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RULE 19:  APPEALS 

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).

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).

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).

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). 

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).

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).

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).

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). 

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).

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).

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).

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). 

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).

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).

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).

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).


Petitioner failed to present extraordinary circumstances preventing him from filing timely appeal to hearing officer.  In re Augustine, CSA 24-09 A. (CSB 4/28/2010).   

Document showing July medical appointment was clearly available when hearing officer issued dismissal decision in December, thus disproving the existence of jurisdiction in the career service board based on new and material evidence not available when the appeal was before the hearing officer.  In re Augustine, CSA 24-09 A. (CSB 4/28/2010). 


 

            19-20 A.1.b.

Appeal filed 21 days after the date of notice of the action, is untimely. In re Moore, CSA 21-10 (Order 5/26/10). 

Hearing officer correctly dismissed appeal as untimely when it was filed 16 days after the date of notice of action being appealed.  In re Augustine, CSA 24-09 A. (CSB 4/28/2010).              

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, CSA 24-09 A. (CSB 4/28/2010).             

Petitioner failed to present extraordinary circumstances preventing him from filing timely appeal to hearing officer.  In re Augustine, CSA 24-09 A. (CSB 4/28/2010).   

Document showing July medical appointment was clearly available when hearing officer issued dismissal decision in December, thus disproving the existence of jurisdiction in the career service board based on new and material evidence not available when the appeal was before the hearing officer.  In re Augustine, CSA 24-09 A. (CSB 4/28/2010). 

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).

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). 

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).

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

 

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).

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).

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).

Motion to set aside dismissal of appeal must be justified by a showing of extraordinary circumstances. 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).

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).

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), affirmed, In 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).

 
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