Rule 16: Code of Conduct and Discipline

PURPOSE STATEMENT 

A post-hearing re-jiggering of evidence to meet specific violations cannot correct a pre-hearing deficiency of notice. In re Schofield(PDF, 343KB), CSA 08-17, 15 (10/9/17).

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), citing City Charter 1.2.1; D.R.M.C. 18-1, reversed on other grounds, In re Sample, CSB 72-07 (10/16/08).

Disciplinary rules for career service employees are governed by the principles of due process, personal accountability, reasonableness, and sound business practice. Therefore, discipline is proper if it would promote those principles. In re Burghardt, CSA 81-07, 5 (3/28/08), reversed In re Burghard(PDF, 223KB)t, CSB 81-07 (8/28/08).

16-10: Service of Written Notice and Computation of Time

IN GENERAL

Disciplinary notices must be in writing and must be served on the employee. In re Webster(PDF, 272KB), CSA 03-11, 1 (Order 1/14/11).

Disciplinary notices under Rule 16 must be served "in person with a certificate of hand delivery, or by first class U.S. mail, with a certificate of mailing to the employee's last known address." In re Kemp(PDF, 106KB), CSA 61-08, 2 (Order 9/17/08)[amended to include service by email].

16-21: Compliance with Code of Ethics and Executive Orders

Appellant violated DRMC 2-67 by using her public office to help her sister’s fraudulent application for public assistance. In re Abdi(PDF, 1MB), CSA 63-07, 29 (2/19/08).

Deputy sheriff who asked police for “professional courtesy” to avoid prosecution when arrested for failing to pay for a beer while off duty sought undue advantage in violation of ordinance. In re Mergl(PDF, 504KB), CSA 131-05, 6 (3/13/06) (decided under former 15-20).

16-22: Harassment, Discrimination and Retaliation

HARASSMENT - IN GENERAL

Rule is intended to prohibit harassing conduct taken at least partially on account of the victim’s gender. In re Novitch(PDF, 1MB), CSB 49-15, 3 (9/15/16).

Sexual harassment does not require proof that actor disliked the victim’s gender. In re Novitch(PDF, 1MB), CSB 49-15, 2 (9/15/16).

Interpretation of sexual harassment that requires finding of animus misinterprets this rule. In re Novitch(PDF, 1MB), CSB 49-15, 2 (9/15/16).

Rule 16-22 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,(PDF, 1MB) CSB 63-09, 4-5 (3/17/11).

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(PDF, 2MB), CSA 87-09, 6 (2/17/10).

A single incident is not hostile environment harassment unless it is outrageous conduct. In re Carter(PDF, 2MB), 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(PDF, 755KB), CSA 03-06, 10 (5/3/06).

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(PDF, 2MB), 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(PDF, 2MB), 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(PDF, 2MB), CSA 179-04, 6 (6/29/05).

Claims that discipline constituted harassment and retaliation are rendered moot by decision reversing discipline. In re Martinez(PDF, 3MB), 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(PDF, 5MB), CSA 109-04 & 119-04, 7 (1/5/05).

HARASSMENT - FOUND

Sexual harassment was proven where female manager chose to trick a male subordinate into kissing her on the lips because she considered him like a little brother. In re Novitch(PDF, 1MB), CSB 49-15, 3 (9/15/16).

Kiss was unwanted touching under this rule where female manager tricked male subordinate into kissing her by moving her head towards him after asking him for a kiss on the cheek. In re Novitch(PDF, 1MB), CSB 49-15, 3 (9/15/16). 

Harassing conduct in which a person’s gender played a part is sufficient to prove sexual harassment under this rule. In re Novitch(PDF, 1MB), CSB 49-15, 2 (9/15/16).

A manager’s coercing of a subordinate to kiss her on the mouth in the workplace is so clearly inappropriate that, absent an intimate relationship or invitation by the subordinate, a res ipsa loquitor finding of misconduct is not unreasonable. In re Novitch(PDF, 1MB), CSB 49-15, n.9 (9/15/16).

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(PDF, 2MB), 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(PDF, 755KB), 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(PDF, 268KB), CSA 135-05, 4 (Order 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(PDF, 268KB), CSA 135-05, 4 (Order 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(PDF, 507KB), 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(PDF, 507KB), 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(PDF, 3MB), 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(PDF, 3MB), CSA 11-05, 7 (6/10/05); citing In re Marin, CSA 64-02 (5/19/02).

16-22 B:  TYPES OF HARASSMENT 

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(PDF, 2MB), CSA 87-09, 6 (2/17/10), citing In re Norman-Curry, CSA 28-07 & 50-08, 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(PDF, 344KB), CSA 70-08, 5 (3/2/09).

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(PDF, 223KB), 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), reversed In re Burghardt(PDF, 223KB), CSB 81-07 (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), reversed In re Burghardt,(PDF, 223KB) CSB 81-07 (8/28/08).

DISCRIMINATION - 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(PDF, 755KB), 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(PDF, 268KB), CSA 135-05, 3 (Order 3/10/06), citing In re Jackson, (PDF, 3MB)CSA 103-04, 5 (6/13/05); O’Connor v Consolidated Coin Caterers Corp., 517 U.S. 308 (1996).

Discrimination made unlawful by federal, state or local law or regulation is likewise prohibited by the City and County of Denver. In re Johnson(PDF, 268KB), CSA 135-05, 3 (Order 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(PDF, 268KB), CSA 135-05, 3-4 (Order 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(PDF, 421KB), 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(PDF, 421KB), 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(PDF, 421KB), 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(PDF, 2MB), CSA 179-04, 5 (6/29/05), citing McDonnell Douglas v. Green, 411 U.S. 792 (1973).

AGE

To establish a prima facie case of age discrimination, appellant must show membership in a protected age group, more than forty years old, an adverse employment action, and that similarly situated employee was treated differently. In re Hernandez(PDF, 755KB), 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(PDF, 755KB), 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(PDF, 9MB), CSA 139-04, 10 (3/31/05), citing O'Connor v. Consolidated Coin Caterers Group, 517 U.S. 368 (1996).

DISABILITY 

Assignment to a different supervisor is not a reasonable accommodation under the ADA. In re Felix(PDF, 87KB), CSA 82-07 (Order 2/14/08).

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(PDF, 477KB), 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(PDF, 29KB), CSA 107-04, 4 (Order 4/29/05), citing 42 USC 12102 (2)(A); 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(PDF, 29KB), CSA 107-04, 4 (Order 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(PDF, 29KB), CSA 107-04, 4 (Order 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(PDF, 29KB), CSA 107-04, 4 (Order 4/29/05), citing 29 CFR pt. 1630 app. § 1630.2(i).

Performing manual tasks is a major life activity. In re Solano(PDF, 29KB), CSA 107-04, 4 (Order 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(PDF, 29KB), CSA 107-04, 5 (Order 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(PDF, 29KB), CSA 107-04, 5 (Order 4/29/05), citing Toyota Motor Mfg. v. Williams, 534 US 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(PDF, 29KB), CSA 107-04, 5 (Order 4/29/05), citing Toyota Motor Mfg. v. Williams, 534 US 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(PDF, 29KB), CSA 107-04, 5 (Order 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(PDF, 29KB), CSA 107-04, 5 (Order 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(PDF, 29KB), CSA 107-04, 5 (Order 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(PDF, 29KB), CSA 107-04, 5 (Order 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(PDF, 29KB), CSA 107-04, 5 (Order 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); 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(PDF, 29KB), CSA 107-04, 6 (Order 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(PDF, 29KB), CSA 107-04, 6 (Order 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(PDF, 29KB), CSA 107-04, 6 (Order 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(PDF, 29KB), CSA 107-04, 6 (Order 4/29/05), citing 42 USC § 12102(2)(C); 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(PDF, 29KB), CSA 107-04, 6 (Order 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(PDF, 29KB), CSA 107-04, 6 (Order 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(PDF, 29KB), CSA 107-04, 7 (Order 4/29/05). 

An employer’s knowledge and accommodation of work restrictions is insufficient evidence that an employee was regarded as disabled. In re Solano(PDF, 29KB), CSA 107-04, 7 (Order 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(PDF, 29KB), CSA 107-04, 7 (Order 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(PDF, 29KB), CSA 107-04, 7 (Order 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(PDF, 9MB), CSA 139-04, 10-11 (3/31/05), citing 29 CFR 1614.203 (a)(1); Poindexter v. Atchison, Topeka & Santa Fe Railway Co., 168 F.3d 1228 (10th Cir. 1999); Toyota Motor Mfg. v. Williams, 534 US 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(PDF, 9MB), 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(PDF, 9MB), 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(PDF, 9MB), 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(PDF, 9MB), 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(PDF, 9MB), 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(PDF, 9MB), CSA 139-04, 11 (3/31/05).

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(PDF, 5MB), 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(PDF, 5MB), 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(PDF, 283KB), CSA 16-06, 3 (6/6/06), citing EEOC v Horizon Healthcare Corp., 220 F. 3d 1184 (10th Cir. 2000).

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(PDF, 507KB), 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(PDF, 3MB), 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(PDF, 3MB), 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(PDF, 3MB), 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(PDF, 3MB), 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(PDF, 9MB), CSA 139-04, 10 (3/31/05).

ADVERSE ACTION

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(PDF, 268KB), CSA 135-05, 4 (Order 3/10/06).

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(PDF, 3MB), 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(PDF, 3MB), 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(PDF, 3MB), CSA 103-04, 6 (6/13/05).

DISPARATE TREATMENT 

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(PDF, 421KB), 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(PDF, 3MB), CSA 175-04, 7 (7/12/05).

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(PDF, 3MB), 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 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(PDF, 9MB), 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(PDF, 9MB), CSA 139-04, (3/31/05), citing McDonnell Douglas v. Green, 411 US 792 (1973); Furnco Construction Corp. v. Waters, 438 US 567 (1978); Smith v. City of Jackson, 2005 U.S. LEXIS 2931.

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(PDF, 3MB), CSA 103-04, 6 (6/13/05), citing International Brotherhood of Teamsters v. U.S., 431 US 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(PDF, 3MB), CSA 103-04, 6-7 (6/13/05), citing Ward v. Proctor & Gamble Products Co., 111 F.3d 558, 560 (8th Cir. 1997).

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(PDF, 3MB), CSA 103-04, 6 (6/13/05).

DISPARATE IMPACT- 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(PDF, 755KB), 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(PDF, 755KB), 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(PDF, 755KB), 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(PDF, 755KB), CSA 03-06, 9 (5/3/06).

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(PDF, 268KB), CSA 135-05, 5 (Order 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).

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(PDF, 2MB), 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(PDF, 3MB), 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(PDF, 3MB), 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(PDF, 9MB), 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(PDF, 7MB), CSA 77-03, 134-03 & 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(PDF, 5MB), CSA 109-04 & 119-04, 8-9 (1/5/05).


16-22 D: Retaliation Prohibited (Former 16-23)

IN GENERAL

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).

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 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); Hawkins v. PepsiCo, Inc., 203 F.3d 274, 278 (4th Cir. 2000).

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(PDF, 755KB), 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(PDF, 268KB), CSA 135-05, 4 (Order 3/10/06), citing Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000).

Appellant bears the burden of persuasion throughout the entire process to prove retaliation. In re Garcia(PDF, 3MB), CSA 175-04, 5 (7/12/05).  

This Rule 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 (7/7/05). 

ADVERSE ACTION 

Agency could find appellant dishonest for claiming to be unaware of its policy requiring personal identification card to access its secure sites even though agency did not enforce that policy. In re Hinojosa(PDF, 166KB), CSA 33-18, 7 (11/29/18).

Appellant dishonestly obtained reimbursement claimed mileage for trip she could not have made in the time available to her. In re Hinojosa(PDF, 166KB), CSA 33-18, 7 (11/29/18).

Appellant was dishonest in denying to her supervisor that she missed any mandatory meetings where she purposefully conflated a meeting that she did not have to attend with a mandatory meeting. In re Hinojosa,(PDF, 166KB) CSA 33-18, 8 (11/29/18).

Appellant dishonestly reported her work hours where she claimed more hours than she could have worked in the time available to her. In re Hinojosa(PDF, 166KB), CSA 33-18, 8 (11/29/18).

Dishonesty established by appellant’s less-than-forthcoming conversation with the city attorney in which he inferred he sought legal advice about a third person, but actually sought legal advice about his own situation. In re Mancuso(PDF, 190KB), CSB 76-17, n.1 (9/6/18).

Dishonesty established albeit appellant did not hide his name in his call to an assistant city attorney, where he hid the purpose of his call, did not identify himself as a city employee until pressed repeatedly, and did not disclose he was calling to seek legal advice about his personal situation until pressed. In re Mancuso(PDF, 190KB), CSB 76-17, 5 (9/6/18).

Dishonesty-by-omission established where appellant failed to disclose critical information any reasonable person would know to disclose, and did so intentionally and knowingly for the purpose of attempting to obtain information he was not otherwise entitled to receive. In re Mancuso(PDF, 190KB), CSB 76-17, 6 (9/6/18).

A pre-disciplinary letter is not an adverse action, a necessary element of a retaliation claim. In re Thomas(PDF, 160KB), CSA 13-10 (Order 3/15/10).

Retaliation claim must be supported by evidence of an adverse action, i.e., an action likely to deter employees from engaging in protected activity. In re Johnson(PDF, 268KB), CSA 135-05, 4 (Order 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(PDF, 268KB), CSA 135-05, 4 (Order 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(PDF, 268KB), CSA 135-05, 4 (Order 3/10/06), citing Couture v. Belle Bonfils Mem. Blood Center, 151 Fed.Appx. 685, 690 (10th Cir. 2005).

ADVERSE ACTION - NOT FOUND

Appellant not dishonest where agency asked her where she parked in its garage, and appellant identified her parking privileges in the garage lower level, even though she had not parked there recently. In re Hinojosa(PDF, 166KB), CSA 33-18, 6-7 (11/29/18). 

Four-year separation between appellant’s action and agency’s discipline was too remote to establish or infer causation. In re Redacted(PDF, 561KB), CSA 190-03, 9 (2/13/06).

Claim of retaliation, made only in opening statement and not followed by any evidence, must be dismissed. In re Mestas(PDF, 514KB), CSA 37-05, 8 (8/4/05).

Appellant failed to prove 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(PDF, 3MB), CSA 175-04, 6 (7/12/05).

Appellant failed to prove retaliation claim for complaining about other employees’ work, since she failed to establish that she reported any unlawful activity for which whistleblower protection might apply. In re Garcia(PDF, 3MB), CSA 175-04, 6 (7/12/05). 

Appellant failed to prove retaliation claim based on the Agency denial of her application for bi-lingual pay differential, since she failed to show that that her application is a protected activity. In re Garcia(PDF, 3MB), CSA 175-04, 6 (7/12/05).

Appellant failed to prove retaliation claim based on the Agency’s denial of her request for promotion to an unspecified position, as appellant failed to establish a protected activity or causation. In re Garcia(PDF, 3MB), CSA 175-04, 6 (7/12/05).

Appellant failed to prove retaliation claim where the discipline was confirmed by the co-managers who had previously protected appellant from suspected retaliation, discipline occurred eighteen 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 against whom appellant claimed retaliation did not instigate the discipline, and the misconduct bore no relation to the protected activity. In re Smith, CSA 17-05, 8 (7/7/05).

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(PDF, 3MB), CSA 103-04, 8 (6/13/05).  

Appellant failed to prove retaliation claim 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(PDF, 3MB), CSA 103-04, 7 (6/13/05).

An eighteen-month gap between EEO activity and an adverse action does not support an inference of a causal connection between the protected activity and the discipline, absent evidence explaining the gap or that otherwise supports a finding of causation. In re Owens(PDF, 9MB), CSA 139-04, 12 (3/31/05), citing Richmond v. Oklahoma University Board of Regents, 1998 U.S. App. LEXIS 26600; 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(PDF, 557KB), CSA 40-04 & 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 between the protected employee action and the adverse agency action. In re Freeman(PDF, 557KB), CSA 40-05 & 75-04, 8 (3/3/05), citing Poe v. Shari’s Mgmt. Corp., 188 F. 3d 519 (10th Cir.1999).


16:25: Political Activities

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

Unsuccessful applicant for promotion failed to prove political affiliation discrimination claim as he failed to show the agency knew of successful applicant’s political support of mayor, and therefore failed to establish nexus between his layoff and his political affiliation. In re Hurdelbrink(PDF, 5MB), CSA 109-04 & 119-04, 7 (1/5/05).

16-28: Grounds for Discipline

Where an agency’s proffered evidence fails to prove its disciplinary claims, the hearing officer may not substitute another rule violation that better fits the evidence. In re Mestas, Salazar, Fuentes and Sierra, CSA 64-07, 61-07, 62-07 and 67-07 pp. 37 (5/30/08).

16-28 A: Neglect of Duty or Carelessness in Performance of Duties and Responsibilities (Former 16-60 A & 16-60 B)

IN GENERAL

To sustain a violation under CSR 16-60 A [now 16-28 A], the agency must establish that appellant failed to perform a known duty. In re Rocha(PDF, 76KB), CSA 19-16, 3 (9/14/16), citing In re Gomez, CSA 02-12 (5/14/12); In re Abbey, CSA 99-09, 6 (8/9/10).

To sustain a violation under CSR 16-28 A, the Agency must establish that Appellant failed to perform a known duty or performed it in a substandard fashion. In re Maestas(PDF, 82KB), CSA 18-19, 4 (6/17/19), citing In re Gomez, CSA 02-12 (5/14/12).

The correct standard to establish neglect of duty is that an employee failed to perform a job duty she knew she was supposed to perform. In re Hull(PDF, 148KB), CSA 78-18, 6 (4/12/19), citing In re Serna, CSB 39-12, 4 (2/21/14).

To sustain a violation under CSR 16-29 A, the Agency must establish that Appellant failed to perform a known duty. In re Nguyen(PDF, 106KB), CSA 19-17, 2 (7/25/17), citing In re Gomez, CSA 02-12 (5/14/12).

Appellant’s primary duties, relevant herein, are “to provide safety and security for the care and custody of inmates by operating safe, secure, efficient, and humane facilities.” In re Nguyen(PDF, 106KB), CSA 19-17, 1 (7/25/17).

To sustain a violation under this rule, the agency must establish that the appellant failed to perform a known duty. In re Burdett,(PDF, 220KB) CSA 28-17, 3 (2/13/18).

To prove a violation of this rule, the agency is obligated to prove it provided notice of a specific duty outside those defined under other rule violations. In re Schofield(PDF, 343KB), CSA 08-17, 4 (10/9/17).

Both parts of this rule require notice of a duty and either the failure to perform it (neglect), or a substandard performance of that duty (carelessness). In re Gustin(PDF, 208KB), CSA 02-17, 2 (8/8/17), citing  In re Abbey, CSA 99-09, 6 (8/9/10); In re Simpleman(PDF, 636KB), CSA 31-06, 4-5 (10/20/06).

To sustain a violation under this rule, the agency must establish appellant performed a known duty deficiently or not at all. In re Marez(PDF, 71KB), CSA 58-16, 6 (1/26/17), citing In re Leslie,(PDF, 8MB) CSA 10-11 (12/5/11).

This rule may not be used to mirror other rule violations, since such practice would permit a neglect of the duty to violate every other rule, order, or policy. In re Marez(PDF, 71KB), CSA 58-16, n.5 (1/26/17).

Even though a violation under this rule might be cobbled together from available evidence, it is not up to the hearing officer to do so. In re Johnson(PDF, 234KB), CSA 11-16, 3 (5/26/16), citing In re Gutierrez(PDF, 1MB), CSA 65-11, 6 (8/28/12).

Neglect may not be established simply by proving another rule violation, a practice that would automatically double every CSR violation. In re Rolando, CSA 40-15, 3 (1/26/16), citing  In re Robinson(PDF, 3MB), CSA 03-13, 4 (6/18/13); In re Mitchell(PDF, 828KB), CSB 57-13, 3 (11/7/14); In re Mack(PDF, 946KB), CSA 43-12, 8 (3/18/13).  

If this rule were interpreted broadly to prohibit any neglect of duty as a failure to comply with an order, the rules would merge impermissibly into one. In re Macieyovski(PDF, 2MB), CSA 28-14, 7 (10/13/14).

An agency need not establish that appellant “utterly failed to perform her duty” in order to prove neglect of duty under this rule. In re Serna(PDF, 866KB), CSB 39-12, 3 (2/21/14), citing In re Compos, Herrera, Sandler & Sena(PDF, 126KB), CSB 56-08, 57-08, 58-08 & 59-08 (6/18/09).

The correct standard to establish neglect of duty is that an employee failed to perform a job duty she knew she was supposed to perform. In re Serna(PDF, 96KB),CSB 39-12, 4 (2/21/14); citing In re Compos, Herrera, Sandler & Sena(PDF, 126KB), CSB 56-08, 57-08, 58-08 & 59-08 (6/18/09).

A supervisor's overall responsibility to run a program is not a duty within the meaning of this rule, since otherwise a legitimate exercise of business judgment could lead to discipline. In re Mack(PDF, 946KB), CSA 43-12, 8 (3/18/13).

In order to establish a violation under the neglect of duty portion of this rule, the Agency must prove (1) a reasonable duty was communicated to the employee and (2) the employee failed to perform that duty. In re Gutierrez(PDF, 1MB), CSA 65-11, 5 (8/28/12), citing In re Mounjim(PDF, 1MB), CSA 87-07, 4 (7/10/08).

To sustain a violation of Neglect of Duty under CSR 16-29 A., the Agency must establish appellant failed to perform a job duty known to him. In re Romero(PDF, 242KB), CSA 01-12, 7 (4/17/12), citing In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-08, 7 (12/15/08), affirmed  In re Compos, Herrera, Sandler & Sena(PDF, 126KB), CSB 56-08, 57-08, 58-08 & 59-08 (6/18/09). 

The duty at issue must have been communicated in such manner as would make a reasonably astute employee aware of its requirements. In re Leslie(PDF, 8MB), CSA 10-11, 8 (12/5/11), citing In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 16 (5/30/08).  

Obedience to a direct, legitimate order always trumps a more general duty. In re Leslie(PDF, 8MB), CSA 10-11, 9 (12/5/11). 

A person exercises reasonable care when he acts with that degree of care which a reasonable person would use under similar circumstances. In re Gonzales(PDF, 469KB), CSA 42-10, 6 (12/30/10), citing In re Feltes(PDF, 483KB), CSA 50-06, 6 (11/24/06).   

“General practice” of an agency is insufficient proof of a duty under this rule without proof appellant was on notice that failure to follow such general practice could result in discipline. In re Cotton, CSA 104-09, 7 (10/18/10).

Carelessness and neglect of duty rules share elements of proof, but carelessness reviews an employee's acts (performance), while neglect of duty reviews his omissions. In re O’Meallie, CSA 92-09, 4 (6/18/10), citing In re Simpleman(PDF, 636KB), CSA 31-06, 4-5 (10/20/06).

Substandard work performance resulting in a performance review downgrade under CSR 13 may also subject an employee to the panoply of penalties under CSR 16-28. In re Cady(PDF, 2MB), CSA 03-10, 4 (4/22/10).

The duty to show up for, and complete, daily work is fundamental to any position. In re Lottie(PDF, 275KB), CSA 132-08, 3 (3/9/09).

Intentional wrongdoing falls outside the scope of this rule. In re Mounjim,(PDF, 1MB) CSA 87-07, 6 (7/10/08).

Agency bears the burden to prove that it made the employee aware of a performance standard it claims is well-known or self-evident. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 16 (5/30/08), citing In re Routa(PDF, 2MB), CSA 123-04 (1/27/05).

“Well-known” or “self-evident” standards represent dangerously subjective measures of performance, and, when challenged, are difficult to prove. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 16 (5/30/08), citing In re Encinias(PDF, 309KB), CSB 02-07, 2 (10/18/07).

Violation under Section 16-28 A does not require the element of deliberation or consciousness. In re Simpleman,(PDF, 636KB) CSA 31-06, 5 (10/20/06), see also In re Martinez,(PDF, 541KB) CSA 30-06, 4 (10/3/06).

Neglect of duty implies a failure to perform a duty, while carelessness in the performance of duties implies a slipshod practice of duty. In re Simpleman,(PDF, 636KB) CSA 31-06, 4-5 (10/20/06), see also In re Martinez, (PDF, 541KB)CSA 30-06, 4 (10/3/06).

FOUND

Hearing Officer erred by dismissing a charge that a deputy violated CSR 16-60A (Neglect) [now 16-28A] because the alleged misconduct would be addressed under CSR 16-60 L (Violation of agency regulation) [now 16-28 R]. In re Hernandez and Garegnani(PDF, 2MB), CSB 25 & 26-17A, 5 (1/17/19).

Hearing Officer erred in refusing to consider the charge that deputy violated CSR 16-60A (Neglect) [now 16-28A] because the alleged misconduct would also be addressed under CSR 16-60L (Violation of agency regulation) [now 16-28R]. In re Johnson(PDF, 2MB), CSB 24-17A, 5 (1/17/19).

The CSRs and the concepts of fundamental fairness do not prohibit one act of misconduct from violating several CSRs. In re Johnson(PDF, 2MB), CSB 24-17A, 5-6 (1/17/19).

Pursuant to CSR 16-60A [now 16-28A], a ranking officer at the scene of a crisis situation cannot improperly usurp the authority of his subordinates by acting in a manner consistent with his higher rank. In re Johnson(PDF, 2MB), CSB 24-17A, fn.2 (1/17/19).

Pursuant to CSR 16-60A, [now 16-28 A], a ranking officer at the scene of a crisis situation must exercise authority and control, lead or direct, or make decisions, but cannot simply sit back and watch. In re Johnson(PDF, 2MB), CSB 24-17A, fn.2 (1/17/19).

Appellant violated CSR 16-28 A. by missing three work days, failing to notify her supervisor in advance of her absences, and failing to issue a timely work schedule, which inconvenienced the Agency staff and customers. In re Maestas(PDF, 82KB), CSA 18-19, 4 (6/17/19).

Appellant neglected his duty through his failure to: (1) provide necessary leadership at the service counter, especially during a fire alarm, (2) perform his required Office inventory, (3) enforce the policy eliminating scheduled breaks, and (4) become expert on Agency software and train his team on it. In re Hull(PDF, 148KB), CSA 78-18, 7-9 (4/12/19).

Agency proved Appellant neglected his duty to provide for the safety and security of inmates by exceeding the least amount of force necessary when he used a Taser on a locked inmate who had prevented him from securing the door flap to the inmate’s cell. In re Nguyen(PDF, 106KB), CSA 19-17, 3 (7/25/17).

Appellant, Vehicle Impound employee, violated CSR 16-29A [now 16-28A] when he learned of bullets in an impounded auto but failed to secure or report them, or ensure they remained in the vehicle. In re Tamburino(PDF, 534KB), CSA 40-17, 7 (4/23/18).

Employee who failed to work required mandatory overtime neglected her duty in violation of this rule.  In re Colquitt(PDF, 3MB), CSA 34-15, 4 (10/30/15).

No error in finding violation of 16-29A where hearing officer found inmate more credible than deputy despite a claimed discrepancy in inmate’s testimony.  Hearing officer found witness credible and other witnesses contributed to that conclusion. In re Simons, CSB 71-16, 4 (1/18/18).

Violation established where courtroom deputy, while faced with competing demands, acknowledged she left the courtroom without coverage to use the restroom, and had to be reminded by the judge to take a defendant into custody. In re Leyba(PDF, 2MB), DDC 31-16, 5-6 (11/15/17).

Violation established by appellant’s admission she raised her middle finger at a person. In re Garcia(PDF, 112KB), CSA 35-17, 4 (10/4/17).

Violation found where supervisor had duty to treat customers with dignity and respect, but made racially-charged, offensive comment to customer, and none of his explanations justified the comment. In re Gustin(PDF, 208KB), CSA 02-17, 3 (8/8/17).

Agency proved armed deputy carelessly performed her duty to protect the inmate and public while guarding a hospitalized inmate by falling asleep. In re Andrews(PDF, 140KB), CSA 16-17, 3 (8/1/17).

Deputy’s three deceptive statements about facts material to the investigation proved that he neglected his duty as a law enforcement officer to be truthful in his statements to investigators. In re Turner(PDF, 276KB), CSA 01-17, 7 (6/26/17).

Deputy who choked and punched inmate being held by another officer while bent over a metal desk violated his duty to provide for the safety and security of prisoners. In re Turner(PDF, 276KB), CSA 01-17, 8-9 (6/26/17).

Violation found where appellant was aware of his duties to show respect for inmates, treat them fairly, use integrity, good judgment and show professionalism, but he referred to Black inmates as “monkeys,” called others “snitches,” and told an inmate shot by DPD officer that he would have killed him. In re Simons(PDF, 175KB), CSA 71-16, 3 (5/5/17).

Violation of second part of this rule established where Appellant admitted she failed to make all required rounds and failed to obtain required coverage when she left her post, in violation of her duty to provide for the care and safety of inmates in her charge. In re Barra(PDF, 38KB), CSA 1-16, 3 (3/10/17).

Supervisor was careless in duty to meet deadline where she submitted document three days late. In re Lee(PDF, 175KB), CSA 70-16, 4 (3/3/17).

Proof that courtroom deputy carried her weapon within reach of inmates does not require contemporaneous complaint by the judge to prove carelessness. In re Leyba,(PDF, 1MB) CSB 31-16, 5 (3/2/17).

Neglect of duty to safeguard courtroom by courtroom deputy was supported by evidence that deputy left a courtroom in session for five minutes without permission. In re Leyba(PDF, 1MB), CSB 31-16, 5 (3/2/17).

Cadet program leader neglected her duty to promote positive relationships within the group by a pattern of favoritism, profanity, gossiping, and inappropriate physical contact. In re Fresquez,(PDF, 57KB) CSA 63-16, 5 (2/24/17).

Legal secretary for DA’s office performed carlessly her duty to issue subpoena when she issued it to the wrong person. In re McKisson(PDF, 39KB), CSA 69-16, 3 (1/31/17). 

Neglect of duty to care for inmates supported by video evidence showed inmates patting down other inmates directly in front of deputy who barely looked up from his desk. Deputy was not required to know what every inmate was doing at all times. In re Steckman(PDF, 866KB), CSB 30-15, 2 (1/19/17).

Deputy neglected his duty to keep inmate safe when he shoved him in the back without a legitimate reason, leading to a long physical struggle and the involvement of many officers. In re Fuller(PDF, 3MB), CSA 46-16, 6 (10/11/16).

Courtroom deputy neglected her duty to provide court security by absenting herself without permission for five minutes during a sentencing hearing, and by failing to take custody of a defendant after judge issued jail sentence. In re Leyba(PDF, 142KB), CSA 31-16, 5 (8/29/16), affirmed In re Leyba,(PDF, 1MB) CSB 31-16 (3/2/17).

Violation established where appellant, through previous counselling and discipline, had ample notice of a duty he continued to perform deficiently. In re Johnson,(PDF, 234KB) CSA 11-16, 3-4 (5/26/16).

Violation established where appellant was previously under a Performance Improvement Plan to be accurate and prepared in his daily briefings, but he failed to determine cleanup of area he specified to subordinates had been done the previous day. In re Johnson(PDF, 234KB), CSA 11-16, 3 (5/26/16).

Violation established where appellant was previously under Performance Improvement Plan to adhere to inventory controls, including ink supplies at customer service booths under his supervision, but he subsequently failed to inventory ink needs of those booths. In re Johnson(PDF, 234KB), CSA 11-16, 4 (5/26/16).

Operations supervisor was careless in his duty to prepare site for demonstration where he failed to see a manhole he inspected was blocked and unusable. In re Lucero(PDF, 173KB), 58-15 (4/11/16).  

Carelessness is proven by work performance conducted in an unsatisfactory manner. In re Macieyovski(PDF, 2MB), CSA 28-14, 5 (10/13/14); In re Vega(PDF, 1MB), CSA 12-14, 3 (7/3/14); In re Gomez(PDF, 4MB), CSA 02-12, 3 (5/14/12).    

Carelessness established by appellant’s acknowledgment that he did not complete assigned work. In re Macieyovski(PDF, 2MB), CSA 28-14, 5 (10/13/14).

Appellant’s intentional failure to change filters according to known schedule was neglect of that duty, regardless of his claim they were not sufficiently dirty, or that a computer tower blocked his access. In re Macieyovski(PDF, 2MB), CSA 28-14, 5 (10/13/14).

Dispatcher handled call in careless manner where she failed to consider whether a theft from the Mayor's office was a security breach, failed to dispatch officers, and missed the thirty-minute callback deadline. In re Rhodes(PDF, 2MB), CSA 23-14, 5 (7/25/14).

Dispatcher carelessly handled call about two armed males at a restaurant when she failed to air call code, aired the call improperly to all units, and failed to add a responding unit to the call, endangering officers on the scene, in violation of established protocol. In re Rhodes(PDF, 2MB), CSA 23-14, 5 (7/25/14).

Dispatcher was careless in failing to check her equipment for three minutes, leaving the police channel unmonitored for three minutes and caused several missed calls, after she leaned against the console with headphones, an action she admitted pulled the jack out of the console 75% of the time in the past. In re Rhodes(PDF, 2MB), CSA 23-14, 5-6 (7/25/14).

Parking magistrate neglected his duty to handle customers in front of him when he left the bench early, requiring customer to be escorted back to the waiting area. In re Vega(PDF, 1MB), CSA 12-14, 3 (7/3/14).

Neglect of duty to add case comments was proven when appellant-case worker failed to add her comments for two days, despite her supervisor's reminders and coaching about that duty and her own admission that it continued to slip her mind even after the reminders. In re Black(PDF, 2MB), CSA 03-14, 4 (6/9/14).

Case management coordinator neglected duty to perform required eligibility interview of new client when she spent less than one minute with client because she was disturbed by client’s disabled appearance, and failed to prove her claim that the client tried to harm her. In re Perry-Wilborne(PDF, 2MB), CSA 62-13, 6 (5/22/14).

Human services intake worker was careless in her duty to serve disabled clients when she spent less than one minute with a client because she was disturbed by the client's disabled appearance. In re Perry-Wilborne(PDF, 2MB), CSA 62-13 (5/22/14).

Carelessness of duty to ensure proper prisoner release was proven when deputy released inmate he assumed was eligible because he was in civilian clothes, instead of following protocol to check his record. In re Mitchell(PDF, 2MB), CSA 57-13, 5 (5/7/14).

Deputy neglected duty to release inmate only to proper authority where his distraction permitted an inmate to walk out of jail. In re Mitchell(PDF, 2MB), CSA 57-13, 4-5 (5/7/14).

Court administrator neglected customer service duty when he delayed a response to a request for reasonable accommodation because a defendant did not file a formal motion, but the administrator acknowledged thousands of requests are forwarded to the courts for disposition without formal motions, the agency emphasizes the need for excellent customer care, and the administrator enforces those standards. In re Trujillo(PDF, 1MB), CSA 53-13, 3-4 (4/14/14).

Administrator neglected customer service duty when he delayed a response to a request for reasonable accommodation because he believed it would be giving legal advice and he failed to forward the request to a judicial officer for four months and after three reminders. In re Trujillo(PDF, 1MB), CSA 53-13, 4-5 (4/14/14).

Appellant neglected his duty to wear his current uniform by wearing non-uniform shorts to a company picnic while on duty. In re Macieyovski(PDF, 2MB), CSA 55-13, 4 (4/1/14).

Appellant's failure to complete research on thirty-two of forty-five tasks and to assign tasks for overtime by the deadline constituted carelessness in the performance of her duties. In re Serna(PDF, 96KB), CSA 39-12, 7 (5/23/13).

Appellant neglected duty to set example of professional behavior when he engaged in sexual banter and tolerated it in subordinates where he admitted the conduct; admitted it was unbecoming of his duties; admitted he was aware of need to prevent such behavior in subordinates; and his supervisor repeatedly advised him to cease his crude banter and act more professionally. In re Gutierrez, CSB 65-11, 3 (4/4/13).

Hearing officer did not misinterpret this rule by finding supervisor neglected her duty to issue timely PEPRs and providing feedback to employees after being put on notice that she was expected to issue timely and meaningful PEPRs, and finding was conclusively demonstrated by the record. In re Redacted, CSB 56-11, 2 (12/20/12).

Sheriff Dept. Captain neglected his duty to set a professional example for his subordinates when he engaged in sexual banter with a co-worker and failed to correct such behavior in his subordinates after being repeatedly counseled by a supervisor to become more professional and prevent sexual comments in the workplace. In re Gutierrez(PDF, 1MB), CSA 65-11, 5 (8/28/12).

Appellant drove his plow truck carelessly when he struck parked car with sufficient force to cause the car to jump a curb, cross a lawn, and slide into a house, severely damaging both. In re Gomez(PDF, 4MB), CSA 02-12, 4 (5/14/12). 

Appellant drove his plow truck carelessly where he claimed his accident was unavoidable, but at his pre-disciplinary meeting, his representative admitted the accident was avoidable. In re Gomez(PDF, 4MB), CSA 02-12, 4 (5/14/12). 

Appellant drove his plow carelessly where his explanation was not credible and his actions were proximate cause of damage to another vehicle and house. In re Gomez(PDF, 4MB), CSA 02-12, 4 (5/14/12).

Appellant neglected duty to plow assigned route where GPS data showed his truck did not move for period when he claimed to have plowed, and his supervisor went to location and saw no evidence of plowing. In re Gomez(PDF, 4MB), CSA 02-12, 4 (5/14/12). 

Deputy neglected his general duty to work for pay when he fraternized with an inmate for thirty to forty-five minutes on one occasion and socialized with her on several other occasions. In re Romero(PDF, 242KB), CSA 01-12, 7 (4/17/12).

Dispatcher was careless of duty to follow protocol where she conceded she failed to follow written standard operating procedure, resulting in her miscoding the type of emergency and failing to dispatch required responders. In re Leslie(PDF, 8MB), CSA 10-11, 8 (12/5/11).

Appellant neglected his duty to maintain professional standards of conduct during a phone conversation with his supervisor, where he was previously advised of the expectations for professional standards of conduct in PEPRs and during biweekly coaching sessions with his supervisor, but he reacted with rage, and was defensive and loud, in refusing his supervisor’s order to apologize to his co-worker for his conduct in a prior interaction. In re Weiss(PDF, 3MB), CSA 68-10, 7 (2/14/11).    

Animal control officer was careless in enforcing animal control laws in accordance with Division policies, where he forcefully pushed a door against a dog owner for several seconds in an unauthorized attempt to prevent him from leaving. In re Gonzales(PDF, 469KB), CSA 42-10, 7 (12/30/10).

Judicial assistant was careless in the performance of her duties where she conceded that she committed thirteen work errors in a four-month period and another four errors in the subsequent two-month period. Appellant successfully performed the same tasks without errors on numerous other occasions, was adequately trained, and had supervisory assistance available, but did not ask for assistance. In re Roberts, CSA 40-10 & 48-10, 10 (11/15/10). 

Violation by judicial assistant established where she failed duty to scan a pleading timely into the case processing system. Default judgment entered against defendant and error required additional work by staff to reverse the default. In re Roberts, CSA 40-10 & 48-10, 10 (11/15/10).   

Judicial assistant was careless in the performance of her duties where the Agency established she erred in not following clear court procedure by not forwarding a Writ of Restitution to the Clerk’s inbox for issuance, substantially delaying restoration of the party’s property. In re Roberts, CSA 40-10 & 48-10, 10 (11/15/10).   

Judicial assistant was careless in the performance of her duties when her two omissions on appeal bond forms resulted in inaccurate accounting and case records in two separate appeals. In re Roberts, CSA 40-10 & 48-10, 10 (11/15/10).   

Appellant case manager’s conceding she did not complete “basically all” her cases correctly, was careless performance of her duty to provide clients with the necessary and timely benefits to which they were entitled. In re Rodriguez(PDF, 6MB), CSA 12-10, 7 (10/22/10).

Neglect established where appellant case manager was trained to process cases timely, but failed to do so. In re Rodriguez(PDF, 6MB), CSA 12-10, 5 (10/22/10).

Appellant case manager was negligent for failing her duties to process timely thirteen rederminations of eligibility; seven applications for benefits; responses to numerous correspondences from clients; ten to fifteen termination certificates after clients fell out of compliance; voter registration forms in time for those clients to vote; requests for services; and a stack of mail within requisite ten-day deadline, all of which caused delays in processing and approving childcare assistance, and caused unlawful continued payment to ex-clients. In re Rodriguez(PDF, 6MB), CSA 12-10, 5 (10/22/10). 

Call-center agent was careless in the performance of her customer service duties where she handled an irate caller poorly by sitting silently for prolonged periods, responding sarcastically, and failing to transfer the caller to a supervisor despite her repeated requests. In re Jackson, CSA 39-10, 7 (10/7/10). 

Call-center agent was careless in the performance of her duty to be available for customer calls during her shift, where she was absent from her workstation and did not accurately report her breaks and absences to her supervisor. In re Jackson, CSA 39-10, 7 (10/7/10).   

Call-center agent neglected her duty to be present and ready to take telephone calls, when she was tardy three times, absent from her desk without authorization for thirty-nine minutes on one occasion, and an unknown amount of time on a second occasion, all within two months. In re Jackson, CSA 39-10, 6 (10/7/10). 

Call-center agent neglected her duty to follow established escalation process to refer an irate caller to a supervisor in light of caller’s repeated requests for a supervisor and abusive behavior toward the agent. In re Jackson, CSA 39-10, 6-7 (10/7/10).  

DIA plumber neglected his work duty to provide fire protection, prevent frozen pipes, and maintain an operational airport where he failed to comply with attendance rules, and failed to respond to mandatory, emergency snow duty. In re Duran, CSA 10-10, 8 (10/1/10).

DIA plumber was careless in the performance of his duty to file a complete and accurate disbursement report where he failed to do so and his supervisor had recently counseled him regarding the same. In re Duran, CSA 10-10, 8 (10/1/10).

Youth counselor neglected his duty to issue discipline for youth residents wrongdoings after he became aware of a fight, although he did not see it. In re Abbey(PDF, 3MB), CSA 99-09, 7 (8/9/10). 

Youth counselor neglected his duty to report to work at the start of his shift where he was placed on a PIP for attendance issues and the terms of punctuality were explained to him, rebutting his claim that he was confused. In re Abbey(PDF, 3MB), CSA 99-09, 7 (8/9/10).    

Youth counselor was careless in performing his duty to safeguard the well-being of youth in his care where he acknowledged he took them to see an unapproved violent movie. In re Abbey(PDF, 3MB), CSA 99-09, 8 (8/9/10).

Youth counselor violated this rule by failing to ensure safety of youth residents by keeping them in his line of sight, when he left the building to get food for twenty-five minutes, and allowed youths on a field trip to run out of sight unsupervised. In re Abbey(PDF, 3MB), CSA 99-09, 6 (8/9/10). 

Appellant neglected his duty to comply with established call-in procedure where his PIP for attendance issues gave a specific call-in procedure to follow, and his call to a staff member was outside of the procedure. In re Abbey(PDF, 3MB), CSA 99-09, 7 (8/9/10). 

Appellant neglected his duty to account accurately for his time where a time-stamped video and badge records showed he failed to punch out when he was absent for twenty-five minutes, and agency policy requires employees to punch out if absent for more than fifteen minutes. In re Abbey(PDF, 3MB), CSA 99-09, 7 (8/9/10). 

Appellant violated this rule where he failed to provide a doctor’s note for his absence, as required by his supervisor. In re Abbey(PDF, 3MB), CSA 99-09, 7 (8/9/10). 

The carlessness portion of this rule is violated by poor performance rather than failing to perform an important duty. In re Abbey(PDF, 3MB), CSA 99-09, 7-8 (8/9/10), citing In re Simpleman(PDF, 636KB), CSA 31-06, 4-5 (10/20/06). 

Neglect of duty was established where appellant was directed to remain in one of the designated work areas, but was found in a sleeping area with his shirt and equipment off. In re Norris(PDF, 2MB), CSA 68-09, 5 (7/12/10).

