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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 P3d 604 (Colo. 2005).

Where appellant failed to challenge CSB’s reinstatement of earlier termination action by filing a remedial writ in district court, appeal of later termination is moot. 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 the appellant cannot prove the facts as he alleges them would entitle him to relief. In re Muller, CSA 48-08 (7/24/08), citing Dorman v. Petrol Aspen, Inc., 914 P.2d 909, 911 (Colo. App. 1996).

CSR § 19-10 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, or the remedy sought is not one which the hearing officer has authority to grant, the hearing officer is left without jurisdiction to consider the merits of the appeal. In re Luft, CSA 80-07 (Order 6/13/08).

IN GENERAL

Complaints of discrimination, harassment or retaliation should not be brought through a grievance under CSR 18-10 C.2, but under a formal complaint, although either provides sufficient notice of claims. In re Gallo, CSB 63-09, 1 (3/17/11).

An employee must have Career Service status to invoke the jurisdiction of the hearing office except on grounds of whistleblower violation. In re Patino, CSA 59-10, 1 (Order 8/20/10); former 5-64.  

Jurisdictional rule, when read with rule regarding internal complaint of harassment, clearly intends to afford an agency notice of the nature of the alleged harassment, discrimination or retaliation, and a real opportunity to investigate, evaluate and correct it. In re Lewis, CSA 22-06, 2 (Order 5/2/06).

HARASSMENT 


Although appellant did not use the correct procedure for raising a discrimination complaint, her grievance put the agency on notice of her complaint of sexual harassment under CSR 15. In re Gallo, CSB 63-09, 1 (3/17/11).

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), aff'd. In re Gallo, CSB 63-09, 4 (3/17/11).

Under 19-10 A.2.a, employee may appeal agency's failure to address a grievance where grievance operated as a formal complaint of sexual/racial harassment under CSR 15. In re Gallo, CSB 63-09, 3 (3/17/11).

Although appellant’s grievance was not proper procedure for her complaint of sexual/racial harassment, it provided notice under CSR 15 sufficient to confer jurisdiction under 19-10A.2.a. In re Gallo, CSB 63-09, 1 (3/17/11).

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

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

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

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

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

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

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

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

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

Transfer of employee engaged in conflict with another was within the authority of the supervisor, and did not prove race harassment. In re Gallo, CSA 63-09, 7 (8/27/10).

Announcement on the public address system inviting inmates to guess the sexual orientation of another employee was not sufficiently outrageous to be considered hostile work environment harassment. In re Carter, CSA 87-09, 7 (2/17/10); citing Hicks v Gates Rubber Co., 833 F. 2d 1406, 1413 (10th Cir. 1987).




Hearing officer lacks jurisdiction over discrimination and harassment appeals where appellant failed to file a complaint with a supervisor. In re Delmonico, CSA 53-06, 7 (10/26/06) (decided under former § 19-10B.1).

Allegation that new work and office assignments and denial of attendance at a conference constituted harassment was not supported by a showing that those actions were imposed because of appellant’s protected status, or that they were so severe or pervasive as to alter the conditions of employment and create an abusive work environment. In re Lewis, CSA 22-06, 3 (Order 5/2/06), citing Faragher v. City of Boca Raton, 524 U.S. 775 (1998).

Rules 19-10 B.1, 15-103 B, and15-104, when read together, clearly intend to afford an agency notice of the nature of the alleged harassment or discrimination, as well as a real opportunity to investigate, evaluate, and correct any harassment or discrimination. In re Lewis, CSA 22-06, 2 (Order 5/2/06) (decided under former § 19-10 B.1).

Where appellant submitted no document that could be interpreted as a formal complaint within the meaning of Rules 15 and 19, but merely expressed his belief that recent actions were punitive, his appeal fails to state the existence of jurisdiction over a harassment complaint. In re Lewis, CSA 22-06, 2 (Order 5/2/06).

Grievance that does not claim the actions were harassment based on sex does not give the agency notice that it was a complaint of discrimination so that the agency may investigate and resolve the problem pursuant to §15-103. In re Johnson, CSA 135-05, 3 (Order 3/10/06) (decided under former § 19-10f).

Harassment complaint must be filed first with supervisor, appointing authority or human resources department before perfecting appeal. In re Vigil, CSA 110-05, 7-8 (3/3/06) (decided under former § 19-10 f).

Harassment claim is not ripe for review where appellant did not first bring complaint of harassment to agency. In re Vigil, CSA 110-05, 7-8 (3/3/06) (decided under former §§19-10 f) and 19-20 e); see also In re Schultz, CSA 130-05, 3 (2/27/06).

Harassment is a theory of discrimination that 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) (decided under former §19-10 f).

Harassment is not a basis for discrimination; i.e., it does not substitute for proof of membership in a protected group. In re Roberts, CSA 179-04, 6 (6/29/05) (decided under former §19-10 f).

Under the Career Service Rules, a claim of harassment is perfected when an employee reports the unwelcome conduct to a supervisor in compliance with §15-103 B. Only the supervisor's disposition of such a report may be appealed. In re Roberts, CSA 179-04, 6 (6/29/05) (decided under former §19-10 f).

Disposition of complaint of harassment may be appealed if the disposition did not stop the prohibited behavior. In re Burns, CSA 57-05 (Order 6/22/05) (decided under former § 19-10f).

Appellant is required to seek an investigation of discrimination or harassment pursuant to § 15-100 et. seq. as a condition precedent to appeal. In re Herzog, CSA 23-05 (Order 5/26/05) (decided under former §19-10f).

Harassment and discrimination based on age and political affiliation are proper subjects for appeal pursuant to §§15-31 D, 15-100 et seq., 19-10 c), and 19-10 f). In re Hurdelbrink, CSA 109-04 & 119-04, 4 (1/5/05) (decided under former§§19-10 c) and f).

