosure of confidential information violated performance standard of maintaining respect of others and helping to maintain a positive work environment, since the standard does not give notice to a reasonable employee that confidential breaches are covered by that standard, given their specific coverage in other standards of performance. In re Catalina, CSA 35-08, 10 (8/22/08), citing In re Mounjim, CSA 87-07, 14 (7/10/08).

Agency did not establish that hearing officer erroneously interpreted rule by failing to address performance standard of "no preventable accidents" where factual finding that accident was not preventable was not challenged. In re Sandrowski, CSB 58-07, 2-3 (8/21/08).

A single instance of failing to communicate needed information to a co-worker did not violate standard of performance for teamwork where that standard was measured by having 80% of co-workers rate him positively in the area of teamwork. In re Sienkiewicz, CSA 10-08, 16 (7/14/08).

Appellant did not violate his standard of performance to respond to inquiries within forty eight hours by failing to contact a supervisor to inform her of her employee’s decision not to file a claim where the supervisor did not ask appellant to call him back with that information. In re Sienkiewicz, CSA 10-08, 15 (7/14/08).

Allegation that appellant violated a standard of performance to represent agency in a positive manner based on his failure to comply with records retention policy was not established where agency failed to prove appellant violated the policy. In re Sienkiewicz, CSA 10-08, 13 (7/14/08).

Appellant did not violate standard of performance to share information by his failure to re-file HR documents in office files where appellant had not been instructed to re-file documents within a certain time period. In re Sienkiewicz, CSA 10-08, 14 (7/14/08).

Appellant did not violate standard on teamwork by volunteering incorrect information to a co-worker, but correcting it within the hour. In re Sienkiewicz, CSA 10-08, 16 (7/14/08).

Where supervisor rated appellant’s performance successful less than one year before finding she failed to grasp the basic functions of her position, no rule violation was found absent proof of intentional refusal to perform essential functions or a significant change of duties. In re Mounjim, CSA 87-07, 15 (7/10/08).

Where supervisor testified at hearing as to reasons appellant violated this rule, but it was unclear he communicated this information to appellant at the pre-disciplinary stage, or that a reasonably astute employee, similarly situated to the appellant, should have been on notice of it, agency failed to meet its requirement to communicate the standard at the pre-disciplinary stage. In re Mounjim, CSA 87-07, 14 (7/10/08).

Agency failed to provide clear notice what needed to be included in appellant’s PIP project plan and by what standard compliance would be measured. In re Mounjim, CSA 87-07, 9-11 (7/10/08).

Agency failed to establish violation of rule where PIP did not state the standard by which compliance would be measured, appellant and a co-worker both testified they did not understand the duty stated in the PIP, and the agency did not provide the project plan template by which it allegedly measured compliance with the duty. In re Mounjim, CSA 87-07, 9 (7/10/08).

Agency failed to prove appellant violated rule where the pre-disciplinary notice and evidence did not clearly define the performance standard so that a reasonably astute recreation coordinator should have understood how to meet that standard. In re Mounjim, CSA 87-07, 11 (7/10/08).

Agency failed to communicate how appellant was to comply with PIP standard to conduct meetings to recruit new clients where appellant produced a 50-page binder about her promotional meetings, and her supervisor stated only that the binder was unsatisfactory. In re Mounjim, CSA 87-07, 12 (7/10/08).

Agency failed to rebut appellant’s evidence that she met her PIP requirement by documenting tasks arising from meetings within 30 days. In re Mounjim, CSA 87-07, 13-14 (7/10/08).

Allegation that appellant failed to document her meetings in the correct format did not establish violation of rule where agency did not prove appellant was given notice of the correct format. In re Mounjim, CSA 87-07, 12 (7/10/08).

Allegation that appellant failed to conduct a sufficient number of meetings with community members did not establish violation of PIP standards where supervisor gave cursory review to appellant’s fifty-page binder showing meetings with fifty or more teachers, parents and staff, and agency did not prove there was a quantitative standard for what number of community meetings was sufficient. In re Mounjim, CSA 87-07, 12 (7/10/08).

A broad condemnation of PIP compliance is inadequate notice under §16-60 K, because it fails to notify the employee what standards apply, what performance deficiencies the agency identified under those standards, and fails to identify how those deficiencies should be corrected. In re Mounjim, CSA 87-07, 9, 15 (7/10/08).

Agency’s PIP requirement “Monthly/Seasonal goals” does not clearly give appellant notice that she was expected to create goals independent of those assigned in PIP and that her failure to meet such goals would be grounds for discipline. In re Mounjim, CSA 87-07, 14 (7/10/08).

Agency failed to prove appellant failed to meet PIP standard where several agency witnesses struggled to present a coherent definition of it, no written example clarified the disparate explanations, and the agency did not present evidence how the requirement was explained, if at all, to the appellant at the time the PIP was presented to her. In re Mounjim, CSA 87-07, 11 (7/10/08).

Where agency failed to communicate its thirty-day deadline for submitting audit documents to appellant, it did not prove that appellant’s late submittal of those documents failed to meet an established performance standard. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 18-19, 33 (5/30/08).

Agency’s mere recitation of audit errors without proof of performance standard for audits fails to establish violation of rule. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 19, 33-34 (5/30/08).

Agency failed to prove appellant violated her PEP standard for customer service based on her failure to meet auditor’s goal to receive separation documents within thirty days. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 37 (5/30/08). 

Agency's claim that appellant failed to meet thirty-day deadline which "has been a long-standing recognition by you" did not rebut appellant's denial that she was apprised of the deadline before being served with letter in contemplation of discipline. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 37 (5/30/08).

Statements made during a safety class that amount to mere cautions do not rise to the level of a performance standard or an agency rule or procedure. In re Sandrowski, CSA 58-07, 13 (2/6/08).

Agency failed to prove driver’s restroom stop violated agency’s performance standards regarding agency integrity, leave reporting, or work hours. In re Dessureau, CSA 59-07, 8 (1/16/08).

Agency failed to present evidence of existence of performance standards violated by officer’s order to secure aggressive prisoner. In re Brown, CSA 102-05, 9 (2/15/06).

Agency failed to establish a violation of this rule by a preponderance of the evidence when it did not prove how appellant failed to meet the cited PEP requirements. In re Redacted, CSA 190-03, 8 (2/13/06).

Agency failed to show how appellant’s affair with supervisor affected her ability to lead her team, and therefore agency did not establish violation of standard of performance. In re Redacted, CSA 190-03, 8 (2/13/06).

Agency did not prove appellant failed to meet performance standard to act as positive influence when there was no evidence that appellant’s act in furnishing information to applicants negatively affected morale among employees. In re Martinez, CSA 69-05, 8 (1/4/06).

Where agency charged appellant with violation of standards that could not reasonably be met, agency failed to prove appellant violated rule. In re Martinez, CSA 19-05, 8 (6/27/05).

Where only evidence of existence of performance standard was supervisor's testimony that he expected appellant to act professionally when dealing with people who deal with him, agency failed to prove objective evidence of an established performance standard. In re Routa, CSA 123-04, 3 (1/27/05).

Where agency presented no objective evidence of an established performance standard, even by custom or use, agency did not prove appellant violated this rule. In re Routa, CSA 123-04, 3 (1/27/05).  


16-28 H: Intimidation or Retaliation Against a Witness, Party or Representative or Violation of City's Whistleblower Protection Ordinance (Former 16-60 N)

IN GENERAL

This rule contemplates that the intimidation or retaliation must take place during the course of an investigation. In re Carter, CSA 87-09, 8 (2/17/10). 

This rule does not contemplate attempted intimidation that is unsuccessful. In re Carter, CSA 87-09, 8 (2/17/10). 


NOT FOUND

The Agency did not prove appellant violated CSR 16-29 H (Intimidation) [now 16-28H], which must take place during an investigation, where he damaged his supervisor’s car after one investigation ended and before the second one began. In re Coates, CSA 9-18 & 18-18, 8 (12/19/18), citing In re Carter, CSA 87-09, 8 (2/17/10). 


16-28 I: Failure to Maintain Satisfactory Working Relationships with Co-Workers, Other City Employees or the Public (Former 16-60 O)

IN GENERAL 

Conduct violates CSR 16-28 I. if it would cause a reasonable person standing in the employee’s place to believe it would be harmful to others or have a significant impact on their working relationship. In re Gaule, CSA 06-19, 2 (5/29/19), citing In re Schofield, CSA 08-17, 13 (10/9/17).

Under CSR 16-29 I. [now 16-28I] “other individuals the employee interacts with as part of his or her job” includes inmates, with whom deputies have a working relationship and to whom they have a duty to maintain their care and custody. In re Jordan, CSB 21-18A, 2-3 (5/16/19).  

Pursuant to CRS 16-29 I [now 16-28I], inmates are “other individuals” with whom deputy had a working relationship, with whom he is to maintain a satisfactory working relationship. In re Jordan, CSA 21-18, 4 (7/19/18).

Conduct violates this rule if it would cause another person standing in the employee’s place to believe it would be harmful to others or have a significant impact on their working relationship. In re Schofield, CSA 08-17, 13 (10/9/17), citing In re Perry-Wilborne, CSA 62-13 8 (5/22/14); In re Williams, CSA 53-08, 5 (Order 8/18/08); In re Burghardt, CSB 81-07, 2 (8/28/08); In re Williams, CSB 53-08 (5/14/09).

This rule is not intended to legislate every potentially hurtful comment between co-workers. In re Schofield, CSA 08-17, 14 (10/9/17), citing In re Keegan, CSA 69-03, 11(3/31/04); In re Day, CSA 12-03, 8 (10/9/03).

The standard for analyzing a violation under this rule is objective and is not defined by the affected individual’s feelings and perception of mistreatment. In re Schofield, CSA 08-17, 13 (10/9/17).

Violation of this rule requires evidence of poor treatment of a particular person or actions in a particular situation, without which it is mere conjecture to assess the behavior and its effect on a reasonable co-worker.  In re Schofield, CSA 08-17, 15 (10/9/17).

The standard for analyzing a violation under this rule is objective and is not defined by the affected individual’s subjective feelings and perception of mistreatment. In re Gustin, CSA 02-17, 3-4 (8/8/17), citing In re Leslie, CSA 10-11, 15 (12/5/11).     

In cases of alleged offensive statements, the analysis must begin with the plain and ordinary meaning of the statement and then whether a reasonable person would find the plan meaning offensive. In re Gustin, CSA 02-17, 4 (8/8/17).

Permanent damage to the working relationship is not prerequisite to finding a violation of this rule. In re Gustin, CSA 02-17, 4 (8/8/17), citing In re Novitch, CSB 49-15, n.11 (9/15/16).

An employee violates this rule by conduct that is harmful to another person or has a significant impact on his working relationship with that person if a reasonable person would have known his conduct would have that effect. In re Trujillo, CSA 53-13, 5 (4/14/14), citing In re D’Ambrosio, CSA 98-09, 9 (5/7/10); In re Burghardt, CSB 81-07, 2 (8/28/08).

The rule is violated by "conduct that an employee knows, or reasonably should know, will be harmful to co-workers, other City employees, or the public, or will have a significant impact on the employee's working relationship with them." In re Black, CSA 03-14, 5 (6/9/14), citing In re Burghardt, CSB 81-07, 2 (8/28/08). 

This rule focuses on the effect of an employee’s bad conduct.   Consequently, the inquiry focuses as much on the reasonable reaction by others to the appellant’s conduct as on the conduct itself. In re Gutierrez, CSA 65-11, 12-13 (8/28/12), citing In re Strasser, CSB 44-07, 2 (2/29/08). 

The standard for analyzing a violation for this rule is objective and is not defined by the affected individual’s subjective feelings and perception of mistreatment.  In re Leslie, CSA 10-11, 15 (12/5/11).     

In order to establish a violation of this rule, the Agency must show appellant exhibited conduct she knew, or reasonably should have known, would be harmful to co-workers, other City employees, or the public, or which would have a significant impact on her working relationship with any of them. In re Rodriguez, CSA 12-10, 18 (10/22/10), citing  In re Burghardt, CSB 81-07, 2 (8/28/08).  

The affected co-worker's reaction to the conduct is one factor to consider in assessing whether harm should have been anticipated. In re Harrison, CSA 55-07, 89-07 & 90-07, 53 (6/17/10), citing In re Burghardt, CSB 81-07, 2 (8/28/08).

Deterioration of a working relationship must be proven independently of another rule violation. In re Norman-Curry, CSA 28-07 & 50-08, 10 (2/27/09).

It is irrelevant, under this rule, whether an appellant’s argument with a co-worker is correct. In re Owens, CSA 69-08, 7 (2/6/09). 

An employee's conduct is measured against a reasonably objective standard: would a reasonable person standing in the place of the employee have known that his conduct would be harmful to another person or have a significant impact on his working relationship with that person? In re Burghardt, CSB 81-07, 2 (8/28/08).

CSR 16-60 O is violated by conduct that an employee knows or reasonably should know, will be harmful to coworkers, other City employees, or the public, or will have a significant impact on the employee's working relationship with them.  In re Burghardt, CSB 81-07 (8/28/08). 

This rule should not be used as a bludgeon against all offensive interactions in the workplace In re Strasser, CSB 44-07, 2 (2/29/08).

Either a single outrageous incident or an ongoing pattern of conduct can constitute a violation of this rule. In re Delmonico, CSA 53-06, 5 (10/26/06), citing In re Collins, CSA 127-03 (2/27/03); In re Green, CSA 130-04, 3 (1/7/05); In re Tafoya, CSA 72-04, 10 (10/29/04).

This rule should be reserved for an employee’s unjustified, purposeful actions or omissions toward a co-worker that inhibit the smooth operation of the unit. In re Delmonico, CSA 53-06, 5 (10/26/06), citing In re Anderson, CSA 05-02, 10 (4/30/02).

When a lack of communication between supervisor and employee causes work-related problems, the failure to communicate may result in a violation of this rule. In re Diaz, CSA 45-05, 6-7 (9/7/05).

Agency has a legitimate interest in requiring employees to maintain satisfactory work relationships in order to accomplish its work and mission. The rule prohibits actions that destroy the trust and good will needed between employees. In re Lucero, CSA 162-04, 10 (4/15/05).

A violation of rule against fighting does not necessitate finding of failure to maintain satisfactory work relationships. In re Freeman, CSA 40-04 & 75-04, 6 (3/3/05).

FOUND 

Appellant violated CSR 16-28 I. by initiating and engaging in a fight with a co-worker, which is, per se, a failure to maintain a satisfactory working relationship. In re Gaule, CSA 06-19, 2-3 (5/29/19). 

Appellant’s claim that he could subsequently work with the co-worker whom he fought is immaterial to the analysis of a CSR 16-28 I. violation since it requires an objective standard in analyzing the perpetrator’s conduct. In re Gaule, CSA 06-19, 2 (5/29/19).

Appellant’s prior attempts to excuse his infliction of violence on a co-worker, including with medical reasons, in violation of this Rule, became immaterial once he admitted his violation. In re Gaule, CSA 06-19, 3 (5/29/19).

The Agency proved appellant violated CSR 16-29 I (Satisfactory Relationships) [now CSR 16-28I] where Appellant rejected his Written Reprimand, showed no intent to address his misconduct, criticized his supervisor, threatened criticism of the Agency and impaired the operations of his team. In re Coates, CSA 9-18 & 18-18, 5 (12/19/18).

Appellant’s comment to an inmate - If you think that is fucked up, you ain’t seen anything yet - was a taunt, defined as “to reproach or challenge in a mocking or insulting manner : jeer at.” In re Jordan, CSA 21-18, 4 (7/19/18).

Appellant’s threatening comment to and flinging an inmate’s food tray onto the floor, constituted harassment, defined as “to create an unpleasant or hostile situation for especially by uninvited and unwelcome verbal or physical conduct.” In re Jordan, CSA 21-18, 4-5 (7/19/18).

Appellant threatening comment to and flinging an inmate’s food tray onto the floor, intimidated and embarrassed the inmate maliciously, defined as “having or showing a desire to cause harm to someone : given to, marked by, or arising from malice,” supplemented with the definition of malice, “desire to cause pain, injury, or distress to another.” In re Jordan, CSA 21-18, 5 (7/19/18).

Violation established where supervisor restricted bathroom breaks, told a subordinate “shut your mouth,” physically blocked a subordinate as if to fight, and telling subordinates “look it up yourself” instead of assisting or guiding them. In re Burdett, CSA 28-17, 5 (2/13/18).

Violation established by appellant’s admission she raised her middle finger at a person. In re Garcia, CSA 35-17, 4 (10/4/17).

“Here comes another one” is objectively offensive in violation of this rule. In re Gustin, CSA 02-17, 4 (8/8/17).

Appellant’s insults, threats, yelling and laughing at her supervisor on several occasions clearly proved a violation of this rule. In re Martinez, CSA 10-17, 7 (7/19/17). 

Violation established where vehicle boot investigator escalated the hostility of his encounter with a citizen by demeaning and outrageous behavior. In re Espinoza, CSA 73-16, 7 (4/14/17).

Head of youth safety cadet program damaged working relationships in violation of this rule by engaging in crude insults, favoritism, gossip, and inappropriate physical contact that negatively affected team morale. In re Fresquez, CSA 63-16, 7 (2/24/17).

Supervisor’s failure to plan work, misrepresentation of production numbers, and threat to retaliate against a crew member caused a negative effect on his work relationships, in violation of this rule. In re Lucero, 58-15, 7 (4/12/16).

Violation was established where co-workers reasonably concluded they could no longer work with case worker who was unable to control her shock at a client’s disable appearance and announced out loud “I can’t deal with this.” In re Perry-Wilborne, CSA 62-13, 8 (5/22/14).

Appellant’s persistent stonewalling of her supervisor’s questions and directives constituted a failure to maintain a satisfactory working relationship with her supervisor in violation of this rule. In re Robinson, CSA 03-13, 10 (6/18/13). 

Appellant’s refusal to obey supervisor’s directive to accompany her to HR for processing into investigatory leave was a violation of this rule. In re Robinson, CSA 03-13, 10 (6/18/13). 

Appellant’s refusal to answer legitimate questions by police who were called due to her odd behavior, was violation of this rule. In re Robinson, CSA 03-13, 10 (6/18/13).

Agency proved appellant violated this rule when he transferred an assignment to a co-worker without permission, insulted his supervisor using profanity, and told his supervisor to leave him alone, resulting in serious damage to their working relationship. In re Oyama, CSA 07-13, 4-6 (6/4/13).

Deputy manager violated this rule by utter lack of cooperation and civility toward the manager and other employees, resulting in low morale, fear and uncertainly, which sabotaged the effective working of the department and prevented employees from exercising their best judgment. In re Redacted, CSB 67-11, 6 (4/4/13).

Board will not overturn finding of violation of this rule based on a litany of noxious conduct creating a toxic work environment where the cited misconduct was undisputed by the employee and supported by the record. In re Redacted, CSB 56-11, 4 (12/20/12). 

Violation established where subordinate became distraught over supervisor’s wrongful insistence that he use deception to obtain replacement equipment in violation of agency’s contract, potentially placing his job in jeopardy. In re Roybal, CSA 60-11, 7 (3/13/12). 

Violation established where, through appellant’s actions, agency obtained replacement equipment in violation of its contract with provider, causing provider’s relationship with agency to become frosty. In re Roybal, CSA 60-11, 7 (3/13/12). 

Violation established even if supervisor believed she was acting in the best interests of the agency in obtaining free equipment replacements in violation of agency’s contract with provider, where she used a subordinate to procure the replacements, in order to shield herself from disciplinary repercussions, but potentially placed subordinate’s job at risk. In re Roybal, CSA 60-11, 7 (3/13/12).

Dispatcher failed to maintain satisfactory working relationships, where the agency requires close communication, but appellant’s snide remarks induced two people to request shift changes to avoid her, others commiserated, and supervisors consistently noted a pattern of unsatisfactory co-worker relationships. In re Leslie, CSA 10-11, 12-13 (12/5/11).

While co-worker’s complaint about appellant’s remark could be attributed to an overly sensitive employee, the confirmation of the co-worker’s complaint by another employee, and the consistency of the remark to appellant’s previous interactions proved appellant’s remark was in violation of this rule. In re Leslie, CSA 10-11, 13-14 (12/5/11).

Appellant failed to maintain a satisfactory working relationship with his supervisor, when his supervisor instructed him to apologize to a co-worker, and Appellant reacted with rage, making intimidating and hostile statements, and caused Appellant’s supervisor to pursue disciplinary action against him, despite his previous efforts to improve Appellant’s interpersonal skills and professionalism during regular coaching sessions. In re Weiss, CSA 68-10, 11 (2/14/11).

Animal control officer failed to maintain a satisfactory working relationship with a dog owner where the officer pushed a security door into him for several seconds in an unauthorized attempt to prevent him from leaving, and the dog owner demonstrated his anger in posting the security video on the internet and publicizing the incident on the local television news. In re Gonzales, CSA 42-10, 8 (12/30/10).   

Judicial assistant failed to maintain a satisfactory working relationship when she confronted and accused her supervisor of making several errors within the hearing of a customer and slammed the door to the office. In re Roberts, CSA 40-10 & 48-10, 12 (11/15/10).      

Agency proved appellant case manager violated this rule with respect to the public where she reasonably should have known her failure to process cases prevented clients from procuring timely childcare and other benefits. In re Rodriguez, CSA 12-10, 19 (10/22/10).

Call-center agent failed to maintain a satisfactory working relationship with a member of the public where the relationship was significantly impacted by agent’s enraging the caller. In re Jackson, CSA 39-10, 10 (10/7/10).     

Violation was established where appellant’s co-workers liked him, initially covered for his lack of effort and frequent absences and encouraged him to change, but grew increasingly frustrated and reported him after internal and external interventions failed. In re Norris, CSA 68-09, 7-8 (7/12/10).

A violation of CSR 16-60 O was established where co-worker was sufficiently shaken by appellant’s unreasonably abusive treatment of her, that she asked her supervisor never to have to deal with appellant again. In re Lykken, CSA 26-10, 7 (7/7/10).  

Appellant's actions in refusing to attend a project meeting based on previously unreported fears of violence to herself, inappropriately threatening the contractor with enforcement actions, and repeating unfounded allegations against co-workers, had a significant impact on appellant's working relationships with her supervisor, contractor and co-workers, in violation of this rule. In re Harrison, CSA 55-07, 89-07 & 90-07, 55 (6/17/10).

A reasonable person in appellant's position would know her accusation against her supervisor and threats against a contractor would have a significant negative effect on their working relationships. In re Harrison, CSA 55-07, 89-07 & 90-07, 56 (6/17/10). 

Airport employee violated this rule when he banged his fist on a customer’s car, screamed obscenities, and told her to shut up, causing her to make a plan to defend herself and her daughter.  Employee also threatened to arrest another person who tried to intervene.  In re D’Ambrosio, CSA 98-09, 9 (5/7/10). 

A reasonable person in appellant's position would have known his conduct in banging his fist on a car, screaming obscenities and telling a customer to shut up would adversely affect his relationship with the customer. In re D’Ambrosio, CSA 98-09, 10 (5/7/10).  

Evidence which proved a deputy threatened and intimidated a co-worker in violation of 16-60 M also established a failure to maintain a satisfactory work relationship in violation of this rule. In re Carter, CSA 87-09, 9 (2/17/10). 

Appellant violated this rule where his demeaning comments about four co-workers’ national origin, age, sex, work ethic and competence caused one of the four to avoid contact with appellant, and had a significant negative impact on their working relationship. In re Schultz, CSA 70-08, 5 (3/2/09). 

Appellant’s persistence in loud argument with a security officer about a parking citation constituted a violation of this rule. In re Owens, CSA 69-08, 7 (2/6/09). 

Appellant, a new and uninformed employee, violated the rule when he obstreperously tried to impose his will upon someone in a position to know the rules better than he did. In re Owens, CSA 69-08, 7 (2/6/09). 

Appellant's conduct, including yelling at payroll clerk over seven-month period and accusations of tampering with appellant's pay records, resulting in supervisors' taking over communication on appellant's payroll issues, was harmful to clerk and had a significant negative impact on working relationship with clerk, in violation of this rule. In re Williams, CSA 53-08, 5 (12/19/08) affirmed In re Williams, CSB 53-08, 2  (5/14/09).

Under a reasonably objective standard, appellant failed to maintain satisfactory work relationships when he asked a Hispanic co-worker in the presence of others how much it cost her people to get across the border, accusing her of coming to the country illegally. A reasonable person who heard these comments would have found them offensive and insulting. In re Burghardt, CSB 81-07, 3 (8/28/08).

If a reasonable person who heard a remark would consider it wrongful in the workplace setting, the agency has established harm to the co-worker relationship. In re Burghardt, CSA 81-07, 6 (3/28/08), reversed In re Burghardt, CSB 81-07, 2 (8/28/08).

When appellant’s question with “disturbing racial overtones” was addressed to two Hispanic co-workers and undisputedly resulted in distress to both co-workers, the third element of harm is established. In re Burghardt, CSA 81-07, 5 (3/28/08), reversed In re Burghardt, CSB 81-07, 2 (8/28/08).

Agency established that adult supervisor of seventeen-year-old high school intern violated this rule with evidence of the intern’s discomfort with appellant’s actions in accessing and showing him pornography on city computer. In re Strasser, CSB 44-07, 2 (2/29/08).

Where appellant and intern no longer worked together after appellant’s misconduct, hearing officer interpreted rule too narrowly in requiring agency to prove a significant breakdown in their future working relationship. In re Strasser, CSB 44-07, 2 (2/29/08).

The agency may prove a violation of this rule by evidence that appellant’s improper, intentional acts or omissions toward a co-worker inhibited the smooth operation of the unit, or caused an inability to work together. In re Rivas, CSA 49-07, 10 (1/9/08), citing In re Delmonico, CSA 53-06, 5 (10/26/06); In re Katros, CSA 129-04, 10 (3/16/05).

Appellant’s assault on a co-worker was unjustified and outrageous in violation of the rule when assault occurred a week after perceived insult, and appellant failed to use available agency resources to report insult. In re Delmonico, CSA 53-06, 5 (10/26/06), citing In re Collins, CSA 127-03 (2/27/03); In re Green, CSA 130-04 (1/7/05).

Appellant’s refusal to speak to her supervisor about performance problems was untenable when work needed to be coordinated, and established that appellant failed to maintain a satisfactory working relationship with her supervisor. In re Diaz, CSA 13-06, 6 (5/31/06).

Appellant violated rule when she called her subordinate a “fucking bitch” for failing to cover up appellant’s affair with her supervisor, leading to a bitter relationship between appellant and subordinate, and noticeable coldness between the supervisor and appellant’s subordinate. In re Redacted, CSA 190-03, 8 (2/13/06).  

Appellant failed to maintain satisfactory relationship by refusing to communicate in person with her supervisor, even though the job requires appellant and her supervisor to provide clerical support to agency, and appellant’s failure to communicate caused errors, loss of efficiency, disciplinary allegations, and a damaged working relationship. In re Diaz, CSA 92-05, 8 (1/31/06). 

Appellant violated rule by his hostile confrontation of a security guard which caused the guard to feel intimidated and fearful. In re Mestas, CSA 37-05, 7 (8/4/05).

Appellant failed to maintain a satisfactory work relationship with her co-worker by persisting in requests that the co-worker report Appellant as present at work when appellant was late, despite resentment by co-worker, requests to stop, and damage to their friendship. In re Roberts, CSA 179-04, 5 (6/29/05).

Employee's continued negative attitude over discipline he believed unjust and his expressions of anger toward supervisor and co-workers established violation of rule. In re Moreno, CSA 138-04, 8 (5/25/05).

When appellant criticized her supervisor and his policies at a staff meeting, then later organized a meeting with her supervisor's boss to continue the criticisms, resulting in the supervisor's reassignment, appellant failed to maintain satisfactory work relationship with her supervisor. In re Lucero, CSA 162-04, 11 (4/15/05).

Where appellant’s attempt to change rules or enforcement of the rules caused her supervisor to lose his effectiveness as a supervisor, appellant failed to maintain a satisfactory relationship with her supervisor. In re Lucero, CSA 162-04, 11 (4/15/05).

Unrebutted evidence of appellant's continual negative comments towards his supervisors and refusal to comply with supervisors' orders established failure to maintain the supervisor/employee relationship necessary to accomplish the work of the unit. In re Katros, CSA 129-04, 10 (3/16/05).

Appellant's continued complaints that her co-workers were "too lazy to do their jobs" and calling a co-worker "an a hole" in front of co-workers established failure to maintain satisfactory relationship with co-workers. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 4 (1/27/05).  

Appellant's diatribe against co-worker to a member of the public who does business with the agency constitutes failure to maintain a satisfactory relationship with that co-worker and the member of the public, since the latter now avoids appellant and feels uncomfortable around her. In re Routa, CSA 123-04, 4-5 (1/27/05).

When appellant disrupted a team meeting by pounding his fist on the table, shouted “this is bull----”, and stormed out of the meeting, the agency established that appellant violated the rule by failing to maintain satisfactory work relationships. In re Green, CSA 130-04, 3 (1/7/05).

NOT FOUND 

Evidence that supervisor was disappointed in employee, for her failure to call in her absence, but who still had faith in the employee did not prove harm to employee’s relationship with the supervisor. In re Colquitt, CSA 34-15, 4 (10/30/15).

The Agency did not prove appellant violated CSR 16-29 I (Satisfactory Relationships) [now 16-28I], where he damaged his supervisor’s car, but they had no further relationship once his supervisor learned that he damaged the car, since it removed him from the work site. In re Coates, CSA 9-18 & 18-18, 8 (12/19/18). 

Agency failed to prove Appellant violated CSR 16-29I (Satisfactory Relationships) [now 16-28I] through her alleged slander against her supervisor, where witness did not know if her statements were true. In re Gerovic, CSA 77-17, 7 (6/1/18).

Allegation that appellant’s comments were disrespectful, alone, is insufficient to establish a violation of this rule. In re Gerovic, CSA 77-17, 7 (6/1/18).

The Agency cannot prove appellant violated CSR 16-29 G.1. (Failure to Meet Standards) [now 16-28G1], based on alleged violations of the City’s STARS values of Teamwork and Respect for Self and Others, as these aspirational goals do not provide sufficient notice to constitute enforceable standards. In re Coates, CSA 9-18 & 18-18, 5 (12/19/18), citing In re Oyama, CSA 07-13, 4 (6/4/13); In re Espinoza, CSA 73-16, 7 (4/14/17).

Agency did not prove that employee’s absence violated any specific performance standard where it presented no evidence she fell below any standards. In re Colquitt, CSA 34-15, 4 (10/30/15), citing In re Mounjim, CSA 87-07, 13 (7/10/08).

A single instance of calling a colleague “missy” fails to establish mistreatment of a co-worker or damage to the working relationship under this rule. In re Schofield, CSA 08-17, 14 (10/9/17).

