Board Rule 8-18. Appeals Subject to the Board's Discretion. The Board may use its discretion to grant a hearing for employment actions where the applicant or employee does not have a right to a mandatory hearing and when it appears that:
A. The employment action violates the State Employee Protection Act (commonly known as the "Whistleblower Act");B. The employment action violates the Colorado Anti-Discrimination Act ("CADA");C. An appointing authority's decision violates a rule or statute relating to the comparative analysis process. However, the Board may only review such decision after the Director has issued a final decision pursuant to § 24-50-112.5(4), C.R.S.;D. A department's final grievance decision violates an employee's rights under the federal or state constitution;E. A department's final grievance decision violates the Board's grievance Rules or the department's grievance procedures; orF. A final decision of the Director on a matter involving the overall administration of the state personnel system is arbitrary, capricious, or contrary to rule or law.G. The Board cannot grant a hearing to a probationary employee who appeals discipline for unsatisfactory performance unless the employee alleges unlawful discrimination or other statutory or constitutional violation.Board Rule 8-19. Petitioning the Board for a Discretionary Hearing.
A. Individuals wishing to request a discretionary hearing shall file an appeal with the Board using the Consolidated Appeal/Dispute Form. An appeal requesting a discretionary hearing is often referred to as a "Petition for Hearing."B. The Board shall grant or deny a Petition for Hearing within one hundred and twenty (120) days from the filing of the appeal with the Board.C. If the Board grants a Petition for Hearing, the matter is set for hearing and proceeds in accordance to the Rules for Hearings in Chapter 8, Resolution of Appeals and Disputes, Part A, Section VI.D. Upon receipt of a Petition for Hearing, an Administrative Law Judge will issue a Notice of Preliminary Review unless the petition alleges a violation of CADA or the Whistleblower Act.Board Rule 8-20. Allegations of a Violation of the Colorado Anti-Discrimination Act ("CADA"). Pursuant to § 24-50-125.3, C.R.S., the Board has discretionary jurisdiction over claims of discrimination within the state personnel system.
A.CCRD Investigations. Upon receipt of an appeal on matters covered by the CADA, § 24-34-402, C.R.S., the Board will refer the matter to the Colorado Civil Rights Division ("CCRD") for investigation and issue a Notice of Referral. 1. If the applicant or employee wants the CCRD to investigate the discrimination claim, the person shall file a charge of discrimination with the CCRD. The person shall file the charge with the CCRD within twenty (20) days from the date of the certificate of service of the Board's Notice of Referral.2. Within ten (10) days from filing a charge of discrimination with the CCRD, the applicant or employee shall file a verification with the Board indicating that a CCRD charge has been filed. If an individual fails to file a verification, the Board may deem that the individual has waived the CCRD investigation and the Board will proceed to reviewing the discrimination claim.3. At any time prior to completion of the CCRD investigation, the applicant or employee may waive the CCRD investigation and the Board will then proceed to Preliminary Review or hearing.4. If the allegation is against the CCRD, the Board will contract with a third party to investigate the matter.5. The Board will issue a Notice of Preliminary Review or hearing after four hundred and fifty (450) days from the date the Board referred the matter to the CCRD even if the CCRD investigation is not completed.B.CCRD Opinions. 1. When the CCRD completes its investigation, the CCRD issues a written opinion of probable cause or no probable cause. The CCRD provides its opinion to the Board. The Board then notifies the parties of the CCRD's opinion and their right to appeal it to the Board within ten (10) days of receipt of the notification.2. If the CCRD concludes there is probable cause of unlawful discrimination, the Board will set the matter for hearing.3. If the CCRD concludes there is no probable cause of discrimination, the individual may file an objection with the Board within ten (10) days from the notification of the CCRD's no probable cause opinion.4. To file an objection of the CCRD opinion, the applicant or employee shall provide a written statement to the Board indicating that the individual requests the Board to decide the discrimination claim.5. If an applicant or employee does not file an objection to the Board within ten (10) days from receipt of the notification of the CCRD's no probable cause opinion, the discrimination claim will be deemed abandoned and will be dismissed.6. If an applicant or employee files an objection to the Board within ten (10) days from receipt of the notification of the CCRD's no probable cause opinion, the Board shall: a. Set the matter for hearing or adopt the CCRD's opinion as its own if the matter falls under § 24-50-125.3, C.R.S.; or i. For the Board to adopt the CCRD's opinion, the CCRD's findings must demonstrate that Complainant is unable to establish a prima facie case of discrimination as set forth in Bodaghi & State Personnel Board v. Department of Natural Resources, 995 P.2d 288 (Colo. 2000).ii. Prior to adopting the CCRD's opinion, the Board shall issue an Order to Show Cause to the parties to show why the Board should not adopt the opinion.b. Set the matter for Preliminary Review if the matter falls under § 24-50-123, C.R.S.; orc. Set the matter for hearing if the matter falls under § 24-50-124 or § 24-50-125, C.R.S.Board Rule 8-21. Allegations of a Violation of the Whistleblower Act. Pursuant to § 24-50.5-104, C.R.S., the Board has discretionary jurisdiction over claims of retaliation in violation of the Whistleblower Act filed by employees in the state personnel system.
