·     In an agency motion to dismiss, statements in the appeal must be viewed in the light most favorable to the appellant, all appellant’s assertions of material facts must be accepted as true, and the motion to dismiss must be denied unless it appears beyond doubt the appellant cannot prove the facts as he alleges them would entitle him to relief.  In re Muller, CSA 48-08 (7/24/08), citing Dorman v. Petrol Aspen, Inc., 914 P.2d 909, 911 (Colo. App. 1996).         

·     Hearing officer’s authority to award back pay derives from § 19-55 which requires a decision affirming, modifying, or reversing the agency action challenged by appeal.  In re Maes, CSA 180-03, 6 (6/20/08).

·     Authority to modify or reverse agency termination decision necessarily includes authority to award reinstatement, restoration of lost pay at the applicable rate, and payment of any lost benefits.  In re Maes, CSA 180-03, 6 (6/20/08).

·     Hearing office lacks jurisdiction to award damages for breach of contract, including consequential damages arising from any lost opportunities for secondary employment.  In re Maes, CSA 180-03, 6 (6/20/08).

·      CSR § 19-10 sets forth the types of matters over which the hearing office has jurisdiction.  If the matter complained of is not one of the subjects listed within the rule, or the remedy sought is not one which the hearing officer has authority to grant, the hearing officer is left without jurisdiction to consider the merits of the appeal.  In re Luft, CSA 80-07 (Order 6/13/08).

·     Hearing office has no jurisdiction to hear a claim of discrimination on the grounds of equal protection by a terminated probationary employee because he was not afforded a pre-disciplinary meeting.  In re Romero, CSA 03-08, 2 (2/6/08).

·     The proper forum for addressing deputy sheriff’s compensation dispute is through the grievance and arbitration provisions of the collective bargaining agreement, as authorized by the Charter, not the career service appeal process.  In re Sullivan, CSA 60-07, 2 (CSB 2/1/08).

·      Hearing officer has no jurisdiction to hear deputy sheriff’s appeal of grievance based on arbitration award relating to holiday pay arising out of collective bargaining agreement. In re Sullivan, CSA 60-07, 2 (9/19/07), affirmed CSB 2/1/08.

·     If the matter appealed is not one of the subjects listed within the rule, or the remedy sought is not one that the hearing officer has authority to grant, the hearing officer has no authority to consider the arguments or merits of the appeal.  In re Valdez, CSA 96-06, 1 (11/16/06).

·       Agency jurisdiction under the Career Service Rules is strictly construed, and is limited to the actions set forth in Rule 19.  In re Johnson, CSA 135-05, 2 (3/10/06). 

19-10 A.1:  Direct Appeals

·     A direct appeal may be taken only to challenge the acts of an appointing authority, the municipal official designated by the annual appropriation ordinance to approve expenditures for a given appropriation.  In re Lovin, CSA 27-06, 1 (5/18/06) (decided under former § 19-10 A.).

·     Section 19-10 A. provides no basis for a direct appeal of the determination of the amount of accrued vacation leave and compensatory time under § 14-51.  In re Lovin, CSA 27-06, 1 (5/18/06) (decided under former § 19-10 A.).

·     Direct appeal is not available to challenge city auditor’s determination of amount of separated employee’s accrued leave.  In re Lovin, CSA 27-06 (5/18/06) (decided under former § 19-10 A.).

·     Supervisor’s order to attend training was not disciplinary in nature, and was thus not appealable as discipline.  In re Johnson, CSA 135-05, 3 (3/10/06) (decided under former §§ 16-10, 16-20, 16-40 and 19-10 f).

·    Since an order for remedial training is not disciplinary in nature, grievance of that action based on violation of disciplinary rules may not be appealed.  In re Johnson, CSA 135-05, 3 (3/10/06) (decided under former §§16-10, 16-20, and 16-40).

·    Notes made in a logbook which may or may not be used for a future evaluation are neither disciplinary nor otherwise appealable. In re Johnson, CSA 135-05, 3 (3/10/06).

·    Appeal of denial of equipment differential pay is not directly appealable under § 19-10 A.  In re Chavez, CSA 09-06 (3/6/06).

