Rule 13: Pay for Performance (See also 19-10 A.2.c.)

In general 

The different goals of Rule 13 Pay for Performance and Rule 16 Discipline and Dismissal require different tools. In re Roberts, CSA 84-07, 6 (3/7/08). 

The Career Service Rules do not prohibit rating an employee based on behavior for which discipline was imposed during the rating. In re Roberts, CSA 84-07, 6 (3/7/08). 

Rule 13 provides for an annual evaluation of an employee’s performance for the purpose of setting annual merit increases and giving valuable feedback to the employee. In re Roberts,CSA 84-07, 6 (3/7/08). 

Career Service employees who have passed employment probation are evaluated and rated once per year in a Performance Enhancement Program Report (PEPR) that is based on a comparison between the employee’s perceived performance and expectations set out in the year’s Performance Evaluation Program (PEP). In re Proctor, CSA 52-07, 3 (1/3/08). 

A PEPR must be based on objective standards in the PEP or job description in order to give the employee notice of the criteria by which performance will be judged in the PEPR. In re Proctor, CSA 52-07, 3 (1/3/08), citing In re Macieyovski, CSA 62-06, 3 (12/14/06). 

The overall PEPR rating is not an exact calculation based upon the sum of equally weighted components, but is tied more closely to the expected accomplishments that have considerable influence or effect. In re Proctor, CSA 52-07, 8 (1/3/08) citing In re Leal-McIntyre, CSA 77-03, 134-03, 167-03, 6 (1/27/05). 

Evidence of performance issues contained in previous PEPRs may support an inference of notice or inferences relating to credibility. In re Proctor, CSA 52-07, 6 (1/3/08) citing In re Leal-McIntyre, CSA 77-03, 7 (1/27/05).

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13-10 F  Merit date definition 

It is not possible to apply this rule to employees hired before 2008 without reference to earlier versions of the rule, and earlier versions are not readily available to employees.   In re Vasquez and Lewis, CSA ## 08-09, 09-09, 5 (5/20/09). 

Though language defining "merit date" is imprecise and earlier rule versions that may clarify meaning are not readily available to employees, rule is not rendered invalid if it is susceptible to a fair interpretation that is consistent with the other career service rules.   In re Vasquez and Lewis, CSA ## 08-09, 09-09, 5 (5/20/09). 

Though a plain reading of the rule suggests that all employees hired prior to January 1, 2008 have a merit date corresponding with the PEPR evaluation end date they had as of December 31, 2007, the agency's implementation of Denver City Council Bill No. 44's limitation on 2009 merit increases must be construed in relation to earlier versions of Rule 13's definition of "merit date" and to individual appellant's PEPR paperwork for past years.   In re Vasquez and Lewis, CSA ## 08-09, 09-09, 3-4 (5/20/09). 

Appellant's interpretation of her PEPR end date as December 31 instead of January 1 of each year was not persuasive, where only one such end date appeared in her five PEPR years and, since no other rule change or other explanation satisfactorily explained the discrepancy, the most logical conclusion was the exception was clerical error.   In re Vasquez and Lewis, CSA ## 08-09, 09-09, 3-4 (5/20/09).

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13-20: Performance Enhancement Program 

Appellant’s needs improvement PEPR was based upon her poor performance and refusal to incorporate suggested changes, rather than retaliation, where she: often arrived late and checked out early; repeated the same mistakes after many reminders; failed to comply with quality control measures; claimed she was undertrained, but refused others’ suggestions to improve; claimed her scanning errors were due to hardware and software problems which no one else encountered; blamed her supervisor for not catching her (appellant’s) errors; and she failed to accept even a modicum of responsibility for her work product. In re Moore, CSA 103-09, 3-6 (10/14/10). 

The purpose of an annual performance review is to evaluate individual performance, and reward successful performance with merit pay increases under the Career Service Rules. In re Padilla, CSA 25-06, 10 (9/13/06).

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13-30: PEP process 

An employee who receives an overall PEPR rating of meets expectations or better may fail to meet performance standards where the evidence showed he failed to meet his performance standards, but late submission of the PEPR forced a meets expectations rating.  In re Abbey, CSA 99-09, 9 (8/9/10). 

