Rule 5: Appointments and Status

5-41: Employee status – in general 

It is the intent of §5-41 to maintain clear employee status identifications for all employees. In re Sample, CSA 72-07, 9 (6/12/08), rev’d on other grounds, CSB 10/16/08. 


5-42: How status is attained 

Where employee was reclassified during probation, then accepted another position higher than the job she was hired into but lower than her reclassified position, factual issue exists as to whether appellant attained career service status at the time of her termination. In re Brooks, CSB 91-07 (4/9/08). 

When jurisdiction to hear an appeal turns on resolving factual issues regarding appellant’s career service status, the hearing officer must determine those facts before the Career Service Board will intervene on an interlocutory appeal. In re Brooks, CSB 91-07, 2 (4/9/08). 

An employee in a limited position who successfully completes probation attains Career Service status. In re Martillaro, CSA 42-06, 2 (11/30/06); § 5-42 B. 

An on call employee does not have career status. In re Escalera, CSA 54-06 (8/14/06); §5-42 D. 

5-42 B: Career status 

Hearing officer erroneously interpreted rules in concluding that a probationary employee can attain career status by default without having completed mandatory training programs if the agency fails to timely request an extension of probation and/or erroneously certifies that the employee successfully completed probation. In re Sample, CSB 72-07, 3 (10/16/08). 

A probationary employee’s failure to complete mandatory training automatically extends probation until he completes training. In re Sample, CSB 72-07, 3-4 (10/16/08). 

When jurisdiction to hear an appeal turns on resolving factual issues regarding appellant’s career service status, the hearing officer must determine those facts before the career service board will intervene on an interlocutory appeal. In re Brooks, CSB 91-07, 2 (4/9/08). 

Since an on-call employee does not hold career status under § 5-42, the only issues raised by the appeal are the discrimination claims. In re Wehmhoefer, CSA 02-08, 1 (2/14/08). 


5-42 B.2: Promotion while on employment probation 

Hearing officer’s reliance on § 5-42 B.2. in holding that completion of all mandatory training is not a necessary prerequisite for passing probation is erroneous. In re Sample, CSB 72-07 ( 10/16/08). 

The intent behind this rule was to establish how the minimum periods of employment probation and promotional probation are calculated when an employee who is still on employment probationary status is promoted into a higher classification. In re Sample, CSB 72-07, 4 ( 10/16/08). 

Method of calculation set forth in the rule allows the number of successfully completed months of service in both classifications to be combined in order to satisfy the minimum six-month period of employment probation and is simply silent about the separate requirement of completing mandatory training. In re Sample, CSB 72-07, 4-5 (10/16/08). 

Interpretation of this rule as the method of calculation of minimum service in employment and promotional probation harmonizes with the other rule provisions that require successful completion of both the minimum period of employment and mandatory training before an employee attains career status. In re Sample, CSB 72-07 (10/16/08).

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5-50: Probation 

An employee may be deemed to have passed employment probation by default, but only if both the minimum probationary period and the mandatory training have been successfully completed. In re Sample, CSB 72-07, 3 (10/16/08). 

The purpose of probation is to allow an agency a work-test period after hire for close observation of a new employee to determine if his performance meets required standards, and permit the employee to obtain assistance to adjust to new duties. In re Sample, CSA 72-07, 6-7 (6/12/08), rev’d on other grounds CSB 10/16/08. 

The rules provide that the CSA, each agency, and the employee all share responsibility for a probationary employee’s completion of training requirements. In re Sample, CSA 72-07, 6-7 (6/12/08), rev’d on other grounds CSB 10/16/08. 

Using the hire date to determine training requirements rather than the effective date of the rule would require agencies to apply two different training requirements to their current probationary employees, an impractical result that could not have been intended by the CSB. In re Sample, CSA 72-07, 6-7 (6/12/08), rev’d on other grounds CSB 10/16/08. 


