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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 Career Service Rules by a preponderance of the evidence and that the specified type and degree of discipline was within the range of discipline that could be imposed under the circumstances. In re Vega, CSA 12-14, 2-3 (7/3/14).

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).

In non-Sheriff disciplinary appeals, the Agency retains the burden of persuasion, throughout the case, to prove the Appellant violated one or more cited sections of the Career Service Rules, and to prove its decision to terminate the Appellant’s employment complied with CSR 16-41. In re Gomez, CSA 02-12, 3 (5/14/12).  

The Agency bears the burden to establish the asserted violations of the Career Service Rules by a preponderance of the evidence, and that the discipline was within the range of discipline that can be imposed under the circumstances. In re Roberts, CSA 40-10 & 48-10, 9 (11/15/10), citing In re Gustern, CSB 128-02, 20 (12/23/02); Turner v. Rossmiller, 535 P.2d 751 (Colo. App. 1975).   

The Agency bears the burden, by a preponderance of the evidence, to establish that Appellant violated the Career Service Rules as cited in the letter of discipline and that the discipline was within the range of discipline that can be imposed under the circumstances. In re Jackson, 39-10 (10/7/10), citing In re Gustern, CSB 128-02, 20 (12/23/02); Turner v. Rossmiller, 535 P.2d 751 (Colo. App. 1975);  In re Cotton, 104-09, 5 (10/18/10). 

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). 

DISQUALIFICATION - IN GENERAL 

The Career Service Rules require the disqualification of an employee who becomes unable to perform satisfactorily the essential functions of his position due to a legal impairment. In re Lucero, CSA 59-09 (12/15/09), citing CSR 14-30. 

The agency has the burden of proof to establish by a preponderance of the evidence that a disqualification complied with the Career Service Rules governing disqualifications. In re Crescente, CSA 82-06, 6 (2/2/07), citing In re Cullen, CSB 165-04 (1/18/07); C.R.S. 13-25-127(1) (2006).

DISQUALIFICATION - FOUND 

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a valid driver’s license was an essential function of appellant’s position, and appellant acknowledged his license was revoked.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

Appellant’s contention, that others whose licenses were revoked were allowed to keep their jobs, was not established where such employee did not testify, agency supervisors did not recall such an occurrence, supervisors testified no one in that division has been granted such exception, and no other evidence corroborated appellant’s assertion. In re Lucero, CSA 59-09, 3 (12/15/09).

Appellant’s claim, that DMV permitted installation of an interlock ignition device that would enable Appellant to keep his job, was not established where: no supervisor recalled Appellant mentioning an interlock device at his pre-disciplinary meeting; agency maintains zero-tolerance policy against loss of driver’s license; appellant failed to produce proof of restricted license at his pre-disciplinary meeting, and at hearing over 4 months later still produced no such DMV authorization, lending doubt as to its existence. In re Lucero, CSA 59-09, 3 (12/15/09).

Appellant’s claims, that agency could reassign him to non-driving position after his license was revoked or assign him a chauffeur, were properly denied by agency where: appellant’s position required him to drive in order to supervise his crew; appellant’s division was already understaffed so there was no one available to drive him; and agency was not obligated to accommodate such request for reassignment or for chauffeur. In re Lucero, CSA 59-09, 4 (12/15/09).

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 counter to law. In re Macieyovski, CSA 60-04, 4 (7/27/05).

PEPR

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).

An express finding that “unacceptable” PEPR rating was arbitrary, capricious, and without rational basis or foundation is the sole basis for reversal.  Error in rating calculations is not sufficient to overturn rating. 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).

PREPONDERANCE OF EVIDENCE 

In a grievance appeal, appellant bears the burden to prove, 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 her pay, benefits, or status, under 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 is the proponent of an order as the party bringing forward a whistleblower claim, and thus 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 CRS § 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).    

Appellants failed to prove agency action was arbitrary or capricious by a preponderance of the evidence where agency presented compelling business efficiency reason for its action and evidence that it promoted consistency and fairness. In re Vasquez & Lewis, CSA 08-09 & 09-09, 3, 5 (5/20/09).

Where agency demonstrated that limiting merit increase processing to two days per month simplified pay periods and promoted a consistent and fair merit system, appellants failed to prove action was arbitrary or capricious. In re Vasquez & Lewis, CSA 08-09 & 09-09, 3, 5 (5/20/09).

Appellants failed to prove the agency's interpretation of CB 44 and calculation of merit increases pursuant to Rule 13 were contrary to rule or law where imprecise and confusing language of § 13-10 F was susceptible to a fair interpretation consistent with other career service rules with the aid of reference to earlier versions of the rule. In re Vasquez & Lewis, CSA 08-09 & 09-09, 3, 5 (5/20/09).   

RESIGNATION 

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

The standard by which an employee must prove his resignation was not voluntary is by a preponderance of the evidence. In re Smith, CSA 14-10 (6/4/10), rev'd on other grounds  In re Smith, CSB 14-10 (11/4/10).  

Appellant bears the burden to prove by a preponderance of the evidence that his resignation was not voluntary. In re Qualls, CSA 71-08 (12/4/08).  

If resignation is found to be involuntary, burden shifts to agency to prove it properly dismissed appellant. In re Qualls, CSA 71-08 (12/4/08).  

STATUS  

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

 
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