Ferrel v. Colorado Dept. of Corrections

Decision Date01 June 2007
Docket NumberNo. 05CA2303.,05CA2303.
Citation179 P.3d 178
PartiesLowell O. FERREL, Plaintiff-Appellant, v. COLORADO DEPARTMENT OF CORRECTIONS, Colorado State Personnel Board, and Delores Montoya, Defendants-Appellees.
CourtColorado Court of Appeals

Furman, Kerns & Bauer, LLC, Steven M. Furman, Fort Morgan, Colorado, for Plaintiff-Appellant.

John W. Suthers, Attorney General, Stephanie L. Scoville, Assistant Attorney General, Denver, Colorado, for Defendants-Appellees Colorado Department of Corrections and Delores Montoya.

John W. Suthers, Attorney General, Pamela C. Sanchez, Assistant Attorney General, Denver, Colorado, for Defendant-Appellee Colorado State Personnel Board.

Opinion by Judge FURMAN.

Plaintiff, Lowell O. Ferrel, appeals the trial court judgment dismissing various claims against defendants, Colorado Department of Corrections (DOC), the Colorado State Personnel Board (Board), and Delores Montoya, for lack of subject matter jurisdiction under C.R.C.P. 12(b)(1). Ferrel's main contentions concern the procedure for, and substance of, the trial court's determination of subject matter jurisdiction in a whistleblower act case when the defendants claim immunity under the Colorado Governmental Immunity Act (CGIA), § 24-10-101, et seq., C.R.S.2006 (CGIA). We affirm and remand for awards of attorney fees.

I. Background

Dr. Ferrel, a licensed psychologist, was hired in 1999 as the mental health coordinator at the Sterling Correctional Facility. Ferrel was a probationary employee when he suffered a demotion in title and responsibilities in early 2000. At the time of the demotion, he was supervised by the clinical team leader, Delores Montoya, and by the chief of mental health.

Ferrel petitioned the Board for a hearing to review DOC's imposition of a disciplinary demotion during the probationary period. Ferrel claimed his demotion was an improper retaliation for his disclosures of information covered by the whistleblower statute, § 24-50.5-101, et seq., C.R.S.2006. He attached to his complaint a memorandum and a letter he had provided to the chief of mental health.

The memorandum concerned a meeting Ferrel had had with the warden and Montoya about (1) Ferrel's need to spend more time with inmates; (2) the warden's erroneous statement about the chain of command; (3) the transfer of a disruptive inmate who Ferrel clinically determined was not in a mental health crisis; (4) Ferrel's statements to others that Montoya was intimidated by the warden; (5) Ferrel's perception that the warden had a temper; (6) Ferrel's expressions of anger toward coworkers, particularly the nursing supervisor; and (7) the warden's expectation that Ferrel get along with his coworkers.

The letter reported Ferrel's (1) serious personal issues, which Ferrel said was caused by harassment from Montoya, the warden, and the nursing supervisor; (2) feelings of being depressed, anxious, and hopeless about his job situation; (3) request for an Inspector General investigation into the conduct of Montoya, the warden, and the nursing supervisor; and (4) overall perception of workplace harassment.

The administrative law judge (ALJ) issued a dismissal order without a hearing, finding that the documents did not constitute a "disclosure of information" under the whistleblower statute. See § 24-50.5-102(2), C.R.S. 2006. The Board affirmed the ALJ's decision.

A division of this court reversed the decision of the Board and remanded the case for further proceedings, including a hearing on the complaint. That division concluded the complaint, on its face, "alleged a violation of law and that the action was taken for reasons other than those allowed by law" and the memorandum and letter constituted "disclosures of information within the contemplation of the whistleblower statute." Ferrel v. Dep't of Corr., (Colo.App. No. 00CA1315, Nov. 15, 2001) (not published pursuant to C.A.R. 35(f)) (Ferrel I).

On remand, the Board undertook the investigation required by the applicable version of the whistleblower statute and produced an investigatory report, concluding that defendants did not retaliate against Ferrel for whistleblower activity.

Ferrel subsequently filed this suit against defendants in the trial court for reinstatement of his position and back pay, alleging, among other grounds, that he was wrongfully disciplined in retaliation for protected disclosures under the whistleblower statute.

Defendants moved to dismiss Ferrel's claims for lack of subject matter jurisdiction under C.R.C.P. 12(b)(1), asserting the CGIA barred the claims. The trial court held an evidentiary hearing under Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916, 925 (Colo.1993), and granted defendants' motion. In a detailed and well-reasoned order, the court concluded that neither the memorandum nor the letter constituted "disclosure[s] of information" protected under the whistleblower statute because they did not touch upon matters of "public concern." This appeal followed.

