Bauman v. Colorado Dept. of Health

Decision Date28 January 1993
Docket NumberNo. 91CA1528,91CA1528
Parties61 Fair Empl.Prac.Cas. (BNA) 138 Bernadette BAUMAN, Marion Smith, and Antoinette Stajduhar, Plaintiffs-Appellants, v. COLORADO DEPARTMENT OF HEALTH, and Mildred Simmons, Defendants-Appellees. . V
CourtColorado Court of Appeals

Vonda G. Hall, Denver, for plaintiffs-appellants.

Hall & Evans, David R. Brougham, Denver, for defendant-appellee Colorado Dept. of Health.

Wood, Ris & Hames, P.C., F. Michael Ludwig, Denver, for defendant-appellee Mildred Simmons.

Opinion by Judge JONES.

Plaintiffs, Bernadette Bauman, Marion Smith, and Antoinette Stajduhar, appeal from the judgment dismissing their complaint against defendants, the Colorado Department of Health and Mildred Simmons, the Director of the Department's Division of Health Facilities, because plaintiffs failed to comply with the notice provisions of the Colorado Governmental Immunity Act. We affirm in part and reverse in part.

The complaint alleged that plaintiffs had been employed by the Department and that Simmons had been their supervisor. It further alleged that plaintiffs were forced into early retirement as a result of unlawful age discrimination in violation of state and federal anti-discrimination laws.

Specifically, Bauman asserted that she was forced to retire and was denied advancement prior to her retirement because of her age. She was 66 years old at retirement. Smith, who was 63 years old at retirement, claimed that she was forced to retire because of her age. Stajduhar, age 65 years at retirement, alleged that she was forced to retire and that, prior to retirement, was given a reassignment of duties which amounted to a demotion, all because of her age.

Pursuant to C.R.C.P. 12(b)(1) and (5), defendants filed a motion to dismiss the complaint, urging that all of plaintiffs' claims were jurisdictionally barred because they had failed to provide a notice of claim in compliance with § 24-10-109, C.R.S. (1988 Repl.Vol. 10A). The motion also requested the trial court to consider an affidavit and to treat the motion as one for summary judgment.

Plaintiffs filed a response, supported by an affidavit, in which they asserted that they had substantially complied with the notice provisions by providing defendants with copies of the charges filed with the Colorado Civil Rights Division and the Equal Employment Opportunity Commission. Relying on the United States Supreme Court's decision in Felder v. Casey, 487 U.S. 131, 108 S.Ct. 2302, 101 L.Ed.2d 123 (1988), they further asserted that failure to comply with a state notice requirement does not act as a bar to federal claims.

Defendants filed a reply, urging that the Felder ruling not apply because of the language of § 24-10-119, C.R.S. (1988 Repl.Vol. 10A) which extended the notice requirement to federal claims. The trial court agreed. The court also determined that the copies of charges which plaintiffs provided to defendants did not comply with the notice requirements of § 24-10-109. Therefore, the trial court dismissed the complaint.

I.

With respect to their claims under state law, plaintiffs' sole contention is that the copies of charges provided to the Department substantially complied with the notice provisions of the Governmental Immunity Act. We disagree.

Section 24-10-109(1), C.R.S. (1988 Repl.Vol. 10A) requires any person claiming to have suffered an injury by a public entity or by an employee thereof to file notice of the claim within 180 days after the discovery of the injury. Further, § 24-10-109(3), C.R.S. (1988 Repl.Vol. 10A) provides that the notice shall be filed with the attorney general if the claim is against the state or an employee thereof.

Compliance with these mandatory provisions was made a jurisdictional prerequisite to any action brought under the provisions of the Act. See Aetna Casualty & Surety Co. v. Denver School District No. 1, 787 P.2d 206 (Colo.App.1989).

Plaintiffs point to the language in Woodsmall v. Regional Transportation District, 800 P.2d 63 (Colo.1990), in which our supreme court interpreted the term "compliance" to mean "substantial compliance," which it defined as a degree of compliance that was "considerably more than minimal, but less than absolute." However, the alleged lack of compliance in Woodsmall dealt with the contents of a timely notice, a copy of which had been sent to the entity's counsel as required by § 24-10-109(3). See East Lakewood Sanitation District v. District Court, 842 P.2d 233 (Colo.1992).

Here, the record does not reveal when the documents purporting to constitute notice were mailed to the Department. Therefore, we are unable to determine whether the purported notice was timely. However, it was undisputed that the copies of documents upon which plaintiffs rely as notices of claim were mailed to the Department of Health, and not to the Attorney General as required by § 24-10-109(3). Thus, plaintiffs failed to meet their burden of demonstrating that the trial court had jurisdiction over the subject matter of their state-law claims. See East Lakewood Sanitation District v. District Court, supra; Aetna Casualty & Surety Co. v. Denver School District No. 1, supra.

