Gallagher v. Board of Trustees

• Decision Date: 16 September 2002
• Docket Number: No. 00SC895.,00SC895.
• Citation: 54 P.3d 386
• Parties: Sean K. GALLAGHER, Petitioner, v. BOARD OF TRUSTEES FOR the UNIVERSITY OF NORTHERN COLORADO, The University of Northern Colorado, and James Zakely, Respondents.
• Court: Colorado Supreme Court

54 P.3d 386

Sean K. GALLAGHER, Petitioner, v. BOARD OF TRUSTEES FOR the UNIVERSITY OF NORTHERN COLORADO, The University of Northern Colorado, and James Zakely, Respondents.

No. 00SC895.

Supreme Court of Colorado, En Banc.

September 16, 2002.

Welborn, Sullivan, Meck & Tooley, P.C., Kristen L. Mix, Denver, Colorado, Attorneys for Petitioner.

Ken Salazar, Attorney General, Douglas J. Cox, Assistant Attorney General, Denver, Colorado, Attorneys for Respondents.

Roseman & Kazmierski, L.L.C., Barry D. Roseman, Thomas A. Feldman, Collison & Bechtold, LLC, Joan M. Bechtold, Denver, Colorado, Attorneys for Amicus Curiae Plaintiff Employment Lawyers Association. Justice BENDER delivered the Opinion of the Court.

Introduction

In this case we consider three issues construing the Colorado Governmental Immunity Act (CGIA) in the context of a whistleblower claim.

First, we consider whether the CGIA's 180-day notice of claim requirement bars the whistleblower-plaintiff from seeking relief for actions of the defendant-employer which occurred more than 180 days before the employee filed notice of the claim. Second, we consider whether the continuing violation doctrine developed under cases interpreting Title VII's filing requirements applies to a determination of whether the CGIA's 180-day notice of claim mandate has been followed. And third, we address whether our decision in City of Lakewood v. Brace, 919 P.2d 231 (Colo.1996) permits a trial court to decide before trial whether a defendant public employee, who is sued personally in tort, enjoys immunity because his allegedly tortious acts occurred within the scope of his employment.¹ The plaintiff in this case, Sean Gallagher, filed suit under the Whistleblower Act against his former employer, the University of Northern Colorado (UNC), after he suffered a mental collapse following alleged retaliatory employment actions. He also sued a UNC administrator, James Zakely, individually, asserting that Zakely defamed Gallagher's reputation with a comment at a staff meeting that Gallagher had reported to work "smelling like marijuana."

The court of appeals in Gallagher v. Board of Trustees for the University of Northern Colorado, 18 P.3d 837 (Colo.App.2000) held regarding the whistleblower claims that the alleged disciplinary actions which occurred more than 180 days before Gallagher filed a notice of claim were barred under the CGIA because Gallagher suffered injury immediately upon the occurrence of those earlier events. It also held that the continuing violation doctrine did not apply to whistleblower claims, and Gallagher could not rely on it to save his untimely notice of claim filing. Finally, it affirmed the trial court's dismissal of Gallagher's defamation claim, reasoning that Brace did not apply to the question of whether a public employee's actions occurred during the scope of employment, and thus, the trial court may determine this factual issue pre-trial. Gallagher, 18 P.3d at 842-44.

We reverse. We reaffirm our holding in Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo.1993) that when a motion to dismiss for lack of subject matter jurisdiction for failure to comply with the notice of claim provision of the CGIA is based on a disputed factual interpretation of when the plaintiff discovered his injury, the trial court must hold a pre-trial hearing to resolve the fact questions and to determine whether the court properly maintains jurisdiction over the case. Id. at 927. We also reaffirm our holding in Trinity Broadcasting that the test for discovery of the injury for purposes of the CGIA is the time when the claimant discovered or should have discovered she was injured. Id. Discovery of the injury in this context only requires that the claimant realize there is some injury; the person need not have determined the cause of the injury. In a whistleblower case, the factual issue to be determined is when the employee knew or should have known that she was being retaliated against for some protected conduct.

We agree and affirm the court of appeals' holding that the continuing violation doctrine does not apply to determine whether Gallagher's whistleblower claims were timely filed pursuant to the CGIA's 180-day requirement.

With regard to Gallagher's defamation claim, we hold that the question of whether a public employee acts within the scope of his employment is a question of sovereign immunity. As such, it is proper for a trial court to decide for the purposes of immunity whether an employee was acting within the scope of his employment on a C.R.C.P. 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. Here, although the trial court made a pre-trial ruling on this issue, it did not resolve disputed issues of fact.

