Craven v. University of Colorado Hospital Auth., 99-1519

• Decision Date: 13 August 2001
• Docket Number: No. 99-1519,99-1519
• Citation: 260 F.3d 1218
• Parties: (10th Cir. 2001) PATRICIA CRAVEN, Plaintiff - Appellant, v. UNIVERSITY OF COLORADO HOSPITAL AUTHORITY, Defendant - Appellee
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1218

260 F.3d 1218 (10th Cir. 2001)

PATRICIA CRAVEN, Plaintiff - Appellant, v. UNIVERSITY OF COLORADO HOSPITAL AUTHORITY, Defendant - Appellee.

No. 99-1519

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

August 13, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. No. 97-D-258)

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Barry Douglas Roseman, Roseman & Kazmierski, L.L.C., Denver, Colorado, for Plaintiff - Appellant.

Sonja S. McKenzie (Thomas S. Rice, with her on the brief), Senter, Goldfarb & Rice, L.L.C., Denver, Colorado, for Defendant - Appellee.

Before TACHA, KELLY, Circuit Judges, and LUNGSTRUM^*, District Judge.

PAUL KELLY, Circuit Judge.

Dr. Patricia Craven filed this action against the University of Colorado Hospital Authority ("UH" or "the hospital"), asserting: (1) a federal claim under 28 U.S.C. 1983 for retaliatory discharge in violation of the First and Fourteenth Amendments ("retaliatory discharge claim" or " 1983 claim"); (2) a pendent state claim for wrongful discharge in violation of public policy ("public policy claim" or "pendent state claim"); and (3) a second pendent state claim for breach of implied contract. The court granted summary judgment for UH on Dr. Craven's public policy claim; the others were tried to a jury, which returned a verdict for UH on both claims. The district court denied Plaintiff's Motion for a New Trial or, in the Alternative, to Amend or Alter the Judgment ("Rule 59 Motion"), and she appeals only as to the 1983 and public policy claims. For the reasons stated below, we affirm.

Background

From March 21 through November 8, 1994, Dr. Craven was employed by UH as the Manager of Safety and Risk Management. IV Aplt. App. 1149.¹ In that capacity, she was responsible for "assessing, developing, implementing, and monitoring the effectiveness of safety, security, and risk management programs for University Hospital." II Aplt. App. 1. The plaintiff became involved in a number of issues during her tenure at UH. For the purpose of this appeal, her involvement with problems relating to internal air quality, the infectious waste room, and radiation safety are the most significant.

I. Internal Air Quality

Almost immediately upon assuming her position at UH, the plaintiff became concerned about fumes emissions from a construction project in the Barbara Davis Center, which was adjacent to the hospital. The Barbara Davis Center was part of the University of Colorado's Health Science Center ("HSC"), a separate but affiliated entity of UH. IV Aplt. App. 605. Fumes were seeping into UH's ventilation system, causing internal air quality ("IAQ") problems within the hospital. The record shows that Dr. Craven's approach to the IAQ problem was confrontational and inflexible, and that she was consistently demeaning to HSC and other project personnel. After an early meeting with project personnel, the plaintiff circulated a memorandum to all affected areas of the hospital and to several high level officials at UH and HSC, reporting her conclusion that the fumes must be halted immediately. She did not consult her then-supervisor, Dr. Ann Jones, before circulating the memorandum. A few weeks later, the plaintiff invited ten to fifteen angry hospital employees to another meeting with project personnel. The record contains overwhelming evidence that Plaintiff's conduct at that meeting was abrasive and uncooperative. E.g., id. at 200-03, 620-22, 664, 1110-12. According to one attendee, the "meeting turned into havoc" when Dr. Craven and the hospital employees began "chanting[:] Who wants to shut them down, let's take a vote, who wants to shut them down." Id. at 664. As a result of these and other incidents, the plaintiff was repeatedly advised to develop a more effective problem-solving approach. E.g.,id at 1109 (5/24/94 letter); id. at 1130 (5/28/94 e-mail); id. at 1105 (6/1/94 letter);² id. at 1004-05 (6/4/94 e-mail).

II. Infectious Waste Room

By July 1994, Dr. Craven had become aware that "[t]he refrigerated infectious waste room on the dock [was] being improperly used[,] resulting in an increased risk of blood borne pathogen exposure." Id. at 1017. In addition to reporting to the safety committee and consulting with appropriate hospital personnel to remedy the problem, id. at 274, Dr. Craven and her staff took a number of photographs to be used in a presentation to the hospital's management council at their monthly meeting in August. Id. at 275-76, 399. Her then-supervisor, Ruth Sens, advised against the presentation on the grounds that given the management council's inability to solve the problem, the presentation "would have been a complete waste of time and cause nothing but stirring the group up." Id. at 549. Although plaintiff was allowed to compile a poster display, stand with it outside the meeting, and answer various managers' questions as they entered or left the meeting, id. at 277, 400, she was ultimately dissatisfied with the arrangement: "I wanted to present [the problem] to everyone, not just people that had the time to stop and talk." Id. at 278.