Indeterminate accusations fail to provide sufficient notice of wrongdoing to defend as a violation of CSR 16-29 I., and are better suited to an internal process such as performance reviews, counselling, written reprimands, grievances and the like. In re Schofield, CSA 08-17, 15 (10/9/17).

No violation established where deputy DA complained he avoided asking appellant-investigator to conduct any investigation, avoided knocking on her door and felt she was not available when he needed her, yet he never addressed these issues with her, or his or her supervisor, and his complaints were so wanting in specificity that they failed to provide notice, and failed to establish causation. In re Schofield, CSA 08-17, 13 (10/9/17).

Co-worker’s statements that appellant “will act rude or annoyed with me” and she “seems increasingly agitated with me and other people” failed to establish that her relationship with appellant was damaged in violation of this rule. In re Schofield, CSA 08-17, 14 (10/9/17).

No violation established by appellant-investigator asking to leave a witness interview early in front of a witness where the allegation was not more convincing that appellant’s denial. In re Schofield, CSA 08-17, 14 (10/9/17).

No violation established by deputy DA’s complaint that appellant-investigator was impatient during witness and victim meetings, without providing specifics. In re Schofield, CSA 08-17, 14 (10/9/17).

No violation established by various complaints that appellant-investigator was “not a team player,” gave frequent “pushback” when asked to perform tasks, was “unavailable,” “unapproachable,” and unpleasant, dismissive and worse,” with virtually no specific evidence. In re Schofield, CSA 08-17, 14 (10/9/17).

No violation established where co-worker wrote she became ill from her interactions with appellant, but testified at hearing her stress was largely from others complaining to her about the appellant, and the allegation failed to identify any specific conduct which may have objectively demonstrated a violation of this rule. In re Schofield, CSA 08-17, 15 (10/9/17).

No violation established where a deputy DA complained appellant-investigator refused to deliver a document, rudely stating “I’m not an errand boy,” but admitted she was not in the room at the time, admitted her knowledge of the incident came from the deputy DA who made the request of appellant, a possible witness to the incident was not identified or called, and appellant credibly denied the accusation and stated it was the deputy DA who was rude and angry. In re Schofield, CSA 08-17, 15 (10/9/17).

Fact that supervisor submitted an assignment three days late did not prove violation of this rule where alleged pattern of misconduct was unproven, and manager testified there was no strain in their current working relationship after the miscommunications were corrected. In re Lee, CSA 70-16, 5 (3/3/17). 

Agency failed to prove employee’s request for help with work to a co-worker had any negative effect on their relationship or the co-worker’s morale. In re Jackson, CSA 21-15, 8 (1/15/16).

No violation established where customer’s quick acceptance of appellant’s apology indicated he was not unduly offended by the event. In re Vega, CSA 12-14, 4 (7/3/14).

No violation established for leaving the bench early and failing to immediately serve a customer with a parking ticket where evidence showed no damage to relationship with customer or supervisor. In re Vega, CSA 12-14, 4 (7/3/14).

There was no harm to the supervisor/employee relationship under this rule where, after the incident, they continued to work together amicably, and supervisor recognized appellant's value as a coworker who is willing to improve. In re Vega, CSA 12-14, 4 (7/3/14).

An ordinary work error may temporarily lessen a supervisor’s reliance on an employee’s accuracy, but it is not sufficiently serious to prove the employee should have known the error would significantly impact her working relationship, as necessary to prove a violation of this rule. In re Black, CSA 03-14, 6 (6/9/14).

Decision-maker's belief that employee's work errors harmed her work relationships with her supervisors and co-worker was unsupported by persuasive evidence of actual harm to these relationships. In re Black, CSA 03-14, 6 (6/9/14).

Supervisor's concern that employee's work errors would continue and might affect clients was insufficient evidence to prove the employee should have known her errors would damage their working relationship. In re Black, CSA 03-14, 6 (6/9/14).

A strained or less than ideal relationship is insufficient to prove a violation of this rule. In re Trujillo, CSA 53-13, 5 (4/14/14), citing In re Diaz, CSA 45-05, 6 (9/7/05); In re Delmonico, CSA 53-06, 5 (10/26/06).

Supervisor’s concern that appellant may not follow up in the future did not establish an adverse impact to their working relationship, as required to prove a violation of this rule. In re Trujillo, CSA 53-13, 5 (4/14/14).

Violation not proven where credibility of allegedly affected co-worker was suspect, and evidence was unclear that the working relationship of any other employee was affected by appellant’s conduct. In re Gutierrez, CSA 65-11, 12-13 (8/28/12).

Offensive interaction was not proven where agency claimed male captain told female colleague “close the door, come here” but neither was more credible than the other, and the only other witness testified the captain never closed his door when female colleague visited. In re Gutierrez, CSA 65-11, 14 (8/28/12).

No violation of this rule was established even though male appellant admitted motioning for female colleague to expose her breasts and sit on his lap where independent witnesses affirmed the female colleague frequently participated in sexual banter with the appellant and her credibility was suspect. In re Gutierrez, CSA 65-11, 14 (8/28/12).

Although appellant violated CSR 16-60 O by causing hurt feelings to co-workers, the incidents were not egregious where: neither employee mentioned their hurt feelings to a supervisor at the time; the employees disclosed the incidents only after specifically being asked for any complaints about appellant; and the agency took no action for 4-7 months after receiving the complaints. In re Leslie, CSA 10-11, 19 (12/5/11).

Where each side presented equally credible testimony, this violation remained unproven. In re Leslie, CSA 10-11, 14 (12/5/11).

Not every slight, annoyance, or affront will constitute a violation under this rule. In re Leslie, CSA 10-11, 12 (12/5/11).  

Taken alone, co-worker’s sentiment that appellant’s comments conveyed co-worker didn’t know her job, is improper subjective basis to establish a violation. In re Leslie CSA 10-11, 14 (12/5/11).   

Where appellant’s reply to co-worker repeated co-worker’s words almost verbatim, without additional context, the statement did not apprise a reasonable employee that her statement would have a negative impact on the working relationship in violation of this rule. In re Leslie, CSA 10-11, 15 (12/5/11).     

Agency did not establish Appellant failed to maintain a satisfactory working relationship with a co-worker, where the co-worker was irritated that Appellant reached in front of him to label furniture while the co-worker was conducting business on the telephone. While irritating, more is required to prove a negative impact on the working relationship. In re Weiss, CSA 68-10, 11-12 (2/14/11).

Agency failed to prove violation of this rule with respect to appellant’s co-workers where there was no evidence appellant knew or reasonably should have known her incomplete and mistake-filled caseload would negatively affect her co-workers. In re Rodriguez, CSA 12-10, 18-19 (10/22/10).

DIA equipment operator did not fail to maintain a satisfactory working relationship with an airport patron, from whom he requested $20 for his services of driving him around helping him locate his car, where the patron did not file a complaint and the Agency did not impose any discipline when it first learned of the incident. In re Cotton, CSA 104-09, 11 (10/18/10). 

It is not a violation of this rule, where the impact that an employee’s actions may have on co-workers is only theoretical, and the Agency fails to establish that a reasonable person would know her behavior would significantly impact her working relationships. In re Jackson, CSA 39-10, 10 (10/7/10).

Call-center agent did not violate this rule where the Agency failed to prove that the agent’s unexcused absences and tardiness had an adverse impact on her co-workers, and presented no evidence that a reasonable person would know this behavior would significantly impact the agent’s working relationships. In re Jackson, CSA 39-10, 10 (10/7/10).      

Violation was not proven where agency did not identify a person whose relationship was affected by appellant’s actions. In re Abbey, CSA 99-09, 10 (8/9/10).

Fact that customer put his hands in the air and backed up in response to parking agent's threat to arrest him is insufficient to prove the threat adversely affected agent's relationship with the customer. In re D’Ambrosio, CSA 98-09, 10 (5/7/10).

Although appellant refused to follow orders, agency did not establish how the refusal caused a significant degradation in any of her working relationships and so failed to establish a violation of this rule. In re Norman-Curry, CSA 28-07 & 50-08, 10 (2/27/09).

Appellant did not violate rule on maintaining satisfactory work relationships when he volunteered incorrect information to a co-worker, but corrected it within the hour. In re Sienkiewicz, CSA 10-08, 16 (7/14/08).

Agency failed to prove a working relationship was diminished by allegation that appellant deceived co-workers into providing her confidential information. In re Abdi, CSA 63-07, 28 (2/19/08).

A less than ideal working relationship with others does not, by itself, establish a violation of the rule. In re Delmonico, CSA 53-06, 5 (10/26/06); In re Hernandez, CSA 03-06, 7 (5/3/06), citing In re Keegan, CSA 69-03, 11 (3/31/04).

Agency failed to prove unsatisfactory relationship despite co-worker’s stated dread of working with appellant absent evidence that parties were unable to work effectively together following incident, and in light of co-worker’s refusal to file a complaint based on incident. In re Hernandez, CSA 03-06, 7 (5/3/06), citing In re Keegan, CSA 69-03, 11 (3/31/04).

Confrontation with non-employee referee is not a violation of rule prohibiting failure to maintain satisfactory working relationships with co-workers, other City and County employees or the public. In re Trujillo, CSA 44-05, 4 (11/14/05).

A strained relationship between supervisor and employee is insufficient to establish an unsatisfactory working relationship. In re Diaz, CSA 45-05, 6 (9/7/05).

Where one employee was offended by a vulgar e-mail sent by appellant, but there was no evidence it impacted their working relationship, agency failed to prove violation of rule. In re Garcia, CSA 175-04, 4 (7/12/05).

Temporary damage to employee/supervisor relationship caused by employee's violations of no-smoking rules did not violate this rule. In re Schultz, CSA 156-04, 9 (6/20/05).

Appellant's slap of co-worker's face did not prove failure to maintain satisfactory work relationship absent proof that it prevented appellant from working satisfactorily with employees. In re Freeman, CSA 40-05 & 75-04, 6 (3/3/05), citing In re Day, CSA 12-03 (10/9/03).


16-28 J: Being Charged With or Convicted of a Crime (Former 16-60 P)

IN GENERAL

A violation under this rule requires the agency to demonstrate both that the appellant engaged in conduct which could constitute a crime and that the same conduct affected her ability to perform her duties. In re Redacted, CSB 57-11, 3 (12/20/12).

FOUND

Appellant's acknowledgement that he was charged with municipal assault, disturbing the peace, and that he plead guilty to disturbing the peace, established a violation of this rule. In re Christianson, CSA 17-18, 3 (8/6/18).

Hearing officer accurately analyzed the law requiring district attorney to disclose forensic scientist's theft conviction to defense counsel on the issue of whether conviction affected her ability to perform her duties. In re Redacted, CSB 57-11, 3 (12/20/12).

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

Where one of appellant-forensic scientist’s important duties was to present credible testimony in court, but she left a store without paying for merchandise, she became subject to debilitating cross-examination that would likely affect her ability to perform that duty, in violation of this rule. In re Redacted, CSA 57-11, 5 (5/31/12). 

Appellant’s admission that she left a store with a cart full of merchandise without paying for it establishes fact basis for the crime of theft, the first prong of this rule. In re Redacted, CSA 57-11, 4 (5/31/12).

Appellant violated this rule where she was sentenced to forty-five days incarceration after her conviction for DUI, and agency followed disciplinary procedures required by CSR 16- 61 after discovering the conviction. In re Carrillo, CSA 95-09, 5 (3/16/10).

NOT FOUND

Proof that employee was convicted of driving under the influence did not establish violation of this rule where employee did not drive as a part of his job. In re Mitchell, CSA 05-05, 6 (6/27/05) (decided under former CSR 16-50 A.9).  


16-28 L: Discrimination or Harassment (Former 16-60 R)

IN GENERAL 

Rule is intended to prohibit harassing conduct taken at least partially on account of the victim’s gender. In re Novitch, CSB 49-15, 3 (9/15/16).

Conduct prohibited under this rule need not rise to the level of the creation of a hostile work environment under Title VI. In re Gutierrez, CSA 65-11, 13 (8/28/12).

Unwanted sexual advances, unwelcome invitations or comments and derogatory gestures are prohibited under this rule. In re Gutierrez, CSA 65-11, 13 (8/28/12), citing CSR 15-102 A, B.

Disciplinary rule prohibiting harassment has no requirement that derogatory statements or conduct must be accompanied by derogatory intent, nor does it require an agency to prove a violation of state or federal anti-discrimination laws. In re Burghardt, CSB 81-07, 3 (8/28/08).

A lack of awareness of cultural differences does not excuse inappropriate conduct in the workplace. In re Burghardt, CSB 81-07, 4 (8/28/08).

All city employees, regardless of where they were born or what experiences they may have had prior to working for the city, have an obligation to know the conduct required of them under the Career Service Rules. In re Burghardt, CSB 81-07, 4 (8/28/08).

It is employee's obligation to use common sense and good judgment in applying the training he received to his own conduct in the workplace. In In re BurghardtCSB 81-07, 4 (8/28/08).

FOUND   

Program manager’s repeated rude comments about and exposure of female cadet’s tattoo in front of her peers was discriminatory where manager did not criticize male cadets with tattoos. In re Fresquez, CSA 63-16, 7 (2/24/17).

Sexual harassment was proven where female manager tricked a male subordinate into kissing her on the lips. In re Novitch, CSB 49-15, 3 (9/15/16).

Kiss was unwanted touching 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, CSB 49-15, 3 (9/15/16).

An employee’s lack of control over his own anger is not a defense to a charge of making demeaning statements on the basis of another employee’s protected status. In re Schultz, CSA 70-08, 6 (3/2/09). 

Past annoyances did not justify derogatory comments made about fellow employees’ protected status. In re Schultz, CSA 70-08, 6 (3/2/09). 

A violation of this rule is proven by statements made to co-workers that are derogatory on the basis of race, sex, age, national origin, or other basis protected by law. In re Schultz, CSA 70-08, 5 (3/2/09) citing In re Burghardt, CSB 81-07, 3 (8/28/08). 

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. In re Schultz, CSA 70-08, 5 (3/2/09). 

Under a reasonably objective standard, asking Hispanic co-worker in front of others how much it cost her people to get across the border and accusing her of coming to this country illegally, violated rule prohibiting derogatory statements based on national origin. In re Burghardt, CSB 81-07, 3 (8/28/08).

NOT FOUND 

Offensive interaction not proven where agency claimed male captain told female colleague “close the door, come here,” but appellant denied the conduct, neither appellant nor his female colleague was more credible than the other, and the only other witness did not testify the captain ever closed his door when female colleague visited. In re Gutierrez, CSA 65-11, 14 (8/28/12).

Agency allegation that male appellant told female co-worker, “nice shirt, it's just buttoned too high”, or "maybe you should unbutton 'em more" while staring at her chest did not prove sexual harassment under this rule where appellant denied the allegation and the accusation was not more credible than the denial. In re Gutierrez, CSA 65-11, 14 (8/28/12).


16-28 M: Unauthorized Absence from Work or Abuse of Paid Time Off, Sick Leave or Other Types of Leave or Violation of Any Rules Relating to Any Forms of Leave (Former 16-60 S)

IN GENERAL

This rule is intended to prevent patterns of absenteeism and leave abuse. In re Maestas, CSA 18-19, 4 (6/17/19).

A violation of CSR 16-28 M. is established by an absence that is unauthorized under a departmental rule or CSR. In re Maestas, CSA 18-19, 4 (6/17/19), citing In re Leslie, CSA 10-11, 15 (12/5/11). 

A violation of this rule is established by an absence that is unauthorized under a departmental or Career Service Rule. In re Leslie, CSA 10-11, 15 (12/5/11), citing In re Dessureau, CSA 59-07, 8 (1/16/08). 

Since this rule is intended to prevent patterns of absenteeism and leave abuse, the Agency may consider all unauthorized absences in determining whether there has been a violation of this disciplinary rule. In re Leslie, CSA 10-11, 15 (12/5/11), citing In re Salazar, CSA 66-08, 7 (12/26/08).

Agency may consider the number of non-FMLA absences in determining whether there has been a violation of this disciplinary rule, which is intended to prevent patterns of absenteeism and leave abuse. In re Salazar, CSA 66-08, 7 (12/26/08).

Rule requires proof of an actual absence from work. In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-08, 15 (12/15/08), citing In re Blan, CSA 40-08, 6 (7/31/08).

This rule is violated by an absence that is unauthorized under either departmental or Career Service Rule. In re Dessureau, CSA 59-07, 8 (1/16/08) citing In re Garcia, CSA 123-05, 4 (2/27/06).

An alcoholic employee’s excessive absenteeism, if not protected by the ADA, may be addressed through disciplinary action. In re Cullen, CSB 165-04, 6 (1/18/07).

Unauthorized absence is a more serious rule violation than tardiness, as the employer is affected differently by late arrivals than by abuse of leave, unauthorized absences or failures to report to work. In re Diaz, CSA 13-06, 6 (5/31/06), citing In re Conway, CSA 40-05, 4 (8/16/05); In re Owens, CSA 139-04, 7 (3/31/05).

An abuse of leave requires some evidence that appellant knowingly took paid leave to which she was not entitled under Rule 11. In re Edwards, CSA 21-05, 7 (2/22/06).

Sick leave for Career Service employees is authorized under [CSR 12-21] for necessary care and attendance during sickness, or for death, of a member of the employee’s immediate family. In re Espinoza, CSA 30-05, 4 (1/11/06).

Bad intent is not required to prove a violation of this rule. In re Diaz, CSA 45-05, 5 (9/7/05).

FOUND 

Appellant violated CSR 16-28 M. by missing three days of work without required advance approval from her supervisor. In re Maestas, CSA 18-19, 4 (6/17/19).

Employee’s failure to work mandatory overtime was an unauthorized absence in violation of this rule. In re Colquitt, CSA 34-15, 4 (10/30/15).

Appellant’s disagreement with her work schedule is not relevant to the claimed rule violations, which were proven by her unauthorized absences from work and deviations from her scheduled shift. In re Martinez, CSA 10-17, 5 (7/19/17). 

Violation established where appellant did not report to work at the time she stated she would, and did not notify her supervisor that she would be absent until over three hours later into her shift. In re Rodriguez, CSA 12-10, 19 (10/22/10).

Agency proved unauthorized absence by proof that youth counselor left the building to get food for twenty-five minutes without punching out, as required by work rules. In re Abbey, CSA 99-09, 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 since video surveillance and his badge records confirmed his absence from the building for twenty-five minutes. In re Abbey, CSA 99-09, 9-10 (8/9/10).

Proof that appellant left work frequently without authorization established violation of this rule. In re Norris, CSA 68-09, 8 (7/12/10).

Appellant’s absence because of her incarceration was an unauthorized absence from work in violation of this rule. In re Carrillo, CSA 95-09, 5 (3/16/10).

Agency proved violation where employee left work to check on his tenants during work hours. In re Valdez, CSA 90-09, 6 (3/1/10). 

Appellant's admission, that he was absent without authorization for 21 days, established violation of this rule. In re Morgan, CSA 63-08, 10 (4/6/09).

Unexcused failure to return to work after a training session was an unauthorized absence under this rule. In re Lottie, CSA 132-08, 4 (3/9/09).

Where agency policy required employees to make an accurate request for leave and to timely correct errors in their requests, and appellant failed to do either, her absence was unauthorized. In re Turner, CSA 76-08, 8-9 (1/16/09).

Appellant’s failure to resume her normal work schedule, after cancelling her military leave and making no request for any other leave, was an unauthorized absence. In re Turner, CSA 76-08, 9 (1/16/09).

Appellant’s reliance on her opinion that her leave balance was wrong in city leave software did not rebut agency evidence of leave abuse where leave balances in software were accurate, and appellant admitted at hearing that her opinion was incorrect. In re Salazar, CSA 66-08, 6 (12/26/08). 

Appellant’s argument that her absences were not leave abuse because they were caused by illness which improved after medication adjustment did not rebut evidence of leave abuse where appellant failed to show her leave use decreased after her medications were adjusted. In re Salazar, CSA 66-08, 6-7 (12/26/08). 

Appellant’s argument that agency should have spoken to her doctors regarding her use of sick leave before imposing discipline did not rebut evidence of leave abuse where agency did not deny appellant was actually sick when she called in sick, and that her doctor’s notes were accurate. In re Salazar, CSA 66-08, 6-7 (12/26/08). 

Convincing evidence of eyewitnesses and co-workers' statements about appellant's attendance practices supported allegation that appellant was absent without permission for forty-five minutes and two hours during two work days. In re Galindo, CSA 39-08, 12 (9/5/08).

Although she was at a work location, appellant’s absence from her work duties was unauthorized absence, following her dishonest explanation for that absence. In re Blan, CSA 40-08, 6 (7/31/08).

Appellant who claimed sick leave in order to start her vacation one day earlier than scheduled abused sick leave under this rule. In re Clayton, CSA 128-05, 6 (3/21/06).

Agency established appellant was absent without authorization when leave was denied yet she failed to report and, on another occasion, left work early without notifying any supervisor. In re Edwards, CSA 21-05, 6-7 (2/22/06).

Appellant’s unexplained failure to comply with attendance rules despite ample notice proved unauthorized absence from work under this rule. In re Diaz, CSA 45-05, 5 (9/7/05).

After being ordered to speak directly with supervisor for future leave based upon prior sick leave abuse, appellant’s continued noncompliance which affected agency production violated rule. In re Conway, CSA 40-05, 4 (8/16/05).

Charge of unauthorized absence was justified when appellant completely removed himself from his duties by taking actions resulting in his falling asleep, thereby forcing other employees to complete his duties. In re Owens, CSA 139-04, 7 (3/31/05) citing Mitchell v. Dept. of Defense, 22 MSPR 271 (1984).

Appellant abandoned his job when he failed to go to work for 1½ months, failed to notify the agency of the reasons for his absence, and failed to provide the agency with his contact information. In re Kinfe, CSA 161-04, 4 (3/16/05).

NOT FOUND 

Agency improperly coded appellant’s leave as FMLA where Agency assumed, but did not verify, appellant’s leave request was FMLA-related based on prior requests, and agency failed to rebut appellant’s assertion the leave was not FMLA-related and circumstances did not support the assumption. In re Leslie, CSA 10-11, 15-16 (12/5/11).

Agency improperly cited appellant for unauthorized leave where agency miscounted her remaining FMLA leave. The consequence of miscounting must be held against the agency, not the appellant. In re Leslie, CSA 10-11, 16 (12/5/11).

Leave granted under circumstances that do not meet FMLA requirements may not be counted against the employee’s twelve-week entitlement. In re Leslie, CSA 10-11, 16 (12/5/11), citing Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 96 (2002).

Appellant properly requested one hour of holiday leave at the end of a 10-hour shift during the same week as a City holiday, since CSR [10-63 C] permits employees who are required to work on City holidays to take eight hours paid leave on another day during the same week as the holiday. In re Leslie, CSA 10-11, 16 (12/5/11). 

Agency may not limit employee’s intermittent leave to the frequency estimated by her physician. In re Leslie, CSA 10-11, 16-17 (12/5/11).

The Agency was required to approve Appellant’s additional, reasonable requests for FMLA leave, beyond her three, monthly absences estimated on the medical certification form, as long as she had not exhausted her twelve-week entitlement in its entirety, under her current certification. In re Leslie, CSA 10-11, 18 (12/5/11). 

The Agency failed to establish appellant’s leave was unauthorized where its only evidence was her absence but appellant provided reasonable justification for the absence, and the FMLA supported appellant’s request. In re Leslie, CSA 10-11, 18 (12/5/11).  

Appellant did not violate this Rule where policy contradicts Career Service Rules which permit absence due to legitimate illnesses and she did not exceed banked sick leave. In re Rock, CSA 09-10, 5-6 (10/5/10), affirmed  In re Rock, 09-10A, 2 (CSB 4/7/11). 

Agency did not establish unauthorized absence from work by evidence that airport technician engaged in sex at the airport, since agency did not rebut technician's claim that she was on break at that time. In re Jones, CSA 88-09, 5 (5/11/10).

Minor inaccuracies in two days' activity logs did not prove unauthorized absence from work where unrebutted evidence showed that employees were either at an assigned work location or on authorized breaks at all times covered by logs. In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-08, 15, 19 (12/15/08). 

Where agency did not rebut appellants' testimony that they were either at an assigned location or on an authorized break for all times covered by their logs, agency failed to prove they were absent from work in violation of this rule. In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-08, 14-15 (12/15/08). 

Paralegal’s unnecessary trip to courthouse was not an unauthorized absence from work where appellant was given a high degree of independence in her duties, and agency did not prove she needed permission before departing. In re Blan, CSA 40-08, 6 (7/31/08).

Decision of agency to impose leave without pay does not settle the matter of whether a restroom stop constituted an unauthorized absence in violation of the rule. In re Dessureau, CSA 59-07, 8 (1/16/08).

Ten-minute restroom stop to respond to personal emergency was not an unauthorized absence in violation of this rule. In re Dessureau, CSA 59-07, 8 (1/16/08).

Absence was not unauthorized based on appellant’s responsibility to provide a doctor’s note several days after the claimed illness when appellant was asymptomatic at the later time, and doctor’s note would have been ineffective to resolve whether appellant was ill on the day in question. In re Clayton, CSA 128-05, 5 (3/21/06).

Authorized absences under departmental or Career Service Rule did not to violate rule prohibiting unauthorized absences. In re Garcia, CSA 123-05, 4 (2/27/06).

Use of earned sick leave on a claim of personal or family illness does not establish that appellant knowingly took paid leave to which she was not entitled. In re Garcia, CSA 123-05, 4 (2/27/06).

Appellant did not abuse sick leave by merely informing her supervisor that she would be out sick, since agency did not grant paid sick leave for those absences. In re Edwards, CSA 21-05, 7 (2/22/06).

Undersheriff’s assumption that Appellant’s use of sick leave on Fridays or Mondays was abuse of sick leave failed to prove violation of rule where she credibly testified about her son’s asthmatic symptoms after weekend sports activity, and agency did not rebut that evidence. In re Espinoza, CSA 30-05, 4-5 (1/11/06).

In applying rigid departmental rule mandating discipline after a certain number of sick days, undersheriff’s assumption that appellant abused sick leave without further inquiry impermissibly violated her right to take accumulated sick leave. In re Espinoza, CSA 30-05, 7 (1/11/06).

Denial of a leave request initially rendered absence unauthorized, but later grant of leave  retroactively authorized the absence. In re Lucero, CSA 162-04, 8 (4/15/05).

16-28 N: Unauthorized Deviation from Shift, Tardiness, Unauthorized Overtime (Former 16-60 M)

In General

A violation of CSR 16- 28 N. is established by “reporting to work after the scheduled start time …, leaving work before the end time … or working unauthorized overtime.” In re Maestas, CSA 18-19, 4 (6/17/19).

This Rule supplements CSR 16-28 M. - Unauthorized Absence from Work -.but does not overlap it. In re Maestas, CSA 18-19, 4 (6/17/19).

This rule does not require proof of excessive tardiness, and a single late arrival may establish a violation. In re Lopez, CSA 61-16, 3 (12/1/16).

Violations under this rule include reporting to work after the scheduled start time, leaving work before the end time, and working unauthorized overtime. In re Maestas, CSA 18-19, 4 (6/17/19).

FOUND

Appellant’s disagreement with her work schedule is not relevant to the claimed rule violations, which were proven by her unauthorized absences from work and deviations from her scheduled shift. In re Martinez, CSA 10-17, 5 (7/19/17). 

Undisputed evidence that employee was tardy six times during a four-month period establishes a violation of this rule. In re Lopez, CSA 61-16, 3 (12/1/16).

NOT FOUND

The Agency failed to prove Appellant violated CSR 16- 28 N. where she did not report to work late, leave work early, or work unauthorized overtime, even though she missed work on three days. In re Maestas, CSA 18-19, 4 (6/17/19).


16-28 O: Failure to Use Safety Devices or Failure to Observe Safety Regulations (Former 16-60 V)

FOUND  

Deputy sheriff's attention to her knitting or crocheting prevented her from giving full attention to her post duties, in violation of this rule. In re Norman-Curry, CSA 28-07 & 50-08, 7 (2/27/09). 

Deputy sheriff’s failure to use safety protocol to lock the grill securing violent felons in county jail created a significant risk of harm to himself and others, in violation of rule. In re Simpleman, CSA 31-06, 9-10 (10/20/06), affirmed In re Simpleman, CSB 31-06A (8/2/07).

Deputy sheriff violated safety regulations against sleeping on job, negligent performance of duties and departing from truth during investigation of sleeping incident. In re SimplemanCSA 05-06, 7 (5/16/06).

Deputy sheriff jeopardized his own and others’ safety by sleeping while on duty and failing to observe inmates on his watch, in violation of departmental regulations and of this rule. In re Simpleman, CSA 05-06, 6 (5/16/06).

This rule may be violated in three ways: 1) when there is a nexus between an employee’s omission and injury to the employee or another; 2) when the employee’s omission jeopardizes the safety of the employee or others; or 3) when the employee’s omission results in damage or destruction of city property. In re Simpleman, CSA 05-06, 6 (5/16/06), citing In re Owoeye, CSA 11-05, 4 (6/10/05).

Appellant supervisor violated safety rules when he knocked over a “wet floor” sign, entered a secured door in the courthouse, stepped behind the x-ray machine, and stood over another employee in intimidating manner. In re Mestas, CSA 37-05, 4-5 (8/4/05).

NOT FOUND 

No violation established where agency claimed appellant snow plow driver’s negligent accident caused damage to truck, but the damage was discovered five days after the accident; the truck had been driven in the interim; and evidence was vague as to whether the damage could have occurred before the accident. In re Gomez, CSA 02-12, 4, 8 (5/14/12).

Employee who moved his city vehicle after an accident did not violate rule where disciplinary letters did not cite a safety regulation prohibiting that action, and agency failed to prove any resulting injury or jeopardy to the safety of anyone or damage to city property. In re Hobley, CSA 61-05, 6 (12/19/05).

Employee who did not have his driver’s license with him at the time of an accident did not violate a safety regulation to maintain a valid license and insurance. In re Hobley, CSA 61-05, 6 (12/19/05).


16-28 Q: Divulging Confidential or Otherwise Sensitive Information to Unauthorized Individuals (Former 16-60 X)

IN GENERAL

A seat on an oversight committe does not entitle a citizen member of the public to confidential information concerning employee discipline. In re Redacted, CSB 67-11, 6 (4/4/13).

FOUND

Program manager’s revelation to a cadet leader that a cadet did not pass her physical examination did not establish disclosure of confidential material under this rule. In re Fresquez, CSA 63-16, 8 (2/24/17). 

Appellant violated this rule when she divulged another employee's confidential disciplinary information to a citizen member of an oversight committe. In re Redacted, CSB 67-11, 6 (4/4/13). 

