Case No. 98CV5863 Plaintiffs' Opening Breif November 1998

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(2) the PSRS class were similar to the EPS class and therefore should be paid the same as the EPS class. How the Defendant came to this view is unknown and undocumented since DOP's earlier statements indicate the opposite. In July 1995, the DOP believed that the PSRS class was paid close to the prevailing market rate as stated by Don Fowler, Occupational Specialist, Human Resources Services of DOP, in a July 23, 1995, letter "Since we have Physical Science matches in our local surveys, we know with some certainty that our Physical Science classes are close to the prevailing market, this means that our Environmental Specialists should be close also." [Exhibit D to CFPE Plaintiff Position Statements, Record Vol. XII, pp. 4931 -5457] Sometime between July 1995 and September 1996, DOP, apparently influenced by certain administrators at the Colorado Department of Public Health and Environment, changed its position. As stated in a September 23, 1996 letter addressed to "Conference Attendees," and apparently handed out at a Central States Compensation Association conference [Harr. Rep., p. 1, Record Vol. XV, p. 6862], Don Fowler and Ron Nielson, Human Resources Administrator, Colorado Department of Public Health & Environment, request attendees to respond to their "Special Environmental Compensation Survey." In an attempt to collect data regarding the EPS Class, the letter stated "There was little salary data available for these classes in the early 90s, so we based their salaries on the physical scientist, i.e., chemists and geologists." DOP conveyed its new -found bias that pay rates for the EPS should be related to the engineer class. Mr. Fowler wrote, "Our salary data indicates that environmental scientist /specialists should be lower than comparable engineers, but the data is spotty and insufficient to establish valid differentials between several classes /levels in these scientific and engineering series." [Record Vol. XV, p. 6900] The preconceived opinion or prejudice shown in this letter discredits the subsequent response and is conducive to a survey contrary to state law which requires the Defendant to conduct a fair sampling (C.R.S. 24- 50- 104(5)(b)(1)(A)). Even though the DOP recognized that it had inconsistent and insufficient data to establish valid differentials, they continued to conclude that environmental scientists should be paid less than engineers. It should also be noted that in both letters [Record Vol. XV, p. 6900 and Record Vol. XV, p. 7048], Defendant references Environmental Scientists and not Physical Scientists. Additionally, although the DOP continued to bias the results of their survey in relationship to environmental scientist and engineers, they also continued to slant the survey by focusing attention away from the physical scientist and on to the environmental scientist (a class which does not even exist in the Colorado Personnel System). In an attempt to generate data consistent with bias against scientists, the Defendant arbitrarily and capriciously chose to leave the Physical Scientist Class off the title of the survey, apparently hoping that a focus on the environmental occupation would produce lower pay range data. Abuse of Discretion by the DOP Director. In spite of the fact that 288 affected employees appealed the study, the DOP Director chose to review the appeals in summary fashion rather than delegate the matter to a three- member panel as provided by §24- 50- 104(4)(d)(I). In addition, his review was at best superficial, adopting nearly verbatim the arguments of his staff and ignoring many issues raised by Plaintiffs in their appeals and position statements. The DOP Director arbitrarily denied all of the pro se Plaintiffs the opportunity for oral presentations as permitted under his own procedures. In an earlier case, Page 7