III. Radiation Safety Officer

Finally, Dr. Craven also clashed with her supervisors regarding the hospital's Radiation Safety Officer ("RSO"), Dr. Tim Johnson. In addition to her concerns about Dr. Johnson's performance, e.g., id. at 294, 550-51, 1104, the plaintiff disagreed with the placement of the RSO position in the hospital's overall organizational structure. Id. at 398-99, 871-72. Plaintiff was advised to express these concerns to Joyce Cashman her second-line supervisor and the hospital's then-Chief Operating Officer. Id. at 733-34. A few days later, Dr. Craven called Dr. Ed Hendrick, then-Chief of HSC's Radiological Sciences Division, to discuss her concerns about the RSO.³ Id at 306-11. Dr. Craven told Dr. Hendrick that nurses had been unable to reach Dr. Johnson to respond to a radioactive iodine spill in a chemotherapy patient's room. The plaintiff noted that another employee had responded to the incident, but expressed concern as to who should be called upon in the future.

On November 3, 1994, Ms. Sens posted a note on Dr. Craven's door, informing her that her "communications with Ed Hendrick[]" had caused "major problems . . . between UH Administration and the Health Sciences Center" and requesting "copies of all notes, E-Mails, and the context of all phone messages that you have had with [Dr. Hendrick] concerning the role of the RSO." Id. at 1114. Plaintiff responded in writing, id. at 1115, and met with Ms. Sens the following day. After initially placing Dr. Craven on leave, Ms. Sens terminated Plaintiff's employment on November 8, 1994, due to her "lack of professional behavior and insubordination." Id. at 1102. The termination letter described Dr. Craven's conversation with Dr. Hendrick as "extremely inappropriate" and "in direct conflict with the information you [had] received from Joyce Cashman, Vice President of Operations, telling you to address issues regarding the radiation safety officer directly to her." Id.; see supra, note 3. Plaintiff's internal appeal was unsuccessful. Id. at 1051, 1116-19.

Procedural History

This action was originally filed in state court. In her complaint, Dr. Craven alleged state claims for breach of implied contract and wrongful discharge in violation of public policy, as well as a federal claim for retaliatory discharge in violation of the First and Fourteenth Amendments.⁴ I Aplt. App. 1-6. After removing the case to federal court, UH moved for summary judgment as to each claim for relief. Id. at 12-13. With respect to Plaintiff's 1983 claim, UH argued, inter alia, that the speech for which Dr. Craven was allegedly terminated did not touch on matters of public concern, id. at 39-41, and that UH's interests in maintaining an efficient workplace specifically, in maintaining collegial relations with HSC and its employees outweighed Dr. Craven's interests in engaging in the speech at issue. Id. at 41-43, 149-51. Although the record before us does not contain the complete transcript of the hearing on that motion, it appears that UH's only successful argument on summary judgment was its claim of immunity under the Colorado Governmental Immunity Act ("CGIA") with respect to the state tort claim. Id. at 154-58. Thus, a jury trial was held on the implied contract and 1983 claims.

At the close of Dr. Craven's case and again at the close of all the evidence, UH moved for judgment as a matter of law under Rule 50(a) of the Federal Rules of Civil Procedure. IV Aplt. App. 504-27, 876-79. In both motions, the hospital's primary contention was that the speech upon which Plaintiff's 1983 claim was premised could not legally support a retaliatory discharge claim. As in its motion for summary judgment, UH argued that Dr. Craven's speech did not relate to matters of public concern and that UH's interests, as an employer, in maintaining an efficient workplace outweighed her interests, as a citizen, in speaking out as she did. Id. at 504-05, 517-22, 877. The court rejected both motions, but limited its ruling as to the protected status of Plaintiff's speech to her telephone call to Dr. Hendrick. Id. at 518, 520-21, 523-24, 878-79. Both claims were then submitted to the jury, which returned a general verdict for the defendant on each theory. Id. at 1170-71.

On appeal, Plaintiff challenges the jury's verdict on her 1983 claim on the basis of six alleged errors in Jury Instruction No. 22.

Discussion

I. Federal Claim: Retaliatory Discharge in Violation of First and Fourteenth Amendments

An individual public employer is liable for retaliatory discharge when he terminates an employee because she engaged in protected speech. Lybrook v. Members of Farmington Mun. Schools Bd. of Educ., 232 F.3d 1334, 1338 (10th Cir. 2000). If the court determines that the speech at issue was not protected, the defendant is entitled to judgment as...