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EXECUTIVE ORDERS 

EO 3 does not prohibit an agency from sending an employee to respond to an emergency in person. In re Bohner, CSB 13-17, 3 (1/18/18).

EO 3 applies only to accidents involving employees and does not permit responses by appellant to emergencies to be coordinated by phone. In re Bohner, CSB 13-17, 3 (1/18/18), citing EO 3 § 8.2.

Agency did not prove appellant violated EO 16, prohibiting excess use of the internet, by accessing Colorado Public Radio and Google websites, where it did not rebut his evidence that he listened to music through CPR’s website while working, and used Google to research work-related ergonomic assessments. In re Sienkiewicz, CSA 10-08, 9 (7/14/08).

Appellant violated CSR 15-82 through his knowing retrieval of obscene photographs via his internet search on a city computer, which did not comport with CSR 15-83’s permissible occasional use of city computers for personal purposes. In re Strasser, CSA 44-07, 4 (10/16/07).

Agency did not violate EO 65, requiring it to have a safety professional or safety representative, where it designated an employee from another agency to perform that function, and EO 65 did not require an agency's safety professional to be on its payroll. In re Sanders, CSA 62-09, 7 (9/24/10).   

IN GENERAL

E.O. 94 prohibits city employees from being under the influence of drugs or alcohol while performing city business. In re Delgado, CSB 75-08, 1 (7/2/09). 

E.O. 94 allows first-time drug or alcohol violators to avoid mandatory dismissal by entering into a stipulation and agreement, which includes lesser discipline, treatment and follow-up testing. In re Delgado, CSB 75-08, 1 (7/2/09). 

E.O. 94 applies to all city employees, separate and apart from DOT regulations that apply specifically to commercial driver’s license holders. In re Delgado, CSB 75-08, 1 (7/2/09).

The DOT regulations grant employers broad discretion in disciplining employees who hold commercial drivers’ licenses and test positive for drug use. In re Delgado, CSB 75-08, 3 (7/2/09) citing United Food and Commercial Workers Intern. Union v. Foster Poultry Farms, 74 F.3d 169, 171 (9th Cir. 1995); 59 Fed. Reg. 7502 (1994).

Employers and employees have the right to negotiate appropriate discipline and conditions of employment following an employee’s positive drug or alcohol test. In re Delgado, CSB 75-08, 3 (7/2/09) citing Eastern Associated Coal Corp. v. United Mine Workers of America. 531 U.S. 57, 65 (2000).

DOT regulations governing testing of CDL license holders did not apply to employee’s follow-up random testing under a stipulation and agreement after his positive drug test. In re Delgado, CSB 75-08, 4 (7/2/09), reversing In re Delgado, CSA 75-08 (1/30/09).

Agency needed to prove at hearing, on appeal of dismissal for violation of stipulation and agreement under E.O. 94, only that the tests performed by the breath alcohol technician accurately measured excessive blood alcohol level. In re Delgado, CSB 75-08, 4 (7/2/09). 

E.O. 94, the city-wide policy concerning drugs and alcohol, is enforced in the same manner as the CSRs. In re Delgado, CSA 75-08, n.2 (1/30/09).

Denver’s 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 D.R.M.C. 18-1, reversed on other grounds In re Sample, CSB 72-07 (10/16/08).  

FOUND

Officers violated their duty under E.O. 94 and Departmental Order 2035.1B to require reasonable suspicion testing of employee, where both smelled something like alcohol on the employee, observed he had red eyes, stumbled, repeated himself, fumbled with keys, and could not open his locker. In re Shelley & Martinez, CSB 30-13 & 32-13, 2 (12/9/14).

Appellant’s admission to his supervisor that he consumed alcohol the night before his test is evidence that he violated his stipulation and agreement to abstain from alcohol consumption. In re Delgado, CSB 75-08, 4-5 (7/2/09), reversed In re Delgado, CSA 75-08 (1/30/09).

Neither provocation nor mutual combat is a defense to a charge pursuant to CSR 16-60 M. of “fighting . . . for any reason.” In re Delmonico, CSA 53-06, 4 (10/26/06).