Because there exist unresolved issues of fact on the CGIA notice issue and whether the alleged defamatory statement occurred during the scope of Zakely's employment, we remand this case to the court of appeals to return this case to the trial court for a pretrial hearing to resolve these disputed issues. Based upon that court's resolutions of these factual issues, the trial court should then decide whether it has subject matter jurisdiction over Gallagher's whistleblower and defamation claims.

Facts and Proceedings Below

Sean K. Gallagher was employed in the Information Systems Department of UNC from 1970 to 1997. During his employment at UNC, Gallagher always received positive work reviews and steadily advanced in seniority.

In 1993, Chris Ahern became Gallagher's supervisor. Soon thereafter, Gallagher alleges that he began noticing various improper financial dealings in the Information Systems Department. Gallagher reported his suspicions to his supervisors, beginning first with Ahern, his immediate supervisor, and then to increasingly senior officials at UNC until he eventually reported the activity to some of UNC's trustees.

Gallagher alleges that from 1994 through 1997, in retaliation for revealing the financial improprieties in the Information Systems Department, Ahern and other agents of UNC performed a pattern of disciplinary action against Gallagher that violated the Whistleblower Act. The alleged actions include ignoring Gallagher's communications, ridiculing him in public at staff meetings, excluding him from meetings that were pertinent to his work, reducing his responsibilities, threatening him with job loss, and Zakely's allegedly defamatory comment that Gallagher had reported to work smelling of marijuana. In his complaint, Gallagher acknowledges that between 1994 and 1997 he reported much of the retaliatory conduct as it occurred. However, Gallagher also asserts that the retaliatory action began so subtly that only in hindsight was he aware it constituted retaliatory conduct. Over time, the retaliation escalated, until 1997, when Gallagher suffered a mental collapse.

In March 1997, Gallagher took disability leave under the Family and Medical Leave Act and disability retirement in 1998. Gallagher was diagnosed with clinical depression and maintains that the depression was induced by work-related stress caused by the retaliation.

In July 1997, Gallagher filed a notice of claim pursuant to the CGIA and filed this civil suit soon thereafter.

UNC moved to dismiss much of Gallagher's whistleblower claim for lack of subject matter jurisdiction pursuant to C.R.C.P. 12(b)(1). It argued that those alleged retaliatory acts which occurred more than 180 days from when Gallagher filed his notice of claim must be dismissed due to failure to comply with the CGIA.² Additionally it argued that the defamation claim against Zakely must be dismissed because he made the marijuana comment within the scope of his employment and is therefore immune under the CGIA. Gallagher argued in response that he did not discover his injury until he suffered a mental collapse and that the court should apply the continuing violation doctrine to find that Gallagher complied with the CGIA as to all events related to his whistleblower claim.

The trial court denied the motion to dismiss with regard to the whistleblower claim. Without making specific findings of fact and without directly addressing the continuing violation doctrine, the court held that it was inappropriate to distinguish between the various alleged acts and that it was "entirely possible for Plaintiff's emotional collapse to have manifest itself three years after the first instance of alleged harassment." The trial court granted the motion to dismiss with regard to Gallagher's defamation claim, holding that the facts as presented preclude a finding of defamation. The court explained that reasonable minds would agree that Zakely made the statement during the performance of his official duties and within the scope of his employment.

The court of appeals reversed in part and affirmed in part. As a preliminary matter, with regard to the whistleblower claim, it held that Gallagher could not invoke the continuing violation doctrine to transform his notice of claim to comply with the 180-day filing deadline for those acts occurring more than 180 days prior to his filing. Gallagher, 18 P.3d at 842. Because Gallagher asserted that his emotional collapse was the cumulative effect of the actions he alleged occurred between 1994 and 1997, the court reasoned that Gallagher suffered injury much earlier than his final emotional collapse. Thus, the court of appeals reasoned, Gallagher was required under the CGIA to file his notice of claim once he suffered some injury and knew the cause of it. Therefore, it held that the trial court erred in not dismissing the portion of the whistleblower claim that was based on events occurring more than 180 days before Gallagher filed his notice of claim. Id.

On appeal of the defamation claim, Gallagher argued that the trial court's dismissal of the claim was improper because the issue of whether Zakely's actions occurred during...