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Dismissal of Appeal 

See also Jurisdiction and CSR 19-10

Where a court is a trier of fact, as in Career Service appeals, a motion for a directed verdict is deemed a motion to dismiss pursuant to C.R.C.P. 41(b). In re Garegnani & Jones, CSA 29-16 & 30-16, 5 (3/6/17), citing Frontier Exploration v. Am. Nat., 849 P.2d 887 (Colo. App. 1992); Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988).

In a motion to dismiss allegations are not accorded every reasonable inference that can be legitimately drawn from the evidence in favor of the appellant under C.R.C.P. 41(b)(1) In re Garegnani & Jones, CSA 29-16 & 30-16, 5 (3/6/17), citing Rowe v. Bowers, 417 P.2d 503, 505 (Colo. 1996); Blea v. Deluxe/Current, Inc., W.C. Nos 3-940-062 (June 18, 1997).

In appellant’s motion to dismiss disciplinary action, hearing officer decides if judgment for appellant is justified on the agency’s evidence. In re Garegnani & Jones, CSA 29-16 & 30-16, 6 (3/6/17), citing American National Bank v. First National Bank, 28 Colo.App. 486, 476 P.2d 304 (Colo.App. 1970); Bruce v. Moffat County Youth Care Center, W. C. No. 4-311-203 (March 23, 1998); Campbell v. Commercial Credit Plan, Inc., 670 P.2d 813 (Colo.App. 1983); C.R.C.P. 41(b)(1); C.R.C.P. 52.  

Where the only agency witness testified she was not the decision-maker, and was not delegated such authority, her testimony conveying reasons for discipline were inadmissible hearsay. In re Garegnani & Jones, CSA 29-16 & 30-16, 6 (3/6/17).

Agency is not required to retain appellant - whose duties include testifying in court and who was terminated after her shoplifting charge - based on her speculation that the Colorado Supreme Court could overturn its own decision to allow impeachment of a witness who was charged with shoplifting. In re Redacted, CSB 57-11, 3 (12/20/12), citing People v. Segovia, 196 P.3d 1126 (Colo. 2008).

Where the standard of review is whether the hearing officer’s findings were clearly erroneous, appellant’s fourteen-page recitation of her version of the facts failed to address that standard. In re Roybal, CSB 60-11 (8/2/12).  

When appeal was dismissed for appellant’s failure to file a pre-hearing statement, he failed to present extraordinary circumstances to set aside dismissal where he stated he was ill but produced no medical letter, and stated he received show-cause order late, but failed to attach even a late pre-hearing statement. In re Maestas, CSA 33-11, 1 (Order 8/9/11).  

While an employee may grieve any work review (PEPR) rating, only a “failing” 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 PEPR 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 PEPR 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” PEPR rating where appellant did not allege his pay, benefits or status were affected.  In re Muhammad, CSA 06-11 (Order 2/8/11).

Hearing officer's finding that resignation was involuntary was reversed where appellant told his supervisor and director "I quit" after being warned they would accept any future threats to quit, and words unambiguously expressed a clear intent to resign. In re Smith, CSB 14-10 (11/4/10), citing In re Augustine, CSB 05-09 (9/30/09). 

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

Only evaluations with an overall rating of "failing" may be appealed. In re Zacker, CSA 44-10, 1 (Order 7/15/10);citing CSR 19-10 A.2.c. (as amended 1/1/10).    

Retaliation appeal must be dismissed where appellant failed to file a complaint of retaliation prior to filing an appeal, as required by CSR 19-10 A.2.a. In re Rems, CSA 31-10, 2 (Order 5/12/10). 

Appeal alleging retaliation and whistleblower claims must be dismissed when only the pre-disciplinary letter was included, and appellant failed to allege that she reported official misconduct to any official. In re Thomas, CSA 13-10 (Order 3/15/10). 