Neglect of duty was established by appellant’s frequent, unexplained absences during work hours, despite repeated attempts to counsel him and a direct order to remain in his work area. In re Norris(PDF, 2MB), CSA 68-09, 5 (7/12/10).

Violation established by Appellant's frequent absences where he claimed he could have been on a special assignment, but did not provide evidence of it, and his supervisor testified that he would have heard a special assignment over the radio. In re Norris(PDF, 2MB), CSA 68-09, 6 (7/12/10).

A violation of the carless portion of this rule occurs for performing poorly rather than neglecting to perform an important duty. In re O’Meallie, CSA 92-09, 4 (6/18/10).

Deputy was careless in performing her duty to transport aggressive inmate separately, failed duty to issue verbal commands or use control hold on aggressive inmates, and failed to file a complete incident report as required. In re Koehler(PDF, 5MB), CSA 113-09, 17 (4/29/10).

Carelessness is proven by absence of ordinary care in performing an assigned duty. In re Koehler(PDF, 5MB), CSA 113-09, 17 (4/29/10), citing In re Mitchell(PDF, 453KB), CSA 05-05, 7 (6/27/05).

Where appellant was aware of the procedures to process bonds correctly and avoid mistakes, each mistake in processing bonds established a separate violation of this rule. In re Cady,(PDF, 2MB) CSA 03-10, 4-5 (4/22/10). 

Neglect of duty to care for residents was established when youth crisis center worker failed to conduct half the required bed checks. In re Carrillo(PDF, 2MB), CSA 95-09, 3 (3/16/10).

Neglect of duty to supervise was proven where youth crisis center worker responsible for constant surveillance failed to see a male resident enter and close the door of a female resident’s room. In re Carrillo(PDF, 2MB), CSA 95-09, 3 (3/16/10).

Neglect was proven by employee’s admission that he drove a city vehicle on personal business during work hours four times, GPS tracking data confirmed another six occasions, and he provided unconvincing denials of two other occasions. In re Valdez(PDF, 2MB), CSA 90-09, 4 (3/1/10).   

Neglect of supervisory duties established by supervisor engaging in personal business during work hours instead of supervising his crew. In re Valdez(PDF, 2MB), CSA 90-09, 4 (3/1/10). 

Where appellants were aware of their duty to complete daily logs accurately and logs contained inaccurate or missing entries, appellants violated this rule. In re Compos, Herrera, Sandler & Sena(PDF, 126KB), CSB 56-08, 57-08, 58-08 & 59-08, 2 (6/18/09). 

Appellant was neglectful of his duty to be present at work when his unexcused failure to report to work after a training session placed an undue burden on his co-workers. In re Lottie(PDF, 275KB), CSA 132-08, 3 (3/9/09).

Where the agency established the appellant took an unexcused absence, the appellant was neglectful of his duty to be present at work. In re Lottie(PDF, 275KB), CSA 132-08, 4 (3/9/09). 

Since one of deputy sheriff's primary duties was the safe-keeping of inmates, her failure to secure potentially lethal objects was a careless performance of that duty. In re Norman-Curry, CSA 28-07 and 50-08, 3 (2/27/09).

Deputy sheriff's repeated slamming of inmate's face into a plexiglass window was careless performance of her duty to keep inmates safe. In re Norman-Curry, CSA 28-07 & 50-08, 22 (2/27/09).

Where appellant’s PEPR required her to maintain professional demeanor, and she had received a “needs improvement” rating, her actions in initiating and escalating a confrontation with her supervisors is neglect of that PEPR duty. In re Mounjim(PDF, 495KB), CSB 87-07, 7 (1/8/09). 

Appellant’s two unapproved absences from work, for forty-five minutes and two hours were neglect of work duties. In re Galindo(PDF, 780KB), CSA 39-08, 9 (9/5/08).

Appellant neglected duty to return found property, a wedding ring, to either its rightful owner, who was known to him, or to the agency custodian. In re Galindo,(PDF, 780KB) CSA 39-08, 9 (9/5/08).

Where preserving confidentiality of client information under state law was important work duty, appellant’s access and sharing of identity of child abuse informant with another employee constituted neglect of that duty. In re Catalina(PDF, 656KB), CSA 35-08, 7 (8/22/08).

Paralegal neglected her work duties by spending 1½ hours to have her badge enabled by security but evidence showed no security delays, and appellant testified at hearing that she tried to but did not get her badge enabled that day. In re Blan, CSA 40-08, 4 (7/31/08).

Payroll supervisor violated this rule where she acknowledged a duty to meet thirty-day deadline for processing separation documents, and her failure to do so delayed final pay to twenty-one separated employees. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 23 (5/30/08).

An employee violates this rule when he fails to exercise ordinary care in the performance of a job duty. In re Sandrowski,(PDF, 810KB)CSA 58-07, 10 (2/6/08), citing In re Richmond,(PDF, 589KB) CSA 18-07, 5 (8/7/07).

Facilities superintendent was careless in administering a service contract by failing to evaluate the work to be performed or make an attempt to reduce its cost, and where his claim that he was required to get work done regardless of cost was not supported by the evidence. In re Hill(PDF, 403KB), CSA 69-07, 5-6 (1/23/08).

Facilities superintendent, whose job it is to oversee service contracts, was careless when he agreed to pay a per-unit price for installation of plumbing parts without first ascertaining the scope of the work to be done, the hours needed to do it, the contractor’s normal hourly rate, or whether a per-unit price would save costs, when the reasonable cost of the work was $24,000 less than the price agreed to by appellant. In re Hill,(PDF, 403KB) CSA 69-07, 5 (1/23/08).

Appellant neglected her duty to manage a contract by requesting a reassignment based on a claimed conflict of interest instead of admitting she needed information to complete the task. In re Butler(PDF, 386KB), CSA 78-06, 5 (1/5/07).

Supervisor was careless in failing to supervise payroll clerk who did not deduct leave from her own pay and who used donated leave before the donation occurred. In re Feltes(PDF, 483KB), CSA 50-06, 6 (11/24/06).

Violation established where supervisor allowed subordinates to perform their duties in an obviously inaccurate manner over an extended period. In re Feltes(PDF, 483KB), CSA 50-06, 5 (11/24/06), citing Gubser v. Dept. of Employment, 271 Cal.App.2d 240, 242 (Cal. App. 1969).

Supervisor neglected her duty to supervise payroll clerk who failed to deduct leave from her own pay and who used donated leave before the donation occurred, despite supervisor’s notice of these improper leave and pay practices. In re Feltes(PDF, 483KB), CSA 50-06, 6 (11/24/06).

Where deputy sheriffs shared the duty to ensure jail door was locked, and one unlocked the door, their failure to lock the door for fifteen to twenty minutes while they played cards was neglect of duty. In re Simpleman(PDF, 636KB), CSA 31-06, 6-7 (10/20/06), affirmed In re Simpleman(PDF, 148KB), CSB 31-06 (8/2/07); In re Martinez(PDF, 541KB), CSA 30-06, 5-7 (10/3/06).

Deputy sheriff neglected his duty to monitor inmate activity when he was so absorbed in playing cards with fellow officer that he failed to observe approach of supervisor until supervisor was three feet away. In re Simpleman(PDF, 636KB), CSA 31-06, 5-6 (10/20/06), affirmed In re Simpleman(PDF, 148KB), CSB 31-06 (8/2/07); In re Martinez(PDF, 541KB), CSA 30-06, 5 (10/3/06).

Appellant was careless in her duty to maintain the security of the database when, a month after being informed of the withdrawal of a co-employee’s access to a database, she allowed the unauthorized co-employee to use her security code. In re Chavez(PDF, 381KB), CSA 29-06, 6 (8/17/06).

Administrative assistant who continued to make the same type of performance errors for three years was careless in the performance of her duties. In re Diaz(PDF, 432KB), CSA 13-06, 4 (5/31/06).

Operations supervisor neglected his duty to prepare equipment and work site for a product demonstration where he failed to bring the equipment requested by the contractor and failed to notice that the manhole to be used for drainage was plugged with cement. In re Lucero(PDF, 173KB), CSA 58-15, 4 (4/12/16).  

Appellant performed her clerical duties in a careless manner when her supervisor was frequently required to perform appellant's duties. In re Diaz(PDF, 647KB), CSA 92-05, 9 (1/31/06).

An employee acts with carelessness when she fails to take that degree of care an ordinarily careful person would exercise under the circumstances. In re Diaz(PDF, 647KB), CSA 92-05, 9 (1/31/06).

Carelessness is acting in the absence of that degree of care an ordinarily careful person would exercise under the circumstances. In re Hobley,(PDF, 536KB) CSA 61-05, 7 (12/19/05),citing Black’s Law Dictionary  146 (Abridged 6thed.1991); see also In re Lucero(PDF, 654KB), CSA 162-04 (4/15/05).

Appellant acted carelessly when he had two accidents with city vehicles within six weeks, and misplaced city equipment twice in one month, causing over $1,600 in damage, despite serious previous discipline for the same type of offense. In re Hobley(PDF, 536KB), CSA 61-05, 7-8 (12/19/05).

Tardy employee was careless where new supervisor emphasized promptness by distributing assignment calendars and imposed discipline for tardiness. In re Williams(PDF, 507KB), CSA 65-05, 6 (11/17/05).

Agency proved employee was careless in misfiling another employee’s confidential medical disclosure when filing confidential documents was a requirement of her job, and appellant was aware of that requirement. In re Diaz(PDF, 507KB), CSA 45-05, 8 (9/7/05).

The fact that the polar bear endangered by appellant's failure to secure the animals did not suffer injury did not disprove the carelessness charge. In re Owoeye(PDF, 3MB), CSA 11-05, 5 (6/10/05).

Where zookeeper's primary responsibility was animal safety and he was amply trained and experienced in that duty, his failure to secure a polar bear, resulting in imminent danger of harm to other polar bears or zoo keepers, was a violation of this rule. In re Owoeye(PDF, 3MB), CSA 11-05, 6 (6/10/05).

Zookeeper's argument that an added job responsibility distracted him from failing to secure a polar bear does not overcome agency's proof of negligence where evidence showed that other zookeepers performed the same duty under the same circumstances. In re Owoeye(PDF, 3MB), CSA 11-05, 4 (6/10/05) (decided under former 16-50 A. 1).

Evidence of a single failure to obtain supplies for a before-school recreation program class for which appellant was responsible establishes carelessness in the performance of job duties. In re Lucero(PDF, 654KB), CSA 162-04, 7-8 (4/15/05).

NOT FOUND 

No violation of CSR 16-29A (Neglect) [now 16-28A] will be found where the duties appellant allegedly violated pertain only to other, specified rules. In re Hammernik and Trujillo(PDF, 142KB), CSA 41-17 & 42-17, 3 (3/21/18), citing In re Gordon, CSA 10-14, 2 (11/28/14); In re Wright, CSA 40-14, 7 (11/17/14). Rule 16 Code of Conduct and Discipline. [but see In re Hernandez/Garegnani, CSB A025-17A, A026-17A (1/17/19)].

Agency did not prove Appellant violated CSR 16-29A (Neglect) [now 16-28A] through her alleged violations of the City’s STARS values of Teamwork and Respect for Self and Others, as these aspirational goals do not provide notice of an enforceable duty. In re Gerovic(PDF, 315KB), CSA 77-17, 3 (6/1/18).

Agency cannot prove Appellant violated CSR 16-29A (Neglect) [now 16-28A] through her alleged neglect of duty to be honest, which is specifically covered by CSR 16-29D (Dishonesty) [now 16-28D], as the CSRs do not contemplate such redundancy of violations. In re Gerovic(PDF, 315KB), CSA 77-17, 4 (6/1/18), citing In re Gordon, CSA 10-14, n.1 (11/28/14); In re Wright, CSA 40-14, 7 (11/17/14); In re Marez, CSA 58-16 n.5 (1/26/17).

No violation of CSR 16-29A (Neglect) [now 16-28A] will be found where the duty appellant allegedly violated is specific to another agency rule. In re Fergerson(PDF, 163KB), CSA 64-17, 3 (3/16/18).

No separate violation is found under this rule where the potential claims under this rule were also alleged under other, more specific duties. In re Burdett(PDF, 220KB), CSA 28-17, 3 (2/13/18).

Conclusory statements such as “[appellant] also neglected her general duty to adhere to all policies and procedures” fail to identify any duty not otherwise identified by another specific rule and fail to provide notice of what wrongdoing may have violated this rule. In re Koonce(PDF, 281KB), CSA 34-17, 4 (12/22/17).

Violation not established where alleged basis for violation was that appellant neglected duties which derive directly from other specified orders and rules. In re Koonce(PDF, 281KB), CSA 34-17, 4 (12/22/17).

Where duties stated under this rule replicate those under another rule, no doubling of violations may be established. In re Schofield(PDF, 343KB), CSA 08-17, 4 (10/9/17), citing In re Gale(PDF, 5MB), CSA 02-15, 5 (11/23/15); In re Mitchell(PDF, 828KB), CSB 57-13, 3 (11/7/14).

Appellant’s disparagement of her supervisor within the hearing of business partners did not prove careless performance of any duty appellant directly owed to the business partners. In re Martinez(PDF, 261KB), CSA 10-17, 7 (7/19/17). 

Violation not established even though agency’s guiding principles require inmates to be treated with dignity and respect, and deputies are charged with knowledge thereof, where notice of discipline failed to state, with any specificity, how the agency believed the employee did not do her job or performed it carelessly. In re Rocha(PDF, 2MB), CSB 19-16, 6 (7/6/17).

No violation established where notice of discipline only broadly referred to having “tremendous responsibility, especially as it pertains to the authority to use force,” and more specific use of force duties were cited elsewhere. In re Garegnani & Jones(PDF, 89KB), CSA 29-16 & 30-16, 3 (3/6/17).

Employee did not neglect a known duty where certification was not required in her PEP or by her prior supervisor, and employee promptly renewed her certification once informed it must be kept active. In re Lee(PDF, 175KB), CSA 26-16, 3 (3/3/17).

Supervisor did not neglect her duty to manage an employee’s performance issues where supervisor spent significant time trying to improve performance, and both OHR and supervisor’s directors approved an open-ended PIP in an effort to stabilize employee’s performance. In re Lee(PDF, 175KB), CSA 26-16, 3 (3/3/17).

No violation established where agency’s only evidence was a supervisor’s conclusory statement that appellant neglected his duty to reach a certain level of productivity, which duplicated claim under another, more specific rule. In re Marez(PDF, 71KB), CSA 58-16, 6 (1/26/17).

Minute-long obstruction of a courtroom deputy’s line of sight while deputy was performing other duties does not prove neglect of duty to maintain order. In re Leyba(PDF, 142KB), CSA 31-16, 5 (8/29/16).

No violation established where it was not apparent what duty appellant failed to perform. In re Johnson(PDF, 234KB), CSA 11-16, 3 (5/26/16).

The "failure to use sound judgment" does not automatically establish neglect of duty under this rule. In re Rolando, CSA 40-15, 3 (1/26/16).  

Neglect of duty may not be established by finding the failure of the duty under other CSRs.  Such practice would result in impermissible stacking of charges. In re Rolando, CSA 40-15, 3 (1/26/16), citing In re Mitchell(PDF, 828KB), CSB 57-13, 3 (11/7/14).

No violation found where agency failed to prove a sergeant gave preferential treatment to an inmate, or that sergeant neglected a duty to avoid preferential treatment. In re Rolando, CSA 40-15, 3 (1/26/16).  

No violation established where agency presented no evidence that employee’s attendance at a one-hour meeting for a city group caused the employee to perform any duty in a careless manner. In re Jackson(PDF, 180KB), CSA 21-15, 6 (1/15/16).

Agency failed to prove violation of careless portion of this rule where it failed to give employee notice that it considered its provisional deadline for batching documents or that employee performed that work in a substandard manner. In re Jackson(PDF, 180KB), CSA 21-15, 5-6 (1/15/16).

No violation established where appellant performed her discharge duties, although her actions were not in full conformity with agency policies, procedures and training. In re Rhodes(PDF, 2MB), CSA 23-14, 5 (7/25/14).

Agency failed to establish a violation under this rule where it did not explain the basis for its conclusion that appellant performed his duty to conduct hearings in a careless manner. In re Vega(PDF, 1MB), CSA 12-14, 3 (7/3/14).

Agency did not prove employee carelessly deleted emails where agency failed to prove he had a duty to preserve them. In re Trujillo(PDF, 1MB), CSA 53-13, 5 (4/14/14).

Appellant’s failure to follow a supervisor’s directive is more in the nature of a violation of CSR 16-29 F, rather than a neglect of duty under this rule. In re Robinson(PDF, 3MB), CSA 03-13, 4 (6/18/13).

Neglect may not be proven only as a failure to abide by other Career Service Rules. In re Robinson(PDF, 3MB), CSA 03-13, 4 (6/18/13). 

No violation is established where supervisor did not cite any duty appellant violated. In re Robinson(PDF, 3MB), CSA 03-13, 4 (6/18/13). 

Agency failed to prove the neglect portion of this rule where employee had duty to research assigned tasks and the evidence showed employee and her team completed twelve of the forty-five overdue tasks. In re Serna(PDF, 96KB), CSA 39-12, 5 (5/23/13).

Agency did not prove appellant was careless in her duty to administer city contracts where relationship was a partnership under an MOU paid for by federal grant rather than a city-funded contract. In re Mack(PDF, 946KB), CSA 43-12, 8 (3/18/13).

Agency did not prove appellant neglected her duty to administer city contract where relationship was a partnership under an MOU paid for by federal grant rather than a city-funded contract. In re Mack(PDF, 946KB), CSA 43-12, 8 (3/18/13).

Appellant was not careless in the performance of a standard operating procedure when she obeyed her supervisor’s explicit directive in contravention of the procedure. In re Leslie(PDF, 8MB), CSA 10-11, 9 (12/5/11). 

Agency failed to establish appellant was careless of duty to sign training acknowledgement timely where: supervisors were unsure of the policy. In re Leslie(PDF, 8MB), CSA 10-11, 9 (12/5/11).   

Agency failed to establish dispatcher was careless, under a standard operating procedure (SOP), in failing to dispatch Denver Fire Department to an injury-accident where her co-worker confirmed twice the accident was non-injury, and her supervisor explicitly directed her not to send DFD, in contravention of standard operating procedure. In re Leslie(PDF, 8MB), CSA 10-11, 9 (12/5/11).  

Agency failed to show Aviation Emergency Dispatcher was careless in failing to obtain a caller’s name, telephone number, or involvement in a bus rollover, where she established the first priority is to determine the location of an emergency in order to dispatch appropriate resources, and her supervisor acknowledged the most important task is to obtain a correct location. In re Leslie(PDF, 8MB), CSA 10-11, 9 (12/5/11).   

Agency failed to establish Aviation Emergency Dispatcher was careless in failing to determine the correct location of a bus accident where the caller twice told her that he didn’t know the location, she consulted others in the call center to ascertain the location, and she was unaware of a snow alert that may have altered the normal bus route. In re Leslie(PDF, 8MB), CSA 10-11, 9 (12/5/11). 

Agency failed to establish Aviation Emergency Dispatcher was careless in failing to follow a standard sequence where three co-workers revealed they regularly modify the sequence based on the circumstances of the call. In re Leslie(PDF, 8MB), CSA 10-11, 11 (12/5/11).    

Agency failed to establish dispatcher carelessly documented an injury as a broken leg, instead of an injured arm, where she had logged out of the computer and her relief inaccurately logged the injury using her identification. In re Leslie(PDF, 8MB), CSA 10-11, 10 (12/5/11).  

Since obedience to a direct, legitimate instruction always trumps a more general duty, appellant did not act carelessly when she followed her supervisor’s explicit direction in contravention of an Agency standard operating procedure. In re Leslie(PDF, 8MB), CSA 10-11, 9 (12/5/11).  

Appellant did not neglect her duty for failing to double-check her work where the Agency did not specify that double-checking was a requirement. In re Roberts, CSA 40-10 & 48-10, 9 (11/15/10).

Judicial assistant did not neglect her cashier duties for leaving her post for thirty-five minutes while she undertook another duty, and returned only when she was informed customers were waiting.  The Agency failed to establish duty to remain at her post, or that the duration of her absence was excessive. In re Roberts, CSA 40-10 & 48-10, 9 (11/15/10). 

DIA equipment operator was not careless in the performance of his duty to provide customer service where the Agency failed to establish that, as part of that duty, he was to refer all customers who could not locate their cars to Parking Facilities, instead of driving a customer around to find the car. In re Cotton, CSA 104-09, 7 (10/18/10).

Neglect was not proven by evidence that youth worker allowed residents behind staff desk, since residents at times had permission to be there. In re O’Meallie, CSA 92-09, 4 (6/18/10).

Youth worker did not neglect his duty of supervision by allowing residents at family crisis center to do pushups on staff desk where there was no evidence how such activity violated that duty. In re O’Meallie, CSA 92-09, 4 (6/18/10). 

Neglect of duty was not proven where agency did not allege an omission to perform a duty. In re Cady(PDF, 2MB), CSA 03-10, 4 (4/22/10).

Agency failed to prove neglect where it claimed youth crisis center worker was sleeping, but worker testified she closed her eyes only momentarily, and no objective evidence rebutted that testimony. In re Carrillo(PDF, 2MB), CSA 95-09, 3 (3/16/10).

Supervisor’s testimony that appellant’s notebook was unacceptable to satisfy PIP requirements did not meet agency’s burden to prove neglect of duty where appellant credibly testified to the contrary and agency did not produce the only evidence of unacceptability - the notebook. In re Mounjim(PDF, 495KB), CSB 87-07, 5 (1/8/09).

Supervisor’s testimony that appellant’s notebook was unacceptable to satisfy PIP requirements did not meet agency’s burden to prove carelessness where appellant testified to the contrary and agency did not produce the notebook. In re Mounjim(PDF, 495KB), CSB 87-07, 5 (1/8/09). 

Four minor errors in recording travel time and locations on newly implemented activity log did not constitute negligence where log's function was limited to giving supervisor the general idea of where employees were and what they were doing. In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-08, 14, 19 (12/15/08).  

Appellant did not neglect his duty to share information by his failure to re-file HR documents in office files where appellant had not been instructed to re-file documents within a certain time period. In re Sienkiewicz,(PDF, 1MB) CSA 10-08, 14 (7/14/08).

Appellant did not neglect his duties by volunteering incorrect information to a co-worker, and then correcting it within the hour. In re Sienkiewicz,(PDF, 1MB) CSA 10-08, 16 (7/14/08).

Agency failed to prove violation where it failed to establish appellant had a duty not to discard his copies of compensation documents, or that the loss of documents discarded by appellant rendered the remaining documents inaccurate in any respect. In re Sienkiewicz,(PDF, 1MB) CSA 10-08, 13 (7/14/08).

Agency failed to prove violation where it presented no evidence as to what duty was violated, or how the duty was communicated to appellant. In re Mounjim(PDF, 1MB), CSA 87-07, 4 (7/10/08).

Agency failed to prove violation of this rule where it failed to prove payroll technician was trained in and capable of creating timely personnel actions for suspended employee. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 10 (5/30/08).

Agency failed to prove payroll technician was negligent in failing to create personnel action forms for suspended employees because agency’s training did not clearly cover that topic, technician did not receive copy of training guide in time to use it to process the personnel action, and payroll was employee’s first priority. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 9-10 (5/30/08).

Claim that payroll technician submitted separation audit source documents late, rather than not at all, fails to establish neglect of duty. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 11 (5/30/08).

Audit errors committed by supervisor’s subordinates did not establish supervisor neglected her duty of oversight where agency failed to tie any of subordinates’ errors to supervisor’s duty. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 24 (5/30/08).

Agency failed to prove supervisor negligently supervised technicians for their failure to check certification list before issuing report to duty forms where agency failed to prove technicians had duty to do so. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 25 (5/30/08).

Agency failed to prove payroll technician neglected to check certification list before issuing hiring form where evidence did not show that checking that list was a duty of the technicians. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 30, 35-36 (5/30/08).

Agency failed to prove payroll technician neglected her duty to submit documents to auditor within thirty days because evidence did not show technician had notice of the deadline. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 30 (5/30/08).

Agency’s belief that the FMLA restricted it from further medical inquiry where appellant raised diarrhea as reason for restroom stop did not support its finding of neglect of duty. In re Dessureau(PDF, 545KB), CSA 59-07, 5 (1/16/08).

Where supervisor's order could not be performed, there can be no violation of rule. In re Martinez(PDF, 3MB), CSA 19-05, 7 (6/27/05) (decided under former 16-50 A.1).

Where agency's evidence was inconsistent about what duty appellant refused to perform, agency failed to prove violation of rule. In re Martinez,(PDF, 3MB) CSA 19-05, 6 (6/27/05) (decided under former 16-50 A.1).


16-28 B: Theft, Destruction, or Neglect in Use of City Property or Property or Materials of Any Other Person or Entity (Former 16-60 C)

IN GENERAL 

This rule requires an intent to permanently deprive another of his property. In re Schultz, CSA 156-04, 6 (Order 6/20/05) (decided under former 16-50 A.2).

FOUND 

The Agency proved appellant violated CSR 16-29 B (Destruction of Property) [now 16-28B] by damaging his supervisor’s car, where the video evidence showed that appellant was the only person, besides his supervisor, who accessed that portion of the car when the damaged occurred. In re Coates(PDF, 160KB), CSA 9-18 & 18-18, 7 (12/19/18).

Appellant’s failure to collect a deposit and charge rent for the use of a City facility did not constitute theft, as defined by C.R.S. § 18-4-401, as she committed these failures unintentionally, therefore her conduct did not meet the “knowing” requirement of a theft. In re Rodriguez(PDF, 2MB), CSB 60-17A, 3-4 (9/20/2018).

Reinstatement from dismissal to a non-management, non-supervisory position without backpay is proper penalty for manager whose negligence proved she should not be a supervisor or manager, but agency failed to prove she acted dishonestly or committed theft. In re Rodriguez(PDF, 2MB), CSB 60-17A, 5 (9/20/2018).

An employee acts with neglect in the use of City property if he causes an accident or property damage. In re Gomez(PDF, 4MB), CSA 02-12, 4 (5/14/12), citing In re Lewis, CSA 37-11, 4 (9/22/11). 

DIA plumber violated this rule in removing items from a stockroom where his duties did not require any of the parts he removed, he failed to list a work order number on the disbursement report, he was engaged in a private job involving plumbing around the same time and all witnesses contradicted his account. In re Duran, CSA 10-10, 9-10 (10/1/10).

Agency established appellant stole a co-worker's ring in violation of this rule where appellant made inconsistent statements during the investigation, the security camera showed appellant reaching into place where ring was left, and no other employee was in the area during the pertinent time. In re Galindo(PDF, 780KB), CSA 39-08, 10 (9/5/08).

Appellant neglected city property when he had two accidents with city vehicles within six weeks, and misplaced city equipment twice in one month, causing over $1,600 in damage, despite his training, experience, and serious previous discipline for the same type of offense. In re Hobley,(PDF, 536KB) CSA 61-05, 8 (12/19/05).

NOT FOUND 

No violation established where agency claimed appellant snow plow driver’s accident caused damage to truck, but the damage was discovered five days after the accident; the truck had been driven in the interim; and evidence was vague as to whether the crack could have occurred before the accident. In re Gomez(PDF, 4MB), CSA 02-12, 4 (5/14/12).

Unrebutted evidence that employee damaged city equipment because he forgot to retrieve it from the roof of his city vehicle does not establish that the acts were committed willfully or with utter lack of responsibility. In re Hobley(PDF, 536KB), CSA 61-05, 5 (12/19/05) (decided under former 16-50 A.2).

Since a pen in supervisor's office was for the use of city employees in the performance of their jobs, and appellant's possession of the pen was consistent with that use, the agency did not establish that appellant was guilty of intent to permanently deprive within the meaning of 16-28 B. In re Schultz, CSA 156-04, 6 (Order 6/20/05) (decided under former 16-50 A.2).

Employee's request to a city vendor for pens used as a marketing tool does not prove theft. In re Schultz,(PDF, 596KB) CSA 156-04, 6 (Order 6/20/05) (decided under former 16-50 A.2).


16-28 C: Unauthorized Operation or Use of Any City Vehicles, Machines or Equipment (Former 16-60 D)

IN GENERAL 

In order to establish a violation of this rule, the agency must prove appellant used a city vehicle for a purpose not intended by his assignment to that vehicle. In re Dessureau,(PDF, 545KB) CSA 59-07, 6 (1/16/08) citing In re Oliver(PDF, 1MB), CSA 28-02, 21 (10/17/02).

FOUND 

Appellant violated CSR 16-29C where she allowed a customer to use a City Center, in violation of the Center’s policy and the City ordinance, hence the customer’s use of the Center was unauthorized. In re Rodriguez(PDF, 211KB), CSA 60-17, 3 (2/5/18), rev’d on other groundsIn re Rodriguez(PDF, 2MB), CSB 60-17A (9/20/18).

Appellant violated CSR 16-29C where she joined a customer’s party at a City Center, whom she authorized to use the Center in violation of the Center’s policy and the City ordinance, hence her use of the Center was also unauthorized. In re Rodriguez(PDF, 211KB), CSA 60-17, 3 (2/5/18), rev’d on other grounds, In re Rodriguez, CSB 60-17A (9/20/18). 

Appellant’s frequent access to social networking website on her work computer, during work hours, knowing such internet use was unauthorized, was violation of this rule. In re Rodriguez(PDF, 6MB),  CSA 12-10, 7 (10/22/10).

Appellant violated this rule where he was prohibited from using his work computer while on investigatory leave, yet he accessed his work email account for his personal use. In re Cotton, CSA 104-09, 8 (10/18/10). 

Agency proved airport employee who entered a restricted-access command vehicle without authorization on three occasions violated this rule. In re Jones(PDF, 2MB), CSA 88-09, 4 (5/11/10).

Airport technician's use of her city vehicle to meet a firefighter for a liaison in the firehouse was an unauthorized use of a city vehicle in violation of this rule. In re Jones(PDF, 2MB), CSA 88-09, 4 (5/11/10).

Supervisor’s use of his assigned agency vehicle for personal business constitutes unauthorized use of city equipment. In re Valdez(PDF, 2MB), CSA 90-09, 5 (3/1/10).   

Appellant violated rule when she changed confidential information in agency database about a former client after her authority to access computer lapsed. In re Abdi(PDF, 1MB), CSA 63-07, 6 (2/19/08).

Appellant who used an agency computer for personal purposes during working hours violated the rule prohibiting unauthorized operation of city equipment. In re Garcia(PDF, 3MB), CSA 175-04, 5 (7/12/05) (decided under former 16-51 A.7).

NOT FOUND 

Agency did not prove deputy engaged in unauthorized use of internet where website was minimized on deputy's screen at the time he released an inmate who was not eligible for release, and screen did not interfere with deputy's duties. In re Mitchell(PDF, 2MB), CSA 57-13, 5 (5/7/14).

Agency failed to prove appellant misused shredder by placing documents in it where retention policy required confidential documents to be shredded. In re Sienkiewicz,(PDF, 1MB) CSA 10-08, 13 (7/14/08).

Appellant did not misuse agency’s internet service by listening to music through radio station’s website during work hours, and using Google to research ergonomic issues. In re Sienkiewicz(PDF, 1MB), CSA 10-08, 17 (7/14/08).

Appellant did not violate rule by providing agency investigator with confidential information from agency database where supervisor found no impropriety in the disclosure. In re Abdi,(PDF, 1MB) CSA 63-07, 6-7 (2/19/08).

Allegation that appellant caused a co-worker to provide her with client file did not establish violation of this rule where agency did not assert misuse of any city vehicle, machine or equipment. In re Abdi,(PDF, 1MB) CSA 63-07, 7 (2/19/08).

Agency failed to present any evidence that appellant’s use of assigned vehicle to stop for a restroom break during the work day was an abuse of the vehicle in violation of rule. In re Dessureau(PDF, 545KB), CSA 59-07, 6 (1/16/08).


16-28 D: Any Act of Dishonesty (Former 16-60 E)

IN GENERAL 

Honest timekeeping is an essential function for all Career Service employees, as it is the promise to provide a valuable service in exchange for a substantial portion of each taxpayer dollar. In re Marez,(PDF, 71KB) CSA 58-16, 8 (1/26/17).

A violation of this rule includes any knowing misrepresentation made within the employment context. In re Marez(PDF, 71KB), CSA 58-16, 3 (1/26/17), citing In re Rodriguez(PDF, 6MB), CSA 12-10, 7 (10/22/10).

Intent to deceive may be inferred from circumstances. In re Steckman(PDF, 866KB), CSB 30-15, 4 (1/19/17), citing In re Gale, CSB 02-15 (7/21/16).

Agency's consideration of dishonesty in assessing discipline is an impermissible use of the disciplinary process where dishonesty was not charged. Such practice fails to notify an employee what conduct was considered by the Agency in assessing discipline and deprives the employee of the opportunity to defend against it. In re Leslie,(PDF, 8MB) CSA 10-11, 20 (12/5/11).

Lying during a disciplinary proceeding is especially egregious, as it undercuts the agency’s efforts to seek the truth in important matters involving employment rules and the rights of employees, and weakens the ability of an agency to place its trust in the statements of its employee. In re Duran, CSA 10-10, 10 (10/1/10), citing In re Galindo(PDF, 780KB), CSA 39-08, 10 (9/5/08).  

Dishonesty claims are often determined by credibility. In re Redacted(PDF, 2MB), CSA 08-10 (5/24/10).

Credibility is critical in determining whether dishonesty has been proven, since the agency must establish the employee knowingly misrepresented the truth. In re Clayton, CSA 111-09, 4-5 (4/6/10).

In determining whether an employee knowingly misrepresented the truth, the concept of acting knowingly derives from the criminal code, which defines the term as being aware or acting willfully. In re Clayton, CSA 111-09, 5 (4/6/10), citing CRS 18-1-501(6) (2009). 

Silence, when the situation calls for a response, is just as dishonest as an overt expression of dishonesty, since both are intended to deceive. In re Clayton, CSA 111-09, 5 (4/6/10).

This rule almost always requires an analysis of credibility. In re Carter(PDF, 2MB), CSA 87-09, 4 (2/17/10), aff’d CSB 87-09A (7/1/10).

This rule is not limited to false statements made to superiors, but includes any knowing misrepresentation made within the employment context. In re Mounjim,(PDF, 495KB) CSB 87-07, 6 (1/8/09).

Dishonesty is the knowing communication by an employee of a false statement within the employment relationship. In re Dessureau(PDF, 545KB), CSA 59-07, 6 (1/16/08), citing In re Davis,(PDF, 540KB) CSA 46-06, 7 (6/8/07); In re Roberts,(PDF, 2MB) CSA 179-04, 4 (6/29/05).

In order to find a violation under this rule, dishonesty connected to the employee’s workplace must be established. In re Redacted,(PDF, 561KB) CSA 190-03, 5 (2/13/06) (decided under the former 16-50 A. 3), citing In re Espinoza(PDF, 526KB), CSA 66-04 (12/8/04); In re Maes(PDF, 1MB), CSA 180-03, 19 (6/9/04).

Rule is intended to include all types of dishonesty related to an employee's service with the city. In re Schultz, CSA 156-04, 7 (6/20/05) (decided under former 16-50 A.3.).

FOUND 

Appellant violated CSR 16-29D (Dishonesty) [now 16-28D] by posting her employment as “police officer” on Facebook, where she had an affinity for affiliating herself with the DPD through clothing, insignia and in writing. In re Gerovic(PDF, 315KB), CSA 77-17, 4-5 (6/1/18).

Appellant violated CSR 16-29D (Dishonesty) [now 16-28D] by claiming the photographs she posted of herself in DPD attire were a joke, where her postings and their responsive comments show she intended to represent herself as a police officer. In re Gerovic(PDF, 315KB), CSA 77-17, 5 (6/1/18).

Appellant violated CSR 16-29D (Dishonesty) [now 16-28D] by claiming agency promised her a permanent position at the DPD District 5 Station, but Agency witness, its rules, and Appellant’s job specification state assignments are made as needed. In re Gerovic(PDF, 315KB), CSA 77-17, 6 (6/1/18).

Vulgar language/disrespectful exchange not proven where agency cited that violation in its notice of discipline but presented no evidence of the exchange at hearing, so appellant’s denial at hearing rebutted the agency’s allegation. In re Gerovic(PDF, 315KB), CSA 77-17, 5 (6/1/18).

Employee who told one supervisor all the reasons for her absence but failed to repeat all of them to a second supervisor did act dishonestly under this rule. In re Colquitt(PDF, 3MB), CSA 34-15, 5 (10/30/15).

Agency could find appellant dishonest for claiming to be unaware of its policy requiring personal identification card to access its secure sites even though agency did not enforce that policy. In re Hinojosa,(PDF, 166KB) CSA 33-18, 7 (11/29/18).

Appellant dishonestly obtained reimbursement claimed mileage for trip she could not have made in the time available to her. In re Hinojosa(PDF, 166KB), CSA 33-18, 7 (11/29/18).

Appellant was dishonest in denying to her supervisor that she missed any mandatory meetings where she purposefully conflated a meeting that she did not have to attend with a mandatory meeting. In re Hinojosa(PDF, 166KB), CSA 33-18, 8 (11/29/18).

Appellant dishonestly reported her work hours where she claimed more hours than she could have worked in the time available to her. In re Hinojosa(PDF, 166KB), CSA 33-18, 8 (11/29/18).

Dishonesty established by appellant’s less-than-forthcoming conversation with the city attorney in which he inferred he sought legal advice about a third person, but actually sought legal advice about his own situation. In re Mancuso(PDF, 190KB), CSB 76-17, n.1 (9/6/18).

Dishonesty established albeit appellant did not hide his name in his call to an assistant city attorney, where he hid the purpose of his call, did not identify himself as a city employee until pressed repeatedly, and did not disclose he was calling to seek legal advice about his personal situation until pressed. In re Mancuso(PDF, 190KB), CSB 76-17, 5 (9/6/18).

Dishonesty-by-omission established where appellant failed to disclose critical information any reasonable person would know to disclose, and did so intentionally and knowingly for the purpose of attempting to obtain information he was not otherwise entitled to receive. In re Mancuso(PDF, 190KB), CSB 76-17, 6 (9/6/18).

Dishonesty established when senior recreation center supervisor issued free passes to individuals he knew were not entitled to them. In re Santistevan(PDF, 683KB), CSB 75-16, 2 (11/16/17).

Dishonesty established when deputy misrepresented position of inmate’s hands on cell door flap, which tended to minimize the risk of injury to inmate when deputy kicked door flap. In re Roybal,(PDF, 475KB) CSB 44-16, 2 (5/18/17).

Dishonesty established when deputy claimed kicking door flap to inmate’s cell was necessary to entice dangerous inmate to back away to secure door flap, but after kicking the flap, deputy walked away without securing it, and inmate was not aggressive at the time. In re Roybal,(PDF, 475KB) CSB 44-16, 2 (5/18/17).

Dishonesty by omission was established by deputy’s omission, twice, to mention to his supervisor that he used force in kicking door flap to inmate’s cell, was intentional considering his obligation to report all use of force, and in light of reporting only inmate’s aggression preceding the kick. In re Roybal(PDF, 475KB), CSB 44-16, 2 (5/18/17).

Program manager knowingly falsified work hours by approving fewer work hours than she knew were actually worked by an employee. In re Fresquez(PDF, 57KB), CSA 63-16, 6 (2/24/17).

Dishonesty established where discrepancies in timekeeping were established and appellant’s claims - that the timekeeping system was unreliable, that he merely credited himself time to assist another, and that he made a simple timekeeping error - were unconvincing in view of credible testimony that a co-worker alone performed that work, appellant failed to introduce objective evidence of timekeeping malfunction, and appellant’s latest three violations were also for improper timekeeping, so he understood importance of accurate timekeeping. In re Marez(PDF, 71KB), CSA 58-16, 3-4 (1/26/17).

Dishonesty established in falsified timekeeping where project claimed by appellant was assigned to a co-worker and appellant was assigned to an earlier shift that day. In re Marez(PDF, 71KB), CSA 58-16, 4 (1/26/17).

Dishonesty in timekeeping established where appellant had the experience, motivation and opportunity to change time he had reported, supervisor credibly testified from records that the job was assigned to a co-worker, and appellant could not have assisted contractor as claimed because the contractor was not present. In re Marez,(PDF, 71KB) CSA 58-16, 5 (1/26/17).

Dishonesty established where appellant entered time he allegedly assisted a contractor, but the job was assigned to someone else, and appellant claimed only generally he sometimes helps out. In re Marez(PDF, 71KB), CSA 58-16, 5 (1/26/17).

Dishonesty in timekeeping established where appellant entered time in record-keeping system for assisting on a project, but the job was assigned to someone else and his supervisor credibly testified such work is never done during appellant’s shift, and is not the type of work ever performed by appellant. In re Marez(PDF, 71KB), CSA 58-16, 6 (1/26/17).

Dishonesty in timekeeping established where evidence indicated appellant claimed two hours for work he did not do; once under investigation, he reversed that entry; he had been disciplined previously for lack of production; and he was under pressure to show increased productivity. In re Marez(PDF, 71KB), CSA 58-16, 5 (1/26/17).

Dishonesty in timekeeping established where appellant claimed time worked for project assigned to someone else. Appellant claimed the timekeeping entry was a mistake, but after having been disciplined for the same problem before, each of ten faulty time submissions progressively decreased the credibility of his claim. In re Marez(PDF, 71KB), CSA 58-16, 6 (1/26/17).

Finding of dishonesty was reasonable where deputy denied seeing pat-search directly in front of him, but video recording showed inmate who was pat searched collapsing directly in front of him and deputy admitted seeing two or three incidents of hazing during same period. In re Steckman(PDF, 866KB), CSB 30-15, 3 (1/19/17).

Operations supervisor falsely reported thirteen or fourteen manholes per day prepared for street paving where he did not ask for daily reports, and both crew and director affirmed the crew completed only six or seven a day. In re Lucero,(PDF, 173KB) CSA 58-15, 5 (4/11/16). 

Supervisor falsely stated he asked his crew to volunteer for a project where four credible statements from his crew affirmed he had not made that request. In re Lucero(PDF, 173KB), CSA 58-15, 6 (4/11/16).   

Appellant falsified records in violation of this rule when he reported changing filters that were exceedingly dirty a short time later, when he reported 1.25 hours for work he did not perform, and when he reported excessive time in three other work orders although he did no work. In re Macieyovski(PDF, 2MB), CSA 28-14, 6 (10/13/14).

Finding that deputy lied during an investigation when he denied slapping an inmate was not clearly erroneous, even though video was subject to interpretation, where jail video showed the incident. In re Kemp(PDF, 2MB), CSB 19-13, 2 (7/28/14).

Agency proved deputy was dishonest in denying that he slapped the inmate where the slap was proven by witness testimony and jail video showing deputy's hand connecting to the inmate's head, followed by inmate’s head snapping back. In re Kemp(PDF, 3MB), CSA 19-13, 12 (1/2/14).

Hearing officer’s determination that petitioner was dishonest during internal affairs investigation was not clearly erroneous where it was based on determination of credibility supported by record evidence. In re Redacted, CSB 57-11 (12/20/12).

Appellant’s admission, that she intended to pay for merchandise she took without paying, was a knowing misrepresentation within the employment context, in violation of CSR 16-28 D [former CSR 16-60 E], where the reasons she provided to investigator of her intent to pay were not credible. In re Redacted, CSA 57-11, 5-6 (5/31/12), affirmed  In re Redacted, CSB 57-11 (12/20/12).

Deputy sheriff’s denial of a personal relationship with a female inmate was dishonest where his best friend saw him being intimate with the inmate and, several times, appellant had other deputies authorize inmate’s transfer to locations where he could visit with her. In re Romero(PDF, 242KB), CSA 01-12, 8 (4/17/12). 

