Burden of Proof

In general

In a motion to dismiss, appellant bears the burden to prove subject matter jurisdiction. In re Anderson, CSA 102-09 (Order 1/8/10).

Appellants bear the burden of demonstrating subject matter jurisdiction in response to a motion to dismiss. In re Vasquez and Lewis, CSA ## 08-09, 09-09 (3/11/09).

____________________________________________________________

TOPICS

Affirmative Defense

Arbitrary and capricious

Back pay offset
Discipline
Discrimination
Disqualification
Failure to Mitigate
Hiring
Layoff
PEPR
Preponderance of evidence
Resignation
Retaliation
Status

______________________________________________________________

Affirmative defense

Where appellant claims an affirmative defense to her violation of career service rules, appellant is charged with the burden of proof for the affirmative defense. In re Norman-Curry, CSB 28-07, 50-08, 4 (9/3/09).

While the agency bore the burden of proving the amount of force used by deputy sheriff-appellant was excessive and punitive in violation of agency order, appellant bore the burden of proof on affirmative defenses. In re Norman-Curry, CSB 28-07, 50-08, 4 (9/3/09).

Appellant deputy sheriff's claim, that the hearing officer improperly shifted burden of proof to require her to prove she did not use excessive force on an inmate, misstates the burden of proof in an affirmative defense claim. In re Norman-Curry, CSB 28-07, 50-08, 4 (9/3/09).

Appellant's affirmative defense, that the force she used on an inmate was a reasonable response to what she claimed were repeated attempts by the inmate to kick and spit at her, did not prove affirmative defense of necessity where videotape recording of the incident as well as testimony of officers and deputies who were present did not corroborate her claim, and even if inmate had spit on appellant, she failed to use reasonable alternatives to excessive force. In re Norman-Curry, CSB 28-07, 50-08, 4 (9/3/09).

In an appeal of a layoff, the employee bears the burden to prove the agency action was arbitrary, capricious, or contrary to rule or law. In re Sanders, CSA 62-09, 4 (9/24/10), citing Dept of Institutions v. Kinchen, 886 P.2d 700, 712 (Colo. 1994).

A needs improvement performance review may only be reversed if appellant proves it was arbitrary, capricious, and without rational basis or foundation. In re Harrison, CSA 55-07, 43 (6/17/10).

A layoff decision must be upheld unless it is determined to be arbitrary, capricious or contrary to rule or law. In re Owens-Manis and Pettway, CSA 73-09, 11 (3/11/2010), citing Velasquez v. Dept. of Higher Education, 93 P.3d 540 (Colo.App. 2003)

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 Owens-Manis and Pettway, CSA 73-09, 11 (3/11/2010), citing Motor Vehicle Mfrs. Assn. v. State Farm, 463 U.S. 29, 44 (1983); In re Vasquez, CSA 08-09, 4 (5/20/09); In re Foley, 19-06, 8 (11/10/06); Brennan v. Dept of Local Affairs, 786 P.2d 426 (Colo.App. 1989).

The duty of a court reviewing agency action under the arbitrary or capricious standard is to ascertain whether the agency examined the relevant data and articulated a rational connection between the facts found and the decision made. In re Owens-Manis and Pettway, CSA 73-09, 11 (3/11/2010), quoting Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1574 (10th Cir. 1994); Motor Vehicle Mfrs. Assn. v. State Farm, 463 U.S. 29, 43 (1983).

In reviewing agency decision, it must be determined whether the agency considered all relevant factors and whether there has been a clear error of judgment. In re Owens-Manis and Pettway, CSA 73-09, 11 (3/11/2010), citing Motor Vehicle Mfrs. Assn. v. State Farm, 463 U.S. 29, 43 (1983); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971).

Where there are no competent evidentiary facts to support the agency’s findings of ultimate fact, the decision must be reversed as arbitrary, capricious or contrary to rule or law. In re Owens-Manis and Pettway, CSA 73-09, 11 (3/11/2010), citing Womack v. Industrial Commission, 451 P.2d 761, 764 (Colo. 1969); Ricci v. Davis, 627 P.2d 1111, 1118 (Colo. 1981).

If the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, offered an explanation that runs counter to the evidence, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise, the decision would be arbitrary and capricious. In re Owens-Manis and Pettway, CSA 73-09, 11 (3/11/2010), citing Motor Vehicle Mfrs. Assn. v. State Farm, 463 U.S. 29, 43 (1983).