NOT FOUND 

Appellant did not divulge written examination materials to job applicants by furnishing them with readily-available and non-confidential documents, including a PEP, CSA workshop and training materials, and a redacted letter of reprimand. In re Martinez, CSA 69-05, 7 (1/4/06) (decided under former CSR 16-50 A.16).

Agency failed to prove that appellant-supervisor provided unfair advantage to promotional candidates by divulging interview questions from her own past interview where seveal candidates were previously interviewed and would have the same advantage. In re Martinez, CSA 69-05, 8 (1/4/06) (decided under former CSR 16-50 A.16). 


16-28 R: Conduct Which Violates the Career Service Rules, City Charter, DRMC, Executive Orders, Written Departmental or Agency Regulations, Policies, or Rules or Other Applicable Legal Authority (Former 16-60 L, R)

IN GENERAL 

Appellant dishonestly obtained reimbursement for mileage, in violation of the agency’s fiscal accountability rule, since she could not have made the trip in the time available to her. In re Hinojosa, CSA 33-18, 9 (11/29/18).

Violation of fiscal accountability rule for supervisor to account for all cash established, where supervisor denied receiving cash tip turned into her by a subordinate, but video confirmed the subordinate received the tip and immediately brought it to the supervisor. In re Burdett, CSA 28-17, 5 (2/13/18).

Violation established by appellant’s admission she raised her middle finger at a person. In re Garcia, CSA 35-17, 4 (10/4/17).

Not every work process is a policy under this rule. In re Jackson, CSA 21-15, 7-8 (1/15/16).

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

This rule is not limited to on-duty conduct. In re Strauch, CSB 40-13, 2 (7/17/14).

Employment rules must be sufficiently clear to give a Career Service employee reasonable notice of the conduct intended to be prohibited. In re Black, CSA 03-14, 5 (6/9/14). 

Where the agency established an appellant’s violation of other, more specific Career Service Rules, no further consideration is due under this catchall rule. In re Romero, CSA 01-12, 10 (4/17/12).

This rule serves two functions: it is a catchall provision for wrongdoing which an agency did not specify elsewhere in its notice of discipline; it also serves to bootstrap wrongdoing under other authority into the Career Service Rules. In re Rodriguez, CSA 12-10, 21 (10/22/10), citing In re Sawyer & Sproul, CSA 33-08 & 34-08, 14 (1/27/09).

Some actual or reasonably perceived harm is required to establish a violation of this rule. A theoretical effect of bad conduct is insufficient. In re Rodriguez, CSA 12-10, 21 (10/22/10), citing In re Abdi, CSA 63-07, 29 (2/19/08).  

Even where the agency proved appellant’s wrongdoing, where the wrongdoing was covered under a more specific violation in the Career Service Rules, citation to this rule is superfluous. In re Rodriguez, CSA 12-10, 21 (10/22/10).

Departmental rules must be clear, reasonable, and uniformly enforced before enforcement will be sustained. In re Rodriguez, CSA 12-10, 13 (10/22/10), citing In re Norman-Curry, CSA 28-07 & 50-08, 5 (2/27/09).

DIA equipment operator did not violate Executive Order 112 or CSR 15-110, prohibiting violent behavior, when he told his co-worker “you deserved it,” referencing why he reported the co-worker’s actions to his supervisor. In re Cotton, CSA 104-09, 12 (10/18/10).  

To prove a violation of this Rule, the Agency must show that it established a policy, it clearly communicated the policy to the employee, and the employee failed to follow the policy. In re Rock, CSA 09-10, 5 (10/5/10), citing In re Mounjim, CSA 87-07, 17 (7/10/08); affirmed in part on other grounds In re Mounjim, CSB 87-07 (1/8/09).  

In determining violation of departmental rule prohibiting workplace violence, it is a reasonable person’s reaction that is controlling, not the intent of the actor. In re Lykken, CSA 26-10, 6 (7/7/10).

Agency must cite the specific regulation, policy or rule violated by appellant's conduct. In re O’Meallie, CSA 92-09, 5 (6/18/10).

An agency’s written policies are enforceable under this rule. In re Cady, CSA 03-10, 5 (4/22/10).

A standing order does not require an additional direct order to be enforceable. In re Norman-Curry, CSA 28-07 & 50-08, 5 (2/27/09).

A course of conduct argument is a valid defense to a standing order, but only in the absence of a subsequent directive which provides reasonable notice of the Agency’s intent to enforce it. In re Norman-Curry, CSA 28-07 & 50-08, 5 (2/27/09).

Department rules and policies are not intended to police every perceived affront in the workplace. In re Owens, CSA 69-08, 5 (2/6/09).

Executive Order 94, containing city-wide policies concerning drugs and alcohol, is enforced in the same manner as the Career Service Rules. In re Delgado, CSA 75-08, 2, fn.2 (1/30/09), reversed on other grounds In re Delgado, CSB 75-08 (7/2/09).  

Aspirational departmental policy statements or standards, indicated by the terms “should” and “strive to”, do not set forth compulsory standards, which may be enforced by discipline. In re Sawyer & Sproul, CSA 33-08 & 34-08, 11 (1/27/09).

Violation of a policy directive that depends on the subjective belief of the employee can be proven only by the employee’s admission. In re Sawyer & Sproul, CSA 33-08 & 34-08, 14 (1/27/09).

Hearing officer’s interpretation that this rule requires proof of intent to violate it before discipline may be imposed was incorrect. In re Mounjim, CSB 87-07, 6 (1/8/09).

To prove a violation of this rule, the agency need only to prove that there was a written policy, the employee was aware of the policy, and the employee failed to follow the policy. In re Mounjim, CSB 87-07, 6 (1/8/09).

Agency must produce evidence that what is being enforced is in fact a policy, and that appellant had actual notice of that policy. In re Mounjim, CSA 87-07, 17 (7/10/08), citing In re Stone, CSA 70-07, 10 (2/25/08); In re Gagliano, CSA 76-06, 7-8 (1/2/07).

In order to establish a violation of this rule, an agency must establish that what is being enforced is in fact a policy, and that employees have notice of that policy. In re Stone, CSA 70-07, 10 (2/25/08), citing In re Gagliano, CSA 76-06, 7-8 (1/2/07).

Some actual or reasonably perceived harm is required to establish a violation of this rule through discredit to the City. A theoretical effect of bad conduct is insufficient. In re Abdi, CSA 63-07, 29 (2/19/08).

An agency policy need not be in writing to be enforceable. In re Rivas, CSA 49-07, 10 (1/9/08).

Immoral conduct prohibited by departmental rule is conduct which violates notions of good or right, when judged by the standards of the average person or society at large. In re Delmonico, CSA 53-06, 6 (10/26/06), citing Encarta Online Dictionary, http://uk.encarta.msn.com (10/24/06).

Agencies may not adopt policies, regulations, orders, or directives that conflict with the Career Service Board Rules. In re Espinoza, CSB 30-05, 2 (8/23/06).

Departmental attendance regulation is a reasonable measure, that controls staffing, budget, and overtime, implemented in a manner that does not burden employee’s right to use sick leave. In re Garcia, CSA 123-05, 6 (2/27/06).

FOUND 

Hearing Officer erred by construing the Agency’s policy to require that the safety of deputies and others takes precedence over the medical concerns of an inmate. In re Hernandez and Garegnani, CSB 25 & 26-17A, 3-4 (1/17/19).

Deputy violated the agency’s use of force policy, which requires de-escalation of force when the subject is under control or has ceased resisting, by applying OPNs on an inmate who was in handcuffs and leg irons and controlled by four other deputies. In re Hernandez and Garegnani, CSB 25 & 26-17A, 2-3 (1/17/19).

Deputy violated the agency’s use of force policy, which requires a deputy to recognize that his conduct may be a factor that can influence the force option necessary, by applying OPNs on an inmate who was in handcuffs and leg irons and controlled by four other deputies, and thereby re-escalating the incident. In re Hernandez and Garegnani, CSB 25 & 26-17A, 3 (1/17/19).

Deputy violated the Agency’s use of force policy by applying pressure to an inmate for two minutes after a nurse asked him to release it, during which other deputies plainly had the inmate under control. In re Hernandez and Garegnani, CSB 25 & 26-17A, 5 (1/17/19).

Appellant admitted that he violated EO 112 – Violence in the Workplace, by grabbing a co-worker by the collar, placing him in a headlock, and punching him. In re Gaule, CSA 06-19, 3 (5/29/19).

The objective evidence showed that Appellant violated EO 112 – Violence in the Workplace, when Appellant grabbed a co-worker by the collar, placed him in a headlock, punched him, left but then returned, unprovoked, to reengage aggressively with him. In re Gaule, CSA 06-19, 3 (5/29/19).

Appellant’s prior attempts to excuse his infliction of violence on a co-worker, including with medical reasons, in violation of this Rule became immaterial once he admitted his violation. In re Gaule, CSA 06-19, 3 (5/29/19).

The recipient’s reasonable reaction, and not the actor’s intent, is the focus of EO 112’s prohibition against violence in the workplace. In re Gaule, CSA 06-19, 4 (5/29/19).

Appellant violated CSR 16-29R (Violating agency rules) [now 16-28R] by violating the Agency’s Employee Conduct policy with her vulgar language which was offensive to a co-worker. In re Gerovic, CSA 77-17, 8 (6/1/18).

Agency allegation that appellant’s failure to be a team player violated STARS values did not establish a violation of CSR 16-29 G (now 16-28 G.1), as it remained unclear what conduct was alleged to violate this Rule. In re Gerovic, CSA 77-17 (6/1/18)

Appellant violated agency’s conduct code against use of vulgarity although she claimed she was misunderstood due to her unfamiliarity with English, but co-workers and supervisors testified her communication was clear and unambiguous and appellant’s testimony at hearing was also clear and comprehensible. In re Gerovic, CSA 77-17, 8 (6/1/18).

Employee’s failure to call in her absence violated agency’s directive to be at work as scheduled or call in to report the absence. In re Colquitt, CSA 34-15, 4 (10/30/15).

Deputy assigned to residential pod violated CSR 16-29R (Violation of agency regulation) [now 16-28R] by violating RR 200.9 (full attention to duties) by allowing inmates to congregate, unattended, around the officer’s desk. In re Fergerson, CSA 64-17, 3 (3/16/18).

Deputy’s duty to prevent inmates from congregating around the officer’s desk derives from duty to search for and prevent inmates from obtaining contraband and from duty to ensure safety of inmates and staff. In re Fergerson, CSA 64-17, 3-4 (3/16/18).

That deputy was performing one duty is no defense to his violation of a rule by his violation of a second duty, as deputies are expected to perform more than one duty at a time in order to maintain safety in the detention facility. In re Fergerson, CSA 64-17, 4 (3/16/18).

Deputy violated CSR 16-29R (Violation of agency regulation) [now 16-28R] by violating RR 200.9 (Full attention to duties) when he failed to secure the doors in the residential pod. In re Fergerson, CSA 64-17, 4-5 (3/16/18).

Deputy violated CSR 16-29R (Violation of agency regulation) [now 16-28R] by violating Building 22 Post Order and DO 4050.11 (Control inmate movement) when he failed to pat search inmates entering and leaving the residential pod. In re Fergerson, CSA 64-17, 5-6 (3/16/18).

Hearing Officer adequately supported holding that deputy violated CSR 16-29R [now 16-28R] as his job duties required him to prevent inmates from congregating around the officer’s desk, and deputy knew or should have known of this obligation. In re Fergerson, CSB 64-17A, 2 (1/17/19).

Deputy violated CSR 16-29R [now 16-28R] by violating clear duty to pat inmates down for contraband after they had congregated around the officer’s desk. In re Fergerson, CSB 64-17A, 2 (1/17/19).

Appellant’s argument that he did not commit a violation by failing to perform a duty because he was performing another duty at the time is not a CSR ground for appeal. In re Fergerson, CSB 64-17A, 2-3 (1/17/19).

Appellant did not establish any mitigating factors so compelling as to mandate a mitigated penalty, hence the Hearing Officer did not err in affirming his suspension. In re Fergerson, CSB 64-17A, 3 (1/17/19).

Appellant did not establish that discipline set bad policy precedent with his claim that deputies cannot simultaneously execute all their duties, as other deputies have not filed appeals claiming they are unable to execute more than one duty. In re Fergerson, CSB 64-17A, 3 (1/17/19).

Appellant, Vehicle Impound employee, violated CSR 16-29R [now 16-28D], by violating Manual Section 801.00 (Customer Property), when he learned of bullets removed from an impounded auto but failed to record them in a Property Receipt Form. In re Tamburino, CSA 40-17, 8 (4/23/18).

Agency failed to prove appellant, Vehicle Impound employee, violated CSR 16-29T [now 16-28T] by receiving bullets found in impounded auto but then denying he had received them, where witnesses testified customers left with the bullets. In re Tamburino, CSA 40-17, 9 (4/23/18).

Dismissal reduced to a written reprimand where agency proved minor offense by deputy of failing to properly document the removal of bullets from an impounded auto, but did not prove the more serious allegations that he took the bullets or that he falsely denied taking them. In re Tamburino, CSA 40-17, 9 (4/23/18).

Appellant violated CSR 16-29R by violating Ordinance 39-3 (Curfews) where she used and allowed others to use the City Center without permission, since it was deemed closed when a customer hosted a party at it without proper authorization. In re Rodriguez, CSA 60-17, 6 (2/5/18), rev’d on other groundsIn re Rodriguez, CSB 60-17A (9/20/18). 

Appellant violated CSR 16-29R by violating Ordinance 39-5 (Admission Fees) where she used and allowed others to use the City Center without having collected the required fees from the host customer. In re Rodriguez, CSA 60-17, 6 (2/5/18), rev’d on other groundsIn re Rodriguez, CSB 60-17A (9/20/18).

Deputy sheriff had ample notice of duty to verify inmates’ eligibility for release where he had been performing that duty for eight years without an erroneous release, and record was replete with evidence that deputy was otherwise aware or should have been aware of that duty. In re Espinoza, CSB 42-15, 3 (7/21/16).

Appellant violated agency written policy to keep his work site clean, where agency presented undisputed evidence that he left his work site dirty, and did not repair a large hole, and appellant failed to prove others were not disciplined for similar lapses. In re Macieyovski, CSA 28-14, 7-8 (10/13/14).

Hearing officer did not misinterpret regulations prohibiting misleading statements or deceptive acts by finding a violation based on deputy's denial that he slapped an inmate where video evidence supported the finding that the slap occurred. In re Kemp, CSB 19-13, 2-3 (7/28/14).

Hearing officer did not misinterpret use of force regulation by noting that the safety manager believed the deputy exercised poor judgment in failing to respect inmate's personal space. In re Kemp, CSB 19-13, 4 (7/28/14).

The word abuse as used in a regulation prohibiting abuse of prisoners can be physical maltreatment. In re Kemp, CSB 19-13, 5 (7/28/14), citing Black's Law Dictionary; The American Heritage College Dictionary (Third Edition).

Dispatcher violated agency's written protocol requiring inclusion of all critical information by failing to convey that suspect had been verbally aggressive and that other officers were on the scene in two separate calls. In re Rhodes, CSA 23-14, 6 (7/25/14).

Dispatcher violated agency protocol to assess each incident through the customer’s perspective in several calls when she treated as low priority a potential security breach in the Mayor's office, failed to dispatch a cover unit, failed to inform officers in a weapons incident of the presence of another officer, and failed to call a reporting party back. In re Rhodes, CSA 23-14, 7 (7/25/14).

Dispatcher violated written protocol to monitor all required channels by failing to check her equipment after inadvertently breaking the circuit to her headphones, resulting in three unmonitored minutes and several missed calls. In re Rhodes, CSA 23-14, 6-7 (7/25/14).

Agency proved appellant failed to follow its file and audit procedures in violation of this rule when she acknowledged she failed to add case comments into the CBMS, despite being trained in the procedure. In re Black, CSA 03-14, 5 (6/9/14).

Deputy needlessly escalated an annoying comment by an inmate into an unreasonable use of force in violation of Sheriff's Department rules when he pushed and held an inmate's head against the wall, put his hands around his neck, and slapped him. In re Kemp, CSA 19-13, 11 (1/2/14).

Where agency policy required employees to act honestly, appellant’s dishonesty, coupled with her sensitive position, was a violation of this rule. In re Redacted, CSA 57-11, 6 (5/31/12).

Violation of agency’s fiscal accountability rule established where appellant wrongfully obtained free equipment replacements for the agency, and her wrongful actions in obtaining the equipment obligated the agency to reimburse the vendor. In re Roybal, CSA 60-11, 7-8 (3/13/12).

Appellant violated City’s ethics rule, DRMC Article IV, Section 2.60, Gifts for officers, officials and employees, where she: was a City employee; wrongfully solicited and accepted free equipment replacement which should not have been free; was in a position to take direct official action with regard to the vendor; and the City had a contractual relationship with the vendor. In re Roybal, CSA 60-11, 9 (3/13/12).

Appellant violated Agency rule prohibiting deputies from wearing uniforms and firearms outside of work, where he conceded knowledge of that rule and conceded he wore his uniform and weapon to his own child support proceeding at the Adams County courthouse. In re Strauch, CSA 37-11, 7 (12/20/11).

Appellant violated Agency rule prohibiting deputies from identifying themselves as Denver Sheriff Department employees for any purpose outside of an official duty or authorized activity, by wearing to his uniform to his own child support proceeding. In re Strauch, CSA 37-11, 7 (12/20/11).

Appellant violated Agency rule requiring deputies to read and maintain familiarity with, and carry out all directives and department orders and procedures regarding duties and assignments, where he violated Agency rules prohibiting him from wearing his uniform outside of his official and authorized duties, by wearing his uniform and firearm to the courthouse for his own child support proceeding. In re Strauch, CSA 37-11, 7-8 (12/20/11).

Appellant violated department order prohibiting deputies from wearing uniforms outside of official duty or authorized off-duty employment where he conceded he wore his uniform and firearm to the courthouse for his own child support proceeding. In re Strauch, CSA 37-11, 8 (12/20/11).

Appellant failed to observe Agency’s policy prohibiting violence in the workplace, when his supervisor instructed Appellant to apologize to a co-worker, and appellant reacted with rage, making intimidating and hostile statements. In re Weiss, CSA 68-10, 10 (2/14/11).  

Violation established where appellant case manager failed to process eight redeterminations of eligibility as specified in agency manual, and her caseload was not larger than that of her co-workers who had no such problems. In re Rodriguez, CSA 12-10, 13-14 (10/22/10).

Even though agency’s internet policy was not specific about how much personal use of internet would be considered excessive, appellant’s 2500 hits on non-work related websites in a thirty-day period was excessive. Appellant’s subsequent decrease in personal internet use did not obviate the violation. In re Rodriguez, CSA 12-10, 15-16 (10/22/10).

Appellant’s tardy reporting twenty-one times in three months violated agency policy to be punctual. In re Rodriguez, CSA 12-10, 17 (10/22/10).

Call-center agent violated written Agency policy that requires her to refer callers to a supervisor upon request, where the agent knew the policy, but failed to refer the caller to a supervisor after nine requests. In re Jackson, CSA 39-10, 9 (10/7/10).

Call-center agent violated written Agency policy that requires employees to call both the Attendance Line and the Manager on Duty when they anticipate arriving late to work. Agent conceded she knew the policy but forgot to call the Manger on Duty when she was going to be late. In re Jackson, CSA 39-10, 9 (10/7/10).  

DIA plumber failed to observe Agency’s vacation and sick leave policies, where the Agency had written policies limiting emergency vacation leave to one day every six months, and restricting unscheduled personal sick days to five per year, and employee admitted he was aware of these policies, but took leave without checking his balances, knowing he was close to the limits, and significantly exceeded the limits. In re Duran, CSA 10-10, 11-12 (10/1/10).   

DIA plumber was absent in violation of this rule, where he failed to report to work during an emergency snow callout, and he filed an FMLA request on the day of his pre-disciplinary meeting. In re Duran, CSA 10-10, 12 (10/1/10).  

Appellant violated agency policy requiring staff to punch out for all absences of more than fifteen minutes when video surveillance and badge records showed he was absent for twenty-five minutes without punching out. In re Abbey, CSA 99-09, 9-10 (8/9/10).

Appellant violated agency's computer user agreement signed by him at hire when he admitted that he provided his password to a co-worker so co-worker could email him pictures of sleeping colleagues from his email account. In re Norris, CSA 68-09, 7 (7/12/10).

Appellant violated DIA’s rule against violence in the workplace where without provocation she stood above co-worker, waved her arms, thrust a paper toward her repeatedly, and used an increasingly shrill, aggressive, and angry voice. In re Lykken, CSA 26-10, 5-6 (7/7/10).

Youth worker violated agency policy requiring intervention and punishment for resident misconduct where he failed to intervene in a resident assault. In re O’Meallie, CSA 92-09, 5-6 (6/18/10).

Where agency rule requires employees to notify their supervisors when they expect to be absent from work, appellant violated rule by taking the rest of the day off without notifying his supervisor after serving less than three hours on jury duty. In re Redacted, CSA 08-10, 7 (5/24/10).

Agency proved airport technician who used city vehicles to engage in sex at the airport violated executive order prohibiting unauthorized use of city vehicles. In re Jones, CSA 88-09, 6 (5/11/10).

Pushing inmate into elevator for requesting a sack lunch was excessive use of force in violation of sheriff’s dept. regulation. In re Koehler, CSA 113-09, 12 (4/29/10).

Presence of infectious disease was not a threat of assault by inmate under use of force policy, but was a circumstance to be considered in assessing amount of reasonable force to be used. In re Koehler, CSA 113-09, 14 (4/29/10).

Deputy humiliated an inmate in violation of policy by slamming him against wall for delaying his entry into the elevator. In re Koehler, CSA 113-09, 15 (4/29/10).

Deputy punished an inmate in violation of use of force policy by kicking him in the head when he demonstrated defensive resistance by trying to get out of a cell. In re Koehler, CSA 113-09, 15 (4/29/10).

Youth crisis center worker’s failure to conduct bed checks every fifteen minutes violated this rule where policy and procedure manual required that bed checks be done and documented every fifteen minutes. In re Carrillo, CSA 95-09, 3, 5 (3/16/10).

Appellant’s accusation of snitching to another deputy was inherently disrespectful and abusive, in violation of sheriff’s department rule prohibiting disrespectful language toward other employees. In re Carter, CSA 87-09, 6 (2/17/10); S.D. rule 200.15.

Deputy violated rule prohibiting discussion of investigation with others when he told co-worker to give a false statement to internal affairs. In re Carter, CSA 87-09, 6-7 (2/17/10). 

Where sheriff's department dress code required hair adornments to be minimal size, plain design, matching the hair or dark color, appellant's persistent refusal to remove seven-inch long, brightly colored, flapping butterfly hair sticks that did not match her hair was a violation of dress code under this rule. In re Norman-Curry, CSA 28-07 & 50-08, 9-10 (2/27/09).

Deputy sheriff's crocheting while on post violated department order to devote undivided attention to duties. In re Norman-Curry, CSA 28-07 & 50-08, 5 (2/27/09).

Deputy sheriff violated departmental order not to display disrespectful language toward her supervisor when she continued to argue with supervisor after his final order until he stated a “last chance to comply” warning. In re Norman-Curry, CSA 28-07 & 50-08, 3, 6 (2/27/09).

After appellant was ordered not to crochet on post, she had reasonable notice of the order, even if it had not been enforced previously. In re Norman-Curry, CSA 28-07 & 50-08, 6 (2/27/09).

Deputy sheriff violated written departmental rule against disorderly performance of duties when she yelled obscenities at a secured inmate during book-in, distracted deputies engaged with other inmates, and disrupted the book-in area, with potentially dangerous results. In re Norman-Curry, CSA 28-07 & 50-08, 15 (2/27/09).

Deputy sheriff breached her primary duties of care, custody and control of inmates when she yelled obscenities at inmate through closed door, causing other inmates to yell back and diverting other officers' attention from control of other inmates. In re Norman-Curry, CSA 28-07 & 50-08, 15-16 (2/27/09).

Deputy sheriff violated departmental order on proportionate use of force when she shoved the face of a non-threatening inmate into a Plexiglass ® window three times, unnecessarily increasing the force of each shove. In re Norman-Curry, CSA 28-07 & 50-08, 18 (2/27/09).

Deputy sheriff who used force upon an inmate violated department rule when she failed to file a use-of-force incident report required by that department rule. In re Norman-Curry, CSA 28-07 & 50-08, 20 (2/27/09).

Even though sheriff department use of force rule permits grabbing inmate's hair to prevent spitting, appellant's repeated slamming of inmate's head into Plexiglas®, after inmate was under control was disproportionate response, in violation of agency rule regarding use of force. In re Norman-Curry, CSA 28-07 & 50-08, 19 (2/27/09).

Appellant’s refusal to seek approval from agency before soliciting outside business violated policy requiring employees to report any situation that may become a conflict of interest where agency expressed a desire to re-enter the field of providing paramedic services to special events. In re Sawyer & Sproul, CSA 33-08 & 34-08, 12-13 (1/27/09). 

Appellant violated agency directive to disclose or resolve conflicts of interest when he untruthfully told his supervisor his outside business had been sold, resolving potential conflicts. In re Sawyer & Sproul, CSA 33-08 & 34-08, 13 (1/27/09). 

City paramedics failed to establish any privacy right to engage in outside paramedic service as a defense to agency hospital’s rule prohibiting employees from holding outside employment that may place paramedics in a conflict of interest with the hospital. In re Sawyer & Sproul, CSA 33-08 & 34-08, 16 (1/27/09). 

Discipline was warranted for overcharging public for field trip fees where appellant was aware field trip fees were set by city ordinance, she received training on fee schedules, and was aware the fees were kept in a note book at the front desk. In re Mounjim, CSB 87-07, 6 (1/8/09). 

Punching in early, causing unauthorized overtime, violated agency policy requiring timely punch-ins. In re Williams, CSA 53-08, 5 (12/19/08).

Appellant violated policy requiring submission of a leave slip for training by leaving work to attend training without submitting a leave slip. In re Williams, CSA 53-08, 5-6 (12/19/08). 

Appellant violated agency attendance policy requiring timely punch-in and this rule where appellant arrived to work on time but forgot to punch in. In re Williams, CSA 53-08, 6 (12/19/08). 

Violation of department policy that breaks could be taken only while en route to work assignments was proven by appellants’ admission, even though their 3-minute break was a one-block detour. In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-08, 16 (12/15/08). 

Twenty-eight minute round trip to get lunch in city vehicle violated departmental policy prohibiting lunch travel exceeding a two-mile radius from job site in city vehicle. In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-08, 17 (12/15/08). 

Lunch in excess of allotted time violated departmental policy on lunch breaks. In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-08, 17, 20 (12/15/08). 

Appellant violated department rule on found property by failing to turn over co-worker's mislaid ring to custodian or return it to owner. In re Galindo, CSA 39-08, 11 (9/5/08).

Appellant's long breaks and lunches off campus violated department policies restricting duration and location of work breaks. In re Galindo, CSA 39-08, 11-12 (9/5/08).

Appellant’s sharing confidential information from an investigative file on child abuse violated agency’s confidentiality policy, and therefore established violation of this rule. In re Catalina, CSA 35-08, 9 (8/22/08).

Human services employee violated agency’s confidential policy in violation of 16-60 L by accessing and sharing confidential information for personal rather than business reasons. In re Catalina, CSA 35-08, 7 (8/22/08).

Supervisor’s failure to correct appellant’s email quotation of fee appellant overcharged participants did not excuse appellant’s violation of rule where she acknowledged fees are set by ordinance and may not be changed by her or her supervisor. In re Mounjim, CSA 87-07, 18 (7/10/08).

Deputy sheriff who slapped fellow officer on the buttocks in front of four of his peers and followed this with insulting banter with another officer violated a departmental order prohibiting intimidating, threatening, or hostile behavior and assault, and a departmental rule banning abusive behavior towards any department employee. In re Rogers, CSA 57-07, 6 (3/18/08).

Agency proved recreation coordinator violated center’s closing policy by credible eyewitness testimony that he stayed in the center with another employee after closing time twice, and by appellant’s admission that he was in the center after hours on a third date. In re Rivas, CSA 49-07, 9-10 (1/9/08).

Appellant endangered the health of a minor in violation of D.R.M.C. §34-46 when he left her unsupervised after hours in a locked center, then drank alcohol with her and allowed her to become intoxicated in his presence. In re Rivas, CSA 49-07, 13 (1/9/08).

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

Deputy sheriff’s cursing and planned assault on another deputy violated departmental rule prohibiting disrespectful or abusive language or behavior toward other employees. In re Delmonico, CSA 53-06, 6 (10/26/06), citing DSD RR 200.15.

Deputy’s assault on another employee constituted disorderly conduct in violation of departmental rule because it diminished deputy’s ability to deal effectively with unruly inmates, and was therefore conduct that would impair the orderly performance of duties. In re Delmonico, CSA 53-06, 6-7 (10/26/06), citing DSD RR 300.10.

Deputy’s assault on another employee constituted violence in the workplace in violation of departmental policy. In re Delmonico, CSA 53-06, 7 (10/26/06), citing DSD DO 2441.D.

Deputy sheriff violated departmental rules by making misleading statements, failing to devote attention to duties, and disobeying orders. In re Simpleman, CSA 31-06, 9-10 (10/20/06), affirmed In re Simpleman, CSB 31-06 (8/2/07); In re Martinez, CSA 30-06, 8-9 (10/3/06), citing DSD RR 200.4, 200.9, and 300.21.

Deputy sheriff who delivered responses to inmate grievances that were intended to humiliate the inmates violated departmental policies requiring that duties be performed with dignity, professionalism, and respect for inmates. In re Gonzales, CSA 07-06, 7 (5/4/06), citing DSD RR 300.21, 400.4, 400.5.

Deputy sheriff violated departmental rules prohibiting dishonesty, actions seeking undue advantage, and violations of law and Career Service rules by requesting special treatment as deputy sheriff when charged with theft of a beer while off duty. In re Mergl, CSA 131-05, 7 (3/13/06), citing DSD RR 300.2.

Deputy sheriff violated city’s Code of Ethics by seeking special treatment when arrested while off duty at a bowling alley, thereby attempting to use his position for personal advantage. In re Mergl, CSA 131-05, 5-6 (3/13/06).

Recreation supervisor’s aggressive confrontation of referee during heated basketball game is a violation of executive order prohibiting violence in workplace. In re Trujillo, CSA 44-05, 3-4 (11/14/05).

Appellant violated Executive Order 112 when he aggressively questioned ex-girlfriend at work about her relationship with another worker, knocked a floor sign down, sought out the other worker at the security entrance to courthouse, went behind the x-ray machine and stood over the worker in an intimidating manner. In re Mestas, CSA 37-05, 6 (8/4/05) (decided under former 16-50 A.14).

Supervisor violated this rule when he failed to follow departmental security policy by entering secured area and door in courthouse. In re Mestas, CSA 37-05, 7 (8/4/05).