A. Employees shall file both the Consolidated Appeal/Dispute Form and the Whistleblower Complaint Form. Both forms are available on the Board's website.B. The Board will notify the employee of the notice requirements of the Governmental Immunity Act, § 24-10-101, C.R.S., et seq.C. The Board will refer the whistleblower complaint to the department.D. The department shall respond to the whistleblower complaint as follows:1. The department's response shall provide substantive responses to each of the material allegations in the whistleblower complaint.2. The department shall file its response within forty-five (45) days from the Board's referral to the department of the whistleblower complaint.E. Upon the department filing its response to the whistleblower complaint, unless the matter is stayed pending a CCRD investigation, the Board will issue a Notice of Preliminary Review or a Notice of Hearing.Board Rule 8-22. Allegations Regarding the Comparative Analysis Process.
A. Pursuant to § 24-50-112.5(4)(e), C.R.S., the Board has discretionary jurisdiction to review final decisions of the Director regarding alleged violations of the comparative analysis process.B. The Board may only grant the Petition for Hearing when it appears that the appointing authority's decision violates the comparative analysis standards set forth in § 24-50-112.5, C.R.S., in any other provision of law, or in any Director's Procedures relating to the comparative analysis process.Board Rule 8-23. Other Allegations Subject to the Board's Discretion. The Board will issue a Notice of Preliminary Review upon the timely filing of an appeal that alleges:
A. A department's final grievance decision violates the employee's rights under the federal or state constitution;B. A department's final grievance decision violates the Board's grievance Rules or the department's grievance procedures; orC. A final decision of the Director on a matter involving the overall administration of the state personnel system was arbitrary, capricious, or contrary to rule or law.Board Rule 8-24. The Parties' Obligation to Disclose Information. Within fifteen (15) days from the date of the certificate of service of the Notice of Preliminary Review, the parties shall provide to each other the disclosures of documents as required in Part A, Section VI of this Chapter 8 for mandatory disclosures.
Board Rule 8-25. Information Sheets. After the Board issues a Notice of Preliminary Review, each party is required to file an Information Sheet.