II. Whistleblower Claims

Ferrel contends the trial court erred in holding a Trinity hearing and concluding that his documents were not "disclosures of information" protected under the whistleblower statute. We disagree.

A. Trinity Hearing

The central dispute between the parties on appeal concerns the extent to which the whistleblower statute's implied waiver of immunity should be treated like other waivers of immunity under the CGIA. See § 24-10-106, C.R.S.2006. This dispute arises because whistleblower act claims have been described as "tort" claims. See, e.g., State Pers. Bd. v. Lloyd, 752 P.2d 559, 563 (Colo.1988); Conners v. City of Colorado Springs, 962 P.2d 294, 299 (Colo.App.1997), aff'd, 993 P.2d 1167 (Colo.2000). The CGIA explicitly prohibits all tort claims against public entities other than torts for which the General Assembly has waived sovereign immunity. See § 24-10-105(1), C.R.S.2006 ("[n]o public entity shall be liable" for actions which lie in tort or could lie in tort "except as provided in this article"). But the CGIA does not include whistleblower act claims as one of the enumerated torts. Accordingly, this case calls for us to construe the implied statutory waiver of immunity in light of the CGIA. Statutory interpretation is a question of law that we review de novo. Tidwell v. City & County of Denver, 83 P.3d 75, 81 (Colo.2003).

1. Implied Immunity

Ferrel contends the trial court erred in requiring him to prove at a Trinity hearing that the memorandum and letter constituted a "disclosure of information." Ferrel contends this was a matter to be determined at trial. We disagree.

Whether a claim falls within an exception to the CGIA's waiver of sovereign immunity is a question of subject matter jurisdiction and, if raised before trial, is addressed under C.R.C.P. 12(b)(1). Henry-Hobbs v. City of Longmont, 26 P.3d 533, 535 (Colo.App.2001), aff'd, 50 P.3d 906 (Colo. 2002). Under C.R.C.P. 12(b)(1), the plaintiff has the burden to prove subject matter jurisdiction. Trinity, supra, 848 P.2d at 925; Henry-Hobbs v. City of Longmont, supra, 26 P.3d at 535.

Any factual dispute upon which the existence of jurisdiction may turn is for the trial court, not the jury, to determine. Henry-Hobbs v. City of Longmont, supra. The supreme court explained, "Such a required pre-trial decision permits the court to decide early whether the case is a dispute between private parties or one which involves the government. In this way, in some cases, the government is spared unneeded litigation expense." Gallagher v. Bd. of Trs., 54 P.3d 386, 395 (Colo.2002).

The parties agree the whistleblower statute implicitly waives sovereign immunity under the CGIA in an action for retaliatory discipline resulting from the "disclosure of information." See State Pers. Bd. v. Lloyd, supra, 752 P.2d at 563 (describing whistleblower claims as "tort" claims subject to provisions of the CGIA). Ferrel contends, however, that because the whistleblower statute waives sovereign immunity there is no need for a pretrial evidentiary hearing. We disagree.

As Trinity and its progeny demonstrate, a trial court may not abdicate its responsibility to determine that an action falls within a waived area of sovereign immunity. See Gallagher v. Bd. of Trs., supra, 54 P.3d at 395 (reaffirming the holding in Trinity that trial court properly decided the question of scope of employment on a C.R.C.P. 12(b)(1) motion to dismiss); Medina v. State, 35 P.3d 443, 449 (Colo.2001) (if necessary, plaintiff must establish a waiver of immunity through a C.R.C.P. 12(b)(1) hearing by showing elements of an alleged dangerous condition).

Here, under the whistleblower statute, "only certain kinds of disclosures are protected." Ward v. Indus. Comm'n, 699 P.2d 960, 967 (Colo.1985). Thus, if Ferrel did not make a "disclosure of information" protected by the whistleblower statute, the CGIA would not waive sovereign immunity. See § 24-50.5-102(2) (defining "disclosure of information").

We therefore conclude the trial court properly determined subject matter jurisdiction over Ferrel's whistleblower claims at a Trinity hearing in the same way that jurisdiction under the CGIA generally is determined. We further conclude the trial court properly decided the disputed question of whether the memorandum and letter constituted "disclosure[s] of information" protected by the whistleblower statute through a Trinity hearing.

We reject Ferrel's contention that City of Lakewood v. Brace, 919 P.2d 231 (Colo.1996), compels a different result. Brace distinguished between issues of qualified and sovereign immunity and held that, whether a public employee acted willfully and wantonly, and thus could be liable under the CGIA, was a matter to be determined at trial instead of on a C.R.C.P. 12(b)(1) motion. After the facts underlying Brace occurred, but before the supreme court issued its decision in ...

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