Conners v. City of Colorado Springs, 96CA0885

• Decision Date: 11 December 1997
• Docket Number: No. 96CA0885,96CA0885
• Citation: 962 P.2d 294
• Parties: 97 CJ C.A.R. 3188 Kathleen F. CONNERS, Plaintiff-Appellant, v. CITY OF COLORADO SPRINGS, Defendant-Appellee. . II
• Court: Colorado Court of Appeals

Page 294

962 P.2d 294

97 CJ C.A.R. 3188

Kathleen F. CONNERS, Plaintiff-Appellant, v. CITY OF COLORADO SPRINGS, Defendant-Appellee.

No. 96CA0885.

Colorado Court of Appeals Div. II.

Dec. 11, 1997.

Rehearing Denied Feb. 5, 1998.

Certiorari Granted Sept. 8, 1998.

John L. Maska, Colorado Springs, for Plaintiff-Appellant.

James G. Colvin, II, City Attorney, Stacy L. Rouse, Senior Litigation Attorney, Colorado Springs, for Defendant-Appellee.

Opinion by Judge CRISWELL.

This appeal by plaintiff, Kathleen F. Conners, from the judgment dismissing her complaint against defendant, City of Colorado Springs, presents the primary issue whether a claim by a public employee against a municipality under the Colorado Civil Rights Act (CRA), § 24-34-301, et seq., C.R.S.1997, is subject to the notice provisions of the Colorado Governmental Immunity Act (GIA) § 24-10-101, et seq., C.R.S.1997. Because we conclude that the GIA does not apply to a civil rights claim under the CRA, we reverse the dismissal of the claim based upon the CRA and remand that claim for further proceedings. We affirm the dismissal of the common law claims asserted by plaintiff.

Plaintiff's complaint alleged that she had been employed by the City for nearly three years before she was terminated. She alleged that, until the immediate events giving rise to her claims, she had been ranked as a superior employee. She asserted, however, that, shortly after she complained about her supervisor's use of vulgar and sexually suggestive language, she received an unsatisfactory rating. According to the complaint, about two months later, she was terminated from her position with the City, purportedly for lack of work, but another person was hired to take the position from which she had been discharged. Finally, she asserted that she had exhausted the administrative remedies available to her under the CRA.

Based upon these factual allegations, plaintiff contended that she had been required to endure a hostile environment because of her gender, that she was discharged because of her legitimate complaints about that environment, and that the City's actions in these respects constituted "unfair employment practices" under the CRA.

Later, plaintiff moved to amend her complaint to add common law claims based upon invasion of privacy and extreme and outrageous conduct. Her motion asserted that she had given timely notice to the City of these claims pursuant to the GIA.

The City moved to dismiss plaintiff's complaint on jurisdictional grounds. It asserted that the GIA applied to all of the claims asserted by plaintiff, but that no notice under that act of any of those claims had been given until July 1994, although her discharge occurred in February 1993. Hence, it asserted that the notice was untimely under the GIA, § 24-10-109, C.R.S.1997, which requires that such notice be given within 180 days after a plaintiff's discovery of an injury.

In response, plaintiff argued that any notice requirement of the GIA was satisfied by her service of the charges under the CRA on the City. In addition, plaintiff sought to amend her complaint to assert a claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (1994).

The court rejected plaintiff's motion to amend to assert a Title VII claim as untimely. In addition, it concluded that, because plaintiff had failed to provide a timely notice to the City pursuant to the GIA, it lacked jurisdiction over any of the claims asserted. Consequently, it entered judgment dismissing all of those claims, and it is from that judgment that plaintiff appeals.

I.

Plaintiff asserts that the court erred in dismissing the claim asserted by her under the CRA on the ground that she had failed to comply with the notice provisions of the GIA. We agree.

Section 24-10-108, C.R.S.1997, of the GIA provides that:

Except as provided in sections 24-10-104 to 24-10-106, sovereign immunity shall be a bar to any action against a public entity for injury which lies in tort or could lie in tort.... (emphasis supplied)

Section 24-10-106(1), C.R.S.1997, describes some six circumstances in which sovereign immunity is waived. It provides that, except to the extent that an injury arises out of one of those circumstances, no claims "which lie in tort or could lie in tort" can be asserted against the state or any political subdivision.

