Rule 15: Code of Conduct

Career Service Rule 15

15-5:  Employee conduct

In general 

Decisions under predecessor to this rule concluded it is a statement of broad policy rather than a disciplinary rule. In re Dessureau, CSA 59-07, 9 (1/16/08) citing In re Stockton,CSA 159-02, 14 (12/03/02); In re Martinez, CSA 69-05, 9 (1/4/06).

It is unclear whether this rule, apolicy statement, is in itself a basis for discipline. In re Martinez,CSA 69-05, 9 (1/4/06), citing In re Stockton,CSA 159-02, 14 (12/03/02).

Even if a violation of this rule is considered a basis for discipline, claim fails for lack of proof. In re Martinez,CSA 69-05, 9 (1/4/06).

Appellant’s status as supervisor places on him a heightened obligation to set an example by his conduct.  In re Mestas, 37-05, 7 (8/4/05).

Violation found 

Appellant’s violation of DRMC §2-67, use of public office for private gain, constitutes violation of this rule as well.  In re Abdi,CSA 63-07, 29 (2/19/08).

Appellant violated rule where she used her position to help her sister’s fraudulent application for public assistance.  In re Abdi, CSA 63-07, 29 (2/19/08).

Deputy sheriff who asked police for “professional courtesy” when arrested for failing to pay for a beer while off duty failed to conduct himself in a manner reflecting credit on the city in violation of rule.  In re Mergl, CSA 131-05, 6 (3/13/06) (decided under former § 15-20).

Appellant’s actions in aggressively questioning ex-girlfriend at work, kicking wet floor sign in her presence, entering through a secured door, and intimidating another worker constituted violation of rule requiring that employee conduct shall reflect credit on city.  In re Mestas, CSA 37-05, 8 (8/4/05).  

No violation found
 
Parking city truck in store lot did not violate rule where there was no evidence that it was noted by any member of the public or resulted in any harm to the reputation of the city or agency.  In re Dessureau, CSA 59-07, 9 (1/16/08).  

Appellant did not violate rule requiring employee to reflect credit on city by taking reasonable steps needed to secure prisoner at a time when prisoner’s pants were down.  In re Brown, CSA 102-05, 9 (2/15/06).

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 15-31:  Political Activities – Policy
 
Harassment and discrimination based on age and political affiliation are proper subjects for appeal.  In re Hurdelbrink, CSA 109-04, 119-04, 4 (1/5/05).

Political affiliation discrimination complaint failed when appellant, an unsuccessful applicant for promotion, failed to show that the agency knew of successful applicant’s political support of mayor, and therefore failed to establish nexus between applicant’s eventual layoff and his political affiliation.  In re Hurdelbrink, CSA 109-04, 119-04, 7 (1/5/05).

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15-51:  Outside Employment – Policy 

Career service employees owe their primary duty of loyalty to their employer.  In re Sawyer and Sproul, CSA 33-08, 12 (1/27/09).

City paramedics’ contract was incompatible with their career service employment where city hospital’s contract with same client required it to share pricing and scheduling information with city paramedics.  In re Sawyer and Sproul, CSA 33-08, 12 (1/27/09).

Agency’s requirement that employees promptly report actual or potential conflicts of interest is entitled to deference.   In re Sawyer and Sproul, CSA 33-08, 13 (1/27/09). 
 
Violation found 

Appellants’ admission that they did not request permission in advance before soliciting business for their own company proved a violation of rule requiring such permission.   In re Sawyer and Sproul, CSA 33-08, 15 (1/27/09).

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15-60: Alcohol policy 

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15-82:  Prohibited communications

Appellant’s knowing retrieval of obscene photographs as a result of his internet search on a city computer was a violation of § 15-82, and did not comport with the permissible occasional use of city computers for personal purposes pursuant to § 15-83.  In re Strasser, CSA 44-07, 4 (10/16/07).

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15-83:  Personal use

Appellant’s knowing retrieval of obscene photographs as a result of his internet search on a city computer was a violation of § 15-82, and did not comport with the permissible occasional use of city computers for personal purposes pursuant to § 15-83.  In re Strasser, CSA 44-07, 4 (10/16/07).

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15-96:  Representing employees during work hours

The word “representative” for purposes of this rule does not include a pro se appellant.  In re Herzog, CSA 51-05 (Order 7/5/05). 

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 15-100:  Harassment and/or Discrimination(See also Discrimination and § 19-10 A.2.a

Complaints of discrimination, harassment or retaliation  should not be brought through a grievance under CSR 18-10 C.2, but under a formal complaint, although either provides sufficient notice of claims.  In re Gallo, CSA 63-09, 1 (CSB 3/17/11).

Although appellant did not use the correct procedure for raising a discrimination complaint, her grievance put the agency on notice of her complaint of sexual harassment under CSR 15.  In re Gallo, CSA 63-09, 1 (CSB 3/17/11).

Under 19-10 A.2.a, employee may appeal agency's failure to address a grievance where grievance operated as a formal complaint of sexual/racial harassment under CSR 15.  In re Gallo, CSA 63-09, 3 (CSB 3/17/11).

Rule 15-100 et. seq. procedures serve to maintain a workplace free of any unlawful harassment, deter future harassment and minimize the City's exposure to potential liability in Title VII lawsuits.  In re Gallo, CSA 63-09, 4-5 (CSB 3/17/11).

An employee who believes she has been subjected to sexual harassment in violation of CSR 15 does not have to wait until the harassing behavior has become severe and pervasive enough to alter the conditions of her employment and create a hostile work environment (the level of proof required to sustain a Title VII lawsuit) before reporting such harassment.  In re Gallo, CSA 63-09, 5 (CSB 3/17/11). 

An interpretation of Rule 15 that suggests the rule requires proof that the harassing behavior was severe and pervasive enough to create a hostile work environment is contrary to the express language of 15-101, which prohibits all harassment on the basis of sex, race or other protected status.  In re Gallo, CSA 63-09, 5 (CSB 3/17/11). 

A violation of the City's anti-harassment policy under Rule 15 requires proof that the behavior was motivated by race, gender or other protected status.  In re Gallo, CSA 63-09, 5 (CSB 3/17/11).

Adverse action

Testimony that agency favored another candidate for a promotion is not an adverse action where both appellant and the other candidate were African American, and appellant was selected for the promotion.  In re Jackson, CSA 103-04, 5 (6/13/05).

Statement that appellant was expected to continue performing higher level duties after demotion in lieu of layoff was not an adverse action where agency relieved appellant of those duties at her request.  In re Jackson, CSA 103-04, 6 (6/13/05).

Agency’s reassignment of her former higher-level duties to a Caucasian coworker was not an adverse action where appellant requested that reassignment.  In re Jackson, CSA 103-04, 6 (6/13/05).

 

 

In general

 

The requirements for establishing an employment discrimination case are 1) the employee belongs to a protected class, 2) the employee was qualified for the job at issue, 3) despite his qualifications, the employee suffered an adverse employment decision, e.g., a demotion, discharge or failure to promote, and 4) the circumstances give rise to an inference of unlawful discrimination.  In re Hernandez, CSA 03-06, 9 (5/3/06), citing In re Cobb, CSA 163-03 (2/5/04).

Intentional discrimination is proven by evidence of 1) membership in a protected class, 2) an adverse employment action, and 3) evidence supporting an inference of discrimination.  In re Johnson, CSA 135-05, 3 (3/10/06), citing In re Jackson, CSA 103-04, 5 (6/13/05);O’Connor v Consolidated Coin Caterers Corp., 517 U.S. 308 (1996).

