ABUSE OF DISCRETION
A decision is an abuse of discretion if it was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination or other considerations not intended by the governing law. In re Foley, CSA 19-06, 8 (11/10/06), citing Wong Wing Hang v. INS, 360 F.2d 715 (2nd Cir. 1966); Kaloudis v. Shaughnessy, 180 F.2d 489, 491 (2nd Cir. 1950).
ADVERSE EMPLOYMENT ACTION
An adverse employment action is employer conduct that 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 (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).
An appointing authority is defined in the rules as the municipal official designated by the annual appropriation ordinance to approve expenditures for a given appropriation. In re Lovin, CSA 27-06, 1 (Order 5/18/06); citing CSR Rule 1, Definitions.
CAUSE OF ACTION
The cause of action in an appeal 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).
DE NOVO HEARING
An appeal de novo means that evidence will be heard as though no previous action had been taken. In re Simpleman, CSA 31-06, 3 (10/20/06), citing Turner v Rossmiller, 532 P.2d 751 (Colo. App. 1975), affirmed In re Simpleman, CSB 31-06 (8/2/07); See also In re Martinez, CSA 30-06 (10/3/06).
A de novo hearing means the hearing officer makes findings of fact independently of the agency’s findings, assesses credibility, and resolves factual disputes. In re Clayton, CSA 128-05, 3 (3/21/06), citing Turner v. Rossmiller, 532 P. 2d 751 (Colo. App. 1975).
DISHONESTY (See also 16-60 E and F)
Dishonesty is any misrepresentation made within the employment context. In re Mounjim, CSB 87-07, 5-6 (1/8/09).
Dishonesty is the knowing communication by an employee of a false statement within the employment relationship. In re Stone, CSA 70-07, 9 (2/25/08).
Dishonesty is an act involving intent to deceive. In re Martinez, CSA 69-05 (1/4/06).
INTIMIDATION (See also 15-110 & 16-60 M)
Intimidation is defined as unlawful coercion; duress; putting in fear. In re Rivas, CSA 49-07, 10 (1/9/08), citing Black’s Law Dictionary 957 (4th ed.1951).
INVOLUNTARY DEMOTION (See also 9-33 C)
Involuntary demotion with attendant loss of pay is defined as a demotion initiated through discipline, disqualification, or in lieu of separation during probation. In re Sullivan, CSA 44-08 (Order 6/13/08).
NEGLECT OF DUTY (See also 16-60 A)
Neglect of duty infers a reasonable duty was communicated to an employee and his utter failure to perform it. In re Gutierrez, CSB 65-11, 2 (4/4/13).
“Neglect of duty” implies failure to perform a duty. In re Martinez, CSA 30-06 (Order 10/3/06); See also In re Simpleman, CSA 31-06 (10/20/06).
Objective standard does not permit consideration of the parties’ intent, rather the fact finder must evaluate conduct in light of how a reasonable person would act or respond in similar circumstances. In re Gutierrez, Colo.App. 65-11, 7-8, (5/19/16), citing Survey Sols., Inc. v. Indus. Claim Appeals Office, 956 P.2d 1275, 1276 (Colo.App. 1998).
RES JUDICATA (Claim preclusion)
Res judicata prevents a party from relitigating a legal claim that was or could have been the subject of a previously issued final judgment. In re Cho, CSA 01-09, 2 (Order 1/21/09), citing Satsky v Paramount Communications, Inc., 7 F.3d 1464, 1467 (10th Cir. 1993).
Res judicata, also known as claim preclusion, requires proof of three elements: 1) a final judgment on the merits in an earlier action, 2) identity of parties, and 3) identity of the causes of action in both suits. In re Cho, CSA 01-09, 2 (Order 1/21/09), citing Wilkes v Wyo. Dept. of Employment Div. of Labor Standards, 314 F.3d 501, 504 (10th Cir. 2003).
Res judicata bars later actions based on the same cause of action. In re Cho, CSA 01-09 (Order 1/21/09).
Board adopts a common sense definition of "willful." In re Redacted, CSB 56-11, 3 (12/20/12).
Circumstances demonstrating willfulness are those demonstrating that the action was taken intentionally, knowingly, or voluntarily, without justifiable excuse. In re Redacted, CSB 56-11, 3 (12/20/12), citing Black's Law Dictionary, Fifth Edition, p. 1434.
OHR Employee Relations Unit
201 W. Colfax Ave., Dept 412
Denver, CO 80202
For general employee relations questions contact:
For ADA questions contact:
To leave a message, please call: