Conde v. Colorado State Dept. of Personnel
| Decision Date | 10 March 1994 |
| Docket Number | No. 93CA0002,93CA0002 |
| Citation | 872 P.2d 1381 |
| Parties | Dolores CONDE, Plaintiff-Appellant, v. COLORADO STATE DEPARTMENT OF PERSONNEL; Joann Soker, State Personnel Director, in her official capacity; Colorado Civil Rights Division, Jack Lang y Marquez, Executive Director, in his official and individual capacities; Colorado State Personnel Board; and Donald Luttrell, Chairman, in his official capacity, Defendants-Appellees. . III |
| Court | Colorado Court of Appeals |
Law Offices of Michael L. Smith, Michael L. Smith, Amy L. Brewer, Marybeth Sobel, Denver, for plaintiff-appellant.
Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., George S. Meyer, Asst. Atty. Gen., Denver, for defendants-appellees.
Opinion by Judge DAVIDSON.
Plaintiff, Dolores Conde, appeals from the trial court's dismissal of her claim for relief under the Colorado "whistleblower" statute, § 24-50.5-105, C.R.S. (1988 Repl.Vol. 10B), and from the summary judgment entered in favor of defendant, Jack Lang y Marquez, in his individual capacity, on her claim for civil rights violations under 42 U.S.C. § 1983 (1988). We affirm.
Plaintiff was a civil rights specialist with defendant Colorado Civil Rights Division (CCRD) from 1984 to 1993. Defendant Jack Lang y Marquez was Director of Compliance, and plaintiff's immediate supervisor, until he became Acting Executive Director of CCRD in September 1989. He was later appointed to this position on a permanent basis.
In March 1989, and on several occasions thereafter, plaintiff approached defendant Lang y Marquez with a complaint concerning the accuracy of time records kept by two other CCRD compliance investigators. Dissatisfied by his response to her concerns, plaintiff eventually filed a formal "whistleblower" complaint against her co-workers with Lang y Marquez.
When Lang y Marquez became permanent Executive Director of CCRD, the Director of Compliance position was left vacant. Plaintiff applied for this promotional position as did other compliance investigators.
After taking a written test and appearing at an oral board interview, plaintiff was among the three top scoring applicants and was interviewed by Lang y Marquez. On February 21, 1990, Lang y Marquez selected one of the other three applicants to fill the position.
In March 1990, plaintiff appealed Lang y Marquez's decision not to promote her to the State Personnel Board. She alleged that this action was a prohibited retaliation for her "whistleblower" complaint.
In May of 1990, plaintiff filed a notice of claim pursuant to the Colorado Governmental Immunity Act (CGIA) with the Attorney General. In September 1990, plaintiff received notice that the State Personnel Board had found no reasonable basis for her "whistleblower" retaliation claims. Thereafter, plaintiff filed suit in the trial court pursuant to § 24-50.5-105, C.R.S. (1988 Repl.Vol. 10B) against Lang y Marquez, CCRD, the Colorado State Personnel Board, Colorado State Personnel Board Chairman Donald Luttrell, the Colorado Department of Personnel, and the Colorado Department of Personnel Director, Joann Soker.
Defendants moved to dismiss plaintiff's "whistleblower" claim pursuant to C.R.C.P. 12(b)(1) and C.R.C.P. 12(b)(5) because of lack of timely notice under the Colorado Governmental Immunity Act. Plaintiff then added a claim for violation of her civil rights under 42 U.S.C. § 1983 against Lang y Marquez. Plaintiff also asserted several other claims, but these were either dismissed by her voluntarily in the trial court, or are otherwise not the subject of this appeal.
The trial court granted defendants' motion to dismiss plaintiff's "whistleblower" claim. Thereafter, the trial court granted summary judgment in favor of Lang y Marquez on plaintiff's 42 U.S.C. § 1983 claim on the ground of qualified immunity.
Plaintiff argues that the trial court erred in dismissing her "whistleblower" claim. We disagree.
Plaintiff first argues that the trial court erred in dismissing her whistleblower claim for relief in its entirety on the grounds that she did not comply with the CGIA notice requirement. Plaintiff contends that her notice contained sufficient information regarding her claim so as to "substantially comply" with the CGIA notice requirement pursuant to our supreme court's interpretation in Woodsmall v. Regional Transportation District, 800 P.2d 63 (Colo.1990). She maintains that the trial court analyzed her notice under an "absolute" or "strict" compliance standard.
We conclude that plaintiff's CGIA notice included sufficient information as to her intentions to bring a civil action based upon an invasion of privacy by Lang y Marquez and that the trial court erred in dismissing her "whistleblower" claim in its entirety on that basis. We also conclude, however, that insofar as this claim is based upon allegations of harassment and failure to promote, her CGIA notice was not within substantial compliance of the statutory requirements.
Because the whistleblower statute, § 24-50.5-103, C.R.S. (1988 Repl.Vol. 10B), was intended to create a non-contractual, statutory action which is tortious in nature, a claim brought under that statute is subject to the notice requirements of the Colorado Governmental Immunity Act, § 24-10-109, C.R.S. (1988 Repl.Vol. 10A). State Personnel Board v. Lloyd, 752 P.2d 559 (Colo.1988).
According to § 24-10-109 as pertinent here:
(1) Any person claiming to have suffered an injury by a public entity or by an employee thereof while in the course of such employment shall file a written notice as provided in this section within one hundred eighty days after the date of the discovery of the injury, regardless of whether the person then knew all of the elements of a claim or of a cause of action for such injury. Compliance with the provisions of this section shall be a jurisdictional prerequisite to any action brought under the provisions of this article, and failure of compliance shall forever bar any such action.
(2) The notice shall contain the following:
(b) A concise statement of the factual basis of the claim, including the date, time, place, and circumstances of the act, omission, or event complained of (d) A concise statement of the nature and the extent of the injury claimed to have been suffered;
Plaintiff's CGIA notice contains the following brief statement of the factual basis of her claim:
On or about March 9, 1990 at an unknown time in the evening, Jack Lang y Marquez, Director of the Colorado Civil Rights Division, a state employee, without state employee Dolores Conde's permission, discussed a grievance and civil rights and whistleblower claim filed by Ms. Conde against him, with Ms. Conde's [ex-husband] at a meeting of the American GI Forum. Dolores Conde has been divorced from [her ex-husband] for 15 years. Other person(s) outside of the state system have also advised Dolores Conde that Director Jack Lang y Marquez has discussed Ms. Conde's grievance and whistleblower complaint and personnel issues with them and all of the unauthorized communications have occurred within 180 days of this notice.
Plaintiff's CGIA notice contains the following brief description of the nature of the injury suffered:
The total extent of the injury to Ms. Conde's reputation, career, civil rights, and promotability are unknown at this time, although Ms. Conde asserts that her reputation, status, tenure and promotability as a state employee have been adversely impacted by Mr. Lang y Marquez's unauthorized statements about Ms. Conde's whistleblower grievances and civil rights claims. Ms. Conde's grievances and civil rights claims and whistleblower complaint are currently pending before the State Personnel Board in Conde v. CCRD, Case No. (unassigned). It is asserted that Mr. Jack Lang y Marquez has committed statutorily prohibited retaliation against Ms. Conde for her whistleblower complaints of time sheet abuse and falsification.
Apparently proceeding on the erroneous assumption that a notice of claim was not required under the "whistleblower" statute, plaintiff's CGIA notice specifically separates her invasion of privacy claim from her civil rights and "whistleblower" claims, pending elsewhere.
Subsequently, in plaintiff's complaint in this civil action, she repeated her allegation that "[o]n or about March 13, 1990, Defendant [Lang y] Marquez attended a reception at the Mile High GI Forum where he discussed Plaintiff Conde as a 'personnel problem' with Plaintiff's ex-husband of 15 years." Plaintiff further alleged, however, that on or about February 22, 1990, "Defendant [Lang y] Marquez and Defendant CCRD retaliated against her by ... [f]ailing to promote Plaintiff to the position of Director of Compliance"; and by, on a more or less continuing basis, "[c]reating a hostile and intolerably harassing environment in the terms, conditions and privileges of Plaintiff's employment." None of these allegations was contained within plaintiff's CGIA notice.
We conclude that plaintiff's CGIA notice does provide a concise statement as to the factual basis of the alleged incident occurring in March 1990 at the GI forum, that is, alleged unauthorized communications to persons outside of the state personnel system. Her CGIA notice, however, contained no references whatsoever to incidents of harassment or retaliation taking place in February 1990. These events as alleged in her complaint took place at different times, on different dates, and under different circumstances than the alleged unauthorized communications, and are alleged to have resulted in injuries of a different nature.
Plaintiff nonetheless contends that because she referred to her "whistleblower" complaint in her CGIA notice seven times, and alluded to her promotability, she has substantially complied with the CGIA notice requirements. We do not agree.
Prior to 1986, § 24-10-109(1) expressly required "substantial" compliance with the CGIA...
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