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Layoff

See also  14-40 et. seq


In a lay-off, appellant retains the burden of persuasion, by a preponderance of the evidence, to prove her lay-off was arbitrary, capricious or in violation of the CSRs. In re Tenorio, 34-16, 3 (8/8/18), citing In re Sanders, CSA 62-09 (9/24/2010).

A party proves a fact by a preponderance of the evidence when the party proves that the fact is more probable than not. In re Tenorio, 34-16, 6 (8/8/18), citing People v. Ortiz, 381 P.3d 410, 415 (Colo. 2016).

CSR 14-45A, which requires that an employee selected to be laid off shall be given a transfer appointment to any vacancy for which the employee qualified within the lay-off unit, is self-executing. In re Tenorio, 34-16, 6 (8/8/18).

An employee who timely appeals the Agency’s selection of her to be laid off but then leaves the employment before the lay-off date does not lose the ability to litigate her right to a transfer appointment, which vested upon her selection to be laid off. In re Tenorio, 34-16, 6-7 (8/8/18).

No analysis is required of the comparability between an employee’s former position, from which the employee was laid off and a different position for which she qualified, and to which she was entitled to a transfer appointment under CSR 14-45 or a reinstatement under CSR 14-47, as these CSRs are self-executing. In re Tenorio, 34-16, 7 (8/8/18).

In mixed burden appeal, agency retains burden of persuasion regarding discipline while appellant retains burden of persuasion regarding whistleblower claim. In re Schofield, CSA 08-17, 3-4 (10/9/17) (decided under former CSR 19).

Hearing Officer’s decision, reversing the agency’s layoff of appellant, reinstated her to the position where her transferred job responsibilities now existIn re Hamilton, CSB 100-09A & 107-09A, 2 (Order 11/9/10).    

Where agency chooses to use proficiency standards instead of seniority to determine which employees will be subject to a layoff, as permitted by the CSRs, those proficiency standards must be reasonable and fair. In re Owens-Manis & Pettway, CSB 73-09A & 75-09A, 4-5 (10/21/10).   

An employee challenging a layoff must overcome the “presumption of regularity afforded an agency in fulfilling its statutory mandate” with a showing that it was arbitrary, capricious, or contrary to rule or law. In re Blehm, CSA 47-10, 6 (10/29/10), citing Motor Vehicle Mfrs. Ass'n, 463 US at 44, fn.9; In re Vasquez & Lewis, CSA 08-09 & 09-09, 4 (5/20/09); Brennan v. Department of Local Affairs, 786 P.2d 426 (Colo.App. 1989); Velasquez v. Dept. of Higher Education, 93 P.3d 540 (Colo.App. 2003).

An agency layoff decision is arbitrary, capricious, or contrary to rule or law if it 1) fails to use reasonable diligence to procure authorized evidence; 2) fails to give fair consideration to that evidence; or 3) exercises its discretion in an unreasonable manner. In re Blehm, 47-10, 6 (10/29/10), citing Maggard v. Department of Human Services, 226 P.3d 1209 (Colo.App. 2009).

Agency layoff of appellant was not arbitrary, capricious, or contrary to rule or law where the supervisors established that they based the layoff recommendation on an analysis of the duties of the position, including that the time required to complete its duties constituted 15% of a full-time position and that its duties could be performed by employees now on staff, resulting in the savings of a full-time salary with no loss of efficiency, and appellant failed to show that this analysis of her duties was colored in any respect by subjectivity, dislike, or personal bias. In re Blehm, 47-10, 7 (10/29/10).    

Appellant failed to establish her layoff was arbitrary and capricious where she asserted the agency reallocated her duties to its directors, who performed them at a higher hourly rate, however, she provided no evidence the directors given her duties could not complete their own duties, nor did she present evidence comparing either the amount of time or the personnel costs consumed by the duties, before and after the layoff. In re Blehm, CSA 47-10, 7-8 (10/29/10).  