Supervisor was dishonest in obtaining free replacement phones for herself and other employees where she: 1) claimed the phones were broken in normal use where they were not; 2) claimed the phones were defective although she mishandled hers and another was run over by an employee, and 3) she knew the contract for the phones did not allow for free replacement. In re Roybal(PDF, 787KB), CSA 60-11, 5 (3/13/12), affirmed In re Roybal(PDF, 504KB), CSB 60-11 (8/2/12).

Supervisor violated this rule for using deception to obtain free phone replacements even though she could have obtained legitimate free replacements through other means. In re Roybal(PDF, 787KB), CSA 60-11, 5 (3/13/12), affirmed In re Roybal(PDF, 504KB), CSB 60-11 (8/2/12).

A violation under this rule is established where appellant misrepresented the amount of time she was absent from her desk on 12/10/09, knowing the times she reported to her supervisor would be the period her supervisor would enter into KRONOS. In re Rodriguez(PDF, 6MB),  CSA 12-10, 8 (10/22/10). 

DIA plumber was dishonest in his pre-disciplinary meeting when he denied he engaged in a private plumbing job, but admitted it at hearing. In re Duran, CSA 10-10, 10 (10/1/10).  

Dishonesty was proven where appellant failed to punch out for a twenty-five minute absence yet claimed pay for that time. In re Abbey(PDF, 3MB), CSA 99-09, 8 (8/9/10).

Dishonesty established where co-workers' specific and documented testimony, that appellant was frequently absent during work, was more credible than appellant's general denial. In re Norris(PDF, 2MB), CSA 68-09, 6 (7/12/10).

Appellant was dishonest where he claimed pay for 8 hours of jury duty, but served less than three hours, for which discrepancy he gave with varying and implausible explanations. In re Redacted(PDF, 2MB), CSA 08-10, 3-8 (5/24/10).

Deputy was untruthful during investigation in stating that inmate was aggressive and refused his order, where jail video shows deputy shoved inmate into an elevator a second after inmate calmly made a request. In re Koehler(PDF, 5MB), CSA 113-09, 15-16 (4/29/10).

Deputy was dishonest when he told investigator he ordered inmate off elevator, although admitting at hearing he did not issue that order. In re Koehler(PDF, 5MB), CSA 113-09, 16 (4/29/10).

Because employee was aware of her supervisor's directive against overtime when she claimed it, employee was dishonest in violation of the rule. In re Clayton, CSA 111-09, 5 (4/6/10).

Dishonesty was proven where appellant was aware of a directive prohibiting overtime for committee meetings, thereafter claimed overtime for three meetings, submitted an overtime pay request to a fill-in supervisor without informing him of the directive, attempted to circumvent the rule by pretending ignorance of it, and changed her explanation for her overtime claims several times. In re Clayton, CSA 111-09, 6 (4/6/10).

Dishonesty in requesting pay for attending a meeting was established by evidence that appellant supported her request for pay by detailing the location, attendance at and contents of the meeting which had been cancelled. In re Clayton, CSA 111-09, 6 (4/6/10).

Agency proved violation where employee told his supervisor he was at the office but GPS tracking on his car showed he was at home. In re Valdez(PDF, 2MB), CSA 90-09, 5 (3/1/10). 

Dishonesty was proven where several agency witnesses corroborated each other with plausible testimony, and all had a good relationship with appellant, whereas appellant’s statements were inconsistent over time, and he had an interest in the outcome of the case: preservation of his job. In re Carter(PDF, 2MB), CSA 87-09, 4 (2/17/10), affirmed In re Carter(PDF, 756KB), CSB 87-09 (7/1/10).

Appellant’s denial that he intended to intimidate a co-worker was dishonest where he admitted saying, “I’m talking to you man, why did you rat me out like that?  You’d better watch your back,” which the co-worker reasonably interpreted as attempted intimidation. In re Carter(PDF, 2MB), CSA 87-09, 5 (2/17/10), affirmed In re Carter(PDF, 756KB), CSB 87-09 (7/1/10).

Appellant was dishonest to internal affairs investigator when he denied asking another deputy to give a false statement to IA where the other deputy’s testimony was corroborated by other witnesses. In re Carter(PDF, 2MB), CSA 87-09, 5 (2/17/10), affirmed In re Carter(PDF, 756KB), CSB 87-09 (7/1/10).  

Where evidence showed that use of crochet needles in jail setting was potentially harmful, and the directive to cease bringing crocheting materials to work were clear to other deputies present when directive was given, appellant's assertion that order applied only to yarn was dishonest. In re Norman-Curry, CSA 28-07 & 50-08, 4 (2/27/09), affirmed In re Norman-Curry(PDF, 166KB), CSB 28-07 & 50-08 (9/3/09).

Deputy sheriff's denial that sergeant's "please do not do this again" was an order to cease knitting on post was dishonest in light of the obvious intent of the words and the sergeant's authority over appellant. In re Norman-Curry, CSA 28-07 & 50-08, 4 (2/27/09), affirmed In re Norman-Curry(PDF, 166KB), CSB 28-07 & 50-08 (9/3/09).

Violation of this rule proven where deputy sheriff claimed she was justified in use of force against an out-of-control inmate who kicked and head-butted another deputy, but that deputy testified he had complete control over the inmate and the inmate did not kick or head butt. In re Norman-Curry, CSA 28-07 & 50-08, 21 (2/27/09), affirmed In re Norman-Curry(PDF, 166KB), CSB 28-07 & 50-08 (9/3/09).

Violation under this rule is sustained where digital recording supported sheriff's department allegation that appellant-deputy repeatedly slammed inmate's head into a window, contrary to deputy's claim that she merely held the inmate's head against it. In re Norman-Curry, CSA 28-07 & 50-08, 21-2 (2/27/09), affirmed In re Norman-Curry(PDF, 166KB), CSB 28-07 & 50-08 (9/3/09).

Hearing officer erroneously concluded appellant could not violate this rule by lying to a non-supervisor. In re Mounjim(PDF, 495KB), CSB 87-07, 6 (1/8/09).

Proof of a fraudulent statement requires knowledge of the falsity of the statement. In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-08, 20 (12/15/08), citing In re Mounjim(PDF, 1MB), CSA 87-07 (7/10/08).

Appellant’s denial that he took a co-worker’s ring during an investigation into the theft was not credible where appellant made inconsistent statements during the investigation and the security tape showed that appellant was the only one in the area during the relevant time. In re Galindo(PDF, 780KB), CSA 39-08, 10 (9/5/08). 

Agency proved appellant was dishonest when she told agency she spent 1 ½ hours having her badge enabled by security, then admitted at hearing that she did not have her badge enabled that day. In re Blan, CSA 40-08, 5 (7/31/08).

Appellant was dishonest when his two statements during investigation contradicted the consistent statements of four witnesses and victim of assault, despite witnesses’ friendship with appellant. In re Rogers, CSA 57-07, 6-7 (3/18/08).

Appellant violated rule where she assisted her sister’s fraudulent application for welfare benefits. In re Abdi(PDF, 1MB), CSA 63-07, 26-27 (2/19/08).

Altering official records related to donated leave and lying to supervisors about whether discipline was imposed on a subordinate are acts of dishonesty in violation of this rule. In re Feltes,(PDF, 483KB) CSA 50-06, 7 (11/24/06).

Where agency established that appellant was playing cards on duty, and appellant repeatedly denied playing cards during investigation, each denial was an additional act of dishonesty. In re Martinez,(PDF, 541KB) CSA 30-06, 7 (10/3/06), see also In re Simpleman(PDF, 636KB), CSA 31-06, 8 (10/20/06).

Deputy sheriff who was observed sleeping on duty was dishonest when he denied sleeping to supervisor, investigator, and to committee at pre-disciplinary meeting. In re Simpleman,(PDF, 549KB) CSA 05-06, 6 (5/16/06).

Appellant was dishonest in claiming sick leave in order to leave early for her scheduled vacation. In re Clayton,(PDF, 368KB) CSA 128-05, 5 (3/21/06).

Deputy sheriff acted dishonestly in lying to investigating officers about being intoxicated and stealing a beer when arrested while off duty at a bowling alley. In re Mergl,(PDF, 504KB) CSA 131-05, 3 (3/13/06).

Appellant was dishonest in submitting and failing to correct time sheets which misrepresented her work hours, despite notice of the procedures and prior warnings from her supervisor. In re Vigil(PDF, 477KB), CSA 110-05, 4 (3/3/06).

Where supervisor was dishonest about her affair with a superior and dishonest about her mistreatment of a subordinate because she refused to cover up affair, both of which had a direct and significant impact upon the workplace, supervisor violated this rule. In re Redacted,(PDF, 561KB) CSA 190-03, 7 (2/13/06).

Dishonesty requires proof that appellant knowingly communicated a false statement within the employment relationship. In re Roberts,(PDF, 2MB) CSA 179-04, 4 (6/29/05) (decided under former 16-50 A.3), citing In re Espinoza(PDF, 526KB), CSA 66-04 (12/8/04).  

Employee who asked co-worker to log her in to work as present made a false report of her work hours. In re Roberts(PDF, 2MB), CSA 179-04, 4 (6/29/05).

Dishonesty includes both false statements and acts of deception such as misappropriation. In re Schultz, CSA 156-04, 7 (6/20/05), citing Webster's Unabridged Dictionary 525 (Encyclopedic Ed. 1979) (decided under former 16-50 A.3).

NOT FOUND 

Proving an employee’s dishonesty requires evidence that the employee’s differing accounts of events constitute a knowing misrepresentation of the truth. In re Colquitt, CSB 34-15A, 5 (1/4/18), citing In re Mounjim, CSB 87-07A (1/8/09).

Appellant’s differing but not inconsistent reasons to different supervisors for her absence, which Agency did not refute at hearing, did not constitute a knowing misrepresentation of the truth. In re Colquitt, CSB 34-15A, 4-5 (1/4/18), citing In re Mounjim, CSB 87-07A (1/8/09).

An employee’s failure to address the agency’s allegations to attempt to refute them at a contemplation of discipline meeting is not proof of the allegations. In re ColquittCSB 34-15A, 5 (1/4/18).

Hearing Officer properly construed CSR 16-60(E)’s prohibition of dishonesty to require a knowing misrepresentation made in the employment context. [now CSR 16-28 D.] In re ColquittCSB 34-15A, 5-6 (1/4/18).

Agency’s dismissal of appellant based on its belief that she engaged in dishonest conduct, was unsupported since it failed to prove the dishonest conduct at hearing. In re Rodriguez(PDF, 2MB), CSB 60-17A, 2-3 (9/20/2018).

Agency failed to prove appellant, Vehicle Impound employee, violated CSR 16-29D [now 16-28D] by receiving bullets found in impounded auto but then denying he had received them, where witnesses testified customers left with the bullets. In re Tamburino(PDF, 534KB), CSA 40-17, 7 (4/23/18).

Appellant not dishonest where agency asked her where she parked in its garage, and appellant identified her parking privileges in the garage lower level, even though she had not parked there recently. In re Hinojosa,(PDF, 166KB) CSA 33-18, 6-7 (11/29/18).

Errors in appellant’s time card did not by itself prove misrepresentation. In re Martinez(PDF, 261KB), CSA 10-17, 6 (7/19/17). 

Agency’s removal of the charge of dishonesty from its notice of discipline, but assessing aggravated penalty for dishonesty punishes employee for misconduct in a manner that gives her less meaningful opportunity to contest allegations of dishonesty. This is so because the level of discipline is typically a matter within the discretion of the agency whereas actual charges for dishonesty must be proven by a preponderance of the evidence at hearing. In re Rocha(PDF, 2MB), CSB 19-16, 7 (7/6/17).

No dishonesty established where appellant entered then later backed out time for claimed work, but the agency could not establish when he added or removed the time and his supervisor acknowledged it could have been simple mistake. In re Marez(PDF, 71KB), CSA 58-16, 4-5 (1/26/17).

Employee’s note “to Alfresco” did not misrepresent that the document was already available in Alfresco, since anyone familiar with the process knows the scanning itself takes time. In re Jackson(PDF, 180KB), CSA 21-15, 6 (1/15/16).

Employee’s offer to volunteer to help with high priority duties was not a misrepresentation that she was up to date with her own duties, since her desk clearly showed the status of her own workload. In re Jackson(PDF, 180KB), CSA 21-15, 6 (1/15/16).

Version of use of force incident in one witness's delayed report was so contrary to all other evidence, including the video, that it was more probably the product of an imprecise memory than evidence that deputy was dishonest. In re Kemp(PDF, 3MB), CSA 19-13, 12 (1/2/14).

Deputy's statements over two years were not so irreconcilable that they established deputy lied about whether an inmate was trying to stand just before the use of force. In re Kemp(PDF, 3MB), CSA 19-13, 11 (1/2/14).

Where deputy's statements changed little in the two years between in incident and the hearing and differed only in emphasis, evidence did not support a finding of dishonesty. In re Kemp(PDF, 3MB), CSA 19-13, 11 (1/2/14).

Evidence that appellant assigned work after the deadline did not prove that appellant did so with the intent to convey false information. In re Serna(PDF, 96KB), CSA 39-12, 7 (5/23/13).

Agency did not establish dishonesty by evidence that airport technician accepted pay for time she was engaged in sex at the airport, since agency did not prove technician was on the clock at that time. In re Jones(PDF, 2MB), CSA 88-09, 5 (5/11/10).

Where agency alleged appellant misrepresented her compliance with PIP requirements, but appellant’s stated confusion over requirements rebutted the “knowingly false” element, agency failed to prove dishonesty. In re Mounjim(PDF, 495KB), CSB 87-07, 6 (1/8/09).

Appellant’s email reflecting her own belief that she met her PIP requirements did not prove appellant made a knowingly false statement that her supervisor accepted her papers in compliance with her PIP. In re Mounjim(PDF, 495KB), CSB 87-07, 6 (1/8/09). 

Agency failed to prove appellant submitted false attendance information regarding two Girls’ Club classes where appellant’s testimony that the classes were held at a different time than scheduled was corroborated by one of the parents of the participants. In re Mounjim(PDF, 495KB), CSB 87-07, 6 (1/8/09). 

Minor clerical errors in daily activity log which did not mislead supervisor about the work performed did not prove intent to deceive or knowledge of falsity of errors, as necessary to prove violation of this rule. In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-08, 14-15, 19 (12/15/08). 

Agency failed to prove appellant's log was dishonest, where agency's evidence would require finder of fact to credit appellant for an elaborate scheme to conceal his whereabouts at a time not in question, and supervisor noted appellant's trustworthiness in his evaluation two months after the incident. In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-08, 18 (12/15/08). 

Agency failed to prove employee fraudulently attested on his PEPR that he had a valid driver's license where he was suspended in error by the county court after paying a traffic ticket, and employee was unaware of that suspension until after the PEPR was signed. In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-08, 20 (12/15/08). 

Agency failed to prove appellant was dishonest about reason for her four-hour trip to courthouse, where agency proved only that the trip was unnecessary. In re Blan, CSA 40-08, 5 (7/31/08).

Agency failed to prove appellant recreation coordinator falsified records to falsely show that she conducted two classes where evidence showed appellant held the classes on different times on the dates cited. In re Mounjim(PDF, 1MB), CSA 87-07, 7 (7/10/08).

Assistant city attorney who responded inaccurately to his supervisor’s question about a specific case during a hectic docket, then failed to correct the inaccurate statement, was not dishonest where agency provided no evidence appellant sought to deceive his supervisor. In re Stone(PDF, 742KB), CSA 70-07, 9 (2/25/08).

Supplying incorrect information to a supervisor alone is not enough to sustain a charge of dishonesty. In re Stone(PDF, 742KB), CSA 70-07, 9 (2/25/08). 

Agency failed to prove city driver admitted dishonesty by telling his supervisor, “I messed up”, where reply was consistent with his credible testimony that he failed to ask permission before he made a restroom stop, and no other evidence supported allegation of dishonesty. In re Dessureau(PDF, 545KB), CSA 59-07, 7 (1/16/08).

Agency’s determination that appellant had not been dishonest was supported by evidence that appellant told her supervisor she had sent an email because she thought she had done so. In re Butler(PDF, 386KB), CSA 78-06, 5 (1/5/07).

Agency did not establish appellant was intentionally deceptive in requesting a day off to appear in court when the court documents showed that it was a deadline to appear or answer the complaint, as appellant demonstrated she was simply unfamiliar with the nature of the proceedings. In re Edwards,(PDF, 444KB) CSA 21-05, 6 (2/22/06).

Appellant was not dishonest in erroneously reporting that she had finished two projects, or in failing to advise her supervisor of her intent to work on Saturday. In re Diaz,(PDF, 647KB) CSA 92-05, 5-6 (1/31/06).

Appellant was not dishonest in failing to provide three potential interview questions to all candidates for promotion who had applied previously, since the same eight interview questions were used for the past three to five years, thus past interviewees had the same advantage as those receiving copies of interview questions. In re Martinez(PDF, 584KB), CSA 69-05, 5-6 (1/4/06).

Appellant was not dishonest in her answers to investigators regarding when she provided interview questions to candidates, since the question would only be important if it related to answers from a written examination, which would have violated her CSA examination security agreement prohibiting disclosure of written exam questions. In re Martinez,(PDF, 584KB) CSA 69-05, 6-7 (1/4/06).

Where appellant supervisor assisted several candidates testing for an open supervisory position by openly providing information to any of them who sought it, she did not act dishonestly in violation of this rule. In re Martinez(PDF, 584KB), CSA 69-05, 6 (1/4/06).

Employee may reasonably rely on agency's past interpretation of disciplinary rules in the absence of notice of a change in that interpretation. Thus, employee was not dishonest in failing to report offenses that the agency did not require to be reported in past years. In re Mitchell(PDF, 453KB), CSA 05-05, 5 (6/27/05).

Agency failed to prove intent to deceive when it failed to give employees notice of a change in its policy on annual background checks. In re Mitchell(PDF, 453KB), CSA 05-05, 5 (6/27/05).

The act of requesting comp zoo tickets from a person unauthorized to grant them is not itself dishonest without proof of intent to deceive. In re Schultz(PDF, 596KB), CSA 156-04, 7 (6/20/05).

Employee's request to city vendor for free advertising pens did not prove dishonesty. In re Schultz, CSA 156-04, 7 (6/20/05).

Appellant's offer to ask his zookeeper friend to arrange a behind-the-scenes zoo tour did not establish dishonesty in absence of proof that using a zookeeper as an intermediary to request a tour is a violation of the tour approval policy. In re Schultz, CSA 156-04, 7-8 (6/20/05).

Proof that an employee instructed another to assault a supervisor did not establish a false statement or other act of dishonesty. In re Moreno,(PDF, 34KB) CSA 138-04 (5/25/05).

Evidence of carelessness, attendance violations and noncompliance with instructions did not prove dishonesty. In re Lucero(PDF, 654KB), CSA 162-04, 8 (4/15/05).


16-28 E: Using Official Position or Authority for Personal Profit or Advantage (Former 16-60 F)

IN GENERAL 

Violation of this rule is established by requesting an advantage by virtue of having an official position, and does not require that an employee actually receive the requested advantage. In re Cotton, CSA 104-09, 8 (10/18/10).  

Violation of this rule requires proof of a significant link between one’s official position or authority and seeking an advantage to which one is not otherwise entitled. In re Sawyer & Sproul(PDF, 1MB), CSA 33-08 & 34-08, 9 (1/27/09), citing In re Mergl(PDF, 504KB), CSA 131-05, 4 (3/13/06); In re Redacted(PDF, 561KB), CSA 190-03, 7 (2/13/06).

Rule requires proof of actual use of official position for personal gain. In re Catalina(PDF, 656KB), CSA 35-08, 8 (8/22/08).   

FOUND 

Appellant violated CSR 16-29E where she joined a customer’s unpaid or underpaid party at a City Center during her working hours, in breach of her fiduciary duty to manage the Center responsibly. In re Rodriguez(PDF, 211KB), CSA 60-17, 4 (2/5/18), rev’d on other groundsIn re Rodriguez(PDF, 2MB), CSB 60-17A (9/20/18). 

DIA equipment operator used his official position for personal advantage where he told a customer that driving him around to locate his car would cost $20. Employee was not entitled to money in addition to his salary, and his attempt violated the rule. In re Cotton, CSA 104-09, 8 (10/18/10).  

Supervisor used his official position for personal advantage where he drove his assigned city vehicle to conduct private business without prior authorization. In re Valdez(PDF, 2MB), CSA 90-09, 5 (3/1/10).      

Deputy sheriff, by identifying himself as a deputy sheriff and asking for professional courtesy when arrested off duty, sought an advantage to which he was not otherwise entitled in violation of this rule. In re Mergl(PDF, 504KB), CSA 131-05, 4 (3/13/06).

Long-term employee who accepted benefit of changed selection criteria to attend conference by supervisor with whom she was having an affair used her position for personal advantage in violation of this rule In re Redacted(PDF, 561KB), CSA 190-03, 7 (2/13/06).

NOT FOUND 

No violation established where, even though appellant obtained a new work phone by deception, she gained no personal profit or advantage since she always carried a work phone. In re Roybal(PDF, 787KB), CSA 60-11, 6 (3/13/12).

An employee’s reference to the fact that he is employed by the city while soliciting outside work is insufficient to violate this rule. In re Sawyer & Sproul(PDF, 1MB), CSA 33-08 & 34-08, 9 (1/27/09). 

Appellants who cited their employment experience with the agency as qualifications when they solicited contracts for their outside business did not violate rule. In re Sawyer & Sproul(PDF, 1MB), CSA 33-08 & 34-08, 9 (1/27/09). 

Agency failed to prove appellant conveyed confidential information to her attorney in return for waiver of his consultation fee. In re Catalina,(PDF, 656KB) CSA 35-08, 8 (8/22/08). 

16-28 F: Failure to Comply with Lawful Orders of an Authorized Supervisor or Failing to do Assigned Work Which Employee is Capable of Performing (Former 16-60 J)

IN GENERAL 

A violation of the first part of this rule requires proof that a supervisor communicated a reasonable order and the employee violated that order under circumstances demonstrating willfulness. In re Hull(PDF, 148KB), CSA 78-18, 6 (4/12/19), citing In re Marez, CSA 58- 16, 6 (1/26/17).

The first part of this rule requires the agency to prove an authorized supervisor gave a lawful order to the employee who then failed to comply. In re Schofield(PDF, 343KB), CSA 08-17, 4 (10/9/17).

The second part of this rule cannot require success, only the application of reasonable or best efforts. In re Schofield(PDF, 343KB), CSA 08-17, 7 (10/9/17).

Failure to comply with an order requires intentional refusal of a supervisor’s authority, an act more significant than mere neglect. In re Lee,(PDF, 175KB) CSA 70-16, 4 (3/3/17), citing In re Mounjim(PDF, 495KB), CSB 87-07 (1/8/09). 

A violation of the first part of this rule requires proof that a supervisor communicated a reasonable order and the employee violated that order under circumstances demonstrating willfulness. In re Marez(PDF, 71KB), CSA 58-16, 6 (1/26/17), citing In re Macieyovski(PDF, 2MB), CSA 28-14, 6 (10/13/14).

An order is a communication that clearly requires an employee to take certain action. In re Jackson(PDF, 180KB), CSA 21-15, 7 (1/15/16).

An order must convey to a reasonable person what is intended, including the action that is required to be taken. In re Jackson,(PDF, 180KB) CSA 21-15, 7 (1/15/16).

The nature of the conduct in question may support a finding of willfulness. In re Macieyovski(PDF, 2MB), CSA 28-14, 6 (10/13/14), citing In re Redacted, CSB 56-11, 3 (12/20/12). 

Misconduct targeted by this rule is different from the mere failure to perform job duties in that knowing disobedience to an order indicates intentional refusal of a supervisor’s authority, a more serious offense, than mere neglect. In re Macieyovski(PDF, 2MB), CSA 28-14, 6 (10/13/14).

An order under this rule includes any words conveying to a reasonable employee that the conduct at issue is mandatory. In re Macieyovski(PDF, 2MB), CSA 28-14, 6 (10/13/14).

A work assignment, under the second phrase in this rule, is general and occurs in the ordinary course of an employee’s duties. An order under the first phrase in this rule is a specific directive from a supervisor to a subordinate. In re Macieyovski(PDF, 2MB), CSA 28-14, 7 (10/13/14).

Under this rule, the employee must have notice that a supervisor’s direction is intended as a direct order of specific behavior, without which intent to refuse cannot be inferred. In re Macieyovski(PDF, 2MB), CSA 28-14, 7 (10/13/14).

A broad interpretation of this rule that prohibits any neglect of duty as a failure to comply with an order is inconsistent with the tenets of statutory interpretation, that the language in the rule is presumed to mean something. In re Macieyovski(PDF, 2MB), CSA 28-14, 7 (10/13/14), citing Colo. Water Conservation Bd. v. Upper Gunnison R. Water Conservancy Dist., 109 P.32 585 (Colo. 2005).

Under the second section of this rule, an employee is prohibited from failing to do assigned work which he is capable of performing. In re Vega(PDF, 1MB), CSA 12-14, 3 (7/3/14), citing In re Mounjim(PDF, 1MB), CSA 87-07, 7 (7/10/08), aff’d In re Mounjim(PDF, 495KB), CSB 87-07 (1/8/09).  

The second part of this rule prohibits a failure to perform a specifically-assigned duty rather than the general work of a position. In re Vega(PDF, 1MB), CSA 12-14, 3 (7/3/14), citing In re Mounjim(PDF, 1MB), CSA 87-07, 7 (7/10/08). 

Order to handle staff communications with sensitivity and respect constitutes a valid, reasonable order to act in a certain way, or to refrain from acting in ways inconsistent with the concepts of dignity and respect. In re Redacted, CSB 56-11, 2 (12/20/12). 

Board adopts a common-sense definition of "willful." In re Redacted, CSB 56-11, 3 (12/20/12). 

Circumstances demonstrating willfulness are those demonstrating that the action was taken intentionally, knowingly, or voluntarily, without justifiable excuse. In re Redacted, CSB 56-11, 3 (12/20/12) citing Black's Law Dictionary, Fifth Edition, p. 1434. 

A finding of willfulness does not require an admission, but can often be inferred from the conduct in question. In re Redacted, CSB 56-11, 3 (12/20/12), citing U.S. v. Guidry, 199 F.3d 1150 (10th Cir. 1999), N.A.S. Import Corp. v. Chenson Enterprises, 968 F.2d 250, 252 (2nd Cir. 1992). 

The existence of a written policy does not constitute a supervisory order to perform a task consistent with this rule. A separate rule addresses such circumstance. In re Jackson, CSA 39-10, 8 (10/7/10).  

A PIP constitutes the direct order of an authorized supervisor under this rule. In re Abbey(PDF, 3MB), CSA 99-09, 8 (8/9/10).

This rule targets the failure to perform work, rather than work done in an inadequate or improper manner. In re D’Ambrosio, CSA 98-09, 7 (5/7/10).

This rule contains two discrete violations: failure to comply with an order and failure to perform assigned work, whether or not under direct order. In re Clayton, CSA 111-09, 7 (4/6/10).

Supervisor's directive need not be prefaced with words like "I order you" to be the lawful order of a superior. In re Norman-Curry, CSA 28-07 & 50-08, 9 (2/27/09). 

The objectives of a PIP are not served without clear communication to the employee about what management expects. In re Mounjim,(PDF, 1MB) CSA 87-07, 8 (7/10/08), affirmed  In re Mounjim,(PDF, 495KB) CSB 87-07, 3 (1/8/09). 

To establish failure to comply with orders, agency must prove proper instructions were provided, and appellant knew of those instructions, but failed to follow them. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 27 (5/30/08), citing In re Vigil,(PDF, 477KB) CSA 110-05, 5 (3/3/06); In re Trujillo(PDF, 625KB), CSA 28-04, 10 (5/27/04).

Proof of intent to disobey order may be established by circumstantial evidence. In re Diaz(PDF, 432KB)CSA 13-06, 5 (5/31/06) (decided under former CSR 16-50 A.7), citing In re Owens(PDF, 9MB), CSA 139-04, 7 (3/31/05).

Agency must demonstrate that 1) someone with proper authority within the agency gave an order to appellant; 2) the order was reasonable; 3) appellant had reasonable notice of the order; 4) appellant was capable of complying; and 5) appellant refused to comply. In re Hernandez(PDF, 755KB)CSA 03-06, 4 (5/3/06) (decided under former §16-50 A. 7), citing In re Trujillo,(PDF, 625KB) CSA 28-04, 9-10 (5/27/04); In re Martinez, (PDF, 3MB)CSA 19-05, 6 (6/27/05); In re Conway, CSA 40-05, 3 (8/16/05).

FOUND 

Through its 2018 Performance Evaluation & Expectations Plan, Hazard training, and various counseling sessions with Appellant’s supervisor, the Agency communicated reasonable orders to him that he serve as a subject matter expert on its software, work and provide leadership at the counter the majority of his time, and train his subordinates; and through direct orders from his supervisor, that he perform the Office inventory personally and enforce the new policy against scheduled breaks. In re Hull(PDF, 148KB), CSA 78-18, 2, 4-5 (4/12/19).

Appellant failed to comply with lawful orders when he did not: (1) provide necessary leadership at the service counter, especially during a fire alarm, (2) perform the Office inventory, (3) enforce the policy eliminating scheduled breaks, and (4) become expert on Agency software and train his team on it. In re Hull(PDF, 148KB), CSA 78-18, 7-9 (4/12/19).

Employee who disregarded order to work mandatory overtime violated both sections of this rule by failing to comply with an order and failing to do assigned work she could perform. In re Colquitt(PDF, 3MB)CSA 34-15, 4 (10/30/15).

Appellant violated CSR 16-29F where she failed to collect payment from a customer who hosted a party at a City Center and to monitor the activities of the guests and some of them entered restricted areas of the Center. In re Rodriguez(PDF, 211KB), CSA 60-17, 4 (2/5/18), rev’d on other groundsIn re Rodriguez(PDF, 2MB), CSB 60-17A (9/20/18). 

Violation established where supervisor directed appellant to obtain records “ASAP,” and followed up twice with urgent emails.  Appellant’s disagreement with the need for the records was largely irrelevant; her claim that another case took precedence and that another investigator had also failed to obtain the records were unavailing, due to her failure to communicate these issues. In re Schofield(PDF, 343KB), CSA 08-17, 5 (10/9/17).

Appellant’s absences and failure to submit her Kronos time card in a timely manner were failures to comply with her supervisor’s orders to arrive by 9 am and approve her Kronos by 10 am on the last day of the pay period. In re Martinez(PDF, 261KB), CSA 10-17, 5 (7/19/17). 

Violation of second part of this rule established where appellant admitted she understood post order requiring her to conduct twenty-four rounds during her shift, but only conducted fourteen. Appellant’s justification, that other duties prevented full compliance, was unpersuasive where she acknowledged she had other options such as seeking a relief officer or calling a supervisor. In re Barra(PDF, 38KB), CSA 1-16, 3 (3/10/17).

Violation established, where Appellant had been under Performance Improvement Plan to pay close attention to shift scheduling, making accurate and informed staff briefings, and to pay attention to inventory of subordinates’ booths, but continued to perform those duties deficiently. In re Johnson(PDF, 234KB), CSA 11-16, 4 (5/26/16).

Operations supervisor failed to comply with his supervisor’s order and failed to do assigned work where supervisor instructed him to inspect manhole and to prepare proper equipment for a demonstration, but he did neither. In re Lucero,(PDF, 173KB) 58-15, 4-5 (4/12/16).  

Appellant violated portion of this rule to do assigned work where he failed to change filters as required on eight occasions, failed to perform repairs, neglected to clean his work area and made inadequate notes on his work orders. In re Macieyovski(PDF, 2MB), CSA 28-14, 7 (10/13/14).

Appellant failed to obey a lawful order by her supervisor to complete a virtual patient transfer when she refused to do so without first reviewing the approval form. In re Black(PDF, 2MB), CSA 03-14, 4 (6/9/14).

Neither fear of being blamed in an audit nor her reservations about the accuracy of her co-worker's approval form justified a caseworker's failure to complete a virtual patient transfer. In re Black(PDF, 2MB), CSA 03-14, 4 (6/9/14).

Case management coordinator violated performance standard to treat all customers with dignity and respect when she said “I can’t handle it,” referring to client’s physical appearance, loudly enough for clients and nearby co-workers to hear. In re Perry-Wilborne(PDF, 2MB), CSA 62-13, 7 (5/22/14).

Appellant’s refusal to return his old uniforms unless shown a rule that required their return was direct evidence that his delay in returning the uniforms was willful. In re Macieyovski(PDF, 2MB), CSA 55-13, 4 (4/1/14).

Appellant violated a direct order to return his old uniform when he did not return it by the date ordered. In re Macieyovski(PDF, 2MB), CSA 55-13, 4-5 (4/1/14).

Appellant’s claim that he was not obligated to turn in old uniforms because, in the absence of written rule or ordinance, he became owner, was without merit since the City Charter authorizes a manager to administer his or her agency by issuing orders necessary and prudent to accomplish agency mission. In re Macieyovski(PDF, 2MB), CSA 55-13, 5 (4/1/14).

Violation proven where appellant was directed in a PIP to be respectful but she refused to participate in meetings, refused to reply to legitimate directives and, when she did respond, was disrespectful. In re Robinson(PDF, 3MB), CSA 03-13, 9 (6/18/13). 

Appellant’s refusal to comply with directive to leave her door open was violation of this rule. In re Robinson(PDF, 3MB), CSA 03-13, 8 (6/18/13). 

Violation established by appellant’s acknowledgment that she had been directed not to attach her personal laptop to city monitor, yet continued to do so. In re Robinson, CSA 03-13, 4-5 (6/18/13). 

Appellant’s explanation for defying supervisor’s order not to attach her personal computer to City monitor - because she had no work assigned – was irrelevant to her unauthorized use of City’s monitor in violation of this rule. In re Robinson, CSA 03-13, 7 (6/18/13). 

Appellant’s explanation for defying supervisor’s order not to attach her personal computer to City monitor – to monitor ill sister’s medical needs – was unpersuasive where she never mentioned the need before hearing, had not explained it to her supervisor, and never mentioned it in her extensive note-taking. In re Robinson, CSA 03-13, 8 (6/18/13). 

Appellant’s refusal to comply with supervisor’s order to accompany her to HR for processing to investigatory leave was violation of this rule where Appellant’s reason for defying order, and entering three secured areas unlawfully, was to seek boxes for her plants. In re Robinson(PDF, 3MB), CSA 03-13, 8 (6/18/13).

Agency proved appellant willfully violated this rule by her failure to give priority to assignment as ordered by her supervisor based on her belief that all her work should be given equal priority. In re Serna(PDF, 96KB), CSA 39-12, 8 (5/23/13). 

Hearing officer did not misinterpret this rule by finding that supervisor disobeyed the order to handle staff communications with sensitivity and respect based on evidence of her angry confrontation with 1 employee and assignment of extra work to other employees just to be, in her words, "an asshole." In re Redacted, CSB 56-11, 2-3 (12/20/12). 

Appellant snow plow driver failed to perform work of which he was capable where GPS tracking data proved his plow did not move during time he claimed to have been plowing. In re Gomez(PDF, 4MB), CSA 02-12, 5 (5/14/12). 

Appellant violated this rule, where his supervisor reasonably instructed him to apologize to his co-worker for his conduct in a negative interaction, emphasizing that Appellant need not admit guilt, and Appellant refused to comply. In re Weiss(PDF, 3MB), CSA 68-10, 9 (2/14/11).      

The Agency established appellant violated this rule by willfully continuing to make up time by working late after her supervisor forbade it. In re Rodriguez(PDF, 6MB), CSA 12-10, 8 (10/22/10). 

Call-center agent failed to comply with the lawful orders of her supervisor, where her supervisor explicitly restricted her from taking unauthorized breaks, when she left her workstation, and the following day, she took an unauthorized break. In re Jackson, CSA 39-10, 8 (10/7/10).    

DIA equipment operator willfully failed to comply with his supervisor’s reasonable order where he was prohibited from making contact with the City or using the City’s network, yet he used his employee email account seventeen times over a two-month period. In re Cotton, CSA 104-09, 9 (10/18/10).  

DIA plumber failed to comply with the lawful orders of an authorized supervisor where he ignored the third day of a mandatory snow callout during a snowstorm, despite the critical nature of his duties and his knowledge of emergency snow policies. In re Duran, CSA 10-10, 11 (10/1/10).    

Appellant’s generic claim that he was singled out unfairly was not a defense to his failure to comply with an order in his PIP to be at his work station no later than the beginning of his shift, a policy that applied to all staff, where he had a history of tardiness and he was given several reminders by his supervisors. In re Abbey(PDF, 3MB), CSA 99-09, 8 (8/9/10).

Violation of first part of this rule is established where appellant’s supervisor gave direct order to remain in his work area, appellant acknowledged order and then immediately breached it. In re Norris(PDF, 2MB), CSA 68-09, 6 (7/12/10).

By arriving late and disappearing for substantial periods during his shift, appellant failed to perform his assigned tasks. In re Norris(PDF, 2MB), CSA 68-09, 6 (7/12/10). 

Project manager willfully failed to comply with order to cease threatening and hostile communications with contractors when she demanded detailed financial information or she would engage the resources of the city attorney, accounting department and auditor, while acknowledging that her supervisor was not in agreement with the demand and her demand could not be circumvented by others. In re Harrison(PDF, 4MB), CSA 55-07, 89-07 & 90-07, 50 (6/17/10).

Employee willfully failed to comply with order to send director a contract issues log when she instead sent emails and copies of the contracts themselves, and did not send log until three weeks later, requiring her supervisor, in order to avoid further delay, to discuss the issues with the contractor without the log. In re Harrison(PDF, 4MB), CSA 55-07, 89-07 & 90-07, 51 (6/17/10).

A supervisor’s explicit directive forbidding overtime for attending after-work meeting was a lawful order under this rule. In re Clayton, CSA 111-09, 7 (4/6/10).

Appellant’s claim for overtime pay to attend after-work meetings was a failure to comply with an order prohibiting overtime for meetings where she evaded the order by submitting it to a fill-in supervisor, claimed the order was ambiguous, and changed her explanation several times. In re Clayton, CSA 111-09, 6 (4/6/10).

Supervisor failed to do assigned work where he engaged in personal business and went home during working hours instead of supervising and meeting with his crew. In re Valdez(PDF, 2MB), CSA 90-09, 6 (3/1/10). 

Appellant deputy sheriff's continued arguing with supervisor after receiving direct, lawful order prohibiting her conduct, was a violation of department order against disrespecting supervisor under this rule. In re Norman-Curry, CSA 28-07 & 50-08, 6 (2/27/09).

Appellant violated rule when he parked in restricted space using non-compliant disabled veteran license plates after being advised repeatedly of reasonable parking restrictions by his supervisors, by a friend, and after being given a warning for a first violation. In re Owens(PDF, 469KB), CSA 69-08, 3-4 (2/6/09). 

The first element of this violation, communication of a reasonable order by a supervisor, is proven by appellant’s acknowledgment he received pertinent handbook containing parking instructions, in conjunction with supervisor’s directives on parking restrictions at appellant’s orientation. In re Owens(PDF, 469KB), CSA 69-08, 4 (2/6/09). 

The second element needing proof, violation of a supervisor’s order, was established: where appellant claimed his disabled veteran plates should allow him to park in restricted space, but he did not dispute agency evidence that such plates do not meet its requirements; appellant claimed he had a valid handicap placard, but his claim was rebutted by his own friend as well as other employees; appellant claimed agency supervisor told him he could park in restricted space, but supervisor rebutted that testimony and appellant raised claim only after pre-disciplinary meeting. In re Owens(PDF, 469KB), CSA 69-08, 4-5 (2/6/09). 

The third element proven, circumstances demonstrating willfulness, was established where appellant claimed he was unaware of parking restrictions but: he acknowledged having received supervisor’s letter explaining parking restrictions; parking restrictions were explained to him on his first day of work; he never asked for parking accommodations before being cited; he disregarded his friend’s warning about parking in disabled space; and even after supervisor showed appellant where he could park, appellant parked in handicap space the next day. In re Owens(PDF, 469KB), CSA 69-08, 5 (2/6/09).  

Supervisor’s orders to sever ties with outside employer within ninety days, request written permission to compete with employer, and require an employee not to renew contract with outside employer were reasonable regulation of outside employment. In re Sawyer & Sproul(PDF, 1MB), CSA 33-08 & 34-08, 9-10 (1/27/09), citing Dalton v. City of Russellville, 720 S.W. 2d 918 (1986); Johnson v. Trader, 52 So. 2d 33 (Fla. 1951); Phillips v. Hall, 447 N.E. 2d 418 (D. Ill. 1983); 72 A.L.R. 5th 671 (1998).

Conflict of interest that arose as a direct result of appellants’ failure to obey order demonstrated the reasonableness of the order that was designed to prevent the conflict. In re Sawyer & Sproul(PDF, 1MB), CSA 33-08 & 34-08, 10 (1/27/09). 

Appellants’ willful failure to withdraw from a contract after being ordered to do so violated this rule where the agency’s later contract with the same party required the agency to cooperate with Appellants, resulting in a conflict of interest the order was designed to avoid. In re Sawyer & Sproul(PDF, 1MB), CSA 33-08 & 34-08, 10 (1/27/09). 

Where supervisor approved training leave on the condition that appellant submit a leave slip, appellant violated her supervisor's order by attending training without submitting the leave slip. In re Williams,(PDF, 377KB) CSA 53-08, 5-6 (12/19/08).

Appellant with ongoing attendance issues who was specifically ordered to comply with timely punch-in policies violated supervisor's order when she arrived at work timely but forgot to punch in. In re Williams(PDF, 377KB), CSA 53-08, 6 (12/19/08). 

Appellants violated orders by exceeding agency's limit of two-mile radius for traveling to lunch in an agency vehicle. In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-08, 17 (12/15/08). 

Appellant failed to comply with his supervisor’s orders by leaving campus during work hours and taking long breaks and lunch hours. In re Galindo(PDF, 780KB), CSA 39-08, 12 (9/5/08).

Agency proved that appellant failed to perform assigned work when she spent four hours on an unnecessary trip away from her work site. In re Blan, CSA 40-08, 5 (7/31/08).

Agency proved supervisor failed duty to oversee subordinates’ submission of audit documents within thirty days, in violation of second part of this rule, where the evidence showed that supervisor had notice of this duty, was capable of performing it, and failed to train and oversee her subordinates to ensure documents were submitted within the deadline. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 27 (5/30/08).

Where HR technician’s five-month delay in processing separation documents caused customer dissatisfaction and violated PEP directive to fulfill customer service standards, agency proved violation of this rule. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 38 (5/30/08).

Where appellant was signatory to a user agreement prohibiting unauthorized access to a database but allowed an unauthorized coworker to access the database, appellant violated this rule. The user agreement was a term and condition of appellant’s work and she had been ordered to restrict the co-employee’s access. In re Chavez(PDF, 381KB), CSA 29-06, 6 (8/17/06).

Appellant refused to obey order to discuss performance issues with her supervisor after having been disciplined for similar behavior. In re Diaz,(PDF, 432KB) CSA 13-06, 5 (5/31/06) (decided under former CSR 16-50 A.7).

Appellant failed to comply with instructions to perform several routine tasks after being given reasonable notice of those instructions. In re Diaz(PDF, 432KB)CSA 13-06, 5 (5/31/06) (decided under former CSR 16-51 A.10).

Appellant intentionally ignored agency order to cease addressing female co-workers by terms of endearment, despite past discipline for same conduct. In re Hernandez(PDF, 755KB)CSA 03-06, 6 (5/3/06) (decided under former CSR 16-50 A.7).

Where supervisor continually disapproved appellant’s practice of working through lunch in order to leave early, appellant failed to comply with supervisor’s instructions to obtain prior approval of leave. In re Vigil,(PDF, 477KB) CSA 110-05, 5 (3/3/06) (decided under former CSR 16-51 A.10).