Where documents outside the pleadings demonstrate there is no genuine issue of material fact supporting a claim, summary judgment is appropriate. In re Abeyta, CSA 110-09, 2 (Order 2/9/10).

Party opposing a motion for summary judgment may not rest upon mere allegations or denials in his pleadings, but must set forth by affidavit or otherwise specific facts showing there is a genuine issue for trial. In re Abeyta, CSA 110-09, 2 (Order 2/9/10), citing C.R.C.P. 56(e).  

Where appellant failed to present any evidence supporting his grievance appeal that he was entitled to be awarded his bid for the original graveyard shift based on seniority or otherwise, summary judgment must be granted for the agency. In re Abeyta, CSA 110-09, 2 (Order 2/9/10).

Where appellant failed to show that the reasons given by the agency for elimination of the shift were a pretext for retaliation and not the real reasons for the action, summary judgment must be granted on the claim of retaliation. In re Abeyta, CSA 110-09, 2-3 (Order 2/9/10), citing Gates v. Caterpillar, Inc., 513 F.3d 680 (7th Cir. 2008).

In a motion to dismiss, appellant bears the burden to prove subject matter jurisdiction. In re Anderson, CSA 102-09 (Order 1/8/10).

Where matters outside the pleadings are presented by a motion to dismiss, the motion is treated as a motion for summary judgment, presenting the issue of whether there are genuine issues of material fact requiring a trial. In re Anderson, CSA 102-09, 2 (Order 1/8/10), citing C.R.Civ.P. Rules 12(c); 56.

Grievance appeal is not subject to dismissal as untimely where parties present 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).

Whether person who took action was a supervisor/manager whose actions could be grieved is a factual issue which prevents the granting of summary judgment. In re Anderson, CSA 102-09, 2 (Order 1/8/10), citing CSR 18-10 C.

Use of a complaint form instead of a grievance form does not justify dismissal of appeal where the form submitted gave the agency notice of the issue raised and the agency treated the issue as an appealable grievance. In re Anderson, CSA 102-09 (Order 1/8/10).

Dismissal is inappropriate where a fair reading of an appeal makes the basis for jurisdiction apparent. In re Anderson, CSA 102-09, 1 (Order 1/8/10), citing In re Bane, CSA 82-09, 2 (Order 10/26/09); In re Williams, CSA 53-08 (Order 8/18/08).

Where appellants state a claim for relief under the jurisdictional rules, appeal is not subject to dismissal for lack of subject matter jurisdiction. In re Vasquez & Lewis, CSA 08-09 & 09-09, 2-3 (5/20/09).

Appeal is not subject to dismissal for lack of subject matter jurisdiction where grievance appeal alleges calculation of merit increases violated 13-60 B and negatively impacted pay.  In re Vasquez & Lewis, CSA 08-09 & 09-09, 2 (5/20/09); CSR 19-10 A.2.b.i.

Appellant failed to establish jurisdiction where he did not submit a copy of a grievance or a departmental denial of any such grievance. In re Morgan, CSA 63-08, 17 (4/6/09). 

Appellant bears the burden of demonstrating subject matter jurisdiction in response to a motion to dismiss appeal. In re Vasquez & Lewis, CSA 08-09 & 09-09 (Order 3/11/09).

To survive a motion to dismiss, appellant needs only to raise a colorable claim under CSR 19. In re Vasquez & Lewis, CSA 08-09 & 09-09 (Order 3/11/09).

Where appellants challenged agency's interpretation of merit date rule, CSR 13-F, and alleged their merit increases were negatively impacted by agency's interpretation, appellants successfully established jurisdiction, under CSR 19 A, in opposition to agency's motion to dismiss. In re Vasquez & Lewis, CSA 08-09 & 09-09 (Order 3/11/09).

Layoff appeal was dismissed after withdrawal of prior layoff appeal where both had identical parties and causes of action challenging the same layoff under Rule 14. In re Cho, CSA 01-09, 2 (Order 1/21/09).

