See also 19-10 and 19-43
Due Process is not denied in denying jurisdiction over the amount of accrued vacation and compensatory time due to former employee, as Hearing Office is not a court of general jurisdiction, hearing only such actions as defined by the rules under which it operates. In re Lovin, CSA 27-06 (Order 5/18/06).
Civilian Review Administrator is authorized to issue discipline in DSD appeal. In re Koonce, CSB 34-17A, 6 (6/21/18), citing In re Gale, CSB 02-15A (7/21/16).
In disciplinary actions under CSR 20, Hearing Officer’s review is not de novo. In re Cole, CSA 04-18, 2 (4/6/18).
Civilian Review Administrator is lawfully empowered to assess discipline of DSD deputy. In re Rocha, CSB 19-16A, 5 (7/6/17), citing In re Gale, CSB 02-15A (7/21/16); see also In re Steckman, CSB 30-15A, 4 (1/19/17).
A petition for review which fails to invoke any of the five grounds for review under CSR 19-61 [now 21-21] is subject to dismissal for lack of jurisdiction. In re Redacted, CSB 57-11A (12/20/12).
In determining whether a pro-se petition for review states a claim for which the CSB has jurisdiction, the CSB should interpret the petition liberally. In re Redacted, CSB 57-11A, 2 (12/20/12), citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Jurisdiction under CSR 19-61B [now 21-21B] requires more than a conclusory statement that some unidentified rule was interpreted incorrectly. In re Napoli, CSB 74-10A, 3 (8/18/11).
No violation under CSR 19-61C (policy setting precedent) [now 21-21C], where Appellant’s argument that Hearing Officer’s decision renders any City employee subject to termination without notice of his violations was contrary to two notices he received about the policy he violated. In re Napoli, CSB 74-10A, 3 (8/18/11).
Under CSR 19-61D [now 21-21D], the CSB may reverse the Hearing Officer’s decision only if it is not supported by the evidence in the record and is clearly erroneous. In re Napoli, CSB 74-10A, 3 (8/18/11).
Although the CSB has jurisdiction to review the sufficiency of the evidence, it may not substitute its own conclusions for those of the Hearing Officer based on conflicting testimony that may support a different result. In re Napoli, CSB 74-10A, 3-4 (8/18/11).
It is the Hearing Officer’s responsibility to judge the credibility of witnesses, determine motive, bias or prejudice, and decide the weight given to the evidence. In re Napoli, CSB 74-10A, 3 (8/18/11).
Where there is conflicting evidence that may support an alternate conclusion to the Hearing Officer’s decision, the CSB is required to review the decision under a “clearly erroneous” standard. In re Napoli, CSB 74-10A, 4 (8/18/11).
No jurisdiction existed to reinstate appeal where settlement agreement reserved the right to revoke agreement only as it pertained to the Age Discrimination in Employment Act. In re Compton, CSA 71-10 (Order 3/11/11).
Hearing Officer may interpret a settlement agreement as part of the authority “to implement and maintain a fair and efficient process for appeals.” In re Compton, CSA 71-10, 2 (Order 3/31/11), citing CSR 19-30 A [now 19-50].
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 an extension after the deadline. In re Noel, CSA 88-10 (Order 12/28/10).
Appeals to the Career Service Hearing Office, other than for whistleblowing claims, must be filed within 15 days after the date of notice of the action being appealed. In re Webster, CSA 78-10 (Order 12/7/10).
While an attorney’s neglect figures prominently in post-judgment remedies, such as CRCP 60(b), exceptions to jurisdictional filing deadlines are limited to exceptional circumstances, such as an agency misleading an appellant concerning his filing deadline. In re Webster, CSA 78-1 (Order 12/7/10).
In the absence of showing extraordinary circumstances, the failure of appellant’s attorney to file an appeal timely requires dismissal of the appeal. In re Webster, CSA 78-10, 2 (Order 12/7/10).
Sanctions against appellant’s attorney for failure to file client’s appeal timely are not within the jurisdiction of the Career Service Hearing Office. In re Webster, CSA 78-10 (Order 12/7/10).
Only those grounds listed in 19-10A.1. [now 19-20A.1.] are subject to direct appeal, and resignation is not one of them. In re Smith, CSA 14-10, 2 (6/4/10), rev’d on other grounds In re Smith, CSB 14-10A (11/4/10).