Appellant failed to comply with instructions on attendance by failing to call her supervisor two hours before start of her shift seven times, and by leaving work before the end of her shift without informing her supervisor. In re Edwards,(PDF, 444KB) CSA 21-05, 7 (2/22/06) (decided under former CSR 16-51 A.10).

Supervisor’s contemporaneous notes were more convincing than Appellant’s qualified denials in establishing that Appellant failed to comply with supervisor’s instructions to perform her clerical duties, avoid personal phone calls, and not use golf cart for deliveries. In re Diaz(PDF, 647KB), CSA 92-05, 10 (1/31/06) (decided under former CSR 16-51 A.10).

Agency established that appellant refused to obey supervisor’s order prohibiting personal phone calls by taking fifteen calls and leaving her duty station to continue a phone call. In re Diaz,(PDF, 647KB) CSA 92-05, 6 (1/31/06) (decided under former CSR 16-50 A.7).

Appellant failed to obey orders when she refused to speak with her supervisor about work issues without a union representative, limited her contact with supervisor to checking her email every hour, and did work assigned by email without replying to supervisor’s messages. In re Diaz,(PDF, 647KB) CSA 92-05, 3, 7 (1/31/06) (decided under former CSR 16-50 A.7).

Admitted failure to promptly begin assigned duty - an orientation meeting for agency clients - despite clear instructions to do so, established failure to obey order. In re Williams(PDF, 507KB), CSA 65-05, 6 (11/17/05) (decided under former CSR 16-51 A.10).

ASA II’s failure to maintain an accurate inventory of radio equipment and failure to lock up valuables despite her supervisor’s orders, established failure to comply with order. In re Diaz,(PDF, 507KB) CSA 45-05, 9 (9/7/05) (decided under former CSR 16-51 A.10).

Appellant violated his supervisor's order to cease use of unscheduled leave where the order given was reasonable based on concern for public safety, and appellant was notified many times that future noncompliance would lead to discipline, but appellant continued to take unscheduled leave. In re Conway, CSA 40-05, 3 (8/16/05) (decided under former CSR 16-50 A.7).

Appellant's violations of policy prohibiting smoking in animal areas was a refusal to comply with the orders of his supervisor. In re Schultz, CSA 156-04, 8 (Order 6/20/05) (decided under former CSR 16-50 A.7).

Where appellant was clearly ordered to pay closer attention to proper safety procedures for securing animals four months before this incident, appellant failed to comply with supervisor's instruction by failing to close a polar bear exhibit door. In re Owoeye(PDF, 3MB), CSA 11-05, 7 (6/10/05) (decided under former CSR 16-51 A.10).

Supervisor's testimony and notes that he saw appellant wearing non-uniform clothing, and counseled her after each violation, established that appellant failed to comply with uniform policy. In re Lucero,(PDF, 654KB) CSA 162-04, 9 (4/15/05) (decided under former CSR 16-51 A.10).

Where appellant took medicine he knew would make him sleepy, set his alarm for the end of his shift, and lay down on a sofa, agency proved failure to comply with instructions to load and unload trash while appellant slept. In re Owens(PDF, 9MB), CSA 139-04, 7 (3/31/05) (decided under former CSR 16-51 A.10).

Employee's statement that she was not going to process paperwork, followed by an angry exchange with her supervisor and her departure from work without permission, established refusal to obey an order in violation of rule. In re Leal-McIntyre,(PDF, 7MB) CSA 77-03, 134-03 & 167-03, 13 (1/27/05) (decided under former CSR 16-50 A.7).

Filing a complaint about performing fingerprinting duties is not a defense to a charge of refusal to complete a different duty. In re Leal-McIntyre,(PDF, 7MB) CSA 77-03, 134-03 & 167-03, 3 (1/27/05); citing In re Dollison(PDF, 747KB), CSA 64-03 (8/18/03) (decided under former CSR 16-50 A.7).

A challenge to a work assignment by means of a CSA appeal does not justify a refusal to comply with an order to perform that assignment. In re Leal-McIntyre(PDF, 7MB), CSA 77-03, 134-03 & 167-03, 13 (1/27/05) (decided under former CSR 16-50 A.7).

NOT FOUND 

It is insufficient proof under this rule to state an employee generally failed to comply with directives without identifying either a directive or the failure to accomplish it. In re Schofield(PDF, 343KB), CSA 08-17, 4-5 (10/9/17).

No violation established where supervisor’s claimed that appellant “denies simple requests and has standoffish body language” yet he failed to address those concerns with appellant, which was insufficient notice of wrongdoing. In re Schofield(PDF, 343KB), CSA 08-17, 6 (10/9/17).

No violation established by supervisors claiming appellant was “not a team player,” was “often unavailable” and frequently reacted with “pushback”, as these accusations fail to provide notice of an order to the employee to respond meaningfully. In re Schofield(PDF, 343KB), CSA 08-17, 6 (10/9/17).

No violation established where co-worker complained appellant was never available before 8:30 or after 3:30, but co-worker did not set appellant’s hours, was unaware of her work schedule, and never approached appellant about her concern. In re Schofield(PDF, 343KB), CSA 08-17, 5 (10/9/17).

No violation established where written complaint stated an unidentified person at an unidentified time asked appellant to deliver a document and appellant replied “I’m not an errand boy,” but accuser was identified only at hearing, appellant testified she did not refuse to deliver the document, stated her accuser became rule and hostile, and said a co-worker offered to deliver the document. In re Schofield(PDF, 343KB), CSA 08-17, 6 (10/9/17).

No violation established where agency engaged in “filling in the blanks” only at hearing so as to require employee guess at what to defend, in violation of CSR requirement to disclose evidence before hearing. In re Schofield(PDF, 343KB), CSA 08-17, 6 (10/9/17), citing CSR 19-43 B (former CSR 19-44 C).

No violation established where appellant-investigator refused to give up her time off to accompany a deputy DA to an inmate interview two days before trial and made no arrangements for a substitute, but appellant’s immediate supervisor testified he understood her not wanting to come in on her day off, stated it would have been more reasonable for deputy DA to ask 2-3 days ahead, and stated appellant’s suggestion of a telephone interview was reasonable. In re Schofield(PDF, 343KB), CSA 08-17, 7 (10/9/17).

No violation of second part of this rule established where agency made no connection between any of its allegations and this rule. In re Schofield,(PDF, 343KB) CSA 08-17, 7 (10/9/17).

No violation of second part of this rule established where agency claimed appellant-investigator failed to locate a witness that another investigator located in fifteen minutes, but appellant countered, without rebuttal, that she made substantial inquiries and the other investigator found witness only because police serendipitously contacted witness just before his search. In re Schofield(PDF, 343KB), CSA 08-17, 7 (10/9/17).

No violation of second part of this rule established where common complaint was appellant-investigator did not check in or assist in the courtroom as often as she should, but no evidence indicated appellant had notice of an expectation to assist, and there was no requirement that she check in during trial, only a consensus that she was not a “team player,” and her work review rated her as “successful” in volunteering assistance when needed. In re Schofield(PDF, 343KB), CSA 08-17, 8 (10/9/17).

No violation of second part of this rule established by general “expectation” that appellant-investigator failed to come in to assist at trial on her time off, but her supervisors acknowledged her right to take planned time off and her right not to volunteer. In re Schofield(PDF, 343KB), CSA 08-17, 8 (10/9/17).

Supervisor’s three-day late submittal of assignment did not prove failure to comply with order or do the work where supervisor forgot the assignment in rush of other work. In re Lee(PDF, 175KB), CSA 26-16, 4-5 (3/3/17).

Agency did not prove program manager disobeyed a reasonable work order where the order was removed months before the conduct cited in the disciplinary letter. In re Fresquez(PDF, 57KB), CSA 63-16, 6 (2/24/17).

Deputy DA’s stated preference for issuance of subpoenas six to eight weeks before trial was not an order under the first phrase of this rule. In re McKisson(PDF, 39KB), CSA 69-16, 3 (1/31/17).

Late issuance of subpoenas by legal secretary does not violate second part of this rule, which targets failure to perform assigned work at all, rather than work done in an inadequate manner. In re McKisson(PDF, 39KB), CSA 69-16, 3 (1/31/17). 

No violation established where agency’s only evidence was conclusory supervisor’s statement that appellant did not do work he was capable of performing, without establishing what work he failed to do. In re Marez(PDF, 71KB), CSA 58-16, 6 (1/26/17).

The mere existence of pending work does not prove a violation of an implied order to perform that work. In re Jackson(PDF, 180KB), CSA 21-15, 7 (1/15/16).

Agency did not prove employee was capable of completing work by a certain deadline where the employee met that deadline only by setting aside all other work with the approval of her supervisor. In re Jackson(PDF, 180KB), CSA 21-15, 7 (1/15/16).

It was not clearly erroneous for hearing officer to find an order was not given where the evidence is conflicting and the finding is based upon a determination of witness credibility. In re Mitchell(PDF, 828KB), CSB 57-13, 2 (11/7/14).

No violation established where Appellant engaged in work-related experiments outside the scope of his orders, but no evidence indicated such experiments were a refusal to obey an order. In re Macieyovski(PDF, 2MB), CSA 28-14, 7 (10/13/14).

No violation of this rule found where parking magistrate obeyed directive to serve customer he initially declined to serve. In re Vega,(PDF, 1MB) CSA 12-14, 3 (7/3/14).

No violation found where parking magistrate did not decline to perform a specific directive, but simply turned back a customer referred to him in the ordinary scope of his work. In re Vega(PDF, 1MB), CSA 12-14, 3 (7/3/14). 

Work that is merely careless does not necessarily violate this rule. In re Perry-Wilborne,(PDF, 2MB) CSA 62-13, 6 (5/22/14), citing In re D'Ambrosio, CSA 98-09, 6 (5/7/10).

Although intake coordinator failed to complete intake with a client, no violation of this rule was established since work was incomplete rather than not done at all. In re Perry-Wilborne(PDF, 2MB), CSA 62-13, 6-7 (5/22/14), citing In re D'Ambrosio, CSA 98-09, 7 (5/7/10). 

No violation established where Agency claimed appellant failed to answer calls while on investigatory leave, but evidence was conflicting as to whether Agency had sought and acquired correct contact information. In re Robinson(PDF, 3MB), CSA 03-13, 8 (6/18/13). 

An employee’s failure to attend a pre-disciplinary meeting is not a violation of this rule. In re Robinson(PDF, 3MB), CSA 03-13, 8 (6/18/13). 

Call-center agent did not fail to comply with a supervisor’s order where the basis for agency’s claim was her failure to follow a written policy. In re Jackson, CSA 39-10, 8 (10/7/10).    

Where the agency presented no evidence youth worker violated a direct order in failing to intervene in resident assault, violation of this rule was not proven. In re O’Meallie, CSA 92-09, 5 (6/18/10).

Agency failed to prove employee was given notice in job description or by other means that work done with inadequate customer service was work not performed at all under this rule. In re D’Ambrosio, CSA 98-09, 7 (5/7/10). 

Allegation that appellant was careless in processing bonds does not establish that she failed to do assigned work she was capable of performing. In re Cady(PDF, 2MB), CSA 03-10, 5 (4/22/10).

Agency did not prove employee failed to comply with his supervisor's order to perform an emergency repair by responding, “in this weather?”, since employee immediately left to do the work after his supervisor confirmed his order. In re Valdez(PDF, 2MB), CSA 90-09, 5-6 (3/1/10). 

Merely uttering words that a supervisor’s order could be dangerous is insufficient to establish a good faith refusal to perform work. In re Valdez(PDF, 2MB), CSA 90-09, 6, n. 3 (3/1/10). 

Supervisor’s testimony that appellant’s notebook was unacceptable to satisfy PIP requirements did not meet agency’s burden to prove failure to comply with supervisor’s orders where appellant testified to the contrary and agency did not produce the notebook. In re Mounjim(PDF, 495KB), CSB 87-07, 5 (1/8/09). 

Where appellant was ordered to submit doctor's note to cover sick leave, and supervisor granted sick leave, agency failed to prove violation of order. In re Williams(PDF, 377KB), CSA 53-08, 6 (12/19/08). 

Where agency policy permits employees to take breaks as work allows, and appellants' total breaks were less than the permitted time, agency failed to prove violation of policy. In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-08, 17 (12/15/08). 

Minor clerical errors in daily activity log did not prove failure to comply with supervisor's order where supervisor instructed employees to use the logs to give him the general idea of where they were and what they were doing, and performance review stated employees' records were accurate and complete. In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-08, 15, 19 (12/15/08). 

Where agency deemed appellant failed to comply with supervisor’s order to complete PIP requirements, but supervisor failed to communicate PIP requirements clearly, agency failed to prove appellant violated this rule. In re Mounjim(PDF, 1MB), CSA 87-07, 7 (7/10/08), affirmed In re Mounjim(PDF, 495KB), CSB 87-07, 3 (1/8/09). 

Agency failed to prove appellant did not comply with her supervisor’s orders where agency presented no evidence that the order was communicated to appellant. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 27 (5/30/08).

Agency did not prove appellant failed to perform assigned work where agency presented no evidence that appellant should have been aware of the duty to check new hires’ names against the certification list, or that she should have been aware of that duty through common knowledge or training. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 25 (5/30/08).

Agency did not establish that city driver willfully failed to comply with his supervisor’s order against unauthorized stops where driver’s restroom stop was caused by a legitimate emergency for which he had no opportunity to request permission. In re Dessureau(PDF, 545KB), CSA 59-07, 7 (1/16/08).

Repeated failures to complete tasks because of distraction and memory lapses do not demonstrate an intention to refuse supervisor’s orders when the problems did not recur after discipline was imposed. In re Diaz,(PDF, 432KB) CSA 13-06, 5 (5/31/06) (decided under former CSR 16-50 A.7).

Appellant did not refuse to perform a duty when she did perform it at least 52% of the time, and agency did not prove appellant intended to refuse to perform any particular order to do that work. In re Diaz,(PDF, 647KB) CSA 92-05, 6 (1/31/06) (decided under former CSR 16-50 A.7).

Appellant’s absence from her desk does not, without more, prove a refusal to cover phones and gate. In re Diaz,(PDF, 647KB) CSA 92-05, 6 (1/31/06) (decided under former CSR 16-50 A.7).

Agency did not establish appellant refused her supervisor’s order to return to duty station by proving appellant stayed at location of special project to receive training. In re Diaz,(PDF, 647KB) CSA 92-05, 7 (1/31/06) (decided under former CSR 16-50 A.7).

Agency failed to prove appellant violated undersheriff’s written order restricting use of sick leave because order conflicted with Career Service Rule authorizing use of sick leave. In re Espinoza(PDF, 500KB), CSA 30-05, 7 (1/11/06) (decided under former CSR 16-51 A.5).

Employee’s failure to keep his equipment in working order, resulting in a lack of equipment to perform his duties, does not establish a willful refusal to do work. In re Hobley(PDF, 536KB), CSA 61-05, 5 (12/19/05) (decided under former CSR 16-50 A.7).

Where the agency did not offer proof that appellant deliberately damaged his computer in order to avoid work, the evidence does not support a finding that appellant refused to do assigned work. In re Hobley(PDF, 536KB), CSA 61-05, 5-6 (12/19/05) (decided under former CSR 16-50 A.7).

Where employee did not deliberately mislead the agency by stating that equipment must have been taken out of his vehicle, agency did not prove employee refused to do assigned work. In re Hobley(PDF, 536KB), CSA 61-05, 6 (12/19/05) (decided under former CSR 16-50 A.7).

Where appellant was late to an orientation session because she forgot about it, after arriving timely for 2 ½ years, refusal to comply with order was not established. In re Williams(PDF, 507KB), CSA 65-05, 5 (11/17/05) (decided under former CSR 16-50 A.7).

Agency did not prove refusal to comply with order banning use of cell phones during work hours when the policy was not communicated to appellant before the conduct that would violate it occurred. In re Williams(PDF, 507KB), CSA 65-05, 5 (11/17/05) (decided under former CSR 16-50 A.7).

Proof of numerous warnings and counseling on tardiness and absenteeism did not establish that appellant intended to refuse to comply with orders regarding attendance. In re Diaz(PDF, 507KB), CSA 45-05, 5 (9/7/05).

Where the agency did not give appellant notice of the kinds of convictions he needed to disclose, appellant's failure to list his misdemeanor convictions did not constitute disobedience to an instruction. In re Mitchell(PDF, 453KB), CSA 05-05, 8 (6/27/05) (decided under former CSR 16-51 A.10).

When agency failed to provide reasonable notice to appellant as to which of four instructions she was to obey, agency failed to prove appellant violated this rule. In re Martinez(PDF, 3MB), CSA 19-05, 6 (6/27/05) (decided under former CSR 16-50 A.7).

Employee's refusal to sign an acknowledgement that she received a notice was not a refusal to obey an order, since the notice appeared to request a voluntary signature, and there was no evidence she had been ordered to sign it. In re Lucero(PDF, 654KB), CSA 162-04, 9-10 (4/15/05) (decided under former CSR 16-50 A.7).

Agency did not prove that employee refused to obey an order by failing to obtain needed supplies, since the evidence did not indicate the failure was intentional. In re Lucero,(PDF, 654KB) CSA 162-04, 10 (4/15/05) (decided under former CSR 16-50 A.7). 


16-28 G: Failure to Meet Established Standards of Performance or Failure to Correct an Unacceptable Performance Rating (Former 16-60 K)

IN GENERAL 

A violation of this rule is established by evidence of (1) an established standard; (2) clear communication of the standard; and (3) employee’s failure to meet the standard. In re Hull(PDF, 148KB), CSA 78-18, 6 (4/12/19), citing In re Schofield, CSA 08-17, 8 (10/9/17).

A violation of this rule is established by evidence of (1) an established standard; (2) clear communication of the standard; and (3) employee’s failure to meet the standard. In re Schofield(PDF, 343KB), CSA 08-17, 8 (10/9/17), citing In re Rodriguez(PDF, 6MB), CSA 12-10, 9-10 (10/22/10); In re Mounjim,(PDF, 1MB) CSA 87-07 8 (7/10/08); affirmed In re Mounjim(PDF, 495KB), CSB 87-07, 3-5 (1/8/09); In re Diaz(PDF, 507KB), CSA 45-05, 7 (9/7/05).

A Performance Improvement Plan (PIP) is not a prerequisite to disciplinary action for failure to perform assigned tasks. In re Serna(PDF, 866KB), CSB 39-12, 3 (2/21/14).

Agency stated clear performance standards for deputy manager to: support the manager's decisions for a transition, support shared services, serve as senior level advisor and leader, perform information management, and support human resources role in personal matters. In re Redacted, CSB 67-11, 5 (4/4/13).

Job specifications are not enforceable as performance standards under this rule. In re Gutierrez(PDF, 1MB), CSA 65-11, 6 (8/28/12).

An employee is in violation of this rule if she fails to meet an established and communicated standard of performance. In re Roberts, CSA 40-10 & 48-10, 11 (11/15/10), citing In re Mounjim(PDF, 1MB), CSA 87-07, 8 (7/10/08).

Performance standards may be found in a performance evaluation, or in its policies and procedures. In re Rodriguez(PDF, 6MB), CSA 12-10, 10 (10/22/10), citing  In re Routa(PDF, 2MB), CSA 123-04, 3 (1/27/05).   

Aspirational goals do not constitute enforceable standards. In re Rodriguez(PDF, 6MB), CSA 12-10, 11 (10/22/10).

Where the Agency failed to give notice in the pre-disciplinary letter to equipment operator that he failed to maintain collaborative working relationships, testimony establishing a violation of that standard may not be used to support discipline under that rule. In re Cotton, CSA 104-09, 9 (10/18/10). 

In order to prove an employee violated police department attendance policy, and therefore abused leave in violation of rule, the agency must prove (1) it established an attendance standard; (2) it clearly communicated that standard to the employee; and (3), the employee failed to meet that standard. In re Rock, CSA 09-10, 5 (10/5/10), citing In re Mounjim(PDF, 495KB)CSB 87-07, 8 (1/8/09).

Standards of performance that give an employee clear notice of the standard imposed and the nature of conduct that would violate the standard are enforceable by discipline. In re Duran, CSA 10-10, 11 (10/1/10), citing In re Lottie(PDF, 275KB), CSA 132-08, 4 (3/9/09).     

An employee who receives an overall PEPR rating of “forced Meets Expectations” or better may violate this rule where the evidence showed he failed to meet his performance standards. In re Abbey(PDF, 3MB), CSA 99-09, 9 (8/9/10).

Aspirational standard in performance evaluation does not provide enforceable measure under this rule. In re O’Meallie, CSA 92-09, 5 (6/18/10).

Agency must give employees notice of what standard it is using to measure performance deficiencies. In re Cady(PDF, 2MB), CSA 03-10, 5 (4/22/10), citing In re Mounjim(PDF, 495KB), CSB 87-07, 4 (1/8/09).

Broad policy statements found in some PEPR standards are generally unenforceable as disciplinary rules because they fail to provide notice of the measures used to determine compliance. In re Valdez(PDF, 2MB), CSA 90-09, 6 (3/1/10).

This rule covers performance deficiencies that can be measured by qualitative or quantitative standards, such as those found in a performance evaluation. In re Lottie(PDF, 275KB), CSA 132-08, 4 (3/9/09); citing In re Castaneda(PDF, 851KB), CSA 79-03, 12 (1/12/04). 

Principles of fairness require that changes in management’s expectations be clearly communicated even to a long-term employee. In re Mounjim,(PDF, 495KB) CSB 87-07, 4 (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,(PDF, 495KB) 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(PDF, 1MB), CSA 87-07 (7/10/08), affirmed In re Mounjim,(PDF, 495KB) CSB 87-07, 3 (1/8/09). 

An employee’s failure to meet established standards of performance is proven by evidence of 1) a prior-established standard; 2) clear communication of that standard to the employee; and 3) the employee’s failure to meet that standard. In re Mounjim(PDF, 1MB), CSA 87-07, 7 (7/10/08), citing In re Diaz(PDF, 507KB), CSA 45-05, 6 (9/7/05).

When employees are placed on a PIP, agencies are obligated to identify and clearly communicate the deficiency and the standard by which compliance will be measured at 2 stages: 1) when the PIP is issued, and 2) when the agency deems compliance deficient, so as to provide the employee a meaningful opportunity to respond to performance-based discipline. In re Mounjim(PDF, 1MB), CSA 87-07, 8 (7/10/08).

When a PIP is issued, the agency must identify specific weaknesses the employee is expected to address, must identify specific actions the employee must take in order to meet performance standards stated in the PIP, and must provide a timeline during which the employee is expected to complete the designated actions. In short, the PIP must answer the questions “what,” “how,” and “when.” In re Mounjim(PDF, 1MB), CSA 87-07, 8 (7/10/08).

A clear communication standard applies to the agency when it deems the employee’s PIP compliance was so deficient that discipline is appropriate. In re Mounjim(PDF, 1MB), CSA 87-07, 8 (7/10/08).

Where a supervisor requires a subordinate to use a certain format to demonstrate compliance with performance objectives, the agency must provide such format to the employee. In re Mounjim(PDF, 1MB), CSA 87-07, 12 (7/10/08).  

Where agency’s evidence is rebutted by appellant, and no other objective evidence proved a violation, the agency fails to establish a violation by a preponderance of the evidence. In re Mounjim(PDF, 1MB), CSA 87-07, 14 (7/10/08).

This rule differs from neglect of duty or carelessness in that it focuses on objective measures of performance rather than on the employee’s performance or failure to perform. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 18-19 (5/30/08).

In a departure from the earlier forms of CSR 16-60 K., this version requires the agency to cite a specific standard the employee failed to meet. Thus, the mere recitation of wrongdoing will no longer suffice to prove a violation. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 19 (5/30/08).

Agency must prove standard for audit errors which gives employee notice what conduct is proscribed in order to establish violation of this rule. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 19 (5/30/08).

This rule requires an agency to cite the specific qualitative or quantitative standards appellant failed to meet, such as the standards one would find in a performance evaluation. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 38 (5/30/08), citing In re Castaneda(PDF, 851KB), CSA 79-03, 12 (1/12/04).

Performance standards may be found in a performance evaluation, classification description, or in an agency or division’s policy and procedures. In re Dessureau,(PDF, 545KB) CSA 59-07, 7 (1/16/08), citing In re Routa,(PDF, 2MB) CSA 123-04, 3 (1/27/05).

This rule requires proof that appellant failed to meet a performance standard connected to his job. In re Dessureau,(PDF, 545KB) CSA 59-07, 7 (1/16/08), citing In re Owoeye,(PDF, 3MB) CSA 11-05, 5 (6/10/05).

Failure to meet established standards of performance is proven by evidence of 1) a prior-established standard; 2) clear communication of that standard to the appellant; and 3) appellant’s failure to meet that standard. In re Diaz(PDF, 507KB), CSA 45-05, 6 (9/7/05), citing Pabst v. Industrial Claim Appeals Office, 833 P.2d 64, 64-65 (Colo.App. 1992); In re Routa,(PDF, 2MB) CSA 123-04, 3 (1/27/05).

This provision covers performance deficiencies that can be measured by either qualitative or quantitative standards, such as in a performance evaluation, in a classification description, or in an agency or division's policy and procedures. In re Routa(PDF, 2MB), CSA 123-04, 3 (1/27/05), citing In re Cedillo,(PDF, 883KB) CSA 130-02 & 85-02 (12/18/02).

FOUND 

Agency established standards for Appellant in his 2018 Performance Evaluation & Expectations Plan, that he become a subject matter expert on its software, train his subordinates on the software, and work and provide leadership at the counter the majority of his time; and through a direct order from his supervisor, that he perform the Office inventory personally and enforce the Office policy against scheduled breaks. In re Hull(PDF, 148KB), CSA 78-18, 4, 7-8 (4/12/19).  

Appellant’s claim that co-worker recommended that he disregard supervisor’s directive that he perform the Office inventory personally could not be a defense to his violation of this Rule since the co-worker lacked authority to supersede the supervisor’s directive. In re Hull(PDF, 148KB), CSA 78-18, 8 (4/12/19).

Appellant failed to meet established standards of performance when he ignored the service counter, especially during a fire alarm, did not learn the Agency software or train his team on it, delegated the Office inventory to an unqualified subordinate, and did not enforce the Office policy on breaks, after his 2018 Performance Evaluations and Expectations Plan required him to master the software, provide leadership at the counter a majority of his time, and train his subordinates, and his supervisor ordered him to conduct the inventory personally and enforce the Office policy on breaks. In re Hull(PDF, 148KB), CSA 78-18, 7-9 (4/12/19).

Appellant violated CSR 16-29G.1 where she joined a customer’s unpaid party at a City Center which she had authorized, meanwhile she also received City compensation for being present at the Center when she otherwise should not have been working. In re Rodriguez(PDF, 211KB), CSA 60-17, 5 (2/5/18), rev’d on other groundsIn re Rodriguez(PDF, 2MB), CSB 60-17A (9/20/18).

The Agency proved appellant violated CSR 16-29 G.1. (Failure to Meet Standards) [now 16-28G1], through his damage to his supervisor’s car in violation of the City’s STARS value of Safety, as it established the sufficiently specific standard of Safety, which it clearly communicated to him. In re Coates(PDF, 160KB), CSA 9-18 & 18-18, 8 (12/19/18).

Agency properly disciplined appellant for violations of performance standards even though it could not discipline her for generally-related STARS values. In re Hinojosa(PDF, 166KB), CSA 33-18, 9 (11/29/18), citing In re Rodriguez(PDF, 6MB), CSA 12-10, 10 (10/22/10); In re Routa(PDF, 2MB), CSA 123-04, 3 (1/27/05).

Violation established where many subordinates complained supervisor refused to help with customers, in violation of her PEP standard, even when they were extremely busy, and appellant-supervisor had no basis to rebut their credibility other than an unsubstantiated conclusion that they conspired against her. In re Burdett(PDF, 220KB), CSA 28-17, 4 (2/13/18).

Violation of supervisor’s PEP standard to treat co-workers with respect established where supervisor provided testimony of several witnesses who found her accessible, but that testimony was consistent with widespread complaints of favoritism and appellant did not undermine their credibility regarding her abuse. In re Burdett(PDF, 220KB), CSA 28-17, 4 (2/13/18).

Violation of PEP standard to train and support new employees established where supervisor failed to support new subordinate who continued to make mistakes through no fault of his own, and whose probation was, consequently, required to be extended. In re Burdett,(PDF, 220KB) CSA 28-17, 4 (2/13/18).

Violation of PEP standard to support staff established where Agency standard was to process license plate title receipts within 48 hours, and a subordinate provided over one-hundred title receipts to supervisor over several months, but supervisor processed only one and ignored the rest, resulting in possible license holds against citizens. In re Burdett(PDF, 220KB), CSA 28-17, 4 (2/13/18).

Violation established where appellant-investigator failed to store weapons/evidence in conformance with PEP standard requiring “keeping it secured appropriately and maintaining a proper chain of custody. In re Schofield(PDF, 343KB), CSA 08-17, 12 (10/9/17).

Violation established by appellant’s admission she raised her middle finger at a person. In re Garcia(PDF, 112KB), CSA 35-17, 4 (10/4/17).

Violation of performance standard established where professionalism required with no valid complaints, and appellant-vehicle boot investigator: left scene of confrontation with citizen then returned to re-engage in the confrontation; shouted at and antagonized citizen by feigning inability to hear him; spoke in demeaning manner; failed to provide citizen with reasonable and repeated requests for identification and to call supervisor; approved, then withdrew permission for citizen to park in invalid parking space; lurched forward his city vehicle toward citizen when citizen photographed appellant’s license plate. In re Espinoza(PDF, 168KB), CSA 73-16, 5 (4/14/17).

Violation of performance standard to act professionally at all times established where appellant claimed lack of training how to handle confrontations, but his supervisor credibly testified such training is continuous, ongoing, he engaged in one on one training with appellant, and appellant admitted his obligation “to provide a good rapport with the public. In re Espinoza(PDF, 168KB), CSA 73-16, 6 (4/14/17).

Program manager failed to treat others respectfully and promote positive working relationships based on her observable favoritism, crude insults and inappropriate physical contact, all negatively affecting the cadet team. In re Fresquez,(PDF, 57KB) CSA 63-16, 6 (2/24/17).

Program manager failed to submit accurate time sheets based on her false recording of overtime hours. In re Fresquez,(PDF, 57KB) CSA 63-16, 7 (2/24/17).  

Violation established where appellant’s performance was substantially below clearly-stated expectations. In re Marez(PDF, 71KB), CSA 58-16, 7 (1/26/17).

Violation established where appellant’s failure to account for the absence of a subordinate, and failure to follow directive to contact specified alternate supervisor, resulted in coverage deficiencies. In re Johnson,(PDF, 234KB) CSA 11-16, 4-5 (5/26/16).

Violation established where PIP specified requirement for supervisor to be accurate and prepared in his daily briefings, but he failed to determine that the cleanup of an area he specified to subordinates had been done the previous day. In re Johnson(PDF, 234KB), CSA 11-16, 3 (5/26/16).

Violation established where PIP specified requirement for supervisor to adhere to inventory controls, including ink supplies at customer service booths under his supervision, but he subsequently failed to inventory ink needs of those booths. In re Johnson,(PDF, 234KB) CSA 11-16, 4 (5/26/16).

Appellant’s PEP, which required him to “complete 95% of preventive maintenance within assigned timeframe in accordance with the manufacturers and City standards” provided an enforceable performance standard under this rule. In re Macieyovski(PDF, 2MB), CSA 28-14, 7 (10/13/14).

Violation established where appellant was under clear standard to change HVAC filters every six months and he met that standard in less than 50% of his work orders. In re Macieyovski(PDF, 2MB), CSA 28-14, 7 (10/13/14).

Case management coordinator violated performance standard to treat all customers with dignity and respect when she said “I can’t handle it,” referring to client’s physical appearance, loudly enough for clients and nearby co-workers to hear. In re Perry-Wilborne(PDF, 2MB), CSA 62-13, 7 (5/22/14).

Deputy manager violated her performance standard to support her manager's decisions by continuing to argue after decisions were made, criticizing an employee for taking an assignment from the manager, and attempting to force employees to choose sides between her and the manager. In re Redacted, CSB 67-11, 5-6 (4/4/13).

Considerable and undisputed evidence supports the hearing officer's finding that supervisor did not meet her performance standard to submit PEPRs in a timely and meaningful fashion, despite her knowledge that her PEPR required her to do so. In re Redacted, CSB 56-11, 3 (12/20/12).

Appellant failed to meet established standards of performance to 1) serve as an effective representative of the organization; 2) treat all people with dignity, respect, tact, and sensitivity; 3) deal with anger, frustration, and disappointment maturely; 4) listen to others and seeking acceptable solutions; 5) take responsibility for conduct; 6) demonstrate good interpersonal relations; and 7) demonstrate a positive approach to addressing problems where: the standards were clearly stated in his PEPR: his supervisor held biweekly meetings regarding these performance standards; appellant reacted with rage and defiance in an exchange with his supervisor; and appellant invaded a co-worker’s cubicle space while the co-worker was in the middle of an assigned task. In re Weiss(PDF, 3MB), CSA 68-10, 9-10 (2/14/11).

Judicial assistant failed to meet an established performance standard of having no more than two justified complaints a year, where she acknowledged her errors caused the court to charge additional filing fees, delayed legal remedies, and causeda default judgment to issue in error. In re Roberts, CSA 40-10 & 48-10, 11 (11/15/10).   

Judicial assistant failed to meet an established performance standard to provide collaborative, constructive and proactive customer service, with no more than two justified complaints a year, where her seven work errors in two months led to four complaints by attorneys or accounting clerks. In re Roberts, CSA 40-10 & 48-10, 11 (11/15/10).     

Judicial assistant failed to meet an established performance standard for correspondence where she made fourteen correspondence mistakes within a six-month period. In re Roberts, CSA 40-10 & 48-10, 11-12 (11/15/10).    

Appellant violated her PEPR service standard to return client phone calls within forty eight hours and to be proactive in meeting their needs, when her voice mailbox was full on three dates, and clients had called repeatedly without response. In re Rodriguez(PDF, 6MB), CSA 12-10, 10 (10/22/10).

Appellant violated agency service standard to achieve accurate and timely outcome to her cases where her cases were reassigned because she failed to work them correctly or at all. In re Rodriguez(PDF, 6MB), CSA 12-10, 12 (10/22/10).

Appellant violated agency standard to retrieve voicemails daily where her voice mailbox was full on three separate dates. In re Rodriguez(PDF, 6MB), CSA 12-10, 12 (10/22/10).

Appellant violated agency standard to act timely on her cases where she did not reply to numerous faxes and failed to mail ten to fifteen termination certificates. In re Rodriguez(PDF, 6MB), CSA 12-10, 12 (10/22/10).

Appellant case manager violated acknowledged agency requirement to complete case reviews pursuant to state and federal standards where she failed to complete eight redeterminations of eligibility. In re Rodriguez(PDF, 6MB), CSA 12-10, 12-13 (10/22/10).

Call-center agent failed to meet performance standards to identify and meet caller needs, work with the caller to help her solve the problem, and develop a constructive relationship, where she ignored the caller’s nine requests to be transferred to a supervisor, engaged in a non-productive exchange that increased the caller’s frustration, and sat in silence for seventy seconds of the five minute phone call. In re Jackson, CSA 39-10, 8-9 (10/7/10). 

DIA plumber failed to meet standards of performance where he was required to know his leave balance before taking leave, and to participate in mandatory snow removal operations, but he took excessive leave and failed to respond to a mandatory snow callout. In re Duran, CSA 10-10, 11 (10/1/10).    

Youth counselor violated this rule in failing to maintain line of sight in an incident where a youth in his charge was injured in a fight he did not observe, where keeping line of sight was an important safety duty, and he was reminded of its importance during previous discipline. In re Abbey(PDF, 3MB), CSA 99-09, 9 (8/9/10), citing In re Castaneda(PDF, 851KB), CSA 79-03, 12 (1/12/04). 

Employee who received an overall PEPR rating of “forced Meets Expectations” or better nonetheless violated this rule where he failed to meet his performance standards. In re Abbey(PDF, 3MB), CSA 99-09, 9 (8/9/10).

Appellant’s failures to abide by agency policy to call in as required and report his time accurately were violations of established performance standards. In re Abbey(PDF, 3MB), CSA 99-09, 9 (8/9/10).

Appellant breached performance standards on work effort and cooperation by his frequent and substantial tardiness and absences from the work site which caused performance problems for the rest of his crew. In re Norris(PDF, 2MB), CSA 68-09, 7 (7/12/10). 

Appellant violated her PEP standard which required effective oral communication using ideas and words appropriate to the listener and the situation, when she spoke to a customer in a loud, inappropriate and unprofessional manner, although the content of her words was appropriate and helpful, and there was no evidence of the customer's reaction. In re Lykken(PDF, 2MB), CSA 26-10, 5 (7/7/10).

Appellant violated his PEPR performance standards which required that he take responsibility for workplace safety, consider the safety of others, and implement behavior management techniques, where he failed to intervene to prevent a resident assault. In re O’Meallie, CSA 92-09, 5 (6/18/10).

Project manager failed to meet performance standards on effective communication where her supervisor was frequently required to intervene to resolve matters because project manager was defensive and failed to resolve issues, resulting in project delays and a request by the contractor that she be removed as project manager. In re Harrison(PDF, 4MB), CSA 55-07, 89-07 & 90-07, 52 (6/17/10). 

Proof that youth crisis center worker failed to conduct and document regular bed checks of the residents in her care established violation of standard of performance to observe all reporting standards. In re Carrillo(PDF, 2MB), CSA 95-09, 4 (3/16/10).

Appellant's unexcused absence violated agency standard of accountability for working a full day. In re Lottie(PDF, 275KB), CSA 132-08, 4 (3/9/09).

Appellant violated her PEPR duty to maintain a professional demeanor, on which she had received a “needs improvement” rating, by initiating and escalating a confrontation with her supervisors, thereby creating a significant risk of physical harm. In re Mounjim,(PDF, 495KB) CSB 87-07, 7 (1/8/09). 

Appellants violated department lunch policy and this rule in the absence of any agency evidence where they admitted they exceeded their lunch break by three minutes. In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-08, 17 (12/15/08). 

Agency proved appellant violated agency lunch policy where appellant admitted he exceeded one lunch period by nine minutes. In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-08, 20 (12/15/08). 

Single infraction of essential confidentiality policy violated service performance standard, given the agency’s mission and its need to give its employees quick access to confidential information to do their jobs. In re Catalina,(PDF, 656KB) CSA 35-08, 9 (8/22/08).

Appellant undermined trust among unit employees and violated teamwork performance standards in violation of this rule where she involved three employees in disclosure of confidential information, failed to report the incident to privacy officer as required by agency rule, and gave an incomplete report of the extent of the breach to her supervisor. In re Catalina,(PDF, 656KB) CSA 35-08, 9 (8/22/08).

Appellant violated agency standards of accountability and ethics to ensure confidentiality and this rule, where she accessed name of the informant in a child sexual abuse case in violation of state law and agency policy. In re Catalina,(PDF, 656KB) CSA 35-08, 10 (8/22/08).

Appellant violated agency standard of accountability and this rule where she failed to inform her supervisor immediately of her breach of confidentiality. In re Catalina(PDF, 656KB), CSA 35-08, 10 (8/22/08).

Agency proved that appellant neglected an important safety duty by failing to share information about a claimant’s permanent work restrictions with the analyst for two weeks, and that this failure could have affected the claimant’s safety, the employer’s ability to obtain needed work from the claimant, and the city’s liability for exacerbation of claimant’s injuries. In re Sienkiewicz,(PDF, 1MB) CSA 10-08, 15 (7/14/08).

Appellant failed to convey information within forty hours as required in his standards of performance when he did not communicate a claimant’s permanent work restrictions to analyst for two weeks. In re Sienkiewicz,(PDF, 1MB) CSA 10-08, 16 (7/14/08).

Agency proved supervisor failed to meet established standard of performance when she failed to ensure her staff met an acknowledged 30-day deadline for submitting document to auditor’s office. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 27-8 (5/30/08).  

Appellant violated this rule when he failed to tell his supervisor that he authorized, beyond what his supervisor had delegated to him, additional work from a contractor and a unit pricing agreement, where Agency’s job specifications and communication plan required him to inform his supervisor of the status of ongoing projects. In re Hill,(PDF, 403KB) CSA 69-07, 6 (1/23/08). 

Deputy sheriff seen sleeping on duty by his supervisor violated standards of performance contained in safety regulations and post orders prohibiting sleeping on job, negligent performance of duties, and departing from truth during investigation. In re Simpleman(PDF, 549KB), CSA 05-06, 7 (5/16/06).

Appellant violated directive in performance review to avoid addressing female co-workers with terms of endearment that would offend or cause discomfort. In re Hernandez,(PDF, 755KB) CSA 03-06, 7 (5/3/06).

Appellant failed to meet the standards of performance set in her PEP by requiring her supervisor to perform her duties on a back-up basis well over the expected rate of 20% for performing those duties. In re Diaz,(PDF, 647KB) CSA 92-05, 7 (1/31/06).

Appellant failed to meet performance standards for treating employees with courtesy and respect when she refused to talk to her supervisor when requested, commenting at the hearing that she communicated with her just fine. In re Diaz,(PDF, 647KB) CSA 92-05, 8 (1/31/06).

Where evidence of performance standards is lacking, the violation is not established. In re Williams(PDF, 507KB), CSA 65-05, 5 (11/17/05).

Appellant’s admission of violating the established standard of punctuality proved a violation of the rule by a preponderance of the evidence. In re Diaz,(PDF, 507KB) CSA 45-05, 6 (9/7/05).

Zookeeper violated established and communicated emergency protocol and standards regarding securing predators when he failed to keep polar bears separated and failed to use radio protocol. In re Owoeye(PDF, 3MB), CSA 11-05, 5 (6/10/05).

Appellant violated the established PEP standard of performance of personal relations by her exhibition of a negative attitude towards co-workers and supervisors. In re Leal-McIntyre,(PDF, 7MB) CSA 77-03, 134-03 & 167-03, 15 (1/27/05).

NOT FOUND 

The Agency cannot prove appellant violated CSR 16-29 G.1. (Failure to Meet Standards) [now 16-28G1], based on alleged violations of the City’s STARS values of Teamwork and Respect for Self and Others, as these aspirational goals do not provide sufficient notice to constitute enforceable standards. In re Coates(PDF, 160KB), CSA 9-18 & 18-18, 5 (12/19/18), citing In re Oyama(PDF, 1MB), CSA 07-13, 4 (6/4/13); In re Espinoza(PDF, 168KB), CSA 73-16, 7 (4/14/17).

Agency did not prove that employee’s absence violated any specific performance standard where it presented no evidence she fell below any standards. In re Colquitt(PDF, 3MB)CSA 34-15, 4 (10/30/15), citing In re Mounjim, CSA 87-07, 13 (7/10/08).

Agency failed to prove Appellant violated CSR 16-29G (Standards of Performance) [now 16-28G] because she was not a team player where its evidence on this allegation was unclear. In re Gerovic(PDF, 315KB), CSA 77-17, 7 (6/1/18).

No violation of this rule established where agency claimed appellant-investigator failed to locate a witness that another investigator located in fifteen minutes, but appellant countered, without rebuttal, that she made substantial inquiries and the other investigator found witness only because police serendipitously contacted witness just before his search. In re Schofield(PDF, 343KB), CSA 08-17, 7 (10/9/17).

No violation established where deputy DA complained appellant-investigator failed to pay attention during a witness interview in violation of her PEP standard to assist in trial preparation, but appellant denied the allegation and her immediate supervisor, who was also present did not recall appellant being un-invested and stated his observation of her strength in witness preparation. In re Schofield(PDF, 343KB), CSA 08-17, 9 (10/9/17).

No violation established where deputy DA complained appellant-investigator dozed off during witness meetings, but appellant denied the allegation and her immediate supervisor, who was also present, denied having seen appellant doze off. In re Schofield(PDF, 343KB), CSA 08-17, 9-10 (10/9/17).