DISCRIMINATION 

Although appellant did not use the correct procedure for raising a discrimination complaint, her grievance put the agency on notice of her complaint of sexual harassment under CSR 15. In re Gallo, CSB 63-09, 1 (3/17/11).

A deputy’s statement to internal affairs in support of another deputy's discrimination claim was a protected activity. In re Gallo, CSB 63-09, 3 (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 (8/27/10), aff'dIn re Gallo, CSB 63-09, 4 (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).

Appellant's statement to internal affairs in support of another deputy's discrimination claim was a protected activity. In re Gallo, CSB 63-09, 3 (3/17/11).

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), aff'd In re Gallo, CSB 63-09, 4 (3/17/11).

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

Judicial assistant failed to support her claim that her suspension was motivated by disability discrimination or by her request for reasonable accommodation at the pre-disciplinary meeting.  She stated she is somewhat disabled by reactions to her medications for 3 medical conditions, but presented no evidence her impairments substantially limited her from performing any major life function and provided no support for her claim that the discipline was motivated by her request for reasonable accommodation. In re Roberts, CSA 40-10 & 48-10, 14 (11/15/10).

Complaint of discrimination must be made to the agency before the hearing office may acquire jurisdiction. In re Black, CSA 16-09 (Order 3/12/09).

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

Absent allegations which if proven would assert a prima facie case, the hearing office lacks jurisdiction to proceed to hearing on a discrimination claim. In re Wehmhoefer, CSA 02-06, 3 (Order 2/14/08).

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

Allegation that new director would reward personal popularity or connections does not assert a claim of political affiliation discrimination. In re Wehmhoefer, CSA 02-08, 4 (Order 2/14/08).

Appellant’s grievance, which gave the agency ample notice of his claim of gender-based discrimination, substantially complied with rule, which requires the filing and disposition of a formal complaint of discrimination before an appeal can be filed. In re Boden, CSA 86-06 (11/22/06) (decided under former § 19-10B.1).

Hearing officer lacks jurisdiction over discrimination and harassment appeals where appellant failed to file a complaint with a supervisor. In re Delmonico, CSA 53-06, 7 (10/26/06) (decided under former § 19-10B.1).

If appellant has not first filed a complaint of discrimination in accordance with § 15-103, hearing office has no jurisdiction to hear appeal of the disposition of such complaint. In re Connors, CSA 35-06, 3 (8/9/06) (decided under former § 19-10B.1).

Rules 19-10 B.1, 15-103 B, and15-104, when read together, clearly intend to afford an agency notice of the nature of the alleged harassment or discrimination, as well as a real opportunity to investigate, evaluate, and correct any harassment or discrimination. In re Lewis, CSA 22-06, 2 (5/2/06) (decided under former § 19-10 B.1).

A hostile environment constructive discharge claim must show working conditions so intolerable that a reasonable person would have felt compelled to resign. Unless conditions are beyond ordinary discrimination, a complaining employee is expected to remain on the job while seeking redress. In re Lewis, CSA 22-06, 3 (Order 5/2/06), citing Pennsylvania State Police v. Suders, 542 U.S. 129 (2004); Wilson v. Board of County Commissioners, 703 P.2d 1257 (Colo. 1985); Irving v. Dubuque Packing Co., 689 F.2d 170 (10th Cir. 1982).

Grievance that fails to raise grounds of discrimination does not satisfy requirement to file internal complaint of discrimination. In re Johnson, CSA 135-05, 3 (3/10/06) (decided under former § 19-10f).

Intentional discrimination under §15-101 is proven by evidence of 1) membership in a protected class, 2) an adverse employment action, and 3) evidence which supports an inference of discrimination. In re Johnson, CSA 135-05, 3 (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).

Grievance that does not claim the actions were harassment based on sex does not give the agency notice that it was a complaint of discrimination so that the agency may investigate and resolve the problem pursuant to §15-103. In re Johnson, CSA 135-05, 3 (Order 3/10/06) (decided under former § 19-10f).

Appellant failed to state a disparate treatment claim on the basis of national origin when he did not establish co-worker’s national origin. In re Schultz, CSA 78-05 (8/15/05) (decided under former § 19-10 c).

Where supervisor did not issue the performance evaluation in question and previously rated appellant as outstanding or exceeds expectations, appellant failed to show he was adversely affected by that supervisor as necessary for discrimination claim. In re Schultz, CSA 78-05 (8/15/05) (decided under former § 19-10c).

Career Service Authority is not a necessary party in appellant’s discrimination claim against his agency. In re Macieyovski, CSA 60-04, 3 (7/27/05).

Harassment is not a basis for discrimination; i.e., it does not substitute for proof of membership in a protected group. In re Roberts, CSA 179-04, 6 (6/29/05) (decided under former §19-10 f).

Appellant is required to seek an investigation of discrimination or harassment pursuant to § 15-100 et. seq. as a condition precedent to appeal. In re Herzog, CSA 23-05 (Order 5/26/05) (decided under former §19-10f).

Disparate discipline must compare only those who bear a high degree of similarity to that of the party claiming discrimination. Similarly situated employees 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 appellant’s, without other circumstances that would distinguish the misconduct or the appropriate discipline for it. In re Owens, CSA 139-04, 10 (3/31/05) (decided under former §19-10 c),citing Mazzellav. RCA Global Communications, Inc., 642 F.Supp.1531, 1546-47(S.D.N.Y. 1986).

Evidence that appellant believed she was treated differently but did not know why failed to establish her 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) (decided under former §19-10 c),citing McDonnell Douglas v. Green, 411 U.S. 792 (1973).

Harassment and discrimination based on age and political affiliation are proper subjects for appeal pursuant to §§15-31 D, 15-100 et seq., 19-10 c), and 19-10 f). In re Hurdelbrink, CSA 109-04 & 119-04, 4 (1/5/05) (decided under former§§19-10 c) and f).