Accordingly, we conclude that the trial court was correct in its determination that plaintiffs' mailing of documents to the Department did not amount to substantial compliance with § 24-10-109.

II.

Plaintiffs also contend that the trial court erred in concluding that the notice provisions of § 24-10-109, C.R.S. (1988 Repl.Vol. 10A) operated as a bar to their federal claims. In support of this contention, plaintiffs again assert that the rule announced in Felder v. Casey, supra, pre-empted the General Assembly from adopting notice requirements which are inconsistent with federal law. They further rely upon the holdings in Chacon v. Zahorka, 663 F.Supp. 90 (D.Colo.1987) (notice of claim is not required in federal civil rights case); and Mucci v. Falcon School District No. 49, 655 P.2d 422 (Colo.App.1982) (federal civil rights claims are not barred by plaintiffs' failure to comply with notice provisions of Governmental Immunity Act).

In support of the judgment, however, defendants argue that Chacon v. Zahorka, supra, and Mucci v. Falcon School District # 49, supra, have no current precedential value because those cases were decided under the pre-1986 version of § 24-10-109. Defendants also argue that the 1986 amendments to the Governmental Immunity Act made compliance with the notice requirement a jurisdictional prerequisite to any tort action against a public entity, including any claim brought pursuant to any federal law. See §§ 24-10-109 and 24-10-119, C.R.S. (1988 Repl.Vol. 10A).

Finally, citing Boulder Valley School District R-2 v. Price, 805 P.2d 1085 (Colo.1991), defendants argue...

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7 cases
  • Middleton v. Hartman
    • United States
    • Colorado Supreme Court
    • April 15, 2002
    ...Id. at 529-30. Relying on Felder v. Casey, 487 U.S. 131, 108 S.Ct. 2302, 101 L.Ed.2d 123 (1988), and Bauman v. Colorado Department of Health, 857 P.2d 499 (Colo.Ct.App.1993), the court of appeals further held that the CGIA's notice requirements cannot operate to preclude Hartman's FLSA reta......
  • Hartman v. Regents of University of Colo.
    • United States
    • Colorado Court of Appeals
    • July 6, 2000
    ...exercise of a federal right. See Felder v. Casey, 487 U.S. 131, 108 S.Ct. 2302, 101 L.Ed.2d 123 (1988); Bauman v. Colorado Department of Health, 857 P.2d 499 (Colo.App.1993). The order of the trial court is affirmed insofar as it pertains to the retaliation claims under the FLSA against the......
  • Brock v. Nyland
    • United States
    • Colorado Supreme Court
    • April 13, 1998
    ...set forth above. In addition, we conclude that the court of appeals, erred when it "decline[d] to follow" Bauman v. Colorado Department of Health, 857 P.2d 499 (Colo.App.1993) and Aetna Casualty & Surety Co. v. Denver School District No. 1, 787 P.2d 206 (Colo.App.1989). See Nyland, 937 P.2d......
  • Brace v. City of Lakewood
    • United States
    • Colorado Court of Appeals
    • January 12, 1995
    ...2430, 110 L.Ed.2d 332 (1990); Felder v. Casey, 487 U.S. 131, 108 S.Ct. 2302, 101 L.Ed.2d 123 (1988). See also Bauman v. Colorado Department of Health, 857 P.2d 499 (Colo.App.1993). Here, however, as previously noted, the trial court made no final determinations with respect to plaintiff's c......
  • Request a trial to view additional results
2 books & journal articles
  • The Changing Concept of Governmental Immunity
    • United States
    • Colorado Bar Association Colorado Lawyer No. 23-3, March 1994
    • Invalid date
    ...1231 (Colo.App. 1990)). 43. CRS § 24-10-118(2.5). 44. CRS § 24-10-110(1). 45. CRS § 24-10-110(2). 46. Bauman v. Colorado Dept. of Health, 857 P.2d 499 (Colo.App. 1993) (citing Felder v. Casey, 487 U.S. 131 (1988)); see also Howlett v. Rose, 496 U.S. 356 (1990); Mucci v. Falcon School Distri......
  • Interpreting the Colorado Governmental Immunity Act
    • United States
    • Colorado Bar Association Colorado Lawyer No. 26-2, February 1997
    • Invalid date
    ...Mattson v. Harrison, 26 Colo.Law.. 152 (App.No. 96CA1243, annc'd 11/7/96). 65. CRS § 24-10-110(2). 66. Bauman v. Colorado Dept. of Health, 857 P.2d 499 (Colo.App. 1993) [citing Felder v. Casey, 487 U.S. 131 (1988)]. See also Howlett v. Rose, 496 U.S. 356 (1990); Mucci v. Falcon School Distr......

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