No violation established where a deputy DA complained appellant-investigator failed to pay attention during a witness meeting, but the deputy was not a supervising attorney of appellant. In re Schofield(PDF, 343KB), CSA 08-17, 10 (10/9/17).

No violation established where deputy DAs complained appellant-investigator failed to obtain coverage when she called in sick on the last weekday before trial, but it was unclear whether appellant was required to obtain coverage and how it related to her relevant PEP requirement. In re Schofield(PDF, 343KB), CSA 08-17, 10 (10/9/17).

No violation established where deputy DAs complained appellant-investigator failed to accompany one of them to a witness meeting the Saturday before trial, but appellant replied it was her scheduled day off, she was asked to go on Thursday evening, and it was unclear to what extent appellant was required to obtain a replacement. In re Schofield(PDF, 343KB), CSA 08-17, 10 (10/9/17).

No violation established where deputy DA complained appellant-investigator failed to provide a document to defense counsel timely in violation of her PEP standard to prepare investigative reports, but the evidence was too vague to connect the evidence to the allegation. In re Schofield(PDF, 343KB), CSA 08-17, 11 (10/9/17).

No violation established by appellant-investigator asking to leave a witness interview early in front of the witness where the allegation was not more convincing that appellant’s denial. In re Schofield(PDF, 343KB), CSA 08-17, 14 (10/9/17).

No violation established by deputy DA’s complaint that appellant-investigator was impatient during witness and victim meetings, without providing specifics. In re Schofield(PDF, 343KB), CSA 08-17, 14 (10/9/17).

No violation of ethical standards established where agency failed to identify what standard was violated, and only evidence was supervisor’s testimony that appellant was unethical in providing inconsistent statements. In re Espinoza(PDF, 168KB), CSA 73-16, 7 (4/14/17).

No violation established where agency claimed appellant’s actions violated aspirational STARS standards. In re Espinoza,(PDF, 168KB) CSA 73-16, 7 (4/14/17).

STARS standards fail to provide notice of what conduct is prohibited. In re Espinoza(PDF, 168KB), CSA 73-16, 7 (4/14/17).

Supervisor’s submission of an assignment three days late does not prove violation of general supervisory duties as stated in PEP. In re Lee(PDF, 175KB), CSA 70-16, 5(3/3/17).

Where agency did not change legal secretary’s PEP performance standard for issuing subpoenas from five to eight weeks before trial, secretary did not violate her five-week standard under this rule, despite deputy DA’s stated preference for the earlier issuance deadline. In re McKisson(PDF, 39KB), CSA 69-16, 4 (1/31/17). 

The general duties listed in the dispatcher job specification did not provide notice to dispatched of the specific performance standards at issue. In re Rhodes(PDF, 2MB), CSA 23-14, 5 (7/25/14), citing In re Gutierrez, CSA 65-11, 6 (8/28/12).

The agency failed to prove employee violated a performance standard where the job description described the duty, but not the standard by which it was to be performed. In re Black(PDF, 2MB), CSA 03-14, 4-5 (6/9/14).

A supervisor's order to complete work is not an established performance standard enforceable under this rule. In re Black(PDF, 2MB), CSA 03-14, 4-5 (6/9/14).

STARS values of teamwork and respect for self and others are not enforceable as specific performance standards under this rule. In re Oyama(PDF, 1MB), CSA 07-13, 4 (6/4/13). 

Evidence that appellant received a below-expectations rating in a category unrelated to the misconduct does not prove a violation of performance standards under this rule where appellant was not given notice of that reason in the disciplinary letter, and all other employees were given the same rating. In re Oyama(PDF, 1MB), CSA 07-13, 4 (6/4/13).

General duties from performance plan do not establish a standard of performance under this rule. In re Serna(PDF, 96KB), CSA 39-12, 8 (5/23/13).

Job specifications citing broad performance expectations do not serve as specific performance standards under this rule. In re Gutierrez, CSB 65-11, 2 (4/4/13).

General statements of aspirational performance goals are not enforceable standards of performance. In re Mack(PDF, 946KB), CSA 43-12, 8 (3/18/13).

Administrator's recommendation of her husband's company to a service provider did not relate to her duty to administer city contracts, since the agency's relationship with that company was not contractual in nature. In re Mack(PDF, 946KB), CSA 43-12, 9 (3/18/13).  

Appellant’s shoplifting charge did not violate this rule where the PEP standard cited by the agency required her to prepare and interpret scientific data in court, a function she always performed competently. In re Redacted, CSA 57-11, 6 (5/31/12).

The mere recitation of wrongdoing will not suffice to prove a violation under this rule. In re Leslie(PDF, 8MB), CSA 10-11, 11 (12/5/11).  

Broad policy statements cannot support alleged violations for established standards of performance, since they fail to provide notice of the measures used to enforce compliance. In re Leslie(PDF, 8MB), CSA 10-11, 11 (12/5/11); citing In re Valdez(PDF, 2MB)CSA 90-09, 6 (3/1/10).     

Agency standards to work cooperatively with others, and to maintain the integrity of the organization are too vague to enforce. In re Rodriguez(PDF, 6MB), CSA 12-10, 11 (10/22/10).

Agency did not establish that DIA equipment operator failed to meet standard of performance of maintaining collaborative working relationships, where numerous co-workers testified that Appellant’s criticism of their work and report of their mistakes to the supervisor precluded collaborative working relationships, however, the Agency failed to provide him notice that this behavior was the subject of the discipline. In re Cotton, CSA 104-09, 9 (10/18/10).  

Agency did not establish that DIA equipment operator failed to meet standard of performance of maintaining collaborative working relationships where the Agency presented only speculation, that his relationship with the airport patron who he drove around to locate his car, and from whom he requested $20 for his services, was adversely affected. In re Cotton, CSA 104-09, 10 (10/18/10).   

Conclusory statements that appellant actions adversely affected an airport patron are insufficient to establish a violation under this rule. In re Cotton, CSA 104-09, 10 (10/18/10).  

Although Appellant failed to meet Agency’s PEPR standards for attendance, she did not violate this Rule because agency attendance standards contradicted Career Service Rules where she was absent due to legitimate illnesses and did not exceed the amount of sick time she had banked. In re Rock, CSA 09-10, 5-6 (10/5/10).

Proof that youth crisis center worker failed to supervise the youth in her care did not also establish that worker violated the standard of performance requiring her to provide basic daily care to all resident youth. In re Carrillo(PDF, 2MB), CSA 95-09, 5 (3/16/10).

Employee did not violate a PEPR's broad aspirational accountability and ethics standards of performance as those standards failed to provide notice of the measures used to determine compliance. In re Valdez(PDF, 2MB), CSA 90-09, 6 (3/1/10). 

Agency failed to prove violation of rule where supervisor testified that appellant’s notebook was unacceptable to satisfy PIP requirements but appellant testified to the contrary and agency did not produce the notebook. In re Mounjim(PDF, 495KB), CSB 87-07, 5 (1/8/09). 

Employees who had supervisor's permission to travel and work together as team did not violate standard of performance for efficient performance of job duties by joint travel to supply shops. In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-08, 13 (12/15/08).

Minor clerical errors in two days' activity logs did not prove violation of standards of performance where supervisor reviewed the logs on a daily basis, and performance review reported that the logs were accurate and complete. In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-08, 15, 19 (12/15/08).

Where appellant testified he believed he was on city business when he parked city vehicle on sidewalk in front of city building to check on his pay, and it was undisputed that employees are permitted to park city vehicles on sidewalk there while on city business, agency failed to prove appellant violated an established standard of performance. In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-08, 20 (12/15/08). 

Performance standard of maintaining respect for others and helping to maintain a positive work relationship does not give notice to reasonable employee that confidentiality breaches are covered by that standard, given their specific coverage in other performance standards. In re Catalina(PDF, 656KB), CSA 35-08, 10 (8/22/08).

Agency failed to prove appellant’s involvement of three other employees in her improper disclosure of confidential information violated performance standard of maintaining respect of others and helping to maintain a positive work environment, since the standard does not give notice to a reasonable employee that confidential breaches are covered by that standard, given their specific coverage in other standards of performance. In re Catalina,(PDF, 656KB) CSA 35-08, 10 (8/22/08), citing In re Mounjim(PDF, 1MB), CSA 87-07, 14 (7/10/08).

Agency did not establish that hearing officer erroneously interpreted rule by failing to address performance standard of "no preventable accidents" where factual finding that accident was not preventable was not challenged. In re Sandrowski, CSB 58-07, 2-3 (8/21/08).

A single instance of failing to communicate needed information to a co-worker did not violate standard of performance for teamwork where that standard was measured by having 80% of co-workers rate him positively in the area of teamwork. In re Sienkiewicz(PDF, 1MB), CSA 10-08, 16 (7/14/08).

Appellant did not violate his standard of performance to respond to inquiries within forty eight hours by failing to contact a supervisor to inform her of her employee’s decision not to file a claim where the supervisor did not ask appellant to call him back with that information. In re Sienkiewicz(PDF, 1MB), CSA 10-08, 15 (7/14/08).

Allegation that appellant violated a standard of performance to represent agency in a positive manner based on his failure to comply with records retention policy was not established where agency failed to prove appellant violated the policy. In re Sienkiewicz(PDF, 1MB), CSA 10-08, 13 (7/14/08).

Appellant did not violate standard of performance to share information by his failure to re-file HR documents in office files where appellant had not been instructed to re-file documents within a certain time period. In re Sienkiewicz(PDF, 1MB), CSA 10-08, 14 (7/14/08).

Appellant did not violate standard on teamwork by volunteering incorrect information to a co-worker, but correcting it within the hour. In re Sienkiewicz(PDF, 1MB), CSA 10-08, 16 (7/14/08).

Where supervisor rated appellant’s performance successful less than one year before finding she failed to grasp the basic functions of her position, no rule violation was found absent proof of intentional refusal to perform essential functions or a significant change of duties. In re Mounjim(PDF, 1MB), CSA 87-07, 15 (7/10/08).

Where supervisor testified at hearing as to reasons appellant violated this rule, but it was unclear he communicated this information to appellant at the pre-disciplinary stage, or that a reasonably astute employee, similarly situated to the appellant, should have been on notice of it, agency failed to meet its requirement to communicate the standard at the pre-disciplinary stage. In re Mounjim(PDF, 1MB), CSA 87-07, 14 (7/10/08).

Agency failed to provide clear notice what needed to be included in appellant’s PIP project plan and by what standard compliance would be measured. In re Mounjim(PDF, 1MB), CSA 87-07, 9-11 (7/10/08).

Agency failed to establish violation of rule where PIP did not state the standard by which compliance would be measured, appellant and a co-worker both testified they did not understand the duty stated in the PIP, and the agency did not provide the project plan template by which it allegedly measured compliance with the duty. In re Mounjim(PDF, 1MB), CSA 87-07, 9 (7/10/08).

Agency failed to prove appellant violated rule where the pre-disciplinary notice and evidence did not clearly define the performance standard so that a reasonably astute recreation coordinator should have understood how to meet that standard. In re Mounjim(PDF, 1MB), CSA 87-07, 11 (7/10/08).

Agency failed to communicate how appellant was to comply with PIP standard to conduct meetings to recruit new clients where appellant produced a 50-page binder about her promotional meetings, and her supervisor stated only that the binder was unsatisfactory. In re Mounjim(PDF, 1MB), CSA 87-07, 12 (7/10/08).

Agency failed to rebut appellant’s evidence that she met her PIP requirement by documenting tasks arising from meetings within 30 days. In re Mounjim(PDF, 1MB), CSA 87-07, 13-14 (7/10/08).

Allegation that appellant failed to document her meetings in the correct format did not establish violation of rule where agency did not prove appellant was given notice of the correct format. In re Mounjim(PDF, 1MB), CSA 87-07, 12 (7/10/08).

Allegation that appellant failed to conduct a sufficient number of meetings with community members did not establish violation of PIP standards where supervisor gave cursory review to appellant’s fifty-page binder showing meetings with fifty or more teachers, parents and staff, and agency did not prove there was a quantitative standard for what number of community meetings was sufficient. In re Mounjim(PDF, 1MB), CSA 87-07, 12 (7/10/08).

A broad condemnation of PIP compliance is inadequate notice under §16-60 K, because it fails to notify the employee what standards apply, what performance deficiencies the agency identified under those standards, and fails to identify how those deficiencies should be corrected. In re Mounjim(PDF, 1MB), CSA 87-07, 9, 15 (7/10/08).

Agency’s PIP requirement “Monthly/Seasonal goals” does not clearly give appellant notice that she was expected to create goals independent of those assigned in PIP and that her failure to meet such goals would be grounds for discipline. In re Mounjim(PDF, 1MB), CSA 87-07, 14 (7/10/08).

Agency failed to prove appellant failed to meet PIP standard where several agency witnesses struggled to present a coherent definition of it, no written example clarified the disparate explanations, and the agency did not present evidence how the requirement was explained, if at all, to the appellant at the time the PIP was presented to her. In re Mounjim(PDF, 1MB), CSA 87-07, 11 (7/10/08).

Where agency failed to communicate its thirty-day deadline for submitting audit documents to appellant, it did not prove that appellant’s late submittal of those documents failed to meet an established performance standard. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 18-19, 33 (5/30/08).

Agency’s mere recitation of audit errors without proof of performance standard for audits fails to establish violation of rule. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 19, 33-34 (5/30/08).

Agency failed to prove appellant violated her PEP standard for customer service based on her failure to meet auditor’s goal to receive separation documents within thirty days. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 37 (5/30/08). 

Agency's claim that appellant failed to meet thirty-day deadline which "has been a long-standing recognition by you" did not rebut appellant's denial that she was apprised of the deadline before being served with letter in contemplation of discipline. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 37 (5/30/08).

Statements made during a safety class that amount to mere cautions do not rise to the level of a performance standard or an agency rule or procedure. In re Sandrowski(PDF, 810KB), CSA 58-07, 13 (2/6/08).

Agency failed to prove driver’s restroom stop violated agency’s performance standards regarding agency integrity, leave reporting, or work hours. In re Dessureau(PDF, 545KB), CSA 59-07, 8 (1/16/08).

Agency failed to present evidence of existence of performance standards violated by officer’s order to secure aggressive prisoner. In re Brown,(PDF, 555KB) CSA 102-05, 9 (2/15/06).

Agency failed to establish a violation of this rule by a preponderance of the evidence when it did not prove how appellant failed to meet the cited PEP requirements. In re Redacted(PDF, 561KB), CSA 190-03, 8 (2/13/06).

Agency failed to show how appellant’s affair with supervisor affected her ability to lead her team, and therefore agency did not establish violation of standard of performance. In re Redacted, (PDF, 561KB)CSA 190-03, 8 (2/13/06).

Agency did not prove appellant failed to meet performance standard to act as positive influence when there was no evidence that appellant’s act in furnishing information to applicants negatively affected morale among employees. In re Martinez,(PDF, 584KB) CSA 69-05, 8 (1/4/06).

Where agency charged appellant with violation of standards that could not reasonably be met, agency failed to prove appellant violated rule. In re Martinez(PDF, 3MB), CSA 19-05, 8 (6/27/05).

Where only evidence of existence of performance standard was supervisor's testimony that he expected appellant to act professionally when dealing with people who deal with him, agency failed to prove objective evidence of an established performance standard. In re Routa(PDF, 2MB), CSA 123-04, 3 (1/27/05).

Where agency presented no objective evidence of an established performance standard, even by custom or use, agency did not prove appellant violated this rule. In re Routa,(PDF, 2MB) CSA 123-04, 3 (1/27/05).  


16-28 H: Intimidation or Retaliation Against a Witness, Party or Representative or Violation of City's Whistleblower Protection Ordinance (Former 16-60 N)

IN GENERAL

This rule contemplates that the intimidation or retaliation must take place during the course of an investigation. In re Carter(PDF, 2MB), CSA 87-09, 8 (2/17/10). 

This rule does not contemplate attempted intimidation that is unsuccessful. In re Carter(PDF, 2MB), CSA 87-09, 8 (2/17/10). 


NOT FOUND

The Agency did not prove appellant violated CSR 16-29 H (Intimidation) [now 16-28H], which must take place during an investigation, where he damaged his supervisor’s car after one investigation ended and before the second one began. In re Coates(PDF, 160KB), CSA 9-18 & 18-18, 8 (12/19/18), citing In re Carter, CSA 87-09, 8 (2/17/10). 


16-28 I: Failure to Maintain Satisfactory Working Relationships with Co-Workers, Other City Employees or the Public (Former 16-60 O)

IN GENERAL 

Conduct violates CSR 16-28 I. if it would cause a reasonable person standing in the employee’s place to believe it would be harmful to others or have a significant impact on their working relationship. In re Gaule(PDF, 66KB), CSA 06-19, 2 (5/29/19), citing In re Schofield, CSA 08-17, 13 (10/9/17).

Under CSR 16-29 I. [now 16-28I] “other individuals the employee interacts with as part of his or her job” includes inmates, with whom deputies have a working relationship and to whom they have a duty to maintain their care and custody. In re Jordan(PDF, 152KB), CSB 21-18A, 2-3 (5/16/19).  

Pursuant to CRS 16-29 I [now 16-28I], inmates are “other individuals” with whom deputy had a working relationship, with whom he is to maintain a satisfactory working relationship. In re Jordan(PDF, 84KB), CSA 21-18, 4 (7/19/18).

Conduct violates this rule if it would cause another person standing in the employee’s place to believe it would be harmful to others or have a significant impact on their working relationship. In re Schofield(PDF, 343KB), CSA 08-17, 13 (10/9/17), citing In re Perry-Wilborne(PDF, 2MB), CSA 62-13 8 (5/22/14); In re Williams(PDF, 65KB), CSA 53-08, 5 (Order 8/18/08); In re Burghardt(PDF, 223KB), CSB 81-07, 2 (8/28/08); In re Williams(PDF, 134KB), CSB 53-08 (5/14/09).

This rule is not intended to legislate every potentially hurtful comment between co-workers. In re Schofield(PDF, 343KB), CSA 08-17, 14 (10/9/17), citing In re Keegan(PDF, 685KB), CSA 69-03, 11(3/31/04); In re Day(PDF, 714KB), CSA 12-03, 8 (10/9/03).

The standard for analyzing a violation under this rule is objective and is not defined by the affected individual’s feelings and perception of mistreatment. In re Schofield(PDF, 343KB), CSA 08-17, 13 (10/9/17).

Violation of this rule requires evidence of poor treatment of a particular person or actions in a particular situation, without which it is mere conjecture to assess the behavior and its effect on a reasonable co-worker.  In re Schofield,(PDF, 343KB) CSA 08-17, 15 (10/9/17).

The standard for analyzing a violation under this rule is objective and is not defined by the affected individual’s subjective feelings and perception of mistreatment. In re Gustin(PDF, 208KB), CSA 02-17, 3-4 (8/8/17), citing In re Leslie(PDF, 8MB), CSA 10-11, 15 (12/5/11).     

In cases of alleged offensive statements, the analysis must begin with the plain and ordinary meaning of the statement and then whether a reasonable person would find the plan meaning offensive. In re Gustin(PDF, 208KB), CSA 02-17, 4 (8/8/17).

Permanent damage to the working relationship is not prerequisite to finding a violation of this rule. In re Gustin(PDF, 208KB), CSA 02-17, 4 (8/8/17), citing In re Novitch(PDF, 1MB), CSB 49-15, n.11 (9/15/16).

An employee violates this rule by conduct that is harmful to another person or has a significant impact on his working relationship with that person if a reasonable person would have known his conduct would have that effect. In re Trujillo(PDF, 1MB), CSA 53-13, 5 (4/14/14), citing In re D’Ambrosio, CSA 98-09, 9 (5/7/10); In re Burghardt,(PDF, 223KB) CSB 81-07, 2 (8/28/08).

The rule is violated by "conduct that an employee knows, or reasonably should know, will be harmful to co-workers, other City employees, or the public, or will have a significant impact on the employee's working relationship with them." In re Black(PDF, 2MB), CSA 03-14, 5 (6/9/14), citing In re Burghardt(PDF, 223KB), CSB 81-07, 2 (8/28/08). 

This rule focuses on the effect of an employee’s bad conduct.   Consequently, the inquiry focuses as much on the reasonable reaction by others to the appellant’s conduct as on the conduct itself. In re Gutierrez(PDF, 1MB), CSA 65-11, 12-13 (8/28/12), citing In re Strasser, CSB 44-07, 2 (2/29/08). 

The standard for analyzing a violation for this rule is objective and is not defined by the affected individual’s subjective feelings and perception of mistreatment.  In re Leslie(PDF, 8MB), CSA 10-11, 15 (12/5/11).     

In order to establish a violation of this rule, the Agency must show appellant exhibited conduct she knew, or reasonably should have known, would be harmful to co-workers, other City employees, or the public, or which would have a significant impact on her working relationship with any of them. In re Rodriguez(PDF, 6MB), CSA 12-10, 18 (10/22/10), citing  In re Burghardt,(PDF, 223KB) CSB 81-07, 2 (8/28/08).  

The affected co-worker's reaction to the conduct is one factor to consider in assessing whether harm should have been anticipated. In re Harrison(PDF, 4MB), CSA 55-07, 89-07 & 90-07, 53 (6/17/10), citing In re Burghardt(PDF, 223KB), CSB 81-07, 2 (8/28/08).

Deterioration of a working relationship must be proven independently of another rule violation. In re Norman-Curry, CSA 28-07 & 50-08, 10 (2/27/09).

It is irrelevant, under this rule, whether an appellant’s argument with a co-worker is correct. In re Owens(PDF, 469KB), CSA 69-08, 7 (2/6/09). 

An employee's conduct is measured against a reasonably objective standard: would a reasonable person standing in the place of the employee have known that his conduct would be harmful to another person or have a significant impact on his working relationship with that person? In re Burghardt(PDF, 223KB), CSB 81-07, 2 (8/28/08).

CSR 16-60 O is violated by conduct that an employee knows or reasonably should know, will be harmful to coworkers, other City employees, or the public, or will have a significant impact on the employee's working relationship with them.  In re Burghardt(PDF, 223KB), CSB 81-07 (8/28/08). 

This rule should not be used as a bludgeon against all offensive interactions in the workplace In re Strasser, CSB 44-07, 2 (2/29/08).

Either a single outrageous incident or an ongoing pattern of conduct can constitute a violation of this rule. In re Delmonico(PDF, 479KB), CSA 53-06, 5 (10/26/06), citing In re Collins(PDF, 467KB), CSA 127-03 (2/27/03); In re Green(PDF, 1MB), CSA 130-04, 3 (1/7/05); In re Tafoya,(PDF, 712KB) CSA 72-04, 10 (10/29/04).

This rule should be reserved for an employee’s unjustified, purposeful actions or omissions toward a co-worker that inhibit the smooth operation of the unit. In re Delmonico(PDF, 479KB), CSA 53-06, 5 (10/26/06), citing In re Anderson(PDF, 657KB), CSA 05-02, 10 (4/30/02).

When a lack of communication between supervisor and employee causes work-related problems, the failure to communicate may result in a violation of this rule. In re Diaz(PDF, 507KB), CSA 45-05, 6-7 (9/7/05).

Agency has a legitimate interest in requiring employees to maintain satisfactory work relationships in order to accomplish its work and mission. The rule prohibits actions that destroy the trust and good will needed between employees. In re Lucero(PDF, 654KB), CSA 162-04, 10 (4/15/05).

A violation of rule against fighting does not necessitate finding of failure to maintain satisfactory work relationships. In re Freeman(PDF, 557KB), CSA 40-04 & 75-04, 6 (3/3/05).

FOUND 

Appellant violated CSR 16-28 I. by initiating and engaging in a fight with a co-worker, which is, per se, a failure to maintain a satisfactory working relationship. In re Gaule(PDF, 66KB), CSA 06-19, 2-3 (5/29/19). 

Appellant’s claim that he could subsequently work with the co-worker whom he fought is immaterial to the analysis of a CSR 16-28 I. violation since it requires an objective standard in analyzing the perpetrator’s conduct. In re Gaule(PDF, 66KB), CSA 06-19, 2 (5/29/19).

Appellant’s prior attempts to excuse his infliction of violence on a co-worker, including with medical reasons, in violation of this Rule, became immaterial once he admitted his violation. In re Gaule(PDF, 66KB), CSA 06-19, 3 (5/29/19).

The Agency proved appellant violated CSR 16-29 I (Satisfactory Relationships) [now CSR 16-28I] where Appellant rejected his Written Reprimand, showed no intent to address his misconduct, criticized his supervisor, threatened criticism of the Agency and impaired the operations of his team. In re Coates(PDF, 160KB), CSA 9-18 & 18-18, 5 (12/19/18).

Appellant’s comment to an inmate - If you think that is fucked up, you ain’t seen anything yet - was a taunt, defined as “to reproach or challenge in a mocking or insulting manner : jeer at.” In re Jordan(PDF, 84KB), CSA 21-18, 4 (7/19/18).

Appellant’s threatening comment to and flinging an inmate’s food tray onto the floor, constituted harassment, defined as “to create an unpleasant or hostile situation for especially by uninvited and unwelcome verbal or physical conduct.” In re Jordan(PDF, 84KB), CSA 21-18, 4-5 (7/19/18).

Appellant threatening comment to and flinging an inmate’s food tray onto the floor, intimidated and embarrassed the inmate maliciously, defined as “having or showing a desire to cause harm to someone : given to, marked by, or arising from malice,” supplemented with the definition of malice, “desire to cause pain, injury, or distress to another.” In re Jordan(PDF, 84KB), CSA 21-18, 5 (7/19/18).

Violation established where supervisor restricted bathroom breaks, told a subordinate “shut your mouth,” physically blocked a subordinate as if to fight, and telling subordinates “look it up yourself” instead of assisting or guiding them. In re Burdett(PDF, 220KB), CSA 28-17, 5 (2/13/18).

Violation established by appellant’s admission she raised her middle finger at a person. In re Garcia(PDF, 112KB), CSA 35-17, 4 (10/4/17).

“Here comes another one” is objectively offensive in violation of this rule. In re Gustin(PDF, 208KB), CSA 02-17, 4 (8/8/17).

Appellant’s insults, threats, yelling and laughing at her supervisor on several occasions clearly proved a violation of this rule. In re Martinez(PDF, 261KB), CSA 10-17, 7 (7/19/17). 

Violation established where vehicle boot investigator escalated the hostility of his encounter with a citizen by demeaning and outrageous behavior. In re Espinoza(PDF, 168KB), CSA 73-16, 7 (4/14/17).

Head of youth safety cadet program damaged working relationships in violation of this rule by engaging in crude insults, favoritism, gossip, and inappropriate physical contact that negatively affected team morale. In re Fresquez(PDF, 57KB), CSA 63-16, 7 (2/24/17).

Supervisor’s failure to plan work, misrepresentation of production numbers, and threat to retaliate against a crew member caused a negative effect on his work relationships, in violation of this rule. In re Lucero,(PDF, 173KB) 58-15, 7 (4/12/16).

Violation was established where co-workers reasonably concluded they could no longer work with case worker who was unable to control her shock at a client’s disable appearance and announced out loud “I can’t deal with this.” In re Perry-Wilborne(PDF, 2MB), CSA 62-13, 8 (5/22/14).

Appellant’s persistent stonewalling of her supervisor’s questions and directives constituted a failure to maintain a satisfactory working relationship with her supervisor in violation of this rule. In re Robinson(PDF, 3MB), CSA 03-13, 10 (6/18/13). 

Appellant’s refusal to obey supervisor’s directive to accompany her to HR for processing into investigatory leave was a violation of this rule. In re Robinson(PDF, 3MB), CSA 03-13, 10 (6/18/13). 

Appellant’s refusal to answer legitimate questions by police who were called due to her odd behavior, was violation of this rule. In re Robinson(PDF, 3MB), CSA 03-13, 10 (6/18/13).

Agency proved appellant violated this rule when he transferred an assignment to a co-worker without permission, insulted his supervisor using profanity, and told his supervisor to leave him alone, resulting in serious damage to their working relationship. In re Oyama(PDF, 1MB), CSA 07-13, 4-6 (6/4/13).

Deputy manager violated this rule by utter lack of cooperation and civility toward the manager and other employees, resulting in low morale, fear and uncertainly, which sabotaged the effective working of the department and prevented employees from exercising their best judgment. In re Redacted, CSB 67-11, 6 (4/4/13).

Board will not overturn finding of violation of this rule based on a litany of noxious conduct creating a toxic work environment where the cited misconduct was undisputed by the employee and supported by the record. In re Redacted, CSB 56-11, 4 (12/20/12). 

Violation established where subordinate became distraught over supervisor’s wrongful insistence that he use deception to obtain replacement equipment in violation of agency’s contract, potentially placing his job in jeopardy. In re Roybal(PDF, 787KB), CSA 60-11, 7 (3/13/12). 

Violation established where, through appellant’s actions, agency obtained replacement equipment in violation of its contract with provider, causing provider’s relationship with agency to become frosty. In re Roybal(PDF, 787KB), CSA 60-11, 7 (3/13/12). 

Violation established even if supervisor believed she was acting in the best interests of the agency in obtaining free equipment replacements in violation of agency’s contract with provider, where she used a subordinate to procure the replacements, in order to shield herself from disciplinary repercussions, but potentially placed subordinate’s job at risk. In re Roybal(PDF, 787KB), CSA 60-11, 7 (3/13/12).

Dispatcher failed to maintain satisfactory working relationships, where the agency requires close communication, but appellant’s snide remarks induced two people to request shift changes to avoid her, others commiserated, and supervisors consistently noted a pattern of unsatisfactory co-worker relationships. In re Leslie,(PDF, 8MB) CSA 10-11, 12-13 (12/5/11).

While co-worker’s complaint about appellant’s remark could be attributed to an overly sensitive employee, the confirmation of the co-worker’s complaint by another employee, and the consistency of the remark to appellant’s previous interactions proved appellant’s remark was in violation of this rule. In re Leslie(PDF, 8MB), CSA 10-11, 13-14 (12/5/11).

Appellant failed to maintain a satisfactory working relationship with his supervisor, when his supervisor instructed him to apologize to a co-worker, and Appellant reacted with rage, making intimidating and hostile statements, and caused Appellant’s supervisor to pursue disciplinary action against him, despite his previous efforts to improve Appellant’s interpersonal skills and professionalism during regular coaching sessions. In re Weiss(PDF, 3MB), CSA 68-10, 11 (2/14/11).

Animal control officer failed to maintain a satisfactory working relationship with a dog owner where the officer pushed a security door into him for several seconds in an unauthorized attempt to prevent him from leaving, and the dog owner demonstrated his anger in posting the security video on the internet and publicizing the incident on the local television news. In re Gonzales(PDF, 469KB), CSA 42-10, 8 (12/30/10).   

Judicial assistant failed to maintain a satisfactory working relationship when she confronted and accused her supervisor of making several errors within the hearing of a customer and slammed the door to the office. In re Roberts, CSA 40-10 & 48-10, 12 (11/15/10).      

Agency proved appellant case manager violated this rule with respect to the public where she reasonably should have known her failure to process cases prevented clients from procuring timely childcare and other benefits. In re Rodriguez(PDF, 6MB), CSA 12-10, 19 (10/22/10).

Call-center agent failed to maintain a satisfactory working relationship with a member of the public where the relationship was significantly impacted by agent’s enraging the caller. In re Jackson, CSA 39-10, 10 (10/7/10).     

Violation was established where appellant’s co-workers liked him, initially covered for his lack of effort and frequent absences and encouraged him to change, but grew increasingly frustrated and reported him after internal and external interventions failed. In re Norris(PDF, 2MB), CSA 68-09, 7-8 (7/12/10).

A violation of CSR 16-60 O was established where co-worker was sufficiently shaken by appellant’s unreasonably abusive treatment of her, that she asked her supervisor never to have to deal with appellant again. In re Lykken(PDF, 2MB), CSA 26-10, 7 (7/7/10).  

Appellant's actions in refusing to attend a project meeting based on previously unreported fears of violence to herself, inappropriately threatening the contractor with enforcement actions, and repeating unfounded allegations against co-workers, had a significant impact on appellant's working relationships with her supervisor, contractor and co-workers, in violation of this rule. In re Harrison(PDF, 4MB), CSA 55-07, 89-07 & 90-07, 55 (6/17/10).

A reasonable person in appellant's position would know her accusation against her supervisor and threats against a contractor would have a significant negative effect on their working relationships. In re Harrison(PDF, 4MB), CSA 55-07, 89-07 & 90-07, 56 (6/17/10). 

Airport employee violated this rule when he banged his fist on a customer’s car, screamed obscenities, and told her to shut up, causing her to make a plan to defend herself and her daughter.  Employee also threatened to arrest another person who tried to intervene.  In re D’Ambrosio, CSA 98-09, 9 (5/7/10). 

A reasonable person in appellant's position would have known his conduct in banging his fist on a car, screaming obscenities and telling a customer to shut up would adversely affect his relationship with the customer. In re D’Ambrosio, CSA 98-09, 10 (5/7/10).  

Evidence which proved a deputy threatened and intimidated a co-worker in violation of 16-60 M also established a failure to maintain a satisfactory work relationship in violation of this rule. In re Carter(PDF, 2MB), CSA 87-09, 9 (2/17/10). 

Appellant violated this rule where his demeaning comments about four co-workers’ national origin, age, sex, work ethic and competence caused one of the four to avoid contact with appellant, and had a significant negative impact on their working relationship. In re Schultz(PDF, 344KB), CSA 70-08, 5 (3/2/09). 

Appellant’s persistence in loud argument with a security officer about a parking citation constituted a violation of this rule. In re Owens(PDF, 469KB), CSA 69-08, 7 (2/6/09). 

Appellant, a new and uninformed employee, violated the rule when he obstreperously tried to impose his will upon someone in a position to know the rules better than he did. In re Owens(PDF, 469KB), CSA 69-08, 7 (2/6/09). 

Appellant's conduct, including yelling at payroll clerk over seven-month period and accusations of tampering with appellant's pay records, resulting in supervisors' taking over communication on appellant's payroll issues, was harmful to clerk and had a significant negative impact on working relationship with clerk, in violation of this rule. In re Williams(PDF, 377KB), CSA 53-08, 5 (12/19/08) affirmed In re Williams(PDF, 134KB), CSB 53-08, 2  (5/14/09).

Under a reasonably objective standard, appellant failed to maintain satisfactory work relationships when he asked a Hispanic co-worker in the presence of others how much it cost her people to get across the border, accusing her of coming to the country illegally. A reasonable person who heard these comments would have found them offensive and insulting. In re Burghardt,(PDF, 223KB) CSB 81-07, 3 (8/28/08).

If a reasonable person who heard a remark would consider it wrongful in the workplace setting, the agency has established harm to the co-worker relationship. In re Burghardt, CSA 81-07, 6 (3/28/08), reversed In re Burghardt,(PDF, 223KB) CSB 81-07, 2 (8/28/08).

When appellant’s question with “disturbing racial overtones” was addressed to two Hispanic co-workers and undisputedly resulted in distress to both co-workers, the third element of harm is established. In re Burghardt, CSA 81-07, 5 (3/28/08), reversed In re Burghardt,(PDF, 223KB) CSB 81-07, 2 (8/28/08).

Agency established that adult supervisor of seventeen-year-old high school intern violated this rule with evidence of the intern’s discomfort with appellant’s actions in accessing and showing him pornography on city computer. In re Strasser, CSB 44-07, 2 (2/29/08).

Where appellant and intern no longer worked together after appellant’s misconduct, hearing officer interpreted rule too narrowly in requiring agency to prove a significant breakdown in their future working relationship. In re Strasser, CSB 44-07, 2 (2/29/08).

The agency may prove a violation of this rule by evidence that appellant’s improper, intentional acts or omissions toward a co-worker inhibited the smooth operation of the unit, or caused an inability to work together. In re Rivas(PDF, 821KB), CSA 49-07, 10 (1/9/08), citing In re Delmonico(PDF, 479KB), CSA 53-06, 5 (10/26/06); In re Katros,(PDF, 4MB) CSA 129-04, 10 (3/16/05).

Appellant’s assault on a co-worker was unjustified and outrageous in violation of the rule when assault occurred a week after perceived insult, and appellant failed to use available agency resources to report insult. In re Delmonico(PDF, 479KB), CSA 53-06, 5 (10/26/06), citing In re Collins(PDF, 467KB), CSA 127-03 (2/27/03); In re Green(PDF, 1MB), CSA 130-04 (1/7/05).

Appellant’s refusal to speak to her supervisor about performance problems was untenable when work needed to be coordinated, and established that appellant failed to maintain a satisfactory working relationship with her supervisor. In re Diaz(PDF, 432KB), CSA 13-06, 6 (5/31/06).

Appellant violated rule when she called her subordinate a “fucking bitch” for failing to cover up appellant’s affair with her supervisor, leading to a bitter relationship between appellant and subordinate, and noticeable coldness between the supervisor and appellant’s subordinate. In re Redacted(PDF, 561KB), CSA 190-03, 8 (2/13/06).  

Appellant failed to maintain satisfactory relationship by refusing to communicate in person with her supervisor, even though the job requires appellant and her supervisor to provide clerical support to agency, and appellant’s failure to communicate caused errors, loss of efficiency, disciplinary allegations, and a damaged working relationship. In re Diaz,(PDF, 647KB) CSA 92-05, 8 (1/31/06). 

Appellant violated rule by his hostile confrontation of a security guard which caused the guard to feel intimidated and fearful. In re Mestas(PDF, 514KB), CSA 37-05, 7 (8/4/05).

Appellant failed to maintain a satisfactory work relationship with her co-worker by persisting in requests that the co-worker report Appellant as present at work when appellant was late, despite resentment by co-worker, requests to stop, and damage to their friendship. In re Roberts(PDF, 2MB), CSA 179-04, 5 (6/29/05).

Employee's continued negative attitude over discipline he believed unjust and his expressions of anger toward supervisor and co-workers established violation of rule. In re Moreno,(PDF, 34KB) CSA 138-04, 8 (5/25/05).

When appellant criticized her supervisor and his policies at a staff meeting, then later organized a meeting with her supervisor's boss to continue the criticisms, resulting in the supervisor's reassignment, appellant failed to maintain satisfactory work relationship with her supervisor. In re Lucero(PDF, 654KB), CSA 162-04, 11 (4/15/05).

Where appellant’s attempt to change rules or enforcement of the rules caused her supervisor to lose his effectiveness as a supervisor, appellant failed to maintain a satisfactory relationship with her supervisor. In re Lucero(PDF, 654KB), CSA 162-04, 11 (4/15/05).

Unrebutted evidence of appellant's continual negative comments towards his supervisors and refusal to comply with supervisors' orders established failure to maintain the supervisor/employee relationship necessary to accomplish the work of the unit. In re Katros(PDF, 4MB), CSA 129-04, 10 (3/16/05).

Appellant's continued complaints that her co-workers were "too lazy to do their jobs" and calling a co-worker "an a hole" in front of co-workers established failure to maintain satisfactory relationship with co-workers. In re Leal-McIntyre(PDF, 7MB), CSA 77-03, 134-03 & 167-03, 4 (1/27/05).  

Appellant's diatribe against co-worker to a member of the public who does business with the agency constitutes failure to maintain a satisfactory relationship with that co-worker and the member of the public, since the latter now avoids appellant and feels uncomfortable around her. In re Routa(PDF, 2MB), CSA 123-04, 4-5 (1/27/05).

When appellant disrupted a team meeting by pounding his fist on the table, shouted “this is bull----”, and stormed out of the meeting, the agency established that appellant violated the rule by failing to maintain satisfactory work relationships. In re Green(PDF, 1MB), CSA 130-04, 3 (1/7/05).

NOT FOUND 

Evidence that supervisor was disappointed in employee, for her failure to call in her absence, but who still had faith in the employee did not prove harm to employee’s relationship with the supervisor. In re Colquitt(PDF, 3MB), CSA 34-15, 4 (10/30/15).

The Agency did not prove appellant violated CSR 16-29 I (Satisfactory Relationships) [now 16-28I], where he damaged his supervisor’s car, but they had no further relationship once his supervisor learned that he damaged the car, since it removed him from the work site. In re Coates(PDF, 160KB), CSA 9-18 & 18-18, 8 (12/19/18). 

Agency failed to prove Appellant violated CSR 16-29I (Satisfactory Relationships) [now 16-28I] through her alleged slander against her supervisor, where witness did not know if her statements were true. In re Gerovic(PDF, 315KB), CSA 77-17, 7 (6/1/18).

Allegation that appellant’s comments were disrespectful, alone, is insufficient to establish a violation of this rule. In re Gerovic(PDF, 315KB), CSA 77-17, 7 (6/1/18).

The Agency cannot prove appellant violated CSR 16-29 G.1. (Failure to Meet Standards) [now 16-28G1], based on alleged violations of the City’s STARS values of Teamwork and Respect for Self and Others, as these aspirational goals do not provide sufficient notice to constitute enforceable standards. In re Coates(PDF, 160KB), CSA 9-18 & 18-18, 5 (12/19/18), citing In re Oyama(PDF, 1MB), CSA 07-13, 4 (6/4/13); In re Espinoza(PDF, 168KB), CSA 73-16, 7 (4/14/17).

Agency did not prove that employee’s absence violated any specific performance standard where it presented no evidence she fell below any standards. In re Colquitt(PDF, 3MB), CSA 34-15, 4 (10/30/15), citing In re Mounjim, CSA 87-07, 13 (7/10/08).

A single instance of calling a colleague “missy” fails to establish mistreatment of a co-worker or damage to the working relationship under this rule. In re Schofield(PDF, 343KB), CSA 08-17, 14 (10/9/17).

Indeterminate accusations fail to provide sufficient notice of wrongdoing to defend as a violation of CSR 16-29 I., and are better suited to an internal process such as performance reviews, counselling, written reprimands, grievances and the like. In re Schofield(PDF, 343KB), CSA 08-17, 15 (10/9/17).

No violation established where deputy DA complained he avoided asking appellant-investigator to conduct any investigation, avoided knocking on her door and felt she was not available when he needed her, yet he never addressed these issues with her, or his or her supervisor, and his complaints were so wanting in specificity that they failed to provide notice, and failed to establish causation. In re Schofield(PDF, 343KB), CSA 08-17, 13 (10/9/17).

Co-worker’s statements that appellant “will act rude or annoyed with me” and she “seems increasingly agitated with me and other people” failed to establish that her relationship with appellant was damaged in violation of this rule. In re Schofield(PDF, 343KB), CSA 08-17, 14 (10/9/17).

No violation established by appellant-investigator asking to leave a witness interview early in front of a witness where the allegation was not more convincing that appellant’s denial. In re Schofield(PDF, 343KB), CSA 08-17, 14 (10/9/17).

No violation established by deputy DA’s complaint that appellant-investigator was impatient during witness and victim meetings, without providing specifics. In re Schofield(PDF, 343KB), CSA 08-17, 14 (10/9/17).

No violation established by various complaints that appellant-investigator was “not a team player,” gave frequent “pushback” when asked to perform tasks, was “unavailable,” “unapproachable,” and unpleasant, dismissive and worse,” with virtually no specific evidence. In re Schofield(PDF, 343KB), CSA 08-17, 14 (10/9/17).

No violation established where co-worker wrote she became ill from her interactions with appellant, but testified at hearing her stress was largely from others complaining to her about the appellant, and the allegation failed to identify any specific conduct which may have objectively demonstrated a violation of this rule. In re Schofield(PDF, 343KB), CSA 08-17, 15 (10/9/17).

No violation established where a deputy DA complained appellant-investigator refused to deliver a document, rudely stating “I’m not an errand boy,” but admitted she was not in the room at the time, admitted her knowledge of the incident came from the deputy DA who made the request of appellant, a possible witness to the incident was not identified or called, and appellant credibly denied the accusation and stated it was the deputy DA who was rude and angry. In re Schofield(PDF, 343KB), CSA 08-17, 15 (10/9/17).