RETALIATION 


Burden of proof in a retaliation claim is on appellant to demonstrate that action was retaliatory. In re Gallo, CSB 63-09, 3 (3/17/11).

Retaliation claim not raised in grievance being appealed was not properly before the hearing officer. In re Gallo, CSB 63-09, 3 (3/17/11).

Transfer was motivated by new supervisor's 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), aff'd 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).

Retaliation claim which was not raised in grievance being appealed was not properly before the hearing officer in an appeal of that grievance. In re Gallo, CSB 63-09, 3 (3/17/11).

Appellant did not prove that a reasonable employee in the unit would have found the transfer adverse; i.e, that the transfer was both subjectively and objectively adverse. In re Gallo, CSB 63-09, 3 (3/17/11).

In order to prove a decision-maker's actions were motivated by retaliation, an employee must demonstrate that the decision-maker knew of the employee's protected activity.  Without knowledge, his actions cannot be retaliatory. In re Gallo, CSB 63-09, 4 (3/17/11), citing Hinds v. Sprint/United Mgmt., 523 F.3d 1187, 1203 (10th Cir. 2008); Montes v. Vail Clinic, Inc., 497 F.3d 1160, 1176 (10th Cir. 2007).

There was sufficient evidence to support finding that supervisor had legitimate, business-related reasons for transferring appellant, particularly when transfer did not impact pay, benefits or status, and employees were not entitled to assignments of their choice, as shown by supervisor's own subsequent transfer. In re Gallo, CSB 63-09, 3 (3/17/11).

Claim of retaliation raised for the first time on appeal did not confer jurisdiction to the hearing officer under CSR 19-10A.2.b. where it was not raised in the grievance being appealed. In re Gallo, CSB 63-09, 3 (3/17/11).

Retaliation is established by evidence that 1) appellant 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 own 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, 3 (3/17/11).

In order to prove a decision-maker's actions were motivated by retaliation, an employee must demonstrate that the decision-maker knew of the employee's protected activity.  Without knowledge, his actions cannot be retaliatory. In re Gallo, CSB 63-09, 4 (3/17/11), citing Hinds v. Sprint/United Mgmt., 523 F.3d 1187, 1203 (10th Cir. 2008); Montes v. Vail Clinic, Inc., 497 F.3d 1160, 1176 (10th Cir. 2007).

A retaliation claim is established where an employee makes or supports a protected activity, and the agency response would dissuade a reasonable person in the employee’s position from taking the protected action. In re Gallo, CSA 63-09, 3 (8/27/10); citing Burlington Northern & Santa Fe Ry. v. White, 126 S.Ct. 2405 (U.S. 2006).

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 (8/27/10); citing Burlington Northern & Santa Fe Ry. v. White, 126 S.Ct. 2405 (U.S. 2006).

A retaliation claim is established where an employee makes or supports a protected activity, and the agency response would dissuade a reasonable person in the employee’s position from taking the protected action. In re Gallo, CSA 63-09, 3 (8/27/10); citing Burlington Northern & Santa Fe Ry. v. White, 126 S.Ct. 2405 (U.S. 2006).

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 (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 was dismissed where appellant failed to explain why placement of grievance response in her personnel file was a negative action which would discourage future protected activity. In re Rems, 31-10, 2 (Order 5/12/10).

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

Hearing office does not have jurisdiction to hear retaliation appeal supported only by a pre-disciplinary letter, which is not an adverse action. In re Thomas, CSA 13-10 (Order 3/15/10).

Assignment to a different supervisor is not a reasonable accommodation under the ADA. In re Felix, CSB 82-07, 3 (6/19/08).

Hearing officer had no jurisdiction over appeal of disqualification on the basis of disability where appellant requested a change in supervisors as a reasonable accommodation, a remedy that could not be granted by the hearing officer. 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. 1877); EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act, Question 33 (EEOC Notice No. 915.002, Oct. 17, 2002).

Retaliation claim is premature where appellant did not file a complaint of retaliation as mandated by rule, and grievance that was filed did not allege the discipline being grieved was retaliatory. In re Macieyovski, CSA 24-06, 1 (5/3/06) (decided under former § 19-10B.1).

A formal complaint is an unambiguous statement by an employee of the intent to require the agency to immediately undertake effective, thorough, and objective steps, which may include an investigation by a trained investigator when necessary. In re Lewis, CSA 22-06, 2 (5/2/06), citing §15-104.

Prima facie case of retaliation was not established because appellant failed to prove a causal connection between protected actions and agency’s actions against her. In re Vigil, CSA 110-05, 8 (3/3/06).

Until disposition of a filed complaint, hearing office does not have jurisdiction to hear an appeal of a retaliation claim. In re Lovin, CSA 08-06, 1 (3/1/06) (decided under former § 19-10 B.1).

Where it appears that appellant has not yet received an agency response to his retaliation complaint, there is no jurisdiction to hear the appeal from the disposition of that complaint. In re Lovin, CSA 08-06, 1 (3/1/06) (decided under former § 19-10 B.1).

Appellant did not file an internal complaint of retaliation, and therefore did not establish a claim of retaliation on appeal. In re Schultz, CSA 130-05, 3 (2/27/06) (decided under former § 19-10 f).

Grievance that failed to give agency meaningful notice and an opportunity to respond to retaliation allegation is not ripe for appeal. In re Mallard, CSA 129-05, 3 (2/23/06).

Where appellant claimed the agency retaliated against her in 2003 for her discipline of a subordinate in 1999, the time between the 2 events is too remote to establish causation. In re Redacted, CSA 190-03, 9 (2/13/06).

Appellant did not establish link needed to prove that her discipline was in retaliation for the 1999 discipline of another employee where appellant’s supervisor was different in 1999. In re Redacted, CSA 190-03, 9 (2/13/06).