Appellant violated CSA policy prohibiting use of email to send vulgar messages when she sent a vulgar email to coworkers during work hours. In re Garcia, CSA 175-04, 3-4 (7/12/05).

E-mail using Spanish slang for s___ and f___ was vulgar, in violation of the standards of propriety expressed in Executive Order 16. In re Garcia, CSA 175-04, 3-4 (7/12/05).

Appellant violated zoo regulations by his failure to comply with no-smoking policy known to him. In re Schultz, CSA 156-04, 9 (Order 6/20/05) (decided under former CSR 16-51 A.5).

Appellant violated departmental regulations regarding sick leave by his absence for more than eighty hours to care for a sick family member. In re Kinfe, CSA 161-04, 6 (3/16/05).

Appellant violated agency rule requiring professional behavior when he disrupted a team meeting and expressed disrespect for the opinions of his co-workers by swearing, pounding his fist on the table, and storming out of the meeting. In re Green, CSA 130-04, 3 (1/7/05).  

NOT FOUND 

The Agency did not prove that on the date alleged, appellant violated CSR 16-29 R (Violating Agency Rules) [now 16-28R] with violence, defined by E.O. 112, as applied here, to mean the victim knows it is occurring, where the victim did not learn appellant had committed it until 30 days later. In re Coates, CSA 9-18 & 18-18, 9 (12/19/18).

The Agency did not prove appellant violated CSR 16-29 R (Violating Agency Rules) [now 16-28R] with violence where he criticized his supervisor and threatened to expose alleged agency malfeasance, but did not use foul or insulting language or threaten anyone personally or any property. In re Coates, CSA 9-18 & 18-18, 5-6 (12/19/18).

Agency failed to prove appellant, Vehicle Impound employee, violated CSR 16-29R [now 16-28D], by violating RR 200.4.2 (Deception), by receiving bullets found in impounded auto but then denying he had received them, where two other witnesses testified customers left with the bullets. In re Tamburino, CSA 40-17, 8 (4/23/18).

Unpublished work procedure that was subject to change was not a policy under this rule. In re Jackson, CSA 21-15, 7-8 (1/15/16).

Agency failed to establish appellant violated a regulation prioritizing preventive maintenance where no evidence at hearing supported the allegation. In re Macieyovski, CSA 28-14, 7-8 (10/13/14).

There is no finding to review where the hearing officer did not sustain a violation based on a departmental regulation. In re Kemp, CSB 19-13, 6 (7/28/14). 

Dispatcher did not violate SOP requiring accurate dispatches by a dispatch that was accurate but not in the proper order. In re Rhodes, CSA 23-14, 6 (7/25/14). 

General principles intended to express an agency's values are unenforceable by discipline. In re Black, CSA 03-14, 5 (6/9/14), citing In re Serna, CSA 39-12, 8 (5/23/13).  

Case coordinator who processes payments did not violate the inter-agency transfer procedure which did not direct any action related to the processing of payments. In re Black, CSA 03-14, 5 (6/9/14).

Employee's failure to do her work did not violate the handbook's general standards of conduct to be respectful where no evidence supported the agency's finding that employee's work omission was disrespectful. In re Black, CSA 03-14, 5 (6/9/14).

Citation to general goals cannot be enforced against an individual employee where the context gives no notice that it is intended to set forth a specific rule of conduct. In re Serna, CSA 39-12, 8 (5/23/13), citing In re Gutierrez, CSB 65-11 (4/4/13).  

Employee handbook vision statement that employees should demonstrate accountability, integrity and teamwork did not establish a written departmental policy enforceable under this rule. In re Serna, CSA 39-12, 8 (5/23/13).   

Administrator's recommendation of her husband's company to a service provider did not create a conflict of interest in violation of ethics rules where agency was an indirect beneficiary and not a party to the contract with the service provider. In re Mack, CSA 43-12, 9-10 (3/18/13).  

Board of Ethics' determination that there was no conflict of interest is entitled to great weight. In re Mack, CSA 43-12, 9 (3/18/13), citing DRMC 2-53(a). 

An appointing authority's disagreement with a Board of Ethics opinion does not justify an exception to the mandatory language of the rule prohibiting a finding contrary to an ethics opinion. In re Mack, CSA 43-12, 9 (3/18/13), citing DRMC 2-54(d). 

Employee's conduct that is in accordance with an ethics opinion cannot be found by an agency to have violated the ethics code. In re Mack, CSA 43-12, 9-10 (3/18/13), citing DRMC 2-54(d).

No violation of agency regulation to pay for cell phones was established even though appellant wrongfully obtained free phone replacements, which did not affect the agency’s responsibility to pay for them, and agency failed to explain how the rule applied. In re Roybal, CSA 60-11, 6 (3/13/12).

Violation against City’s conflict of interest rule not established where appellant wrongfully obtained replacement equipment, but agency did not prove a benefit to her, a member of her family, business associate, or outside employer, and her own financial interest was minimal or non-existent. In re Roybal, CSA 60-11, 8-9 (3/13/12).

A provision which states broad aspirational goals, but fails to provide sufficiently specific guidance as to what conduct is proscribed is unenforceable as a Career Service Rule violation. In re Roybal, CSA 60-11, 9 (3/13/12).

Although deputy’s wearing uniform and gun to his child support hearing created a courtroom emergency, prompted a stern letter of reprimand from the presiding judge, and resulted in his being placed on courthouse watch list, agency failed to establish a violation of  this rule where it did not demonstrate harm to the agency’s mission, the City’s reputation or to its integrity. In re Strauch, CSA 37-11, 8-9 (12/20/11).

Agency failed to establish dispatcher was careless under an SOP, for failing to dispatch the Denver Fire Department (DFD) to an injury accident where her co-worker twice confirmed the incident was non-injury and her supervisor explicitly directed her not to send DFD, in contravention of the SOP. In re Leslie, CSA 10-11, 9 (12/5/11). 

Since obedience to a direct, legitimate instruction always trumps a more general duty, appellant did not act carelessly in violation of this rule when she followed her supervisor’s explicit direction which contravened an agency SOP. In re Leslie, CSA 10-11, 9 (12/5/11).  

Agency’s failed to establish violation of its two-hour call-in rule before absences, where it presented no evidence whether appellant called in advance of her absences and tardiness. In re Rodriguez, CSA 12-10, 17 (10/22/10).

Agency did not establish a violation of its general ethics policy to set a high standard of excellence and professionalism, where it failed to present any reasonably enforceable standard for compliance. In re Rodriguez, CSA 12-10, 18 (10/22/10).

Agency policy prohibiting intimidating or threatening behavior is not violated where the alleged subject of intimidating behavior by an employee does not display any objective signs that he was intimidated, and a reasonable person in the subject’s position would not have been intimidated by his co-worker’s comment, “you deserved it,” but would have perceived the comment indicated annoyance or defensiveness. In re Cotton, CSA 104-09, 11 (10/18/10).    

Although Appellant knew agency attendance policy and failed to observe it, she did not violate this Rule because agency’s policy contradicts Career Service Rules, which permit sick leave for legitimate illnesses that do not exceed banked amount. In re Rock, CSA 09-10, 5-6 (10/5/10). 

Youth crisis center counselor did not violate agency regulation by taking youths to a horror movie instead of an approved movie, despite testimony of its potentially traumatic effects, where agency stated no regulation, policy or rule violated by the conduct. In re Abbey, CSA 99-09, 10 (8/9/10). 

Agency did not establish that airport technician who engaged in sex at the airport thereby also failed to fulfill her duties or discredited the city in violation of rules governing employee conduct. In re Jones, CSA 88-09, 5-6 (5/11/10).

Agency did not establish that airport technician who engaged in sex at the airport thereby also failed to adhere to high levels of ethical conduct in violation of charter. In re Jones, CSA 88-09, 6 (5/11/10).

Fact that inmate hit his head while resisting the efforts of three deputies to restrain him does not establish excessive use of force under agency regulation. In re Koehler, CSA 113-09, 13 (4/29/10).

Deputy did not commit disorderly conduct, and did not cause the public to lose confidence in the Agency, within meaning of sheriff’s policy by slamming inmate against wall, causing him to become aggressive. In re Koehler, CSA 113-09, 15 (4/29/10), RR 300.10.

A failed attempt to disobey a lawful order is not a violation of departmental rule prohibiting disobedience to an order. In re Carter, CSA 87-09, 6 (2/17/10); RR 200.13.

Department orders couched in aspirational terms such as "should adhere," "strive for excellence," and to be "accountable for everything we do" are too vague to enforce. In re Norman-Curry, CSA 28-07 & 50-08, 7, 17 (2/27/09); DO 2440.1. 

Written directives couched in vague, aspirational terms like "accountable for everything we do" and "strive for excellence" and reference to the golden rule provide guidance but are not orders to be enforced. In re Norman-Curry, CSA 28-07 & 50-08, 7, 17 (2/27/09); DO 2440.1. 

Rule violation was not proven where agency did not specify the employee conduct alleged to have violated a written departmental rule. In re Norman-Curry, CSA 28-07 & 50-08, 16 (2/27/09). 

Sheriff department rule which requires every witness to the use of force to file a "use of force" report, does not apply to the user of force.  It is illogical to require the actor to file a report as witness to her own actions, particularly since another rule requires the actor to report her use of force. In re Norman-Curry, CSA 28-07 & 50-08, 21 (2/27/09).

Agency’s failure to consider the effect of appellant’s conviction on her fitness to perform, or the city’s reputation or integrity pursuant to CSR 16-61 C, requires reversal of the discipline based on being charged with a crime in violation of departmental rule. In re Chavez, CSA 129-08, 5-6 (2/24/09).

Evidence acquired after discipline was assessed will not be considered. In re Sawyer & Sproul, CSA 33-08 & 34-08, 12-14 (1/27/09). 

Appellants did not violate agency rule against profiting financially from outside sources by citing their city employment experience as credentials to solicit business for their private business. In re Sawyer & Sproul, CSA 33-08 & 34-08, 14 (1/27/09). 

Agency failed to prove violation of rule prohibiting profiting “if you think an action may be a conflict of interest” where appellant did not admit he believed his actions created a conflict with the agency. In re Sawyer & Sproul, CSA 33-08 & 34-08, 14 (1/27/09).   

Where agency approved sick leave, appellant did not violate policy requiring employees to submit a doctor's slip if ordered to do so, as she must have submitted one to obtain approval. In re Williams, CSA 53-08, 6 (12/19/08). 

Employees who had supervisor's permission to travel and work together as team did not violate agency directive that considered unnecessary trips unproductive unless approved by a supervisor. In re Compo, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-09, 13 (12/15/08). 

Lunch and breaks that did not exceed their allotted times did not violate department rules despite error in recording those breaks on daily log. In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-08, 17 (12/15/08). 

Agency failed to prove employee violated policy by driving his city vehicle to do personal errand where evidence showed employee was en route to an authorized work location, and break did not exceed time allotted. In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-08, 18 (12/15/08). 

Where agency claimed appellants worked only two hours at their home base while their logs claimed over four hours, but agency's evidence was inconclusive, agency failed to prove appellants violated any departmental rule or policy. In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-09, 16 (12/15/08). 

Agency failed to prove employee violated its policy by fraudulently attesting on his PEPR that he had a valid driver's license where the county court erroneously caused the suspension, and employee was unaware of that suspension when he signed the PEPR. In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-08, 20 (12/15/08). 

HR analyst did not violate agency record retention policy where he placed duplicate worker’s compensation documents in shredder before date of mandatory destruction under policy. In re Sienkiewicz, CSA 10-08, 10 (7/14/08).

Appellant did not violate internal policy or practice prohibiting destruction of critical documents where agency commingled documents from several shredders, agency did not notify appellant of policy, and documents were not critical to operation of agency. In re Sienkiewicz, CSA 10-08, 11 (7/14/08).

Agency did not establish violation of agency internet policy where agency did not rebut appellant’s evidence that he listened to music through radio station’s website during work hours, and used Google to research ergonomic issues as part of his duties. In re Sienkiewicz, CSA 10-08, 16 (7/14/08).

Since agency failed to establish appellant violated any provision of the rules, Charter or municipal code, agency also did not prove a violation of this rule. In re Burghardt, CSA 81-07, 7 (3/28/08).

Memo that gave parameters for the exercise of discretion did not define an action that must be taken under specific circumstances, and therefore was not enforceable as a policy. In re Stone, CSA 70-07, 10 (2/25/08).

Agency failed to prove associate city attorney violated agency regulations on plea offers when evidence showed that his plea offers followed office practice. In re Stone, CSA 70-07, 10 (2/25/08).

Evidence that appellant used work time to assist her sister’s fraudulent application for benefits was insufficient to prove that her actions discredited the CSA, agency or city. In re Abdi, CSA 63-07, 28-29 (2/19/08).

Agency did not establish violation of this rule when it did not prove that city truck driver involved in an accident failed to review safety procedures, or that he violated and regulations, procedures, or traffic law. In re Sandrowski, CSA 58-07, 13 (2/6/08).

Agency failed to prove appellant violated alcohol policy where it could not be determined without the policy whether his conduct violated specific policy regulating alcohol use by employees or in agency facilities when it did not submit a copy of the policy. In re Rivas, CSA 49-07, 10 (1/9/08).

Appellant did not violate fraud prevention rule by disclosing a potential conflict of interest, since a violation may occur only for failing to disclose such conflict. In re Butler, CSA 78-06, 6 (1/5/07).

Departmental policy prohibiting sexual harassment was not violated by appellant addressing co-worker as “babe”, “baby” or “honey”, when co-worker's reaction was that comment lacked professionalism but was not sexually oriented. In re Hernandez, CSA 03-06, 8 (5/3/06), citing Dubiel v. USPS, 54 MSPR 428, 433-34 (1992).

Appellant did not violate SOP requiring appellant to provide doctor's note verifying illness to supervisor upon request when supervisor’s request did not occur until after appellant would have recovered from illness, and any doctor’s note would be ineffective to confirm appellant’s illness. In re Clayton, CSA 128-05, 6 (3/21/06).

Appellant did not violate departmental rule against being absent without leave where agency’s absence report showed appellant was allowed to use accrued sick leave for each of the absences at issue. In re Garcia, CSA 123-05, 4 (2/27/06).

Appellant did not violate excessive force policy in ordering an intoxicated prisoner be dragged to his cell where alternatives would have been ineffective, decision-maker acknowledged confusion over the policy, and dragging was proportional to the threat faced by the prisoner’s behavior. In re Brown, CSA 102-05, 3-8 (2/15/06).

Dragging as use of force to transport prisoner was not unreasonable under department policy because it resulted in exposure of prisoner’s genitals, caused by his refusal to obey orders to pull up his pants. In re Brown, CSA 102-05, 7 (2/15/06), citing Madyun v. Franzen, 704 F.2d 954 (7th Cir. 1983).

Agency failed to prove appellant violated departmental rule mandating discipline after specific number of uses of sick leave because rule conflicted with Career Service Rule authorizing use of sick leave. In re Espinoza, CSA 30-05, 9 (1/11/06), affirmed In re Espinoza, CSB 30-05 (8/23/06).

Employee who moved his city vehicle after an accident did not violate Handbook since the handbook contained no such prohibition and state law required him to move vehicle. In re Hobley, CSA 61-05, 6-7 (12/19/05) (decided under former CSR 16-51 A.5).

Employee who failed to have his driver’s license on his person at the time of an accident did not violate a departmental regulation to maintain a valid license. In re Hobley, CSA 61-05, 6 (12/19/05).

Appellant did not violate agency policy when he failed to report traffic violations for driving carelessly, under suspension and under the influence where requirement was to “report crimes excluding minor traffic violations,” but interpretation of “crime” was ambiguous, agency later changed its policy to specify such offenses but did not give employees reasonable notice, and appellant’s duties did not require driving. In re Mitchell, CSA 05-05, 6-7 (6/27/05).


16-28 T: Conduct Prejudicial (Former 16-60 Z)

IN GENERAL 

News coverage of an event, alone, is insufficient to establish a violation. In re Koonce, CSA 34-17, 7 (12/22/17).

The same evidence that proved a violation of the “good order and effectiveness” portion of Sheriff Department Rule RR 300.11.6 also establishes a violation of CSR 16-29T. In re Wilson, CSA 38-17, 10 (12/8/17).

Wrongdoing under this rule now includes conduct which “could foreseeably” cause harm, in addition to actual harm. In re Marez, CSA 58-16, 8 (1/26/17).

More than imagination or sheer conjecture is required to establish a violation under this rule. In re Marez, CSA 58-16, 8 (1/26/17).

That Appellant believed hearing officer should have reached a different conclusion does not constitute a misinterpretation of CSR 16-28 T. In re Strauch, CSB 40-13, 6 (7/17/14).

Violations of this rule must be decided on a case-by-case basis. In re Jones, CSB 88-09, 2-3 (9/29/10), affirmed In re Jones, CSA 88-09 (5/11/10).

The kind of injury necessary to prove a violation of this rule will have to be decided on a case by case basis. In re Strasser, CSB 44-07, 2 (2/29/08).

FOUND 

Appellant admitted that he violated 16-28 T., by getting into a physical altercation with a co-worker, which was conduct unbecoming a City employee. In re Gaule, CSA 06-19, 4 (5/29/19).

Appellant grabbing a co-worker by the collar, placing him in a headlock, punching him, and returning to engage angrily with him constituted conduct prejudicial to the good order and effectiveness of the Department. In re Gaule, CSA 06-19, 4 (5/29/19).

Appellant violated CSR 16-29T where she, from a position of trust on behalf of the City, used and allowed others to use the City Center without having collected the required fees from the host customer. In re Rodriguez, CSA 60-17, 6 (2/5/18), rev’d on other groundsIn re Rodriguez, CSB 60-17A (9/20/18). 

Appellant comprehensively violated the prohibition against prejudicial conduct where she submitted false documentation of hours and mileage, invented excuses to conceal her absences, and feigned ignorance of agency rules that she disregarded. In re Hinojosa, CSA 33-18, 10 (11/29/18).

Appellant's acknowledgement that his assaulting victim was unbecoming of a city employee established a violation of this rule. In re Christianson, CSA 17-18, 5 (8/6/18). 

Violation established where prejudice to good order and effectiveness of agency where supervisor restricted bathroom breaks, told a subordinate “shut your mouth,” physically blocked a subordinate as if to fight, and told subordinates “look it up yourself” instead of assisting or guiding them. In re Burdett, CSA 28-17, 5 (2/13/18).

Violation established where prejudice to the agency’s effectiveness resulted from supervisor’s failure to complete required audits.  Supervisor claimed she delegated that responsibility, but it was ultimately her responsibility. In re Burdett, CSA 28-17, 5 (2/13/18).

Prejudice to agency - DMV -  established in violation of this rule where branch manager’s lack of oversight caused customers not to receive their titles timely, excessive time was spent to search for missing titles, customers had to make additional visits to request extensions, dealers and banks received complaints from customers about their titles, and branch manager’s justifications failed to explain why rejected titles were not processed within twenty-four hours as required. In re Burdett, CSA 28-17, 6 (2/13/18).

Prejudice to DMV branch established where vehicle titles were not processed timely as required and branch manager claimed delay was caused by having to be on the floor during busy times and by being out on FMLA leave, but she did not mention her illness until the notice of discipline issued and did not request assistance to process titles. In re Burdett, CSA 28-17, 6 (2/13/18).

This rule is applicable to misconduct regardless whether the prejudicial conduct involved family members. In re Santistevan, CSB 75-16, 2 (11/16/17) (decided under former CSR 16-60 Z).

Violation established by appellant’s admission she raised her middle finger at a person. In re Garcia, CSA 35-17, 4 (10/4/17).

Appellant’s open and disloyal attack on the competence of her supervisor in front of their customers is conduct unbecoming a city employee under this rule. In re Martinez, CSA 10-17, 7 (7/19/17). 

Where deputy’s partner separated the deputy and inmate because he believed inmate’s abuse was getting under deputy’s skin, agency’s finding that observers were shocked, scared or dumbfounded by deputy’s conduct was unsupported by the evidence. In re Turner, CSA 01-17, 9 (6/26/17).

Violation established where vehicle boot investigator’s actions were contrary to the good order and effectiveness of the agency and were unbecoming a City employee when he falsely called police resulting in emergency response and detention of citizen which could well have resulted in suit against the City. In re Espinoza, CSA 73-16, 8 (4/14/17).

Verbal and physical abuse of cadets prejudiced the effectiveness of the cadet program under this rule. In re Fresquez, CSA 63-16, 8 (2/24/17).

Hearing officer did not err in finding harm to the City under this rule where appellant-deputy’s actions caused unfounded APB to issue, resulting in the detention of an innocent civilian, and unnecessary investigation and expenditure of City resources. In re Strauch, CSB 40-13, 5 (7/17/14).

Deputy sheriff violated this rule when he asked co-workers to engage in a cover-up of his fraternization with an inmate, resulting in the destruction of their working relationship and a deleterious effect on the good order of the department. In re Romero, CSA 01-12, 10 (4/17/12).

Counselor at youth crisis center violated this rule where he failed to control residents' aggressive behaviors leading to a fight and injuries, even though he was not present during the fight, where a core mission of the center is to maintain constant surveillance and control of residents. In re Abbey, CSA 99-09, 11 (8/9/10).

Family crisis center youth worker's failure to intervene in a resident assault violated the mission of center to provide residents a safe environment, and thus proved a violation of this rule. In re O’Meallie, CSA 92-09, 6 (6/18/10).

Inmate's lawsuit against city based upon appellant's unjustified use of force resulted in negative publicity that brought disrepute on the city in violation of the second part of this rule. In re Norman-Curry, CSA 28-07 & 50-08, 23 (2/27/09), affirmed In re Norman-Curry, CSB 28-07 & 50-08, 3 (9/3/09).

Prosecutor hindered agency mission to promote equal treatment for similarly situated defendants in traffic court when he knowingly made a more favorable plea offer than that offered by another prosecutor. In re Stone, CSA 70-07, 11 (2/25/08).

Associate city attorney’s failure to correct an unintentional misstatement to his supervisor negatively impacted his supervisor’s trust in appellant’s truthfulness, thereby negatively affecting his supervisor’s ability to supervise, in violation of the good order and effectiveness of the agency. In re Stone, CSA 70-07, 11-12 (2/25/08).

By helping her sister fraudulently obtain public benefits, appellant violated this rule by diminishing the agency’s ability to accomplish its mission to distribute finite resources to those in need. In re Abdi, CSA 63-07, 30 (2/19/08).

Appellant hindered the agency’s mission to deliver recreational services to city residents and endangered the city’s reputation for the integrity of its employees by drinking alcohol with minor female two weeks after her suicide attempt by alcohol, causing her family to avoid the center. In re Rivas, CSA 49-07, 14 (1/9/08).

Appellant negatively impacted the good order of the sheriff’s department when he failed to take his grievance with co-worker through chain of command, and instead, assaulted co-worker within sight of inmates, diminishing deputies’ ability to deal effectively with unruly inmates. In re Delmonico, CSA 53-06, 6 (10/26/06).

Where a primary purpose of sheriff’s department is the safe-keeping of inmates, and appellant’s card-playing while on duty and failure to secure a jail door for fifteen to twenty minutes resulted in inmates being unsupervised and allowed access to other sections of the jail, appellant imperiled an important agency mission, in violation of this rule. In re Simpleman, CSA 31-06, 10 (10/20/06), affirmed In re Simpleman, CSB 31-06 (8/2/07).

NOT FOUND 

Agency failed to prove Appellant violated CSR 16-29T (Conduct Prejudicial) [now 16-28T] where its notice of discipline and evidence did not connect any particular behavior to this CSR. In re Gerovic, CSA 77-17, 9 (6/1/18).

The Agency proved appellant violated CSR 16-29 T (Conduct Unbecoming) [now 16-28R] by damaging his supervisor’s car after his supervisor had just issued him a Written Reprimand. In re Coates, CSA 9-18 & 18-18, 9 (12/19/18).

The Agency did not prove appellant violated CSR 16-29 T (Conduct Unbecoming) [now 16-28R] where, at a pre-disciplinary meeting, he rejected his Written Reprimand and threatened to expose alleged agency malfeasance, as his rejection had no legal value and he was entitled to provide rebuttal, although he did so inartfully, at this forum. In re Coates, CSA 9-18 & 18-18, 6 (12/19/18).

No violation found where agency claimed there was news coverage of officer who escorted member of high-profile family through shortcuts in the booking process, but agency provided no news article which might have provided such evidence. In re Koonce, CSA 34-17, 7 (12/22/17).

Agency’s conclusory statement of conduct unbecoming a City employee failed to establish violation of rule. In re Koonce, CSA 34-17, 7 (12/22/17).

“She made us look bad” fails to prove a violation of any component of this rule. In re Schofield, CSA 08-17, 16 (10/9/17).

No violation established by accusation that appellant-investigator left meeting with witness before it was over, but appellant credibly testified the meeting was over except for deputy DA to explain why the case was not going to be prosecuted – an action that did not require appellant’s presence, and the accusation failed establish a violation of any part of the rule. In re Schofield, CSA 08-17, 16 (10/9/17).

No violation found where only evidence of violation was supervisor’s unsupported speculation that appellant’s substandard performance had possible effect on other employees, and portrayed potentially negative image of the agency. In re Marez, CSA 58-16, 8 (8/29/16).

No violation established under agency claim that media coverage of alleged preferential treatment brought disrepute on and compromised integrity of agency where no evidence of media coverage was provided and hypothetical negative image was too tenuous to constitute “serious consequences or potential consequences” under agency rule 300.11.6. In re Rolando, CSA 40-15, 9 (1/26/16).

Agency’s belief that appellants’ activities put the agency at a disadvantage, without more, is too vague to establish a violation of this rule. In re Sawyer & Sproul, CSA 33-08 & 34-08, 15 (1/27/09).

16-30: Investigatory Leave with Pay

Rule obviously contemplates the placement of the target of the investigation on leave, not the whistleblower.  In re Muller, CSB 48-08, 2 (10/24/08).

16-41: Purpose of Discipline

N GENERAL

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, CSB 76-17, 2-3 (9/6/18).

Hearing officer’s finding that appellant was capable of reform was error of ultimate finding where appellant was on notice his interpersonal skills needed improvement, but he threatened to punch a co-worker and threatened retaliation against anyone complaining about his misconduct. In re Mancuso, CSA 76-17, 3 (9/6/18).

Hearing officer erred in ultimate finding that appellant accepted responsibility for his misconduct where he persisted in claiming his threat to punch a coworker was funny, and that he is a known jokester, but appellant’s only expressed recognition of misconduct was his threat to retaliate against anyone who reported his threatened punch. In re Mancuso, CSB 76-17, 4 (9/6/18).

Hearing officer misinterpreted CSR 16-41 where his conclusion as to the degree of discipline was incorrect, and failed to follow CSB precedent. In re Mancuso, CSB 76-17, 4 (9/6/18).

The most appropriate focus in reviewing a penalty should be whether the discipline imposed by the agency was warranted by the misconduct that was proven, not whether misconduct first alleged but then not considered by the agency should mitigate the discipline. In re Economakos, CSB 28-13, 3 (3/24/14). 

The purpose of discipline is to correct inappropriate behavior if possible. In re Quezada, CSA 40-12, 9 (4/5/13); In re Abbey, CSA 99-09, 11 (8/9/10).  

Appointing authorities are directed by CSR 16-41 to consider the severity of the offense, an employee’s past record, and the penalty most likely to achieve compliance with the rules. In re Gutierrez, CSA 65-11, 16 (8/28/12), citing CSR 16-20, In re Abbey, CSA 99-09, 11 (8/9/10); In re Norris, CSA 68-09, 8 (7/12/10); In re Blan, CSA 40-08, 6 (7/31/08).

Where the agency does not specify if one basis for discipline was more egregious than another, the severity of violations is reviewed as approximately equal. In re Leslie, CSA 10-11, 19 (12/5/11).  

Interpreting the Career Service Rules as limiting agency sanctions for poor performance to downgrading a performance rating would render meaningless the language of CSR 16-41 which permits an agency to assess discipline for inappropriate behavior or performance. In re Cady, CSA 03-10, 4 (4/22/10).

Where agency’s disciplinary decision was based on a preponderance of the evidence and was not clearly excessive, its determination as to the degree of discipline must be sustained. In re Carter, CSA 87-09, 10 (2/17/10), citing In re Weeks, CSB 26-09 (12/23/09); reversed on other grounds, 2010 CV 545 (6/21/10); affirmed on other grounds, City and Cty of Denver v. Weeks, 10CA1408, 11 (Colo. App. 10/13/11 – unpublished). 

Where past discipline has not corrected deputy sheriff's ongoing defiance of authority and abuse of inmates, and appellant consistently denied all responsibility for her actions, it is unlikely that appellant's conduct would improve with lesser discipline. In re Norman-Curry, CSA 28-07 & 50-08, 25 (2/27/09).

The corrective purpose of discipline is fulfilled when an agency tailors the penalty to the nature and circumstances of the misconduct and the employee’s past disciplinary history. In re Catalina, CSA 35-08, 11 (8/22/08), citing In re Rogers, CSA 57-07, 7 (3/18/08).

It is improper to choose degree of discipline based upon whether it would show favoritism, rather than in the context required by the rules: whether a lesser degree of discipline might have achieved compliance. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 43 (5/30/08).

Where possible and practicable, the purpose of discipline under the rules is intended to be corrective rather than punitive, and should be progressive whenever practicable. In re Strasser CSB 44-07, 3 (2/29/08).

Discipline is not a matter of mathematical precision, but is rather the carefully-considered result of examining the facts and circumstances of the particular case, as well as the disciplinary record of the individual, including the nature and extent of similar discipline. In re Simpleman, CSA 31-06, 10 (10/20/06), affirmed In re Simpleman, CSB 31-06 (8/2/07).

The test to determine the propriety of discipline is whether the degree of discipline is reasonably related to the seriousness of the offense, taking into consideration appellant’s past disciplinary record. In re Delmonico, CSA 53-06, 8 (10/26/06); In re Simpleman, CSA 05-06, 9 (5/16/06).

Magnitude of potential harm caused by misconduct may be considered in assessing level of discipline to be imposed. In re Simpleman, CSA 05-06, 9 (5/16/06).

The test for discipline is not whether the discipline is the next step of progressive discipline, but rather whether the degree of discipline is reasonably related to the seriousness of the offense. In re Vigil, CSA 110-05, 8 (3/3/06), citing In re Champion, CSB 71-02, 18 (7/31/02).

Hearing officer may consider past discipline and the current status of that discipline to determine reasonableness. In re Williams, CSA 65-05, 7 (11/17/05).

Supervisor’s consideration of two past written reprimands that were later reduced to verbal warnings did not render the penalty of a written reprimand improper, since the same supervisor imposed all discipline, and only the degree of discipline changed between the time it was imposed and the appeal hearing. In re Williams, CSA 65-05, 7 (11/17/05).