Interpreting the career service rules as limiting agency sanctions for poor performance to downgrading a performance rating would render meaningless the language of CSR 16-20 which permits an agency to assess discipline for inappropriate behavior or performance.  In re Cady, CSA 03-10, 4 (4/22/10).   

The purpose of a PIP is to make an employee aware of performance deficiencies and to provide a reasonable opportunity for improvement. It also serves to clarify management’s expectations of job performance, particularly where an agency may seek to modify performance standards from what may have been required in the past. In re Mounjim, CSB 87-07, 3 (1/8/09).  

The objectives of a PIP are not served without clear communication to the employee about what management expects. In re Mounjim, CSB 87-07, 3 (1/8/09).  

A PIP should identify the performance deficiencies the employee is expected to address, the specific actions the employee must take in order to improve performance, and the standards by which the employee’s performance will be measured. In re Mounjim, CSB 87-07,3 (1/8/09).  

Principles of fairness require that changes in management’s expectations be clearly communicated. In re Mounjim, CSB 87-07, 4 (1/8/09).  

When an agency determines that materials submitted by an employee for purposes of a specific PIP requirement are so deficient as to justify disciplinary action, it is incumbent upon the agency to prove such deficiency, rather than on the employee to prove compliance. In re Mounjim, CSB 87-07, 5 (1/8/09).

An evaluation must be fairly based on the standards and measures in the PEP plan in order to give an employee notice of the criteria by which performance will be judged. In re Padilla, CSA 25-06, 10 (9/13/06). See also In re Macieyovski, CSA 62- 06, 3 (12/14/06). 

 Individual performance evaluations must weigh performance against objective standards to the extent feasible given the job being measured. In re Padilla, CSA 25-06, 10 (9/13/06), citing Cohen v Austin, 861 F. Supp. 340 (E.D. Pa. 1994). 

CSR requires that an agency evaluate performance of non-probationary employees once a year. In re Leal-McIntyre, CSA 77-03, 134-03 and 167-03, 4 (1/27/05). 

Agency supervisor may revise the annual PEP to include new duties being performed by an employee. CSA approval is not needed to implement changes to a PEP. In re Leal-McIntyre, CSA 77-03, 134-03 and 167-03, 4 (1/27/05). 

CSA approval is not needed to implement changes to a PEP. In contrast, the job specification establishing the classification and pay to be assigned a job title must be adopted by the Career Service Board. In re Leal-McIntyre, CSA 77-03, 134-03 and 167-03, 4 (1/27/05). 

Violations cited in a PEPR that occurred outside the rating period cannot be used to support a below expectations rating. In re Leal-McIntyre, CSA 77-03, 134-03 and 167-03, 7-8 (1/27/05). 

Performance is rated against an employee’s achievement of the expected accomplishments set forth in that year’s PEP, which details the duties to be performed by each employee holding a classified position within each agency. In re Leal-McIntyre, CSA 77-03, 134-03 and 167-03, 4 (1/27/05). 

An employee is properly rated as below expectations for the rating period if she fails to meet a significant portion of her expected accomplishments, regardless of her achievement of others. In re Leal-McIntyre, CSA 77-03, 134-03 and 167-03, 6 (1/27/05) (decided under former § 13-23). 

A significant portion of expected accomplishments has been interpreted to refer to expected accomplishments that have considerable influence or effect. In re Leal-McIntyre, CSA 77-03, 134-03 and 167-03, 6 (1/27/05) (decided under former §13-23), citing In re Douglas, CSA 154-02, 3 (1/27/03). 

It is the effect of a failure to perform that determines whether the inadequacy of the performance merits a below expectations rating. In re Leal-McIntyre, CSA 77-03, 134-03 and 167-03, 6 (1/27/05) (decided under former §13-23). 

The mere proportion of positive to negative remarks in a supervisor’s day-to-day notes regarding an employee does not determine whether a performance must be rated at a certain level.In re Leal-McIntyre, CSA 77-03, 134-03 and 167-03, 6 (1/27/05) (decided under former §13-23). 

An agency’s determination of what constitutes a significant portion of an employee’s accomplishments will not be overturned unless it is arbitrary, capricious, and without rational basis or foundation. In re Leal-McIntyre, CSA 77-03, 134-03 and 167-03, 6 (1/27/05) (decided under former §13-23). 