Appellant is a member of a protected class based on her sex.  In re Johnson, CSA 135 05, 3 (3/10/06).

Discrimination made unlawful by federal, state or local law or regulation is likewise prohibited by the City and County of Denver.  In re Johnson, CSA 135-05, 3 (3/10/06).

Tangible employment action under Title VII is a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different duties, or a decision causing a significant change in benefits. In re Johnson, CSA 135-05, 3-4 (3/10/06), citing Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998).

Appellant may prove discipline is pretext for discrimination by showing that he was treated differently than other similarly-situated, non-protected employees who violated work rules of comparable seriousness.  In re Trujillo, CSA 44-05, 5 (11/14/05).

An employee is similarly situated to appellant if they have the same supervisor and are subject to the same standards governing performance and discipline.  The hearing officer should also compare the relevant employment circumstances, such as work history and company policies to determine whether they are similarly situated.  In re Trujillo, CSA 44-05, 5 (11/14/05), citing Kendrick v. Penske Transp. Servs., 220 F.3d 1220 (10th Cir. 2000).

Agency may be found to discriminate if agency head acted as a rubber stamp, or “cat’s paw”, for a subordinate employee’s prejudice, even if agency head lacked discriminatory intent.   In re Trujillo, CSA 44-05, 5 (11/14/05), citing Kendrick v. Penske Transp. Servs., 220 F.3d 1220 (10th Cir. 2000).

Appellant has the burden to establish the existence of a prima facie case of discrimination.  In re Roberts, CSA 179-04, 5 (6/29/05), citing McDonnell Douglas v. Green, 411 U.S. 792 (1973).

Intentional discrimination requires proof of 1) membership in a protected class, 2) an adverse employment action, and 3) evidence supporting an inference of discrimination, such as disparate treatment of similarly situated employees outside the protected group.  In re Jackson, CSA 103-04, 5 (6/13/05).

To establish disparate treatment, it is necessary to show that the employees whose treatment is being compared to appellant’s are similarly situated in all relevant respects.  In re Jackson, CSA 103-04, 6-7 (6/13/05), citing Ward v. Proctor & Gamble Paper Products Co., 111 F. 3d 558, 560 (8th Cir. 1997).

Disparate impact discrimination is proven if employment practices that are facially neutral in their treatment of different groups fall more harshly on one group than another and cannot be justified by business necessity.  In re Jackson, CSA 103-04, 6 (6/13/05), citing International Brotherhood of Teamsters v. U.S., 431 U.S. 324 (1977).

In disparate impact discrimination, it is necessary to show that the employees whose treatment is being compared are similarly situated in all relevant respects.  In re Jackson, CSA 103-04, 6-7 (6/13/05), citing  Ward v. Proctor & Gamble Products Co., 111 F.3d 558, 560 (8th Cir. 1997). 

Disparate discipline claim must compare only similarly situated employees. They must have reported to the same supervisor, must have been subject to the same performance and discipline standards, and must have engaged in conduct similar to that of appellant, without other circumstances that would distinguish the misconduct or the appropriate discipline for it. In re Owens, CSA 139-04, 10 (3/31/05), citing Mazzella v. RCA Global Communications, Inc., 642 F.Supp. 1531, 1546-47 (S.D.N.Y. 1986).

Discriminatory intent may be proven circumstantially by evidence that the agency treated employees outside the protected class more favorably under similar circumstances.  In re Owens, CSA 139-04, 9 (3/31/05), citing McDonnell Douglas v. Green, 411 U.S. 792 (1973); Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978); Smith v. City of Jackson, 2005 U.S. LEXIS 2931. 

Harassment and discrimination based on age and political affiliation are proper subjects for appeal.  In re Hurdelbrink, CSA 109-04, 119-04, 4 (1/5/05).

Discrimination not found

Hispanic male disciplined for a different offense, excessive absenteeism, was not similarly situated to appellant, who was disciplined for addressing coworkers with terms of endearment after being instructed to stop.  In re Hernandez, CSA 03-06, 9 (5/3/06), citing Mensah-Sowah v. Bridgestone/Firestone, 1996 U.S.App. LEXIS 24967 (10th Cir. 1996). 

Other employee who used terms of endearment was not similarly situated to appellant where there was no proof of his national origin or supervisor, or whether he had been instructed to stop or disciplined for that behavior.  In re Hernandez, CSA 03-06, 9 (5/3/06), citing Mensah-Sowah v. Bridgestone/Firestone, 1996 U.S.App. LEXIS 24967 (10th Cir. 1996).

Agency presented valid business reason to discipline employee based on his failure to heed prior discipline for addressing coworkers with unwelcome terms of endearment.  In re Hernandez, CSA 03-06, 9 (5/3/06).

Evidence that prior supervisor disciplined appellant for same offense does not prove discrimination caused the current discipline when appellant testified he took no issue with the previous discipline.  In re Hernandez, CSA 03-06, 9 (5/3/06).

Neither a single order of training intended to correct an observed performance deficiency nor criticisms in a logbook are adverse actions as necessary to prove discrimination.  In re Johnson, CSA 135-05, 4 (3/10/06).

Recent favorable action, including favorable reviews and compliments by the same supervisor, raises a strong presumption that no discrimination occurred, as the supervisor would not abruptly develop antipathy toward appellant because of her sex.  In re Johnson, CSA 135-05, 5 (3/10/06), citing Vallabhapurapu v. First National Bank, 998 F. Supp.906; Lowe v J.B. Hunt Transport, Inc., 963 F.2d 173, 174-175 (7th Cir. 1992).

Misconduct is not comparable for purposes of proving disparate discipline where appellant recreation supervisor lost his composure at a game, faced off with referee, and refused to leave after being ejected from building, when compared to an incident where another recreation supervisor merely responded to a referee’s call by saying, “that’s bullsh-” without finishing the word, drawing a technical foul.  In re Trujillo, CSA 44-05, 5-6 (11/14/05). 

Appellant failed to establish disparate discipline by producing no evidence about the other employees’ protected status, the nature of their violations, and whether or how they were disciplined for those violations.  In re Garcia, CSA 175-04, 7 (7/12/05).

Where appellant presented no evidence that she is a member of a protected group, she failed to meet her burden of proof on her discrimination claim.  In re Roberts, CSA 179-04, 5-6 (6/29/05).

Layoff that followed 2004 rules governing demotional appointments did not discriminate against African American employee even though 2003 layoff rules would have treated her more favorably.  In re Jackson, CSA 103-04, 6 (6/13/05).

Agency’s failure to make an exception to its rules on layoff units and seniority is not proof of intent to discriminate.  In re Jackson, CSA 103-04, 6 (6/13/05).   

Layoff that had no disproportionate effect on members of appellant’s race did not have a disparate impact on the basis of race.  In re Jackson, CSA 103-04, 6 (6/13/05).

Chart of discipline imposed on employees by race did not compare similarly situated employees, and did not prove disparity in discipline based on race.  In re Owens, CSA 139-04, 10 (3/31/05).  

Evidence that appellant believed she was treated differently but did not know why failed to establish membership in a protected group, the first element of a prima facie case of discrimination.  In re Leal-McIntyre, CSA 77-03, 134-03 and 167-03, 4 (1/27/05); citing McDonnell Douglas v. Green, 411 U.S. 792 (1973).