The doctrine of claim preclusion, also known as 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, 7 F.3d 1464, 1467 (10th Cir. 1993).

Res judicata, or 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).

The doctrine of claim preclusion bars later actions based on the same cause of action. In re Cho, CSA 01-09, 3 (Order 1/21/09).

By voluntarily withdrawing his first appeal, appellant also waived his right to challenge the same agency action subsequently under a different legal theory. In re Cho, CSA  01-09, 3 (Order 1/21/09).

Appeal is dismissed with prejudice where appellant's written statement, "I do not want to appeal my layoff", affirmed by his attorney, indicates a voluntary decision with advice of counsel to withdraw the appeal based on a lack of interest in pursuing a hearing on the merits. In re Cho, CSA 01-09 (Order 1/21/09).

Dismissal with prejudice based on appellant's voluntary withdrawal of the appeal, confirmed by his attorney, was a final judgment on the merits where neither appellant nor his attorney moved for relief from the dismissal. In re Cho, CSA 01-09 (Order 1/21/09).

November 2008 notice of layoff that erroneously gave February 28, 2008 as the effective date of layoff did not render the layoff appeal premature and so nullify the appeal's dismissal where appellant's motion to withdraw did not raise prematurity as grounds for the motion, and subsequent filings made clear that he was not misled by the notice of layoff's mistaken substitution of 2008 for 2009. In re Cho, CSA 01-09, 2 (Order 1/21/09).

Appellant's second appeal of a layoff does not raise a separately appealable action by claiming that the layoff violated a different part of the same rule allegedly violated in the withdrawn first appeal where appellant did not claim he became aware of the grounds for the first claim after he moved for its dismissal, or that the facts supporting that claim were concealed from him. In re Cho, CSA 01-09, 2 (Order 1/21/09).

By voluntarily withdrawing layoff appeal, appellant also waived his right to challenge the layoff under a different legal theory that could have been made part of the original appeal. In re Cho, CSA 01-09, 3 (Order 1/21/09); CSR 19-10A.

By voluntarily withdrawing a layoff appeal, appellant waived his right to bring claims of discrimination that could have been brought as part of the direct appeal of his layoff. In re Cho, CSA 01-09, 3 (Order 1/21/09). 

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); CSR 19-10A.

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 9-50 E. In re Anderson, et al., CSA 78-08 to 124-08, 3 (1/7/09).  

In 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 he alleges them would entitle him to relief. In re Anderson, et al., CSA 78-08 to 124-08, 3 (1/7/09), citing In re Boden, CSA 86-06 (Order 11/22/06); Dorman v. City and County of Denver, 03CV4712 (Order 2/4/05).

The Career Service Rules mirror the provisions of the Denver City Charter in which career service employees may be terminated only for cause and may appeal a termination decision to the board and its hearing officers. In re Mounjim, CSB 87-07, 7 (1/8/09).

Because of the right to a post-termination hearing, an employee’s pre-termination rights are limited:  due process requires only notice of the charges, a recitation of the employer’s evidence, and an opportunity to be heard. In re Mounjim, CSB 87-07, 8 (1/8/09), citing Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985).

Dismissal based on settlement must be supported by a finding that decision to settle is a voluntary one. In re Schultz, CSA 70-08 (Order 12/22/08).

Where appellant promptly filed a statement that that he no longer wished to accept the agency's  settlement offer, there could be no finding that settlement was voluntary, and therefore dismissal was inappropriate. In re Schultz, CSA 70-08 (Order 12/22/08). 

Appeal was dismissed based on finding that appellant's resignation was voluntary. In re Qualls, CSA 71-08 (12/4/08).

Where only bases for appeal are allegations of discrimination, harassment and retaliation, appellant's failure to identify a protected status for his discrimination and harassment claims, and his failure to identify a protected activity for his retaliation claim, require dismissal of appeal. In re Mora, 125-08 (Order 11/28/08).

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 (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 (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 (11/28/08).