Fact that supervisor submitted an assignment three days late did not prove violation of this rule where alleged pattern of misconduct was unproven, and manager testified there was no strain in their current working relationship after the miscommunications were corrected. In re Lee,(PDF, 175KB) CSA 70-16, 5 (3/3/17). 

Agency failed to prove employee’s request for help with work to a co-worker had any negative effect on their relationship or the co-worker’s morale. In re Jackson(PDF, 180KB), CSA 21-15, 8 (1/15/16).

No violation established where customer’s quick acceptance of appellant’s apology indicated he was not unduly offended by the event. In re Vega(PDF, 1MB), CSA 12-14, 4 (7/3/14).

No violation established for leaving the bench early and failing to immediately serve a customer with a parking ticket where evidence showed no damage to relationship with customer or supervisor. In re Vega(PDF, 1MB), CSA 12-14, 4 (7/3/14).

There was no harm to the supervisor/employee relationship under this rule where, after the incident, they continued to work together amicably, and supervisor recognized appellant's value as a coworker who is willing to improve. In re Vega(PDF, 1MB), CSA 12-14, 4 (7/3/14).

An ordinary work error may temporarily lessen a supervisor’s reliance on an employee’s accuracy, but it is not sufficiently serious to prove the employee should have known the error would significantly impact her working relationship, as necessary to prove a violation of this rule. In re Black(PDF, 2MB), CSA 03-14, 6 (6/9/14).

Decision-maker's belief that employee's work errors harmed her work relationships with her supervisors and co-worker was unsupported by persuasive evidence of actual harm to these relationships. In re Black(PDF, 2MB), CSA 03-14, 6 (6/9/14).

Supervisor's concern that employee's work errors would continue and might affect clients was insufficient evidence to prove the employee should have known her errors would damage their working relationship. In re Black(PDF, 2MB), CSA 03-14, 6 (6/9/14).

A strained or less than ideal relationship is insufficient to prove a violation of this rule. In re Trujillo(PDF, 1MB), CSA 53-13, 5 (4/14/14), citing In re Diaz(PDF, 507KB), CSA 45-05, 6 (9/7/05); In re Delmonico(PDF, 479KB), CSA 53-06, 5 (10/26/06).

Supervisor’s concern that appellant may not follow up in the future did not establish an adverse impact to their working relationship, as required to prove a violation of this rule. In re Trujillo(PDF, 1MB), CSA 53-13, 5 (4/14/14).

Violation not proven where credibility of allegedly affected co-worker was suspect, and evidence was unclear that the working relationship of any other employee was affected by appellant’s conduct. In re Gutierrez(PDF, 1MB), CSA 65-11, 12-13 (8/28/12).

Offensive interaction was not proven where agency claimed male captain told female colleague “close the door, come here” but neither was more credible than the other, and the only other witness testified the captain never closed his door when female colleague visited. In re Gutierrez(PDF, 1MB), CSA 65-11, 14 (8/28/12).

No violation of this rule was established even though male appellant admitted motioning for female colleague to expose her breasts and sit on his lap where independent witnesses affirmed the female colleague frequently participated in sexual banter with the appellant and her credibility was suspect. In re Gutierrez(PDF, 1MB), CSA 65-11, 14 (8/28/12).

Although appellant violated CSR 16-60 O by causing hurt feelings to co-workers, the incidents were not egregious where: neither employee mentioned their hurt feelings to a supervisor at the time; the employees disclosed the incidents only after specifically being asked for any complaints about appellant; and the agency took no action for 4-7 months after receiving the complaints. In re Leslie(PDF, 8MB), CSA 10-11, 19 (12/5/11).

Where each side presented equally credible testimony, this violation remained unproven. In re Leslie(PDF, 8MB), CSA 10-11, 14 (12/5/11).

Not every slight, annoyance, or affront will constitute a violation under this rule. In re Leslie(PDF, 8MB), CSA 10-11, 12 (12/5/11).  

Taken alone, co-worker’s sentiment that appellant’s comments conveyed co-worker didn’t know her job, is improper subjective basis to establish a violation. In re Leslie(PDF, 8MB) CSA 10-11, 14 (12/5/11).   

Where appellant’s reply to co-worker repeated co-worker’s words almost verbatim, without additional context, the statement did not apprise a reasonable employee that her statement would have a negative impact on the working relationship in violation of this rule. In re Leslie(PDF, 8MB), CSA 10-11, 15 (12/5/11).     

Agency did not establish Appellant failed to maintain a satisfactory working relationship with a co-worker, where the co-worker was irritated that Appellant reached in front of him to label furniture while the co-worker was conducting business on the telephone. While irritating, more is required to prove a negative impact on the working relationship. In re Weiss(PDF, 3MB), CSA 68-10, 11-12 (2/14/11).

Agency failed to prove violation of this rule with respect to appellant’s co-workers where there was no evidence appellant knew or reasonably should have known her incomplete and mistake-filled caseload would negatively affect her co-workers. In re Rodriguez(PDF, 6MB), CSA 12-10, 18-19 (10/22/10).

DIA equipment operator did not fail to maintain a satisfactory working relationship with an airport patron, from whom he requested $20 for his services of driving him around helping him locate his car, where the patron did not file a complaint and the Agency did not impose any discipline when it first learned of the incident. In re Cotton, CSA 104-09, 11 (10/18/10). 

It is not a violation of this rule, where the impact that an employee’s actions may have on co-workers is only theoretical, and the Agency fails to establish that a reasonable person would know her behavior would significantly impact her working relationships. In re Jackson, CSA 39-10, 10 (10/7/10).

Call-center agent did not violate this rule where the Agency failed to prove that the agent’s unexcused absences and tardiness had an adverse impact on her co-workers, and presented no evidence that a reasonable person would know this behavior would significantly impact the agent’s working relationships. In re Jackson, CSA 39-10, 10 (10/7/10).      

Violation was not proven where agency did not identify a person whose relationship was affected by appellant’s actions. In re Abbey(PDF, 3MB), CSA 99-09, 10 (8/9/10).

Fact that customer put his hands in the air and backed up in response to parking agent's threat to arrest him is insufficient to prove the threat adversely affected agent's relationship with the customer. In re D’Ambrosio, CSA 98-09, 10 (5/7/10).

Although appellant refused to follow orders, agency did not establish how the refusal caused a significant degradation in any of her working relationships and so failed to establish a violation of this rule. In re Norman-Curry, CSA 28-07 & 50-08, 10 (2/27/09).

Appellant did not violate rule on maintaining satisfactory work relationships when he volunteered incorrect information to a co-worker, but corrected it within the hour. In re Sienkiewicz,(PDF, 1MB) CSA 10-08, 16 (7/14/08).

Agency failed to prove a working relationship was diminished by allegation that appellant deceived co-workers into providing her confidential information. In re Abdi(PDF, 1MB), CSA 63-07, 28 (2/19/08).

A less than ideal working relationship with others does not, by itself, establish a violation of the rule. In re Delmonico(PDF, 479KB), CSA 53-06, 5 (10/26/06); In re Hernandez, (PDF, 755KB)CSA 03-06, 7 (5/3/06), citing In re Keegan,(PDF, 685KB) CSA 69-03, 11 (3/31/04).

Agency failed to prove unsatisfactory relationship despite co-worker’s stated dread of working with appellant absent evidence that parties were unable to work effectively together following incident, and in light of co-worker’s refusal to file a complaint based on incident. In re Hernandez(PDF, 755KB), CSA 03-06, 7 (5/3/06), citing In re Keegan(PDF, 685KB), CSA 69-03, 11 (3/31/04).

Confrontation with non-employee referee is not a violation of rule prohibiting failure to maintain satisfactory working relationships with co-workers, other City and County employees or the public. In re Trujillo,(PDF, 421KB) CSA 44-05, 4 (11/14/05).

A strained relationship between supervisor and employee is insufficient to establish an unsatisfactory working relationship. In re Diaz(PDF, 507KB), CSA 45-05, 6 (9/7/05).

Where one employee was offended by a vulgar e-mail sent by appellant, but there was no evidence it impacted their working relationship, agency failed to prove violation of rule. In re Garcia,(PDF, 3MB) CSA 175-04, 4 (7/12/05).

Temporary damage to employee/supervisor relationship caused by employee's violations of no-smoking rules did not violate this rule. In re Schultz, CSA 156-04, 9 (6/20/05).

Appellant's slap of co-worker's face did not prove failure to maintain satisfactory work relationship absent proof that it prevented appellant from working satisfactorily with employees. In re Freeman(PDF, 557KB), CSA 40-05 & 75-04, 6 (3/3/05), citing In re Day(PDF, 714KB), CSA 12-03 (10/9/03).


16-28 J: Being Charged With or Convicted of a Crime (Former 16-60 P)

IN GENERAL

A violation under this rule requires the agency to demonstrate both that the appellant engaged in conduct which could constitute a crime and that the same conduct affected her ability to perform her duties. In re Redacted, CSB 57-11, 3 (12/20/12).

FOUND

Appellant's acknowledgement that he was charged with municipal assault, disturbing the peace, and that he plead guilty to disturbing the peace, established a violation of this rule. In re Christianson,(PDF, 117KB) CSA 17-18, 3 (8/6/18).

Hearing officer accurately analyzed the law requiring district attorney to disclose forensic scientist's theft conviction to defense counsel on the issue of whether conviction affected her ability to perform her duties. In re Redacted, CSB 57-11, 3 (12/20/12).

Agency is not required to retain appellant - whose duties include testifying in court and who was terminated after her shoplifting charge - based on her speculation that the Colorado Supreme Court might overturn its decision to allow impeachment of a witness who was charged with shoplifting. In re Redacted, CSB 57-11, 3 (12/20/12), citing People v. Segovia, 196 P.3d 1126 (Colo. 2008).

Where one of appellant-forensic scientist’s important duties was to present credible testimony in court, but she left a store without paying for merchandise, she became subject to debilitating cross-examination that would likely affect her ability to perform that duty, in violation of this rule. In re Redacted, CSA 57-11, 5 (5/31/12). 

Appellant’s admission that she left a store with a cart full of merchandise without paying for it establishes fact basis for the crime of theft, the first prong of this rule. In re Redacted, CSA 57-11, 4 (5/31/12).

Appellant violated this rule where she was sentenced to forty-five days incarceration after her conviction for DUI, and agency followed disciplinary procedures required by CSR 16- 61 after discovering the conviction. In re Carrillo(PDF, 2MB), CSA 95-09, 5 (3/16/10).

NOT FOUND

Proof that employee was convicted of driving under the influence did not establish violation of this rule where employee did not drive as a part of his job. In re Mitchell(PDF, 453KB), CSA 05-05, 6 (6/27/05) (decided under former CSR 16-50 A.9).  


16-28 L: Discrimination or Harassment (Former 16-60 R)

IN GENERAL 

Rule is intended to prohibit harassing conduct taken at least partially on account of the victim’s gender. In re Novitch(PDF, 1MB), CSB 49-15, 3 (9/15/16).

Conduct prohibited under this rule need not rise to the level of the creation of a hostile work environment under Title VI. In re Gutierrez(PDF, 1MB), CSA 65-11, 13 (8/28/12).

Unwanted sexual advances, unwelcome invitations or comments and derogatory gestures are prohibited under this rule. In re Gutierrez(PDF, 1MB), CSA 65-11, 13 (8/28/12), citing CSR 15-102 A, B.

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(PDF, 223KB), CSB 81-07, 3 (8/28/08).

A lack of awareness of cultural differences does not excuse inappropriate conduct in the workplace. In re Burghardt(PDF, 223KB), CSB 81-07, 4 (8/28/08).

All city employees, regardless of where they were born or what experiences they may have had prior to working for the city, have an obligation to know the conduct required of them under the Career Service Rules. In re Burghardt(PDF, 223KB), CSB 81-07, 4 (8/28/08).

It is employee's obligation to use common sense and good judgment in applying the training he received to his own conduct in the workplace. In In re Burghardt(PDF, 223KB)CSB 81-07, 4 (8/28/08).

FOUND   

Program manager’s repeated rude comments about and exposure of female cadet’s tattoo in front of her peers was discriminatory where manager did not criticize male cadets with tattoos. In re Fresquez,(PDF, 57KB) CSA 63-16, 7 (2/24/17).

Sexual harassment was proven where female manager tricked a male subordinate into kissing her on the lips. In re Novitch,(PDF, 1MB) CSB 49-15, 3 (9/15/16).

Kiss was unwanted touching where female manager tricked male subordinate into kissing her by moving her head towards him after asking him for a kiss on the cheek. In re Novitch,(PDF, 1MB) CSB 49-15, 3 (9/15/16).

An employee’s lack of control over his own anger is not a defense to a charge of making demeaning statements on the basis of another employee’s protected status. In re Schultz(PDF, 344KB), CSA 70-08, 6 (3/2/09). 

Past annoyances did not justify derogatory comments made about fellow employees’ protected status. In re Schultz(PDF, 344KB), CSA 70-08, 6 (3/2/09). 

A violation of this rule is proven by statements made to co-workers that are derogatory on the basis of race, sex, age, national origin, or other basis protected by law. In re Schultz(PDF, 344KB), CSA 70-08, 5 (3/2/09) citing In re Burghardt(PDF, 223KB), CSB 81-07, 3 (8/28/08). 

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. In re Schultz(PDF, 344KB), CSA 70-08, 5 (3/2/09). 

Under a reasonably objective standard, asking Hispanic co-worker in front of others how much it cost her people to get across the border and accusing her of coming to this country illegally, violated rule prohibiting derogatory statements based on national origin. In re Burghardt(PDF, 223KB), CSB 81-07, 3 (8/28/08).

NOT FOUND 

Offensive interaction not proven where agency claimed male captain told female colleague “close the door, come here,” but appellant denied the conduct, neither appellant nor his female colleague was more credible than the other, and the only other witness did not testify the captain ever closed his door when female colleague visited. In re Gutierrez(PDF, 1MB), CSA 65-11, 14 (8/28/12).

Agency allegation that male appellant told female co-worker, “nice shirt, it's just buttoned too high”, or "maybe you should unbutton 'em more" while staring at her chest did not prove sexual harassment under this rule where appellant denied the allegation and the accusation was not more credible than the denial. In re Gutierrez(PDF, 1MB), CSA 65-11, 14 (8/28/12).


16-28 M: Unauthorized Absence from Work or Abuse of Paid Time Off, Sick Leave or Other Types of Leave or Violation of Any Rules Relating to Any Forms of Leave (Former 16-60 S)

IN GENERAL

This rule is intended to prevent patterns of absenteeism and leave abuse. In re Maestas(PDF, 82KB), CSA 18-19, 4 (6/17/19).

A violation of CSR 16-28 M. is established by an absence that is unauthorized under a departmental rule or CSR. In re Maestas(PDF, 82KB), CSA 18-19, 4 (6/17/19), citing In re Leslie, CSA 10-11, 15 (12/5/11). 

A violation of this rule is established by an absence that is unauthorized under a departmental or Career Service Rule. In re Leslie(PDF, 8MB), CSA 10-11, 15 (12/5/11), citing In re Dessureau(PDF, 545KB), CSA 59-07, 8 (1/16/08). 

Since this rule is intended to prevent patterns of absenteeism and leave abuse, the Agency may consider all unauthorized absences in determining whether there has been a violation of this disciplinary rule. In re Leslie(PDF, 8MB), CSA 10-11, 15 (12/5/11), citing In re Salazar(PDF, 449KB), CSA 66-08, 7 (12/26/08).

Agency may consider the number of non-FMLA absences in determining whether there has been a violation of this disciplinary rule, which is intended to prevent patterns of absenteeism and leave abuse. In re Salazar,(PDF, 449KB) CSA 66-08, 7 (12/26/08).

Rule requires proof of an actual absence from work. In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-08, 15 (12/15/08), citing In re Blan, CSA 40-08, 6 (7/31/08).

This rule is violated by an absence that is unauthorized under either departmental or Career Service Rule. In re Dessureau,(PDF, 545KB) CSA 59-07, 8 (1/16/08) citing In re Garcia(PDF, 372KB), CSA 123-05, 4 (2/27/06).

An alcoholic employee’s excessive absenteeism, if not protected by the ADA, may be addressed through disciplinary action. In re Cullen(PDF, 403KB), CSB 165-04, 6 (1/18/07).

Unauthorized absence is a more serious rule violation than tardiness, as the employer is affected differently by late arrivals than by abuse of leave, unauthorized absences or failures to report to work. In re Diaz,(PDF, 432KB) CSA 13-06, 6 (5/31/06), citing In re Conway, CSA 40-05, 4 (8/16/05); In re Owens(PDF, 9MB), CSA 139-04, 7 (3/31/05).

An abuse of leave requires some evidence that appellant knowingly took paid leave to which she was not entitled under Rule 11. In re Edwards(PDF, 444KB), CSA 21-05, 7 (2/22/06).

Sick leave for Career Service employees is authorized under [CSR 12-21] for necessary care and attendance during sickness, or for death, of a member of the employee’s immediate family. In re Espinoza(PDF, 500KB), CSA 30-05, 4 (1/11/06).

Bad intent is not required to prove a violation of this rule. In re Diaz,(PDF, 432KB) CSA 45-05, 5 (9/7/05).

FOUND 

Appellant violated CSR 16-28 M. by missing three days of work without required advance approval from her supervisor. In re Maestas(PDF, 82KB), CSA 18-19, 4 (6/17/19).

Employee’s failure to work mandatory overtime was an unauthorized absence in violation of this rule. In re Colquitt(PDF, 3MB), CSA 34-15, 4 (10/30/15).

Appellant’s disagreement with her work schedule is not relevant to the claimed rule violations, which were proven by her unauthorized absences from work and deviations from her scheduled shift. In re Martinez(PDF, 261KB), CSA 10-17, 5 (7/19/17). 

Violation established where appellant did not report to work at the time she stated she would, and did not notify her supervisor that she would be absent until over three hours later into her shift. In re Rodriguez(PDF, 6MB), CSA 12-10, 19 (10/22/10).

Agency proved unauthorized absence by proof that youth counselor left the building to get food for twenty-five minutes without punching out, as required by work rules. In re Abbey(PDF, 3MB), CSA 99-09, 10 (8/9/10). 

Appellant’s explanation for his unauthorized absence in excess of allotted fifteen minutes - that he first did errands within the building so that his absence outside the building was less than fifteen minutes - was not credible since video surveillance and his badge records confirmed his absence from the building for twenty-five minutes. In re Abbey(PDF, 3MB), CSA 99-09, 9-10 (8/9/10).

Proof that appellant left work frequently without authorization established violation of this rule. In re Norris(PDF, 2MB), CSA 68-09, 8 (7/12/10).

Appellant’s absence because of her incarceration was an unauthorized absence from work in violation of this rule. In re Carrillo(PDF, 2MB), CSA 95-09, 5 (3/16/10).

Agency proved violation where employee left work to check on his tenants during work hours. In re Valdez(PDF, 2MB), CSA 90-09, 6 (3/1/10). 

Appellant's admission, that he was absent without authorization for 21 days, established violation of this rule. In re Morgan(PDF, 987KB), CSA 63-08, 10 (4/6/09).

Unexcused failure to return to work after a training session was an unauthorized absence under this rule. In re Lottie(PDF, 275KB), CSA 132-08, 4 (3/9/09).

Where agency policy required employees to make an accurate request for leave and to timely correct errors in their requests, and appellant failed to do either, her absence was unauthorized. In re Turner(PDF, 560KB), CSA 76-08, 8-9 (1/16/09).

Appellant’s failure to resume her normal work schedule, after cancelling her military leave and making no request for any other leave, was an unauthorized absence. In re Turner(PDF, 560KB), CSA 76-08, 9 (1/16/09).

Appellant’s reliance on her opinion that her leave balance was wrong in city leave software did not rebut agency evidence of leave abuse where leave balances in software were accurate, and appellant admitted at hearing that her opinion was incorrect. In re Salazar(PDF, 449KB), CSA 66-08, 6 (12/26/08). 

Appellant’s argument that her absences were not leave abuse because they were caused by illness which improved after medication adjustment did not rebut evidence of leave abuse where appellant failed to show her leave use decreased after her medications were adjusted. In re Salazar,(PDF, 449KB) CSA 66-08, 6-7 (12/26/08). 

Appellant’s argument that agency should have spoken to her doctors regarding her use of sick leave before imposing discipline did not rebut evidence of leave abuse where agency did not deny appellant was actually sick when she called in sick, and that her doctor’s notes were accurate. In re Salazar(PDF, 449KB), CSA 66-08, 6-7 (12/26/08). 

Convincing evidence of eyewitnesses and co-workers' statements about appellant's attendance practices supported allegation that appellant was absent without permission for forty-five minutes and two hours during two work days. In re Galindo(PDF, 780KB), CSA 39-08, 12 (9/5/08).

Although she was at a work location, appellant’s absence from her work duties was unauthorized absence, following her dishonest explanation for that absence. In re Blan, CSA 40-08, 6 (7/31/08).

Appellant who claimed sick leave in order to start her vacation one day earlier than scheduled abused sick leave under this rule. In re Clayton(PDF, 368KB), CSA 128-05, 6 (3/21/06).

Agency established appellant was absent without authorization when leave was denied yet she failed to report and, on another occasion, left work early without notifying any supervisor. In re Edwards,(PDF, 444KB) CSA 21-05, 6-7 (2/22/06).

Appellant’s unexplained failure to comply with attendance rules despite ample notice proved unauthorized absence from work under this rule. In re Diaz(PDF, 507KB), CSA 45-05, 5 (9/7/05).

After being ordered to speak directly with supervisor for future leave based upon prior sick leave abuse, appellant’s continued noncompliance which affected agency production violated rule. In re Conway, CSA 40-05, 4 (8/16/05).

Charge of unauthorized absence was justified when appellant completely removed himself from his duties by taking actions resulting in his falling asleep, thereby forcing other employees to complete his duties. In re Owens(PDF, 9MB), CSA 139-04, 7 (3/31/05) citing Mitchell v. Dept. of Defense, 22 MSPR 271 (1984).

Appellant abandoned his job when he failed to go to work for 1½ months, failed to notify the agency of the reasons for his absence, and failed to provide the agency with his contact information. In re Kinfe(PDF, 2MB), CSA 161-04, 4 (3/16/05).

NOT FOUND 

Agency improperly coded appellant’s leave as FMLA where Agency assumed, but did not verify, appellant’s leave request was FMLA-related based on prior requests, and agency failed to rebut appellant’s assertion the leave was not FMLA-related and circumstances did not support the assumption. In re Leslie(PDF, 8MB), CSA 10-11, 15-16 (12/5/11).

Agency improperly cited appellant for unauthorized leave where agency miscounted her remaining FMLA leave. The consequence of miscounting must be held against the agency, not the appellant. In re Leslie(PDF, 8MB), CSA 10-11, 16 (12/5/11).

Leave granted under circumstances that do not meet FMLA requirements may not be counted against the employee’s twelve-week entitlement. In re Leslie(PDF, 8MB), CSA 10-11, 16 (12/5/11), citing Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 96 (2002).

Appellant properly requested one hour of holiday leave at the end of a 10-hour shift during the same week as a City holiday, since CSR [10-63 C] permits employees who are required to work on City holidays to take eight hours paid leave on another day during the same week as the holiday. In re Leslie(PDF, 8MB), CSA 10-11, 16 (12/5/11). 

Agency may not limit employee’s intermittent leave to the frequency estimated by her physician. In re Leslie(PDF, 8MB), CSA 10-11, 16-17 (12/5/11).

The Agency was required to approve Appellant’s additional, reasonable requests for FMLA leave, beyond her three, monthly absences estimated on the medical certification form, as long as she had not exhausted her twelve-week entitlement in its entirety, under her current certification. In re Leslie(PDF, 8MB), CSA 10-11, 18 (12/5/11). 

The Agency failed to establish appellant’s leave was unauthorized where its only evidence was her absence but appellant provided reasonable justification for the absence, and the FMLA supported appellant’s request. In re Leslie(PDF, 8MB), CSA 10-11, 18 (12/5/11).  

Appellant did not violate this Rule where policy contradicts Career Service Rules which permit absence due to legitimate illnesses and she did not exceed banked sick leave. In re Rock, CSA 09-10, 5-6 (10/5/10), affirmed  In re Rock, 09-10A, 2 (CSB 4/7/11). 

Agency did not establish unauthorized absence from work by evidence that airport technician engaged in sex at the airport, since agency did not rebut technician's claim that she was on break at that time. In re Jones(PDF, 2MB), CSA 88-09, 5 (5/11/10).

Minor inaccuracies in two days' activity logs did not prove unauthorized absence from work where unrebutted evidence showed that employees were either at an assigned work location or on authorized breaks at all times covered by logs. In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-08, 15, 19 (12/15/08). 

Where agency did not rebut appellants' testimony that they were either at an assigned location or on an authorized break for all times covered by their logs, agency failed to prove they were absent from work in violation of this rule. In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-08, 14-15 (12/15/08). 

Paralegal’s unnecessary trip to courthouse was not an unauthorized absence from work where appellant was given a high degree of independence in her duties, and agency did not prove she needed permission before departing. In re Blan, CSA 40-08, 6 (7/31/08).

Decision of agency to impose leave without pay does not settle the matter of whether a restroom stop constituted an unauthorized absence in violation of the rule. In re Dessureau(PDF, 545KB), CSA 59-07, 8 (1/16/08).

Ten-minute restroom stop to respond to personal emergency was not an unauthorized absence in violation of this rule. In re Dessureau,(PDF, 545KB) CSA 59-07, 8 (1/16/08).

Absence was not unauthorized based on appellant’s responsibility to provide a doctor’s note several days after the claimed illness when appellant was asymptomatic at the later time, and doctor’s note would have been ineffective to resolve whether appellant was ill on the day in question. In re Clayton,(PDF, 368KB) CSA 128-05, 5 (3/21/06).

Authorized absences under departmental or Career Service Rule did not to violate rule prohibiting unauthorized absences. In re Garcia,(PDF, 372KB) CSA 123-05, 4 (2/27/06).

Use of earned sick leave on a claim of personal or family illness does not establish that appellant knowingly took paid leave to which she was not entitled. In re Garcia(PDF, 372KB), CSA 123-05, 4 (2/27/06).

Appellant did not abuse sick leave by merely informing her supervisor that she would be out sick, since agency did not grant paid sick leave for those absences. In re Edwards,(PDF, 444KB) CSA 21-05, 7 (2/22/06).

Undersheriff’s assumption that Appellant’s use of sick leave on Fridays or Mondays was abuse of sick leave failed to prove violation of rule where she credibly testified about her son’s asthmatic symptoms after weekend sports activity, and agency did not rebut that evidence. In re Espinoza, (PDF, 500KB)CSA 30-05, 4-5 (1/11/06).

In applying rigid departmental rule mandating discipline after a certain number of sick days, undersheriff’s assumption that appellant abused sick leave without further inquiry impermissibly violated her right to take accumulated sick leave. In re Espinoza(PDF, 500KB), CSA 30-05, 7 (1/11/06).

Denial of a leave request initially rendered absence unauthorized, but later grant of leave  retroactively authorized the absence. In re Lucero(PDF, 654KB), CSA 162-04, 8 (4/15/05).

16-28 N: Unauthorized Deviation from Shift, Tardiness, Unauthorized Overtime (Former 16-60 M)

In General

A violation of CSR 16- 28 N. is established by “reporting to work after the scheduled start time …, leaving work before the end time … or working unauthorized overtime.” In re Maestas(PDF, 82KB), CSA 18-19, 4 (6/17/19).

This Rule supplements CSR 16-28 M. - Unauthorized Absence from Work -.but does not overlap it. In re Maestas(PDF, 82KB), CSA 18-19, 4 (6/17/19).

This rule does not require proof of excessive tardiness, and a single late arrival may establish a violation. In re Lopez(PDF, 172KB), CSA 61-16, 3 (12/1/16).

Violations under this rule include reporting to work after the scheduled start time, leaving work before the end time, and working unauthorized overtime. In re Maestas(PDF, 82KB), CSA 18-19, 4 (6/17/19).

FOUND

Appellant’s disagreement with her work schedule is not relevant to the claimed rule violations, which were proven by her unauthorized absences from work and deviations from her scheduled shift. In re Martinez(PDF, 261KB), CSA 10-17, 5 (7/19/17). 

Undisputed evidence that employee was tardy six times during a four-month period establishes a violation of this rule. In re Lopez(PDF, 172KB), CSA 61-16, 3 (12/1/16).

NOT FOUND

The Agency failed to prove Appellant violated CSR 16- 28 N. where she did not report to work late, leave work early, or work unauthorized overtime, even though she missed work on three days. In re Maestas(PDF, 82KB), CSA 18-19, 4 (6/17/19).


16-28 O: Failure to Use Safety Devices or Failure to Observe Safety Regulations (Former 16-60 V)

FOUND  

Deputy sheriff's attention to her knitting or crocheting prevented her from giving full attention to her post duties, in violation of this rule. In re Norman-Curry, CSA 28-07 & 50-08, 7 (2/27/09). 

Deputy sheriff’s failure to use safety protocol to lock the grill securing violent felons in county jail created a significant risk of harm to himself and others, in violation of rule. In re Simpleman(PDF, 636KB), CSA 31-06, 9-10 (10/20/06), affirmed In re Simpleman(PDF, 148KB), CSB 31-06A (8/2/07).

Deputy sheriff violated safety regulations against sleeping on job, negligent performance of duties and departing from truth during investigation of sleeping incident. In re Simpleman(PDF, 549KB)CSA 05-06, 7 (5/16/06).

Deputy sheriff jeopardized his own and others’ safety by sleeping while on duty and failing to observe inmates on his watch, in violation of departmental regulations and of this rule. In re Simpleman,(PDF, 549KB) CSA 05-06, 6 (5/16/06).

This rule may be violated in three ways: 1) when there is a nexus between an employee’s omission and injury to the employee or another; 2) when the employee’s omission jeopardizes the safety of the employee or others; or 3) when the employee’s omission results in damage or destruction of city property. In re Simpleman(PDF, 549KB), CSA 05-06, 6 (5/16/06), citing In re Owoeye,(PDF, 3MB) CSA 11-05, 4 (6/10/05).

Appellant supervisor violated safety rules when he knocked over a “wet floor” sign, entered a secured door in the courthouse, stepped behind the x-ray machine, and stood over another employee in intimidating manner. In re Mestas,(PDF, 514KB) CSA 37-05, 4-5 (8/4/05).

NOT FOUND 

No violation established where agency claimed appellant snow plow driver’s negligent accident caused damage to truck, but the damage was discovered five days after the accident; the truck had been driven in the interim; and evidence was vague as to whether the damage could have occurred before the accident. In re Gomez(PDF, 4MB), CSA 02-12, 4, 8 (5/14/12).

Employee who moved his city vehicle after an accident did not violate rule where disciplinary letters did not cite a safety regulation prohibiting that action, and agency failed to prove any resulting injury or jeopardy to the safety of anyone or damage to city property. In re Hobley(PDF, 536KB), CSA 61-05, 6 (12/19/05).

Employee who did not have his driver’s license with him at the time of an accident did not violate a safety regulation to maintain a valid license and insurance. In re Hobley(PDF, 536KB), CSA 61-05, 6 (12/19/05).


16-28 Q: Divulging Confidential or Otherwise Sensitive Information to Unauthorized Individuals (Former 16-60 X)

IN GENERAL

A seat on an oversight committe does not entitle a citizen member of the public to confidential information concerning employee discipline. In re Redacted, CSB 67-11, 6 (4/4/13).

FOUND

Program manager’s revelation to a cadet leader that a cadet did not pass her physical examination did not establish disclosure of confidential material under this rule. In re Fresquez(PDF, 57KB), CSA 63-16, 8 (2/24/17). 

Appellant violated this rule when she divulged another employee's confidential disciplinary information to a citizen member of an oversight committe. In re Redacted, CSB 67-11, 6 (4/4/13). 

NOT FOUND 

Appellant did not divulge written examination materials to job applicants by furnishing them with readily-available and non-confidential documents, including a PEP, CSA workshop and training materials, and a redacted letter of reprimand. In re Martinez,(PDF, 584KB) CSA 69-05, 7 (1/4/06) (decided under former CSR 16-50 A.16).

Agency failed to prove that appellant-supervisor provided unfair advantage to promotional candidates by divulging interview questions from her own past interview where seveal candidates were previously interviewed and would have the same advantage. In re Martinez(PDF, 584KB), CSA 69-05, 8 (1/4/06) (decided under former CSR 16-50 A.16). 


16-28 R: Conduct Which Violates the Career Service Rules, City Charter, DRMC, Executive Orders, Written Departmental or Agency Regulations, Policies, or Rules or Other Applicable Legal Authority (Former 16-60 L, R)

IN GENERAL 

Appellant dishonestly obtained reimbursement for mileage, in violation of the agency’s fiscal accountability rule, since she could not have made the trip in the time available to her. In re Hinojosa(PDF, 166KB), CSA 33-18, 9 (11/29/18).

Violation of fiscal accountability rule for supervisor to account for all cash established, where supervisor denied receiving cash tip turned into her by a subordinate, but video confirmed the subordinate received the tip and immediately brought it to the supervisor. In re Burdett(PDF, 220KB), CSA 28-17, 5 (2/13/18).

Violation established by appellant’s admission she raised her middle finger at a person. In re Garcia(PDF, 112KB), CSA 35-17, 4 (10/4/17).

Not every work process is a policy under this rule. In re Jackson(PDF, 180KB), CSA 21-15, 7-8 (1/15/16).

In interpreting Sheriff Dept. rules, the plain and ordinary meaning of words should apply. In re Kemp(PDF, 2MB), CSB 19-13, 5 (7/28/14).

This rule is not limited to on-duty conduct. In re Strauch, CSB 40-13, 2 (7/17/14).

Employment rules must be sufficiently clear to give a Career Service employee reasonable notice of the conduct intended to be prohibited. In re Black(PDF, 2MB), CSA 03-14, 5 (6/9/14). 

Where the agency established an appellant’s violation of other, more specific Career Service Rules, no further consideration is due under this catchall rule. In re Romero(PDF, 242KB), CSA 01-12, 10 (4/17/12).

This rule serves two functions: it is a catchall provision for wrongdoing which an agency did not specify elsewhere in its notice of discipline; it also serves to bootstrap wrongdoing under other authority into the Career Service Rules. In re Rodriguez(PDF, 6MB), CSA 12-10, 21 (10/22/10), citing In re Sawyer & Sproul(PDF, 1MB), CSA 33-08 & 34-08, 14 (1/27/09).

Some actual or reasonably perceived harm is required to establish a violation of this rule. A theoretical effect of bad conduct is insufficient. In re Rodriguez(PDF, 6MB), CSA 12-10, 21 (10/22/10), citing In re Abdi(PDF, 1MB), CSA 63-07, 29 (2/19/08).  

Even where the agency proved appellant’s wrongdoing, where the wrongdoing was covered under a more specific violation in the Career Service Rules, citation to this rule is superfluous. In re Rodriguez(PDF, 6MB), CSA 12-10, 21 (10/22/10).

Departmental rules must be clear, reasonable, and uniformly enforced before enforcement will be sustained. In re Rodriguez(PDF, 6MB), CSA 12-10, 13 (10/22/10), citing In re Norman-Curry, CSA 28-07 & 50-08, 5 (2/27/09).

DIA equipment operator did not violate Executive Order 112 or CSR 15-110, prohibiting violent behavior, when he told his co-worker “you deserved it,” referencing why he reported the co-worker’s actions to his supervisor. In re Cotton, CSA 104-09, 12 (10/18/10).  

To prove a violation of this Rule, the Agency must show that it established a policy, it clearly communicated the policy to the employee, and the employee failed to follow the policy. In re Rock, CSA 09-10, 5 (10/5/10), citing In re Mounjim(PDF, 1MB), CSA 87-07, 17 (7/10/08); affirmed in part on other grounds In re Mounjim(PDF, 495KB), CSB 87-07 (1/8/09).  

In determining violation of departmental rule prohibiting workplace violence, it is a reasonable person’s reaction that is controlling, not the intent of the actor. In re Lykken(PDF, 2MB), CSA 26-10, 6 (7/7/10).

Agency must cite the specific regulation, policy or rule violated by appellant's conduct. In re O’Meallie, CSA 92-09, 5 (6/18/10).

An agency’s written policies are enforceable under this rule. In re Cady(PDF, 2MB), CSA 03-10, 5 (4/22/10).

A standing order does not require an additional direct order to be enforceable. In re Norman-Curry, CSA 28-07 & 50-08, 5 (2/27/09).

A course of conduct argument is a valid defense to a standing order, but only in the absence of a subsequent directive which provides reasonable notice of the Agency’s intent to enforce it. In re Norman-Curry, CSA 28-07 & 50-08, 5 (2/27/09).

Department rules and policies are not intended to police every perceived affront in the workplace. In re Owens,(PDF, 469KB) CSA 69-08, 5 (2/6/09).

Executive Order 94, containing city-wide policies concerning drugs and alcohol, is enforced in the same manner as the Career Service Rules. In re Delgado(PDF, 532KB), CSA 75-08, 2, fn.2 (1/30/09), reversed on other grounds In re Delgado(PDF, 236KB), CSB 75-08 (7/2/09).  

Aspirational departmental policy statements or standards, indicated by the terms “should” and “strive to”, do not set forth compulsory standards, which may be enforced by discipline. In re Sawyer & Sproul(PDF, 1MB), CSA 33-08 & 34-08, 11 (1/27/09).

Violation of a policy directive that depends on the subjective belief of the employee can be proven only by the employee’s admission. In re Sawyer & Sproul(PDF, 1MB), CSA 33-08 & 34-08, 14 (1/27/09).

Hearing officer’s interpretation that this rule requires proof of intent to violate it before discipline may be imposed was incorrect. In re Mounjim(PDF, 495KB), CSB 87-07, 6 (1/8/09).

To prove a violation of this rule, the agency need only to prove that there was a written policy, the employee was aware of the policy, and the employee failed to follow the policy. In re Mounjim(PDF, 495KB), CSB 87-07, 6 (1/8/09).

Agency must produce evidence that what is being enforced is in fact a policy, and that appellant had actual notice of that policy. In re Mounjim(PDF, 1MB), CSA 87-07, 17 (7/10/08), citing In re Stone(PDF, 742KB), CSA 70-07, 10 (2/25/08); In re Gagliano, CSA 76-06, 7-8 (1/2/07).

In order to establish a violation of this rule, an agency must establish that what is being enforced is in fact a policy, and that employees have notice of that policy. In re Stone(PDF, 742KB), CSA 70-07, 10 (2/25/08), citing In re Gagliano, CSA 76-06, 7-8 (1/2/07).

Some actual or reasonably perceived harm is required to establish a violation of this rule through discredit to the City. A theoretical effect of bad conduct is insufficient. In re Abdi,(PDF, 1MB) CSA 63-07, 29 (2/19/08).

An agency policy need not be in writing to be enforceable. In re Rivas(PDF, 821KB), CSA 49-07, 10 (1/9/08).

Immoral conduct prohibited by departmental rule is conduct which violates notions of good or right, when judged by the standards of the average person or society at large. In re Delmonico(PDF, 479KB), CSA 53-06, 6 (10/26/06), citing Encarta Online Dictionary, http://uk.encarta.msn.com (10/24/06).

Agencies may not adopt policies, regulations, orders, or directives that conflict with the Career Service Board Rules. In re Espinoza(PDF, 142KB), CSB 30-05, 2 (8/23/06).

Departmental attendance regulation is a reasonable measure, that controls staffing, budget, and overtime, implemented in a manner that does not burden employee’s right to use sick leave. In re Garcia(PDF, 372KB), CSA 123-05, 6 (2/27/06).

FOUND 

Hearing Officer erred by construing the Agency’s policy to require that the safety of deputies and others takes precedence over the medical concerns of an inmate. In re Hernandez and Garegnani(PDF, 2MB), CSB 25 & 26-17A, 3-4 (1/17/19).

Deputy violated the agency’s use of force policy, which requires de-escalation of force when the subject is under control or has ceased resisting, by applying OPNs on an inmate who was in handcuffs and leg irons and controlled by four other deputies. In re Hernandez and Garegnani(PDF, 2MB), CSB 25 & 26-17A, 2-3 (1/17/19).

Deputy violated the agency’s use of force policy, which requires a deputy to recognize that his conduct may be a factor that can influence the force option necessary, by applying OPNs on an inmate who was in handcuffs and leg irons and controlled by four other deputies, and thereby re-escalating the incident. In re Hernandez and Garegnani(PDF, 2MB), CSB 25 & 26-17A, 3 (1/17/19).

Deputy violated the Agency’s use of force policy by applying pressure to an inmate for two minutes after a nurse asked him to release it, during which other deputies plainly had the inmate under control. In re Hernandez and Garegnani(PDF, 2MB), CSB 25 & 26-17A, 5 (1/17/19).

Appellant admitted that he violated EO 112 – Violence in the Workplace, by grabbing a co-worker by the collar, placing him in a headlock, and punching him. In re Gaule(PDF, 66KB), CSA 06-19, 3 (5/29/19).

The objective evidence showed that Appellant violated EO 112 – Violence in the Workplace, when Appellant grabbed a co-worker by the collar, placed him in a headlock, punched him, left but then returned, unprovoked, to reengage aggressively with him. In re Gaule(PDF, 66KB), CSA 06-19, 3 (5/29/19).

Appellant’s prior attempts to excuse his infliction of violence on a co-worker, including with medical reasons, in violation of this Rule became immaterial once he admitted his violation. In re Gaule(PDF, 66KB), CSA 06-19, 3 (5/29/19).

The recipient’s reasonable reaction, and not the actor’s intent, is the focus of EO 112’s prohibition against violence in the workplace. In re Gaule(PDF, 66KB), CSA 06-19, 4 (5/29/19).

Appellant violated CSR 16-29R (Violating agency rules) [now 16-28R] by violating the Agency’s Employee Conduct policy with her vulgar language which was offensive to a co-worker. In re Gerovic(PDF, 315KB), CSA 77-17, 8 (6/1/18).

Agency allegation that appellant’s failure to be a team player violated STARS values did not establish a violation of CSR 16-29 G (now 16-28 G.1), as it remained unclear what conduct was alleged to violate this Rule. In re Gerovic(PDF, 315KB), CSA 77-17 (6/1/18)

Appellant violated agency’s conduct code against use of vulgarity although she claimed she was misunderstood due to her unfamiliarity with English, but co-workers and supervisors testified her communication was clear and unambiguous and appellant’s testimony at hearing was also clear and comprehensible. In re Gerovic(PDF, 315KB), CSA 77-17, 8 (6/1/18).

Employee’s failure to call in her absence violated agency’s directive to be at work as scheduled or call in to report the absence. In re Colquitt(PDF, 3MB), CSA 34-15, 4 (10/30/15).

Deputy assigned to residential pod violated CSR 16-29R (Violation of agency regulation) [now 16-28R] by violating RR 200.9 (full attention to duties) by allowing inmates to congregate, unattended, around the officer’s desk. In re Fergerson(PDF, 163KB), CSA 64-17, 3 (3/16/18).

Deputy’s duty to prevent inmates from congregating around the officer’s desk derives from duty to search for and prevent inmates from obtaining contraband and from duty to ensure safety of inmates and staff. In re Fergerson(PDF, 163KB), CSA 64-17, 3-4 (3/16/18).

That deputy was performing one duty is no defense to his violation of a rule by his violation of a second duty, as deputies are expected to perform more than one duty at a time in order to maintain safety in the detention facility. In re Fergerson(PDF, 163KB), CSA 64-17, 4 (3/16/18).

Deputy violated CSR 16-29R (Violation of agency regulation) [now 16-28R] by violating RR 200.9 (Full attention to duties) when he failed to secure the doors in the residential pod. In re Fergerson(PDF, 163KB), CSA 64-17, 4-5 (3/16/18).

Deputy violated CSR 16-29R (Violation of agency regulation) [now 16-28R] by violating Building 22 Post Order and DO 4050.11 (Control inmate movement) when he failed to pat search inmates entering and leaving the residential pod. In re Fergerson(PDF, 163KB), CSA 64-17, 5-6 (3/16/18).