When evidence reveals no grounds to support inference of age or political affiliation discrimination, directed verdict is properly granted as to both claims.  In re Hurdelbrink, CSA 109-04, 119-04, 8-9 (1/5/05).

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Age

To establish a prima facie case of age discrimination, appellant must show membership in a protected age group, more than 40 years old, an adverse employment action, and that similarly situated employee was treated differently.  In re Hernandez, CSA 03-06, 9-10 (5/3/06).

Age discrimination case fails where appellant did not show that a younger person was disciplined less severely or at all for the same conduct, or that his supervisor was aware of his age.  In re Hernandez, CSA 03-06, 10 (5/3/06).

Age discrimination is dismissed for failure to establish a prima facie case where appellant failed to present evidence of his age, that his supervisor was aware of his age, or that the suspension was imposed because of his age.  In re Owens, CSA 139-04, 10 (3/31/05), citing O’Connor v. Consolidated Coin Caterers Group, 517 U.S. 368 (1996).

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Disability

Assignment to a different supervisor is not a reasonable accommodation under the ADA.  In re Felix, CSA 82-07, 3 (CSB 6/5/08).

Appellant failed to prove she was disabled because there was no evidence as to how her insomnia and breathing difficulties affected a major life activity, what record of impairment she suffers, or how the agency regarded her as being disabled.  In re Vigil, CSA 110-05, 7 (3/3/06).

Under the ADA, a person may prove a disability in three ways: 1) the actual existence of a physical or mental impairment substantially limiting a major life activity, 2) a record of such impairment, or 3) being regarded as having such an impairment.  In re Solano, CSA 107-04, 4 (4/29/05), citing 42 USC § 12102(2) (A); and 29 CFR § 1630.2(g) (1994 ed. and Supp. V).

A disability is a physical or psychological impairment which substantially limits one or more major life activity.  In re Solano, CSA 107-04, 4 (4/29/05), citing 42 USC § 12102(2) (A).

Each phrase in the definition of disability is interpreted strictly to create a demanding standard for qualifying as disabled based upon the legislative findings and purposes that motivate the ADA.  In re Solano, CSA 107-04, 4 (4/29/05), citing Toyota Motor Mfg v. Williams, 534 U.S. 184 (2002); expressly overruled by ADAAA 2009.  

Major life activities are those basic activities that the average person in the general population can perform with little or no difficulty.  In re Solano, CSA 107-04, 4 (4/29/05), citing 29 CFR pt. 1630 app. § 1630.2(i). Performing manual tasks is a major life activity.  In re Solano, CSA 107-04, 4 (4/29/05), citing 29 CFR § 1630.2 (i).

A person is substantially limited in a major life activity if she is unable to perform or significantly restricted as to the condition, manner or duration under which she can perform a particular major life activity as compared to the average person's ability to perform that activity.  In re Solano, CSA 107-04. 5 (4/29/05), citing EEOC Compliance Manual § 902.4(a) (1). To be substantially limited in performing manual tasks, an individual must have a permanent or long-term impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives.  The impairment’s impact must also be permanent or long-term.  In re Solano, CSA 107-04, 5 (4/29/05), citing Toyota Motor Mfg. v. Williams, 534 U.S. 184 (2002); expressly overruled by ADAAA 2009

The determination of whether an individual is substantially limited in a major life activity is based upon the effect of that impairment on the life of the individual, and as such must be  made on a case-by-case basis.  In re Solano, CSA 107-04, 5 (4/29/05), citing Toyota Motor Mfg. v. Williams, 534 U.S. 184 (2002); expressly overruled by ADAAA 2009.  

In determining the effect of an impairment on an employee’s life, the fact-finder must consider the nature and severity of the impairment, its duration or expected duration, and its permanent, long-term, or expected impact.  In re Solano, CSA 107-04, 5 (4/29/05), citing 29 CFR § 1630.2(j).

An individualized assessment of the effect of an impairment is particularly necessary when the impairment is one whose symptoms vary widely from person to person, such as carpal tunnel syndrome.  In re Solano, CSA 107-04, 5 (4/29/05), citing Toyota Motor Mfg. v. Williams, 534 U.S. 184 (2002); expressly overruled by ADAAA 2009.

A temporary condition or a condition of indefinite duration may also be a disability if it is severe in nature.  In re Solano, CSA 107-04, 5 (4/29/05), citing EEOC Compliance Manual § 902.4(d). Temporary carpal tunnel syndrome symptoms of numbness and tingling in the hands indicate that condition was mild in nature.  In re Solano, CSA 107-04, 5 (4/29/05).

A temporary inability to meet typing and filing deadlines does not establish that numbness and tingling in hands substantially limited employee’s ability to perform manual tasks.  In re Solano, CSA 107-04, 5 (4/29/05), citing Gelabert-Ladenheim v. American Airlines, Inc., 252 F.3d 54 (1st Cir. 2001); Ouzts v. USAIR, 24 ADD 704 (D. Pa. 1996); and Wilmarth v. City of Santa Rosa, 945 F.Supp. 1271 (N.D. Cal. 1996).

The ADA also protects a person who has a history of a disability or who has been classified or misclassified as having a disability.  In re Solano, CSA 107-04, 6 (4/29/05), citing 42 USC § 12102(2) (B); 29 CFR § 1630.2(k).

Doctor's notes showing a diagnosis of non-disabling carpal tunnel syndrome is not a record of a disability.  In re Solano, CSA 107-04, 6 (4/29/05). 

A record of a condition that is not a disability is insufficient to support a claim that employee has a history of disability under the ADA.  In re Solano, CSA 107-04, 6 (4/29/05), citing Colwell v. Suffolk County Police Dept., 158 F.3d 635 (2nd Cir. 1998).

A person who is perceived as disabled is also protected from discrimination based on Congress’ recognition that society’s accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment.  In re Solano, CSA 107-04, 6 (4/29/05), citing 42 USC § 12102(2)(C); and School Board of Nassau County v. Arline, 480 U.S. 273 (1987).

The focus of a discrimination claim against an employee regarded as disabled is on the employer's state of mind, such as concerns about productivity, safety, insurance, liability, attendance, cost of accommodation and accessibility, and acceptance by co-workers and customers.  In re Solano, CSA 107-04, 6 (4/29/05), citing EEOC Compliance Manual § 902.8; House Judiciary Report at 30.

Appellant may prove disability discrimination by presenting evidence that 1) the agency perceives her as having an impairment that substantially limits a major life activity, and 2) the agency made an employment decision because of the perception of disability.  In re Solano, CSA 107-04, 6 (4/29/05), citing 29 CFR § 1630.2(l) (1); 29 CFR pt. 1630, pt. 1630.2(1).

Where appellant’s work restrictions based on carpal tunnel syndrome were removed several months before the performance evaluation, and supervisor had forgotten about them, appellant failed to prove the agency perceived her as disabled.  In re Solano, CSA 107-04, 7 (4/29/05).  

An employer’s knowledge and accommodation of work restrictions is insufficient evidence that an employee was regarded as disabled.  In In re Solano, CSA 107-04, 7 (4/29/05), citing Plant v. Morton Int’l, Inc., 212 F.3d 929 (6th Cir. 2000);Gorbitz v. Corvilla, Inc., 196 F.3d 879 (7th Cir. 1999). 

Evidence of performance problems alone does not support a finding that appellant was perceived as disabled. In re Solano, CSA 107-04, 7 (4/29/05).

Appellant’s failure to prove she was disabled defeated her harassment and retaliation claims because appellant did not prove she was a member of a legally protected class.  In re Solano, CSA 107-04, 7 (4/29/05).