Motion to dismiss was denied where termination was appealable under § 19-10, and questions of fact were raised by discrimination claim. In re Gonzales, CSA 64-08, 2 (10/10/08).

Allegations made in an appeal must be assumed as true for purposes of motion to dismiss. In re  Gonzales, CSA 64-08, 2 (10/10/08), citing Strout Realty, Inc. v. Snead, 530 P.2d 969 (Colo. App. 1975).

For purposes of a motion to dismiss, allegations made in an appeal which raise questions of fact are assumed to be true. In re Gonzales, CSA 64-08, 2 (10/10/08), citing Strout Realty, Inc. v Snead, 530 P2d. 969 (Colo. App. 1975).

Agency is not entitled to dismissal under C.R.C.P 12 b. where it failed to produce pre-hearing affidavits or testimony that established the absence of genuine issues of material fact raised by appeal. In re Gonzales, CSA 64-08, 2 (10/10/08) citing C.R.C.P. 56. 

A hearing officer is not bound by appellant’s statement of remedies on the appeal form, but must determine by an examination of the appeal documents whether there is an appropriate remedy within the jurisdiction provided by the rules if the agency action is overturned. In re Williams, CSA  53-08 (Order 8/18/08), citing In re Muller, CSA 48-08 (7/24/08). 

When appellant later clarified her intent to appeal suspension, appeal was not subject to dismissal based on appeal form’s statement challenging her transfer and past denials of pay. In re Williams, CSA 53-08 (Order 8/18/08).

Where appellant did not file a formal complaint or grievance alleging discrimination before filing her discrimination appeal under 19-10A.2, then her appeal is premature. In re Williams, CSA 53-08 (Order 8/18/08).

Appeal of discrimination claim under 19-10 A.2 is premature where appellant did not file a formal complaint or grievance alleging discrimination. In re Williams, CSA 53-08 (order 8/18/08), affirmed In re William, CSB 53-08 (5/14/09).

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 appellant cannot prove that the acts, as he alleges them, would entitle him to relief. In re Maes, CSA 36-08 (6/17/08), citing In re Van Dyck, CSA 143-05 (Order 2/16/06).

Where grievance appeal requests as relief the granting of a job interview, it does not affect pay, benefits, or status, and therefore appeal does not state a claim that would entitle appellant to relief. In re Maes, CSA 36-08 (6/17/08). 

Since agency is not required to place appellant’s name on reinstatement list until after the date of her layoff, her claim that the agency failed to do so prior to layoff must be dismissed without prejudice as premature. In re Frazier, CSA 24-08, 3 (4/30/08).

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 that the appellant cannot prove that the facts as she alleges them would entitle her to relief. In re Frazier, CSA 24-08 (4/30/08), citing In re Van Dyck, CSA 143-05, 1 (2/16/06); Dorman v Petrol Aspen, Inc., 914 P.2d 909, 911 (Colo. 1996). 

Since agency is not required to place appellant’s name on reinstatement list until after the date of her layoff, her claim that the agency failed to do so prior to layoff must be dismissed without prejudice as premature. In re Frazier, CSA 24-08, 3 (4/30/08).

Where hearing office jurisdiction over PEPR rating was negated by agency’s oral change of rating from needs improvement to satisfactory, dismissal is without prejudice to the right to refile if change is not confirmed in writing. In re Martin, CSA 15-08 (4/17/08).  

Appeal of a grievance is premature if filed before the agency’s response to the grievance is due. In re Kemp, CSA 07-08, 1 (Order 2/19/08).

Where an appellant seeks one remedy for which the hearing officer has no jurisdiction, but there is jurisdiction that would afford another remedy under the rules, the hearing officer may not dismiss the appeal for lack of jurisdiction. In re Felix, CSA 82-07 (2/14/08).

Hearing officer has no jurisdiction over breach of contract and pain and suffering claims. In re Felix, CSA 82-07 (2/14/08).