Where appellant claimed PEPR rating was retaliatory, he had option of grieving the PEPR or filing a direct appeal based on the retaliation claim. In re Schultz, 78-05 (Order 8/15/05).

Where appellant claims that a PEPR rating was retaliatory, a grievance filed based on that claim is not appealable unless appellant complies with the grievance procedure under Rule 18. In re Schultz, 78-05 (Order 8/15/05).

Hearing officer does not have jurisdiction over claim of whistle blowing under CRS § 24-10-109. In re Garcia, CSA 175-04, 6 (7/12/05) (decided under former §19-10c).

Appellant’s good-faith reporting of claimed unlawful practices by co-workers constituted whistle blowing activity protected from retaliation. In re Freeman, CSA 40-05 & 75-04, 7 (3/3/05) (decided under former §19-10 f).

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

A resignation is presumed voluntary. In re Smith, CSB 14-10 (11/4/10), reversing on other grounds In re Smith, CSA 14-10 (6/4/10).

When an expression of intent to quit is clear and unambiguous, employer’s past willingness to relent does not transmogrify an employee’s present expression of intent to quit into an ambiguous expression. In re Smith, CSB 14-10 (11/4/10), reversing 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 which was properly accepted by agency. In re Smith, CSB 14-10 (11/4/10), reversing In re Smith, CSA 14-10 (6/4/10).

The situation in In re Augustine, CSB 05-09 (9/30/09) is distinguished because the 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 (11/4/10), reversing In re Smith, CSA 14-10 (6/4/10).

Hearing office does not have jurisdiction to hear whistleblower appeal supported only by a pre-disciplinary letter, which is not an adverse action. In re Thomas, CSA 13-10 (Order 3/15/10).

Appeal of terminated probationary employee who failed to identify the protected status alleged to be the basis of the discrimination and harassment claims must be dismissed. In re Mora, CSA 125-08 (Order 11/28/08).

Appeal of terminated probationary employee who failed to identify the protected activity alleged to be the basis of retaliation claim must be dismissed. In re Mora, CSA 125-08 (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). 

A direct appeal may be taken only to challenge the acts of an appointing authority, 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 § 19-10 A.). 

Section 19-10 A. provides no basis for a direct appeal of the determination of the amount of accrued vacation leave and compensatory time under § 14-51. In re Lovin, CSA 27-06, 1 (Order 5/18/06) (decided under former § 19-10 A.).

Direct appeal is not available to challenge city auditor’s determination of amount of separated employee’s accrued leave. In re Lovin, CSA 27-06 (Order 5/18/06) (decided under former § 19-10 A.).

Appeal of denial of equipment differential pay is not directly appealable under § 19-10 A. In re Chavez, CSA 09-06 (Order 3/6/06).

Personnel action that is alleged to be analogous to a demotion is not appealable under § 19-10 A. In re Lovin, CSA 08-06, 1 (Order 3/1/06).

The term adverse action is interpreted more liberally in the civil rights setting than in a direct appeal under the Career Service Rules. In re Lovin, CSA 08-06, 1 (Order 3/1/06).

Where appellant was required to have commercial driver’s license and license was revoked, fact that the revocation may have been caused by his brother’s unlawful use of his name 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 pursuant to this rule. In re Romberger, CSA 89-04, 5 (3/2/05) (decided under former § 19-10 b).

An 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 § 19-10 A.1.a; City Charter §§ 9.1.1E.(vi); 9.8.2 (A). 

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 (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 (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 newly created position were substantially different. In re Sanders, CSA 62-09, 5 (9/24/10), distinguishing In re Hamilton, CSA 100-09 & 107-09, 19 (9/17/10).

A key element in determining whether a position transferred to a different agency is 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 an agency's safety professional to be on that agency's 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 establish 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 establish that 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 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 establish that 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 agency’s decision to eliminate non-core functions for structural and economic reasons, and its decision to hire a candidate for a limited position that made recommendations for City-wide safety needs was 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).  

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 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). 

An employee challenging a lay-off 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, n. 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 lay-off 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 lay-off status or seniority to obtain an action in lieu of layoff. In re Hamilton, CSA 100-09 & 107-09, 17 (9/17/10). 

Where the duties and qualifications of a position eliminated by lay-off 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 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 were identical and qualifications nearly identical. In re Hamilton, CSA 100-09 & 107-09, 21-22 (9/17/10). 

Where the sole factor used in selecting for demotions in lieu of lay-off was the interview score, and 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).

The fiscal purpose and results of the lay-off plan are relevant to the reasonableness of an 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 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 money-saving and other suggestions to avoid layoff was a failure to consider evidence on which it was authorized to act. In re Hamilton, CSA 100-09 & 107-09, 27 (9/17/10).

Agency based its layoff action on conclusions reasonable persons fairly considering the evidence could not reach where it failed to diligently procure evidence it was authorized to consider, did not consider the similarity of the original and replacement jobs, deviated from layoff rules, and considered interview scores to the exclusion of more relevant factors in its actions in lieu of layoff. In re Hamilton, CSA 100-09 & 107-09, 27 (9/17/10).

Where layoff decision was intended to be the direct result of accurate calculations from the 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 that evidence. 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 carefully calculate performance numbers and derive accurate ranking from those numbers 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 lacks 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 of the Career Service Rules. 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 the requirement that such separations comply 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. In re Romberger, CSA 89-04, 6 (3/2/05).

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, 2 (10/24/08), citing § 16-30.

Civil rights cases cited by agency for the proposition that placing an employee on investigatory leave is not an adverse employment action are inapplicable, as they do not define an adverse action in the context of the broader language used by city council in providing protection for whistleblowers. In re Muller, CSB 48-08, 2 (10/24/08).