Evidence that drowsiness is a side-effect of appellant’s medication does not demonstrate a physical limitation substantially limiting a major life function in the absence of evidence as to the nature of the impairments, and effect on appellant’s life and ability to do the essential functions of his job.  In re Owens, CSA 139-04, 10-11 (3/31/05), citing29 CFR 1614.203(a) (1); and Poindexter v. Atchison, Topeka & Santa Fe Railway Co., 168 F.3d 1228 (10th Cir. 1999); Toyota Motor Mfg. v. Williams, 534 U.S. 184 (2002).   

It is insufficient for individuals attempting to prove disability status to merely submit evidence of a medical diagnosis of an impairment.  In re Owens, CSA 139-04, 11 (3/31/05), citing Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), citing 29 CFR §§ 1630.2(j) (2) (ii-iii); expressly overruled by ADAAA 2009.

Without proof of a disability, the necessity to reasonably accommodate does not arise under the ADA.  In re Owens, CSA 139-04, 11 (3/31/05).

Appellant’s claim that the agency should have waived its rule against sleeping on duty as a reasonable accommodation of his need to take a medicine that can cause drowsiness is not well founded.  In re Owens, CSA 139-04, 11 (3/31/05).

The law prohibiting discrimination based upon a record of a substantially limiting impairment is intended to prevent discrimination because of a history of disability or a misclassification as disabled.  In re Owens, CSA 139-04, 11 (3/31/05), citing ADA Handbook, EEOC Interpretive Guidance, 43; 29 CFR § 1630.2(k.).

Discrimination against those who are regarded as disabled by their employer is Congress’ acknowledgement that society’s accumulated myths and fears about disability and diseases are as handicapping as are the physical limitations that flow from actual impairment.  In re Owens, CSA 139-04, 11 (3/31/05); citing School Board of Nassau County v. Arline, 480 U.S. 273, 284 (1987).

Appellant failed to prove he was considered or misclassified as disabled based on testimony that he had given former supervisor medical documents regarding his heart stint, since documents were not in appellant’s file, and current supervisor knew only that he had a heart stint.  In re Owens, CSA 139-04, 11 (3/31/05).

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Disparate impact

Disparate impact discrimination is proven if employment practices that are facially neutral in their treatment of different groups fall more harshly on one group than another and cannot be justified by business necessity.  In re Jackson, CSA 103-04, 6 (6/13/05), citing International Brotherhood of Teamsters v. U.S., 431 U.S. 324 (1977).

In disparate impact discrimination, it is necessary to show that the employees whose treatment is being compared are similarly situated in all relevant respects.  In re Jackson, CSA 103-04, 7 (6/13/05), citing Ward v. Proctor & Gamble Products Co., 111 F.3d 558, 560 (8th Cir. 1997).      

Political affiliation

To establish a prima facie case of political affiliation discrimination, appellant must establish that (1) political affiliation and/or beliefs were substantial or motivating factors behind the adverse agency action, and (2) his position did not require political allegiance.  In re Hurdelbrink, CSA 109-04, 119-04, 9 (1/5/05), citing Barker v. City of Del City, 215 F.3d 1134, 1138 (10th Cir. 2000).

There appears to be a valid first amendment argument that lack political affiliation should be included in the concept of political affiliation discrimination.  In re Hurdelbrink, CSA 109-04, 119-04, 9 (1/5/05), citing Whitfield v. Pennsylvania Gas Works, 1997 U.S. Dist. LEXIS 18550 (D. Pa., 1997).

Pregnancy

Appellant establishes a prima facie case of pregnancy discrimination if she establishes: 1) she was a member of a protected group; 2) she was qualified for the modified-duty position sought; 3) she was denied the position; and 4) the denial occurred under circumstances which give rise to an inference of unlawful discrimination.  In re Allen, CSA 16-06, 3 (6/6/06), citing EEOC v Horizon Healthcare Corp., 220 F. 3d 1184 (10th Cir. 2000). 

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Race

Coworker’s testimony that he believed race may have played a role in hastening his departure from the agency, and appellant’s conclusory statements in her prehearing and closing statements are insufficient to establish a prima facie case of race discrimination.  In re Diaz, CSA 45-05, 9 (9/7/05).

Appellant failed to prove that demotion in lieu of layoff to a specific division was motivated by discriminatory intent when the other divisions were outside the layoff unit and appellant offered no proof that agency knew demotion would deny her future promotional opportunities.  In re Jackson, CSA 103-04, 5-6 (6/13/05).

In the absence of evidence that employees of a different race were treated more favorably than African American employees, appellant has failed to present evidence that the actions taken against her were motivated by discriminatory intent.  In re Jackson, CSA 103-04, 6 (6/13/05).

Appellant fails to establish disparate treatment on the basis of race when the more-favored employee is the same race as appellant.  In re Jackson, CSA 103-04, 8 (6/13/05).

In the absence of evidence that the lay-off which followed race-neutral rules had a disproportionate effect on members of her race, appellant failed to establish a prime facie case of adverse impact discrimination.  In re Jackson, CSA 103-04, 7 (6/13/05).

Discipline given to other employees for different violations does not establish disparity in treatment based on race or color.  In re Owens, CSA 139-04, 10 (3/31/05).

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Harassment

In general

A hostile work environment occurs when an employee is subjected to comments of a sexual nature, offensive sexual materials, or unwelcome physical contact as a regular part of the work environment.  In re Carter, CSA 87-09, 6 (2/17/10)

A single incident is not hostile environment harassment unless it is outrageous conduct.  In re Carter, CSA 87-09, 7 (2/17/10), citing Hicks v Gates Rubber Co., 833 F. 2d 1406, 1413 (10th Cir. 1987).

To establish harassment, appellant must show under the totality of the circumstances that 1) the harassment was pervasive or severe enough to alter the terms, conditions or privileges of employment, and 2) the harassment was based on a protected status or stemmed from animus against a protected status.  In re Hernandez, CSA 03-06, 10 (5/3/06).

Harassment complaint must be filed first with supervisor, appointing authority or human resources department before perfecting appeal.  In re Vigil,, CSA 110-05, 7-8 (3/3/06).

Harassment is actionable only if it is so severe or pervasive as to alter the conditions of the victim’s employment and create an abusive working environment.  In re Williams, CSA 65-05, 8 (11/17/05), citing Clark County School District v. Breeden, 532 U.S. 268 (2001) and Faragher v. Boca Raton, 524 U.S. 775 (1998).

To establish a prima facie case of harassment, appellant must show under the totality of the circumstances 1) the harassment was pervasive or severe enough to alter the terms, conditions or privilege of employment, and 2) the harassment was racial or stemmed from racial animus.   In In re Garcia, CSA 175-04, 7 (7/12/05).

A showing of pervasiveness requires more than a few isolated incidents of racial enmity.  In re Garcia, CSA 175-04, 7 (7/12/05).

Appellant must produce evidence to show the workplace was permeated with discriminatory intimidation, ridicule and insult sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.  In re Garcia, CSA 175-04, 7 (7/12/05).

EEOC has defined harassment as unwelcome actions taken because of an employee’s membership in a protected class when such conduct has the purpose or effect of unreasonably interfering with performance or creating an intimidating, hostile or offensive working environment.  In re Roberts CSA 179-04, 6 (6/29/05), citing 29 CFR 1604.11(a).