Disqualification appeal was dismissed for lack of jurisdiction where only remedy that would be acceptable to appellant is a change of supervisors. In re Felix, CSA 82-07 (2/14/08).

Where hearing officer is without jurisdiction to grant the only relief acceptable to the appellant, appeal may be dismissed upon agency motion or on the hearing officer’s own motion. In re Felix, CSA 82-07 (2/14/08).

Where the only relief acceptable to appellant was a change of supervisor, appeal was dismissed for lack of jurisdiction. In re Felix, CSA 82-07, 2 (2/14/08).

Probationary employee has no property interest in continued employment that would entitle him to pre-termination protection. In re Romero, CSA 03-08 (Order 2/6/08), citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541-45 (1985).

Hearing office has no jurisdiction to hear a claim of discrimination on the grounds of equal protection by a terminated probationary employee based on denial of a pre-disciplinary meeting. In re Romero, CSA 03-08, 2 (Order 2/6/08). 

Appeal was dismissed without prejudice where appellant failed to comply with multiple discovery orders despite having access to the relevant documents requested, and failed to appear at the hearings set on compliance with discovery and on the merits of the appeal. In re Bradley, CSA 60-06, 2 (Order 12/7/06).

In 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 alleged would entitle him to relief. In re Boden, CSA 86-06, 2 (Order 11/22/06), citing Dorman v. Petrol Aspen, Inc., 914 P.2d 909, 911 (Colo. 1996); In re Martinez, CSA 176-03 (6/28/04).  


Appellant substantially complied with 19-10 B.1. by filing grievance raising claim of disparate treatment on the basis of sex. In re Boden, CSA 86-06, 2 (Order 11/22/06), citing In re Benoit, CSA 123-02 (9/18/02); In re Douglas, CSA 317-01 (4/3/02).

In sex discrimination appeal of no-earrings policy for male deputy sheriffs, appellant is entitled to present evidence rebutting agency’s argument that the sense of common bond within the sheriff’s department would be adversely affected if its male members were permitted to wear earrings. In re Boden, CSA 86-06 (Order 11/22/06), citing Rathert and Zybak v. Village of Peotone, 903 F.2d 510 (7th Cir. 1990).

Agency’s argument that no-earrings policy was rationally based on need for public to recognize police officers was not applicable to deputy sheriffs, whose primary duty is the care and custody of inmates in city and county jails. In re Boden, CSA 86-06, (Order 11/22/06).

In 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 alleged would entitle him to relief. In re Boden, CSA 86-06 (Order 11/22/06), citing Dorman v. Petrol Aspen, Inc., 914 P.2d 909, 911 (Colo. 1996); In re Martinez, CSA 176-03 (6/25/04).

Appeal will not be dismissed where appellant’s claim states facts illustrating disparate treatment because of membership in a protected group. In re Boden, CSA 86-06 (Order 11/22/06),citing In re Benoit, CSA 123-02 (9/18/02); In re Douglas,CSA 317-01 (3/22/02).

Agency motion to dismiss appellant’s sex-discrimination appeal must be denied where agency claim stated esprit de corps represented rational basis for distinction, since it was unknown if the agency’s esprit de corps could be materially affected if its male members were permitted to wear earrings. Appellant should be entitled to present evidence that esprit de corps would not be affected. In re Boden, CSA 86-06 (Order 11/22/06).

An on call employee does not have career status and therefore cannot invoke the jurisdiction of the hearing office in an appeal except on grounds of discrimination. In re Escalera, CSA 54-06 (8/14/06); CSRs 5-64, 5-42 (decided under former CSR 5-64).

Appeal was dismissed where it was filed outside the fifteen-day deadline imposed by 19-20 A.1 and appellant offered no good cause for the untimely filing, such as failure to receive notice of the action being appealed or being misinformed about deadlines by someone in a position of authority. In re Apodaca, CSA 40-06 (7/28/06).