Rescinded discipline cannot be used for any disciplinary purpose against an employee. In re Williams, CSA 65-05, 7 (11/17/05).

To condone misconduct only because no actual harm results would violate the Career Service Rules' purpose to correct inappropriate behavior. In re Owoeye, CSA 11-05, 6 (6/10/05).

In [non-sheriff’s] disciplinary appeals, the agency bears the burden of proof to demonstrate by a preponderance of the evidence that there is cause to discipline, and that the discipline imposed is reasonably related to the seriousness of the offenses. In re Katros, CSA 129-04, 6 (3/16/05), citing In re Castaneda, CSB 155-02 (7/1/03); In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 13 (1/27/05); In re Gustern, CSA 128-02, 20 (12/23/02).

DISMISSAL 

Dismissal was appropriate penalty for police dispatcher for three mismanaged calls and a three-minute failure to monitor a police channel where her violations potentially placed officers in danger, she minimized her many policy violations, and evidence did not show that decision-maker exceeded the range of reasonable discipline. In re Rhodes, CSA 23-14, 8 (7/25/14).

Dismissal was reasonable for a case worker who manifested horror at a client’s disabled appearance, refused to work with her, and refused to acknowledge during the disciplinary process that her conduct was contrary to agency mission and standard of service. In re Perry-Wilborne, CSA 62-13, 8-10 (5/22/14).  

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

Dismissal of human services clerk who improperly issued public benefits card was appropriate because her action was dishonest and the importance of honesty in her job gave the agency little basis to anticipate that any less severe penalty would serve the purposes of discipline under the Career Service Rules. In re Lopez, CSA 41-12, 5 (4/5/13).

Discharge was a reasonable and necessary punishment where appellant continued to deny wrongdoing despite proof of serious misconduct, since the purpose of discipline is to correct behavior. In re Redacted, CSB 67-11, 7 (4/4/13). 

Termination justified due to appellant’s dishonesty, failure to acknowledge any wrongdoing, and agency’s loss of trust in appellant’s ability to complete his minimal-oversight duties, despite his only one minor, prior discipline. In re Gomez, CSA 02-12, 8-9 (5/14/12). 

Appellant’s dismissal was appropriate despite his lack of disciplinary history where his conduct seriously endangered his co-workers, violated policy against horseplay, contradicted a direct order not to move the truck and he failed to acknowledge wrongdoingIn re Napoli, CSB 74-10, 5 (8/18/11).

A single egregious violation of the Career Service Rules justifies dismissal even in the absence of a prior disciplinary record. In re Napoli, CSB 74-10, 5 (8/18/11). 

Termination was appropriate discipline for Appellant’s intimidating and hostile conduct towards his supervisor and unprofessional conduct towards his co-worker, where Appellant did not accept responsibility for his actions, was previously suspended for similar intimidating conduct but given a second chance, and his anger escalated increasingly rapidly over minor occurrences, and his supervisor had counseled Appellant repeatedly on professionalism. In re Weiss, CSA 68-10, 12-13 (2/14/11).    

Dismissal was appropriate where appellant case manager’s negligence delayed important welfare benefits to agency clients; she had a substantial and unabated history of attendance issues ; and after the agency’s notice in contemplation of discipline for tardiness, she reported late seven times, showing there was little basis that her compliance would improve with a lesser penalty. In re Rodriguez, CSA 12-10, 22-23 (10/22/10). 

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

Agency’s dismissal of appellant was not excessive, where agency determined that he was unlikely to change his behavior, based on appellants’ disciplinary history including several, prior disciplines for the same behaviors. In re Abbey, CSA 99-09, 12 (8/9/10).     

Appellant’s violations were severe, where his actions contravened two core functions of agency. In re Abbey, CSA 99-09, 11 (8/9/10).

Dismissal of lead youth worker at family crisis center was appropriate for failure to intervene in resident assault or to enforce discipline in violation of center policies, where Appellant had received past counseling for failure to handle an assault properly and two reprimands for other violations. In re O’Meallie, CSA 92-09, 6-7 (6/18/10).

A lesser discipline than dismissal would have been unlikely to correct appellant’s offending behaviors where he denied he made an offensive public announcement about a co-worker, then attempted to subvert the investigation into his actions. In re Carter, CSA 87-09, 9-10 (2/17/10).

In termination cases, deciding officials must conclude no lesser discipline would achieve the desired behavior or performance. In re Morgan, CSA 63-08, 18 (4/6/09).

Termination was proper, despite no previous discipline, where appellant's intentional absences on every scheduled Saturday for seven months, coupled with his refusal to work future Saturdays, particularly when the agency was temporarily short staffed, negatively impacted the use of overtime, employee morale, and scheduling. In re Morgan, CSA 63-08, 18 (4/6/09).

When an employee’s violations of a Career Service Rule are egregious, even an exemplary work history may not protect the employee from dismissal. In re Sawyer & Sproul, CSA 33-08 & 34-08, 17 (1/27/09). 

Termination was proper where agency’s thorough investigation into its allegations of theft and absenteeism against appellant established his long-standing pattern of ignoring agency rules; and appellant continued to deny wrongdoing, making it unlikely a fifth suspension would correct the same inappropriate behavior. In re Galindo, CSA 39-08, 13 (9/5/08).

Dismissal was appropriate penalty where appellant’s actions violated the very mission of her agency, and she continued to deny wrongdoing, thus suggesting a lesser penalty would not correct the inappropriate behavior. In re Abdi, CSA 63-07, 32 (2/19/08).

Termination of deputy sheriff for dishonesty and playing cards while guarding felony inmates was reasonably related to offense when deputy had been disciplined every year since his hire, had just returned from a substantial suspension for dishonesty, and continued to deny any wrongdoing. In re Simpleman, CSA 31-06, 10-11 (10/20/06), affirmed In re Simpleman, CSB 31-06 (8/2/07).

Termination for dissemination of a vulgar e-mail was within the range of reasonable alternatives available to the agency where appellant had two suspensions and a written reprimand during the past year. In re Garcia, CSA 175-04, 9 (7/12/05).

SUSPENSION

One-day suspension was appropriate where appellant neglected duty to forward request for accommodation for four months, and had one prior written reprimand, despite being a valuable employee with good work reviews. In re Trujillo, CSA 53-13, 6 (4/14/14).

Eight-day suspension was a reasonable penalty for employee who disobeyed a direct order, and had three previous disciplinary actions including a five-day suspension the same year for disobeying a direct order. In re Macieyovski, CSA 55-13, 5 (4/1/14).

Thirty-day suspension struck a proper balance where appellant was a long-term employee with no prior discipline, did not commit the most serious violations alleged, but did engage in unprofessional conduct. In re Gutierrez, CSB 65-11, 5 (4/4/13). 

Thirty-day suspension was sufficiently severe so as not to deprecate the seriousness of the misconduct and to ensure appellant will act more professionally. In re Gutierrez, CSB 65-11, 5 (4/4/13). 

Fifty-day suspension was appropriate for deputy who violated agency policy by creating a courtroom emergency by wearing his uniform and gun to his child support hearing, and was dishonest about the circumstances of the incident, but his exemplary work ethic, performance, and lack of prior discipline mitigated against termination. In re Strauch, CSA 37-11, 9-10 (12/20/11).  

Two–week suspension was within the reasonable range of discipline that could be imposed on an animal control officer who had no prior discipline, but was careless, and abused a member of the public with whom he failed to maintain a satisfactory relationship. In re Gonzales, CSA 42-10, 8-9 (12/30/10).    

Five-day suspension was appropriate where judicial assistant was careless and violated two performance standards. She had already been disciplined seven times, including two suspensions for gross negligence or willful neglect of duty, and a suspension for failing to comply with orders, and she failed to establish that her errors were caused by lack of training opportunities. In re Roberts, CSA 40-10 & 48-10, 13 (11/15/10).   

Fifteen-day suspension was consistent with the purpose of discipline where judicial assistant made four mistakes in the month following a five-day suspension for the same conduct, and harmed her relationship with her supervisor by angrily confronting her in front of a customer. In re Roberts, CSA 40-10 & 48-10, 13 (11/15/10).   

Five-day suspension was appropriate discipline where call-center agent mistreated an angry caller, was tardy and absent from her desk on multiple occasions, and had received verbal and written reprimands and a three-day suspension for misconduct and previous violations of attendance policies, although her previous performance was mostly satisfactory or better. In re Jackson, CSA 39-10, 11 (10/7/10).     

Forty-hour suspension was appropriate discipline to correct employee’s behavior, where employee threatened and failed to maintain a satisfactory relationship with members of the public, had an extended probation period due to interpersonal communication issues, and recently received a verbal warning for negative interaction with a customer. In re D’Ambrosio, CSA 98-09, 10 (5/7/10).     

Twenty-day suspension was proper where appellant was disrespectful towards a co-worker, willfully violated lawful orders, and had past record replete with refusals of direct orders. In re Owens, CSA 69-08, 8 (2/6/09), citing In re Mounjim, CSA 87-07, 18 (7/10/08).

Three-day suspension for two unauthorized absences affirmed where appellant violated agency attendance policies that allowed discipline for two absences per year, appellant was disciplined for same reason previously, and appellant's absences created hardship on co-workers and agency. In re Turner, CSA 76-08, 9 (1/16/09).

Three-day suspension was appropriate where appellant was careless and violated performance standards of communications plan in failing to communicate with his supervisor despite three reprimands within six months for similar violations, and appellant’s testimony showed that he denied violating his communications plan. In re Hill, CSA 69-07, 7 (1/23/08).

Thirty-day suspension was proper where appellant escalated a mere teasing into a physical confrontation resulting in injuries to co-worker, despite appellant’s clear disciplinary record and positive reports from supervisors. In re Delmonico, CSA 53-06, 8 (10/26/06).

Deputy sheriff’s forty-five-day suspension for dishonesty and playing cards while guarding felony inmates was reasonably related to offense when deputy had been disciplined for dishonesty on two other occasions, and denied his wrongdoing. In re Martinez, CSA 30-06, 9 (10/3/06).

Given appellant’s extensive previous discipline for almost identical violations, four-week suspension was within range of discipline that could be imposed by a reasonable administrator. In re Diaz, CSA 13-06, 7-8 (5/31/06).

Thirty-day suspension was within range of reasonable alternatives for deputy sheriff sleeping while on duty. In re Simpleman, CSA 05-06, 9 (5/16/06).

Thirty-day suspension was reasonable penalty for deputy sheriff who intercepted two inmate grievances and delivered insulting responses to the inmates, given his lack of previous discipline in eight years of service. In re Gonzales, CSA 07-06, 8 (5/4/06).

Ten-hour suspension was appropriate for appellant falsely claiming one day’s sick leave, given her good work history and lack of previous discipline for dishonesty. In re Clayton, CSA 128-05, 6-7 (3/21/06).

Five-day suspension was appropriate for unauthorized absences after employee received ample notice of the seriousness of her absenteeism in the form of stricter attendance expectations, and previous discipline for same misconduct. In re Edwards, CSA 21-05, 7-zz8 (2/22/06).

Two-week suspension was appropriate when previous discipline including shorter suspension did not correct similar past behavior and performance deficiencies. In re Diaz, CSA 92-05, 11 (1/31/06).

One-day suspension was well within range of reasonable alternatives for performance mistakes and attendance violations that continued despite previous discipline for the same misconduct. In re Diaz, CSA 45-05, 10 (9/7/05).

MODIFIED

Four-day suspension reduced to written reprimand where appellant attempted, although imperfectly, to comply with orders, because he learned from his mistake and he appears unlikely to repeat any similar conduct. In re Shelley & Martinez, CSB 30-13 & 32-13, 3 (12/9/14).

The hearing officer deprecated the seriousness of the offenses that were proven in giving weight to factors the manager did not consider in imposing the penalty. In re Economakos, CSB 28-13, 3 (3/24/14). 

Where the most egregious sexual harassment violations against appellant were not proven, seventy-five-day suspension was excessive in view of his clear disciplinary history. In re Gutierrez, CSA 65-11, 16-17 (8/28/12). 

Termination modified to a five-day suspension where the agency proved only four of fourteen alleged violations, none of the four violations was egregious; appellant’s previous discipline was minor; and Appellant could correct those communication issues for which she was disciplined. In re Leslie, CSA 10-11, 19-21 (12/5/11). 

Termination modified to five-day suspension where Agency’s assessment that appellant exhibited a persistent pattern of similar misbehavior was not justified by her record which was included only one older, prior incident. In re Leslie, CSA 10-11, 20 (12/5/11).

A separate penalty hearing is appropriate to complete a de novo determination on the appropriateness of the penalty imposed, where the Agency terminated employee but established that he violated only three out of ten rules asserted in the disciplinary letter, inexplicably gave substantially different penalties to the parties for their roles in the same incident, and failed to read twenty witness statements asserting that employee was not the aggressor in the incident, and the employee had no previous disciplinary history. In re Cotton, CSA 104-09, 13 (10/18/10).  

Termination was not substantially conceived to correct performance failures where failures were substantially mitigated by lack of training, complexity of tasks, changes in staff and agency structure, unresolved communication issues, and more lenient treatment of other employees based on the same wrongdoing. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 43-44 (5/30/08).

Termination was not narrowly tailored to correct the behavior, nor reasonably related to the seriousness of the offense, and did not take into account appellant's past record, where appellant playfully slapped her co-worker harder than she intended during a friendly conversation, causing temporary pain, requiring modification of penalty to a one-day suspension. In re Freeman, CSA 40-04 & 75-04, 10 (3/3/05).


16-42: Progressive Discipline (Former 16-50)

IN GENERAL

Dismissal was not within the range of alternatives available to a reasonable and prudent administrator, was not supported by the evidence, and was clearly erroneous, where agency proved only two minor violations, appellant’s work reviews were all exceeds or meets expectations, she acknowledged and committed to change for her prior, unrelated violation, and agency did not show appellant would be unlikely to reform her behavior. In re Schofield, CSA 08-17, 18 (10/9/17).

Fourteen-day suspension for falling asleep while armed and guarding a dangerous prisoner in an unsecured hospital room was not excessive despite lesser discipline given to deputies sleeping in a secured setting. In re Andrews, CSA 16-17, 4 (8/1/17).

Where deputy with past discipline used inappropriate force right after being warned against it by his partner, and was deceptive in three material matters during the investigation, Agency reasonably imposed dismissal rather than a mitigated penalty despite the deputy’s long and successful career. In re Turner, CSA 01-17, 10-11 (6/26/17).

Ten-day suspension for pulling inmate’s hair was not arbitrary and did not set improper precedent since it was a reasoned decision based on the unique facts of the case and an individualized application of the principles embodied in the agency’s disciplinary matrix. In re Romero, CSB 28-16, 2-3 (6/15/17).

Five-day suspension was clearly erroneous and not within the range of alternatives available to a reasonable administrator, where only violation proven of several alleged was a deadline missed by three days, no harm resulted, appellant was remorseful, and she immediately corrected error. In re Lee, CSA 70-16, 6 (3/3/17).

Dismissal was reasonable where manager displayed the same disrespectful behavior for which she was previously counseled, and subordinates reacted in a strongly negative manner to her verbal abuse, favoritism, and inappropriate physical contact. In re Fresquez, CSA 63-16, 9 (2/24/17).

$3 per hour reduction in pay for six pay periods was well-suited to the violations of issuing late and erroneous subpoenas which caused the dismissal of a child abuse case, but appellant had favorable long-term record, and errors did not recur subsequently due to appellant’s increased care in issuing subpoenas. In re McKisson, CSA 69-16, 4-5 (1/31/17).

Seven-day suspension for erroneous release of prisoner was supported by past discipline for a prior erroneous release, and negative effect of the misconduct. Deputy’s positive employment history did  not mitigate the penalty. In re Espinoza, CSA 14-16, 7 (7/27/16).

The Career Service Rules do not require that formal discipline must be imposed before a previous event may be considered as relevant to an appropriate penalty. In re Espinoza, CSA 14-16, 8 (7/27/16).

CSB may increase punishment beyond that assessed by agency when an appellant falsely pled contrition to appointing authority to obtain mitigated discipline, then disavowed that plea at hearing. In re Espinoza, CSB 42-15, 4 (7/27/16).

Lengthy internal investigation is not a factor in mitigation of a penalty where the deputy presented no evidence he was prejudiced by that delay. In re Espinoza, 14-16, 8 CSA (7/27/16).

“Consistent discipline” under Sheriff’s Dept disciplinary matrix does not require “identical discipline.” In re Espinoza, CSB 42-15, n.5 (7/21/16).  

The Ford decision was never intended to and does not create a strict comparative discipline system in the sheriff department, but warns arbitrarily imposed discipline will not be tolerated. In re Romero, CSB 28-16, 2 (6/15/17), citing In re Ford, CSB 48-14 (12/17/15).

Fact that prior discipline for same offense was too lenient does not establish that current discipline is excessive as record reflects sufficient, reasonable, and articulated justification for discipline. In re Romero, CSB 28-16, 2 (6/15/17).

In determining level of penalty, employee's past violation of the same rule may be considered as a factor aggravating the seriousness of the current violation. In re Clayton, CSA 111-09, 8 (4/6/10).

Progressive discipline is not required in aggravated cases, particularly where a lesser penalty is unlikely to achieve compliance. In re Abdi, CSA 63-07, 32 (2/19/08).

FOUND  

Ten-day suspension was reasonable where female supervisor tricked a male subordinate into kissing her in front of a security camera, doubled down a week later by showing him a photo of the kiss, and expressed no remorse until her conduct was reported to her managers. In re Novitch, CSB 49-15, n12 (9/15/16).

Ten-day suspension was reasonable for sexual harassment that was thoughtless, unprofessional, and antithetical to the city’s policies intended to ensure a workplace free of discrimination and harassment. In re Novitch, CSB 49-15, 2 (9/15/16).

Dismissal was reasonable where agency followed progressive discipline, appellant had recent suspensions, and appellant did not correct bad behavior after agency did all it could to coach, correct and encourage appellant. In re Macieyovski, CSA 28-14, 8 (10/13/14).

Five-day suspension was reasonable for appellant who left his assignment early and sent a customer back to the waiting area, after he had received a one-day suspension for inadequate service five weeks earlier and had been counseled seven times for the same issue. In re Vega, CSA 12-14, 4-5 (7/3/14).

Termination was consistent with principles of progressive discipline, where Appellant continued to exhibit intimidating and hostile behavior towards co-workers, even after he was suspended for five days for such conduct a year prior,  given a second chance, counseled by his supervisor repeatedly on professionalism, and he failed to accept responsibility for his actions. In re Weiss, CSA 68-10, 11-13 (2/14/11).   

Fifteen-day suspension was consistent with the purpose of discipline where judicial assistant made five mistakes in the month following a five-day suspension for the same conduct, harmed her relationship with her supervisor by angrily confronting her in front of a customer, and she had seven previous disciplinary actions. In re Roberts, CSA 40-10 & 48-10, 13 (11/15/10).   

Although employee was highly-rated and dedicated with only a prior verbal reprimand, dismissal was appropriate where employee disobeyed two direct orders and failed to meet performance standards, adversely affecting her assigned projects and relationships with team members, and prior counseling, mentoring sessions, warnings, an improvement plan, and extensive remedial training to reinforce standards over a five-month period did not correct her behavior or belief that she had done nothing wrong, indicating that lesser discipline would not alter her behavior. In re Harrison, CSA 55-07, 89-07 & 90-07, 57-8 (6/17/10).   

Forty-hour suspension was appropriate progressive discipline to correct employee’s behavior where employee threatened and failed to maintain a satisfactory relationship with members of the public, had an extended probation period due to interpersonal communication issues, and was recently issued a verbal warning for another negative interaction with a customer. In re D’Ambrosio, CSA 98-09, 10 (5/7/10). 

Thirty-day suspension comports with the principles of progressive discipline where appellant’s prior discipline for dishonesty failed to deter her subsequent dishonest claim for overtime. In re Clayton, CSA 111-09, 8 (4/6/10).

Dismissal was not excessive where decision-maker gave employees ample warning, notice of their violations, and opportunity to come into compliance, and they willfully refused to do so. In re Sawyer & Sproul, CSA 33-08 & 34-08, 18 (1/27/09). 

Two-day suspension for four attendance violations and angry confrontations with payroll clerk where appellant had prior discipline for attendance issues and negative interactions with coworkers and a number of remedial measures were taken to assist appellant in improving in these areas. In re Williams, CSA 53-08, 6 (12/19/08). 

Termination was appropriate where agency concluded theft and absenteeism were a continuation of long-standing pattern of behavior ignoring agency rules. In re Galindo, CSA 39-08, 13 (9/5/08).

Appellant’s continued denial of wrongdoing renders it unlikely that a fifth suspension would correct the same inappropriate behavior for which he had received previous reprimands and suspensions over the course of twenty-three years. In re Galindo, CSA 39-08, 13 (9/5/08).

Deputy’s admission of a basis for criminal charge of soliciting a prostitute, and resulting compromise of his duties, constitute a violation severe enough to preclude progressive discipline and justify dismissal, despite lack of prior discipline and satisfactory performance reviews. In re Griffith, CSA 41-08, 5 (8/14/08).

Four-day suspension was appropriate for second violation for misuse of work time by paralegal when verbal reprimand for similar offense two months before did not achieve the desired compliance. In re Blan, CSA 40-08, 6-7 (7/31/08).

Employee’s failure to correct behavior after previous discipline may be considered in determining the appropriate penalty for later offenses. In re Feltes, CSA 50-06, 7 (11/24/06).

Termination was appropriate for premeditated pattern of false statements in attempt to cover up payroll clerk’s dishonesty after past discipline, resulting in minor financial impact on city. In re Feltes, CSA 50-06, 7 (11/24/06).

Termination of deputy sheriff with long history of discipline who continued to deny wrongdoing was reasonable under rule. In re Simpleman, CSA 31-06, 10-11 (10/20/06), affirmed In re Simpleman, CSB 31-06 (8/2/07).

Three-day suspension based upon appellant's repeated requests of a co-worker to log her into her time records was justified by the severity and frequency of the misconduct, and its adverse effect on a co-worker, and is not double punishment for her misconduct which affected her Performance Enhancement Program Report negatively. In re Roberts, CSA 179-04, 6-7 (6/29/05).

Termination was justified based on employee's responsibility for assault on supervisor after two lengthy suspensions for similar acts. In re Moreno, CSA 138-04, 9 (5/25/05).

Five-day suspension was consistent with the purposes of progressive discipline despite appellant's lack of previous discipline where appellant exhibited pattern of behavior over three months of disregard of the rules she disagreed with and criticism of her supervisor in front of his staff and manager. In re Lucero, CSA 162-04, 12 (4/15/05).

Ten-day suspension was justified for appellant's sleeping on the job based upon similar offense one month before the incident, and five disciplinary actions within the previous ten months. Appellant’s behavior, which he argued was involuntary based on a medical condition, was determined to be voluntary based on his moonlighting another nearly full-time job. In re Owens, CSA 139-04, 8 (3/31/05).

Agency reasonably concluded that progressive discipline required the imposition of a more severe penalty, given the fact that less severe discipline had not corrected the behavior. In re Owens, CSA 139-04, 8 (3/31/05).

Termination was reasonable for violation of Executive Order 112 two months after similar incident. In re Katros, CSA 129-04, 11 (3/16/05).

Termination was justified despite lack of prior discipline and excellent past performance when appellant was absent two months beyond the expiration of his authorized leave and more than six weeks beyond his requested extension of that leave. In re Kinfe, CSA 161-04, 7 (3/16/05).

Recent similar violation, expression of intense hatred toward co-worker, and appellant's public role within the agency aggravated the seriousness of incident to justify a three-day suspension. In re Routa, CSA 123-04, 6 (1/27/05).

NOT FOUND  

Reduction of ten-day suspension to written reprimand deprecated the seriousness of the misconduct of a manager who tricked a subordinate into kissing her, and would send the wrong message regarding the city’s dedication to maintain a work environment safe for all and free of unwanted misconduct. In re Novitch, CSB 49-15, 4 (9/15/16).

Four-day suspension reduced to written reprimand where appellant attempted, although imperfectly, to comply with orders, because he learned from his mistake and would be unlikely to repeat any similar misconduct. In re Shelley & Martinez, CSB 30-13 & 32-13, 3 (12/9/14).

While most severe allegations of sexual harassment were not proven, and therefore did not justify a seventy-five-day suspension, appellant’s somewhat questionable commitment to reform justified a thirty-day suspension. In re Gutierrez, CSA 65-11, 17 (8/28/12).  

Modification from termination to five-day suspension appropriate where Agency only proved four out of fourteen alleged violations, none of which was egregious; appellant’s disciplinary history was minor; and appellant was effective; but her sarcasm with co-workers persisted in an environment where effective communication is critical. In re Leslie, CSA 10-11, 20-21 (12/5/11).   

Appellant’s failure to rein in her condescending communication when she perceived someone to be in error was significant and deserving of progressive discipline, but not termination. In re Leslie, CSA 10-11, 20 (12/5/11). 

Twenty-day suspension for three relatively minor violations of city breaks and lunch policy after fourteen and sixteen years of employment without discipline is excessive in light of written reprimand of another employee from the same team with same disciplinary history for being in restaurant for over thirty minutes and reporting it as work time. In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-08, 20 (12/15/08). 

Termination was inappropriate where agency failed to prove the most serious charges, and it had based the termination on its conclusion that appellant was incapable of changing his behavior, despite his apology and previous improvements after criticism. In re Sienkiewicz, CSA 10-08, 17 (7/14/08).

One-week suspension, rather than termination was appropriate penalty where agency proved appellant failed to meet performance standard by not communicating important information to co-worker, but mitigation included lack of disciplinary record, positive past performance and appellant’s  demonstrated willingness to improve his performance. In re Sienkiewicz, CSA 10-08, 18 (7/14/08).

Termination was inappropriate based on one minor unintentional violation of policy where appellant performed satisfactorily in position for eighteen years with only one written reprimand which acknowledged improvements she made and that she met job requirements. In re Mounjim, CSA 87-07, 19 (7/10/08).

16-45: Procedure for Dismissal

It is every employee’s responsibility to update his or her residence address, mailing address and phone number to reflect current information in the city’s personnel records. In re Kemp, CSA 61-08, 2 (Order 9/17/08).

Appeal was untimely when filed two days after the fifteen-day deadline. In re Kemp, CSA 61-08, 2 (Order 9/17/08).

16-46: Contemplation of Discipline (Former 16-40)

IN GENERAL

The right to a post-termination hearing limits an employee’s pre-termination due process rights to a notice of the charges, a recitation of the employer’s evidence, and an opportunity to be heard.  In re Mounjim, CSB 87-07, 7-8 (1/8/09). citing Cleveland Board Education v. Loudermill, 470 U.S. 532, 546 (1985).

A voluminous recitation of facts which support each rule violation is not required in an agency’s pre-disciplinary letter.  In re Mounjim, CSB 87-07, 7 (1/8/09) [Modified - The agency must specify conduct which violated each cited CSR. CSR 16-46 E.2].

NOT FOUND

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, CSB 19-13, 4 (7/28/14).

Failure to reset meeting with supervisor to discuss incident underlying discipline, cancelled at appellant’s request, did not deny opportunity to correct any errors and to be heard in explanation or mitigation during subsequent pre-disciplinary meeting. In re Weiss, CSA 68-10, 7 (2/14/11). 

Repeated pre-disciplinary procedure 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, CSA 81-10 (Order 1/19/11).

Pre-disciplinary meeting held by phone from employee's jail cell did not violate Career Service Rules or HIPAA, a federal law protecting the privacy of medical records, since HIPAA does not provide a remedy to individuals, and inmates lose some of their privacy rights.  In re Carrillo, CSA 95-09, 6 (3/16/10).

Agency had no notice of employee's request to continue the pre-disciplinary meeting where she made the request to a jailor and not a member of the agency.  In re Carrillo, CSA 95-09, 7 (3/16/10).

Appellants were not denied notice of the claims against them under this rule where agency claims were not unduly complex, voluminous, or otherwise unclear, and it sent letters of contemplation of discipline well in advance of the pre-disciplinary meetings.  In re Sawyer & Sproul, CSA 33-08 & 34-08, 16 (1/27/09). 

Agency must identify, at the pre-disciplinary stage, what facts it relied on to establish a rule violation so the employee has an opportunity to respond meaningfully to the allegations. Evidence establishing a violation may not be raised for the first time at hearing In re Mounjim, CSA 87-07, 5 (7/10/08).

The requirements of a fair hearing include notice of the claims and an opportunity to address them. Broad, unspecified statements - generic notice - are no notice at all. In re Mounjim, CSA 87-07, 15 (7/10/08), citing Shaw v. Valdez, 819 F.2d 965 (10th Cir. 1987).

Agency’s dismissal letter did not cite incident on which its decision was substantially based, rendering its decision unjustified. In re Mounjim, CSA 87-07, 18-19 (7/10/08).

Agency's decision to change the locks during Appellant’s investigatory leave did not affect Appellant's ability to participate in the pre-disciplinary process.  In re Smith, CSA 17-05, 9 (7/07/05).

Agency's delivery of disciplinary letters to appellant's stale address was harmless error since Appellant provided no way for agency to notify him. In re Kinfe, CSA 161-04, 4 (3/16/05) (decided under former 16-30), citing Loudermill v. Cleveland Board of Education, 470 U.S. 532 (1985). 


16-48: Disciplinary Action Following Pre-Disciplinary Meeting

Disciplinary notices must be in writing and must be served on the employee.  In re Webster,  CSA 03-11, 1 (Order 1/14/11). 

 

Rule 18:  Dispute Resolution

18:30:  GRIEVANCE (Former 18-10)

Complaints of discrimination, harassment or retaliation should not be brought through a grievance under CSR 18-30, but through a formal complaint, although either provides sufficient notice of claims. In re Gallo, CSB 63-09, 1 (3/17/11).

Under 19-10 B.2.a, employee may appeal agency's failure to address a grievance, which operated as a formal complaint of sexual/racial harassment under CSR 15. In re Gallo, CSB 63-09, 3 (3/17/11).

While an employee may grieve any work review (PEPR) rating, only an “unacceptable” [now only a “failing”]  may be directly appealed to the Hearing Office. In re Muhammad, CSA 06-11 (Order 2/8/11), citing CSR 19-20.B.1.b.   

Where agency denied appellant’s grievance of a PEPR rating, appellant must establish the rating negatively affected pay, benefits or status 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 13-39 C (decided under former 13-50 C).

Career Service Hearing Office lacks jurisdiction to consider appellant’s appeal from agency denial of grievance of “successful” PEPR rating and also as appellant did not allege his pay, benefits or status were affected. In re Muhammad, CSA 06-11 (Order 2/8/11).

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

Appellant’s 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 treated the issue as an appealable grievance. In re Anderson, CSA 102-09, 2 (Order 1/8/10).