Fact that investigatory leave was not in conformity with § 16-30 adds further support to 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 broadly worded to include not only the adverse agency actions specified in the ordinance, but any direct or indirect form of discipline or penalty, or the threat of discipline or penalty. In re Muller, CSA 48-08 (Order 7/24/08), citing DRMC 2-107(b).

In the light most favorable to appellant, placement of appellant on investigatory leave within minutes of his complaint of mismanagement alleges an adverse action sufficient to state 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). 

Terminated probationary employee’s direct appeal alleging discrimination, harassment and  retaliation was dismissed based on failure to assert protected bases of discrimination and harassment claims, and failure to allege protected activity supporting retaliation claim. In re Mora, CSA 125-08 (Order 11/28/08).   

A probationary employee may appeal the termination of her employment during probation on the grounds of discrimination. In re Lombard-Hunt, CSA 75-07, 7 (3/3/08). 

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 rise to the level of an adverse employment action. In re Wehmhoefer, CSA 02-08, 3 (Order 2/14/08).

Where no discipline is imposed and no change in employee status or benefits occurs, 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 results in a significant change in 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).

A terminated probationary employee asserting a claim of unlawful discrimination must file a complaint with a supervisor or manager. Only after an unfavorable disposition of the complaint can the terminated employee file an appeal to the hearing office. In re Cooley, CSA 28-06 (Order 6/12/06) (decided under former §19-10 D).

It is not the policy of this board to require an employee to prove the equivalent of a federal case in order to establish retaliation, harassment or discrimination under the Career Service Rules. 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 19-20 B.1.b.ii. In re Gallo, CSB 63-09, 3 (3/17/11).

Under 19-20 B.2.b, an employee may appeal an agency's failure to address a grievance where her grievance operated as a formal complaint of sexual/racial harassment under CSR 16. In re Gallo, CSB 63-09, 3 (3/17/11).

While an employee may grieve any performance review rating, only a “unacceptable” rating may be directly appealed to the Hearing Office. In re Muhammad, CSA 06-11 (Order 2/8/11), citing  CSR 19-10(b)(3); CSR 18-40(E)(1). 

If the grievance of a performance review rating is denied, appellant must establish the rating negatively affected pay, benefits or status in order for an appeal to stand. In re Muhammad, CSA 06-11 (Order 2/8/11),

No aspect of the 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 where appellant did not allege his pay, benefits or status were affected. 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).

Use of wrong form does not automatically divest Hearing Office of jurisdiction over an appeal. 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 negatively impacted employee’s pay. In re Anderson, CSA 102-09, 3 (7/20/10).

Jurisdiction for a grievance appeal established by Agency’s acceptance of a designation from another City agency, where appellant filed a grievance regarding the designation of FMLA leave with agency that was designated by the appointing authority, to designate FMLA leave, notify the employee of the designation, and “provide other required information about FMLA leave.” In re Anderson, CSA 102-09, 3 (7/20/10).

Whether person who took leave action was a supervisor/manager whose actions could be grieved is a factual issue requiring resolution at hearing. In re Anderson, CSA 102-09, 2 (Order 1/8/10).

Use of a complaint form to raise grievance did not justify dismissal of appeal where form gave agency notice of grievable issue, and the agency itself treated the issue as an appealable grievance. In re Anderson, 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 under § 19-20 B.1.a 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 the discretion to take or not take a certain action under the rule, a hearing officer may not reverse the course taken unless it runs afoul of a supervening rule or law. In re Anderson et al., CSA 78-08 to 124-08, 3 (1/7/09).  

When a Career Service Rule grants an appointing authority the choice of action or inaction, appellants cannot prove a violation of the rule as required to obtain jurisdiction over an appeal of that grievance. In re Anderson, et al., CSA 78-08 to 124-08, 3 (1/7/09).    

Appeal of grievance regarding denial of pay adjustment is moot as to twenty three appellants whose requests for pay adjustment were granted under 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 (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 (Order 6/13/08).

Appellant’s grievance, which gave the agency ample notice of his claim of gender-based discrimination, substantially complied with rule, which requires the filing and disposition of a formal complaint of discrimination before an appeal can be contemplated. In re Boden, CSA 86-06 (Order 11/22/06) (decided under former § 19-10 B.1).

A written reprimand may not be appealed. In re Valdez, CSA 96-06 (Order 11/16/06) (decided under former § 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 (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 (Order 9/22/06).

Appellant’s argument that the written reprimand was unfair and in violation of the Career Service Rules was insufficient to establish jurisdiction without a showing that it negatively affected his pay, benefits, or status. In re Macieyovski, CSA 24-06 (Order 5/3/06) (decided under former § 19-10 B.2.a).

Neither oral requests for clarification of reprimand nor grievance describing supervisor’s “unacceptable” behavior is an appealable formal complaint of discriminatory harassment. In re Lewis, CSA 22-06, 2 (Order 5/2/06) (decided under former § 19-10 B).

When subject of grievance, a written reprimand, is withdrawn, grievance is not appealable because it does not negatively affect pay, benefits, or status. In re Lewis, CSA 22-06, 2 (Order 5/2/06) (decided under former § 19-10 B.2).

Retirement was voluntary 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).

Loss of pay was attributable to voluntary retirement rather than constructive discharge stemming from a written reprimand that was later withdrawn. 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 § 19-10 B.2).

Grievance challenging written reprimand did not affect pay, benefits or status where the only loss of pay was caused by appellant’s voluntary decision to retire. In re Lewis, CSA 22-06, 3 (Order 5/2/06).

While an individual 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).

Supervisor’s order to attend training was not disciplinary in nature, and therefore denial of grievance based thereon was not appealable as discipline. In re Johnson, CSA 135-05, 3 (Order 3/10/06) (decided under former §§16-10, 16-20, 16-40 and 19-10 f).

Where appellant filed no grievance of pay denial, jurisdiction to appeal pay denial is absent. In re Chavez, CSA 09-06 (Order 3/6/06) (decided under former § 19-10 B.2).