Co-workers’ testimony about appellant's threats toward supervisors in violation of CSR 16-50A, arising from his resentment of recent suspension, was more credible than his denial of it, since they reported his misconduct only when it began negatively affecting crew morale. In re Katros, CSA 129-04, 7 (3/16/05).

Statements communicating appellant's continued animosity toward his supervisors were reasonably perceived as threats of harm by his co-workers, violative of CSR 16-50A. In re Katros, CSA 129-04, 9 (3/16/05).

NOT FOUND

E.O. 94 and/or DO 2035.1B do not require the concurrence of two supervisors before reasonable suspicion testing must be ordered, as the hearing officer had interpreted them. In re Shelley & Martinez, CSB 30-13 & 32-13, 3 (12/9/14).

Reliance on interpretation of orders by supervisors, which are inconsistent with the actual terms of the orders, is error. In re Shelley & Martinez, CSB 30-13 & 32-13, 3 (12/9/14).

IN GENERAL

A violation of CSR 16-60 M.’s abuse prohibition requires proof of the degree of mean-spiritedness shown by defiling, insulting, using bad language about or reviling someone; or intimidation by making one fearful; or compulsion by threat. In re Roybal CSA 60-11, 7 (3/13/12), citing WEBSTER’S UNABRIDGED DICTIONARY (1979). 

CSR 16-60M only applies to victims who are city employees, officers, or members of the public but not inmates, as other rules specifically address inmate abuse. In re Carothers, 13-11, 15 (1/5/12); In re Weeks, CSA 26-09, 5 (7/20/09), reversed on other grounds, City and County of Denver v. Weeks, 10CA1408 (Colo.App 2011). 

E.O. 112 reference to “intimidation” is an unlawful threat intended to coerce another. In re Leslie, CSA 10-11, 12 (12/5/11) (decided under former CSR 16-60 M). 

E.O. 112 prohibits all forms of violence in the workplace, including actual and attempted physical violence and shouting at another. In re Lykken, CSA 26-10, 7 (7/7/10).

The recipient’s reasonable reaction, and not actor’s intent, is the focus of E.O. 112’s prohibition against workplace violence. In re Lykken, CSA 26-10, 7 (7/7/10). 

Violence in the workplace, in all its forms, is among the most serious offenses under the CSRs. In re Lykken, CSA 26-10, 7 (7/7/10).

That the mayor, agency, and CSRs have separately addressed violence in the workplace demonstrates the emphasis interested authorities have placed on the prevention of and punishment for threats of violence and violent behavior. In re Lykken, CSA 26-10, 7 (7/7/10). 

A threat is a communicated intent to inflict harm or loss on another or his property. In re Harrison, CSA 55-07, 89-07 & 90-07, 50 (6/17/10), citing Black's Law Dictionary (8th ed. 2004).

A statement is a threat if a reasonable person would interpret it as such. In re Harrison, CSA 55-07, 89-07 & 90-07, 50 (6/17/10), citing In re Katros, CSA 129-04, 8 (3/16/05).

EO 112 prohibits words that are reasonably perceived to be threats of physical harm. In re D’Ambrosio, CSA 98-09, 8 (5/7/10) (decided under former CSR 16-60 M).

CSR 16-60 M’s “abuse” is physical or mental maltreatment, often resulting in mental, emotional, sexual or physical injury. In re D’Ambrosio, CSA 98-09, 8 (5/7/10) citing Black’s Law Dictionary (8th ed. 2004).  

EO 112, at subsection 3.0, defines violence as an actual or attempted physical assault, threatening behavior, verbal abuse, intimidation, harassment, swearing at, shouting at, or stalking. In re D’Ambrosio, CSA 98-09, 10 (5/7/10).  

In EO 112, words grouped in a list should be given related meaning to avoid ascribing to one word a meaning so broad that it is inconsistent with its accompanying words. In re D’Ambrosio, CSA 98-09, 10 (5/7/10), citing S.D. Warren Co. v. Maine Bd. of Envir. Prot., 547 U.S. 370, 378 (2006); Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 575 (1995). 

