Gansert v. Colorado

• Decision Date: 10 December 2004
• Docket Number: No. CIV.A.03-F-1327(PAC).,CIV.A.03-F-1327(PAC).
• Parties: Sherian GANSERT, Plaintiff, v. State of COLORADO, Department of Higher Education, Colorado Student Loan Program; and Jeanne M. Adkins, in her Individual and official capacities, Defendants.
• Court: U.S. District Court — District of Colorado

348 F.Supp.2d 1215

Sherian GANSERT, Plaintiff, v. State of COLORADO, Department of Higher Education, Colorado Student Loan Program; and Jeanne M. Adkins, in her Individual and official capacities, Defendants.

No. CIV.A.03-F-1327(PAC).

United States District Court, D. Colorado.

December 10, 2004.

COPYRIGHT MATERIAL OMITTED

Seth J. Benezra, Benezra & Culver, LLC, Lakewood, CO, for Plaintiff.

Andrew David Ringel, Thomas J. Lyons, Hall & Evans, Denver, CO, for Defendants.

ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

FIGA, District Judge.

This matter comes before the Court on Defendants' Motion for Summary Judgment (Dkt.# 62) filed June 18, 2004, which contains a supporting brief and is accompanied by exhibits numbered A-1 through A-57, some of which were filed under seal. Plaintiff submitted her response in opposition to defendants' motion on August 5, 2004, accompanied by exhibits numbered 1 through 25. Defendants filed their reply brief on September 10, 2004.

BACKGROUND

Plaintiff Sherian Gansert filed her amended complaint in this case on September 5, 2003, asserting two claims for relief arising from her termination as an employee of Defendant Colorado Student Loan Program ("CSLP"). She alleges, essentially, that Defendant Adkins, her supervisor, retaliated against her and wrongfully terminated her from her position in April 2003 because plaintiff disclosed to CSLP legal counsel what plaintiff considered to be improper financial conduct in the office of the CSLP. Plaintiff alleges that the retaliation and termination by Ms. Adkins violated her rights of free expression under the First Amendment and violated the Colorado State Employee Protection Act, C.R.S. § 24-50.5-101, et seq. (sometimes referred to as the "Whistleblower Act"). The amended complaint names Ms. Adkins as a defendant in both her official capacity and her individual capacity.

By Order entered on September 14, 2004, this Court granted in part and denied in part the motion to dismiss filed by Defendant Adkins, clarifying that she could not be sued for damages in her "official capacity" as an employee of the State of Colorado, nor for retroactive injunctive relief, but she could be sued in her official capacity for prospective injunctive relief. The Order also denied Defendant Adkins' request to stay all proceedings in this case pending this Court's decision on her motion for summary judgment, which has been seeking dismissal of the claims against her based on her argument that she was protected by qualified immunity.

On September 16, 2004, Defendant Adkins filed an appeal of this Court's Order and a petition for writ of mandamus with the Tenth Circuit. On September 20, 2004, this Court denied Defendant Adkins' motion to stay proceedings in this case pending a ruling by the Tenth Circuit on those matters. On September 20, 2004, the Tenth Circuit denied Defendant Adkins' request for a writ of mandamus seeking a stay of this case until a determination on her assertion of qualified immunity. On December 3, 2004, the Tenth Circuit dismissed Defendant Adkins' appeal from the denial of a stay due to a lack of jurisdiction.

It appears that discovery was completed after this Court's rulings of September 2004, and a Final Pretrial Order was entered on September 30, 2004. On October 4, 2004 this case was set for a seven-day jury trial to commence March 28, 2005. The Court has received no supplemental exhibits or briefs in relation to the defendants' motion for summary judgment. Thus, the motion is now ripe for determination.

UNDISPUTED FACTS

Plaintiff was employed at CSLP, a division of the Department of Higher Education of the State of Colorado, from January 1, 1980 until the time she left the agency in April 2003. The parties have agreed that the following facts regarding her employment are undisputed, at least for the purposes of this motion. (See Defendants' brief, statement of undisputed facts 1-25 and 30-51, plaintiff's responses thereto at 3-4, and stipulations in Supplemental Final Pretrial Order).

Plaintiff began employment with CSLP in 1980. In 1981, she was promoted to the position of Assistant Director of Administration. In 1984, she became the Associate Director for Administration, a position she remained in until 2003. (Supplemental Final Pretrial Order at 13). Her employment during this period of time was governed by a series of written employment agreements, each of a duration of one year or less (Defendants' brief at 3; plaintiff's response at 3). Plaintiff also served in the position of State Controller's Delegate to CSLP (Defendants' brief at 9; plaintiff's response at 3). As part of her responsibilities as State Controller Delegate, plaintiff reviewed and approved acquisitions made by CSLP (Id.). According to Colorado law and applicable fiscal policies, the intricacies of which need not be detailed here, the State Controller is authorized to commit funds for goods and services only after a purchase order or contract is in place. Plaintiff, in her position as State Controller Delegate to CSLP, possessed the authority to recommend to the State Controller ratification of any commitment made by CSLP in violation of Colorado law (Defendants' brief at 9; plaintiff's response at 3).