Appellant’s challenge 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).

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).

Grievance of transfer as discriminatory and retaliatory was dismissed for failure to prove the transfer was an adverse action when evidence showed that the transfer did not result in demotion, change in pay, or substantial alteration of working conditions. In re Conway, CSA 127-05, 2 (2/13/06).

When appellant did not dispute he filed his second-step grievance late, hearing officer was without jurisdiction to hear appeal. In re Schultz, CSA 78-05 (Order 8/15/05) (decided under former § 19-10 d).

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

Where parties 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 the remedy of an appeal where the form used gave the agency notice of a grievable issue that it treated as an appealable grievance. In re Anderson, CSA 102-09, 2 (Order 1/8/10).

To acquire subject matter jurisdiction over appeal of a grievance, appellant must allege a rule violation that negatively impacted pay, benefits, or status. In re Vasquez & Lewis, CSA 08-09 & 09-09, 2 (5/20/09).

Appellants' claim that agency's failure to grant their requested pay increases violated § 13-60 B and negatively impacted their pay is all that is required to acquire subject matter jurisdiction under this rule. In re Vasquez & Lewis, CSA 08-09 & 09-09, 2 (5/20/09).

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. §§ 13-50, 19-10 A.2.b.i. 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 P3d 540 (Colo. App. 2003); Garner v.Colorado State Dept. of Personnel, 835 P2d 527 (Colo. App. 1992); Renteria v. Colorado State Dept. of Personnel, 811 P2d 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).

Claim that grievance being appealed violated § 13-10 F and negatively affected appellants' pay supports an appeal under this rule. In re Vasquez & Lewis, CSA 08-09 & 09-09 (Order 3/11/09).

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 (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 (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, 1 (Order 7/15/10). 

A needs improvement performance review may only be reversed if Appellant proves it was arbitrary, capricious, and without rational basis or foundation. In re Harrison, CSA 55-07, 89-07 & 90-07, 43 (6/17/10).

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).                                                 

Senior IT developer failed to prove that her lack of signature authority to approve invoices and contract amendments unfairly restricted her 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 required to serve as liaison between customer and IT staff failed to perform that job 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).

Appellant's emails and testimony demonstrated that she refused to consider the viewpoints of others or attempt to resolve disagreements, contrary to the requirements of her job as project manager. In re Harrison, CSA 55-07, 89-07 & 90-07, 46 (6/17/10).

Project manager's needs improvement rating in customer service was justified by her criticism of co-workers, failure to collaborate with team members, failure to resolve conflicts and issues as they arose, and two substantiated co-worker complaints during the rating period. In re Harrison, CSA 55-07, 89-07 & 90-07, 46-47 (6/17/10).

Project manager's failure to comply with her supervisor's order to establish a common project site, instead relying on numerous lengthy and urgent emails to manage the project, created inefficiency and lack of coordination within the city team and between city and customer, justifying a needs improvement rating in the category of accountability. In re Harrison, CSA 55-07, 89-07 & 90-07, 47 (6/17/10).

Project manager's failure to use best practices, resolve problems as they arose, update the contract specifications, and coordinate server use undermined communication, teamwork and contract performance, justifying a needs improvement rating in accountability. In re Harrison, CSA 55-07, 89-07 & 90-07, 47 (6/17/10).

Project manager's actions in assigning tasks without researching them, overreacting to minor issues and publicly criticizing team members failed to show respect for others, justifying a needs improvement rating in that category. In re Harrison, CSA 55-07, 89-07 & 90-07, 48 (6/17/10).

Given the extent and severity of the problems caused by project manager's performance deficiencies, needs improvement rating was not arbitrary, capricious and without rational basis or foundation. In re Harrison, CSA 55-07, 89-07 & 90-07, 49 (6/17/10).  

The Career Service Rules provide jurisdiction for review of a PEPR with an overall rating of “needs improvement” after a grievance based on that rating has been presented and denied by the agency. In re Roberts, CSA 84-07, 5 (3/7/08). 

The Career Service Rules provide jurisdiction for review of a PEPR with an overall rating of “needs improvement” after a grievance based on that rating has been presented and denied by the agency. In re Roberts, CSA 84-07, 5 (3/7/08). 

An overall rating of “needs improvement” is not rendered arbitrary, capricious, or without rational basis or foundation simply because all of the deficiencies on which it is based occur 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).

“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).

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 (1/3/08), citing In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 5 (1/27/05), citing Wildwood Child & Adult Care Program, Inc. v. Colo. Dept. of Public Health Care and Environment, 985 P. 2d 654, 658 (Colo. App. 1999).

Appellant bears the burden of proving that a needs improvement PEPR was arbitrary, capricious and without rational basis or foundation. In re Macieyovski, CSA 62-06, 3 (12/14/06).

It is insufficient for appellant to show a needs improvement rating was merely miscalculated or erroneous. In re Macieyovski, CSA 62-06, 3 (12/14/06).

Master trades worker assigned to Denver Art Museum who improperly installed frame, failed to change air filters, failed to supervise his staff and maintain expense records, and who developed ineffective personal relations, merited needs improvement rating. In re Macieyovski, CSA 62-06, 5 (12/14/06).

Standards used to review work were objective and well-established in appellant’s job description. In re Macieyovski, CSA 62-06, 6 (12/14/06).

Agency was entitled and obligated to receive and act upon complaints received by agency’s customer, the museum. In re Macieyovski, CSA 62-06, 6 (12/14/06).

Express finding that needs improvement PEPR rating was arbitrary, capricious and without rational basis or foundation is sole basis for reversal of rating. Error in rating calculations is not sufficient. In re Padilla, CSA 25-06, 11 (9/13/06), affirmed In re Padilla, CSB 25-06 (2/15/07); See also In re Macieyovski, CSA 62-06, 3 (12/14/06).