Harassment is a theory of discrimination which allows an employee to establish harm without proof of an adverse employment action such as discipline or termination.  In re Roberts, CSA 179-04, 6 (6/29/05).

Harassment is not a basis for discrimination; i.e., it does not substitute as proof of membership in a protected group.  In re Roberts, CSA 179-04, 6 (6/29/05).

Under the Career Service Rules, a claim of harassment is perfected when an employee reports the unwelcome conduct to a supervisor.  Only the supervisor's disposition of such a report may be appealed pursuant to CSR § 19-10 f).  In re Roberts, CSA 179-04, 6 (6/29/05).

Claims that discipline constituted harassment and retaliation are rendered moot by decision reversing discipline.  In re Martinez, CSA 19-05, 9 (6/27/05).

Where appellant failed to establish a prima facie case for harassment, directed verdict is proper.  In re Hurdelbrink, CSA 109-04, 119-04, 7 (1/5/05).

Harassment not found  

Appellant-deputy’s announcement on the jail public address system, inviting inmates to guess the sexual orientation of another deputy was not by itself sufficiently outrageous to create a hostile work environment.  In re Carter, CSA 87-09, 7 (2/17/10); citing Hicks v Gates Rubber Co., 833 F. 2d 1406, 1413 (10th Cir. 1987).

Supervisor’s reprimand for failing to type his notes due to poor handwriting and other criticisms did not establish harassment where tension between appellant and supervisor was a mutual creation.  In re Hernandez, CSA 03-06, 11 (5/3/06).

Order to take remedial training did not permeate appellant’s employment by any objective measure as necessary to prove harassment.  In re Johnson, CSA 135-05, 4 (3/10/06), citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).

Logbook containing supervisors’ disagreement with deputy sheriff’s encounters with inmates as well as numerous compliments did not establish harassment on the basis of sex.   In re Johnson, CSA 135-05, 4 (3/10/06).

Harassment was not proven by evidence that supervisor imposed a written reprimand and inquired once about the employee’s brother, who was divorced from the supervisor’s sister.  In re Williams, CSA 65-05, 8 (11/17/05).

A supervisor’s comments critical of appellant’s performance do not by themselves constitute harassment.  In re Williams, CSA 65-05, 9 (11/17/05).

Appellant failed to establish hostile work environment by evidence that a prior supervisor asked her not to speak Spanish.  In re Garcia, CSA 175-04, 7 (7/12/05).

A single undated incident in which a co-worker called appellant an unspecified name, which was promptly corrected by management, fails to state a claim of harassment.  In re Owoeye, CSA 11-05, 7 (6/10/05); citing In re Marin, CSA 64-02 (5/19/02).

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15-101: Policy

CSR 15 represents a City-wide policy prohibiting all unlawful discrimination.  In re Gallo, CSA 63-09, 4 (CSB 3/17/11).

An interpretation of Rule 15 that suggests the rule requires proof that the harassing behavior was severe and pervasive enough to create a hostile work environment is contrary to the express language of 15-101, which prohibits all harassment on the basis of sex, race or other protected status.  In re Gallo, CSA 63-09, 5 (CSB 3/17/11).

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15-102:  Types of harassment   [See also § 16-60 R, this digest]

There are two types of sexual harassment: quid pro quo—where submission to sexual conduct is made a condition of concrete employment benefits, and hostile work environment—where harassment creates an offensive working environment.  In re Carter, CSA 87-09, 6 (2/17/10), citing In re Norman-Curry, CSA 28-07, 10 (2/27/09); Hicks v Gates Rubber Co., 833 F. 2d 1406, 1413 (10th Cir. 1987).

By insulting co-workers on the basis of their national origin, age, and sex, appellant injected an element into the workplace that is barred by the personnel rules governing both conduct and discipline.  In re Schultz, CSA 70-08, 5 (3/2/09); 16-60 R.

The disciplinary rule prohibiting harassment has no requirement that derogatory statements or conduct must be accompanied by derogatory intent, nor does it require an agency to prove a violation of state or federal anti-discrimination laws.  In re Burghardt, CSB 81-07, 3 (8/28/08).

In order to establish that a single comment constitutes harassment based on a protected status sufficient to impose discipline, the agency bears the burden of persuasion that the statement was intentionally derogatory.  In re Burghardt, CSA 81-07, 7 (3/28/08), rev'd CSB 8/28/08.

Based on agency’s failure to prove appellant intended his question to be derogatory on the basis of co-worker’s national origin, agency failed to prove appellant violated code of conduct prohibiting harassment based on a protected status.  In re Burghardt, CSA 81-07, 7 (3/28/08), rev'd CSB 8/28/08. 

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15-103:  Action of individual experiencing unlawful harassment 

Complaints of discrimination, harassment or retaliation should not be brought through a grievance under CSR 18-10 C.2, but under a formal complaint, although either provides sufficient notice of claims.  In re Gallo, CSA 63-09, 1 (CSB 3/17/11).

Although appellant did not use the correct procedure for raising a discrimination complaint, her grievance put the agency on notice of her complaint of sexual harassment under CSR 15.  In re Gallo, CSA 63-09, 1 (CSB 3/17/11).

Under 19-10 A.2.a, employee may appeal agency's failure to address a grievance where grievance operated as a formal complaint of sexual/racial harassment under CSR 15.  In re Gallo, CSA 63-09, 3 (CSB 3/17/11).

Rules 15-103, 104 and 105 encourage employees to promptly report any acts of unlawful harassment and require city agencies to promptly address those reports and take appropriate remedial action if unlawful harassment has occurred.  In re Gallo, CSA 63-09, 4 (CSB 3/17/11).

Rule 15-100 et. seq. procedures serve to maintain a workplace free of any unlawful harassment, deter future harassment and minimize the City's exposure to potential liability in Title VII lawsuits.  In re Gallo, CSA 63-09, 4-5 (CSB 3/17/11).

An employee who believes she has been subjected to sexual harassment in violation of CSR 15 does not have to wait until the harassing behavior has become severe and pervasive enough to alter the conditions of her employment and create a hostile work environment (the level of proof required to sustain a Title VII lawsuit) before reporting such harassment.  In re Gallo, CSA 63-09, 5 (CSB 3/17/11).

On the contrary, City employees are urged to report acts of sexual harassment as soon as possible and certainly before the behavior rises to the level of a Title VII lawsuit and subjects the City to potential liability.  In re Gallo, CSA 63-09, 5 (CSB 3/17/11).

An interpretation of Rule 15 that suggests the rule requires proof that the harassing behavior was severe and pervasive enough to create a hostile work environment is contrary to the express language of 15-101, which prohibits all harassment on the basis of sex, race or other protected status.  In re Gallo, CSA 63-09, 5 (CSB 3/17/11).

Rule is permissive, not mandatory.  In re Boden, CSA 86-06, 1 (11/22/06).

Rule does not require an employee alleging discrimination to file a complaint with the agency.  In re Boden, CSA 86-06, 2 (11/22/06).

Complaint that an agency order is inherently discriminatory does not fall under the purview of § 15-103.  In re Boden, CSA 86-06, 2 (11/22/06).

Where agency response to appellant’s complaint stated, “we believe your claim of not being allowed to wear earrings while on duty does not constitute discrimination based on sex”, the agency acknowledged appellant’s complaint substantially complied with the notice requirements outlined in § 15-103.  In re Boden, CSA 86-06, 2 (Order 11/22/06).