From May 1985 through February 2002, Robert Fomer was the Director of CSLP, apparently serving as plaintiff's supervisor (Defendants' brief at 4; plaintiff's response, p. 3). In March 2002, Defendant Adkins was appointed as Director of CSLP and became plaintiff's supervisor (id.). In July 2002, plaintiff executed a one-year employment agreement for the period July 1, 2002 through June 30, 2003, and Defendant Adkins signed the agreement on behalf of CSLP (Defendants' Exhibit A-31).

On January 24, 2003, during a review of CSLP commitment documents, plaintiff discovered what she believed to be two instances of committal of State funds made prior to the requisite purchase order or contract (Defendants' brief at 12; plaintiff's response at 4). Plaintiff considered these two instances to be deliberate violations of state law by the individuals involved, one of which was Defendant Adkins (Gansert Depo. at 134-35; Exhibit 1 to plaintiff's response). That same day, plaintiff contacted Mr. Charles Heim, Esq., the Associate Director of Legal Affairs for CSLP, expressed her concern over this matter and requested that he review the documentation concerning the two instances (Defendants' brief at 12; plaintiff's response at 4). Upon his initial review, Mr. Heim, concluded that the two instances appeared to violate state fiscal laws and so informed plaintiff (id.).

Plaintiff testified that she did not raise the matter with Defendant Adkins on January 24, 2003 because she had gone to her attorney on this matter and "through him he was going to notify Ms. Adkins of the situation, which I believe he did." (Gansert Depo. at 154). According to Mr. Heim, he served as plaintiff's attorney with respect to her State Controller delegate functions (Heim Depo. at 27, Exhibit 9 to plaintiff's response). Later on January 24, 2003, plaintiff informed Mr. Heim that based on further research she had conducted, she concluded that one of the two matters turned out not to be a problem.¹ (Defendants' brief at 13; plaintiff's response at 4).

Sometime thereafter, Mr. Heim spoke to Defendant Adkins and Mr. Robert Haddock, the other individual involved, and advised them of the potential violation of state law, as well as the fact that individuals responsible for improper commitments could be held personally liable (Defendants' brief at 13; plaintiff's response at 4). Mr. Heim advised plaintiff not to approve the remaining purchase order relating to Robert Half Technology, as to which the issue remained unresolved (Defendants' brief at 13; plaintiff's response at 4).

Subsequently in February 2003, Brian Burnett, the chief financial officer of the Colorado Department of Higher Education conducted an investigation into the matter, the details of which are not pertinent to this order. Suffice it to say that on February 24, 2003, Mr Burnett submitted a memorandum to the State Controller, requesting the State Controller to "ratify the violation of state fiscal rules and Colorado law." (Defendants' brief at 14; plaintiff's response at 4; see also Exhibit A-50 to Defendants' brief). On March 13, 2003, the Office of the State controller ratified the procurement and authorized CSLP to pay for the services to Robert Half Technology (Defendants' brief at 15, and Exhibit A-51 thereto; plaintiff's response at 4).

Eleven days later, on March 24, 2003, Defendant Adkins met with plaintiff and informed her that her annual contract of employment with CSLP would not be renewed following its expiration on June 30, 2003 (Defendants' brief at 15; plaintiff's response at 4). The Court notes that the plaintiff's employment agreement for the period July 1, 2002 through June 30, 2003 does not contain a specific provision addressing renewal or non-renewal of the agreement (see Exhibit A-31 to Defendants' brief). However, Section 2 of the employment agreement provides that "[t]he employee is deemed to be an employee at-will," and Section 8 of the agreement provides that "[t]his AGREEMENT may be terminated at any time by either of the parties, hereto, upon thirty(30) days written notice one to the other." (Id.)

In a written memorandum to plaintiff dated April 9, 2003, referencing their March 24, 2003 conversation, Defendant Adkins wrote that:

You were informed that although you were being given 30 days notice per terms of the contract for at-will employees, that the separation would involve leaving CSLP immediately.

In the same conversation, you were offered the opportunity to complete an additional 60-day contract extension off-site that involves completion of two projects....

(Exhibit A-53 to Defendants' brief). Plaintiff did not accept the offer to work "off-site" and apparently did not return to...