If resignation is involuntary, agency improperly dismissed appellant and dismissal must be reversed. In re Smith, CSA 14-10, 5 (6/4/10), rev’d on other grounds In re Smith, CSB 14-10A (11/4/10).
Appellant established jurisdiction by proof of a dispute over whether his resignation was involuntary, having been prompted by emotional distress, and that the agency had at first accepted then rejected his resignation. In re Smith, CSA 14-10, 4-5 (6/4/10), rev’d on other grounds In re Smith, CSB 14-10A (11/4/10).
A separate penalty hearing is appropriate to complete a de novo determination on the appropriateness of the agency’s termination of appellant where it established that he violated only three out of ten rules asserted in the disciplinary letter, inexplicably gave substantially different penalties to the participants in the incident, and failed to read twenty witness statements asserting that appellant was not the aggressor in the incident, and he had no previous disciplinary history. In re Cotton, CSA 104-09, 13 (10/18/10).
Career Service Hearing Office has jurisdiction over layoff appeal of employee with career status. In re Sanders, CSA 62-09, 4 (9/24/10), citing CSR 19-10 A.1.e. [now 19-20A.1.e.], City Charter 9.1.1.E.(vi), 9.8.2.(A).
An employee must have Career Service status to invoke the jurisdiction of the Career Service Hearing Office except on grounds of whistleblower violation. In re Patino, CSA 59-10 (Order 8/20/10).
An employee with Career Service status at the time of his termination from employment is entitled to file a direct appeal of his termination under CSR 19-10 A.1.a [now 19-20A.1.a.], and by the City’s Charter, 9.1.1E.(vi); 9.8.2(A). In re Abbey, CSA 99-09, 6 (8/9/10).
Appellant has the burden to establish jurisdiction over the denial of her grievance under CSR 19-20 A.2.b.i. [now 19-20B.1.a.] In re Anderson, 102-09, 3 (7/20/10).
Appellant’s use of wrong form does not automatically divest Career Service Hearing Office of jurisdiction over an appeal. In re Anderson, 102-09, 3 (7/20/10).
Where grievance was proper format for her allegations, appellant’s filing of a complaint instead of a grievance does not divest Career Service Hearing Office of jurisdiction over her appeal, as long as the complaint substantially complied with grievance requirements under CSR 18. In re Anderson, 102-09, 3 (7/20/10).
Hearing was required on disputed issues of fact where appellant raised a colorable claim of jurisdiction, even though she filed a complaint, instead of a grievance, asserting that the agency violated a CSR that negatively impacted her pay. In re Anderson, 102-09, 3 (7/20/10).
Career Service Hearing Office has jurisdiction over agency denial of appellant’s grievance which, resulted in an alleged CSR violation and negatively impacted employee’s pay. In re Anderson, 102-09, 3 (7/20/10).
Jurisdiction for a grievance appeal established by agency’s acceptance of a designation from another City agency, to which it had delegated its responsibility to designate FMLA leave, notify the employee of the designation, and “provide other required information about FMLA leave,” which designation the employee grieved. In re Anderson, 102-09, 3 (7/20/10).
Jurisdiction is created by the CSRs, and cannot be created by any other means, including an outdated appeal form. In re Zacker, 44-10 (Order 7/15/10).
Pro se appellants should not be held to exacting pleading standards, and Hearing Officers must determine their legal causes of action. In re Moore, CSA 103-09 & 21-10, 3 (Order 5/26/10), citing In re Felix, CSA 82-07 (Order 2/14/08).
Appeal of discipline and whistleblower claim filed more than 15 days after discipline is untimely where appellant failed to allege a nominal basis for her claim under whistleblower ordinance. In re Moore, CSA 103-09 & 21-10, 2-3 (Order 5/26/10).
CSRs do not empower Hearing Officer to stay operation of a disciplinary suspension prior to hearing. In re James, CSA 33-10 (Order 5/18/10).
The jurisdiction of the Career Service Hearing Office includes the authority to hear and decide all evidence relevant to a dismissal, including a claim that the dismissal was unfair under the CSRs. In re Koehler, CSA 113-09, 2 (Order 1/27/10), citing In re Stone, CSA 70-07 (Order 11/20/07); In re Diaz, CSB 72-06A (9/20/07).