Needs improvement 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).

PEPR rating was arbitrary, capricious, and without rational basis or foundation where deficiencies noted in PEPR were not clearly related to performance standards set in the PEP, PEPR was fraught with mathematical errors and procedural problems, and convincing evidence was presented that pointed to supervisor’s active dislike of the appellant. In re Padilla, CSA 25-06, (9/13/06), affirmed In re Padilla, CSB 25-06 (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 (2/15/07). 

While any performance rating may be grieved, only the denial of a grievance of a “needs improvement” PEPR may be appealed. In re Stenke, CSA 14-06 (Order 3/15/06).

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

Though an individual may grieve any performance rating and directly appeal denial of a grievance of a “needs improvement” rating, no other aspect of the Performance Enhancement Program may be grieved or appealed. 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).

Direct appeal of needs improvement PEPR is dismissed for failure to file a grievance prior to filing the appeal. In re Pfeffer, CSA 134-05 (Order 1/23/06).

Career Service Rules allow a direct appeal only for overall ratings of “below expectations.” In re Schultz, CSA 78-05 (Order 8/15/05) (decided under former § 19-10 e).

Where appellant claimed PEPR rating was retaliatory, he had option of grieving the PEPR or filing a direct appeal based on the retaliation claim. In re Schultz, CSA 78-05 (Order 8/15/05).

Where appellant claims that a PEPR rating was retaliatory, a grievance filed based on that claim is not appealable unless appellant complies with the grievance procedure under Rule 18. In re Schultz, CSA 78-05 (Order 8/15/05).

It is the effect of a failure to perform that 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 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 §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 that attendance, personal relations, personal contact, and safety and security constituted a significant portion of appellant’s duties when her failure to perform in those areas exercised 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).

Agency finding that her performance was below expectations 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).

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).

Below expectations rating in the area of personal contact based on appellant’s continued confrontation of her co-workers was not arbitrary when compared 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 cited in a PEPR 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 upon employee’s refusal to do assigned work until a job audit was completed, calling a co-worker an a--hole, 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, despite the fact that duty was not specifically included in PEP plan, since employee had been performing the duty since her hire three years previously, and was on notice for several months that the agency considered her objection unfounded. In re Leal-McIntyre, CSA 77-03, 134-03 & 167-03, 9 (1/27/05).

An appellant bears 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. Appellant  also has the burden to prove the specified actions negatively affected his 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. where a Sheriff’s Dept. major proved he was entitled to acting pay when he was delegated acting division chief responsibilities for three months under D.R.M.C. § 18-114, that the Agency denied him acting pay, and failure to award him acting pay had a negative impact on his pay for that period. In re Anderson & Connors, 61-10, 63-10, 66-10 & 67-10, 5-6 (12/22/10).  

Hearing office lacks jurisdiction under 19-10 A.2.b. ii. where appellant concedes that the agency filed a timely response to her grievance. In re Rems, 31-10, 1 (Order 5/12/10). 

Where it was undisputed that appellant was granted his third choice for shift assignment because his first and second choices were awarded to employees with greater seniority, hearing officer is without jurisdiction to force agency to grant appellant’s first choice. In re Luft, CSB 43-08 (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 grievance after the agency responded to the grievance. In re Luft, CSB 43-08 (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 (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 (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 (Order 6/13/08), affirmed In re Luft, CSB 43-08 (12/12/08). 

Where parties 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 the remedy of an appeal where the form used gave the agency notice of a grievable issue that it treated as an appealable grievance. In re Anderson, CSA 102-09, 2 (Order 1/8/10).

The Hearings Office lacks authority to consider the appeal of a written reprimand, where the Rules specifically prohibits it. In re Noel, CSA 88-10, 1 (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 dismissed as moot based on agency’s written response presented to appellant during the pre-hearing conference. In re Luft, CSA 43-08, 2 (Order 7/24/08).

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).

Appellant satisfied rule by statement on appeal form, which 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 (Order 5/26/05) (decided under former § 19-22).

Appeal of discipline and whistleblower claim filed more than fifteen days after discipline is untimely where whistleblower claim failed to allege a nominal basis for the claim under whistleblower ordinance. 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 (Order 5/26/10). 

In an appeal containing claims with different filing deadlines, granting a request to enforce each 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, 2 (Order 5/26/10).

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).                                

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 (4/28/10).            

Petitioner failed to present extraordinary circumstances preventing him from filing timely appeal to hearing officer. In re Augustine, CSB 24-09 (4/28/10).  

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, CSB 24-09 (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).

When appellant became aware of her suspension two days after it was imposed, the agency's failure to mail suspension notice to appellant's new address did not deprive her of the opportunity to file a timely appeal within the fifteen days deadline provided under this rule. In re Kemp, CSA 61-08, 2 (Order 9/17/08).

Appeal was untimely when filed two days after the fifteen-day deadline where appellant failed to provide the city with her current address, in violation of § 16-75, and appellant was aware of the grounds for appeal before the time expired. In re Kemp, CSA 61-08, 2 (Order 9/17/08).

The filing deadline contained in §19-20 A. 1. b. is jurisdictional: if the deadline 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). 

CSR 19-20 A. 2. a. makes it clear that, where delivery of the notice was made by mail, the “notice of action” is “the date on the certificate of mailing,” and the 15-day countdown begins the day of the notice of the action. In re Mallard, CSA 65-08 (Order 9/9/08).

There was no support for appellant’s argument that the fifteen-day limit to file his appeal began on the date of his dismissal, four days after the notice of dismissal. In re Mallard, CSA 65-08 (Order 9/9/08).

Delivery of termination notice by regular mail does not automatically extend the filing deadline, though it may be a factor in determining whether good cause exists for late filing of appeal. In re Cervantes, CSA 45-08 (Order 6/11/08), citing In re Wehmhoefer, CSA 02-08, p. 5 (Order 2/14/08).