5-51: Purpose of probation 

The purpose of probation is to allow an agency a period after hire for close observation of a new employee to determine if his performance meets required standards, and permit the employee to obtain assistance to adjust to new duties. In re Sample, CSA 72-07, 6-7 (6/12/08), rev’d on other grounds, CSB 10/16/08.

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5-52: Duration of probation  


5-52 B: Extension of probation  

Hearing officer erroneously interpreted rules in concluding that a probationary employee can attain career status by default without having completed mandatory training programs if the agency fails to timely request an extension of probation and/or erroneously certifies that the employee successfully completed probation. In re Sample, CSB 72-07, 3 (10/16/08).  

A probationary employee’s failure to complete mandatory training automatically extends probation until he completes training. In re Sample, CSB 72-07, 3-4 ( 10/16/08). 


5-53: End of probation notification 

An employee can be deemed to have passed employment probation by default, but only if both the minimum probationary period and the mandatory training have been successfully completed. In re Sample, CSB 72-07, 3 (10/16/08). 

An employee can be deemed to have passed employment probation by default, but only if both the minimum probationary period and the mandatory training have been successfully completed. , CSB 72-07, 3 (10/16/08).  

The responsibility to ensure that a probationary employee completes the training mandatory under § 6-20 A is shared equally among the employee, the agency and CSA. In re Sample, CSB 72-07, 3  10/16/08). 

Prior to the end of the probationary period, the agency is required to notify the employee and CSA in writing whether or not the employee has passed probation. In re Sample, CSB 72-07, 3 (10/16/08). 

Failure to complete mandatory training programs automatically extends an employee’s probation until such training is complete. In re Sample, CSB 72-07, 3-4 (10/16/08).

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5-53 C: Failure to file end of probation notification  

Hearing officer erroneously interpreted rules in concluding that a probationary employee can attain career status by default without having completed mandatory training programs if the agency fails to timely request an extension of probation and/or erroneously certifies that the employee successfully completed probation. In re Sample, CSB 72-07, 3 (10/16/08).

 


5-61: Employees in employment probationary status  

 Appeal of terminated probationary employee who failed to identify the protected status alleged to be the basis of the discrimination and harassment claims must be dismissed.  In re Mora, CSA 125-08 (11/28/08).  

Appeal of terminated probationary employee who failed to identify the protected activity alleged to be the basis of retaliation claim must be dismissed.  In re Mora, CSA 125-08 (11/28/08).  

Appellant's act of scheduling a meeting with management to discuss his situation does not assert a protected activity as required to assert a retaliation claim. In re Mora, CSA 125-08 (11/28/08).  

Probationary employees may not appeal dismissal except on the grounds of discrimination or violation of the Whistleblower ordinance.   In re Mora, CSA 125-08 (Order 11/28/08).  

Appellant's assertions - that he was accused of failing to follow procedure and to perform work because his supervisor did not like him for some reason, that he was terminated two days after being involved in an accident and that other probationary employees suffered no consequence when they were also involved in accidents- fail to identify the protected status upon which his harassment and discrimination claims were based.   In re Mora, CSA 125-08 (Order 11/28/08).  

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

 While on employment probationary status, employees are subject to termination or demotion at any time, have limited appeal rights and are subject to other restrictions. In re Sample, CSB 72-07, 3 (10/16/08).  

Upon termination of a probationary employee’s employment, employee’s right to appeal is limited to a complaint of unlawful discrimination, since good cause is not otherwise required to support termination of a probationary employee. In re Cooley, CSA 28-06 (6/12/06); §§ 5-61 and 19-10 D. 

Agency may terminate probationary employee for any reason or no reason, and the only basis for appeal is unlawful discrimination. In re Allen, CSA 16-06, 3 (6/6/06); §§ 5-52, 5-53.

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5-62: Employees in career status 

Agency violated this Rule in assessing discipline for Appellant’s use of seven sick leave days in one year, where Agency did not dispute that Appellant was legitimately ill and she used banked leave.  In re Rock, CSA 09-10, 6 (10/5/10).    