Rules 19-10 B. 1, 15-103 B., and 15-104, when read together, clearly intend to afford an agency notice of the nature of the alleged harassment or discrimination, as well as a real opportunity to investigate, evaluate, and correct any harassment or discrimination.  In re Lewis, CSA 22-06, 2 (5/2/06).

Intent of rules would be thwarted if an employee could file an appeal alleging harassment after simply making comments that could be interpreted as raising an issue of harassment.  In re Lewis, CSA 22-06, 2 (5/2/06).

Appellant’s reply regarding grievance of reprimand mentioning “current and future punitive actions” is not a formal complaint of harassment necessary to invoke jurisdiction of hearing office.  In re Lewis, CSA 22-06, 2 (5/2/06).  

Appellant’s testimony that he complained of unspecified management practices to CSA employee relations does not establish that appellant communicated a complaint of harassment to his supervisor, as required by this section.  In re Schultz, CSA 156-04, 10 (6/20/05).

Rule that encourages an employee to report unlawful harassment does not provide a jurisdictional basis for appeal under CSR §19-10.  In re Green, CSA 130-04, 4 (1/7/05).

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15-104: Investigation

There is no evidence that the agency investigated or otherwise took effective, thorough and objective steps to address complaint of sexual/racial harassment, as required by CSR 15-104.  In re Gallo, CSA 63-09, 2 (CSB 3/17/11).

Although agency's denial of grievance acknowledged that the reported antics were inappropriate, it failed to investigate whether the behavior was directed at appellant because of her sex or association with another deputy who belongs to a protected class, or amounted to nothing more that the kind of petty annoyances that often occur in the workplace.  In re Gallo, CSA 63-09, 2 (CSB 3/17/11).

Under 19-10 A.2.a, employee may appeal agency's failure to address a grievance where grievance operated as a formal complaint of sexual/racial harassment under CSR 15.  In re Gallo, CSA 63-09, 3 (CSB 3/17/11).

Rules 15-103, -104 and -105 encourage employees to promptly report any acts of unlawful harassment and require city agencies to promptly address those reports and take appropriate remedial action if unlawful harassment has occurred.  In re Gallo, CSA 63-09, 4 (CSB 3/17/11).

Rule 15-100 et. seq. procedures serve to maintain a workplace free of any unlawful harassment, deter future harassment and minimize the City's exposure to potential liability in Title VII lawsuits.  In re Gallo, CSA 63-09, 4-5 (CSB 3/17/11).

City agencies are required to immediately address a complaint of sexual harassment to determine whether any unlawful harassment under Rule 15 has occurred, and if so, to take remedial action that is commensurate with the severity of the offense, certainly before the behavior rises to the level of a Title VII lawsuit and subjects the City to potential liability.  In re Gallo, CSA 63-09, 5 (CSB 3/17/11).

A formal complaint is an unambiguous statement by an employee of the intent to require the agency to immediately undertake effective, thorough, and objective steps, which may include an investigation by a trained investigator when necessary.  In re Lewis, CSA 22-06, 2 (5/2/06). 

Rules 19-10 B. 1, 15-103 B., and 15-104, when read together, clearly intend to afford an agency notice of the nature of the alleged harassment or discrimination, as well as a real opportunity to investigate, evaluate, and correct any harassment or discrimination.  In re Lewis, CSA 22-06, 2 (5/2/06).  

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15-106: Retaliation 

In general

Rules 15-103, -104 and -105 encourage employees to promptly report any acts of unlawful harassment and require city agencies to promptly address those reports and take appropriate remedial action if unlawful harassment has occurred.  In re Gallo, CSA 63-09, 4 (CSB 3/17/11).

Rule 15-100 et. seq. procedures serve to maintain a workplace free of any unlawful harassment, deter future harassment and minimize the City's exposure to potential liability in Title VII lawsuits.  In re Gallo, CSA 63-09, 4-5 (CSB 3/17/11).

City agencies are required to immediately address a complaint of sexual harassment to determine whether any unlawful harassment under Rule 15 has occurred, and if so, to take remedial action that is commensurate with the severity of the offense, certainly before the behavior rises to the level of a Title VII lawsuit and subjects the City to potential liability.  In re Gallo, CSA 63-09, 5 (CSB 3/17/11).

A pre-disciplinary letter is not proof of an adverse action, an element necessary to assert a retaliation claim.  In re Thomas, CSA 13-10 (Order 3/15/10).

Appellant claiming retaliation made a showing that he engaged in a protected activity by exercising his right to take FMLA leave.  In re Abeyta, CSA 110-09, 2 (Order 2/9/10).

A retaliation claim must include an allegation that the employee suffered an adverse employment action; i.e., an action that is reasonably likely to deter an employee from engaging in a protected activity. In re Abeyta, CSA 110-09, 2 (Order 2/9/10), citing Burlington Northern & Santa Fe Ry. Co v. White, 548 U.S. 53 (2006); EEOC Compliance Manual Section 8, Retaliation, ¶ 8008 (1998).

To survive a motion for summary judgment in a retaliation claim, appellant must show some connection between the adverse action and the protected activity. In re Abeyta, CSA 110-09, 2 (Order 2/9/10), citing 42 USCA § 2000e-3(a); Nichols v. Harford County Bd. of Educ., 189 F.Supp.2d 325 (D. MD 2002).

Once the agency responds to appellant’s retaliation claim with a showing that there was a legitimate business reason for its actions, it is incumbent on appellant to present a genuine dispute of material fact as to whether the agency’s proffered reason is pretextual - i.e., unworthy of belief.  In re Abeyta, CSA 110-09, 2-3 (Order 2/9/10), citing McDonnell Douglas v. Green, 411 U.S. 792 (1973); Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997); Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir.1995); Hawkins v. PepsiCo, Inc., 203 F.3d 274, 278 (4th Cir. 2000).

Where appellant failed to show that the reasons given by the agency for elimination of the shift were a pretext for retaliation, summary judgment must be granted on the claim of retaliation.  In re Abeyta, CSA 110-09, 3 (Order 2/9/10), citing Gates v. Caterpillar, Inc., 513 F.3d 680 (7th Cir. 2008).

In order to prove retaliation, appellant must submit evidence that she engaged in a protected activity, such as a report or complaint of discrimination, and that the suspension was motivated by a desire to punish her for that activity.  In re Diaz, CSA 13-06, 7 (5/31/06), citing Poe v. Shari’s Mgmt. Corp., 1999 US App LEXIS 17905 (10th Cir. 1999).

In order to establish retaliation, appellant must demonstrate causation between his protected activity and the agency’s adverse action, as well as proof that the agency action was intentionally retaliatory.  In re Hernandez, CSA 03-06, 11 (5/3/06), citing Robben v. Runyon, 2000 U.S. APP. LEXIS 1358 (10th Cir. 2000); Gunnell v. Utah Valley State College, 152 F.3d 1253 (10th Cir. 1998). 

Retaliation claim must be supported by evidence of an adverse action, i.e., action that is reasonably likely to deter employees from engaging in protected activity.  In re Johnson, CSA 135-05, 4 (3/10/06), citing Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000). 

Adverse action is not limited to monetary losses, and the relevant factors will be examined on a case-by-case basis.  In re Johnson, CSA 135-05, 4 (3/10/06).

Mere inconvenience or alternative of job responsibilities is not an adverse action, nor is everything that makes an employee unhappy.  Otherwise, the term would become dependent on the sensitivity of individual employees, and no objective test would be possible.  In re Johnson, CSA 135-05, 4 (3/10/06), citing Couture v. Belle Bonfils Me. Blood Center, 151 Fed. Appx. 685, 690 (10th Cir. 2005); Sanchez v. Denver Pub. Sch., 164 F.3d 527, 532 (10th Cir. 1998).