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).

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).

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).

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).

Appellant who received termination letter via regular mail and filed timely appeal was not prejudiced by the absence of hand delivery or delivery by certified mail of the letter. In re Wehmhoefer, CSA 02-08, 5 (Order 2/14/08).

Termination letter sent by regular mail and not by hand delivery or certified mail, as indicated in this rule, may constitute good cause for the hearing office’s acceptance of a late appeal. In re Wehmhoefer, CSA 02-08, 5 (Order 2/14/08).

Appeal was dismissed when filed outside the fifteen-day deadline and appellant offered no good cause, 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 §19-20 A.1).

Fifteen-day deadline for filing an appeal is computed by counting fifteen calendar days from the date on the certificate of mailing or certificate of hand delivery that appears on the notice of the action being appealed. In re Apodaca, CSA 40-06 (Order 7/28/06).

Appeal was dismissed where it was filed over a month after time expired for filing the appeal, and appellant alleged only that he was unaware of the deadline. In re Rivera, CSA 11-06 (Order 3/1/06).

Rules do not require that an agency advise an employee of the deadline for filing an appeal. In re Rivera, CSA 11-06 (Order 3/1/06).

Notice of the right to appeal under Rule 19 given to appellant in his letter of dismissal was sufficient notice of applicable deadlines. In re Rivera, CSA 11-06 (Order 3/1/06).

Appellant who was notified of agency action on June 30 and who filed appeal on July 18 failed to meet 10-day jurisdictional filing requirement for his appeal. In re Macieyovski, CSA 81-05 (Order 8/17/05) (decided under former § 19-22).

Agency statement to rejected job applicant that “we will be notifying the remaining candidates of our decision” does not serve as a waiver of the 10-day rule during which to file appeal, since appellant acknowledged awareness of his own rejection date. In re Macieyovski, CSA 81-05 (Order 8/17/05) (decided under former § 19-22).

The rule requires that appeals be filed within ten days from date of notice of the action being appealed. In re Shields, CSA 67-05 (Order 7/12/05) (decided under former § 19-22).

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 (Order 7/12/05) (decided under former § 19-22).

Appellant’s misunderstanding of filing requirements does not alter hearing officer’s lack of jurisdiction if filing requirements are not met. In re Shields, CSA 67-05 (Order 7/12/05) (decided under former § 19-22).

Appellant’s decision to grieve his involuntary return from promotional probation before filing appeal does not extend filing requirements under Career Service Rules. In re Shields, CSA 67-05 (Order 7/12/05) (decided under former § 19-22).

Where agency certified it hand-delivered appellant its letter of suspension on January 14, 2005, appeal of suspension was due January 24th. Hearing officer was without jurisdiction of appeal filed on February 4th absent 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 § 19-22).

Appellant’s assertion that she thought supervisor’s acceptance of her appeal was proper filing does not equitably toll filing requirements of rule where agency’s notice advised appellant she may appeal in accordance with Rule 19, and appellant previously filed an appeal properly in hearing office. In re Toguchi, CSA 12-05 (Order 3/9/05) (decided under former § 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).

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 § 19-22).

Appellant’s statement that he was unaware of the deadline for filing an appeal 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 § 19-22).

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). 


 

            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 to be filed on 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 after 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 (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 (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 in a claim in his appeal is proper. In re Hill, CSA 52-10, 1 (Order 1/20/11).

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

Appellant’s discovery of documents from a non-party agency or non-profit, without naming the custodian of those records, must be denied, where 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, 1-2 (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 (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 § 19-45.

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

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).

19-45 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 a 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 extraordinary circumstances amounting 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).

Motions to set aside final orders will be considered only upon 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).

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 sheriff’s department 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 (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).     

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); In re Norris, CSA 86-09 (Order 1/8/10).  

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).  

The decision whether to seal the record may not be based solely on an agreement between the parties. In re Norris, CSA 86-09 (Order 1/8/10).

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); C.R.C.P. 121 § 1-5.

A motion to seal the record must provide sufficient information to determine if good cause exists, to wit: whose privacy or confidences are to be protected; the privacy interests to be protected; the nature of the documents the parties seek to protect; the duration of the requested seal; and a proposal for the least restrictive means which satisfy privacy concerns while respecting the public’s right to access public information. In re Norris, CSA 86-09 (Order 1/8/10).

See also Topics:  Back Pay, Remedies

Agency’s suspension of Appellant was unenforceable under internal attendance rules and policies that contradicted Career Service leave rules. In re Rock, CSA 09-10, 7 (10/5/10).

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 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).

Proper remedy to resolve back pay and benefits is to set the matter for a hearing before the hearing officer. In re Mestas, Salazar, Fuentes & Sierra, CSB 64-07, 61-07, 62-07 & 67-07, 2 (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 grant authority to the hearing officer to issue discipline against one employee based upon the request of another. In re Muller, CSA 48-08, 2 (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. In re Muller, CSA 48-08 (Order 7/24/08), citing DRMC2-109(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 (Order 7/24/08), citing In re Felix, CSA 82-07 (Order 2/14/08).

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).

Without allegation that assignment of shift and specific work duties was discriminatory, retaliatory, harassing, or made in violation of rules, charter, executive order or policy, and negatively impacts pay, benefits, or status, assignment of shift is within discretion of agency and not within hearing officer’s jurisdiction. In re Luft, CSA 43-08, 3 (Order 7/24/08).

There might be circumstances under which 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 jurisdiction over appeal of disqualification on the basis of disability where appellant requested a change in supervisors as a reasonable accommodation, a remedy that could not be granted by the hearing officer. 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. 1877); 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 is without 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 is without authority to grant an employee transfer. In re Van Dyck, CSA 143-05, 1 (Order 2/16/06).

 
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