When an agency fails to explain the reason for its action, reviewing body may not supply a reasoned basis for that action but will uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned. In re Owens-Manis and Pettway, CSA 73-09, 12 (3/11/2010), citing SEC v. Chenery Corp, 332 US 194, 196 (1947); Bowman Transp. Inc. v. Arkansas-Best Freight System, 419 US 281, 286 (1974).

In challenging agency's merit increase calculation, appellants must overcome presumption of validity in administrative actions with a showing that the calculation was arbitrary, capricious, or contrary to rule or law. In re Vasquez and Lewis, CSA ## 08-09, 09-09, 4(5/20/09). See Velasquez v Dept. of Higher Education, 93 P3d 540 (Colo. App. 2003); Garner v Colorado State Dept. of Personnel, 835 P2d 527 (Colo. App. 1992); Renteria v Colorado State Dept. of Personnel, 811 P2d 797 (Colo. 1991).

Appellants failed to prove agency action was arbitrary or capricious by a preponderance of the evidence where agency presented compelling business efficiency reason for its action and evidence that it promoted consistency and fairness. In re Vasquez and Lewis, CSA ## 08-09, 09-09, 3, 5 (5/20/09).

Where agency demonstrated that limiting merit increase processing to two days per month simplified pay periods and promoted a consistent and fair merit system, appellants failed to prove action was arbitrary or capricious. In re Vasquez and Lewis, CSA 08-09, 09-09, 3, 5 (5/20/09).

An agency action is arbitrary and capricious if an agency 1) fails to use reasonable diligence to determine facts necessary to its decision, 2) fails to give proper consideration to facts relevant to the decision, or 3) bases its action on conclusions that reasonable persons considering the facts would not reach. In re Foley, CSA 19-06, 8 (11/10/06), citing Lawley v. Dept. of Higher Education, 6 P3d 1239, 1252 (Colo. 2001).

The core of the concept of arbitrary and capricious action is rationality. In re Foley, CSA 19-06, 8 (11/10/06), citing Columbia Broadcasting System v. F.C.C., 454 F.2d 1018, 1028 (D.C.Cir. 1971).

An act is arbitrary and capricious if a reasonable person, considering all the evidence, would fairly and honestly be compelled to reach a different conclusion. In re Padilla, CSA 25-06, 11 (9/13/06), citing In re Leal-McIntyre, CSA 77-03, 5 (1/27/05); Wildwood v Colo. Dept. of Public Health Care, 985 P2d. 654 (Colo. App. 1999).

Express finding that “needs improvement” PEPR rating was arbitrary, capricious and without rational basis or foundation is sole basis for reversal of rating. Error in rating calculations is not sufficient to support reversal of rating. In re Padilla, CSA 25-06, 11 (9/13/06), affirmed CSB 2/15/07. See also In re Macieyovski, CSA 62-06, 3 (12/14/06).

PEPR rating was arbitrary, capricious, and without rational basis or foundation where deficiencies noted in PEPR were not clearly related to performance standards set in the PEP, PEPR was fraught with mathematical errors and procedural problems, and convincing evidence was presented that supervisor actively disliked appellant. In re Padilla, CSA 25-06, 11 (9/13/06).

Agency may not discipline an employee both for engaging in and, at the same time, failing to engage in the same conduct. In re Martinez, CSA 69-05, 3 (1/4/06) (decided under former §16-50 A. 1).

Agency neglected to use reasonable diligence to determine whether laid-off employee possessed the qualifications to perform the essential duties of the demotional appointment, gave undue weight to its own interpretation of the nature of the position, and disregarded more objective evidence, thereby exercising its discretion in an arbitrary and capricious manner. In re Romberger, CSA 89-04, 9-12 (3/2/05), citing Lawley v. Dept. of Higher Education, 6 P.3d 1239, 1252 (Colo. 2001).

An act is arbitrary and capricious if a reasonable person, considering all the evidence in the record, would fairly and honestly be compelled to reach a different conclusion. In re Leal-McIntyre, CSA 77-03, 134-03 and 167-03, 5 (1/27/05), citing Wildwood Child & Adult Care Program, Inc. v. Colo. Dept. of Public Health Care and Environment, 985 P.2d 654, 658 (Colo. App.1999).

Back pay offset

Where agency seeks a deduction in amount of back pay owed for delay of hearing caused by continuance, it must establish that appellant’s motion for continuance was made in bad faith or for the purposes of delay, or that the motion otherwise justifies an offset from back pay. In re Maes, CSA 180-03, 9-10 (Order 6/20/08).

