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Layoff

See also  14-40 et. seq

Hearing Officer’s decision, reversing the Agency’s layoff of Appellant, reinstated her to the position created in a different Agency where her job duties were transferred and not to her former positionIn re Hamilton, CSB 100-09 & 107-09, 1-2 (Order 11/9/10).    

Where an agency chooses to use proficiency standards instead of seniority to determine which employees will be subject to a layoff, as permitted in the Career Service Rules, those proficiency standards must be reasonable and fair. In re Owens-Manis & Pettway, CSB 73-09 & 75-09, 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 (10/17/10), 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).

A layoff 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 (10/17/10), citing Maggard v. Department of Human Services, 226 P.3d 1209 (Colo.App. 2009).

Appellant’s layoff was not arbitrary, capricious, or contrary to rule or law where her supervisors established that they did not base the layoff on factors personal to the appellant, but rather they based the layoff recommendation on an analysis of the duties of the position, including that the time required to complete appellants assigned duties constituted 15% of a full-time position and that her duties could be consolidated into the work 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 (10/17/10).    

Appellant failed to establish her layoff was arbitrary and capricious where she asserted the reallocation of her duties resulted in directors performing some of her work at a higher hourly rate, however, she provided no evidence the directors given her duties were unable to complete their own duties, nor did she present evidence comparing either the amount of time consumed by the duties or the personnel costs to cover those duties, before and after they layoff. In re Blehm, 47-10, 7-8 (10/17/10).  

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 the layoff 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, 47-10, 7 (10/17/10).      

The Career Service layoff rules do not require an agency to transfer duties from other employees in order to avoid layoffs. In re Blehm, 47-10, 8 (10/17/10). 

Where layoff decision was intended to be the direct result of accurate calculations from the proficiency test, de novo review requires an analysis of whether the agency implemented that intention by careful consideration of appropriate evidence, and reasonable conclusions flowing from that evidence. 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 constitutes 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).

Finding that appellant was not one of the three most proficient employees lacks competent evidence to support it where erroneous data was used 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).

The burden of proof for layoff and discrimination claims in a layoff appeal lies with the appellant. 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 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 action taken 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 P3d 540 (Colo. App. 2003).

Appellant has the burden of proof in an administrative lay-off. 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 (3/31/05); See also In re Dennis, 102-04 & 116-04 (Order 1/24/05); In re Hurdelbrink, CSA 109-04 & 119-04, 4 (1/5/05).

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 and 14. In re Hurdelbrink, CSA 109-04 & 119-04, 4 (1/5/05).

 
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