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Burden of Proof

NON-SHERIFF DISCIPLINE

IN GENERAL 

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

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

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

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

FAILURE TO MITIGATE 

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

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

HIRING 

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

PERFORMANCE REVIEW [Formerly known as PEPR]

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

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

PREPONDERANCE OF EVIDENCE 

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

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

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

DE NOVO REVIEW

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

CLEARLY ERRONEOUS - NON-SHERIFF DISCIPLINE

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

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

 

CLEARLY ERRONEOUS - SHERIFF DISCIPLINE

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

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

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

 
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