Agency did not abuse its discretion in determining that attendance, personal relations, personal contact, and safety and security constituted a significant portion of appellant’s duties when her failure to perform in those areas exercised a considerable negative effect on her overall performance. In re Leal-McIntyre, CSA 77-03, 134-03 and 167-03, 6 (1/27/05) (decided under former §13-23). 

Agency finding that her performance was below expectations for attendance was not arbitrary when appellant’s pattern of leaving work without permission when angry undermined her supervisor’s authority to control staffing. In re Leal-McIntyre, CSA 77-03, 134-03 and 167-03, 7 (1/27/05). 

Appellant’s confrontational criticism of her co-workers and refusal to comply with instructions on three occasions justified below expectations rating in the area of personal relations. In re Leal-McIntyre, CSA 77-03, 134-03 and 167-03, 7 (1/27/05). 

Below expectations rating in the area of personal contact based on appellant’s continued confrontation of her co-workers was not arbitrary when compared to a co-worker’s single heated exchange with another worker. In re Leal-McIntyre, CSA 77-03, 134-03 and 167-03, 7 (1/27/05). 

Violations cited in a PEPR that occurred outside the rating period cannot be used to support a below expectations rating. In re Leal-McIntyre, CSA 77-03, 134-03 and 167-03, 7-8 (1/27/05) (decided under former §13-10). 

Below expectations rating for safety and security, which measured appellant’s compliance with agency rules and directives, was not arbitrary based upon employee’s refusal to do assigned work until a job audit was completed, calling a co-worker an a--hole, and leaving work without permission. In re Leal-McIntyre, CSA 77-03, 134-03 and 167-03, 8 (1/27/05). 

Below expectations rating for inappropriate conduct stemming from employee’s objection to fingerprinting duty was not arbitrary, despite the fact that duty was not specifically included in PEP plan, since employee had been performing the duty since her hire three years previously, and was on notice for several months that the agency considered her objection unfounded.In re Leal-McIntyre, CSA 77-03, 134-03 and 167-03, 9 (1/27/05). 

Career Service Rules do not support argument that employee may refuse to perform a duty because that duty appears on the job description of another classification, and does not appear on employee’s job description. In re Leal-McIntyre, CSA 77-03, 134-03 and 167-03, 9 (1/27/05). 

PEPs do not require approval from the CSA before they are effective. In contrast, changes to a classification and pay plan are not effective until approved by the Career Service Board. In re Leal-McIntyre, CSA 77-03, 134-03 and 167-03, 13 (1/27/05) (decided under former §13-23).

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13-39 B. Grievances and Appeals Relating to PEPRs 

While an employee may grieve any work review (PEPR) rating, only a “failing” rating may be directly appealed to the Hearing Office. In re Muhammad, CSA 06-11 (Order 2/8/11), citing  CSR 19-10(b)(3); CSR 18-40(E)(1).  

If the grievance of a PEPR rating is denied, appellant must establish the rating negatively affected pay, benefits or status in order for an appeal to stand.  In re Muhammad, CSA 06-11 (Order 2/8/11). 

No aspect of the PEPR program, other than a performance rating, may be grieved or appealed.  In re Muhammad, CSA 06-11 (Order 2/8/11) citing CSR 13-50 C. 

Hearing Office lacks jurisdiction to consider appeal from denial of grievance of “successful” PEPR rating where appellant did not allege his pay, benefits or status were affected. In re Muhammad, CSA 06-11 (Order 2/8/11).

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13-50: Grievances and appeals relating to PEPRs 

This rule's prohibition, at § 13-50 C, of appeals of any "other" aspect of the PEP must be read in conjunction with the immediately preceding rule prohibiting grievance appeals of all ratings save "needs improvement."   In re Vasquez and Lewis, CSA ## 08-09, 09-09, 2 (5/20/09). 

Though no aspect of the PEP is appealable save grievance of a "Needs Improvement" rating, where appellants do not challenge the PEP but rather allege a rule violation that has negatively impacted their pay, appellants have stated a claim for relief under the jurisdictional rules. §19-10 A.2.b.i.   In re Vasquez and Lewis, CSA ## 08-09, 09-09, 2-3 (5/20/09). 

While an individual may grieve any performance rating, only those matters that negatively affect pay, benefits, or status may be appealed if a grievance is denied. In re Stenke, CSA 14-06, 1 (3/15/06). 