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

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

An employee may grieve a written reprimand, but may not appeal the unfavorable disposition of the grievance, which is exempted from the jurisdiction of the Career Service Hearing Office. In re Black, CSA 16-09 (Order 3/12/09).

The CSB has excluded written reprimands from Career Service Hearing Office jurisdiction. In re Black, CSA 16-09 (Order 3/12/09).

CSRs provide hearing officers with jurisdiction over grievances to which an agency has failed to respond. In re Luft, CSB 43-08 (12/12/08). 

Implicit within the CSRs is the grant of authority to the hearing officer to order an agency to respond to an employee’s grievance. In re Luft, CSB 43-08 (12/12/08). 

CSRs’ 2006 amendments clarify that an applicant may no longer grieve a determination by the personnel director or designee that she is unqualified for a promotion. In re Connors, CSA 35-06, 3 (Order 8/9/06).

While any performance rating may be challenged through a grievance, only those grievance denials that negatively affect pay, benefits, or status may be appealed. In re Stenke, CSA 14-06, 1 (Order 3/15/06). 

Hearing officer is without jurisdiction of appellant’s appeal of a “below expectations” PEPR rating where appellant did not first grieve that evaluation. In re Pfeffer, CSA 134-05 (Order 1/23/06) (decided under former CSR 18-12).

Appellant filed untimely grievance where agency notified him of its failure to give him pay increase for serving in acting capacity in higher job classification in his next paycheck thereafter but he did not file grievance for over three years. In re Gibbons, CSA 49-05 (Order 8/17/05) (decided under former CSR 18-12). 

Appellant’s notice of adverse agency action was proven by his request for pay increase for higher job classification three times after receiving paycheck without pay increase. In re Gibbons, CSA 49-05 (Order 8/17/05) (decided under former CSR 18-12).

Appellant’s failure to timely file his grievance of his allegedly retaliatory “meets expectations” PEPR deprives the hearing officer of jurisdiction to hear the retaliation claim, and “meets expectations” ratings are not appealable. In re Schultz, CSA 78-05, 1-2 (Order 8/15/05) (decided under former CSRs 18-12, 19-10).

Appellant filed untimely grievance over five months after action giving rise to it, depriving hearing officer of jurisdiction over appeal of it. In re Mullen, CSA 72-05 (Order 8/9/05) (decided under former CSR 18-12).

Rule 19:  Appeals

19-20: Actions Subject to Appeal (Former 19-10)

See also Subject:  Jurisdiction

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).

Cause of action 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 P.3d 604 (Colo. 2005).

Doctrine of claim preclusion (res judicata) bars later actions based on the same cause of action, thus where appellant withdrew appeal of failure to hire due to discrimination, he waived his right to challenge the same discrimination claim as the cause of his layoff. In re Cho, CSA 01-09, 3 (Order 1/21/09).

Appeal of second termination is moot where appellant failed to file a remedial writ in district court to challenge CSB’s reinstatement of first termination, which has become final. In re Sample, CSA 55-08 (Order 1/7/09).

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 appellant cannot prove the facts as he alleges them would entitle him to relief. In re Muller, CSA 48-08 (Order 7/24/08), citing Dorman v. Petrol Aspen, Inc., 914 P.2d 909, 911 (Colo. App. 1996).

CSR 19-20 sets forth the types of matters over which the hearing office has jurisdiction. If the matter complained of is not one of the subjects listed within the rule, the hearing officer lacks jurisdiction to consider the merits of the appeal. In re Luft, CSA 80-07 (Order 6/13/08).

 

19-20 A: Appeal of Discrimination, Harassment, Retaliation (Former 19-10 A.2.iii)

RETALIATION

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, CSB 63-09, 3-4 (3/17/11).

Employee’s belief that an agency action was adverse, alone, is insufficient to demonstrate a reasonable employee would have found the action adverse. In re Gallo, CSB 63-09, 4 (3/17/11).

Appellant failed to prove that transfer was motivated by retaliation where no one asked supervisor if he knew of appellant's protected activity, and there is no evidence in the record inferring such knowledge. In re Gallo, CSB 63-09, 4 (3/17/11).

Appellant has burden of proof in a retaliation claim to prove that action was retaliatory. In re Gallo, CSB 63-09, 3 (3/17/11).

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, CSB 63-09, 3 (3/17/11), citing Montes v. Vail Clinic, Inc., 497 F.3d 1160, 1176 (10th Cir. 2007).

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 CSA 63-09, 3 (8/27/10), affirmed. In re Gallo, CSB 63-09, 4 (3/17/11).

Appellant must first prove the new supervisor who transferred her knew about or deferred to the alleged discriminatory statements made by the former supervisor in order to prove the transfer would dissuade a reasonable person from engaging in a protected activity. In re Gallo, CSA 63-09, 3-4 (8/27/10), affirmed, In re Gallo, CSB 63-09, 4 (3/17/11) citing Hinds v. Sprint/United Mgmt., 523 F.3d 1187, 1203 (10th Cir. 2008). 

New supervisor was motivated to transfer deputy by his determination to rebuild jail units according to his mission, not in retaliation for deputy's protected activity. In re Gallo, CSA 63-09, 4 (8/27/10), affirmed In re Gallo, CSB 63-09, 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 a transfer to an objectively less desirable position. In re Gallo, CSA 63-09, 4, n.1 (8/27/10); citing Burlington Northern & Santa Fe Ry. v. White, 126 S.Ct. 2405 (U.S. 2006).

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).

Retaliation claim not established where appellant failed to explain why placement of grievance response in her personnel file was a negative action which would discourage protected activity. In re Rems, 31-10, 2 (Order 5/12/10).

The agency’s alleged retaliation against appellant in 2003 is too remote from her discipline of a subordinate in 1999 to establish causation. In re Redacted, CSA 190-03, 9 (2/13/06).

Appellant did not establish link needed to prove that the Agency’s 2003 discipline of her was in retaliation for her 1999 discipline of another employee, where appellant’s supervisor was different in 1999. In re Redacted, CSA 190-03, 9 (2/13/06).

Hearing officer does not have jurisdiction over whistle-blower claim under CRS 24-10-109 where appellant did not take any action that would have activated whistle-blower protection. In re Garcia, CSA 175-04, 6 (7/12/05) (decided under former CSR 19-10 c).

19-20 A.1: Direct Appeals (Former 19-10 A.1)

A resignation is presumed voluntary. In re Smith, CSB 14-10, 1 (11/4/10).

Employer’s past willingness to relent does not transmogrify an employee’s present clear and unambiguous expression of intent to quit into an ambiguous expression. In re Smith, CSB 14-10, 2 (11/4/10).

Pre-disciplinary letter, which is not an adverse action, does not convey jurisdiction to hear whistleblower appeal. In re Thomas, CSA 13-10 (Order 3/15/10).

Where appellant had just been warned by his supervisor that, if he threatened to quit again, his resignation would be accepted, appellant’s subsequent utterance “I quit” expressed clear intent which was properly accepted by agency. In re Augustine, CSB 05-09 (9/30/09) is distinguished because that agency interfered with appellant’s freedom of choice to resign, whereas here, the agency did nothing to interfere with appellant’s choice. In re Smith, CSB 14-10, 2 (11/4/10).

Appeal of terminated probationary employee who failed to identify the protected activity alleged to be the basis of whistleblower and retaliation claims must be dismissed. In re Mora, CSA 125-08, 2 (Order 11/28/08).

Appellant’s act of scheduling a meeting with management to discuss his situation does not assert a protected activity as required to assert a retaliation claim. In re Mora, CSA 125-08 (Order 11/28/08). 

This Rule does not provide for a direct appeal of the amount of accrued vacation leave and compensatory time. In re Lovin, CSA 27-06, 1 (Order 5/18/06) (decided under former CSR 19-10 A).

A direct appeal may 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, CSA 27-06, 1 (Order 5/18/06) (decided under former CSR 19-10 A).

Direct appeal was not available to challenge city auditor’s determination of amount of separated employee’s accrued leave, as auditor was not employee’s appointing authority. In re Lovin, CSA 27-06, 1-2 (Order 5/18/06) (decided under former CSR 19-10 A).

This Rule does not provide for a direct appeal of denial of equipment differential pay. In re Chavez, CSA 09-06 (Order 3/6/06) (decided under former CSR 19-10 A).

This Rule does not provide for a direct appeal of a personnel action alleged to be analogous to a demotion. In re Lovin, CSA 08-06, 1 (Order 3/1/06) (decided under former CSR 19-10 A).

The term adverse action is interpreted more liberally under the Career Service Rules than under civil rights laws. In re Lovin, CSA 08-06, 1 (Order 3/1/06) (decided under former CSR 19-10 A); see also In re Gallo, CSB 63-09, 4 (3/17/11); In re Koonce, CSB 36-13, 2 (10/16/14).

Where required commercial driver’s license was revoked, fact that the revocation may have been caused by his brother’s identity theft is irrelevant to disqualification. In re Tunson, CSA 58-05 (Order 8/29/05).

Hearing officer has jurisdiction over an appeal of an action in lieu of lay-off. In re Romberger, CSA 89-04, 5 (3/2/05) (decided under former CSR 19-10 b).

19-20 A.1.a: Dismissal (Former 19-10 A.1.a)

Terminated employee who was a career service employee at the time of his termination is entitled to file a direct appeal. In re Abbey, CSA 99-09, 6 (8/9/10), citing CSR 19-10 A.1.a; City Charter 9.1.1.E.(vi); 9.8.2 (A) (decided under former CSR 19-10 b).

19-20 A.1.c: Involuntary Demotion With Attendant Loss of Pay (Former 19-10 A.1.c)

Appellant failed to show her reclassification was an involuntary demotion with attendant loss of pay where it was not initiated through discipline, disqualification, or in lieu of separation during a probationary period. In re Sullivan, CSA 44-08 (Order 6/13/08). 

The hearing office has no jurisdiction over a reclassification, the sole remedy for which is the administrative review contained in CSR 7-40. In re Sullivan, CSA 44-08 (6/13/08).

19-20 A.1.e: Layoff (Former 19-10 A.1.e)

Appellant’s layoff was not arbitrary or capricious where agency abolished position as part of a reorganization that transferred the functions of his position to a different agency, and the qualifications and duties of the positions were substantially different. In re Sanders, CSA 62-09, 5, n.4 (9/24/10), distinguishing In re Hamilton, CSA 100-09 & 107-09, 19 (9/17/10).

A key element in determining whether the duties of a position in a different agency are substantially similar to an abolished position is whether there was a fundamental change to the agency's structure, positions and functions. In re Sanders, CSA 62-09, 5 (9/24/10).

Appellant’s layoff was not arbitrary or capricious where a position transferred to another agency was substantially different in duties and pay. In re Sanders, CSA 62-09, 5 (9/24/10).

Appellant’s layoff was not arbitrary or capricious where the agency abolished position as part of its reorganization, transferring the functions of his position to a different agency, and the chosen candidate scored substantially higher in a blind-scored exam and his qualifications were especially well-suited to the specific needs of the position, while appellant only had some qualifications and experience related to the position. In re Sanders, CSA 62-09, 6 (9/24/10). 

Agency did not violate executive order requiring it to have a safety professional where agency designated an employee from another agency to perform that function, and executive order did not require agency's designee to be on its payroll. In re Sanders, CSA 62-09, 7 (9/24/10); E.O. 65, 5.4. 

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

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

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

Agency decisions, after consideration of relevant facts, to layoff appellant and eliminate non-core functions for structural and economic reasons were reasonable, and therefore not an abuse of discretion. In re Sanders, CSA 62-09, 7-8 (9/24/10).

Agency's decision to hire a candidate other than appellant based on objective criteria, including test score, education and experience, was not an abuse of discretion. In re Sanders, CSA 62-09, 8 (9/24/10).

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

Appellant failed to prove his layoff was arbitrary, capricious, or contrary to rule or law, where the Agency based its decision to abolish twelve positions, including Appellant’s, on conclusions that reasonable persons considering the facts would reach, including its decision to eliminate non-core functions for structural and economic reasons, and it based its decision to hire a candidate for a limited position that made recommendations for City-wide safety needs upon the objective criteria of test score, education, and experience. In re Sanders, CSA 62-09, 7-8 (9/24/10) citing Lawley v. Department of Higher Educ., 36 P.3d 1239, 1252 (Colo. 2001).  

A layoff decision must be upheld unless it is determined to be arbitrary, capricious or contrary to rule or law. In re Hamilton, CSA 100-09 & 107-09, 13 (9/17/10), 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 statutory mandate with a showing that it was arbitrary, capricious, or contrary to rule or law. In re Hamilton, CSA 100-09 & 107-09, 13 (9/17/10), citing Motor Vehicle Mfgrs. Assn. v. State Farm Mut. Ins. Co., 463 U.S. 29, 43, 44, fn. 9 (1983); In re Vasquez & Lewis, CSA 08-09 & 09-09, 4 (5/20/09).

De novo review of layoff requires an analysis of whether the agency made its layoff and hiring decisions after careful consideration of appropriate evidence, and came to reasonable conclusions flowing from that evidence. In re Hamilton, CSA 100-09 & 107-09, 14 (9/17/10).

Agency’s failure to seek re-allocation prior to downgrading a position during layoff is one factor to consider in determining whether the layoff and hiring decisions were arbitrary, capricious or contrary to rule or law. In re Hamilton, CSA 100-09 & 107-09, 17 (9/17/10). 

Agency’s decision to fill replacement jobs by a competitive hiring process diluted the rights of employees selected for layoff to use their layoff status or seniority to obtain an action in lieu of layoff. In re Hamilton, CSA 100-09 & 107-09, 17 (9/17/10). 

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

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

Agency’s failure to consider Appellant’s money-saving and other suggestions in lieu of layoff is relevant to review of the reasonableness of the layoff. In re Hamilton, CSA 100-09 & 107-09, 27 (9/17/10).

Agency based its conclusions on factors reasonable persons fairly considering the evidence could not reach where it failed to diligently procure evidence it was authorized to consider in layoff action, failed to consider the nature of the original and replacement jobs, deviated from layoff rules, and considered interview scores to the exclusion of more relevant factors. In re Hamilton, CSA 100-09 & 107-09, 27 (9/17/10). 

Where the duties and qualifications of a position eliminated by lay-off and a replacement position are the same, a reasonable administrator would consider on-the-job experience as a factor in attempting to fill the replacement position on the bases of merit and ability. In re Hamilton, CSA 100-09 & 107-09, 21 (9/17/10); City Charter 9.1.1.

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

Agency acted in an arbitrary and capricious manner where it used the interview score as the sole factor in selecting for demotions in lieu of lay-off, the interview questions and scoring criteria are unknown, and it failed to consider any other factors relevant to merit and ability. In re Hamilton, CSA 100-09 & 107-09, 22 (9/17/10).

Where layoff decision was intended to be the direct result of accurate calculations from a proficiency test, de novo review requires an analysis of whether the agency implemented that intention by careful consideration of appropriate evidence, and reasonable conclusions flowing from it. In re Owens-Manis & Pettway, 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, CSA 73-09 & 75-09, 14 (3/11/10).

Agency’s failure to calculate performance numbers correctly and derive accurate ranking from them constitutes 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, CSA 73-09 & 75-09, 14 (3/11/10).

Finding that appellant was not one of the three most proficient employees lacked competent evidence to support it where erroneous data was used to rank proficiency. In re Owens-Manis & Pettway, CSA 73-09 & 75-09, 14 (3/11/10).

Agency’s decision not to extend a limited position appointment beyond its stated end date was not a layoff, and therefore was not in violation of Rule 14, which governs separations. In re Martillaro, CSA 42-06, 3 (11/30/06).

Career Service Rules protect career status employees from separation resulting from the abolishment of their position by requiring compliance with 14-40 to 14-49. In re Foley, CSA 19-06, 7 (11/10/06).

An agency layoff decision must be based upon factors that would be relevant to a reasonable person fairly and honestly considering the matter, including the governing laws and rules. In re Foley, CSA 19-06, 12 (11/10/06), citing Lawley v. Dept. of Higher Education, 36 P.3d 1239 (Colo. 2001).

Agency’s failure to consider relevant facts, including budget, funding, job analysis, vacancies, and seniority demonstrates layoff decision was arbitrary and capricious and contrary to layoff rules. In re Foley, CSA 19-06, 13 (11/10/06).

Hearing officer has jurisdiction over the appeal of an action in lieu of layoff pursuant to this rule. In re Romberger, CSA 89-04, 5 (3/2/05) (decided under former CSR 19-10 b).

19-20 A.1.f: Violation of Whistleblower Ordinance (Former 19-10 A.1.f)

Placement of an employee on investigatory leave is withholding of work under the whistleblower ordinance. In re Muller, CSB 48-08, 2 (10/24/08).

When an agency tells an employee not to contact co-workers during investigation of his mismanagement claim, such agency action may be viewed as an indirect form of discipline or penalty within the broad scope of the whistleblower ordinance. In re Muller, CSB 48-08, 2 (10/24/08).

Rule permitting placement of employee on investigatory leave pending an investigation of a possible rule violation or failure to meet performance standards obviously contemplates the placement of the target of the investigation on leave, not the whistleblower. In re Muller, CSB 48-08, n.1 (10/24/08).

Civil rights cases excluding investigatory leave as an “adverse action” are inapplicable to the broader protections for whistleblowers contemplated by the City’s ordinance. In re Muller, CSB 48-08, 2 (10/24/08).

Fact that investigatory leave was not in conformity with investigatory leave rule supports the board's finding that agency's placement of whistleblower on investigatory leave was an adverse employment action. In re Muller, CSB 48-08, 2 (10/24/08).

Whistleblower ordinance definition of adverse employment action is worded to include not only the adverse agency actions specified in it, but also any direct or indirect form of discipline or penalty, or the threat of discipline or penalty. In re Muller, CSA 48-08, 1-2 (Order 7/24/08), citing DRMC 2-107(b).

In the light most favorable to appellant, the agency’s placement of appellant on investigatory leave within minutes of his complaint of mismanagement suggests an adverse action sufficient to constitute a claim for relief under whistleblower ordinance. In re Muller, CSA 48-08 (Order 7/24/08).

19-20 A.2: Appeal by Employee Without Career Status (Former 19-10 B)

Probationary employees may not appeal dismissal except on the grounds of violation of the Whistleblower ordinance. In re Mora, CSA 125-08 (Order 11/28/08). 

Denial of 3.75 hours of time billed by an on-call hearing officer is not the type of employment decision that may be directly appealed under this rule, and does not constitute an adverse employment action. In re Wehmhoefer, CSA 02-08, 3 (Order 2/14/08).

Where no discipline or change in employee status or benefits is imposed, there is no adverse employment action under this rule. In re Wehmhoefer, CSA 02-08, 3 (Order 2/14/08).

An adverse employment action is employer conduct which significantly changes employment status, 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 (Order 2/14/08), citing In re Boden, CSA 86-06, 2 (5/23/07); Burlington Indus., Inc. v. Ellerth, 118 S. Ct. 2257, 2268 (1998). 

19-20 B: Appeals of Grievance (Former 19-10 A.2)

In a 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, CSA 13-17, 2 (6/5/17).

An employee need not prove the equivalent of a federal case to establish retaliation, harassment or discrimination under the Career Service Rules, where protections reach beyond those in federal law. In re Koonce, CSB 36-13, 5 (10/16/14).

A grievance over a transfer that does not impact an employee's pay, benefits or employment status may not be appealed under this rule. In re Gallo, CSB 63-09, 3 (3/17/11). (decided under former CSR 19-10).

An employee may appeal an agency's failure to address a grievance which operated as a formal complaint of sexual/racial harassment under CSR 16. In re Gallo, CSB 63-09, 3 (3/17/11).

Only an “unacceptable” rating may be directly appealed to the Hearing Office. In re Muhammad, CSA 06-11 (Order 2/8/11), citing CSR 19-20(b); CSR 18-40(E)(1). [note: “unacceptable” was “failing” in previous rule; no other rating may be appealed under current rule].

No aspect of the performance review 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” performance review rating. In re Muhammad, CSA 06-11 (Order 2/8/11).

Where grievance was proper format for her allegations, appellant’s filing of a complaint instead of a grievance does not divest Hearings Office of jurisdiction over her appeal, as long as the complaint substantially complied with grievance requirements under CSR 19. In re Anderson, CSA 102-09, 3 (7/20/10).

Hearing office has jurisdiction over appeal where agency denied appellant’s grievance, resulting in an alleged Rule violation and a negative impact on employee’s pay. In re Anderson, CSA 102-09, 3 (7/20/10).

Jurisdiction for a FMLA designation grievance appeal established by agency’s acceptance of FMLA designation from another City agency. In re Anderson, CSA 102-09, 3 (7/20/10).

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

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

Jurisdiction is established by appellant's showing he filed a grievance of an action negatively affecting his pay, benefits or status that was in violation of a rule, Charter provision, executive order or policy. In re Morgan, CSA 63-08, 17 (4/6/09).

Jurisdiction not established where appellant failed to submit a copy of a grievance or a departmental denial of any such grievance. In re Morgan, CSA 63-08, 17 (4/6/09).

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

When a Career Service Rule grants 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 a grievance of the choice. In re Anderson, et al., CSA 78-08 to 124-08, 3 (1/7/09).    

Appeal of grievance regarding denial of pay adjustment is moot as to appellants who then received a pay adjustment under CSR 9-50. In re Anderson, et al., CSA 78-08 to 124-08, 3 (Order 1/7/09).  

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

Implicit within the Career Service Rules is the grant of authority to the hearing officer to order an agency to respond to an employee’s grievance. In re Luft, CSB 43-08 (12/12/08).

An agency’s failure to respond to an appellant’s grievance is governed by this rule. In re Luft, CSA 80-07 (Order 6/13/08). 

Agency’s participation in mediation subsequent to an employee’s grievance constitutes a response to the grievance. In re Luft, CSA 80-07, 2 (Order 6/13/08).

A written reprimand may not be appealed. In re Valdez, CSA 96-06 (Order 11/16/06) (decided under former CSR 19-10 B.2.e).

Agency’s determination that appellant was not qualified for an acting supervisor position had no effect on appellant’s current pay, benefits, or status. In re Magelky, CSA 66-06, 2 (Order 9/22/06).

Appellant’s claim that his pay may be negatively impacted by future agency action does not support an appeal under this rule. In re Magelky, CSA 66-06, 2 (Order 9/22/06).

Appellant’s argument that the written reprimand was unfair and in violation of the Career Service Rules did not establish jurisdiction without a showing that it negatively affected his pay, benefits, or status. In re Macieyovski, CSA 24-06, 2 (Order 5/3/06) (decided under former CSR 19-10 B.2.a).

Retirement was voluntary, thus not appealable, when appellant failed to show that his working conditions were objectively unendurable as viewed by a reasonable person. In re Lewis, CSA 22-06, 3 (Order 5/2/06).

To be appealable, a grievance must both result in an alleged violation of the Career Service Rules and negatively impact the employee’s pay, benefits, or status. In re Lewis, CSA 22-06, 2-3 (Order 5/2/06) (decided under former CSR 19-10 B.2).

While an employee may grieve any performance rating, only those matters that negatively affect pay, benefits, or status may be appealed if the grievance is denied. In re Stenke, CSA 14-06, 1 (Order 3/15/06).

Order to attend remedial training was not disciplinary, therefore denial of grievance based thereon was not appealable as discipline. In re Johnson, CSA 135-05, 3 (Order 3/10/06) (decided under former CSRs 16-10, 16-20, 16-40, 19-10 f).

Where appellant did not grieve denial of differential pay, jurisdiction was not available for her to appeal the denial. In re Chavez, CSA 09-06 (Order 3/6/06) (decided under former 19-10 B.2).

Appellant’s challenge to two hours vacation leave to cover shortage on time sheet was dismissed for failure to state a claim over which hearing office has jurisdiction. In re Schultz, CSA 130-05, 3 (2/27/06).

Appellant’s grievance that failed to give agency meaningful notice and an opportunity to respond to retaliation allegation as required by CSR 16 is not ripe for appeal. In re Mallard, CSA 129-05, 3 (2/23/06), citing In re Douglas, CSA 317-01, 12 (Interlocutory order 3/22/02).

Transfer was not an adverse action that resulted in demotion, change in pay, or substantial alteration of working conditions. In re Conway, CSA 127-05, 2 (2/13/06).

19-20 B.1.a: Rule Violation and Negative Impact (Former 19-10 A.2.b.i)

In a dispute whether appellant met prerequisites for filing a grievance, hearing officer retains jurisdiction to hear grievance appeal. In re Anderson, CSA 102-09, 2 (Order 1/8/10).

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

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

Though no aspect of the PEP is appealable save grievance of a "Needs Improvement" rating, where appellants do not challenge the PEP but rather allege a rule violation that has negatively impacted their pay, appellants have stated a claim for relief under the jurisdictional rules. CSR 13-60 B., 19-20 B.1.a. In re Vasquez & Lewis, CSA 08-09 & 09-09, 2-3 (5/20/09).

Appellants who claim agency action in calculating merit increases violated career service rule and negatively impacted their pay 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, 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).

There is a presumption of validity in administrative actions. In re Vasquez & Lewis, CSA 08-09 & 09-09, 4 (5/20/09).

Appellant failed to demonstrate that the agency’s bid process violated a rule, charter provision, executive order or agency policy and negatively affected pay, benefits or status. In re Luft, CSB 43-08, 2 (12/12/08). 

After agency responded to grievance, hearing officer lacked jurisdiction over subject matter of grievance of agency bidding process, and appeal was properly dismissed. In re Luft, CSB 43-08, 2 (12/12/08).

 

19-20 B.1.b.i: Grievance of Performance Review (Former 19-10 A.2.c)

Overall performance rating has consistently been interpreted as the rating listed on the first page of the PEPR. In re Zacker, CSA 44-10, 1 (Order 7/15/10).

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, CSA 44-10, 1 (Order 7/15/10).  

"Below expectations" PEPR is not appealable. In re Zacker, CSA 44-10, 2 (Order 7/15/10). 

A performance evaluation must be based on the standards and measures in the PEP in order to give an employee notice of the criteria by which performance will be judged, and must weigh employee performance against objective standards and measures, to the extent feasible. In re Harrison, CSA 55-07, 89-07 & 90-07, 43 (6/17/10), citing In re Padilla, CSA 25-06, 10 (9/13/06). 

Lack of signature authority to approve invoices and contract amendments did not unfairly restrict appellant’s ability to perform the duties listed in her PEP. In re Harrison, CSA 55-07, 89-07 & 90-07, 44 (6/17/10).  

Project manager failed obligation to serve as liaison between customer and IT staff when she restricted communication between the two, resulting in confusion, frustration, and project delay. In re Harrison, CSA 55-07, 89-07 & 90-07, 45 (6/17/10).

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, CSA 52-07, 3 (1/3/08), citing In re Leal-McIntyre, 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).

Lower work review rating may be supported by a deficiency in fewer than all critical elements of a job. In re Padilla, CSA 25-06, 11 (9/13/06), citing In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 6 (1/27/05).

Work review rating was arbitrary, capricious, and without rational basis or foundation where deficiencies noted in review were not clearly related to performance standards set in the PEP, review was fraught with mathematical errors and procedural problems, and evidence established supervisor actively disliked appellant. In re Padilla, CSA 25-06, 10-12 (9/13/06), affirmed In re Padilla, CSB 25-06, 3 (2/15/07).

Individual performance evaluations must weigh performance against objective standards to the extent feasible given the job being measured. In re Padilla, CSA 25-06, 10 (9/13/06), citing Cohen v Austin, 861 F. Supp. 340 (E.D. Pa. 1994); affirmed In re Padilla, CSB 25-06 (2/15/07).

Standards and measures set out in an employee’s PEP plan give an employee notice of the criteria by which performance will be judged. In re Padilla, CSA 25-06, 10 (9/13/06), affirmed In re Padilla, CSB 25-06, 2 (2/15/07). 

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, CSA 14-06, 1 (Order 3/15/06).

Notes made in a logbook which may or may not be used for a future evaluation are neither disciplinary nor otherwise appealable. In re Johnson, CSA 135-05, 3 (Order 3/10/06).

The mere proportion of positive to negative remarks in a supervisor’s day-to-day notes regarding an employee does not determine whether a performance must be rated at a certain level. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 6 (1/27/05) (decided under former CSR 13-23).

An agency’s determination of what constitutes a significant portion of an employee’s accomplishments will not be overturned unless it is arbitrary, capricious, and without rational basis or foundation. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 6 (1/27/05) (decided under former CSR 13-23).

Agency did not abuse its discretion in determining that attendance, personal relations, personal contact, and safety and security constituted a significant portion of appellant’s duties where her failure to perform adequately in those areas affected her overall performance negatively. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 6 (1/27/05) (decided under former CSR 13-23).

Appellant’s confrontational criticism of her co-workers and refusal to comply with instructions on three occasions justified below expectations rating in the area of personal relations. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 7 (1/27/05).

Violations cited in a work review that occurred outside the rating period cannot be used to support the rating. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 7-8 (1/27/05) (decided under former CSR 13-10).

 

19-20 B.2.b: Agency Failure to Respond to Grievance (Former 19-10 A.2.b.ii)

In grievance appeals, appellants bear the burden of proving, by a preponderance of the evidence, that the specified Agency actions violated Career Service Rules; the City Charter; ordinance relating to the Career Service; executive orders, or written agency policies; and that the specified actions negatively affected their pay, benefits, or status, under CSR 19-10 A.2.b.i. In re Anderson & Connors, CSA 61-10, 63-10, 66-10 & 67-10, 5 (12/22/10).

The Agency violated CSR 19-10 A.2.b.i. when a DSD major was delegated acting division chief responsibilities for three months, Agency denied him acting pay, causing a negative impact on his pay for that period. In re Anderson & Connors, 61-10, 63-10, 66-10 & 67-10, 6 (12/22/10).  

Hearing office lacked jurisdiction under 19-10 A.2.b. ii. where appellant conceded the agency filed a timely response to her grievance. In re Rems, 31-10, 2 (Order 5/12/10). 

Where appellant was granted his third choice for shift assignment because his first and second choices were awarded to employees with greater seniority, hearing officer lacked jurisdiction to force agency to grant appellant’s first or second choices. In re Luft, CSB 43-08, 2 (12/12/08).

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

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

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

Agency’s participation in mediation subsequent to an employee’s grievance constitutes a response to the grievance. In re Luft, CSA 80-07, 2 (Order 6/13/08).

Hearing office has no jurisdiction over an appeal of agency’s failure to respond to a grievance of a written reprimand where agency responded to the grievance by engaging in mediation. In re Luft, CSA 80-07, 2 (Order 6/13/08). 

19-20 B.3: Jurisdictional Requirements of Grievance (Former 19-10 A.2.b.iv)

Dispute as to whether appellant met prerequisites for filing a grievance raises genuine fact issue that requires hearing. In re Anderson, CSA 102-09, 2 (Order 1/8/10).