A.Deadlines. 1. Complainant shall file an Information Sheet with the Board within twenty-five (25) days from the date of the Notice of Preliminary Review.2. Respondent shall file its Information Sheet with the Board within ten (10) days from its receipt of Complainant's Information Sheet.3. Complainant may file a reply in further support of Complainant's Information Sheet within five (5) days of Complainant's receipt of Respondent's Information Sheet.B.Extension of Time. Motions for extension of time of more than five (5) days to file Information Sheets will not be granted.C.Page Limits. Information Sheets are limited to ten (10) pages. Replies in further support of Complainant's Information Sheet are limited to five (5) pages. These page limits do not include the case caption, signature block, certificate of service and exhibits.D.Burden. The Complainant has the burden to persuade the Board that it appears the employment action violates the applicant's or employee's rights. In CADA cases, the Complainant meets their burden by establishing the four prongs of a prima facie case of discrimination as set forth in Bodaghi & State Personnel Board v. Department of Natural Resources, 995 P.2d 288 (Colo.2000), including that the evidence in the record supports or permits an inference of unlawful discrimination. In Whistleblower Act cases, the Complainant meets their burden by establishing disclosure of matters within the Whistleblower Act's protections and that the disclosures were a substantial or motivating factor in the discipline. In cases alleging a violation of the grievance process, Complainant meets their burden by establishing facts showing that the department violated a Board Rule or department procedure governing grievances, the applicable Rule or Procedure, and that meaningful relief can be granted.E.Content of Complainant's Information Sheet. Complainant's Information Sheet shall state the following information: 1. The facts Complainant is prepared to prove if a hearing is granted;2. The legal arguments and authorities that support Complainant's claims;3. The names of all anticipated witnesses, together with a description of the person's anticipated testimony;4. A list of each exhibit that supports Complainant's claims; and5. A description of the remedy or relief sought by Complainant.F.Content of Respondent's Information Sheet. Respondent's Information Sheet shall state the following information: 1. The facts Respondent is prepared to prove if a hearing is granted;2. The legal arguments and authorities that support Respondent's defenses;3. The names of all anticipated witnesses, together with a description of the person's anticipated testimony;4. A list of each exhibit that supports Respondent's defenses; and5. A description of any remedy or relief sought by Respondent.G.Filing Requirements for Information Sheets and Exhibits. In addition to the Board's general requirements for all filings, the parties shall: 1. Carefully review all exhibits and redact any personal identifying information. Redactions shall include mailing and physical addresses, email address(es), telephone number(s), dates of birth, social security numbers, driver license numbers, passport numbers, employee identification numbers, military identification numbers, student identification numbers, health insurance identification numbers, biometric data, and any other personal identifying information; and2. Provide the Board with an electronic version of the Information Sheets as a Word document and an electronic version of the exhibits as a PDF file. If creating electronic versions is not available to you, then please contact the Board for assistance.Board Rule 8-26. Preliminary Recommendation.
A. An Administrative Law Judge will review the material presented by the parties in their Information Sheets.B. An Administrative Law Judge will issue a Preliminary Recommendation indicating whether the judge recommends that the Board grant or deny a hearing.C. The Preliminary Recommendation shall recite the parties' factual allegations and legal arguments.Board Rule 8-27. Board Decision Whether to Grant or Deny a Hearing.
A. The Board will consider the Preliminary Recommendation and render a decision whether to grant or deny a hearing pursuant to § 24-50-123(3), C.R.S. 1. In making its decision whether to grant or deny a hearing, the Board will only consider the Preliminary Recommendation and the material provided by the parties in their Information Sheets, including any exhibits.B. If a hearing is granted, it will proceed in accordance with the Rules for Hearings in Chapter 8, Resolution of Appeals and Disputes, Part A, Section VI.C. If a hearing is denied, the Board will issue an order that includes further appeal rights.37 CR 22, November 25, 2014, effective 1/1/201537 CR 24, December 25, 2014, effective 1/14/201540 CR 02, January 25, 2017, effective 2/14/201740 CR 23, December 10, 2017, effective 1/1/201840 CR 24, December 25, 2017, effective 1/14/201842 CR 19, October 10, 2019, effective 11/1/201943 CR 05, March 10, 2020, effective 4/1/202043 CR 13, July 10, 2020, effective 8/1/202043 CR 24, December 25, 2020, effective 2/1/202144 CR 05, March 10, 2021, effective 4/1/202144 CR 07, April 10, 2021, effective 5/1/202144 CR 10, May 25, 2021, effective 7/1/202144 CR 12, June 25, 2021, effective 9/1/202145 CR 11, June 10, 2022, effective 7/1/202245 CR 14, July 25, 2022, effective 9/1/202246 CR 08, April 25, 2023, effective 7/1/202347 CR 06, March 25, 2024, effective 5/1/2024