Examples of conduct in EO 112’s definition of violence, if performed in a violent manner, may subject an employee to discipline. In re D’Ambrosio, CSA 98-09, 10 (5/7/10). 

112 prohibits conduct listed in its definition of violence, if performed in a violent manner, including an actual or attempted physical assault, threatening behavior, verbal abuse, intimidation, harassment, swearing at, shouting at, or stalking, as these grouped words should be given related meaning. In re D’Ambrosio, CSA 98-09, 10 (5/7/10). 

An employee may violate EO 112 even if the target of the hostile behavior does not feel intimidated, threatened, or perceive herself as the target, if the actor intended such consequence or a reasonable person would perceive the behavior as intimidating, threatening or hostile. In re Owens, CSA 69-08, 6 (2/6/09).

Violations of EO 112 must be determined by an examination of the totality of the circumstances. In re Owens, CSA 69-08, 6 (2/6/09).

Excessive physical force or cursing can violate CSR 16-60M, but not where a reasonable person in the same situation as the target would not have been in fear of bodily harm. In re Owens, CSA 69-08, 7 (2/6/09), citing In re Redacted, CSA 190-03, 6, 8 (2/13/06); In re Richmond, CSA 18-07, 8 (8/7/07); In re Rogers, CSA 57-07, 6 (3/18/08). 

Gender difference between an actor and target is not determinative of a violation under CSR 16-60 M. In re Owens, CSA 69-08, 6 (2/6/09). 

Proof that the victim of the threat is a city employee is a fundamental element of a violation of CSR 16-50 A. In re Trujillo, CSA 44-05, 3 (11/14/05) (decided under former 16-50 A.8). 

EO 112 prohibits threats of violence which are reasonably perceived to be a threat of imminent harm. The Airport Maintenance and Engineering Division's personnel manual establishes a stricter rule, prohibiting use of threatening or abusive language at any time. In re Katros, CSA 129-04, 7 (3/16/05).

A threat made against a supervisor is a serious matter which affects the ability of the agency to maintain a safe workplace for its employees. In re Katros, CSA 129-04, 8 (3/16/05), citing Vernon v. USPS, 87 M.S.P.R. 392, 400 (2000).

A statement constitutes a threat if a reasonable person would give that meaning to the words used. In re Katros, CSA 129-04, 8 (3/16/05), citing Metz v. Dept. of Treasury, 780 F.2d 1001 (Fed. Cir. 1986).

A trier of fact must give heavy weight to objective factors in determining if a reasonable person would consider the words threatening, including the listener's reaction and apprehension of harm, the speaker's intent, any conditional nature of the statement, and the circumstances surrounding an alleged threat. In re Katros, CSA 129-04, 8 (3/16/05), citing Metz v. Dept. of Treasury, 780 F.2d 1001, 1002-1003 (Fed. Cir. 1986).

Issue is whether appellant intended his statements as a threat, not whether he was likely to carry out a threat. In re Katros, CSA 129-04, 9 (3/16/05), citing Greenough v. Dept. of Army, 73 M.S.P.R. 648 (1997).

FOUND


Appellant did not prove the agency was clearly erroneous in its determination that he violated CSR 15-110/EO 112 (Preventing Violence), where he proceeded to use inappropriate use of force rather than deescalate an incident with an inmate. In re Keller, CSA 47-14, 14 (6/14/18). 

Hearing officer erred in failing to uphold agency’s dismissal of appellant, who threatened violence and retaliation in violation of EO 112, in which the City 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, thereby diminishing the seriousness of violations under EO 112. In re Mancuso, CSB 76-17, 5 (9/6/18).

Appellant's admission that he struck the victim established violation of EO 112. Appellant's explanation of possible medical reasons he blacked out before the assault related to degree of discipline and not to violation of this rule. In re Christianson, CSA 17-18, 4 (8/6/18). 

Appellant’s verbal abuse of her supervisor constituted violence in the workplace under EO 112. In re Martinez, CSA 10-17, 7 (7/19/17).