Hearing Officer adequately supported holding that deputy violated CSR 16-29R [now 16-28R] as his job duties required him to prevent inmates from congregating around the officer’s desk, and deputy knew or should have known of this obligation. In re Fergerson(PDF, 1MB), CSB 64-17A, 2 (1/17/19).

Deputy violated CSR 16-29R [now 16-28R] by violating clear duty to pat inmates down for contraband after they had congregated around the officer’s desk. In re Fergerson(PDF, 1MB), CSB 64-17A, 2 (1/17/19).

Appellant’s argument that he did not commit a violation by failing to perform a duty because he was performing another duty at the time is not a CSR ground for appeal. In re Fergerson(PDF, 1MB), CSB 64-17A, 2-3 (1/17/19).

Appellant did not establish any mitigating factors so compelling as to mandate a mitigated penalty, hence the Hearing Officer did not err in affirming his suspension. In re Fergerson(PDF, 1MB), CSB 64-17A, 3 (1/17/19).

Appellant did not establish that discipline set bad policy precedent with his claim that deputies cannot simultaneously execute all their duties, as other deputies have not filed appeals claiming they are unable to execute more than one duty. In re Fergerson(PDF, 1MB), CSB 64-17A, 3 (1/17/19).

Appellant, Vehicle Impound employee, violated CSR 16-29R [now 16-28D], by violating Manual Section 801.00 (Customer Property), when he learned of bullets removed from an impounded auto but failed to record them in a Property Receipt Form. In re Tamburino(PDF, 534KB), CSA 40-17, 8 (4/23/18).

Agency failed to prove appellant, Vehicle Impound employee, violated CSR 16-29T [now 16-28T] by receiving bullets found in impounded auto but then denying he had received them, where witnesses testified customers left with the bullets. In re Tamburino(PDF, 534KB), CSA 40-17, 9 (4/23/18).

Dismissal reduced to a written reprimand where agency proved minor offense by deputy of failing to properly document the removal of bullets from an impounded auto, but did not prove the more serious allegations that he took the bullets or that he falsely denied taking them. In re Tamburino(PDF, 534KB), CSA 40-17, 9 (4/23/18).

Appellant violated CSR 16-29R by violating Ordinance 39-3 (Curfews) where she used and allowed others to use the City Center without permission, since it was deemed closed when a customer hosted a party at it without proper authorization. In re Rodriguez(PDF, 211KB), CSA 60-17, 6 (2/5/18), rev’d on other groundsIn re Rodriguez(PDF, 2MB), CSB 60-17A (9/20/18). 

Appellant violated CSR 16-29R by violating Ordinance 39-5 (Admission Fees) where she used and allowed others to use the City Center without having collected the required fees from the host customer. In re Rodriguez(PDF, 211KB), CSA 60-17, 6 (2/5/18), rev’d on other groundsIn re Rodriguez(PDF, 2MB), CSB 60-17A (9/20/18).

Deputy sheriff had ample notice of duty to verify inmates’ eligibility for release where he had been performing that duty for eight years without an erroneous release, and record was replete with evidence that deputy was otherwise aware or should have been aware of that duty. In re Espinoza(PDF, 810KB), CSB 42-15, 3 (7/21/16).

Appellant violated agency written policy to keep his work site clean, where agency presented undisputed evidence that he left his work site dirty, and did not repair a large hole, and appellant failed to prove others were not disciplined for similar lapses. In re Macieyovski(PDF, 2MB), CSA 28-14, 7-8 (10/13/14).

Hearing officer did not misinterpret regulations prohibiting misleading statements or deceptive acts by finding a violation based on deputy's denial that he slapped an inmate where video evidence supported the finding that the slap occurred. In re Kemp(PDF, 2MB), CSB 19-13, 2-3 (7/28/14).

Hearing officer did not misinterpret use of force regulation by noting that the safety manager believed the deputy exercised poor judgment in failing to respect inmate's personal space. In re Kemp(PDF, 2MB), CSB 19-13, 4 (7/28/14).

The word abuse as used in a regulation prohibiting abuse of prisoners can be physical maltreatment. In re Kemp(PDF, 2MB), CSB 19-13, 5 (7/28/14), citing Black's Law Dictionary; The American Heritage College Dictionary (Third Edition).

Dispatcher violated agency's written protocol requiring inclusion of all critical information by failing to convey that suspect had been verbally aggressive and that other officers were on the scene in two separate calls. In re Rhodes(PDF, 2MB), CSA 23-14, 6 (7/25/14).

Dispatcher violated agency protocol to assess each incident through the customer’s perspective in several calls when she treated as low priority a potential security breach in the Mayor's office, failed to dispatch a cover unit, failed to inform officers in a weapons incident of the presence of another officer, and failed to call a reporting party back. In re Rhodes(PDF, 2MB), CSA 23-14, 7 (7/25/14).

Dispatcher violated written protocol to monitor all required channels by failing to check her equipment after inadvertently breaking the circuit to her headphones, resulting in three unmonitored minutes and several missed calls. In re Rhodes(PDF, 2MB), CSA 23-14, 6-7 (7/25/14).

Agency proved appellant failed to follow its file and audit procedures in violation of this rule when she acknowledged she failed to add case comments into the CBMS, despite being trained in the procedure. In re Black(PDF, 2MB), CSA 03-14, 5 (6/9/14).

Deputy needlessly escalated an annoying comment by an inmate into an unreasonable use of force in violation of Sheriff's Department rules when he pushed and held an inmate's head against the wall, put his hands around his neck, and slapped him. In re Kemp,(PDF, 3MB) CSA 19-13, 11 (1/2/14).

Where agency policy required employees to act honestly, appellant’s dishonesty, coupled with her sensitive position, was a violation of this rule. In re Redacted, CSA 57-11, 6 (5/31/12).

Violation of agency’s fiscal accountability rule established where appellant wrongfully obtained free equipment replacements for the agency, and her wrongful actions in obtaining the equipment obligated the agency to reimburse the vendor. In re Roybal(PDF, 787KB), CSA 60-11, 7-8 (3/13/12).

Appellant violated City’s ethics rule, DRMC Article IV, Section 2.60, Gifts for officers, officials and employees, where she: was a City employee; wrongfully solicited and accepted free equipment replacement which should not have been free; was in a position to take direct official action with regard to the vendor; and the City had a contractual relationship with the vendor. In re Roybal(PDF, 787KB), CSA 60-11, 9 (3/13/12).

Appellant violated Agency rule prohibiting deputies from wearing uniforms and firearms outside of work, where he conceded knowledge of that rule and conceded he wore his uniform and weapon to his own child support proceeding at the Adams County courthouse. In re Strauch(PDF, 2MB), CSA 37-11, 7 (12/20/11).

Appellant violated Agency rule prohibiting deputies from identifying themselves as Denver Sheriff Department employees for any purpose outside of an official duty or authorized activity, by wearing to his uniform to his own child support proceeding. In re Strauch(PDF, 2MB), CSA 37-11, 7 (12/20/11).

Appellant violated Agency rule requiring deputies to read and maintain familiarity with, and carry out all directives and department orders and procedures regarding duties and assignments, where he violated Agency rules prohibiting him from wearing his uniform outside of his official and authorized duties, by wearing his uniform and firearm to the courthouse for his own child support proceeding. In re Strauch(PDF, 2MB), CSA 37-11, 7-8 (12/20/11).

Appellant violated department order prohibiting deputies from wearing uniforms outside of official duty or authorized off-duty employment where he conceded he wore his uniform and firearm to the courthouse for his own child support proceeding. In re Strauch(PDF, 2MB), CSA 37-11, 8 (12/20/11).

Appellant failed to observe Agency’s policy prohibiting violence in the workplace, when his supervisor instructed Appellant to apologize to a co-worker, and appellant reacted with rage, making intimidating and hostile statements. In re Weiss(PDF, 3MB), CSA 68-10, 10 (2/14/11).  

Violation established where appellant case manager failed to process eight redeterminations of eligibility as specified in agency manual, and her caseload was not larger than that of her co-workers who had no such problems. In re Rodriguez(PDF, 6MB), CSA 12-10, 13-14 (10/22/10).

Even though agency’s internet policy was not specific about how much personal use of internet would be considered excessive, appellant’s 2500 hits on non-work related websites in a thirty-day period was excessive. Appellant’s subsequent decrease in personal internet use did not obviate the violation. In re Rodriguez(PDF, 6MB), CSA 12-10, 15-16 (10/22/10).

Appellant’s tardy reporting twenty-one times in three months violated agency policy to be punctual. In re Rodriguez(PDF, 6MB), CSA 12-10, 17 (10/22/10).

Call-center agent violated written Agency policy that requires her to refer callers to a supervisor upon request, where the agent knew the policy, but failed to refer the caller to a supervisor after nine requests. In re Jackson, CSA 39-10, 9 (10/7/10).

Call-center agent violated written Agency policy that requires employees to call both the Attendance Line and the Manager on Duty when they anticipate arriving late to work. Agent conceded she knew the policy but forgot to call the Manger on Duty when she was going to be late. In re Jackson, CSA 39-10, 9 (10/7/10).  

DIA plumber failed to observe Agency’s vacation and sick leave policies, where the Agency had written policies limiting emergency vacation leave to one day every six months, and restricting unscheduled personal sick days to five per year, and employee admitted he was aware of these policies, but took leave without checking his balances, knowing he was close to the limits, and significantly exceeded the limits. In re Duran, CSA 10-10, 11-12 (10/1/10).   

DIA plumber was absent in violation of this rule, where he failed to report to work during an emergency snow callout, and he filed an FMLA request on the day of his pre-disciplinary meeting. In re Duran, CSA 10-10, 12 (10/1/10).  

Appellant violated agency policy requiring staff to punch out for all absences of more than fifteen minutes when video surveillance and badge records showed he was absent for twenty-five minutes without punching out. In re Abbey(PDF, 3MB), CSA 99-09, 9-10 (8/9/10).

Appellant violated agency's computer user agreement signed by him at hire when he admitted that he provided his password to a co-worker so co-worker could email him pictures of sleeping colleagues from his email account. In re Norris(PDF, 2MB), CSA 68-09, 7 (7/12/10).

Appellant violated DIA’s rule against violence in the workplace where without provocation she stood above co-worker, waved her arms, thrust a paper toward her repeatedly, and used an increasingly shrill, aggressive, and angry voice. In re Lykken(PDF, 2MB), CSA 26-10, 5-6 (7/7/10).

Youth worker violated agency policy requiring intervention and punishment for resident misconduct where he failed to intervene in a resident assault. In re O’Meallie, CSA 92-09, 5-6 (6/18/10).

Where agency rule requires employees to notify their supervisors when they expect to be absent from work, appellant violated rule by taking the rest of the day off without notifying his supervisor after serving less than three hours on jury duty. In re Redacted(PDF, 2MB), CSA 08-10, 7 (5/24/10).

Agency proved airport technician who used city vehicles to engage in sex at the airport violated executive order prohibiting unauthorized use of city vehicles. In re Jones(PDF, 2MB), CSA 88-09, 6 (5/11/10).

Pushing inmate into elevator for requesting a sack lunch was excessive use of force in violation of sheriff’s dept. regulation. In re Koehler(PDF, 5MB), CSA 113-09, 12 (4/29/10).

Presence of infectious disease was not a threat of assault by inmate under use of force policy, but was a circumstance to be considered in assessing amount of reasonable force to be used. In re Koehler(PDF, 5MB), CSA 113-09, 14 (4/29/10).

Deputy humiliated an inmate in violation of policy by slamming him against wall for delaying his entry into the elevator. In re Koehler(PDF, 5MB), CSA 113-09, 15 (4/29/10).

Deputy punished an inmate in violation of use of force policy by kicking him in the head when he demonstrated defensive resistance by trying to get out of a cell. In re Koehler(PDF, 5MB), CSA 113-09, 15 (4/29/10).

Youth crisis center worker’s failure to conduct bed checks every fifteen minutes violated this rule where policy and procedure manual required that bed checks be done and documented every fifteen minutes. In re Carrillo(PDF, 2MB), CSA 95-09, 3, 5 (3/16/10).

Appellant’s accusation of snitching to another deputy was inherently disrespectful and abusive, in violation of sheriff’s department rule prohibiting disrespectful language toward other employees. In re Carter(PDF, 2MB), CSA 87-09, 6 (2/17/10); S.D. rule 200.15.

Deputy violated rule prohibiting discussion of investigation with others when he told co-worker to give a false statement to internal affairs. In re Carter(PDF, 2MB), CSA 87-09, 6-7 (2/17/10). 

Where sheriff's department dress code required hair adornments to be minimal size, plain design, matching the hair or dark color, appellant's persistent refusal to remove seven-inch long, brightly colored, flapping butterfly hair sticks that did not match her hair was a violation of dress code under this rule. In re Norman-Curry, CSA 28-07 & 50-08, 9-10 (2/27/09).

Deputy sheriff's crocheting while on post violated department order to devote undivided attention to duties. In re Norman-Curry, CSA 28-07 & 50-08, 5 (2/27/09).

Deputy sheriff violated departmental order not to display disrespectful language toward her supervisor when she continued to argue with supervisor after his final order until he stated a “last chance to comply” warning. In re Norman-Curry, CSA 28-07 & 50-08, 3, 6 (2/27/09).

After appellant was ordered not to crochet on post, she had reasonable notice of the order, even if it had not been enforced previously. In re Norman-Curry, CSA 28-07 & 50-08, 6 (2/27/09).

Deputy sheriff violated written departmental rule against disorderly performance of duties when she yelled obscenities at a secured inmate during book-in, distracted deputies engaged with other inmates, and disrupted the book-in area, with potentially dangerous results. In re Norman-Curry, CSA 28-07 & 50-08, 15 (2/27/09).

Deputy sheriff breached her primary duties of care, custody and control of inmates when she yelled obscenities at inmate through closed door, causing other inmates to yell back and diverting other officers' attention from control of other inmates. In re Norman-Curry, CSA 28-07 & 50-08, 15-16 (2/27/09).

Deputy sheriff violated departmental order on proportionate use of force when she shoved the face of a non-threatening inmate into a Plexiglass ® window three times, unnecessarily increasing the force of each shove. In re Norman-Curry, CSA 28-07 & 50-08, 18 (2/27/09).

Deputy sheriff who used force upon an inmate violated department rule when she failed to file a use-of-force incident report required by that department rule. In re Norman-Curry, CSA 28-07 & 50-08, 20 (2/27/09).

Even though sheriff department use of force rule permits grabbing inmate's hair to prevent spitting, appellant's repeated slamming of inmate's head into Plexiglas®, after inmate was under control was disproportionate response, in violation of agency rule regarding use of force. In re Norman-Curry, CSA 28-07 & 50-08, 19 (2/27/09).

Appellant’s refusal to seek approval from agency before soliciting outside business violated policy requiring employees to report any situation that may become a conflict of interest where agency expressed a desire to re-enter the field of providing paramedic services to special events. In re Sawyer & Sproul(PDF, 1MB), CSA 33-08 & 34-08, 12-13 (1/27/09). 

Appellant violated agency directive to disclose or resolve conflicts of interest when he untruthfully told his supervisor his outside business had been sold, resolving potential conflicts. In re Sawyer & Sproul(PDF, 1MB), CSA 33-08 & 34-08, 13 (1/27/09). 

City paramedics failed to establish any privacy right to engage in outside paramedic service as a defense to agency hospital’s rule prohibiting employees from holding outside employment that may place paramedics in a conflict of interest with the hospital. In re Sawyer & Sproul(PDF, 1MB), CSA 33-08 & 34-08, 16 (1/27/09). 

Discipline was warranted for overcharging public for field trip fees where appellant was aware field trip fees were set by city ordinance, she received training on fee schedules, and was aware the fees were kept in a note book at the front desk. In re Mounjim,(PDF, 495KB) CSB 87-07, 6 (1/8/09). 

Punching in early, causing unauthorized overtime, violated agency policy requiring timely punch-ins. In re Williams(PDF, 377KB), CSA 53-08, 5 (12/19/08).

Appellant violated policy requiring submission of a leave slip for training by leaving work to attend training without submitting a leave slip. In re Williams(PDF, 377KB), CSA 53-08, 5-6 (12/19/08). 

Appellant violated agency attendance policy requiring timely punch-in and this rule where appellant arrived to work on time but forgot to punch in. In re Williams(PDF, 377KB), CSA 53-08, 6 (12/19/08). 

Violation of department policy that breaks could be taken only while en route to work assignments was proven by appellants’ admission, even though their 3-minute break was a one-block detour. In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-08, 16 (12/15/08). 

Twenty-eight minute round trip to get lunch in city vehicle violated departmental policy prohibiting lunch travel exceeding a two-mile radius from job site in city vehicle. In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-08, 17 (12/15/08). 

Lunch in excess of allotted time violated departmental policy on lunch breaks. In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-08, 17, 20 (12/15/08). 

Appellant violated department rule on found property by failing to turn over co-worker's mislaid ring to custodian or return it to owner. In re Galindo(PDF, 780KB), CSA 39-08, 11 (9/5/08).

Appellant's long breaks and lunches off campus violated department policies restricting duration and location of work breaks. In re Galindo(PDF, 780KB), CSA 39-08, 11-12 (9/5/08).

Appellant’s sharing confidential information from an investigative file on child abuse violated agency’s confidentiality policy, and therefore established violation of this rule. In re Catalina(PDF, 656KB), CSA 35-08, 9 (8/22/08).

Human services employee violated agency’s confidential policy in violation of 16-60 L by accessing and sharing confidential information for personal rather than business reasons. In re Catalina(PDF, 656KB), CSA 35-08, 7 (8/22/08).

Supervisor’s failure to correct appellant’s email quotation of fee appellant overcharged participants did not excuse appellant’s violation of rule where she acknowledged fees are set by ordinance and may not be changed by her or her supervisor. In re Mounjim(PDF, 1MB), CSA 87-07, 18 (7/10/08).

Deputy sheriff who slapped fellow officer on the buttocks in front of four of his peers and followed this with insulting banter with another officer violated a departmental order prohibiting intimidating, threatening, or hostile behavior and assault, and a departmental rule banning abusive behavior towards any department employee. In re Rogers, CSA 57-07, 6 (3/18/08).

Agency proved recreation coordinator violated center’s closing policy by credible eyewitness testimony that he stayed in the center with another employee after closing time twice, and by appellant’s admission that he was in the center after hours on a third date. In re Rivas,(PDF, 821KB) CSA 49-07, 9-10 (1/9/08).

Appellant endangered the health of a minor in violation of D.R.M.C. §34-46 when he left her unsupervised after hours in a locked center, then drank alcohol with her and allowed her to become intoxicated in his presence. In re Rivas(PDF, 821KB), CSA 49-07, 13 (1/9/08).

Appellant’s knowing retrieval of obscene photographs as a result of his internet search on a city computer was a violation of CSR 15-82, and did not comport with the permissible occasional use of city computers for personal purposes pursuant to 15-83. In re Strasser,(PDF, 328KB) CSA 44-07, 4 (10/16/07).

Deputy sheriff’s cursing and planned assault on another deputy violated departmental rule prohibiting disrespectful or abusive language or behavior toward other employees. In re Delmonico(PDF, 479KB), CSA 53-06, 6 (10/26/06), citing DSD RR 200.15.

Deputy’s assault on another employee constituted disorderly conduct in violation of departmental rule because it diminished deputy’s ability to deal effectively with unruly inmates, and was therefore conduct that would impair the orderly performance of duties. In re Delmonico(PDF, 479KB), CSA 53-06, 6-7 (10/26/06), citing DSD RR 300.10.

Deputy’s assault on another employee constituted violence in the workplace in violation of departmental policy. In re Delmonico(PDF, 479KB), CSA 53-06, 7 (10/26/06), citing DSD DO 2441.D.

Deputy sheriff violated departmental rules by making misleading statements, failing to devote attention to duties, and disobeying orders. In re Simpleman(PDF, 636KB), CSA 31-06, 9-10 (10/20/06), affirmed In re Simpleman(PDF, 148KB), CSB 31-06 (8/2/07); In re Martinez(PDF, 541KB), CSA 30-06, 8-9 (10/3/06), citing DSD RR 200.4, 200.9, and 300.21.

Deputy sheriff who delivered responses to inmate grievances that were intended to humiliate the inmates violated departmental policies requiring that duties be performed with dignity, professionalism, and respect for inmates. In re Gonzales(PDF, 455KB), CSA 07-06, 7 (5/4/06), citing DSD RR 300.21, 400.4, 400.5.

Deputy sheriff violated departmental rules prohibiting dishonesty, actions seeking undue advantage, and violations of law and Career Service rules by requesting special treatment as deputy sheriff when charged with theft of a beer while off duty. In re Mergl(PDF, 504KB), CSA 131-05, 7 (3/13/06), citing DSD RR 300.2.

Deputy sheriff violated city’s Code of Ethics by seeking special treatment when arrested while off duty at a bowling alley, thereby attempting to use his position for personal advantage. In re Mergl,(PDF, 504KB) CSA 131-05, 5-6 (3/13/06).

Recreation supervisor’s aggressive confrontation of referee during heated basketball game is a violation of executive order prohibiting violence in workplace. In re Trujillo,(PDF, 421KB) CSA 44-05, 3-4 (11/14/05).

Appellant violated Executive Order 112 when he aggressively questioned ex-girlfriend at work about her relationship with another worker, knocked a floor sign down, sought out the other worker at the security entrance to courthouse, went behind the x-ray machine and stood over the worker in an intimidating manner. In re Mestas(PDF, 514KB), CSA 37-05, 6 (8/4/05) (decided under former 16-50 A.14).

Supervisor violated this rule when he failed to follow departmental security policy by entering secured area and door in courthouse. In re Mestas(PDF, 514KB), CSA 37-05, 7 (8/4/05).

Appellant violated CSA policy prohibiting use of email to send vulgar messages when she sent a vulgar email to coworkers during work hours. In re Garcia(PDF, 3MB), CSA 175-04, 3-4 (7/12/05).

E-mail using Spanish slang for s___ and f___ was vulgar, in violation of the standards of propriety expressed in Executive Order 16. In re Garcia(PDF, 3MB), CSA 175-04, 3-4 (7/12/05).

Appellant violated zoo regulations by his failure to comply with no-smoking policy known to him. In re Schultz, CSA 156-04, 9 (Order 6/20/05) (decided under former CSR 16-51 A.5).

Appellant violated departmental regulations regarding sick leave by his absence for more than eighty hours to care for a sick family member. In re Kinfe(PDF, 2MB), CSA 161-04, 6 (3/16/05).

Appellant violated agency rule requiring professional behavior when he disrupted a team meeting and expressed disrespect for the opinions of his co-workers by swearing, pounding his fist on the table, and storming out of the meeting. In re Green(PDF, 1MB), CSA 130-04, 3 (1/7/05).  

NOT FOUND 

The Agency did not prove that on the date alleged, appellant violated CSR 16-29 R (Violating Agency Rules) [now 16-28R] with violence, defined by E.O. 112, as applied here, to mean the victim knows it is occurring, where the victim did not learn appellant had committed it until 30 days later. In re Coates(PDF, 160KB), CSA 9-18 & 18-18, 9 (12/19/18).

The Agency did not prove appellant violated CSR 16-29 R (Violating Agency Rules) [now 16-28R] with violence where he criticized his supervisor and threatened to expose alleged agency malfeasance, but did not use foul or insulting language or threaten anyone personally or any property. In re Coates(PDF, 160KB), CSA 9-18 & 18-18, 5-6 (12/19/18).

Agency failed to prove appellant, Vehicle Impound employee, violated CSR 16-29R [now 16-28D], by violating RR 200.4.2 (Deception), by receiving bullets found in impounded auto but then denying he had received them, where two other witnesses testified customers left with the bullets. In re Tamburino(PDF, 534KB), CSA 40-17, 8 (4/23/18).

Unpublished work procedure that was subject to change was not a policy under this rule. In re Jackson(PDF, 180KB), CSA 21-15, 7-8 (1/15/16).

Agency failed to establish appellant violated a regulation prioritizing preventive maintenance where no evidence at hearing supported the allegation. In re Macieyovski(PDF, 2MB), CSA 28-14, 7-8 (10/13/14).

There is no finding to review where the hearing officer did not sustain a violation based on a departmental regulation. In re Kemp(PDF, 2MB), CSB 19-13, 6 (7/28/14). 

Dispatcher did not violate SOP requiring accurate dispatches by a dispatch that was accurate but not in the proper order. In re Rhodes(PDF, 2MB), CSA 23-14, 6 (7/25/14). 

General principles intended to express an agency's values are unenforceable by discipline. In re Black(PDF, 2MB), CSA 03-14, 5 (6/9/14), citing In re Serna(PDF, 96KB), CSA 39-12, 8 (5/23/13).  

Case coordinator who processes payments did not violate the inter-agency transfer procedure which did not direct any action related to the processing of payments. In re Black(PDF, 2MB), CSA 03-14, 5 (6/9/14).

Employee's failure to do her work did not violate the handbook's general standards of conduct to be respectful where no evidence supported the agency's finding that employee's work omission was disrespectful. In re Black(PDF, 2MB), CSA 03-14, 5 (6/9/14).

Citation to general goals cannot be enforced against an individual employee where the context gives no notice that it is intended to set forth a specific rule of conduct. In re Serna(PDF, 96KB), CSA 39-12, 8 (5/23/13), citing In re Gutierrez, CSB 65-11 (4/4/13).  

Employee handbook vision statement that employees should demonstrate accountability, integrity and teamwork did not establish a written departmental policy enforceable under this rule. In re Serna(PDF, 96KB), CSA 39-12, 8 (5/23/13).   

Administrator's recommendation of her husband's company to a service provider did not create a conflict of interest in violation of ethics rules where agency was an indirect beneficiary and not a party to the contract with the service provider. In re Mack(PDF, 946KB), CSA 43-12, 9-10 (3/18/13).  

Board of Ethics' determination that there was no conflict of interest is entitled to great weight. In re Mack(PDF, 946KB), CSA 43-12, 9 (3/18/13), citing DRMC 2-53(a). 

An appointing authority's disagreement with a Board of Ethics opinion does not justify an exception to the mandatory language of the rule prohibiting a finding contrary to an ethics opinion. In re Mack(PDF, 946KB), CSA 43-12, 9 (3/18/13), citing DRMC 2-54(d). 

Employee's conduct that is in accordance with an ethics opinion cannot be found by an agency to have violated the ethics code. In re Mack(PDF, 946KB), CSA 43-12, 9-10 (3/18/13), citing DRMC 2-54(d).

No violation of agency regulation to pay for cell phones was established even though appellant wrongfully obtained free phone replacements, which did not affect the agency’s responsibility to pay for them, and agency failed to explain how the rule applied. In re Roybal(PDF, 787KB), CSA 60-11, 6 (3/13/12).

Violation against City’s conflict of interest rule not established where appellant wrongfully obtained replacement equipment, but agency did not prove a benefit to her, a member of her family, business associate, or outside employer, and her own financial interest was minimal or non-existent. In re Roybal(PDF, 787KB), CSA 60-11, 8-9 (3/13/12).

A provision which states broad aspirational goals, but fails to provide sufficiently specific guidance as to what conduct is proscribed is unenforceable as a Career Service Rule violation. In re Roybal(PDF, 787KB), CSA 60-11, 9 (3/13/12).

Although deputy’s wearing uniform and gun to his child support hearing created a courtroom emergency, prompted a stern letter of reprimand from the presiding judge, and resulted in his being placed on courthouse watch list, agency failed to establish a violation of  this rule where it did not demonstrate harm to the agency’s mission, the City’s reputation or to its integrity. In re Strauch(PDF, 2MB), CSA 37-11, 8-9 (12/20/11).

Agency failed to establish dispatcher was careless under an SOP, for failing to dispatch the Denver Fire Department (DFD) to an injury accident where her co-worker twice confirmed the incident was non-injury and her supervisor explicitly directed her not to send DFD, in contravention of the SOP. In re Leslie(PDF, 8MB), CSA 10-11, 9 (12/5/11). 

Since obedience to a direct, legitimate instruction always trumps a more general duty, appellant did not act carelessly in violation of this rule when she followed her supervisor’s explicit direction which contravened an agency SOP. In re Leslie(PDF, 8MB), CSA 10-11, 9 (12/5/11).  

Agency’s failed to establish violation of its two-hour call-in rule before absences, where it presented no evidence whether appellant called in advance of her absences and tardiness. In re Rodriguez(PDF, 6MB), CSA 12-10, 17 (10/22/10).

Agency did not establish a violation of its general ethics policy to set a high standard of excellence and professionalism, where it failed to present any reasonably enforceable standard for compliance. In re Rodriguez(PDF, 6MB), CSA 12-10, 18 (10/22/10).

Agency policy prohibiting intimidating or threatening behavior is not violated where the alleged subject of intimidating behavior by an employee does not display any objective signs that he was intimidated, and a reasonable person in the subject’s position would not have been intimidated by his co-worker’s comment, “you deserved it,” but would have perceived the comment indicated annoyance or defensiveness. In re Cotton, CSA 104-09, 11 (10/18/10).    

Although Appellant knew agency attendance policy and failed to observe it, she did not violate this Rule because agency’s policy contradicts Career Service Rules, which permit sick leave for legitimate illnesses that do not exceed banked amount. In re Rock, CSA 09-10, 5-6 (10/5/10). 

Youth crisis center counselor did not violate agency regulation by taking youths to a horror movie instead of an approved movie, despite testimony of its potentially traumatic effects, where agency stated no regulation, policy or rule violated by the conduct. In re Abbey(PDF, 3MB), CSA 99-09, 10 (8/9/10). 

Agency did not establish that airport technician who engaged in sex at the airport thereby also failed to fulfill her duties or discredited the city in violation of rules governing employee conduct. In re Jones(PDF, 2MB), CSA 88-09, 5-6 (5/11/10).

Agency did not establish that airport technician who engaged in sex at the airport thereby also failed to adhere to high levels of ethical conduct in violation of charter. In re Jones(PDF, 2MB), CSA 88-09, 6 (5/11/10).

Fact that inmate hit his head while resisting the efforts of three deputies to restrain him does not establish excessive use of force under agency regulation. In re Koehler(PDF, 5MB), CSA 113-09, 13 (4/29/10).

Deputy did not commit disorderly conduct, and did not cause the public to lose confidence in the Agency, within meaning of sheriff’s policy by slamming inmate against wall, causing him to become aggressive. In re Koehler(PDF, 5MB), CSA 113-09, 15 (4/29/10), RR 300.10.

A failed attempt to disobey a lawful order is not a violation of departmental rule prohibiting disobedience to an order. In re Carter(PDF, 2MB), CSA 87-09, 6 (2/17/10); RR 200.13.

Department orders couched in aspirational terms such as "should adhere," "strive for excellence," and to be "accountable for everything we do" are too vague to enforce. In re Norman-Curry, CSA 28-07 & 50-08, 7, 17 (2/27/09); DO 2440.1. 

Written directives couched in vague, aspirational terms like "accountable for everything we do" and "strive for excellence" and reference to the golden rule provide guidance but are not orders to be enforced. In re Norman-Curry, CSA 28-07 & 50-08, 7, 17 (2/27/09); DO 2440.1. 

Rule violation was not proven where agency did not specify the employee conduct alleged to have violated a written departmental rule. In re Norman-Curry, CSA 28-07 & 50-08, 16 (2/27/09). 

Sheriff department rule which requires every witness to the use of force to file a "use of force" report, does not apply to the user of force.  It is illogical to require the actor to file a report as witness to her own actions, particularly since another rule requires the actor to report her use of force. In re Norman-Curry, CSA 28-07 & 50-08, 21 (2/27/09).

Agency’s failure to consider the effect of appellant’s conviction on her fitness to perform, or the city’s reputation or integrity pursuant to CSR 16-61 C, requires reversal of the discipline based on being charged with a crime in violation of departmental rule. In re Chavez(PDF, 483KB), CSA 129-08, 5-6 (2/24/09).

Evidence acquired after discipline was assessed will not be considered. In re Sawyer & Sproul(PDF, 1MB), CSA 33-08 & 34-08, 12-14 (1/27/09). 

Appellants did not violate agency rule against profiting financially from outside sources by citing their city employment experience as credentials to solicit business for their private business. In re Sawyer & Sproul(PDF, 1MB), CSA 33-08 & 34-08, 14 (1/27/09). 

Agency failed to prove violation of rule prohibiting profiting “if you think an action may be a conflict of interest” where appellant did not admit he believed his actions created a conflict with the agency. In re Sawyer & Sproul(PDF, 1MB), CSA 33-08 & 34-08, 14 (1/27/09).   

Where agency approved sick leave, appellant did not violate policy requiring employees to submit a doctor's slip if ordered to do so, as she must have submitted one to obtain approval. In re Williams(PDF, 377KB), CSA 53-08, 6 (12/19/08). 

Employees who had supervisor's permission to travel and work together as team did not violate agency directive that considered unnecessary trips unproductive unless approved by a supervisor. In re Compo, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-09, 13 (12/15/08). 

Lunch and breaks that did not exceed their allotted times did not violate department rules despite error in recording those breaks on daily log. In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-08, 17 (12/15/08). 

Agency failed to prove employee violated policy by driving his city vehicle to do personal errand where evidence showed employee was en route to an authorized work location, and break did not exceed time allotted. In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-08, 18 (12/15/08). 

Where agency claimed appellants worked only two hours at their home base while their logs claimed over four hours, but agency's evidence was inconclusive, agency failed to prove appellants violated any departmental rule or policy. In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-09, 16 (12/15/08). 

Agency failed to prove employee violated its policy by fraudulently attesting on his PEPR that he had a valid driver's license where the county court erroneously caused the suspension, and employee was unaware of that suspension when he signed the PEPR. In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-08, 20 (12/15/08). 

HR analyst did not violate agency record retention policy where he placed duplicate worker’s compensation documents in shredder before date of mandatory destruction under policy. In re Sienkiewicz(PDF, 1MB), CSA 10-08, 10 (7/14/08).

Appellant did not violate internal policy or practice prohibiting destruction of critical documents where agency commingled documents from several shredders, agency did not notify appellant of policy, and documents were not critical to operation of agency. In re Sienkiewicz(PDF, 1MB), CSA 10-08, 11 (7/14/08).

Agency did not establish violation of agency internet policy where agency did not rebut appellant’s evidence that he listened to music through radio station’s website during work hours, and used Google to research ergonomic issues as part of his duties. In re Sienkiewicz(PDF, 1MB), CSA 10-08, 16 (7/14/08).

Since agency failed to establish appellant violated any provision of the rules, Charter or municipal code, agency also did not prove a violation of this rule. In re Burghardt, CSA 81-07, 7 (3/28/08).

Memo that gave parameters for the exercise of discretion did not define an action that must be taken under specific circumstances, and therefore was not enforceable as a policy. In re Stone(PDF, 742KB), CSA 70-07, 10 (2/25/08).

Agency failed to prove associate city attorney violated agency regulations on plea offers when evidence showed that his plea offers followed office practice. In re Stone(PDF, 742KB), CSA 70-07, 10 (2/25/08).

Evidence that appellant used work time to assist her sister’s fraudulent application for benefits was insufficient to prove that her actions discredited the CSA, agency or city. In re Abdi,(PDF, 1MB) CSA 63-07, 28-29 (2/19/08).

Agency did not establish violation of this rule when it did not prove that city truck driver involved in an accident failed to review safety procedures, or that he violated and regulations, procedures, or traffic law. In re Sandrowski, CSA 58-07, 13 (2/6/08).

Agency failed to prove appellant violated alcohol policy where it could not be determined without the policy whether his conduct violated specific policy regulating alcohol use by employees or in agency facilities when it did not submit a copy of the policy. In re Rivas,(PDF, 821KB) CSA 49-07, 10 (1/9/08).

Appellant did not violate fraud prevention rule by disclosing a potential conflict of interest, since a violation may occur only for failing to disclose such conflict. In re Butler(PDF, 386KB), CSA 78-06, 6 (1/5/07).

Departmental policy prohibiting sexual harassment was not violated by appellant addressing co-worker as “babe”, “baby” or “honey”, when co-worker's reaction was that comment lacked professionalism but was not sexually oriented. In re Hernandez(PDF, 755KB), CSA 03-06, 8 (5/3/06), citing Dubiel v. USPS, 54 MSPR 428, 433-34 (1992).

Appellant did not violate SOP requiring appellant to provide doctor's note verifying illness to supervisor upon request when supervisor’s request did not occur until after appellant would have recovered from illness, and any doctor’s note would be ineffective to confirm appellant’s illness. In re Clayton(PDF, 368KB), CSA 128-05, 6 (3/21/06).

Appellant did not violate departmental rule against being absent without leave where agency’s absence report showed appellant was allowed to use accrued sick leave for each of the absences at issue. In re Garcia(PDF, 372KB), CSA 123-05, 4 (2/27/06).

Appellant did not violate excessive force policy in ordering an intoxicated prisoner be dragged to his cell where alternatives would have been ineffective, decision-maker acknowledged confusion over the policy, and dragging was proportional to the threat faced by the prisoner’s behavior. In re Brown(PDF, 555KB), CSA 102-05, 3-8 (2/15/06).

Dragging as use of force to transport prisoner was not unreasonable under department policy because it resulted in exposure of prisoner’s genitals, caused by his refusal to obey orders to pull up his pants. In re Brown(PDF, 555KB), CSA 102-05, 7 (2/15/06), citing Madyun v. Franzen, 704 F.2d 954 (7th Cir. 1983).

Agency failed to prove appellant violated departmental rule mandating discipline after specific number of uses of sick leave because rule conflicted with Career Service Rule authorizing use of sick leave. In re Espinoza(PDF, 500KB), CSA 30-05, 9 (1/11/06), affirmed In re Espinoza(PDF, 142KB), CSB 30-05 (8/23/06).

Employee who moved his city vehicle after an accident did not violate Handbook since the handbook contained no such prohibition and state law required him to move vehicle. In re Hobley,(PDF, 536KB) CSA 61-05, 6-7 (12/19/05) (decided under former CSR 16-51 A.5).

Employee who failed to have his driver’s license on his person at the time of an accident did not violate a departmental regulation to maintain a valid license. In re Hobley(PDF, 536KB), CSA 61-05, 6 (12/19/05).

Appellant did not violate agency policy when he failed to report traffic violations for driving carelessly, under suspension and under the influence where requirement was to “report crimes excluding minor traffic violations,” but interpretation of “crime” was ambiguous, agency later changed its policy to specify such offenses but did not give employees reasonable notice, and appellant’s duties did not require driving. In re Mitchell(PDF, 453KB), CSA 05-05, 6-7 (6/27/05).


16-28 T: Conduct Prejudicial (Former 16-60 Z)

IN GENERAL 

News coverage of an event, alone, is insufficient to establish a violation. In re Koonce(PDF, 281KB), CSA 34-17, 7 (12/22/17).

The same evidence that proved a violation of the “good order and effectiveness” portion of Sheriff Department Rule RR 300.11.6 also establishes a violation of CSR 16-29T. In re Wilson, CSA 38-17, 10 (12/8/17).

Wrongdoing under this rule now includes conduct which “could foreseeably” cause harm, in addition to actual harm. In re Marez,(PDF, 71KB) CSA 58-16, 8 (1/26/17).

More than imagination or sheer conjecture is required to establish a violation under this rule. In re Marez(PDF, 71KB), CSA 58-16, 8 (1/26/17).

That Appellant believed hearing officer should have reached a different conclusion does not constitute a misinterpretation of CSR 16-28 T. In re Strauch, CSB 40-13, 6 (7/17/14).

Violations of this rule must be decided on a case-by-case basis. In re Jones, CSB 88-09, 2-3 (9/29/10), affirmed In re Jones(PDF, 2MB), CSA 88-09 (5/11/10).

The kind of injury necessary to prove a violation of this rule will have to be decided on a case by case basis. In re Strasser, CSB 44-07, 2 (2/29/08).

FOUND 

Appellant admitted that he violated 16-28 T., by getting into a physical altercation with a co-worker, which was conduct unbecoming a City employee. In re Gaule(PDF, 66KB), CSA 06-19, 4 (5/29/19).

Appellant grabbing a co-worker by the collar, placing him in a headlock, punching him, and returning to engage angrily with him constituted conduct prejudicial to the good order and effectiveness of the Department. In re Gaule(PDF, 66KB), CSA 06-19, 4 (5/29/19).

Appellant violated CSR 16-29T where she, from a position of trust on behalf of the City, used and allowed others to use the City Center without having collected the required fees from the host customer. In re Rodriguez(PDF, 211KB), CSA 60-17, 6 (2/5/18), rev’d on other groundsIn re Rodriguez(PDF, 2MB), CSB 60-17A (9/20/18). 

Appellant comprehensively violated the prohibition against prejudicial conduct where she submitted false documentation of hours and mileage, invented excuses to conceal her absences, and feigned ignorance of agency rules that she disregarded. In re Hinojosa(PDF, 166KB), CSA 33-18, 10 (11/29/18).

Appellant's acknowledgement that his assaulting victim was unbecoming of a city employee established a violation of this rule. In re Christianson(PDF, 117KB), CSA 17-18, 5 (8/6/18). 

Violation established where prejudice to good order and effectiveness of agency where supervisor restricted bathroom breaks, told a subordinate “shut your mouth,” physically blocked a subordinate as if to fight, and told subordinates “look it up yourself” instead of assisting or guiding them. In re Burdett(PDF, 220KB), CSA 28-17, 5 (2/13/18).

Violation established where prejudice to the agency’s effectiveness resulted from supervisor’s failure to complete required audits.  Supervisor claimed she delegated that responsibility, but it was ultimately her responsibility. In re Burdett(PDF, 220KB), CSA 28-17, 5 (2/13/18).

Prejudice to agency - DMV -  established in violation of this rule where branch manager’s lack of oversight caused customers not to receive their titles timely, excessive time was spent to search for missing titles, customers had to make additional visits to request extensions, dealers and banks received complaints from customers about their titles, and branch manager’s justifications failed to explain why rejected titles were not processed within twenty-four hours as required. In re Burdett(PDF, 220KB), CSA 28-17, 6 (2/13/18).

Prejudice to DMV branch established where vehicle titles were not processed timely as required and branch manager claimed delay was caused by having to be on the floor during busy times and by being out on FMLA leave, but she did not mention her illness until the notice of discipline issued and did not request assistance to process titles. In re Burdett(PDF, 220KB), CSA 28-17, 6 (2/13/18).

This rule is applicable to misconduct regardless whether the prejudicial conduct involved family members. In re Santistevan(PDF, 683KB), CSB 75-16, 2 (11/16/17) (decided under former CSR 16-60 Z).

Violation established by appellant’s admission she raised her middle finger at a person. In re Garcia,(PDF, 112KB) CSA 35-17, 4 (10/4/17).

Appellant’s open and disloyal attack on the competence of her supervisor in front of their customers is conduct unbecoming a city employee under this rule. In re Martinez(PDF, 261KB), CSA 10-17, 7 (7/19/17). 

Where deputy’s partner separated the deputy and inmate because he believed inmate’s abuse was getting under deputy’s skin, agency’s finding that observers were shocked, scared or dumbfounded by deputy’s conduct was unsupported by the evidence. In re Turner(PDF, 276KB), CSA 01-17, 9 (6/26/17).

Violation established where vehicle boot investigator’s actions were contrary to the good order and effectiveness of the agency and were unbecoming a City employee when he falsely called police resulting in emergency response and detention of citizen which could well have resulted in suit against the City. In re Espinoza,(PDF, 168KB) CSA 73-16, 8 (4/14/17).

Verbal and physical abuse of cadets prejudiced the effectiveness of the cadet program under this rule. In re Fresquez(PDF, 57KB), CSA 63-16, 8 (2/24/17).

Hearing officer did not err in finding harm to the City under this rule where appellant-deputy’s actions caused unfounded APB to issue, resulting in the detention of an innocent civilian, and unnecessary investigation and expenditure of City resources. In re Strauch, CSB 40-13, 5 (7/17/14).