Proof of retaliation requires appellant to demonstrate a causal link between the adverse action and the protected activity. In re Williams, CSA 65-05, 8 (11/17/05), citing In re Jackson, CSA 103-04, 7 (6/13/05).

Appellant bears the burden to establish a prima facie case of retaliation.  Thereafter, the burden shifts to the agency to establish a legitimate, nondiscriminatory reason for the adverse action.  Appellant is then given the opportunity to demonstrate that the claimed reason was a mere pretest for retaliation.  In re Williams, CSA 65-05, 8 (11/17/05), citing In re Garcia, CSA 175-04, 5 (7/12/05); Poe v. Shari's Mgmt. Corp., 1999 U.S. App. LEXIS 17905 (10th Cir. 1999).

A prima facie showing of retaliation requires proof that 1) appellant engaged in a protected activity, 2) known to the agency, 3) the agency thereafter took an adverse employment action against appellant, and 4) there was a causal connection between the protected activity and the adverse action.  In re Garcia, CSA 175-04, 5 (7/12/05), citing McDonnell Douglas v. Green, 411 U.S, 792 (1973); Poe v. Shari's Mgmt. Corp., 188 F.3d 519 (10th Cir. 1999).

Appellant bears the burden of persuasion throughout the entire process to prove retaliation.   In re Garcia, CSA 175-04, 5 (7/12/05).   

Once appellant establishes a prima facie case of retaliation, a presumption of retaliation is raised, and the burden shifts to the agency to rebut the presumption by articulating some legitimate, nondiscriminatory reason for its decision.  Appellant then must demonstrate that the agency’s proffered reason for taking the action was a mere pretext for retaliation.  In re Garcia, CSA 175-04, 5 (7/12/05), citing Poe v. Shari’s Mgmt Corp., 188 F.3d 519 (10th Cir. 1999).

An employee proves a violation of this rule by showing that (1) he assisted the city in an investigation of a complaint; (2) the employer had knowledge of the employee’s assistance in the investigation, (3) the employer took adverse action against the employee, and (4) the adverse action was motivated by the employee's assistance in the investigation.  In re Smith, CSA 17-05, 7-8 (7/07/05), citing 5 U.S.C. 2302(b)(8); 29 C.F.R. § 1613.261; Grant v. Bethlehem Steel Corp., 622 F.2d 43, 46 (1St Cir. 1980); and McDonnell Douglas v. Green, 411 U.S. 792, 802-04 (1973).       

Section 15-106 evidences the Career Service Authority's interest in maintaining an efficient city by providing protection from reprisal to employees who aid city investigations.  In re Smith, CSA 17-05, 7 (7/07/05).  

When a city audit is an investigation into a complaint about the expenditure of public funds, employees who assist the audit by providing information are protected from retaliation by the rule.  In re Smith, CSA 17-05, 7 (7/07/05) (decided under § 15-106).

Claim of retaliation requires proof of a causal connection between the adverse action and the protected activity; here, the filing of an appeal over discipline which included discrimination claim.  In re Jackson, CSA 103-04, 7 (6/13/05), citing Clark County School District v. Breeden, 532 U.S. 268 (2001).

A prima facie case of retaliation is made by showing 1) a protected employee action, 2) an adverse action by an employer either after or contemporaneous with the employee’s protected action, and 3) a causal connection between the employee’s action and the employer’s adverse action.  In re Owoeye, CSA 11-05, 7 (6/10/05); citing Poe v. Shari’s Mgmt. Corp., 188 F. 3d 519 (10th Cir.1999); Morgan v. Hilti, Inc., 108 F. 3d 1319, 1324 (10th Cir. 1997); and In re Green, CSA 130-04, (1/7/05).   

A prima facie case of retaliation is established by showing 1) protected opposition to discrimination or participation in a proceeding arising out of discrimination; 2) adverse action by the employer contemporaneously or subsequent to the employee’s protected activity,; and 3) a causal connection between such activity and the employer’s action.  In re Owens, CSA 139-04, 12 (3/31/05), citing Williams v. Rice, 983 F.2d 177, 180 (10th Cir. 1993).    

A prima facie case of retaliation is made by showing 1) protected employee action; 2) adverse action by an employer either after or contemporaneous with the employee’s protected action; and 3) a causal connection between the employee’s action and the employer’s adverse action.  In re Freeman, CSA 40-04, 75-04, 6 (3/3/05), citing Poe v. Shari’s Mgmt Corp., 188 F.3d 519 (10th Cir. 1999); Morgan v. Hilti, 108 F.3d 1319, 1324 (10th Cir. 1997).  See also In re Leal-McIntyre, CSA 77-03, 134-03 and 167-03, 8 (1/27/05), citing Morgan v. Hilti, 108 F.3d 1319, 1324 (10th Cir. 1997); and In re Green, CSA 130-04, 4 (1/7/05).    

Retaliation not proven 

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).

2004 formal complaint against supervisor qualifies as a protected action, but the temporal connection between complaint and dismissal one and a half years later is too tenuous to infer causation, absent other evidence of retaliatory intent.  In re Hernandez, CSA 03-06, 11 (5/3/06), citing Gunnell v. Utah Valley State College, 152 F.3d 1253, 1263 (10th Cir. 1998).

An order to complete ten hours of remedial training during paid work hours which was issued a year after appellant filed a discrimination charge against a different supervisor does not constitute action likely to deter that protected activity as a matter of law.  In re Johnson, CSA 135-05, 5 (3/10/06). 

Supervisor’s recent favorable reviews and compliments to appellant raise a strong presumption that no discrimination occurred, as the supervisor would not abruptly develop antipathy toward appellant because of her sex.  In re Johnson, CSA 135-05, 5 (3/10/06); citing Lowe v. J.B. Hunt Transport, Inc., 963 F.2d 173, 174-175 (7th Cir. 1992).  

Mere pendency of a discrimination charge does not establish a motive to discriminate when the charge was clearly known to the supervisor for over a year before the claimed retaliatory act.  In re Johnson, CSA 135-05, 5 (3/10/06). 

Prima facie case of retaliation claim was not established because appellant failed to prove a causal connection between her protected activity and agency’s written reprimand and leave without pay.  In re Vigil, CSA 110-05, 8 (3/3/06).

Appellant did not file an internal complaint of retaliation, and therefore did not establish a claim of retaliation on appeal.  In re Schultz, CSA 130-05, 3 (2/27/06).

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

Where appellant claimed the agency retaliated against her in 2003 for her discipline of a subordinate in 1999, the time between the two events is too remote to establish causation.  Name redacted, CSA 190-03, 9 (2/13/06). 

Appellant failed to establish link between her 1999 discipline of a subordinate and the supervisor who disciplined her in 2003, therefore prima facie case for retaliation claim was not proven.  Name redacted, CSA 190-03, 9 (2/13/06).

Where supervisor had already decided to impose discipline before the claimed protected activity occurred, appellant failed to prove discipline was retaliatory.  In re Williams, CSA 65-05, 8 (11/17/05). 

Proof that another employee engaged in the same protected activity yet suffered no resulting retaliation does not support retaliation claim.  In In re Williams, CSA 65-05, 8 (11/17/05).

Appellant’s complaint to agency director about a manager’s comments critical of a unit’s performance was not a protected activity, since there was no evidence that the manager’s comments were themselves discriminatory.  In re Williams, CSA 65-05, 9 (11/17/05).