·    Personnel action that is alleged to be analogous to a demotion is not appealable under § 19-10 A.  In re Lovin, CSA 08-06, 1 (3/1/06).

·    The term adverse action is interpreted more liberally in the civil rights setting than in a direct appeal under the Career Service Rules.  In re Lovin, CSA 08-06, 1 (3/1/06).

·    Where appellant was required to have commercial driver’s license and license was revoked, fact that the revocation may have been caused by his brother’s unlawful use of his name is irrelevant to disqualification.  In re Tunson, CSA 58-05 (8/29/05).

·     Hearing officer has jurisdiction over an appeal of an action in lieu of lay-off pursuant to this rule.  In re Romberger, CSA 89-04, 5 (3/2/05) (decided under former § 19-10 b).

19-10 A.1.c:  Involuntary demotion with attendant loss of pay (See also Rules: § 9-3C)

·     Reclassification was not an involuntary demotion with attendant loss of pay where it was not initiated through discipline, disqualification, or in lieu of separation during a probationary period.  In re Sullivan, CSA 44-08 (6/13/08).

·     The hearing office has no jurisdiction over a reclassification, the sole remedy for which is contained in CSR § 7-40.  In re Sullivan, CSA 44-08 (6/13/08).

                19-10A.1.f:  Violation of whistleblower ordinance

·     Whistleblower ordinance definition of adverse employment action is broadly worded to include not only the adverse agency actions specified in the ordinance, but any direct or indirect form of discipline or penalty, or the threat of discipline or penalty.   In re Muller, CSA 48-08 (7/24/08), citing DRMC 2-107(b).

·     In the light most favorable to appellant, placement of appellant on investigatory leave within minutes of his complaint of mismanagement alleges an adverse action sufficient to state a claim for relief under whistleblower ordinance.   In re Muller, CSA 48-08 (7/24/08). 

            19-10 A. 2. a: Appeal of discrimination, harassment, retaliation                                                                  

·     Absent allegations which if proven would assert a prima facie case, the hearing office lacks jurisdiction to proceed to hearing on a discrimination claim. In re Wehmhoefer, CSA 02-06, 3 (2/14/08).

·     Political affiliation discrimination claim requires that an employee’s political affiliation or beliefs was a substantial or motivating factor of an adverse agency action, and that the employee’s position did not require political allegiance.  In re Wehmhoefer, CSA 02-08, 4 (2/14/08)citing  In re Hurdelbrink,CSA 109-04, 119-04, 8 (1/5/05).

·     Political affiliation generally refers to membership in a political party. In re Wehmhoefer, CSA 02-08, 4 (2/14/08), citing In re Maes,CSA 180-03, 6 (10/21/04).

·     Allegation that new director would reward personal popularity or connections does not assert a claim of political affiliation discrimination.  In re Wehmhoefer,CSA 02-08, 4 (2/14/08).

·     Appellant’s grievance, which gave the agency ample notice of his claim of gender-based discrimination, substantially complied with rule, which requires the filing and disposition of a formal complaint of discrimination before an appeal can be filed. In re Boden, CSA 86-06 (11/22/06) (decided under former § 19-10B.1)

·     Hearing officer lacks jurisdiction over discrimination and harassment appeals where appellant failed to file a complaint with a supervisor. In re Delmonico, CSA 53-06, 7 (10/26/06) (decided under former § 19-10B.1).

·     If appellant has not first filed a complaint of discrimination in accordance with § 15-103, hearing office has no jurisdiction to hear appeal of the disposition of such complaint. In re Connors, CSA 35-06, 3 (8/9/06) (decided under former § 19-10B.1).

·     Retaliation claim is premature where appellant did not file a complaint of retaliation as mandated by rule, and grievance that was filed did not allege the discipline being grieved was retaliatory. In re Macieyovski,CSA 24-06, 1 (5/3/06) (decided under former § 19-10B.1).

·    Rules 19-10 B.1, 15-103 B, and15-104, when read together, clearly intend to afford an agency notice of the nature of the alleged harassment or discrimination, as well as a real opportunity to investigate, evaluate, and correct any harassment or discrimination. In re Lewis,CSA 22-06, 2 (5/2/06) (decided under former § 19-10 B.1).