Discipline

In a disciplinary hearing, the agency retains the burden of persuasion to prove the appellant violated one or more cited sections of the Career Service Rules, and to prove the level of discipline complied with the purposes of discipline under CSR 16-20. In re Abbey, CSA 99-09, 6 (8/9/10).

The agency bears the burden to prove that discipline was appropriate under the career service rules and that the level imposed was within the range that could be issued by a reasonable administrator. In re Morgan, CSA 63-08, 9 (4/6/09) citing C.R.S. 24-4-105 (7); Department of Institutions v Kinchen, 886 P2d 700 (Colo. 1994).

Agency bears burden of persuasion to discipline career service employees. In re Allen, CSA 16-06, 3 (6/6/06).

In a de novo hearing on the appropriateness of discipline, the agency has the burden to prove by a preponderance of the evidence both that appellant violated the disciplinary rules as alleged, and that the discipline was within the range of discipline that can be imposed under the circumstances. In re Diaz, CSA 13-06, 4 (5/31/06), citing Turner v. Rossmiller, 532 P.2d 751 (Colo. App. 1975); In re Gustern, CSA 128-02, 20 (12/23/02). See also In re Hobley, CSA 61-05, 4 (12/19/05).

To the extent that prior decisions required appellant to bear the burden to prove a written reprimand was arbitrary and capricious because it was a grievance appeal, the hearing officer declines to follow that reasoning, and requires the agency to prove it had just cause to discipline appellant. In re Arellano, CSA 70-05 (Order 8/4/05) (decided under former § 19-10 d.), citing In re Douglas, CSA 317-01, 10-11 (Order 3/22/02).

The agency bears the burden to establish that discipline is proper by a preponderance of the evidence at a de novo hearing of disciplinary appeals. In re Roberts, CSA 179-04, 3 (6/29/05), citing former § 13-25-27.

In an appeal to the hearing office, the agency must demonstrate by a preponderance of the evidence that there is cause to discipline and that the discipline imposed is reasonably related to the seriousness of the offenses committed. In re Katros, CSA 129-04, 6 (3/16/05), citing In re Castaneda, CSA 155-02 (7/1/03).

In an appeal of a disciplinary action, the agency bears the burden to establish by a preponderance of the evidence that it had just cause for the action taken. In re Leal-McIntyre, CSA 77-03, 134-03, 167-03, 13 (1/27/05), citing In re Gustern, CSA 128-02 (12/23/02).

Discrimination

At sex discrimination claim hearing, appellant's burden is not simply to present a prima facie case of discrimination in order to avoid a dismissal; rather, appellant bears the burden of proving that the discipline imposed on her was the result of unlawful sex discrimination. In re Norman-Curry, CSB 28-07, 50-08, 2 (9/3/09).

Appellant bears the burden of proving discrimination, harassment, retaliation, and denial of a grievance. In re Morgan, CSA 63-08, 9 (4/6/09) citing C.R.S. 24- 4-105 (7) and Department of Institutions v Kinchen, 886 P2d 700 (Colo. 1994).

The existence of a prima facie case of discrimination and shifting burdens of proof loses relevance after the case is tried on the merits. In re Morgan, CSA 63-08, 10 (4/6/09) citing Ansonia Board of Education v. Philbrook, 479 US 60, 68 (1986).

The employer bears the burden to prove that it offered a reasonable accommodation to an employee whose religious practice conflicts with a work requirement, or that it was unable to reasonably accommodate without undue hardship. In re Morgan, CSA 63-08, 13 (4/6/09), citing Thomas v. National Association of Letter Carriers, 225 F.3d 1149, 1156 (10th Cir. 2000).

Appellant bears the burden of proof on a claim that unlawful discrimination motivated her dismissal from employment. In re Diaz, CSB 72-06, 1 (9/20/07).

Appellant retains the burden of persuasion to prove discrimination by a preponderance of the evidence. In re Felix, CSA 87-06, 3 (1/29/07), citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-512 (U.S. 1993).

Appellant bears initial burden to prove discrimination on the basis of his membership in a protected class. In re Delmonico, CSA 53-06, 7 (10/26/06), citing St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993).

Probationary employee bears burden of persuasion to prove separation was based on discrimination by a preponderance of the evidence. In re Allen, CSA 16-06, 3 (6/6/06).

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).

Appellant bears the initial burden of proving unlawful discrimination. In re Owens, CSA 139-04, 9 (3/31/05).