Appellant failed to prove a causal connection between her complaint about a manager’s comments and a written reprimand issued before the complaint was made.  In re Williams, CSA 65-05, 9 (11/17/05).

Appellant failed to offer evidence that her supervisor was motivated to retaliate against her for her complaint about a manager’s comments.  In re Williams, CSA 65-05, 9 (11/17/05).

A supervisor’s personal dislike of appellant and an inquiry about appellant’s sister, who had been divorced from the supervisor’s brother for twenty years, does not prove that appellant engaged in a protected activity, or that the reprimand was motivated by a protected activity.  In re Williams, CSA 65-05, 8 (11/17/05).

Where claim of retaliation made in opening statement was not supported by evidence, claim must be dismissed.  In re Mestas, 37-05, 8 (8/4/05).

Appellant failed to establish retaliation claim by failing to rebut Agency’s evidence of its legitimate, non-retaliatory purpose in upholding its regulations against e-mail abuse.  In re Garcia, CSA 175-04, 6 (7/12/05).

Appellant failed to prove she was retaliated against for complaining about other employees’ work, since she failed to establish that she reported on any unlawful activity for which whistleblower protection might apply.  In re Garcia, CSA 175-04, 6 (7/12/05).  

Appellant failed to prove that her termination was retaliatory for her application for bi-lingual pay differential, since she failed to show that that her application is a protected activity, or to prove the application caused her termination.  In re Garcia, CSA 175-04, 6 (7/12/05).

Appellant failed to prove retaliation for her request for promotion for an unspecified position, as appellant failed to establish a protected activity or causation.  In re Garcia, CSA 175-04, 6 (7/12/05).

Where the discipline was confirmed by the very co-managers who had protected appellant in the past from suspected retaliation, the discipline occurred 18 months after the protected activity, appellant reported no threat to his job for almost a year, the misconduct was witnessed by two credible co-workers, the managers from whom appellant suspected retaliation were not the driving force in the discipline, and the misconduct bore no relation to the protected activity, employee failed to prove the discipline was motivated by retaliation.  In re Smith, CSA 17-05, 8 (7/07/05).

Retaliation claim is rendered moot by decision reversing discipline.  In re Martinez, CSA 19-05, 9 (6/27/05).

Retaliation claim was not proved when appellant’s asserted protected activity, a complaint of unspecified management practices made to CSA employee relations, occurred after discipline was imposed.  In re Schultz, CSA 156-04, 10 (6/20/05).

Allegations of retaliation made in appellant’s closing argument are not considered in the decision unless supported by evidence brought forth at the hearing.  In re Jackson, CSA 103-04, 8 (6/13/05).          

Claim that lay-off was retaliatory fails where the only evidence to support it was appellant’s argument that her supervisor favored another for hire to her position, and appellant believed the supervisor later influenced those who made lay-off decision. In re Jackson, CSA 103-04, 7 (6/13/05).

If the real reason for a lay-off was the agency’s negative reaction toward appellant for accepting a promotion for which another was favored, then the motivation for the lay-off was not retaliation for filing an appeal alleging discrimination.  In re Jackson, CSA 103-04, 8 (6/13/05).

Appellant’s evidence that he addressed wrongdoing at agency, and that he was given verbal reprimand shortly after, established first two prongs of retaliation claim.  In re Owoeye, CSA 11-05, 7 (6/10/05).   

Appellant failed to establish causal connection between his input at staff meetings about issues of wrongdoing at the zoo and his suspension five months later for safety violation.  In re Owoeye, CSA 11-05, 7 (6/10/05).

An eighteen-month gap between the first EEO activity and the adverse action does not support an inference of a causal connection between the protected activity and the discipline, without evidence explaining the gap or that otherwise supports a finding of causation.  In re Owens, CSA 139-04, 12 (3/31/05), citing Richmond v. Oklahoma University Board of Regents, 1998 U.S. App. LEXIS 26600; and Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1395 (1997).

Appellant’s good faith reporting of improper co-worker practices constituted whistleblowing activity protected from retaliation.  In re Freeman, CSA 40-05, 75-04, 7 (3/3/05) citing Poe v. Shari’s Mgmt. Corp., 188 F. 3d 519 (10th Cir.1999). 

Proof of retaliation requires contemporaneous or very close temporal proximity of the protected employee action and the adverse agency action.  In re Freeman, CSA 40-05, 75-04, 8 (3/3/05), citing Poe v. Shari’s Mgmt. Corp., 188 F. 3d 519 (10th Cir.1999).

Appellant failed to prove supervisor retaliated against her for whistleblower complaints made between 2000 to 2004 where same supervisor gave her favorable reviews and commendations during the same period of time.  In re Freeman, CSA 40-05, 75-04, 8 (3/3/05).

Grievance that challenged a work assignment but did not allege discrimination was not a report of harassment or discrimination within the meaning of the rule against retaliation.  In re Leal-McIntyre, CSA 77-03, 134-03 and 167-03, 8 (1/27/05).

Complaint alleging that appellant was required to do work that other employees should have performed does not allege waste of public funds, abuse of authority, mismanagement of an agency or any other matter relating to the public interest is not a protected activity within the meaning of the rule prohibiting retaliation.  In re Leal-McIntyre, CSA 77-03, 134-03 and 167-03, p. 8-9 (1/27/05), citing CRS § 24-50.5-102

Where employee raised complaint affecting the public interest, asserting misuse of city equipment, and supervisor took action to correct misuse on the same day, employee did not prove she was adversely affected by her whistleblower complaint.  In re Leal-McIntyre, CSA 77-03, 134-03 and 167-03, 9 (1/27/05).  

Supervisor’s use of the phrase “hostile work environment” in a note on appellant’s performance referred to appellant’s well-known criticism of her co-workers, not to the fact that employee filed a grievance, and thus did not support a finding of reprisal.  In re Leal-McIntyre, CSA 77-03, 134-03 and 167-03, 9 (1/27/05).

Electrician’s expressed desire to install fans in compliance with city code is a protected activity.   In re Green, CSA 130-04, 4 (1/7/05).

Weight of the evidence shows that reprimand was issued because of appellant’s outburst at team meeting and nothing else.  In re Green, CSA 130-04, 4 - 5 (1/7/05).

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15-110:  Preventing violence in the workplace

The same facts which establish a violation of Executive Order 112 also establish a violation of this Career Service Rule.  In re Lykken, CSA 26-10, 7 (7/7/10).

Violence in the workplace, in all its forms, is among the most serious offenses under the Career Service Rules.  In re Lykken, CSA 26-10, 7 (7/7/10).

The same facts and findings which established violation of EO 112 and agency policy against violence in the workplace also establish a violation of this rule.  In re Lykken, CSA 26-10, 7 (7/7/10).

That the mayor, agency, and career service rules have addressed violence in the workplace separately demonstrates the emphasis interested authorities have placed on the prevention of and punishment for threats of violence and violent behaviors.  In re Lykken, CSA 26-10, 7 (7/7/10).  

Violation found

Deputy sheriff’s unexpected hard slap on the buttocks of a fellow officer in front of his peers and insulting banter with another officer constitutes physical assault in a city workplace, and thus violates this rule.    In re Rogers, CSA # 57-07, 6 (3/18/08).

Appellant violated this rule when he assaulted a co-worker in response to his teasing comments made a week earlier.  In re Delmonico, CSA 53-06, 4 (10/26/06).

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