Appellant violated EO 112 when she threatened and abused supervisor as she left a meeting, nearly slamming  door on supervisor’s fingers, and where her actions were consistent with a prior day’s incident when she slammed door behind supervisor, and were consistent with previous incident of shoving a co-worker out of her way. In re Robinson, CSA 03-13, 10 (6/18/13) (decided under former CSR 16-60 M). 

A violation of CSR 16-60M’s abuse prohibition requires proof of the degree of mean-spiritedness shown by defiling, insulting, using bad language about or reviling someone; or intimidation by making one fearful; or compulsion by threat. In re Roybal CSA 60-11, 7 (3/13/12), citing WEBSTER’S UNABRIDGED DICTIONARY (1979). 

Appellant violated agency Policy 2016 through his threatening, intimidating and hostile conduct to his supervisor, who had instructed him to apologize to a co-worker. In re Weiss, CSA 68-10, 10 (2/14/11).

Appellant violated EO 112, prohibiting threatening or hostile behavior in the workplace, when his supervisor instructed him to apologize to a co-worker, but appellant reacted with rage, making intimidating and hostile statements, in an attempt to bully his supervisor into withdrawing the criticism. In re Weiss, CSA 68-10, 10, 12 (2/14/11). 

Appellant violated EO 112, by abusing a member of the public where he pushed a security door into him for several seconds in an unauthorized attempt to prevent him from leaving. In re Gonzales, CSA 42-10, 8 (12/30/10) (decided under former CSR 16-60 M). 

EO 112 is violated by words a reasonable person would consider threatening or intimidating. In re Cotton, 104-09, p. 11 (10/18/10) citing In re Katros, CSA 129-04, 8 (3/16/05) (decided under former CSR 16-60 M). 

Appellant violated EO 112 where she used angry tone and made wild gestures while standing above co-worker, who was reasonably threatened and intimidated. In re Lykken, CSA 26-10, 6 (7/7/10) (decided under former CSR 16-60 M). 

Appellant violated EO 112 through her public and angry expression toward her supervisor over who should handle a customer. Appellant's claim that she dealt with customer first was irrelevant. In re Lykken, CSA 26-10, 6 (7/7/10) (decided under former CSR 16-60 M). 

Agency proved appellant violated EO 112 where she shouted at co-worker, who was reasonably intimidated. In re Lykken, CSA 26-10, 7 (7/7/10).

Appellant violated EO 112 by banging on hood of airport customer’s car, screaming and swearing in a rageful manner that reasonably caused her to fear he would attack her based on his extreme response to a parking issue. In re D’Ambrosio, CSA 98-09, 8 (5/7/10) (decided under former CSR 16-60 M). 

Appellant violated EO 112 by threatening to inflict harm or loss on airport customer by having his car towed or having him arrested for not possessing his license, actions beyond appellant’s authority. In re D’Ambrosio, CSA 98-09, 8 (5/7/10) (decided under former CSR 16-60 M). 

Appellant violated EO 112 when he asked co-worker who gave a statement to internal affairs why he snitched and told him to watch his back, and co-worker reasonably felt threatened and intimidated. In re Carter, CSA 87-09, 8 (2/17/10) (decided under former CSR 16-60 M). 

Deputy violated CSR 16-60 L as his unexpected hard slap on the buttocks of a fellow officer in front of his peers constituted physical assault in a city workplace, in violation of DO 2441.1D and RR 200.15. In re Rogers, CSA 57-07, 6 (3/18/08).

Appellant violated EO 112 when he assaulted a co-worker who made teasing comments to him a week earlier. In re Delmonico, CSA 53-06, 4-5 (10/26/06) (decided under former CSR 16-60 M).

Appellant violated EO 112 by aggressively questioning ex-girlfriend at work, kicking wet floor sign in her presence, entering through a secured door, and threatening and intimidating another worker. In re Mestas, CSA 37-05, 7-8 (8/4/05) (decided under former CSR 15-10).