The Career Service Hearing Office does not have subject matter jurisdiction over a collective bargaining agreement. In re Paz, CSB 07-09A, 2 (1/21/10), citing In re Espinoza, CSB 30-05A (8/23/06).
Even though employee belonged to a trade union and was subject to the terms of a collective bargaining agreement, as a career service employee his conduct was controlled by the CSRs, not the collective bargaining agreement. In re Paz, CSB 07-09A, 2 (1/21/10).
When appellant filed the appeal of his suspension one day after the 15-day filing deadline, the Hearing Officer lacks jurisdiction to hear the appeal. In re Sundrup, CSA 112-09 (Order 1/13/10), citing In re Delgado, CSA 182-04 (Order 3/9/05); Widener v. District Court, 615 P.2d 33 (Colo. 1980).
Where agency withdrew the action giving rise to the appeal, no justiciable issue remains to be heard. In re Muller, CSA 48-08 (Order 4/15/09).
The Career Service Hearing Office lacks jurisdiction to proceed on an appeal absent proof the agency took an appealable action within 15 days of the date of the appeal. In re Schultz, CSA 21-09, 2 (Order 4/13/09).
The CSRs provide the sole jurisdictional basis for appeals to be heard by Hearing Officers. In re Morgan, CSA 63-08, 16 (4/6/09).
Hearing Officers are without jurisdiction to determine matters asserting original jurisdiction under federal law or regulation. In re Morgan, CSA 63-08, 16 (4/6/09).
As a civilian employee of the police department, appellant is a member of the career service personnel system, and may appeal discipline under the CSRs. In re Morgan, CSA 63-08, 2 (4/6/09), citing City Charter, 9.1.1.E.(vi), 9.8.2.(A); CSR 19-10 A.1.a. [now 19-20A.1.a.]
Police officers belong to the classified service, which provides the rights to organize and bargain collectively and appeal rights under an alternate merit personnel system. In re Morgan, CSA 63-08, 2 (4/6/09).
The Career Service Hearing Office has only such jurisdiction as is conferred by the City Charter and under the CSRs. In re Black, CSA 16-09 (Order 3/12/09).
In the absence of jurisdiction, the Hearing Officer may not consider the merits of a claim. In re Black, CSA 16-09 (Order 3/12/09).
Where appeal fails to identify Career Service Hearing Office jurisdiction over the subject matter of the claim, it may not consider the merits of the claim. In re Black, CSA 16-09 (Order 3/12/09).
An employee may grieve a written reprimand, but may not appeal the unfavorable disposition of the grievance even though there is no alternative forum for appeal. In re Black, CSA 16-09 (Order 3/12/09).
Written reprimands may not be appealed. In re Black, CSA 16-09 (Order 3/12/09).
The substance of the claim, as evidenced by the facts alleged and the relief requested, determines the existence of subject matter jurisdiction. In re Vasquez & Lewis, CSA 08-09 & 09-09 (Order 3/11/09), citing City of Boulder v. Public Service Company of Colorado, 996 P.2d 198 (Colo.App. 1999).
Hearing Officer’s jurisdiction is limited to affirming, reversing, or modifying actions which give rise to an appeal. In re Muller, CSB 48-08A, 2 (3/10/09); CSR 19-55 [now 19-58].
Hearing Officers are without jurisdiction to rule on the constitutionality of the CSRs. In re Sawyer & Sproul, CSA 33-08 & 34-08, 17 (1/27/09), citing In re Ray, CSA 57-06, 3 (12/4/06).
Where layoff appeal was dismissed with prejudice on appellant’s own motion, later claim that same layoff was motivated by age discrimination was barred by claim preclusion. In re Cho, CSA 01-09, 2-3 (Order 1/21/09).
The CSB’s reversal of a Hearing Officer’s decision is a final determination, absent an appeal to the district court pursuant to CRCP 106. In re Sample, CSA 55-08, 2 (Order 1/7/09).
When a CSR grants the appointing authority the discretion to take or not to 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 (Order 1/7/09).