Denver’s career service system provides for merit-based appointment of applicants, and performance-based retention of city employees. In re Sample, CSA 72-07, 5-6 (6/12/08), citingCity Charter § 1.2.1; DRMC § 18-1, 18-2, rev’d on other grounds, CSB 10/16/08. 

Under this rule, once an agency receives any form of notice that should apprise the agency of an employee’s potential need for a reasonable accommodation to perform her essential work duties, the agency has no choice but to initiate an interactive process. In re Muniz, CSA 77-07, 4 (7/21/08). 

Agency’s receipt of doctor’s letter stating appellant’s sleeping on duty was probably related to her oxygen deprivation is sufficient notice of agency’s obligation to engage in an interactive process under § 5-84 E. In re Muniz, CSA 77-07, 4 (7/21/08). 

Agency’s acknowledgement that appellant may have medical issues that are causing daytime sleepiness should have triggered interactive process in order to determine whether the appellant had a qualifying disability under the ADA, and if so, whether her disability could be reasonably accommodated. In re Muniz, CSA 77-07, 4 (7/21/08). 

Appellant’s request to use oxygen at work because her doctor recommended it was a request for a reasonable accommodation under the ADA, and therefore the agency should have initiated the interactive process. In re Muniz, CSA 77-07, 4 (7/21/08). 

There are no specific words an employee is required to utter in order to request a reasonable accommodation under § 5-84. In re Muniz, CSA 77-07, 4 (7/21/08), citing Smith v. Midland Brake Inc., 180 F.3d 1154 (10th Cir. 1999), 29 C.F.R. § 1630.2(o)(3); EEOC v. Sears, Roebuck & Co., 417 F.3d 789 (7th Cir. 2005). 

When an agency has notice of an employee’s potential disability, it may neither discipline nor disqualify the employee without first engaging in an interactive process pursuant to § 5-84 E. In re Muniz, CSA 77-07, 5 (7/21/08). 

Denver’s career service system provides for merit-based appointment of applicants, and performance-based retention of city employees. In re Sample, CSA 72-07, 5-6 (6/12/08), rev’d on other grounds (CSB 10/16/08), citing City Charter § 1.2.1; DRMC § 18-1, 18-2. 

A career status employee appointed to a limited position in 2001 was not entitled to layoff protection when she took a demotion to a different limited position in 2005. Under § 5-62, limited employees appointed after January 16, 2004 are not entitled to layoff protection. In re Martillaro, CSA 42-06, 2 (11/30/06). 

Denver’s merit-based career service personnel system ensures that employees in career status are paid like pay for like work under an approved classification and pay plan, and that they may be disciplined or dismissed only for cause. In re Foley, CSA 19-06, 7 (11/10/06). 

Career service employees are entitled to lay-off protection. In re Foley, CSA 19-06, 7 (11/10/06). 

Agency had cause to discipline appellant under this rule by virtue of appellant’s violation of disciplinary rules. In re Vigil, CSA 110-05, 5 (3/3/06). 

A career status employee is entitled to layoff protection in accordance with Rule 14. In re Romberger, CSA 89-04, 5 (3/2/05).

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5-63: Employees in promotional probationary status  

Where appellant failed to cite discrimination allegedly practiced by agency, hearing officer has no jurisdiction to consider merits of appeal of termination from promotional probation. In re Shields, CSA 67-05 (7/12/05). 


5-64: Employees in non-career status  

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

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


5-84 A: Disability discrimination 

The ADA prohibits employers from discriminating against a qualified individual with a disability with regard to job application procedures, hiring, advancement, discharge, compensation, job training, and other terms, conditions, and privileges of employment. In re Vigil, CSA 110-05, 7 (3/3/06); 42 USC 12112(a). 

Failure to establish she was disabled renders moot appellant’s claim of disparate treatment discrimination based upon her disability. In re Vigil, CSA 110-05, 7 (3/3/06).

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