Attendant circumstances, including appellant's past display of temper and his suspension therefor, tense work atmosphere, and his willingness to make hostile comments about his supervisors, support conclusion that comments reasonably constituted threats, in violation of EO 112. In re Katros, CSA 129-04, 10 (3/16/05).

Appellant's slap of co-worker's face established physical maltreatment or abuse of the co-worker, and thus violated EO 112. In re Freeman, CSA 40-05 & 75-04, 5 (3/3/05) (decided under former CSR 16-50 A). 

NOT FOUND

Agency did not prove appellant violated EO 112 where it relied entirely on the testimony of an incredible witness. In re Gutierrez, CSA 65-11, 12 (8/28/12) (decided under form CSR 16-60 M).

Appellant did not violate EO 112, prohibiting violent behavior, where his statement “you deserved it,” to his co-worker, was not perceived to be intimidating or threatening, and the decision-maker acted prematurely as he ignored twenty witness statements. In re Cotton, CSA 104-09, 12 (10/18/10).   

Appellant did not threaten co-worker with her statement that his deeds would repay him in kind, since it does not suggest appellant would herself take any action against co-worker. In re Harrison, CSA 55-07, 89-07 & 90-07, 52 (6/17/10).   

Interaction that is merely angry does not constitute abuse under EO 112. In re Harrison, CSA 55-07, 89-07 & 90-07, 53 (6/17/10), citing In re Owens, CSA 69-08, 7 (2/6/09) (decided under former CSR 16-60 M). 

Co-worker complaints for which agency had already disciplined appellant may not be used to support later discipline. In re Harrison, CSA 55-07, 89-07 & 90-07, 53 (6/17/10). 

Agency failed to prove appellant's comment that he would report contractor's procedural violation to contractor’s supervisor violated EO 112, since appellant had authority to oversee contractor. In re D’Ambrosio, CSA 98-09, 10 (5/7/10). 

Agency did not prove appellant violated EO 112 with statement to tow truck driver that appellant would monitor him after witnessing him speeding and without a required badge, as it did not prove statement exceeded appellant's authority or was otherwise improper. In re D’Ambrosio, CSA 98-09, 8 (5/7/10) (decided under form CSR 16-60 M). 

Agency did not prove violation of CSR 16-60 H where it did not prove appellant was aware an investigation was underway when he intimidated a witness. In re Carter, CSA 87-09, 8-9 (2/17/10).

Evidence which proves only that the actor was loud, frustrated, and upset, without more, is insufficiently egregious to violate EO 112. In re Owens, CSA 69-08, 6 (2/6/09).

Agency did not prove violation of EO 112 where evidence was conflicting as to whether appellant shoved his parking citation toward parking supervisor in a threatening manner. In re Owens, CSA 69-08, 6 (2/6/09).

Alleged victim’s claim that appellant “seemed to be using his height and anger to intimidate me which did not work” did not prove intimidation in violation of EO 112. In re Owens, CSA 69-08, 6 (2/6/09).

Appellant’s loud, frustrated interaction with a co-worker did not violate CSR 16-60 M where the target of the exchange did not experience any component of abuse – she was not in fear of bodily harm, and incident did not involve physical force or cursing. In re Owens, CSA 69-08, 7 (2/6/09), citing In re Rogers, CSA 57-07, 6 (3/18/08) [physical force]; In re Redacted, CSA 190-03, 6, 8 (2/13/06) [cursing]; In re Richmond, CSA 18-07, 8 (8/7/07) [bodily harm].

Agency failed to prove a violation of EO 112 where it supported its claim with only the testimony of two unreliable witnesses. In re Abdi, CSA 63-07, 27-28 (2/19/08) (decided under former CSR 16-60 M).

Agency failed to prove that appellant violated CSR 16-60 M where he used alcohol in recreation center with a subordinate employee, but it did not prove that he intimidated subordinate, that he put her in fear of bodily or other harm, or coerced her to use alcohol. In re Rivas, CSA 49-07, 10 (1/9/08).

 
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Americans with Disabilites Act (ADA)
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