Sections 24-10-109(1) and 24-10-109(2), C.R.S.1997, require that a claimant provide written notice to the public entity within 180 days of the discovery of the injury. And, § 24-10-109(1), C.R.S.1997, specifically provides that:

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. (emphasis supplied)

Hence, the GIA, on its face, appears to preclude any claim that "lies in tort or could lie in tort" from being pursued against a public entity unless such claim is within certain specified exceptions, and even then, certain procedural steps must be followed for the claim to be viable.

However, other constitutional and statutory provisions, some adopted before and some adopted after the initial enactment of the GIA in 1971, see Colo. Sess. Laws 1971, ch. 323 at 1204, et seq., also authorize legal actions against either the state or one or more political subdivisions for injuries sustained under circumstances not described in § 24-10-106(1) of the GIA.

The most notable other instance in which the state has authorized a suit for damages is that in which private property is taken or damaged by the state or a political subdivision and compensation is required to be paid under Colo. Const. art. II, § 15. Even if the governmental entity does not itself commence an eminent domain proceeding, the private property owner has the right to institute an "inverse condemnation" proceeding under the eminent domain statute. Hayutin v. Colorado State Department of Highways, 175 Colo. 83, 485 P.2d 896 (1971), cert. denied, 404 U.S. 991, 92 S.Ct. 533, 30 L.Ed.2d 542 (1971).

There are, in addition, several other instances in which the state has authorized a suit for damages under circumstances that do not fall within the provisions of the GIA. The following are some examples:

A public employee may recover damages from any political subdivision of the state that attempts to prohibit that employee from providing non-confidential, non-privileged information to a committee of the General Assembly or to a court of law. Section 8-2.5-101(1)(b), C.R.S.1997.

An employee of a political subdivision that operates a mass transportation system may recover damages in a civil action resulting from that entity's commission of an "unfair labor practice" under the Colorado Labor Peace Act. See §§ 8-3-104(12), 8-3-108(1), and 8-3-121, C.R.S.1997.

Several statutes authorize recovery for damage to property resulting from various governmental functions not referred to in the GIA. See § 24-32-2111, C.R.S.1997 (damages resulting from negligent action or action in willful disregard of rights in combating grasshopper infestation); § 31-25-406, C.R.S.1997 (damages resulting from establishment of pedestrian mall); § 33-3-104, C.R.S.1997 (damages caused by wildlife under specified circumstances); and § 37-24-105, C.R.S.1997 (damages resulting from the construction or operation of a drainage district).

In addition, § 24-32-2303, C.R.S.1997, specifically authorizes a suit against the state for property damage, personal injury, or wrongful death sustained by a civil defense worker, and § 24-50.5-104, C.R.S.1997, authorizes a suit by an employee of the state if that employee is retaliated against for providing non-confidential information respecting a state agency.

Finally, the CRA specifically authorizes a civil action by an employee against the state or any political subdivision based upon a refusal to hire, a discharge, a promotion or demotion, or other action that discriminates against that employee in matters of compensation because of that employee's disability, race, creed, color, sex, age, national origin, or ancestry. See §§ 24-34-402 and 24-34-306(11), C.R.S.1997. A similar action may be instituted by an employee who has been terminated from employment for engaging in a lawful activity off the premises of the employer during nonworking hours. Section 24-34-402.5, C.R.S.1997.

Whenever a legal action is brought pursuant to any of these other statutes, a determination must be made as to whether the GIA applies to that action.

The initial inquiry is whether the statutory action lies in "tort" or could lie in tort. If so, it may also be necessary to consider whether the substantive restrictions of §§ 24-10-105, 24-10-106, and 24-10-108 of the GIA apply to such a statutory action, and whether it is to be considered one "brought under the provisions" of the GIA for purposes of the notice provisions of § 24-10-109.

In two early decisions, both the supreme court and a division of this court concluded that an action brought pursuant to another statute was not an action brought under the GIA, so that the § 24-10-109 notice requirement was inapplicable to such an action.

In Antonopoulos v. Town of Telluride, 187 Colo. 392, 532 P.2d 346 (1975), plaintiff sued two town marshals, based on common law negligence. In addition, he asserted two claims against the town, one based on the common law doctrine of respondeat superior and one based on the statute that is now § 29-5-111, C.R.S.1997, requiring a municipality to indemnify its peace officers. The supreme court held that the GIA's notice requirements were applicable only to the common law claims against the town based on respondeat superior. It held that sovereign or governmental immunity had never barred an action against a peace officer, even before the adoption of the GIA, and therefore, "the legislature's enactment of the [GIA] was without effect on a...