Agency’s decision to layoff appellant and reassign some of her duties was not arbitrary, capricious, or contrary to rule or law, where the methodology employed by the agency in making its decision was based on factors a reasonable administrator would use in arriving at a business decision: a detailed analysis of the tasks performed, the time needed to complete them, and whether they could be done in a more cost-effective manner by reassignment. In re Blehm, CSA 47-10, 8 (10/29/10).      

The Career Service layoff rules do not require an agency to transfer duties from other employees to the employee to be laid off in order to avoid the layoff. In re Blehm, CSA 47-10, 8 (10/29/10). 

Where agency intended its layoff decision to be the direct result of accurate calculations from a proficiency test, de novo review requires an analysis of whether it implemented its intention by careful consideration of appropriate evidence, and reasonable conclusions flowing therefrom. In re Owens-Manis & Pettway, CSA 73-09 & 75-09, 14 (3/11/10).

Erroneous data used to rank proficiency must be disregarded in determining whether to uphold a layoff using the resulting proficiency rankings. In re Owens-Manis & Pettway, CSA 73-09 & 75-09, 14 (3/11/10).

Agency’s failure to carefully calculate performance numbers and derive accurate ranking from those numbers constituted a failure to use reasonable diligence to produce and consider the most appropriate evidence to support its determination of proficiency. In re Owens-Manis & Pettway, CSA 73-09 & 75-09, 14 (3/11/10).

Agency finding that appellant was not one of the three most proficient employees lacked competent evidence to support it where agency used erroneous data to rank proficiency. In re Owens-Manis & Pettway, CSA 73-09 & 75-09, 14 (3/11/10).

Employee appealing non-disciplinary layoff has the burden of proof because a discharge for job abolishment does not implicate state constitutional protections. In re Frazier, CSA 24-08 (Order 4/30/08), citing Velasquez v. Dept. of Higher Education, 93 P.3d 540, 543 (Colo.App. 2003); In re Golden, CSA 153-03, 2 (1/12/04).

Appellant bears the burden of proof for layoff and discrimination claims in a layoff appeal. In re Frazier, CSA 24-08, 2 (Order 4/30/08), citing In re Roberts, CSA 179-04, 5 (6/29/05); McDonnell Douglas v. Green, 411 U.S. 792 (1973).

In the appeal of a non-disciplinary layoff, appellant must establish by preponderance of the evidence that the agency’s abolishing appellant’s position was arbitrary, capricious, and without rational basis or foundation. In re Frazier, CSA 24-08, 1-2 (Order 4/30/08), citing In re Nguyen, CSA 169-03 (2/18/04).

In an appeal challenging a layoff action, an employee has the burden to prove the agency action was arbitrary, capricious, or contrary to rule or law. In re Foley, CSA 19-06, 8 (11/10/06), citing In re Romberger, CSA 89-04, 5 (3/2/05); Velasquez v. Dept. of Higher Education, 93 P.3d 540 (Colo.App. 2003).

Appellant has the burden of proof in an administrative lay-off appeal. In re Jackson, CSA 103-04, 4 (6/13/05), citing Velasquez v. Dept. of Higher Education, 93 P.3d 540 (Colo.App. 2003); In re Vialpando, CSA 100-03 (3/31/04).

Appellant has the burden to prove that an action in lieu of layoff was arbitrary, capricious, or contrary to rule or law. In re Romberger, CSA 89-04, 5 (3/2/05), citing Velasquez v. Dept. of Higher Education, 93 P.2d 540 (Colo.App. 2003); Lawley v. Dept. of Higher Education, 36 P.3d 1239 (Colo. 2001).

The subjects of job abolishment, demotional appointments and lay-off are properly before the hearings officer pursuant to the CSR 4 [now 3] and 14. In re Hurdelbrink, CSA 109-04 & 119-04, 4 (1/5/05).

 
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