Appellants’ claim for pay adjustment under 9-50E is moot, where the agency granted them the remedy they requested. In re Anderson et al., CSA 78-08 to 124-08, 3 (Order 1/7/09).
Where appellant failed to challenge CSB’s reinstatement of earlier termination action in district court, appeal of his later termination is moot. In re Sample, CSA 55-08, 2 (Order 1/7/09).
Where the agency dismissed appellant for job abandonment and he later resigned, he must first prove his resignation was involuntary, and only then does the burden shift to the agency to prove it properly dismissed him for job abandonment. In re Qualls, CSA 71-08, 3-4 (12/4/08).
Where the appellant seeks one remedy for which the Hearing Officer has no jurisdiction, but another remedy under the CSR not sought by the appellant would afford relief, the Hearing Officer may not dismiss the appeal for lack of jurisdiction but must assess the possible causes of action and avenues of relief to afford the appellant the broadest possible relief under the CSR. In re Luft, CSA 43-08, 2 (Order 7/24/08).
Where the Hearing Officer lacks jurisdiction to grant the only relief acceptable to the appellant, the appeal may be dismissed upon agency motion or upon the Hearing Officer’s own motion. In re Luft, CSA 43-08, 2 (Order 7/24/08), citing In re Felix, CSA 82-07 (Order 2/14/08).
Where appellant did not allege any exception listed in 19-10 A.2.b. [now 19-20A], the agency’s method of assigning employees is entirely within its discretion, and not within the jurisdiction of a Hearing Officer. In re Luft, CSA 43-08, 2-3 (Order 7/24/08).
Hearing Officer must determine whether appellant is disqualified under the federal Lautenberg Amendment independently of sheriff's department and its advisors. In re Luna, CSA 42-07, 6 (7/15/08), citing In re Ray, CSB 57-06A (8/14/07).
Hearing Officer’s authority to award back pay derives from CSR 19-55 [now 19-58], which requires a decision affirming, modifying, or reversing the agency action challenged by the appeal. In re Maes, CSA 180-03, 5 (6/20/08).
Authority to modify or reverse agency termination decision necessarily includes authority to award reinstatement, restoration of lost pay at the applicable rate, and payment of any lost benefits. In re Maes, CSA 180-03, 6 (6/20/08).
Career Service Hearing Office lacks jurisdiction to award damages for breach of contract, including consequential damages arising from any lost opportunities for secondary employment. In re Maes, CSA 180-03, 6 (6/20/08).
Hearing Officer’s citation to authority not in the record does not create jurisdictional ground for appeal to CSB under CSR 19-61B [now 21-21B], erroneous rules interpretation where such evidence was a small part of the record supporting his findings. In re Ray, CSB 57-06A, 2 (5/20/08).
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).
When jurisdiction turns on resolving factual issues, the Hearing Officer must determine those facts before the CSB will intervene on an interlocutory appeal. In re Brooks, CSB 91-07A, 2 (4/9/08).
Lack of proper delivery of an ultimate employment decision is not a separate ground for jurisdiction under CSR 19. In re Wehmhoefer, CSA 02-08, 5 (Order 2/14/08).
Hearing Officer is without jurisdiction to grant a change in supervisor. In re Felix, CSA 82-07, 2 (Order 2/14/08).
Hearing Officer has no jurisdiction over breach of contract and pain and suffering claims. In re Felix, CSA 82-07 (Order 2/14/08).
Hearing Officer has no jurisdiction to determine whether agency’s action in denying holiday pay violated a collective bargaining agreement. In re Sullivan, CSB 60-07A (2/1/08).
Hearing Officer has no authority to require changing the supervisor’s comments within a PEPR, even if the Hearing Officer had authority to review Appellant’s PEPR rating. In re Hoffman, CSA 25-05 (Order 8/18/05).
Hearing Officer does not have jurisdiction over claim of whistleblowing under CRS 24-10-109. In re Garcia, CSA 175-04, 6 (7/12/05).
The subjects of job abolishment, demotion appointments and layoff are properly before the Hearing Officer pursuant to the CSRs 4 [now 3] and 14. In re Hurdelbrink, CSA 109-04 & 119-04, 4 (1/5/05).