·     A formal complaint is an unambiguous statement by an employee of the intent to require the agency to immediately undertake effective, thorough, and objective steps, which may include an investigation by a trained investigator when necessary.  In re Lewis,CSA 22-06, 2 (5/2/06),citing§15-104.

·     Where appellant submitted no document that could be interpreted as a formal complaint within the meaning of Rules 15 and 19, but merely expressed his belief that recent actions were punitive, his appeal fails to state the existence of jurisdiction over a harassment complaint. In re Lewis,CSA 22-06, 2(5/2/06).

·    Grievance that fails to raise groundsof discrimination does not satisfy requirement to file internal complaint of discrimination. In re Johnson, CSA 135-05, 3 (3/10/06) (decided under former § 19-10f).

·     Intentional discrimination under §15-101 is proven by evidence of 1) membership in a protected class, 2) an adverse employment action, and 3) evidence which supports an inference of discrimination. In re Johnson,CSA 135-05, 3 (3/10/06),citing In re Jackson, CSA 103-04, 5 (6/13/05);O’Connorv. Consolidated Coin Caterers Corp.,517 U.S. 308(1996).

·    Grievance that does not claim the actions were harassment based on sex does not give the agency notice that it was a complaint of discrimination so that the agency may investigate and resolve the problem pursuant to §15-103. In re Johnson, CSA 135-05, 3 (3/10/06) (decided under former § 19-10f).    

·    Harassment complaint must be filed first with supervisor, appointing authority or human resources department before perfecting appeal. In re Vigil, CSA 110-05, 7-8 (3/3/06) (decided under former § 19-10 f).

·    Harassment claim is not ripe for review where appellant did not first bring complaint of harassment to agency. In re Vigil, CSA 110-05, 7-8 (3/3/06) (decided under former §§19-10 f) and 19-20 e). See also In re Schultz, CSA 130-05, 3(2/27/06).

·    Prima facie case of retaliation was not established because appellant failed to prove a causal connection between protected actions and agency’s actions against her. In re Vigil,CSA 110-05, 8(3/3/06).

·    Until disposition of a filed complaint, hearing office does not have jurisdiction to hear an appeal of a retaliation claim. In re Lovin, CSA 08-06, 1(3/1/06) (decided under former § 19-10B.1).

·    Where it appears that appellant has not yet received an agency response to his retaliation complaint, there is no jurisdiction to hear the appeal from the disposition of that complaint. In re Lovin,CSA 08-06, 1 (3/1/06) (decided under former § 19-10B.1).

·    Appellant did not file an internal complaint of retaliation, and therefore did not establish a claim of retaliation on appeal. In re Schultz, CSA 130-05, 3 (2/27/06) (decided under former § 19-10 f).

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

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

·    Appellant did not establish link needed to prove that her discipline was in retaliation for the 1999 discipline of another employee where appellant’s supervisor was different in 1999. Name redacted,CSA 190-03, 9 (2/13/06).

·    Appellant failed to state a disparate treatment claim on the basis of national origin when he did not establish co-worker’s national origin. In re Schultz,CSA 78-05 (8/15/05) (decided under former § 19-10 c).

·    Where supervisor did not issue the performance evaluation in question and previously rated appellant as outstanding or exceeds expectations, appellant failed to show he was adversely affected by that supervisor as necessary for discrimination claim. In re Schultz, CSA 78-05 (8/15/05) (decided under former § 19-10c).

·    Where appellant claimed PEPR rating was retaliatory, he had option of grieving the PEPR or filing a direct appeal based on the retaliation claim.  In re Schultz, 78-05 (Order 8/15/05). 

·    Where appellant claims that a PEPR rating was retaliatory, a grievance filed based on that claim is not appealable unless appellant complies with the grievance procedure under Rule 18.  In re Schultz, 78-05 (Order 8/15/05). 

·    Career Service Authority is not a necessary party in appellant’s discrimination claim against his agency. In re Macieyovski,60-04, 3 (7/27/05).

·    Hearing officer does not have jurisdiction over claim of whistle blowing under CRS § 24-10-109. In re Garcia, CSA 175-04, 6 (7/12/05) (decided under former §19-10c).

·    Harassment is a theory of discrimination that allows an employee to establish harm without proof of an adverse employment action such as discipline or termination. In re Roberts, CSA 179-04, 6 (6/29/05) (decided under former §19-10 f).