Though an individual may grieve any performance rating and directly appeal denial of a grievance of a “needs improvement” rating, no other aspect of the Performance Enhancement Program may be grieved or appealed. In re Stenke, CSA 14-06, 1 (3/15/06).

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PEPR reversed 


PEPR upheld 

Where the PEP standard was more than one significant error in courtroom management per month, and appellant committed six significant errors in one month, her rating of “needs improvement” was in accordance with the clear standards set out in the PEP. In re Roberts, CSA 84-07, 6 (3/7/08). 

Agency’s “needs improvement” rating was appropriate for court technical clerk who made 30 data entry errors, exceeding the two errors per quarter allowed by the PEP for a successful rating, and who mistakenly processed a file as a “dead” file instead of noting that a dismissal order had been entered on the file. In re Roberts, CSA 84-07, 7 (3/7/08). 

Agency appropriately determined that appellant needed to improve in the area of maintaining good co-worker relationships where appellant admitted that she made a series of angry and confrontational statements that adversely affected the work environment between appellant and her supervisor. In re Roberts, CSA 84-07, 7 (3/7/08). 

Where the PEP standard for a successful rating on punctuality was four late starts per quarter, and appellant was late 13 times during that period, appellant’s use of crutches mitigates the seriousness of the infractions, but not render the “needs improvement “rating in that category arbitrary, capricious, or without rational basis or foundation. In re Roberts, CSA 84-07, 7 (3/7/08). 

An overall rating of “needs improvement” is not rendered arbitrary, capricious, or without rational basis or foundation simply because all of the deficiencies on which it is based occur in one part of the rating period. In re Roberts, CSA 84-07, 8 (3/7/08), citing In re Leal-McIntyre, CSA 77-03 (1/27/05). 

“Needs improvement” rating for work performance in early part of rating period was not rendered arbitrary, capricious, or without rational basis or foundation by appellant’s impressive performance improvements during the latter part of the rating period. In re Roberts, CSA 84-07, 8 (3/7/08). 

Administrator who left two new branch managers on their own to determine their training and duties failed to ensure her subordinates were equipped for their tasks, therefore needs improvement rating for teamwork was not arbitrary, capricious or without rational basis or foundation. In re Proctor, CSA 52-07, 5 (1/3/08). 

Needs improvement rating for accountability and ethics teamwork is supported by administrator’s failure to provide support to new branch managers, and failure to require mandatory training before passing them from probation. In re Proctor, CSA 52-07, 5 (1/3/08). 

Testimony of two managers that administrator was tactless and abrasive was supported by stated concern about her demeanor in five previous PEPRs, and therefore supported needs improvement rating on respect for self and others. In re Proctor, CSA 52-07, 6 (1/3/08). 

Needs improvement rating for “other duties” category was not arbitrary, capricious or without rational basis or foundation where administrator did not meet with or mentor two new managers, and passed them from probation without consulting her supervisor. In re Proctor, CSA 52-07, 7 (1/3/08).

 Administrator whose shortcomings were critically important to her supervisory status failed to meet significant portion of her expected accomplishments, and therefore her overall needs improvement rating was not arbitrary, capricious or without rational basis or foundation. In re Proctor, CSA 52-07, 8 (1/3/08). 

Operations administrator’s challenge to agency’s “needs improvement” rating failed where agency proved she was abrasive, failed her PEPR requirement to provide guidance, training, and sufficient materials for subordinates to perform their work, and passed subordinates from probation before they completed mandatory training. In re Proctor, CSA 52-07, 5 (1/3/08).

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13-60  Eligibility for merit increases and merit payments 

Though a plain reading § 13-10 F suggests that all employees hired prior to January 1, 2008 have a merit date corresponding with the PEPR evaluation end date they had as of December 31, 2007, the agency's implementation of Denver City Council Bill No. 44's limitation on awarding 2009 merit payments must be construed in relation to earlier versions of Rule 13's definition of "merit date" and to appellants' PEPR paperwork for past years.In re Vasquez and Lewis, CSA ## 08-09, 09-09, 3-4 (5/20/09). 


13-61 Merit date 

General provision 

The date an employee becomes eligible for a merit increase is construed in relation to § 13-10 F and earlier rule version.   In re Vasquez and Lewis, CSA ## 08-09, 09-09, 3, 5 (5/20/09).

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