Transfer was not an employment action that could be appealed directly to the Career Service Hearing Office under 19-10 A.1. [now 19-20]. In re Gallo, CSB 63-09A, 2-3 (3/17/11).
MOTION TO DISMISS
Dismissal is inappropriate where basis of jurisdiction is apparent from a fair reading of the appeal documents. In re Anderson, CSA 102-09 (Order 1/8/10), citing In re Bane, CSA 82-09, 2 (Order 10/26/09).
Motion to dismiss that alleges facts beyond those contained in the appeal is treated as motion for summary judgment. In re Anderson, CSA 102-09, 3 (Order 1/8/10), citing CRCP Rules 12(c) and 56.
A motion to dismiss treated as motion for summary judgment presents the issue of whether there are genuine issues of material fact that require a hearing. In re Anderson, CSA 102-09 (Order 1/8/10).
Where appellants state a claim for relief under the jurisdictional CSRs, 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).
Though no aspect of appellants’ PEP rating is appealable, where appellants do not challenge the PEP but rather allege a CSR violation that has negatively impacted their pay, appellants have stated a claim for relief under the jurisdictional CSRs. In re Vasquez & Lewis, CSA 08-09 & 09-09, 2-3 (5/20/09), citing CSRs 13-50 [now 13-39], 19-10 A.2.b.i. [now 19-20B.1.a.]
Appellants' claim that agency's failure to grant their requested pay increases violated 13-60 B and negatively impacted their pay was sufficient to acquire subject matter jurisdiction. In re Vasquez & Lewis, CSA 08-09 & 09-09, 2 (5/20/09).
Where grievance appeal alleges calculation of merit increases violated 13-60 B and negatively impacted pay, appeal is not subject to dismissal for lack of subject matter jurisdiction. In re Vasquez & Lewis, CSA 08-09 & 09-09 (5/20/09).
In response to a motion to dismiss, appellant must demonstrate that the Career Service Hearing Office has jurisdiction over the subject matter of the claim. In re Vasquez & Lewis, CSA 08-09 & 09-09 (Order 3/11/09).
To establish jurisdiction in response to a motion to dismiss, appellant must raise a colorable claim under CSR 19. In re Vasquez & Lewis, CSA 08-09 & 09-09 (Order 3/11/09).
Appellants claim that agency interpretation of “merit date” violated 13-10F [now 13-34] and negatively affected their pay was sufficient to establish subject matter jurisdiction under CSR 19. In re Vasquez & Lewis, CSA 08-09 & 09-09 (Order 3/11/09).
Appeal was dismissed based on appellant’s voluntary withdrawal of previous appeal alleging the same parties and cause of action which resulted in claim preclusion. In re Cho, CSA 01-09, 3 (Order 1/21/09).
Dismissal as condition of agreement to mediate must be supported by a finding that agreement to dismiss was 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 offer to mediate conditioned on dismissal of his appeal, there could be no finding that dismissal was voluntary, and therefore dismissal was inappropriate. In re Schultz, CSA 70-08 (Order 12/22/08).
In appeal of agency’s failure to respond to grievance, Hearing Officer did not retain jurisdiction over the grievance after the agency responded to it. In re Luft, CSB 43-08A (12/12/08).
When appellant clarified her intent to appeal suspension, appeal was not subject to dismissal based on her statement on the appeal form challenging her transfer and past denials of pay. In re Williams, CSA 53-08 (Order 8/18/08).
A Hearing Officer is not bound by appellant’s statement of remedies on the appeal form, but must determine from the appeal documents whether there is an appropriate remedy within the jurisdiction provided by the CSRs 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 matters outside the pleadings are presented to the Career Service Hearing Office on the issue of whether the appeal states a claim upon which relief can be granted, the matter shall be treated and disposed of as a motion for summary judgment under CRCP 56. In re Steward, CSA 18-08, 2 (Order 4/11/08), citing CRCP 12(b).
In resolving a motion for summary judgment, the factual allegations in an appeal shall be taken as true without assessment of credibility. In re Steward, CSA 18-08, 2 (Order 4/11/08), citing Norton v. Leadville Corp., 610 P.2d 1348, 1350 (1979); Discovery Land & Dev. Co. v. Colorado-Aspen Dev. Corp., 577 P.2d 1101, 1105 (Colo. App. 1977).