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

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

19-20 B.4.b: Written Reprimand (Former 19-10 A.2.b.v)

Hearing Officers lack authority to consider the appeal of a written reprimand. In re Noel, CSA 88-10, 2 (Order 12/28/10).

Written reprimands may not be appealed. In re Black, CSA 16-09 (Order 3/12/09).

Hearing officer has jurisdiction over an appeal of a grievance under this rule if agency fails to respond to the grievance. In re Luft, CSA 43-08, 2 (Order 7/24/08).

Appeal of agency’s failure to respond to grievance is moot where agency provided written response to appellant during pre-hearing conference. In re Luft, CSA 43-08, 2 (Order 7/24/08).

 

19-30: Form of Appeal (Former 19-20 B)

Jurisdiction is created by the Career service Rules, not by other means, including an outdated appeal form. In re Zacker, 44-10, 1 (Order 7/15/10).

The rule requires only a statement of the reason for an appellant's belief that the rating is improper. In re Zacker, 44-10, 1 (Order 7/15/10).

Rule does not require the filing of supporting exhibits to establish jurisdiction. In re Zacker, 44-10, 1 (Order 7/15/10).   

The following principles apply to 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 she alleges them, would entitle her to relief. In re Van Dyck, CSA 143-05 (Order 2/16/06), citing Dorman v. Petrol Aspen, Inc., 914 P.2d 909, 911 (Colo. 1996); In re Martinez, CSA 176-03 (Order 6/25/04). 

Appellant’s request that a remedy be fashioned only after hearing is without merit, as rule requires statement of remedy sought when appeal is filed. In re Herzog, CSA 23-05, 3 (Order 5/26/05) (decided under former CSR 19-22).

19-31: Filing Deadlines (Former 19-20)

Appeal of discipline, filed after the fifteen day deadline [now 14 days] but within the whistleblower ordinance claim’s thirty day deadline, is untimely where whistleblower claim was dismissed for failure to allege a nominal claim. In re Moore, CSA 103-09 & 21-10, 2 (Order 5/26/10).

Appeal filed twenty-one days after the date of notice of the action, is untimely. In re Moore, CSA 103-09 & 21-10, 3 (Order 5/26/10) [non-whistleblower deadline is now 14 days].

In an appeal containing claims with different filing deadlines, enforcing each claim’s filing deadline separately would eviscerate the mandate of the whistleblower protection ordinance to allow thirty days in which to a claim. In re Moore, CSA 103-09 & 21-10, 3 (Order 5/26/10) [non-whistleblower deadline is now 14 days].

Hearing officer correctly dismissed appeal as untimely when it was filed sixteen days after the date of notice of action being appealed. In re Augustine, CSB 24-09 (4/28/10) [non-whistleblower deadline is now 14 days]. 

Document showing appellant visited his treating physician in July did not establish he was medically incapacitated in March, when appeal had to be filed. In re Augustine, CSB 24-09, 2 (4/28/10) [non-whistleblower deadline is now 14 days].     

Petitioner failed to present extraordinary circumstances preventing him from filing timely appeal to hearing officer where no evidence of record supported that argument. In re Augustine, CSB 24-09, 2 (4/28/10) [non-whistleblower deadline is now 14 days].

Document showing July medical appointment was available when hearing officer issued dismissal decision in December did not constitute new and material evidence so as to invoke career service board jurisdiction. In re Augustine, CSB 24-09, 2 (4/28/10). 

Absent proof that the agency took any appealable action within fifteen days of the date of the appeal, the hearing office lacks jurisdiction to proceed on the appeal. In re Schultz, CSA 21-09, 2 (Order 4/13/09) [non-whistleblower deadline is now 14 days].

When appellant became aware of her suspension, two days after it was imposed, she was not deprived of the opportunity to file a timely appeal within the fifteen-day deadline provided under this rule. In re Kemp, CSA 61-08, 2 (Order 9/17/08) [non-whistleblower deadline is now 14 days].

The filing deadline contained in 19-20 A.1.b. is jurisdictional. If it is not met, the hearing office is without jurisdiction to hear the appeal except in extraordinary circumstances. In re Mallard, CSA 65-08 (Order 9/9/08) [non-whistleblower deadline is now 14 days].

CSR 19-20 A.2.a. specifies that, where delivery of the notice was made by mail, the “notice of action” is “the date on the certificate of mailing,” and the fifteen-day countdown begins the day following the notice of the action. In re Mallard, CSA 65-08 (Order 9/9/08) [non-whistleblower deadline is now 14 days].

Filing deadline begins with the date of the notice of the action appealed, not the date of the action itself, as claimed by appellant. In re Mallard, CSA 65-08 (Order 9/9/08) [non-whistleblower deadline is now 14 days].

The method of mailing, even if by regular U.S. Mail instead of certified mail, does not extend the filing deadline. In re Cervantes, CSA 45-08 (Order 6/11/08) [non-whistleblower deadline is now 14 days].

Appeals must be filed at the hearing office fifteen days from the date of notice of action. In re Cervantes, CSA 45-08 (Order 6/11/08) [non-whistleblower deadline is now 14 days].

Date on a certificate of service is the date of notice of the action used to calculate the jurisdictional filing date. In re Cervantes, CSA 45-08 (Order 6/11/08) [non-whistleblower deadline is now 14 days].

Documents filed in the hearing office after 5:00 p.m. are deemed filed the next business day. In re Cervantes, CSA 45-08, p. 2 (Order 6/11/08) [non-whistleblower deadline is now 14 days].

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

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

Hearing Officer lacks jurisdiction where Appellant filed appeal outside the fifteen-day deadline but offered no good cause of ignorance of the deadline, such as failure to receive notice of the action being appealed or being misled about deadlines by someone in a position of authority. In re Apodaca, CSA 40-06 (Order 7/28/06) (decided under former CSR 19-20 A.1) [non-whistleblower deadline is now 14 days].

Appeal was untimely where Appellant filed it over a month after the filing deadline expired, and he alleged only that he was unaware of the deadline. In re Rivera, CSA 11-06 (Order 3/1/06) [non-whistleblower deadline is now 14 days].

Career Service Rules do not require an agency to advise an employee of the deadline for filing an appeal. In re Rivera, CSA 11-06 (Order 3/1/06) [non-whistleblower deadline is now 14 days].

Appellant who was notified of agency action on June 30 and who filed appeal on July 18 failed to meet ten-day jurisdictional filing requirement for his appeal. In re Macieyovski, CSA 81-05 (Order 8/17/05) (decided under former CSR 19-22) [non-whistleblower deadline is now 14 days].

Agency statement in the notice to rejected job applicant - “we will be notifying the remaining candidates of our decision”- did not waive the 10-day requirement to file an appeal. In re Macieyovski, CSA 81-05 (Order 8/17/05) (decided under former CSR 19-22) [non-whistleblower deadline is now 14 days].

This rule requires appeals to be filed within ten days from date of notice of the action being appealed. In re Shields, CSA 67-05, 2 (Order 7/12/05) (decided under former CSR 19-22) [non-whistleblower deadline is now 14 days].

Where termination of appellant’s promotional probation occurred May 17, and notice was mailed May 18, appellant had until May 31 to file his appeal. In re Shields, CSA 67-05, 2 (Order 7/12/05) (decided under former CSR 19-22) [non-whistleblower deadline is now 14 days].

Appellant’s misunderstanding of filing requirements did not vest hearing officer with jurisdiction where Appellant filed untimely appeal. In re Shields, CSA 67-05, 2 (Order 7/12/05) (decided under former CSR 19-22).

Grievance of agency action before filing appeal did not extend filing requirements under Career Service Rules. In re Shields, CSA 67-05, 2 (Order 7/12/05) (decided under former CSR 19-22) [non-whistleblower deadline is now 14 days].

Substantive arguments may not be considered when appeal was untimely. In re Shields, CSA 67-05, 2 (Order 7/12/05) (decided under former CSR 19-22) [non-whistleblower deadline is now 14 days].

Although agency accepted Appellant’s appeal, hearing officer was without jurisdiction of untimely appeal. Acceptance was not an assertion that appellant was actively misled or lulled into inaction by agency on filing requirements. In re Toguchi, CSA 12-05 (Order 3/9/05) (decided under former CSR 19-22).

Appellant’s belief that supervisor’s acceptance of her appeal was proper filing does not equitably toll filing requirements where agency’s notice advised appellant she may appeal in accordance with Rule 19, and appellant previously filed a timely appeal in hearing office. In re Toguchi, CSA 12-05 (Order 3/9/05) (decided under former CSR 19-22).

Compliance with the filing deadline for an appeal is jurisdictional absent the application of equitable tolling. In re Delgado, CSA 182-04 (Order 3/9/05), citing Widener v. District Court, 615 P.2d 33 (Colo. 1980); Montoya v. Chao, 296 F.3d (10th Cir. 2002) [non-whistleblower deadline is now 14 days].

The date of notice of the agency’s action is defined within the rule as either the date of hand delivery or the date on the certificate of mailing. In re Delgado, CSA 182-04 (Order 3/9/05) (decided under former CSR 19-22).

Appellant’s ignorance of the deadline for filing an appeal and inability to obtain that information from various agencies did not constitute an assertion that he was actively misled or lulled to inaction by the agency, which is required for a finding that the deadline should be equitably tolled. In re Delgado, CSA 182-04 (Order 3/9/05) (decided under former CSR 19-22).

19-32 B: Filing Requirements (Former 19-10 A.1.b)

Documents filed after 5:00 pm are considered filed the next business day. In re Noel, CSA 88-10, 1 (Order 12/28/10).

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

19-33: Non-Attorney Representation (Former 19-41 B)

Where non-attorney union representative had extensive experience in this forum, consulted with legal counsel regarding pleadings and trial preparation, and appellants approved of her representing them, representative was sufficiently qualified to act as representative. In re Anderson et al., CSA 78-08 to 124-08, 2 (Order 1/7/09).

The word “representative” for purposes of this rule does not include a pro se appellant. In re Herzog, CSA 51-05 (Order 7/5/05). 

19-41 C & D: Continuances and Stays (Former 19-42 C)

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

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

19-42: Motions (Former 19-43)

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

19-43: Discovery (Former 19-45)

Career Service Rule 19-43 and the Notice of Hearing and Pre-hearing Order both specify that formal discovery is permitted only after informal discovery efforts fail. In re Gomez, CSA 02-12 (Order 2/8/12).

Where parties’ filings indicate the parties did not engage in informal discovery prior to filing a formal request for discovery, at least one of the discovery requests was already provided, and the requests were not accompanied by a rationale for the requests, the parties may be required to confer before the hearing office will act on the requests. In re Gomez, CSA 02-12 (Order 2/8/12).

Appellant’s request to add a witness and exhibits after hearing began was proper where the witness and exhibits could not have been discovered beforehand, the evidence is relevant, and no prejudice would result to the agency. In re Richardson, CSA 82-10, 2 (Order 10/14/11).

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). 

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

 

19-45: Subpoenas for Witnesses

Hearing officer did not misinterpret CSR 19-45 by denying appellant’s request for a subpoena where no facts or arguments by appellant were sufficiently weighty to compel its issuance. In re Koonce, CSB 34-17, 3-4 (6/21/18).

Appellant’s discovery of documents from a non-party agency or non-profit, without naming the custodian of those records, must be denied, since a subpoena must be directed to a specific person for service and enforcement purposes. In re Gutierrez, CSA 65-11, 2 (Order 12/27/11).

This rule provides that either party may motion the Hearing Officer for subpoenas to compel the attendance of a witness and if a subpoenaed witness is unable to appear, the witness may be required to answer written interrogatories or to appear at a deposition. Thus, Appellant has many opportunities to cross-examine the witness. If he fails to avail himself of them, he will be precluded from asserting error after the hearing. In re Burke, CSA 60-10, 2 (Order 12/8/10).  

Agency’s listing of a witness as “will-call” obviates the necessity for appellant to subpoena that witness. In re Koehler, CSA 113-09, 3 (Order 1/27/10). 

A motion for a subpoena made after the deadline imposed by pre-hearing order may be denied as untimely. In re Harrison, CSA 55-07, 2 (Order 11/18/08). 

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, CSA 55-07, 89-07 & 90-07 (Order 11/18/08), citing CSR 19-45.

Subpoena request for doctor’s file pertaining to death of a jail inmate while under deputy‘s watch is relevant or may lead to the discovery of relevant information in appellant’s dismissal. In re Rogers, CSA 25-08, 1-2 (5/13/08).

 

19-45 F: Depositions

Depositions are permitted if it is not feasible for a subpoenaed witness to appear at hearing. In re Rogers, CSA 25-08 (5/13/08).

Motion to depose witness was denied where appellant was unaware if witness would be unavailable to attend hearing. In re Rogers, CSA 25-08 (5/13/08).

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

Appellant’s claim, that depositions should be allowed because the Colorado civil rules allow liberal discovery, is not applicable to appeals under the Career Service Rules. In re Ortega, CSA 81-06 (11/13/06).

Because the Career Service Rules are designed to provide a relatively quick and inexpensive resolution to employment disputes and disfavor extensive discovery, the taking of depositions is limited to good cause. In re Ortega, CSA 81-06 (11/13/06).

Appellant’s motion to take depositions of two agency witnesses was denied where appellant made no showing those witnesses were unavailable on the date of hearing. In re Ortega, CSA 81-06 (11/13/06).

 

19-50: Hearing Process (Former 19-30)

Motion to set aside dismissal of appeal must be justified by a showing of extraordinary circumstances.&nb/files/assets/public/hearings-office/documents/hearings/p;In re Maestas, CSA 33-11, 1 (Order 8/9/11). 

The Career Service Rules provide the hearing officer with broad authority to provide for a fair and efficient appeal process. In re Lopez, CSA 106-09, 1 (Order 2/1/10).

An order sealing records and closing the hearing may not be based solely upon an agreement between the parties. In re Lopez, CSA 106-09, 1 (Order 2/1/10).

Access to criminal justice records may be limited by “the agency’s interest in pursuing ongoing investigations without compromising them.” In re Lopez, CSA 106-09, 1 (Order 2/1/10), citing CRS 24-72-308(1)(c).

This rule gives hearing officers broad power to perform the functions necessary to implement and maintain a fair and efficient appeal process. In re Sanders, CSA 62-09 (Order 1/13/10).

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

 

19-57: Public or Private Hearing (Former 19-54)

As a general matter, hearing office records are open to the public unless there is a legitimate reason for nondisclosure. In re Lopez, CSA 106-09, 1 (Order 2/1/10).  

An order sealing the records and closing the hearing may not be based solely upon an agreement between the parties. In re Lopez, CSA 106-09, 1 (Order 2/1/10).  

Access to criminal justice records may be limited by the agency’s interest in pursuing ongoing investigations without compromising them. In re Lopez, CSA 106-09, 1 (Order 2/1/10), citing CRS 24-72-308(1)(c); Harris v. Denver Post, 123 P.3d 1166, 1174 (Colo. 2008).  

Good cause existed for closing a portion of hearing and sealing record where agency could not present evidence without the testimony of law enforcement officers, and failure to grant the motions would jeopardize the officers’ ability to pursue ongoing investigations concerning others. In re Lopez, CSA 106-09, 1-2 (Order 2/1/10).    

Request to close hearing and seal the record which was narrowly limited to that necessary to protect ongoing police investigations outweighs the interests of the public in attending the portion of the hearing devoted to the testimony of the police officers. In re Lopez, CSA 106-09, 2 (Order 2/1/10).     

The decision whether to seal the record 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, 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, including: whose privacy or confidences are to be protected; the privacy interests to be protected; the nature of the documents the to be protected; 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, CSA 86-09 (Order 1/8/10).

19-58: Decision of the Hearing Officer (Former 19-55)

See also Topics:  Back Pay, Remedies

Suspension unenforceable where agency’s internal attendance rules and policies irreconcilably conflicted with appellant’s legitimate use of leave under the Career Service leave rules. In re Rock, CSA 09-10, 6 (10/5/10), citing In re Espinoza, CSA 30-05 (1/11/06), affirmed In re Espinoza, CSB 30-05 (8/23/06).

Hearing officer does not have authority to grant an award of attorney’s fees. In re Muller, CSB 48-08,2 (3/10/09).

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

A hearing officer’s authority is limited to affirming, modifying, or reversing agency action based on findings made after a hearing on the merits of an appeal. In re Sawyer & Sproul, CSA 33-08 & 34-08, 17 (1/27/09).

Agency did not establish that hearing officer erroneously interpreted this rule by not addressing the performance standard of “no preventable actions,” where agency merely stated a disagreement with the hearing officer’s factual findings. In re Sandrowski, CSB 58-07, 2 (8/21/08).

The CSB lacks jurisdiction to require an agency to provide an accounting, or to order back pay and benefits. The proper remedy to resolve back pay and benefits is to that the hearing officer resolve these issues. In re Mestas, Salazar, Fuentes & Sierra, CSB 64-07, 61-07, 62-07 & 67-07, 3 (8/12/08).

Back pay and benefits are issues separate from reversal of discipline and reinstatement. In re Mestas, Salazar, Fuentes & Sierra, CSB 64-07, 61-07, 62-07 & 67-07, 3 (8/12/08).

The authority granted to hearing officers by the CSR to affirm, modify or reverse agency actions does not include the power to award attorneys’ fees or costs. In re Sample, CSA 72-07, 2 (Order 7/28/08), citing In re Stone, CSA 70-07, 1 (Order 10/23/07).

The Career Service Rules do not authorize the hearing officer to issue discipline against one employee based upon the request of another. In re Muller, CSA 48-08, 2 (7/24/08).

If a hearing officer determined a supervisor retaliated against a subordinate in violation of the whistleblower ordinance, supervisor would be subject to disciplinary action by the appointing authority, not by the hearing officer. In re Muller, CSA 48-08, 2 (Order 7/24/08),citing DRMC 2-109(d).

A hearing officer is not bound by the remedies suggested by an appellant but must determine if any remedy under the rules would provide relief. In re Muller, CSA 48-08, 2 (Order 7/24/08), citing In re Felix, CSA 82-07 (Order 2/14/08), affirmedIn re Felix, CSB 82-07 (6/19/08).

A hearing officer must assess the possible causes of action and avenues of relief to afford the appellant the broadest relief possible under the Career Service Rules. In re Luft, CSA 43-08, 2 (Order 7/24/08).

Where the hearing officer is without jurisdiction to grant the only relief acceptable to the appellant, the appeal may be dismissed upon agency or hearing officer’s own motion. In re Luft, CSA 43-08, 2 (Order 7/24/08), citing In re Felix, CSA 82-07 (Order 2/14/08), affirmed In re Felix, CSB 82-07 (6/19/08).

Assignment of shifts and specific work duties is entirely within the discretion of the agency, unless the action was discriminatory, retaliatory, or in violation of rule, order, or policy, and negatively impacted the employee’s pay, benefits or status. In re Luft, CSA 43-08, 2-3 (Order 7/24/08).

There might be circumstances where a hearing officer, having concluded that cause did not exist for a disqualification, may find that reinstatement is not an appropriate remedy but order the agency to restore at least a portion of appellant’s pay and benefits. In re Felix, CSB 82-07, 3 (6/19/08).

Hearing officer had no authority to grant appellant’s request to change supervisors. In re Felix, CSB 82-07, 3 (6/19/08), citing McKenzie v. City and County of Denver, 414 F.3d 1266, 1276 (10th Cir. 2005); Siemon v. AT&T Corp., 117 F.3d 1173, 1176 (10th Cir. 1997); EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, Question 33 (EEOC Notice No. 915.002, Oct. 17, 2002); Guess v. Pfizer, Inc., 971 F.Supp. 164 (E.D.Pa. 1996) (distinguished).

Hearing officer lacks authority to grant certain relief; e.g., a meeting with superiors, or preparation of a written document. However, relief from unlawful discrimination is a remedy within the hearing officer’s jurisdiction. In re Cooley, CSA 28-06, 2 (Order 6/12/06).

Hearing officer lacks authority to grant an employee transfer. In re Van Dyck, CSA 143-05, 1 (Order 2/16/06).

 

Rule 20:  Disciplinary Appeals to the Career Service Hearing Office Filed by Deputy Sheriffs

20-20: Actions Subject to Appeal

This rule requires that appeals to the Career Service Hearing Office, other than of whistleblowing claims, must be filed within fifteen days [now 14] after the date of notice of the action being appealed. In re Webster, CSA 78-10 (Order 12/7/10). 

Hearing officer’s authority to award back pay derives from § 19-55 which requires a decision affirming, modifying, or reversing the agency action challenged by appeal. In re Maes, 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 rate applicable  to the new position, and payment of any lost benefits. 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 any lost opportunities for secondary employment. In re Maes, CSA 180-03, 6 (6/20/08).

20-20 A: Direct Appeals

A transfer is not directly appealable to the hearings office under 19-10A.1.(a)-(e). In re Gallo, CSB 63-09, 2-3 (3/17/11).

Supervisor’s order to attend training was not disciplinary, thus not appealable as discipline. In re Johnson, CSA 135-05, 3 (Order 3/10/06) (decided under former CSR 16-10, 16-20, 16-40 and 19-10 f).

Since an order for remedial training is not disciplinary, grievance of that order is not appealable. In re Johnson, CSA 135-05, 3 (Order 3/10/06) (decided under former CSR 16-10, 16-20 and 16-40).

Notes in a logbook which may or may not be used for a future evaluation are neither disciplinary nor otherwise appealable. In re Johnson, CSA 135-05, 3 (Order 3/10/06).

20-31: Filing Deadlines

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

While an attorney’s neglect impacts post-judgment remedies, such as C.R.C.P. 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, CSA 78-10 (Order 12/7/10).

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

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

When appellant filed his appeal after the fifteen-day filing deadline, the merits of the appeal may not be considered. In re Sundrup, CSA 112-09 (Order 1/13/10), citing In re Delgado, CSA 182-04 (Order 3/9/05); Widener v. District Court, 615 P.2d 33 (Colo. 1980). 

 

20-42: Motions

All discipline during past thirty six months involving three agency regulations cited in present case not relevant where appellant argued CSB reduced penalty in other cases where similar violations resulted in varying levels of discipline, but those decisions lacked deceptive conduct or intent to punish, and they were based on comparison of highly similar scenarios after full hearing on their merits. In re Roybal, CSA 44-16 (Order 8/3/16).

Appellant who raised discrimination claim was required to show how all relevant employment circumstances, including work history, made him similarly situated to comparable employees. In re Roybal, 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, 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, CSA 44-16 (Order 8/3/16), citing In re Napoli, CSB 74-10, 3 (8/18/11); In re Simpleman, CSB 31-06, 2-3 (8/2/07).

Party who seeks leave to file a pleading late due to “unseen circumstances” without more, states insufficient cause. In re Romero CSA 03-08 (Order 2/6/08).

20-43: Discovery

Before filing a motion for discovery with the hearing office, the parties should first engage in informal discovery. In re Romero, CSA 01-12 (Order 2/8/12).

A discovery request should request information which is narrowly tailored to elicit admissible evidence. In re Romero, CSA 01-12, 2 (Order 2/8/12).

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

Appellant’s discovery request was denied where it contained compound assumptions, rendering 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 legitimately 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 CSRs 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 when she was legitimately ill, her request for the production of documents validly asked for memoranda, notes, policies, and correspondence that provided notice that an employee who has exhausted sick time may not substitute vacation/compensatory time for sick time. In re Martinez, CSA 85-10, 3 (Order 1/5/11).   

An appellant is not foreclosed from requesting discovery of other discipline in the absence of a discrimination claim in the appeal. In re Koehler, CSA 113-09, 2 (Order 1/27/10).

Discipline of other employees charged with the same violations and details of comparable discipline are discoverable on the issue of whether the penalty 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, CSB 72-06 (9/20/07).

An appellant may challenge the level of discipline based on its dissimilarity to penalties imposed on other employees for similar violations. In re Koehler, CSA 113-09, 2 (Order 1/27/10).

Discovery of disciplinary records of non-party co-workers is limited to discipline that is similar to the circumstances presented in this discipline: that the same supervisor, using the same standards of conduct, took substantially different action. In re Koehler, CSA 113-09, 2-3 (Order 1/27/10), citing St. Croix v. University of Colorado Health Sciences Center, 166 P.3d 230, 237 (Colo.App. 2007); In re Stone, CSA 70-07 (Order 11/20/07).

Discovery of disciplinary records of non-party co-workers must not be remote in time from the incident in question. In re Koehler, CSA 113-09, 3 (Order 1/27/10).

Requests for similar discipline during last two years was reasonable where the departmental regulation being enforced was enacted two years earlier. In re Koehler, CSA 113-09, 3 (Order 1/27/10).

A non-decision maker’s statement regarding the usual penalty for lying may not be obtained by discovery request. In re Koehler, CSA 113-09, 3 (Order 1/27/10), citing In re Weeks, CSA 26-09 (Order 5/13/09).

Sheriff’s department training materials and information about the handling of HIV-positive inmates are discoverable if they pertain to appellant-deputy’s theory of the case and the agency’s notice of its own policies. In re Koehler, CSA 113-09, 3 (Order 1/27/10), citing CRCP 26(b); Kerwin v. District Court, 649 P.2d 1086, 1088 (Colo. 1982). 

Appellant’s request for narrative statement of reasons for discipline and for all documents that played any part in the investigation is discoverable, if not already produced. In re Koehler, CSA 113-09, 3 (Order 1/27/10). 

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

The physician-patient privilege may be waived when a party raises an affirmative defense of his physical condition. In re Cullen, CSA 127-08, 2 (Order 1/7/09). 

The physician-patient privilege does not protect an employee’s medical records from discovery where he made his absence due to an alleged illness an affirmative defense to the agency’s charge that he was dishonest and violated his Stipulation and Agreement to refrain from alcohol. In re Cullen, CSA 127-08, 2 (Order 1/7/09). 

Records of programs attended by Appellant as a part of his Stipulation and Agreement to refrain from alcohol are relevant to the issue of whether Appellant violated its terms. In re Cullen, CSA 127-08, 2 (Order 1/7/09). 

Police records of appellant’s domestic incident, and his transport by the police to a detoxification facility that night, are discoverable regarding whether he was intoxicated, where compliance with his Stipulation and Agreement to refrain from alcohol is at issue. In re Cullen, CSA 127-08, 3 (Order 1/7/09). 

Credit card and bank records to prove appellant purchased alcohol on days not covered by this discipline are not sufficiently probative to justify subpoena duces tecum. In re Cullen, CSA 127-08, 3 (Order 1/7/09). 

Where appellant disputed agency claim that he was intoxicated, he waived physician-patient privilege as to his stay at a detoxification center the day he failed to report to work, . In re Cullen, CSA 127-08, 3 (Order 1/7/09). 

The CSRs disfavor extensive discovery. In re Rogers, CSA 25-08 (5/13/08).

20-45: Subpoenas

Subpoenas for the production for documents which are relevant to an appeal may be issued to non-parties, including non-party City agencies, upon the motion of either party and supported by good cause. In re Gale, CSA 02-15 (Order 4/14/15), citing CSR 19-45(B).

Subpoenas to produce to non-parties Office of the Independent Monitor and Denver Police Department may be issued if the request is relevant and good cause is shown. In re Gale, CSA 02-15 (Order 4/14/15).

Good cause and relevance are not established to issue subpoena duces tecum to the OIM, where the only reference to the OIM in appellant’s request was that the DSD Chief informed the OIM of the arrest underlying this appeal. In re Gale, CSA 02-15 (Order 4/14/15).

Relevance and good cause established for subpoena duces tecum where DPD was assigned to investigate alleged preferential treatment in the DSD, and a DPD sergeant in the investigation unit is the spouse of a DSD witness. In re Gale, CSA 02-15 (Order 4/14/15).

20-50: Hearing Process

Hearing officers do not cede their authority to weigh evidence to an expert witness, since this rule gives hearing officers the authority to conduct the hearing in a fair, efficient and speedy presentation of the appeal. In re Lovingier, CSB 48-13, 3 (11/7/14).

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, with each day calculated as an eight-hour shift, where she already served the sixty-day suspension using this calculation, not her customary 10.32-hour shift. In re James, CSA 33-10 (Order 1/25/11).

CSRs do not authorize a hearing officer to stay operation of a disciplinary suspension before a hearing an appeal. Such relief is inconsistent with the clear intent of the rules. In re James, CSA 33-10 (Order 5/18/10), citing CSR 21-21 (decided under former 19-66 B).

Strict compliance with the Colorado Rules of Evidence is not required in a career service hearing. In re Norman-Curry, CSB 28-07 and 50-08, 3 (9/3/09). 

Hearing officer’s citation to scientific or academic treatises not of record was harmless error in light of all the factual evidence presented on the relationship of the parties and the extensive factual and legal analysis by the hearing officer. In re Ray, CSB 57-06, 2 (5/20/08).

20-56 A: Burden of Proof

In disciplinary actions under CSR 20, hearing officer’s review is not de novoIn re Cole, CSA 04-18, 2 (4/6/18). 

As with CSR 19 violations, DSD employees retain the burden of persuasion to prove the degree of discipline elected by the DSD was clearly erroneous. In re Cole, 04-18, 4 (4/6/18). 

Four-day suspension not clearly excessive where deputy pressed knee to back of inmate’s ear to control him, but the technique is not taught, four officers controlled inmate’s limbs, and two others stood ready to assist in controlling inmate who was resisting take-down. In re Cole, CSA 04-18, 5 (4/6/18) [note: original decision incorrectly identified standard of review as “clearly excessive, corrected in subsequent errata order, 4/23/18].

In disciplinary actions under CSR 20, the appellant retains the burden of persuasion, throughout the hearing, to prove the DSD’s finding that he violated a CSR was clearly erroneous or that DSD’s application of its disciplinary matrix in assessing the level of discipline was clearly erroneous. In re Cole, CSA 04-18, 2 (4/6/18), citing CSR 20-56 A.

20-59: Decision of Hearing Officer

A decision that contains findings and conclusions on the appropriateness of the disciplinary penalty imposed is sufficient under the CSRs. In re Kemp, CSB 19-13, 7 (7/28/14).

CSRs do not authorize a hearing officer 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, CSA 33-10 (Order 5/18/10), citing CSR 21-21 (decided under former CSR 19-66 B).

Hearing officer’s authority to award back pay derives from § 19-55, which requires a decision affirming, modifying, or reversing the agency action challenged by an appeal. In re Maes, CSA 180-03, 5-6 (Order 6/20/08).

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 (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 (Order 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).

Reversal of the agency action focuses only on the direct results of that action, and not on parties’ expectations of earnings from third parties. In re Maes, CSA 180-03, 6 (Order 6/20/08).

Hearing office 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 (Order 6/20/08).

Hearing officer is without jurisdiction to order agency to change policies, staffing or building conditions. In re Conway, CSA 127-05, 2 (2/13/06).