·    Harassment is not a basis for discrimination; i.e., it does not substitute for proof of membership in a protected group. In re Roberts, CSA 179-04, 6 (6/29/05) (decided under former §19-10 f).

·    Under the Career Service Rules, a claim of harassment is perfected when an employee reports the unwelcome conduct to a supervisor in compliance with §15-103 B. Only the supervisor's disposition of such a report may be appealed. In re Roberts, CSA 179-04, 6 (6/29/05) (decided under former §19-10 f).

·    Disposition of complaint of harassment may be appealed if the disposition did not stop the prohibited behavior. In re Burns, CSA 57-05 (6/22/05) (decided under former § 19-10f).

·    Appellant is required to seek an investigation of discrimination or harassment pursuant to § 15-100 et. seq. as a condition precedent to appeal .In re Herzog, CSA 23-05 (5/26/05) (decided under former §19-10f).

·    Disparate discipline must compare only those who bear a high degree of similarity to that of the party claiming discrimination. Similarly situated employees 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 appellant’s, without other circumstances that would distinguish the misconduct or the appropriate discipline for it. In re Owens,CSA 139-04, 10 (3/31/05)(decided under former §19-10 c),citing Mazzellav. RCA Global Communications, Inc.,642 F.Supp.1531, 1546-47(S.D.N.Y. 1986).

·    Appellant’s good-faith reporting of claimed unlawful practices by co-workers constituted whistle blowing activity protected from retaliation. In re Freeman, CSA 40-05, 75-04, 7 (3/3/05) (decided under former §19-10 f).

·    Evidence that appellant believed she was treated differently but did not know why failed to establish her membership in a protected group, the first element of a prima facie case of discrimination. In re Leal-McIntyre,CSA 77-03, 134-03 and 167-03, 4 (1/27/05) (decided under former §19-10 c),citing McDonnell Douglas v. Green,411 U.S. 792(1973).

·    Harassment and discrimination based on age and political affiliation are proper subjects for appeal pursuant to §§15-31 D, 15-100 et seq., 19-10 c), and 19-10 f). In re Hurdelbrink, CSA 109-04, 119-04, 4 (1/5/05) (decided under former§§19-10 c) and f).

19-10 A. 2. b: Grievance

·     An agency’s failure to respond to an appellant’s grievance is governed by this rule.  In re Luft, CSA 80-07 (Order 6/13/08).

·     Agency’s participation in mediation subsequent to an employee’s grievance constitutes a response to the grievance.  In re Luft, CSA 80-07 (Order 6/13/08).

·    Hearing office has no jurisdiction over an appeal of agency’s failure to respond to a grievance of a written reprimand where agency responded to the grievance by engaging in mediation.  In re Luft, CSA 80-07 (Order 6/13/08).

·    Appellant’s grievance, which gave the agency ample notice of his claim of gender-based discrimination, substantially complied with rule, which requires the filing and disposition of a formal complaint of discrimination before an appeal can be contemplated.  In re Boden, CSA 86-06 (11/22/06) (decided under former § 19-10 B.1).

·     A written reprimand may not be appealed.  In re Valdez, CSA 96-06 (11/16/06) (decided under former § 19-10 B.2.e).

·     Agency’s determination that appellant was not qualified for an acting supervisor position had no effect on appellant’s current pay, benefits, or status.  In re Magelky, CSA 66-06 (9/22/06).

·     Appellant’s claim that his pay may be negatively impacted by future agency action does not support an appeal under this rule.  In re Magelky, CSA 66-06 (9/22/06).

·     Appeal alleging that written reprimand was retaliation must be dismissed if grievance of reprimand does not allege retaliation, and appellant filed no complaint of retaliation under § 15-103.  In re Macieyovski, CSA 24-06 (5/3/06). 

·    Appellant’s argument that the written reprimand was unfair and in violation of the Career Service Rules was insufficient to establish jurisdiction without a showing that it negatively affected his pay, benefits, or status.  In re Macieyovski, CSA 24-06 (5/3/06) (decided under former § 19-10 B.2.a). 