Disqualification

The agency has the burden of proof to establish by a preponderance of the evidence that a disqualification complied with the Career Service Rules governing disqualifications. In re Crescente, CSA 82-06, 6 (2/2/07), citing In re Cullen, CSB 165-04 (1/18/07); C.R.S. 13-25-127(1) (2006).

Failure to Mitigate

Agency has burden to prove the defense of failure to mitigate damages by evidence the employee failed to take reasonable steps to minimize damages. In re Maes, CSA 180-03, 7 (Order 6/20/08).

Agency fails to carry burden to prove failure to mitigate if mitigation would require inordinate or unreasonable measures or if there were reasonable grounds for the failure. In re Maes, CSA 180-03, 7 (Order 6/20/08), citing Berger v Security Pac. Info. Sys., Inc., 795 P.2d 1380, 1385(Colo. App. 1990).

Hiring

Appellant who challenged agency hiring decision must prove choice was arbitrary, capricious, or counter to law. In re Macieyovski, CSA 60-04, 4 (7/27/05).

Layoff

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 and Pettway, CSA 73-09, 14 (3/11/2010).

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 and Pettway, CSA 73-09, 14 (3/11/2010).

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 and Pettway, CSA 73-09, 14 (3/11/2010).

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 and Pettway, CSA 73-09, 14 (3/11/2010).

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 (6/13/05); 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 (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).

PEPR

Appellant bears the burden of proving that a “needs improvement” PEPR was arbitrary, capricious and without rational basis or foundation. In re Macieyovski, CSA 62-06, 3 (12/14/06).

An express finding that “needs improvement” PEPR rating was arbitrary, capricious, and without rational basis or foundation is the sole basis for reversal. Error in rating calculations is not sufficient to overturn rating. In re Padilla, CSA 25-06, 11 (9/13/06); affirmed CSB 2/15/07; See also In re Macieyovski, CSA 62-06, 3 (12/14/06).

Preponderance of evidence

An employee bears the burden to prove a retaliation claim by a preponderance of the evidence. In re Sanders, CSA 62-09, 4 (9/24/10).

Appellant is the proponent of an order as the party bringing forward a whistleblower claim, and thus must prove the claim by a preponderance of the evidence. In re Harrison, CSA 55-07, 43 (6/17/10), citing CRS § 24-4-105; Velasquez v. Dept. of Higher Education, 93 P.3d 540, 542 (Colo.App. 2003); Dept. of Inst. v. Kinchen, 886 P.2d 700 (Colo. 1994).

Appellants failed to prove the agency's interpretation of CB 44 and calculation of merit increases pursuant to Rule 13 were contrary to rule or law where imprecise and confusing language of § 13-10 F was susceptible to a fair interpretation consistent with other career service rules with the aid of reference to earlier versions of the rule. In re Vasquez and Lewis, CSA ## 08-09, 09-09, 3, 5 (5/20/09).

Resignation

Since resignations are presumed to be voluntary, burden of proof resides with employee to prove his resignation was not voluntary. In re Smith, CSA 14-10 (6/4/10), rev'd on other grounds, (CSB 11/14/10).

The standard by which an employee must prove his resignation was not voluntary is by a preponderance of the evidence. In re Smith, CSA 14-10 (6/4/10), rev'd on other grounds, (CSB 11/14/10).

Appellant bears the burden to prove by a preponderance of the evidence that his resignation was not voluntary. In re Qualls, CSA 71-08 (12/5/08.)

If resignation is found to be involuntary, burden shifts to agency to prove it properly dismissed appellant. In re Qualls, CSA 71-08 (12/5/08.)

Retaliation

Burden of proof in a retaliation claim is on appellant to demonstrate that action was retaliatory. In re Gallo, CSA 63-09, 3 (CSB 3/17/11).

Appellant bears the burden of proving his retaliation claim. In re Morgan, CSA 63-08, 9 (4/6/09) citing C.R.S. 24-4-105 (7); Department of Institutions v Kinchen, 886 P2d 700 (Colo. 1994).

Appellant bears the burden to establish a prima facie case on a claim 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 pretext 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 US App. LEXIS 17905 (10th Cir. 1999).

Status

Appellant has burden to prove he was a career service employee entitled to invoke the jurisdiction of the hearing office based on his termination. In re Sample, CSA 72-07, 5 (6/12/08), citing CSR §§ 5-62 1, Rule 16; C.R.S. § 24-4-105(7).