Rule 21:  Appeals to the Career Service Board

21-21: Grounds for Petition for Review (Former 19-61)

IN GENERAL 

As long as decision-maker substantially complies with DSD disciplinary guidelines, the CSB will not disturb any imposed discipline. In re Sparer, CSB 71A-18, 4 (7/18/19). Hearing officer affirmance of 10-day suspension for deputy’s failure to aid fellow deputies did not set bad precedent of promoting inconsistent instruction and expectations on assistance in use of force situations, rather decision merely reinforced DSD rule requiring deputies to assist other deputies in those situations. In re Sparer, CSB 71A-18, 6 (7/18/19).

IN GENERAL 

As long as decision-maker substantially complies with DSD disciplinary guidelines, the CSB will not disturb any imposed discipline. In re Sparer, CSB 71A-18, 4 (7/18/19).

Hearing officer affirmance of 10-day suspension for deputy’s failure to aid fellow deputies did not set bad precedent of promoting inconsistent instruction and expectations on assistance in use of force situations, rather decision merely reinforced DSD rule requiring deputies to assist other deputies in those situations. In re Sparer, CSB 71A-18, 6 (7/18/19).

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, CSB 76-17, 2-3 (9/6/18).

Hearing officer erred in ultimate finding that appellant accepted responsibility for his misconduct where appellant persisted in claiming his threat to punch a coworker was funny, and that he is a known jokester, but his only expressed recognition of misconduct was his threat to retaliate against anyone who reported his threatened punch. In re Mancuso, CSB 76-17, 4 (9/6/18).

Hearing officer set bad precedent in failing to uphold agency’s dismissal of appellant who threatened violence and retaliation where the City has emphasized eradicating workplace violence. In re Mancuso, CSB 76-17, 5 (9/6/18).

Hearing officer erred in holding dismissal for threats of violence and retaliation was not within the range of alternatives available to a reasonable and prudent administrator, because such holding diminishes the seriousness of violations under EO 112. In re Mancuso, CSA 76-17, 5 (9/6/18).

Bad precedent was not set by appellant’s demotion where she claimed she was simply helping an inmate through the book-in process, during which she violated rules against preferential treatment. In re Koonce, CSB 34-17, 6 (6/21/18).

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 novoIn re Leyba, DDC 31-16, 4 (11/15/17).

Ten-day suspension for pulling an inmate’s hair did not set improper precedent in that it was a reasoned decision based on the unique facts of the case and an individualized application of the principles embodied in the agency’s disciplinary matrix. In re Romero, CSB 28-16, 2-3 (6/15/17).

Competency of counsel is not grounds for review on petition for review of hearing officer’s decision. In re Lawrence, CSB 41-16, 2 (3/2/17).

The CSB may reverse a hearing officer’s decision for insufficient evidence only if the findings are clearly erroneous. In re Lovingier, 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 Lovinginer, 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). 

A party waives an argument raised on petition for review where his brief fails to include the grounds to support it. In re Kemp, CSB 19-13, 2 (7/28/14), citing U.S. v. Hardman, 297 F.3d 1116, 1131 (10th Cir. 2002). 

A decision that contains findings and conclusions regarding the appropriateness of the disciplinary penalty imposed is sufficient under the CSRs. In re Kemp, CSB 19-13, 7 (7/28/14).

There is no finding for the CSB to review where the hearing officer did not sustain a violation of a departmental regulation included in the employee’s petition for review. In re Kemp, CSB 19-13, 6 (7/28/14).

Appellant failed to establish error in hearing officer’s finding of dishonesty where the video relied upon by hearing officer constitutes substantial evidence to support the finding that appellant lied about the incident depicted in the video. In re Kemp, CSB 19-13, 2 (7/28/14).

Arguments raised in a perfunctory manner are waived. In re Kemp, CSB 19-13, 2 (7/28/14), citing U. S. v. Hardman, 297 F. 3d 1116, 1131 (10th Cir. 2002). 

An evidentiary error by a hearing officer is harmless where the record contains ample support for the hearing officer’s determination. In re Kemp, CSB 19-13, 5 (7/28/14).  

Failure to tie facts to grounds cited under this rule or to make appropriate citations to the record may be fatal to a petition for review. In re Serna, CSB 39-12, 2 (2/21/14).

Agency rule violations generally do not constitute grounds for overturning a hearing officer's decision. In re Redacted, CSB 67-11, 2 (4/4/13). 

Appellant’s due process rights were not violated by decision-maker's reliance on matters not in disciplinary letters where appellant received a de novo hearing and the hearing officer exercised independent judgment on the discipline based only on evidence of allegations contained in the discharge letter. In re Redacted, CSB 67-11, 4 (4/4/13). 

CSB will overturn a hearing officer's factual findings for insufficiency of evidence only where factual findings are clearly erroneous. In re Redacted, CSB 67-11, 5 (4/4/13). 

A factual finding is clearly erroneous when it is unsupported by substantial evidence in the record considered as a whole; that is, where the factual finding has no support in the record. In re Redacted, CSB 67-11, 5 (4/4/13), citing In re Murphy, CSB 09-11 (7/3/12).   

A petition for review which fails to invoke any of the five grounds for review under CSR 19-61 is subject to dismissal for lack of jurisdiction. In re Redacted, CSB 57-11, 2 (12/20/12).

Hearing officer's determinations of credibility based on record evidence will not be re-weighed on petition for review. In re Redacted, CSB 57-11, 2 (12/20/12).

The CSB will interpret a petition filed by a pro se petitioner liberally in determining the existence of jurisdiction. In re Redacted, CSB 57-11, 2 (12/20/12), citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

A hearing officer’s determination of credibility that is based on evidence in the record is not clearly erroneous, and therefore CSB will not disturb it on review. In re Redacted, CSB 57-11, 2 (12/20/12).

Those claims in a petition for review which petitioner does not subsequently brief are deemed abandoned. In re Roybal, CSB 60-11, 2 (8/2/12).

Where petitioner filed a timely petition for review claiming erroneous rules interpretation and policy-setting precedent, but failed to mention them in her brief, she abandoned those two grounds. In re Roybal, CSB 60-11, 2 (8/2/12).

Determining the credibility of witnesses is uniquely within the province of the hearing officer. In re Roybal, CSB 60-11, 2 (8/2/12), citing In re Rogers, CSB 25-08, 2 (7/16/09).

Since credibility is uniquely within the province of the hearing officer, who found opposing witness more credible than the appellant, then appellant’s claim, that she was the more credible witness, provides no basis to reverse the hearing officerIn re Roybal, CSB 60-11, 2 (8/2/12).

A claim which was not stated in the Petition for Review is not properly before the CSB. In re Webster, CSB 03-11, 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, CSB 03-11, 5 (4/14/12). 

Petitioner’s claim that he did not timely receive his IAB file does not affect hearing officer’s decision where the petitioner 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, CSB 03-11, 5 (4/14/12). 

Petitioner’s allegations did not constitute a claim under CSR 21-21 A where he asserted the nonappearance of a witness at hearing, but he failed to subpoena the witness or request an extension to do so. In re Webster, CSB 03-11, 4 (4/14/12) (decided under former 19-61 A). 

Petitioner failed to state a claim under CSR 19-61 B, erroneous rules interpretation, where he failed to identify a violation or erroneous interpretation of any rule. In re Webster, CSB 03-11, 6 (4/14/12).

Constitutional requirements of criminal prosecutions have no applicability Career Service hearings. In re Webster, CSB 03-11, 4 (4/14/12).

Petitioner waived her right to appeal the hearing officer's dismissal of her sexual harassment claim at the close of the hearing by not arguing in her petition for preview that the dismissal was error. In re Gallo, CSB 63-09, 5 (3/17/11).

Unlike a court of law, the CSB has only limited appellate jurisdiction, defined by CSR 21. In re Schultz, CSB 32-09 & 41-09, 2 (2/18/10).

On petition for review, appellant’s unsupported claims that he was fired for alcoholism, witnesses were bribed and his attorney was guilty of coercion and false representation did not fall within the jurisdiction of the CSB. In re Schultz, CSB 32-09 & 41-09, 2 (2/18/10).

It is not the CSB’s responsibility to sift through the record looking for evidence which may support or refute an argument made on appeal. In re Paz, CSB 07-09, 1 (1/21/10).

The CSB must consider relevant case law cited by a party which was decided after the career service hearing. In re Luna, CSB 42-07, 2 (1/30/09).

When appellate issues included the application of the Lautenberg Amendment to continued employment with the city, there must be sufficient factual findings to support the CSB’s legal conclusions about the amendment’s applicability. In re Luna, CSB 42-07, 4 (1/30/09), citing Woods v. City of Denver, 122 P. 3d 1050, 1055 (Colo.App. 2005).

 

21-21 A: New Evidence (Former 19-61 A)

Appellant’s own medical records which were available to her ten months before hearing are not newly-discovered evidence. In re Lawrence, CSB 41-16, 2 (3/2/17).

Appellant’s attorney’s decision not to enter available evidence into the record does not create new evidence on petition for review. In re Lawrence, CSB 41-16, 2 (3/2/17).

Admission of inmate witness statements was at most harmless error because the rules of evidence are not strictly applied in administrative hearings. In re Kemp, CSB 19-13, 4-5 (7/28/14).

Even if inmate witness statements were admitted in error, it was harmless because the finding was also supported by the testimony of other witnesses. In re Kemp, CSB 19-13, 5 (7/28/14).  

Allegation of new evidence is deemed abandoned where appellant fails to include an affidavit stating the nature of the new evidence and the reasons for its unavailability at hearing. In re Serna, CSB 39-12, 2 (2/21/14).

Petitioner’s allegations did not constitute a claim under CSR 19-61 A where he asserted the nonappearance of witnesses at hearing, but he failed to subpoena them or request an extension to do so. In re Webster, CSB 03-11, 4 (4/14/12).

Because July medical appointment was clearly available when hearing officer subsequently issued dismissal decision in December, appellant failed to establish CSB jurisdiction based on new and material evidence not available when the appeal was before the hearing officer. In re Augustine, CSB 24-09 (4/28/10). 

21-21 B: Erroneous Rules Interpretation (Former 19-61 B)

Agency’s disagreement with hearing officer’s decision is insufficient substitute for a reference to a specific rule or regulation allegedly misinterpreted, accompanied by an explanation why the hearing officer’s interpretation of that rule was incorrect. In re Jackson, CSB 42-16, 2 (6/15/17).

Agency waived its claim of erroneous rules interpretation where it failed to posit an argument in its brief supporting the claim. In re Jackson, CSB 42-16, 2 (6/15/17). 

It is not the CSB policy to require an employee to prove the equivalent of a federal case in order to establish retaliation, harassment or discrimination under the CSRs. In re Koonce, CSB 36-13, 5 (10/16/14).

Hearing officer’s finding appellant’s conduct did not amount to sexual harassment in this specific instance did not diminish agency’s zero-tolerance policy against sexual harassment. In re Gutierrez, CSB 65-11, 5 (4/4/13).

Hearing officer did not misinterpret 16-60 A by finding that supervisor neglected her duty to issue timely PEPRs that provided feedback to employees after being put on notice that she was expected to issue timely and meaningful PEPRs, and finding was conclusively demonstrated by the record. In re Redacted, CSB 56-11, 2 (12/20/12). 

Hearing officer did not misinterpret 16-60 J by finding that supervisor disobeyed an order to handle staff communications with sensitivity and respect based on evidence of her angry confrontation with one employee and assignment of extra work to other employees just to be, in her words, "an asshole." In re Redacted, CSB 56-11, 2-3 (12/20/12).

Petitioner’s claim that hearing officer’s findings were clearly erroneous and “set terrible precedent,” is insufficient basis for argument on petition for review where agency’s brief failed to make any citation to the record. In re Carothers, CSB 13-11, 2 (7/16/12).

Petitioner failed to state a claim under this rule where he failed to identify a violation or erroneous interpretation of any rule. In re Webster, CSB 03-11, 6 (4/14/12).

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

Argument that hearing office erroneously interpreted the CSRs by failing to consider a collective bargaining agreement fails, as discipline of career service employees is controlled by the CSRs, not a CBA, and appellant failed to cite any CSR as being erroneously interpreted. In re Paz, CSB 07-09, 2 (1/21/10), citing In re Espinoza, CSB 30-05 (8/23/06).

Agency did not establish that hearing officer erroneously interpreted rule by failing to address performance standard of "no preventable accidents" where factual finding that accident was not preventable was not challenged. In re Sandrowski, CSB 58-07, 2 (8/21/08).

Hearing officer’s finding that agency’s witness was more credible that appellant’s witnesses does not transmogrify his factual findings into insufficient evidence to support the decision under § 19-61 D. In re Ray, CSB 57-06, 3 (5/20/08).

It is within the hearing officer’s province to assess the credibility of witnesses. In re Ray, CSB 57-06, 3 (5/20/08).

 

21-21 C: Policy Setting Precedent (Former 19-61 C)

Under this rule, the CSB may reverse a hearing officer’s decision that sets precedent involving policy considerations that may have effect beyond the instant appeal. In re Santistevan, CSB 75-16, 2 (11/16/17). 

CSB reversal to two-level demotion, which hearing officer had found unwarranted, required to rectify policy-setting precedent where recreation center supervisor forced a subordinate to improperly issue a free pass, and improperly entered other employees’ time, which actions called into question appellant’s fitness to supervise, were a serious abuse of a supervisory position, and placed City in potential legal jeopardy, which required demotion to non-supervisory position. In re Santistevan, CSB 75-16, 2-3 (11/16/17).

Agency waived its claim of improper policy-setting precedent where it failed to posit an argument in its brief supporting the claim. In re Jackson, CSB 42-16, 2 (6/15/17).

Appellant’s assertion that agency’s actions would “have a negative effect on promotions within DIA” is too speculative to make a claim under CSR 21-21 C. In re Lawrence, CSB 41-16, 2 (3/2/17).

Hearing officer’s finding that appellant’s conduct did not amount to sexual harassment was supported by the record, and therefore did not set bad policy precedent under this rule. In re Gutierrez, CSB 65-11, 4-5 (4/4/13). 

Record did not support petitioner's allegation that hearing officer engaged in misconduct by acting as prosecutor in finding a violation of 16-28 F where the finding was based on evidence that appellant violated orders on at least two occasions. In re Redacted, CSB 56-11, 7 (12/20/12).

Petitioner’s claim that hearing officer’s findings were clearly erroneous and “set terrible precedent,” is insufficient basis for argument on petition for review where agency’s brief failed to make any citation to the record. In re Carothers, CSB 13-11, 2 (7/16/12).

Criminal procedure rules have no applicability Career Service hearings. In re Webster, CSB 03-11, 4 (4/14/12).

There was no policy-setting precedent to appellant’s allegation that the hearing officer’s decision would permit agencies to terminate employees without notice of their violations where he received two warnings regarding his misconduct. In re Napoli, CSB 74-10, 3 (8/18/11).

Fact that decision may have policy-setting considerations, in that agency did not comply with Rule 16, does not require reversal where appellant was given a full and fair opportunity to present her harassment and retaliation claims at hearing. In re Gallo, CSB 63-09, 6 (3/17/11).  

Argument that dismissal of appeal, based on its timeliness, presents an undesirable precedent does not fall within any of the grounds for CSB review, and raises no policy considerations that may have effect beyond the appeal at hand. In re Augustine, CSB 24-09, 2 (4/28/10).

Argument that discipline was inconsistent with other discipline throughout the city, creating a policy-setting precedent, fails because the reasonableness of discipline under the CSRs is determined by the factual circumstances presented in each case, not upon comparisons with other city employees. In re Paz, CSB 07-09, 2 (1/21/10), comparing Denver City Charter 9.4.15F.  

 

21-21 D: Insufficient Evidence (Former 19-61 D)

Agency argument that agency’s facts and conclusions were correct does not present grounds for overturning the hearing officer’s decision as unsupported by the evidence. In re Jackson, CSB 42-16, 3 (6/15/17), citing In re St. Germain, CSB 24-12 (9/3/15).  

CSB concludes from its review of the record that all the factual findings made by the hearing officer are supported by the record and are, therefore, not clearly erroneous.  In re Jackson, CSB 42-16, 3 (6/15/17).

Hearing officer’s consideration of documents not formally admitted into evidence does not warrant reversal for insufficient evidence, where appellant failed to prove retaliation based on properly admitted evidence. In re Koonce, CSB 36-13, 2 (10/16/14). 

Hearing officer's consideration of documents not formally admitted into evidence does not warrant reversal where the record is replete with admissible evidence supporting the factual findings and conclusions. In re Koonce, CSB 36-13, 2 (10/16/14).

Consideration of documents not formally admitted into evidence constitutes harmless error where the record is replete with admitted evidence supporting the hearing officer's factual findings and conclusions. In re Koonce, CSB 36-13, 2 (10/16/14).

The preponderance of evidence standard is not applicable to the CSB's review of a decision by a hearing officer. In re Koonce, CSB 36-13, 2 (10/16/14).

CSB does not re-weigh the evidence or make a de novo determination concerning facts found by the hearing officer, but overturns factual findings only if they are clearly erroneous. In re Koonce, CSB 36-13, 2-3 (10/16/14).

The CSB does not review credibility findings made by the hearing officer. In re Koonce, CSB 36-13, 3 (10/16/14).

Hearing officer's findings and conclusions rejecting retaliation claim were supported by record evidence, consistent with sound policy, and not the product of misinterpretation of our rules. In re Koonce, CSB 36-13, 4 (10/16/14).

Decision upholding demotion for not completing assigned tasks was not clearly erroneous where tasks and time frame for completion were found reasonable, and there was more than sufficient evidence in the record to support the demotion. In re Serna, CSB 39-12, 3 (2/21/14).

Allegation of new evidence is deemed abandoned where appellant fails to include an affidavit stating the nature of the new evidence and the reasons for its unavailability at hearing. In re Serna, CSB 39-12, 2 (2/21/14).  

In order to overturn a hearing officer's finding for insufficient evidence, CSB must determine that the finding is clearly erroneous. In re Redacted, CSB 56-11, 3 (12/20/12). 

A finding is clearly erroneous when it is unsupported by substantial evidence in the record considered as a whole; that is, where the factual finding has no support in the record. In re Redacted, CSB 56-11, 3 (12/20/12), citing In re Murphy, CSB 09-11 (7/3/12).

Considerable and undisputed evidence supported hearing officer's finding that supervisor did not meet her performance standard to submit PEPRs in a timely and meaningful fashion. In re Redacted, CSB 56-11, 3 (12/20/12). 

CSB will not overturn finding of failure to maintain satisfactory work relationships for a litany of noxious conduct creating a toxic work environment, where the conduct was undisputed and supported by the record. In re Redacted, CSB 56-11, 4 (12/20/12).

A hearing officer decision that is based on evidence in the record is not clearly erroneous, and therefore will not be disturbed on review by CSB. In re Redacted, CSB 57-11, 2 (12/20/12).

Hearing officer’s finding that petitioner was dishonest during internal affairs investigation was not clearly erroneous where it was based on determination of credibility supported by record evidence. In re Redacted, CSB 57-11 (12/20/12).

The question to resolve under CSR 21-21 D is not whether there are facts in the record which, had the hearing officer relied on them, support petitioner, but whether the hearing officer’s findings were “clearly erroneous.” In re Roybal, CSB 60-11, 2 (8/2/12).

The issue under CSR 21-21 D is not whether appellant’s version of the facts proves the agency failed to establish any rules violations, but whether the hearing officer’s factual findings are “clearly erroneous,” meaning unsupported by substantial evidence in the record considered as a whole. In re Roybal, CSB 60-11, 2 (8/2/12), citing In re Murphy, CSB 09-11 (7/3/12).  

A factual finding is clearly erroneous when it has no support in the record. In re Roybal, CSB 60-11, 2 (8/2/12), citing In re Murphy, CSB 09-11 (7/3/12).  

Hearing officers are charged with judging the credibility of witnesses and deciding the weight of testimony and other evidence. In re Webster, CSB 03-11, 3 (4/14/12).

Agency was not required to produce potential witnesses on behalf of appellant where appellant could have, but failed, to subpoena them. In re Webster, 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, CSB 03-11, 4 (4/14/12).

Under 21-21 D, 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, CSB 74-10, 3 (8/18/11).

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, CSB 63-09, 5 (3/17/11).

Appellant’s disagreement with the hearing officer's findings does not make them clearly erroneous when they are supported by the evidence in the record. In re Gallo, CSB 63-09, 5 (3/17/11).

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, CSB 63-09, 5 (3/17/11).

A petition raising insufficiency of the evidence under § 19-61 D must be supported by specific citations to the record. In re Paz, CSB 07-09, 1 (1/21/10).

A petitioner who merely ordered a hearing transcript and designated exhibits on appeal did not meet his burden to demonstrate the hearing officer’s findings were unsupported by the record or were clearly erroneous. In re Paz, CSB 07-09, 1 (1/21/10).

The CSB may reverse the hearing officer’s decision on this ground only if it is not supported by the evidence in the record and is clearly erroneous. In re Compos, Herrera, Sandler & Sena, CSB 56-08, 57-08, 58-08 & 59-08, 2 (6/18/09).

Where the record reflects factual evidence supporting the hearing officer’s decision, it is not clearly erroneous. In re Compos, Herrera, Sandler & Sena, CSB 56-08, 57-08, 58-08 & 59-08, 2 (6/18/09).

It is the responsibility of the hearing officer to judge credibility and weigh conflicting evidence. In re Compos, Herrera, Sandler & Sena, CSB 56-08, 57-08, 58-08 & 59-08, 2 (6/18/09).

When the evidence is conflicting, the CSB may not substitute its own conclusions for those of the hearing officer simply because there may be credible evidence supporting a different result. In re Compos, Herrera, Sandler & Sena, CSB 56-08, 57-08, 58-08 & 59-08, 2 (6/18/09).

CSB may reverse hearing officer’s finding of fact only if it is not supported by the evidence in the record and is clearly erroneous. In re Luna, CSB 42-07, 5 (1/30/09).

Hearing officer’s finding that carrying a firearm is an essential duty of a deputy sheriff was not clearly erroneous, where finding was supported by 1) testimony of the Director of Corrections, 2) written agency policy requiring all deputy sheriffs to carry firearms, and 3) a showing of a rational basis for the requirement. In re Luna, CSB 42-07, 5 (1/30/09).

Hearing officer’s factual finding that bicyclist was at fault in accident with appellant's truck supported reversal of discipline based on accident where agency did not challenge sufficiency of the evidence. In re Sandrowski, CSB 58-07, 2 (8/21/08).

Agency's disagreement with hearing officer's factual findings was waived by its failure to challenge sufficiency of the evidence. In re Sandrowski, CSB 58-07, 2 (8/21/08).

Agency did not establish that appellant failed to exercise ordinary care or acted heedless or unmindful of an important work duty in accident between bicyclist and appellant's city truck where hearing officer found that the precautions suggested by agency would not have prevented the accident. In re Sandrowski, CSB 58-07, 2 (8/21/08).

21-21 E: Lack of Jurisdiction (Former 19-61 E)

A petition for review which fails to invoke any of the five grounds for review under CSR 21-21 is subject to dismissal for lack of jurisdiction. In re Redacted, CSB 57-11 (12/20/12).

CSRs provide for interlocutory appeal to the CSB when the hearing officer does not have jurisdiction over the appeal. In re Cullen, CSB 127-08 (2/5/09).  

Where appellant challenges termination of employment, hearing officer has jurisdiction to hear appeal pursuant to § 19-10 A.1.a. In re Cullen, CSB 127-08 (2/5/09).   

Claim that hearing officer abused her discretion in ruling on the issuance of subpoenas prior to the hearing is not grounds for interlocutory appeal. In re Cullen, CSB 127-08 (2/5/09).   

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

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

 

21-22: Form of Petition for Review (Former 19-62)

This rule requires a petition for review specifically to designate the grounds for review under CSR 21-21. In re Redacted, CSB 57-11 (12/20/12).

Petitioner’s failure to petition hearing officer’s dismissal of her sexual harassment claim at the close of hearing waived her right to appeal that dismissal. In re Gallo, CSB 63-09, 5 (3/17/11).

Dispute resolution sources, such as participation in “Facilitated Conversations” or seeking Human Resources’ assistance, does not delay the deadline for filing a petition for review with the CSB. In re Noel, CSA 88-10, 1-2 (Order 12/29/10).

An appeal that does not meet jurisdictional filing requirements must be dismissed. In re Cullen, CSB 127-08, 20 (6/1/09).

21-23: Filing Deadline (Former 19-62)

CSR 21-23 does not contain an explicit close of business deadline for the last day of an appeal period. In re Cullen, CSB 127-08 (6/1/09). 

CSR 21-23 requires filing with the CSB at the personnel director’s office. In re Cullen, CSB 127-08 (6/1/09). 

Since § 21-23 requires petition for review to be filed at the personnel director’s office within fifteen calendar days, and appellant, represented by counsel, filed only at the hearing office, petition was not timely and CSB was without jurisdiction to consider the petition. In re Cullen, CSB 127-08 (6/1/09).

21-25: Stay of Hearing Officer's Decision (Former 19-66)

Agency’s request for stay of appeal to engage in settlement negotiations was untimely where agency failed to file request for transcript or notice that no transcript was requested within deadline set by § 19-64. In re Mestas, Salazar, Fuentes & Sierra, CSB 64-07, 61-07, 62-07 & 67-07, 1 (8/12/08). 

Agency’s request for stay of appeal to engage in settlement negotiations was not supported by good cause where it was untimely, agency failed to consult with appellants about their position on the motion, and appellants opposed it. In re Mestas, Salazar, Fuentes & Sierra, CSB 64-07, 61-07, 62-07 & 67-07, 1-2 (8/12/08).

CSB’s denial of stay of decision reversing terminations requires agency to reinstate appellants to their former classifications and pay grades. In re Mestas, Salazar, Fuentes & Sierra, CSB 64-07, 61-07, 62-07 & 67-07, 2 (8/12/08).

Agency’s elimination of appellants’ positions following their termination does not relieve it of its obligation to reinstate appellants based on reversal of their terminations. In re Mestas, Salazar, Fuentes & Sierra, CSB 64-07, 61-07, 62-07 & 67-07, 2 (8/12/08).

21-26: Hearing Transcript & Record (Former 19-64)

Agency’s motion for stay of appeal was denied as untimely where agency failed to request a transcript or file notice that no transcript was requested within twenty days after filing petition for review. In re Mestas, Salazar, Fuentes & Sierra, CSB 64-07, 61-07, 62-07 & 67-07, 1 (8/12/08). 

 

21-27: Petition for Review to Board – Briefs (Former 19-65)

Where petitioner claimed erroneous rules interpretation and policy-setting precedent, but failed to mention them in her brief, she abandoned those two grounds. In re Roybal, CSB 60-11 (8/2/12).

Those claims in a petition for review which are not subsequently briefed are deemed abandoned. In re Roybal, CSB 60-11, 2 (8/2/12).

Petitioner’s brief may be stricken when its assertions fail to cite any part of the record. In re Carothers, CSB 13-11, 2 (7/16/12).

Petitioner’s claim that hearing officer’s findings were clearly erroneous and “set terrible precedent,” is insufficient basis for petition for review under CSR 19-61 B or C, where agency’s brief failed to make any citation to the record. In re Carothers, CSB 13-11, 2 (7/16/12).

Petition for review is denied for failure to file a brief in support of petition. In re Crenshaw, CSB 18-06 (9/7/06).

 
Denver Revised Municipal Code (DRMC)
2-51:  Code of Ethics
2-60:  Gifts to Officers, Officials & Employees 
2-67:  Use of Public Office for Provate Gain
2-106:  Whistleblower Protection
2-107 D:  Official Misconduct
2-108:  Retaliation Prohibited
2-376 C:  OIM & Other Protected Deliberative Process Privilege
18-1:  Office of Human Resources Created
18-114:  Acting Sheriff Pay

Denver City Charter
Section 1.2.1
Section 9.1.1
Section 9.1.1.E.vi.
Section 9.8.3.A, D

Executive Orders

3:  Motor Vehicle Program
16:  Use of Electronic Communication Devices & Services
65:  Operational Safety & Health Program
94:  Drug & Alcohol Policy
112:  Violence in the Workplace

Departmental Orders
Sheriff's Department Rules, Policies, and Orders
Reception Desk Post Order - Warrants 
Matrix
100.7:  No Uniform Off Duty  
200.2:  Use of Force Reporting 
200.3:  Inaccurate Reporting
200.4:  Deputy sheriff & employees shall not depart from the truth, knowingly make misleading statements, or falsify any report, record, testimony or work related communications
200.4.1:  Misleading or Inaccurate Statements 
200.4.2:  Commission of a Deceptive Act 
200.6:  Access to NCIC/CCIC
200.9:  Full Attention to Duties 
200.10:  Use of City Equipment 
200.11:  Sleeping on Duty 
200.12:  Abandoning Post
200.13:  Disobey Lawful Order 
200.15.1:  Respect for Fellow Deputies & Employees
200.19:  Performance of Duties
300.1:  Enforcing Criminal Statutes 
300.2:  Soliciting Preferential Treatment
300.10.1:  Immoral Conduct
300.11.6:  Conduct Prejudicial
300.17.1:  Fraternization With Prisoner
300.17.3:  Reporting Prohibited Associations
300.19:  Disobedience of Rule
300.20:  Requirement to Obey Laws, Department Rules & Regulations & Orders During Pending Appeal
300.21:  All employees of the Department shall read and obey all directives and orders issued by the Mayor, the Manager of Safety, Director of Corrections and Undersheriff, command officers or their designees that relate to the Sheriff Departments' duties and assignments.  Employees shall also read, maintain familiarity with, and carrry out all Department Orders, Post Orders and written procedures relating to their specific posts and assigments.  
300.21.2:  Impartial Attitude
300.22:  Inappropriate Force
300.23:  Intimidation of Persons
400.2:  Discrimination
400.4.4:  Erroneous Release 
400.5:  Harassment of Prisoners
400.6:  Abuse of Prisoners
400.8.1:  Protection of Inmates from Self-Harm
400.8.2:  Failure to Make Required Rounds 
400.8.3:  Failure to Document Rounds 
400.17:  Failure to Search
1100.4:  Relationships With Other Employees
2420.1:  Sexual Harassment 
2440.1:  Human Relations/Code of Ethics & Standard of Conduct
2700.1:  Uniform Policy
2730.1:  Medical Examinations for Officers & Employees 
5011.1:  Use of Force 
5011.1M:  Use of Force 
5013.1E:  Use of Restraints 
5410.1F:  Suicide Prevention, Death or Substantial Risk of Death in a Facility 

Denver Human Services
Code of Ethics - Communication, Language, and Behavior - Respect
Duties - Leadership and Management

Colorado Rules of Civil Procedure
C.R.C.P. 106 Standard of Review