Dismissal of appeal challenging amount of accrued vacation pay was not denial of due process, as limited jurisdiction of hearing office covers only defined acts of appointing authorities. In re Lovin, CSA 27-06, 1-2 (5/18/06).

Where hearing office clearly has no jurisdiction under the Career Service Rules, argument that appellant would be denied due process if hearing office does not exercise jurisdiction over his appeal is rejected. In re Lovin, CSA 27-06, 2 (5/18/06).

Neither oral requests for clarification of reprimand nor grievance alleging that supervisor’s behavior was unacceptable is an appealable formal complaint of discriminatory harassment. In re Lewis, CSA 22-06, 2 (5/2/06).

Summary judgment was granted on retaliation claim for lack of evidence that supervisor’s comments constituted an adverse employment action or were caused by appellant’s past grievances, both necessary elements to support the claim. In re Crenshaw, CSA 18-06, 4 (4/6/06).

When matters outside the pleadings have been presented and considered in the resolution of a motion to dismiss, the motion is treated as one for summary judgment pursuant to CRCP Rule 12(b). In re Crenshaw, CSA 18-06, 2 (4/6/06).   

On summary judgment motion, the evidence is viewed in the light most favorable to the non-moving party, and all reasonable inferences are drawn therefrom. In re Crenshaw, CSA 18-06, 2 (4/6/06), citing Bryant v. Farmers Ins. Exch., 432 F.3d 1114 (10th Cir. 2005).

The issue on summary judgment is whether, taking the allegations made in the appeal as true, appellant has presented a genuine issue for hearing under CRCP Rule 56. In re Crenshaw, CSA 18-06, 2 (4/6/06).

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 (3/10/06).

An order requiring remedial training is not a disciplinary action as defined in the Career Service Rules. In re Johnson, CSA 135-05, 3 (3/10/06).

When motion to dismiss and response include matters outside the pleadings, the motion will be treated as a motion for summary judgment by analogy to CRCP Rule 56. In re Johnson, CSA 135-05, 2 (3/10/06).  

Employee who was promoted at salary step one after the withdrawal of an offer of pay at step seven suffered no harm under any Career Service Rule, ordinance or charter provision, and therefore appeal based on withdrawal of the offer was dismissed. In re Mallard, CSA 129-05, 3 (2/23/06) (decided under former CSR 9-61).

Grievance that failed to give agency meaningful notice and an opportunity to respond to retaliation complaint is not ripe for appeal. In re Mallard, CSA 129-05, 3 (2/23/06); CSR 15-100.

Pro se appeal need not assert each claim with precision, as long as it states a claim for which relief may be granted. In re Van Dyck, CSA 143-05, 1 (2/16/06).

Pro se appeal which fails to assert a claim under the proper Career Service Rule will not be dismissed unless it fails to state a claim for which relief may be granted. In re Van Dyck, CSA 143-05, 1 (2/16/06).

Agency may file a motion for more particular statement or may request discovery if an appeal’s statement of the claim is not sufficient to allow the agency to prepare a response. In re Van Dyck, CSA 143-05, 1 (2/16/06).

In reviewing a motion to dismiss prior to hearing, statements in the appeal must be viewed in the light most favorable to appellant, all assertions of material facts must be accepted as true, and the motion to dismiss must be denied unless it appears beyond doubt that appellant cannot prove the facts as alleged would entitle her to relief. In re Van Dyck, CSA 143-05, 1 (2/16/06), citing Dorman v Petrol Aspen, Inc., 914 P.2d 909, 911 (Colo. 1996); In re Martinez, CSA 176-03 (6/28/04); In re Schultz, CSA 130-05 (2/27/06).

Because appellant failed to file a grievance of his PEPR evaluation before filing his appeal, the hearing officer is deprived of subject matter jurisdiction and the appeal must be dismissed. In re Pfeffer, CSA 134-05 (1/23/06) (decided under former CSRs 19-10.e and 18-12).

 
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