·     Jurisdictional rule, when read with rule regarding internal complaint of harassment, clearly intends to afford an agency notice of the nature of the alleged harassment, discrimination or retaliation, and a real opportunity to investigate, evaluate and correct it.  In re Lewis, CSA 22-06, 2 (5/2/06). 

·     Neither oral requests for clarification of reprimand nor grievance describing supervisor’s “unacceptable” behavior is an appealable formal complaint of discriminatory harassment.  In re Lewis, CSA 22-06, 2 (5/2/06) (decided under former § 19-10 B).

·     When subject of grievance, a written reprimand, is withdrawn, grievance is not appealable because it does not negatively affect pay, benefits, or status.  In re Lewis, CSA 22-06, 2 (5/2/06) (decided under former § 19-10 B.2).

·     Allegation that new work and office assignments and denial of attendance at a conference constituted harassment was not supported by a showing that those actions were imposed because of appellant’s protected status, or that they were so severe or pervasive as to alter the conditions of employment and create an abusive work environment.  In re Lewis, CSA 22-06, 3 (5/2/06), citing Faragher v. City of Boca Raton, 524 U.S. 775 (1998).

·     A hostile environment constructive discharge claim must show working conditions so intolerable that a reasonable person would have felt compelled to resign.  Unless conditions are beyond ordinary discrimination, a complaining employee is expected to remain on the job while seeking redress.  In re Lewis, CSA 22-06, 3 (5/2/06), citing Pennsylvania State Police v. Suders, 542 U.S. 129 (2004); Wilson v. Board of County Commissioners, 703 P.2d 1257 (Colo. 1985); Irving v. Dubuque Packing Co., 689 F.2d 170 (10^th Cir. 1982). 

·    Retirement was voluntary when appellant failed to show that his working conditions were objectively unendurable as viewed by a reasonable person.  In re Lewis, CSA 22-06, 3 (5/2/06).

·    Loss of pay was attributable to voluntary retirement rather than constructive discharge stemming from a written reprimand that was later withdrawn.  In re Lewis, CSA 22-06, 3 (5/2/06).   

·    To be appealable, a grievance must both result in an alleged violation of the Career Service Rules and negatively impact the employee’s pay, benefits, or status.  In re Lewis, CSA 22-06, 2-3 (5/2/06) (decided under former § 19-10 B.2).

·     Grievance challenging written reprimand did not affect pay, benefits or status where the only loss of pay was caused by appellant’s voluntary decision to retire.  In re Lewis, CSA 22-06, 3 (5/2/06).

·    A grievance is not appealable unless it results in an alleged violation of the Career Service Rules and negatively impacts employee’s pay, benefits or status.  In re Crenshaw, CSA 18-06, 3 (4/6/06), affirmed, petition for review denied, CSB 9/7/06.

·    Grievance based on supervisor’s comments that manifestly had no effect on appellant’s pay, benefits or employment status is not appealable.  In re Crenshaw, CSA 18-06, 3 (4/6/06), affirmed, petition for review denied, CSB 9/7/06.

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

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

·    Supervisor’s order to attend training was not disciplinary in nature, and therefore denial of grievance based thereon was not appealable as discipline.  In re Johnson, CSA 135-05, 3 (3/10/06) (decided under former §§16-10, 16-20, 16-40 and 19-10 f).

·     Where appellant filed no grievance of pay denial, jurisdiction to appeal pay denial is absent. In re Chavez, CSA 09-06 (3/6/06) (decided under former § 19-10 B.2).

·    Appellant’s challenge to two hours’ vacation leave to cover shortage on                time sheet was dismissed for failure to state a claim over which hearing office has jurisdiction.  In re Schultz, CSA 130-05, 3 (2/27/06). 

·    Grievance that failed to give agency meaningful notice and an opportunity to respond to retaliation allegation as required by 15-100 et seq. is not ripe for appeal.  In re Mallard, CSA 129-05, 3 (2/23/06).

·    Grievance of transfer as discriminatory and retaliatory was dismissed for failure to prove the transfer was an adverse action when evidence showed that the transfer did not result in demotion, change in pay, or substantial alteration of working conditions.  In re Conway, CSA 127-05, 2 (2/13/06).