Deputy sheriff violated this rule when he asked co-workers to engage in a cover-up of his fraternization with an inmate, resulting in the destruction of their working relationship and a deleterious effect on the good order of the department. In re Romero(PDF, 242KB), CSA 01-12, 10 (4/17/12).

Counselor at youth crisis center violated this rule where he failed to control residents' aggressive behaviors leading to a fight and injuries, even though he was not present during the fight, where a core mission of the center is to maintain constant surveillance and control of residents. In re Abbey(PDF, 3MB), CSA 99-09, 11 (8/9/10).

Family crisis center youth worker's failure to intervene in a resident assault violated the mission of center to provide residents a safe environment, and thus proved a violation of this rule. In re O’Meallie, CSA 92-09, 6 (6/18/10).

Inmate's lawsuit against city based upon appellant's unjustified use of force resulted in negative publicity that brought disrepute on the city in violation of the second part of this rule. In re Norman-Curry, CSA 28-07 & 50-08, 23 (2/27/09), affirmed In re Norman-Curry(PDF, 166KB), CSB 28-07 & 50-08, 3 (9/3/09).

Prosecutor hindered agency mission to promote equal treatment for similarly situated defendants in traffic court when he knowingly made a more favorable plea offer than that offered by another prosecutor. In re Stone,(PDF, 742KB) CSA 70-07, 11 (2/25/08).

Associate city attorney’s failure to correct an unintentional misstatement to his supervisor negatively impacted his supervisor’s trust in appellant’s truthfulness, thereby negatively affecting his supervisor’s ability to supervise, in violation of the good order and effectiveness of the agency. In re Stone(PDF, 742KB), CSA 70-07, 11-12 (2/25/08).

By helping her sister fraudulently obtain public benefits, appellant violated this rule by diminishing the agency’s ability to accomplish its mission to distribute finite resources to those in need. In re Abdi,(PDF, 1MB) CSA 63-07, 30 (2/19/08).

Appellant hindered the agency’s mission to deliver recreational services to city residents and endangered the city’s reputation for the integrity of its employees by drinking alcohol with minor female two weeks after her suicide attempt by alcohol, causing her family to avoid the center. In re Rivas,(PDF, 821KB) CSA 49-07, 14 (1/9/08).

Appellant negatively impacted the good order of the sheriff’s department when he failed to take his grievance with co-worker through chain of command, and instead, assaulted co-worker within sight of inmates, diminishing deputies’ ability to deal effectively with unruly inmates. In re Delmonico,(PDF, 479KB) CSA 53-06, 6 (10/26/06).

Where a primary purpose of sheriff’s department is the safe-keeping of inmates, and appellant’s card-playing while on duty and failure to secure a jail door for fifteen to twenty minutes resulted in inmates being unsupervised and allowed access to other sections of the jail, appellant imperiled an important agency mission, in violation of this rule. In re Simpleman(PDF, 636KB), CSA 31-06, 10 (10/20/06), affirmed In re Simpleman(PDF, 148KB), CSB 31-06 (8/2/07).

NOT FOUND 

Agency failed to prove Appellant violated CSR 16-29T (Conduct Prejudicial) [now 16-28T] where its notice of discipline and evidence did not connect any particular behavior to this CSR. In re Gerovic(PDF, 315KB), CSA 77-17, 9 (6/1/18).

The Agency proved appellant violated CSR 16-29 T (Conduct Unbecoming) [now 16-28R] by damaging his supervisor’s car after his supervisor had just issued him a Written Reprimand. In re Coates(PDF, 160KB), CSA 9-18 & 18-18, 9 (12/19/18).

The Agency did not prove appellant violated CSR 16-29 T (Conduct Unbecoming) [now 16-28R] where, at a pre-disciplinary meeting, he rejected his Written Reprimand and threatened to expose alleged agency malfeasance, as his rejection had no legal value and he was entitled to provide rebuttal, although he did so inartfully, at this forum. In re Coates(PDF, 160KB), CSA 9-18 & 18-18, 6 (12/19/18).

No violation found where agency claimed there was news coverage of officer who escorted member of high-profile family through shortcuts in the booking process, but agency provided no news article which might have provided such evidence. In re Koonce(PDF, 281KB), CSA 34-17, 7 (12/22/17).

Agency’s conclusory statement of conduct unbecoming a City employee failed to establish violation of rule. In re Koonce(PDF, 281KB), CSA 34-17, 7 (12/22/17).

“She made us look bad” fails to prove a violation of any component of this rule. In re Schofield(PDF, 343KB), CSA 08-17, 16 (10/9/17).

No violation established by accusation that appellant-investigator left meeting with witness before it was over, but appellant credibly testified the meeting was over except for deputy DA to explain why the case was not going to be prosecuted – an action that did not require appellant’s presence, and the accusation failed establish a violation of any part of the rule. In re Schofield(PDF, 343KB), CSA 08-17, 16 (10/9/17).

No violation found where only evidence of violation was supervisor’s unsupported speculation that appellant’s substandard performance had possible effect on other employees, and portrayed potentially negative image of the agency. In re Marez(PDF, 71KB), CSA 58-16, 8 (8/29/16).

No violation established under agency claim that media coverage of alleged preferential treatment brought disrepute on and compromised integrity of agency where no evidence of media coverage was provided and hypothetical negative image was too tenuous to constitute “serious consequences or potential consequences” under agency rule 300.11.6. In re Rolando, CSA 40-15, 9 (1/26/16).

Agency’s belief that appellants’ activities put the agency at a disadvantage, without more, is too vague to establish a violation of this rule. In re Sawyer & Sproul,(PDF, 1MB) CSA 33-08 & 34-08, 15 (1/27/09).

16-30: Investigatory Leave with Pay

Rule obviously contemplates the placement of the target of the investigation on leave, not the whistleblower.  In re Muller,(PDF, 141KB) CSB 48-08, 2 (10/24/08).

16-41: Purpose of Discipline

N GENERAL

The seriousness of misconduct and degree of discipline are not fact findings to which the CSB is bound, but are ultimate findings over which the CSB may exercise discretion. In re Mancuso(PDF, 190KB), CSB 76-17, 2-3 (9/6/18).

Hearing officer’s finding that appellant was capable of reform was error of ultimate finding where appellant was on notice his interpersonal skills needed improvement, but he threatened to punch a co-worker and threatened retaliation against anyone complaining about his misconduct. In re Mancuso(PDF, 190KB), CSA 76-17, 3 (9/6/18).

Hearing officer erred in ultimate finding that appellant accepted responsibility for his misconduct where he persisted in claiming his threat to punch a coworker was funny, and that he is a known jokester, but appellant’s only expressed recognition of misconduct was his threat to retaliate against anyone who reported his threatened punch. In re Mancuso(PDF, 190KB), CSB 76-17, 4 (9/6/18).

Hearing officer misinterpreted CSR 16-41 where his conclusion as to the degree of discipline was incorrect, and failed to follow CSB precedent. In re Mancuso(PDF, 190KB), CSB 76-17, 4 (9/6/18).

The most appropriate focus in reviewing a penalty should be whether the discipline imposed by the agency was warranted by the misconduct that was proven, not whether misconduct first alleged but then not considered by the agency should mitigate the discipline. In re Economakos(PDF, 592KB), CSB 28-13, 3 (3/24/14). 

The purpose of discipline is to correct inappropriate behavior if possible. In re Quezada(PDF, 909KB), CSA 40-12, 9 (4/5/13); In re Abbey(PDF, 3MB), CSA 99-09, 11 (8/9/10).  

Appointing authorities are directed by CSR 16-41 to consider the severity of the offense, an employee’s past record, and the penalty most likely to achieve compliance with the rules. In re Gutierrez(PDF, 1MB), CSA 65-11, 16 (8/28/12), citing CSR 16-20, In re Abbey(PDF, 3MB), CSA 99-09, 11 (8/9/10); In re Norris(PDF, 2MB), CSA 68-09, 8 (7/12/10); In re Blan, CSA 40-08, 6 (7/31/08).

Where the agency does not specify if one basis for discipline was more egregious than another, the severity of violations is reviewed as approximately equal. In re Leslie(PDF, 8MB), CSA 10-11, 19 (12/5/11).  

Interpreting the Career Service Rules as limiting agency sanctions for poor performance to downgrading a performance rating would render meaningless the language of CSR 16-41 which permits an agency to assess discipline for inappropriate behavior or performance. In re Cady(PDF, 2MB), CSA 03-10, 4 (4/22/10).

Where agency’s disciplinary decision was based on a preponderance of the evidence and was not clearly excessive, its determination as to the degree of discipline must be sustained. In re Carter(PDF, 2MB), CSA 87-09, 10 (2/17/10), citing In re Weeks, CSB 26-09 (12/23/09); reversed on other grounds, 2010 CV 545 (6/21/10); affirmed on other grounds, City and Cty of Denver v. Weeks, 10CA1408, 11 (Colo. App. 10/13/11 – unpublished). 

Where past discipline has not corrected deputy sheriff's ongoing defiance of authority and abuse of inmates, and appellant consistently denied all responsibility for her actions, it is unlikely that appellant's conduct would improve with lesser discipline. In re Norman-Curry, CSA 28-07 & 50-08, 25 (2/27/09).

The corrective purpose of discipline is fulfilled when an agency tailors the penalty to the nature and circumstances of the misconduct and the employee’s past disciplinary history. In re Catalina(PDF, 656KB), CSA 35-08, 11 (8/22/08), citing In re Rogers, CSA 57-07, 7 (3/18/08).

It is improper to choose degree of discipline based upon whether it would show favoritism, rather than in the context required by the rules: whether a lesser degree of discipline might have achieved compliance. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 43 (5/30/08).

Where possible and practicable, the purpose of discipline under the rules is intended to be corrective rather than punitive, and should be progressive whenever practicable. In re Strasser CSB 44-07, 3 (2/29/08).

Discipline is not a matter of mathematical precision, but is rather the carefully-considered result of examining the facts and circumstances of the particular case, as well as the disciplinary record of the individual, including the nature and extent of similar discipline. In re Simpleman(PDF, 636KB), CSA 31-06, 10 (10/20/06), affirmed In re Simpleman(PDF, 148KB), CSB 31-06 (8/2/07).

The test to determine the propriety of discipline is whether the degree of discipline is reasonably related to the seriousness of the offense, taking into consideration appellant’s past disciplinary record. In re Delmonico,(PDF, 479KB) CSA 53-06, 8 (10/26/06); In re Simpleman(PDF, 549KB), CSA 05-06, 9 (5/16/06).

Magnitude of potential harm caused by misconduct may be considered in assessing level of discipline to be imposed. In re Simpleman(PDF, 549KB), CSA 05-06, 9 (5/16/06).

The test for discipline is not whether the discipline is the next step of progressive discipline, but rather whether the degree of discipline is reasonably related to the seriousness of the offense. In re Vigil,(PDF, 477KB) CSA 110-05, 8 (3/3/06), citing In re Champion(PDF, 1MB), CSB 71-02, 18 (7/31/02).

Hearing officer may consider past discipline and the current status of that discipline to determine reasonableness. In re Williams(PDF, 507KB), CSA 65-05, 7 (11/17/05).

Supervisor’s consideration of two past written reprimands that were later reduced to verbal warnings did not render the penalty of a written reprimand improper, since the same supervisor imposed all discipline, and only the degree of discipline changed between the time it was imposed and the appeal hearing. In re Williams(PDF, 507KB), CSA 65-05, 7 (11/17/05).

Rescinded discipline cannot be used for any disciplinary purpose against an employee. In re Williams(PDF, 507KB), CSA 65-05, 7 (11/17/05).

To condone misconduct only because no actual harm results would violate the Career Service Rules' purpose to correct inappropriate behavior. In re Owoeye(PDF, 3MB), CSA 11-05, 6 (6/10/05).

In [non-sheriff’s] disciplinary appeals, the agency bears the burden of proof to 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. In re Katros(PDF, 4MB), CSA 129-04, 6 (3/16/05), citing In re Castaneda,(PDF, 476KB) CSB 155-02 (7/1/03); In re Leal-McIntyre(PDF, 7MB), CSA 77-03, 134-03 & 167-03, 13 (1/27/05); In re Gustern, CSA 128-02, 20 (12/23/02).

DISMISSAL 

Dismissal was appropriate penalty for police dispatcher for three mismanaged calls and a three-minute failure to monitor a police channel where her violations potentially placed officers in danger, she minimized her many policy violations, and evidence did not show that decision-maker exceeded the range of reasonable discipline. In re Rhodes(PDF, 2MB), CSA 23-14, 8 (7/25/14).

Dismissal was reasonable for a case worker who manifested horror at a client’s disabled appearance, refused to work with her, and refused to acknowledge during the disciplinary process that her conduct was contrary to agency mission and standard of service. In re Perry-Wilborne(PDF, 2MB), CSA 62-13, 8-10 (5/22/14).  

Dismissal justified where Appellant assiduously avoiding fulfilling the duties and responsibilities of her position, treated co-workers and supervisor with scorn, refused to engage with them, engaged in threatening behavior, ignored directives, breached security, and prior coaching and discipline were ineffective. In re Robinson(PDF, 3MB), CSA 03-13, 11 (6/18/13).

Dismissal of human services clerk who improperly issued public benefits card was appropriate because her action was dishonest and the importance of honesty in her job gave the agency little basis to anticipate that any less severe penalty would serve the purposes of discipline under the Career Service Rules. In re Lopez(PDF, 451KB), CSA 41-12, 5 (4/5/13).

Discharge was a reasonable and necessary punishment where appellant continued to deny wrongdoing despite proof of serious misconduct, since the purpose of discipline is to correct behavior. In re Redacted, CSB 67-11, 7 (4/4/13). 

Termination justified due to appellant’s dishonesty, failure to acknowledge any wrongdoing, and agency’s loss of trust in appellant’s ability to complete his minimal-oversight duties, despite his only one minor, prior discipline. In re Gomez(PDF, 4MB), CSA 02-12, 8-9 (5/14/12). 

Appellant’s dismissal was appropriate despite his lack of disciplinary history where his conduct seriously endangered his co-workers, violated policy against horseplay, contradicted a direct order not to move the truck and he failed to acknowledge wrongdoingIn re Napoli, CSB 74-10, 5 (8/18/11).

A single egregious violation of the Career Service Rules justifies dismissal even in the absence of a prior disciplinary record. In re Napoli, CSB 74-10, 5 (8/18/11). 

Termination was appropriate discipline for Appellant’s intimidating and hostile conduct towards his supervisor and unprofessional conduct towards his co-worker, where Appellant did not accept responsibility for his actions, was previously suspended for similar intimidating conduct but given a second chance, and his anger escalated increasingly rapidly over minor occurrences, and his supervisor had counseled Appellant repeatedly on professionalism. In re Weiss(PDF, 3MB), CSA 68-10, 12-13 (2/14/11).    

Dismissal was appropriate where appellant case manager’s negligence delayed important welfare benefits to agency clients; she had a substantial and unabated history of attendance issues ; and after the agency’s notice in contemplation of discipline for tardiness, she reported late seven times, showing there was little basis that her compliance would improve with a lesser penalty. In re Rodriguez(PDF, 6MB), CSA 12-10, 22-23 (10/22/10). 

Dismissal was within the range of penalties that may be imposed by a reasonable administrator where DIA plumber failed to take responsibility for his intentional misconduct, dishonesty, misappropriation of City property, and excessive leave usage, despite having no previous disciplinary history. In re Duran, CSA 10-10, 13 (10/1/10).  

Agency’s dismissal of appellant was not excessive, where agency determined that he was unlikely to change his behavior, based on appellants’ disciplinary history including several, prior disciplines for the same behaviors. In re Abbey(PDF, 3MB), CSA 99-09, 12 (8/9/10).     

Appellant’s violations were severe, where his actions contravened two core functions of agency. In re Abbey(PDF, 3MB), CSA 99-09, 11 (8/9/10).

Dismissal of lead youth worker at family crisis center was appropriate for failure to intervene in resident assault or to enforce discipline in violation of center policies, where Appellant had received past counseling for failure to handle an assault properly and two reprimands for other violations. In re O’Meallie, CSA 92-09, 6-7 (6/18/10).

A lesser discipline than dismissal would have been unlikely to correct appellant’s offending behaviors where he denied he made an offensive public announcement about a co-worker, then attempted to subvert the investigation into his actions. In re Carter(PDF, 2MB), CSA 87-09, 9-10 (2/17/10).

In termination cases, deciding officials must conclude no lesser discipline would achieve the desired behavior or performance. In re Morgan(PDF, 987KB), CSA 63-08, 18 (4/6/09).

Termination was proper, despite no previous discipline, where appellant's intentional absences on every scheduled Saturday for seven months, coupled with his refusal to work future Saturdays, particularly when the agency was temporarily short staffed, negatively impacted the use of overtime, employee morale, and scheduling. In re Morgan(PDF, 987KB), CSA 63-08, 18 (4/6/09).

When an employee’s violations of a Career Service Rule are egregious, even an exemplary work history may not protect the employee from dismissal. In re Sawyer & Sproul,(PDF, 1MB) CSA 33-08 & 34-08, 17 (1/27/09). 

Termination was proper where agency’s thorough investigation into its allegations of theft and absenteeism against appellant established his long-standing pattern of ignoring agency rules; and appellant continued to deny wrongdoing, making it unlikely a fifth suspension would correct the same inappropriate behavior. In re Galindo(PDF, 780KB), CSA 39-08, 13 (9/5/08).

Dismissal was appropriate penalty where appellant’s actions violated the very mission of her agency, and she continued to deny wrongdoing, thus suggesting a lesser penalty would not correct the inappropriate behavior. In re Abdi,(PDF, 1MB) CSA 63-07, 32 (2/19/08).

Termination of deputy sheriff for dishonesty and playing cards while guarding felony inmates was reasonably related to offense when deputy had been disciplined every year since his hire, had just returned from a substantial suspension for dishonesty, and continued to deny any wrongdoing. In re Simpleman(PDF, 636KB), CSA 31-06, 10-11 (10/20/06), affirmed In re Simpleman(PDF, 148KB), CSB 31-06 (8/2/07).

Termination for dissemination of a vulgar e-mail was within the range of reasonable alternatives available to the agency where appellant had two suspensions and a written reprimand during the past year. In re Garcia(PDF, 3MB), CSA 175-04, 9 (7/12/05).

SUSPENSION

One-day suspension was appropriate where appellant neglected duty to forward request for accommodation for four months, and had one prior written reprimand, despite being a valuable employee with good work reviews. In re Trujillo(PDF, 1MB), CSA 53-13, 6 (4/14/14).

Eight-day suspension was a reasonable penalty for employee who disobeyed a direct order, and had three previous disciplinary actions including a five-day suspension the same year for disobeying a direct order. In re Macieyovski(PDF, 2MB), CSA 55-13, 5 (4/1/14).

Thirty-day suspension struck a proper balance where appellant was a long-term employee with no prior discipline, did not commit the most serious violations alleged, but did engage in unprofessional conduct. In re Gutierrez, CSB 65-11, 5 (4/4/13). 

Thirty-day suspension was sufficiently severe so as not to deprecate the seriousness of the misconduct and to ensure appellant will act more professionally. In re Gutierrez, CSB 65-11, 5 (4/4/13). 

Fifty-day suspension was appropriate for deputy who violated agency policy by creating a courtroom emergency by wearing his uniform and gun to his child support hearing, and was dishonest about the circumstances of the incident, but his exemplary work ethic, performance, and lack of prior discipline mitigated against termination. In re Strauch(PDF, 2MB), CSA 37-11, 9-10 (12/20/11).  

Two–week suspension was within the reasonable range of discipline that could be imposed on an animal control officer who had no prior discipline, but was careless, and abused a member of the public with whom he failed to maintain a satisfactory relationship. In re Gonzales(PDF, 469KB), CSA 42-10, 8-9 (12/30/10).    

Five-day suspension was appropriate where judicial assistant was careless and violated two performance standards. She had already been disciplined seven times, including two suspensions for gross negligence or willful neglect of duty, and a suspension for failing to comply with orders, and she failed to establish that her errors were caused by lack of training opportunities. In re Roberts, CSA 40-10 & 48-10, 13 (11/15/10).   

Fifteen-day suspension was consistent with the purpose of discipline where judicial assistant made four mistakes in the month following a five-day suspension for the same conduct, and harmed her relationship with her supervisor by angrily confronting her in front of a customer. In re Roberts, CSA 40-10 & 48-10, 13 (11/15/10).   

Five-day suspension was appropriate discipline where call-center agent mistreated an angry caller, was tardy and absent from her desk on multiple occasions, and had received verbal and written reprimands and a three-day suspension for misconduct and previous violations of attendance policies, although her previous performance was mostly satisfactory or better. In re Jackson, CSA 39-10, 11 (10/7/10).     

Forty-hour suspension was appropriate discipline to correct employee’s behavior, where employee threatened and failed to maintain a satisfactory relationship with members of the public, had an extended probation period due to interpersonal communication issues, and recently received a verbal warning for negative interaction with a customer. In re D’Ambrosio, CSA 98-09, 10 (5/7/10).     

Twenty-day suspension was proper where appellant was disrespectful towards a co-worker, willfully violated lawful orders, and had past record replete with refusals of direct orders. In re Owens(PDF, 469KB), CSA 69-08, 8 (2/6/09), citing In re Mounjim(PDF, 1MB), CSA 87-07, 18 (7/10/08).

Three-day suspension for two unauthorized absences affirmed where appellant violated agency attendance policies that allowed discipline for two absences per year, appellant was disciplined for same reason previously, and appellant's absences created hardship on co-workers and agency. In re Turner,(PDF, 560KB) CSA 76-08, 9 (1/16/09).

Three-day suspension was appropriate where appellant was careless and violated performance standards of communications plan in failing to communicate with his supervisor despite three reprimands within six months for similar violations, and appellant’s testimony showed that he denied violating his communications plan. In re Hill,(PDF, 403KB) CSA 69-07, 7 (1/23/08).

Thirty-day suspension was proper where appellant escalated a mere teasing into a physical confrontation resulting in injuries to co-worker, despite appellant’s clear disciplinary record and positive reports from supervisors. In re Delmonico(PDF, 479KB), CSA 53-06, 8 (10/26/06).

Deputy sheriff’s forty-five-day suspension for dishonesty and playing cards while guarding felony inmates was reasonably related to offense when deputy had been disciplined for dishonesty on two other occasions, and denied his wrongdoing. In re Martinez,(PDF, 541KB) CSA 30-06, 9 (10/3/06).

Given appellant’s extensive previous discipline for almost identical violations, four-week suspension was within range of discipline that could be imposed by a reasonable administrator. In re Diaz(PDF, 432KB), CSA 13-06, 7-8 (5/31/06).

Thirty-day suspension was within range of reasonable alternatives for deputy sheriff sleeping while on duty. In re Simpleman(PDF, 549KB), CSA 05-06, 9 (5/16/06).

Thirty-day suspension was reasonable penalty for deputy sheriff who intercepted two inmate grievances and delivered insulting responses to the inmates, given his lack of previous discipline in eight years of service. In re Gonzales(PDF, 455KB), CSA 07-06, 8 (5/4/06).

Ten-hour suspension was appropriate for appellant falsely claiming one day’s sick leave, given her good work history and lack of previous discipline for dishonesty. In re Clayton,(PDF, 368KB) CSA 128-05, 6-7 (3/21/06).

Five-day suspension was appropriate for unauthorized absences after employee received ample notice of the seriousness of her absenteeism in the form of stricter attendance expectations, and previous discipline for same misconduct. In re Edwards(PDF, 444KB), CSA 21-05, 7-zz8 (2/22/06).

Two-week suspension was appropriate when previous discipline including shorter suspension did not correct similar past behavior and performance deficiencies. In re Diaz(PDF, 647KB), CSA 92-05, 11 (1/31/06).

One-day suspension was well within range of reasonable alternatives for performance mistakes and attendance violations that continued despite previous discipline for the same misconduct. In re Diaz(PDF, 507KB), CSA 45-05, 10 (9/7/05).

MODIFIED

Four-day suspension reduced to written reprimand where appellant attempted, although imperfectly, to comply with orders, because he learned from his mistake and he appears unlikely to repeat any similar conduct. In re Shelley & Martinez, CSB 30-13 & 32-13, 3 (12/9/14).

The hearing officer deprecated the seriousness of the offenses that were proven in giving weight to factors the manager did not consider in imposing the penalty. In re Economakos(PDF, 592KB), CSB 28-13, 3 (3/24/14). 

Where the most egregious sexual harassment violations against appellant were not proven, seventy-five-day suspension was excessive in view of his clear disciplinary history. In re Gutierrez(PDF, 1MB), CSA 65-11, 16-17 (8/28/12). 

Termination modified to a five-day suspension where the agency proved only four of fourteen alleged violations, none of the four violations was egregious; appellant’s previous discipline was minor; and Appellant could correct those communication issues for which she was disciplined. In re Leslie(PDF, 8MB), CSA 10-11, 19-21 (12/5/11). 

Termination modified to five-day suspension where Agency’s assessment that appellant exhibited a persistent pattern of similar misbehavior was not justified by her record which was included only one older, prior incident. In re Leslie(PDF, 8MB), CSA 10-11, 20 (12/5/11).

A separate penalty hearing is appropriate to complete a de novo determination on the appropriateness of the penalty imposed, where the Agency terminated employee but established that he violated only three out of ten rules asserted in the disciplinary letter, inexplicably gave substantially different penalties to the parties for their roles in the same incident, and failed to read twenty witness statements asserting that employee was not the aggressor in the incident, and the employee had no previous disciplinary history. In re Cotton, CSA 104-09, 13 (10/18/10).  

Termination was not substantially conceived to correct performance failures where failures were substantially mitigated by lack of training, complexity of tasks, changes in staff and agency structure, unresolved communication issues, and more lenient treatment of other employees based on the same wrongdoing. In re Mestas, Salazar, Fuentes & Sierra, CSA 64-07, 61-07, 62-07 & 67-07, 43-44 (5/30/08).

Termination was not narrowly tailored to correct the behavior, nor reasonably related to the seriousness of the offense, and did not take into account appellant's past record, where appellant playfully slapped her co-worker harder than she intended during a friendly conversation, causing temporary pain, requiring modification of penalty to a one-day suspension. In re Freeman(PDF, 557KB), CSA 40-04 & 75-04, 10 (3/3/05).


16-42: Progressive Discipline (Former 16-50)

IN GENERAL

Dismissal was not within the range of alternatives available to a reasonable and prudent administrator, was not supported by the evidence, and was clearly erroneous, where agency proved only two minor violations, appellant’s work reviews were all exceeds or meets expectations, she acknowledged and committed to change for her prior, unrelated violation, and agency did not show appellant would be unlikely to reform her behavior. In re Schofield,(PDF, 343KB) CSA 08-17, 18 (10/9/17).

Fourteen-day suspension for falling asleep while armed and guarding a dangerous prisoner in an unsecured hospital room was not excessive despite lesser discipline given to deputies sleeping in a secured setting. In re Andrews(PDF, 140KB), CSA 16-17, 4 (8/1/17).

Where deputy with past discipline used inappropriate force right after being warned against it by his partner, and was deceptive in three material matters during the investigation, Agency reasonably imposed dismissal rather than a mitigated penalty despite the deputy’s long and successful career. In re Turner(PDF, 276KB), CSA 01-17, 10-11 (6/26/17).

Ten-day suspension for pulling inmate’s hair was not arbitrary and did not set improper precedent since it was a reasoned decision based on the unique facts of the case and an individualized application of the principles embodied in the agency’s disciplinary matrix. In re Romero, CSB 28-16, 2-3 (6/15/17).

Five-day suspension was clearly erroneous and not within the range of alternatives available to a reasonable administrator, where only violation proven of several alleged was a deadline missed by three days, no harm resulted, appellant was remorseful, and she immediately corrected error. In re Lee(PDF, 175KB), CSA 70-16, 6 (3/3/17).

Dismissal was reasonable where manager displayed the same disrespectful behavior for which she was previously counseled, and subordinates reacted in a strongly negative manner to her verbal abuse, favoritism, and inappropriate physical contact. In re Fresquez(PDF, 57KB), CSA 63-16, 9 (2/24/17).

$3 per hour reduction in pay for six pay periods was well-suited to the violations of issuing late and erroneous subpoenas which caused the dismissal of a child abuse case, but appellant had favorable long-term record, and errors did not recur subsequently due to appellant’s increased care in issuing subpoenas. In re McKisson(PDF, 39KB), CSA 69-16, 4-5 (1/31/17).

Seven-day suspension for erroneous release of prisoner was supported by past discipline for a prior erroneous release, and negative effect of the misconduct. Deputy’s positive employment history did  not mitigate the penalty. In re Espinoza, CSA 14-16, 7 (7/27/16).

The Career Service Rules do not require that formal discipline must be imposed before a previous event may be considered as relevant to an appropriate penalty. In re Espinoza, CSA 14-16, 8 (7/27/16).

CSB may increase punishment beyond that assessed by agency when an appellant falsely pled contrition to appointing authority to obtain mitigated discipline, then disavowed that plea at hearing. In re Espinoza(PDF, 810KB), CSB 42-15, 4 (7/27/16).

Lengthy internal investigation is not a factor in mitigation of a penalty where the deputy presented no evidence he was prejudiced by that delay. In re Espinoza, 14-16, 8 CSA (7/27/16).

“Consistent discipline” under Sheriff’s Dept disciplinary matrix does not require “identical discipline.” In re Espinoza(PDF, 810KB), CSB 42-15, n.5 (7/21/16).  

The Ford decision was never intended to and does not create a strict comparative discipline system in the sheriff department, but warns arbitrarily imposed discipline will not be tolerated. In re Romero, CSB 28-16, 2 (6/15/17), citing In re Ford(PDF, 3MB), CSB 48-14 (12/17/15).

Fact that prior discipline for same offense was too lenient does not establish that current discipline is excessive as record reflects sufficient, reasonable, and articulated justification for discipline. In re Romero, CSB 28-16, 2 (6/15/17).

In determining level of penalty, employee's past violation of the same rule may be considered as a factor aggravating the seriousness of the current violation. In re Clayton, CSA 111-09, 8 (4/6/10).

Progressive discipline is not required in aggravated cases, particularly where a lesser penalty is unlikely to achieve compliance. In re Abdi,(PDF, 1MB) CSA 63-07, 32 (2/19/08).

FOUND  

Ten-day suspension was reasonable where female supervisor tricked a male subordinate into kissing her in front of a security camera, doubled down a week later by showing him a photo of the kiss, and expressed no remorse until her conduct was reported to her managers. In re Novitch(PDF, 1MB), CSB 49-15, n12 (9/15/16).

Ten-day suspension was reasonable for sexual harassment that was thoughtless, unprofessional, and antithetical to the city’s policies intended to ensure a workplace free of discrimination and harassment. In re Novitch(PDF, 1MB), CSB 49-15, 2 (9/15/16).

Dismissal was reasonable where agency followed progressive discipline, appellant had recent suspensions, and appellant did not correct bad behavior after agency did all it could to coach, correct and encourage appellant. In re Macieyovski(PDF, 2MB), CSA 28-14, 8 (10/13/14).

Five-day suspension was reasonable for appellant who left his assignment early and sent a customer back to the waiting area, after he had received a one-day suspension for inadequate service five weeks earlier and had been counseled seven times for the same issue. In re Vega(PDF, 1MB), CSA 12-14, 4-5 (7/3/14).

Termination was consistent with principles of progressive discipline, where Appellant continued to exhibit intimidating and hostile behavior towards co-workers, even after he was suspended for five days for such conduct a year prior,  given a second chance, counseled by his supervisor repeatedly on professionalism, and he failed to accept responsibility for his actions. In re Weiss(PDF, 3MB), CSA 68-10, 11-13 (2/14/11).   

Fifteen-day suspension was consistent with the purpose of discipline where judicial assistant made five mistakes in the month following a five-day suspension for the same conduct, harmed her relationship with her supervisor by angrily confronting her in front of a customer, and she had seven previous disciplinary actions. In re Roberts, CSA 40-10 & 48-10, 13 (11/15/10).   

Although employee was highly-rated and dedicated with only a prior verbal reprimand, dismissal was appropriate where employee disobeyed two direct orders and failed to meet performance standards, adversely affecting her assigned projects and relationships with team members, and prior counseling, mentoring sessions, warnings, an improvement plan, and extensive remedial training to reinforce standards over a five-month period did not correct her behavior or belief that she had done nothing wrong, indicating that lesser discipline would not alter her behavior. In re Harrison(PDF, 4MB), CSA 55-07, 89-07 & 90-07, 57-8 (6/17/10).   

Forty-hour suspension was appropriate progressive discipline to correct employee’s behavior where employee threatened and failed to maintain a satisfactory relationship with members of the public, had an extended probation period due to interpersonal communication issues, and was recently issued a verbal warning for another negative interaction with a customer. In re D’Ambrosio, CSA 98-09, 10 (5/7/10). 

Thirty-day suspension comports with the principles of progressive discipline where appellant’s prior discipline for dishonesty failed to deter her subsequent dishonest claim for overtime. In re Clayton, CSA 111-09, 8 (4/6/10).

Dismissal was not excessive where decision-maker gave employees ample warning, notice of their violations, and opportunity to come into compliance, and they willfully refused to do so. In re Sawyer & Sproul(PDF, 1MB), CSA 33-08 & 34-08, 18 (1/27/09). 

Two-day suspension for four attendance violations and angry confrontations with payroll clerk where appellant had prior discipline for attendance issues and negative interactions with coworkers and a number of remedial measures were taken to assist appellant in improving in these areas. In re Williams(PDF, 377KB), CSA 53-08, 6 (12/19/08). 

Termination was appropriate where agency concluded theft and absenteeism were a continuation of long-standing pattern of behavior ignoring agency rules. In re Galindo,(PDF, 780KB) CSA 39-08, 13 (9/5/08).

Appellant’s continued denial of wrongdoing renders it unlikely that a fifth suspension would correct the same inappropriate behavior for which he had received previous reprimands and suspensions over the course of twenty-three years. In re Galindo,(PDF, 780KB) CSA 39-08, 13 (9/5/08).

Deputy’s admission of a basis for criminal charge of soliciting a prostitute, and resulting compromise of his duties, constitute a violation severe enough to preclude progressive discipline and justify dismissal, despite lack of prior discipline and satisfactory performance reviews. In re Griffith, CSA 41-08, 5 (8/14/08).

Four-day suspension was appropriate for second violation for misuse of work time by paralegal when verbal reprimand for similar offense two months before did not achieve the desired compliance. In re Blan, CSA 40-08, 6-7 (7/31/08).

Employee’s failure to correct behavior after previous discipline may be considered in determining the appropriate penalty for later offenses. In re Feltes,(PDF, 483KB) CSA 50-06, 7 (11/24/06).

Termination was appropriate for premeditated pattern of false statements in attempt to cover up payroll clerk’s dishonesty after past discipline, resulting in minor financial impact on city. In re Feltes,(PDF, 483KB) CSA 50-06, 7 (11/24/06).

Termination of deputy sheriff with long history of discipline who continued to deny wrongdoing was reasonable under rule. In re Simpleman(PDF, 636KB), CSA 31-06, 10-11 (10/20/06), affirmed In re Simpleman(PDF, 148KB), CSB 31-06 (8/2/07).

Three-day suspension based upon appellant's repeated requests of a co-worker to log her into her time records was justified by the severity and frequency of the misconduct, and its adverse effect on a co-worker, and is not double punishment for her misconduct which affected her Performance Enhancement Program Report negatively. In re Roberts(PDF, 2MB), CSA 179-04, 6-7 (6/29/05).

Termination was justified based on employee's responsibility for assault on supervisor after two lengthy suspensions for similar acts. In re Moreno(PDF, 34KB), CSA 138-04, 9 (5/25/05).

Five-day suspension was consistent with the purposes of progressive discipline despite appellant's lack of previous discipline where appellant exhibited pattern of behavior over three months of disregard of the rules she disagreed with and criticism of her supervisor in front of his staff and manager. In re Lucero,(PDF, 654KB) CSA 162-04, 12 (4/15/05).

Ten-day suspension was justified for appellant's sleeping on the job based upon similar offense one month before the incident, and five disciplinary actions within the previous ten months. Appellant’s behavior, which he argued was involuntary based on a medical condition, was determined to be voluntary based on his moonlighting another nearly full-time job. In re Owens,(PDF, 9MB) CSA 139-04, 8 (3/31/05).

Agency reasonably concluded that progressive discipline required the imposition of a more severe penalty, given the fact that less severe discipline had not corrected the behavior. In re Owens(PDF, 9MB), CSA 139-04, 8 (3/31/05).

Termination was reasonable for violation of Executive Order 112 two months after similar incident. In re Katros(PDF, 4MB), CSA 129-04, 11 (3/16/05).

Termination was justified despite lack of prior discipline and excellent past performance when appellant was absent two months beyond the expiration of his authorized leave and more than six weeks beyond his requested extension of that leave. In re Kinfe(PDF, 2MB), CSA 161-04, 7 (3/16/05).

Recent similar violation, expression of intense hatred toward co-worker, and appellant's public role within the agency aggravated the seriousness of incident to justify a three-day suspension. In re Routa(PDF, 2MB), CSA 123-04, 6 (1/27/05).

NOT FOUND  

Reduction of ten-day suspension to written reprimand deprecated the seriousness of the misconduct of a manager who tricked a subordinate into kissing her, and would send the wrong message regarding the city’s dedication to maintain a work environment safe for all and free of unwanted misconduct. In re Novitch(PDF, 1MB), CSB 49-15, 4 (9/15/16).

Four-day suspension reduced to written reprimand where appellant attempted, although imperfectly, to comply with orders, because he learned from his mistake and would be unlikely to repeat any similar misconduct. In re Shelley & Martinez, CSB 30-13 & 32-13, 3 (12/9/14).

While most severe allegations of sexual harassment were not proven, and therefore did not justify a seventy-five-day suspension, appellant’s somewhat questionable commitment to reform justified a thirty-day suspension. In re Gutierrez(PDF, 1MB), CSA 65-11, 17 (8/28/12).  

Modification from termination to five-day suspension appropriate where Agency only proved four out of fourteen alleged violations, none of which was egregious; appellant’s disciplinary history was minor; and appellant was effective; but her sarcasm with co-workers persisted in an environment where effective communication is critical. In re Leslie(PDF, 8MB), CSA 10-11, 20-21 (12/5/11).   

Appellant’s failure to rein in her condescending communication when she perceived someone to be in error was significant and deserving of progressive discipline, but not termination. In re Leslie(PDF, 8MB), CSA 10-11, 20 (12/5/11). 

Twenty-day suspension for three relatively minor violations of city breaks and lunch policy after fourteen and sixteen years of employment without discipline is excessive in light of written reprimand of another employee from the same team with same disciplinary history for being in restaurant for over thirty minutes and reporting it as work time. In re Compos, Herrera, Sandler & Sena, CSA 56-08, 57-08, 58-08 & 59-08, 20 (12/15/08). 

Termination was inappropriate where agency failed to prove the most serious charges, and it had based the termination on its conclusion that appellant was incapable of changing his behavior, despite his apology and previous improvements after criticism. In re Sienkiewicz,(PDF, 1MB) CSA 10-08, 17 (7/14/08).

One-week suspension, rather than termination was appropriate penalty where agency proved appellant failed to meet performance standard by not communicating important information to co-worker, but mitigation included lack of disciplinary record, positive past performance and appellant’s  demonstrated willingness to improve his performance. In re Sienkiewicz,(PDF, 1MB) CSA 10-08, 18 (7/14/08).

Termination was inappropriate based on one minor unintentional violation of policy where appellant performed satisfactorily in position for eighteen years with only one written reprimand which acknowledged improvements she made and that she met job requirements. In re Mounjim(PDF, 1MB), CSA 87-07, 19 (7/10/08).

16-45: Procedure for Dismissal

It is every employee’s responsibility to update his or her residence address, mailing address and phone number to reflect current information in the city’s personnel records. In re Kemp(PDF, 106KB), CSA 61-08, 2 (Order 9/17/08).

Appeal was untimely when filed two days after the fifteen-day deadline. In re Kemp,(PDF, 106KB) CSA 61-08, 2 (Order 9/17/08).

16-46: Contemplation of Discipline (Former 16-40)

IN GENERAL

The right to a post-termination hearing limits an employee’s pre-termination due process rights to a notice of the charges, a recitation of the employer’s evidence, and an opportunity to be heard.  In re Mounjim(PDF, 495KB), CSB 87-07, 7-8 (1/8/09). citing Cleveland Board Education v. Loudermill, 470 U.S. 532, 546 (1985).

A voluminous recitation of facts which support each rule violation is not required in an agency’s pre-disciplinary letter.  In re Mounjim(PDF, 495KB), CSB 87-07, 7 (1/8/09) [Modified - The agency must specify conduct which violated each cited CSR. CSR 16-46 E.2].

NOT FOUND

Agency's failure to include in the pre-disciplinary letter the decision-maker's testimony about specific training did not deny deputy's due process rights. In re Kemp(PDF, 2MB), CSB 19-13, 4 (7/28/14).

Failure to reset meeting with supervisor to discuss incident underlying discipline, cancelled at appellant’s request, did not deny opportunity to correct any errors and to be heard in explanation or mitigation during subsequent pre-disciplinary meeting. In re Weiss(PDF, 3MB), CSA 68-10, 7 (2/14/11). 

Repeated pre-disciplinary procedure not required even though agency failed to comply strictly with Career Service Rule requiring disciplinary action or request for extension within fifteen days after pre-disciplinary meeting since Appellant did not show her rights were substantially violated.  In re Berlin(PDF, 69KB), CSA 81-10 (Order 1/19/11).

Pre-disciplinary meeting held by phone from employee's jail cell did not violate Career Service Rules or HIPAA, a federal law protecting the privacy of medical records, since HIPAA does not provide a remedy to individuals, and inmates lose some of their privacy rights.  In re Carrillo(PDF, 2MB), CSA 95-09, 6 (3/16/10).

Agency had no notice of employee's request to continue the pre-disciplinary meeting where she made the request to a jailor and not a member of the agency.  In re Carrillo(PDF, 2MB), CSA 95-09, 7 (3/16/10).

Appellants were not denied notice of the claims against them under this rule where agency claims were not unduly complex, voluminous, or otherwise unclear, and it sent letters of contemplation of discipline well in advance of the pre-disciplinary meetings.  In re Sawyer & Sproul(PDF, 1MB), CSA 33-08 & 34-08, 16 (1/27/09). 

Agency must identify, at the pre-disciplinary stage, what facts it relied on to establish a rule violation so the employee has an opportunity to respond meaningfully to the allegations. Evidence establishing a violation may not be raised for the first time at hearing In re Mounjim(PDF, 1MB), CSA 87-07, 5 (7/10/08).

The requirements of a fair hearing include notice of the claims and an opportunity to address them. Broad, unspecified statements - generic notice - are no notice at all. In re Mounjim(PDF, 1MB), CSA 87-07, 15 (7/10/08), citing Shaw v. Valdez, 819 F.2d 965 (10th Cir. 1987).

Agency’s dismissal letter did not cite incident on which its decision was substantially based, rendering its decision unjustified. In re Mounjim,(PDF, 1MB) CSA 87-07, 18-19 (7/10/08).

Agency's decision to change the locks during Appellant’s investigatory leave did not affect Appellant's ability to participate in the pre-disciplinary process.  In re Smith, CSA 17-05, 9 (7/07/05).

Agency's delivery of disciplinary letters to appellant's stale address was harmless error since Appellant provided no way for agency to notify him. In re Kinfe, (PDF, 2MB)CSA 161-04, 4 (3/16/05) (decided under former 16-30), citing Loudermill v. Cleveland Board of Education, 470 U.S. 532 (1985). 


16-48: Disciplinary Action Following Pre-Disciplinary Meeting

Disciplinary notices must be in writing and must be served on the employee.  In re Webster(PDF, 272KB),  CSA 03-11, 1 (Order 1/14/11).