·     When appellant did not dispute he filed his second-step grievance late, hearing officer was without jurisdiction to hear appeal.  In re Schultz, CSA 78-05 (8/15/05) (decided under former § 19-10 d).

            19-10 A. 2. b. ii.:   Failure to respond

·    Hearing officer has jurisdiction over an appeal of a grievance under this rule if agency fails to respond to the grievance.   In re Luft, CSA 43-08, 2 (Order 7/24/08).

·    Appeal of agency’s failure to respond to grievance is dismissed as moot based on agency’s written response presented to appellant during the pre-hearing conference.   In re Luft, CSA 43-08, 2 (Order 7/24/08). 

·    An agency’s failure to respond to an appellant’s grievance is governed by this rule.   In re Luft, CSA 80-07 (Order 6/13/08).

19-10 A.2.b.v.:  Written reprimand

·    Hearing officer has jurisdiction over an appeal of a grievance under this rule if agency fails to respond to the grievance.  In re Luft, CSA 43-08, 2 (Order 7/24/08).

·    Appeal of agency’s failure to respond to grievance is dismissed as moot based on agency’s written response presented to appellant during the pre-hearing conference.  In re Luft, CSA 43-08, 2 (Order 7/24/08).  

·     A written reprimand may not be appealed.  In re Valdez, CSA 96-06 (11/16/06).

19-10 A.2.c: Grievance of PEPR (See also Rule 13, this digest)

·      The Career Service Rules provide jurisdiction for review of a PEPR with an overall rating of “needs improvement” after a grievance based on that rating has been presented and denied by the agency.  In re Roberts, CSA 84-07, 5 (3/7/08).

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

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

·      An act is arbitrary and capricious if “a reasonable person, considering all the evidence in the record, would fairly and honestly be compelled to reach a different conclusion.” In re Proctor, CSA 52-07 (1/3/08), citing  In re Leal-McIntyre, CSA 77-03, 134-03 and 167-03, 5 (1/27/05), citing Wildwood Child & Adult Care Program, Inc. v. Colo. Dept. of Public Health Care and Environment, 985 P. 2d 654, 658 (Colo. App. 1999). 

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

·      It is insufficient for appellant to show a needs improvement rating was merely miscalculated or erroneous. In re Macieyovski, CSA 62-06, 3 (12/14/06).

·      Master trades worker assigned to Denver Art Museum who improperly installed frame, failed to change air filters, failed to supervise his staff and maintain expense records, and who developed ineffective personal relations, merited needs improvement rating.  In re Macieyovski, CSA 62-06, 5 (12/14/06).

·      Standards used to review work were objective and well-established in appellant’s job description.  In re Macieyovski, CSA 62-06, 6 (12/14/06).   

·      Agency was entitled and obligated to receive and act upon complaints received by agency’s customer, the museum.  In re Macieyovski, CSA 62-06, 6 (12/14/06).  

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

·      Needs improvement rating may be supported by a deficiency in fewer than all critical elements of a job.  In re Padilla, CSA 25-06, 11 (9/13/06) citing In re Leal-McIntyre, CSA 77-03, 6 (1/27/05).

·      PEPR rating was arbitrary, capricious, and without rational basis or foundation where deficiencies noted in PEPR were not clearly related to performance standards set in the PEP, PEPR was fraught with mathematical errors and procedural problems, and convincing evidence was presented that pointed to supervisor’s active dislike of the appellant.  In re Padilla, CSA 25-06 (9/13/06), affirmed, CSB 2/15/07.

·      Individual performance evaluations must weigh performance against objective standards to the extent feasible given the job being measured.  In re Padilla, CSA 25-06, 10 (9/13/06), citing Cohen v Austin, 861 F. Supp. 340 (E.D. Pa. 1994), affirmed, CSB 2/15/07.

·      Standards and measures set out in an employee’s PEP plan give an employee notice of the criteria by which performance will be judged.  In re Padilla, CSA 25-06, 10 (9/13/06), affirmed, CSB 2/15/07.

·      While any performance rating may be grieved, only the denial of a grievance of a “needs improvement” PEPR may be appealed.  In re Stenke, CSA 14-06 (3/15/06).

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

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

·      Notes made in a logbook which may or may not be used for a future evaluation are neither disciplinary nor otherwise appealable.