Trimble v. City and County of Denver, 81SC398

• Citation: 697 P.2d 716
• Decision Date: 11 March 1985
• Docket Number: No. 81SC398,81SC398
• Parties: F. Cleveland TRIMBLE, Petitioner, v. The CITY AND COUNTY OF DENVER, a municipal corporation, and Abraham J. Kauvar, Respondents.
• Court: Supreme Court of Colorado

Page 716

697 P.2d 716

F. Cleveland TRIMBLE, Petitioner, v. The CITY AND COUNTY OF DENVER, a municipal corporation, and Abraham J. Kauvar, Respondents.

No. 81SC398.

Supreme Court of Colorado,

En Banc.

March 11, 1985.

Rehearings Denied April 15, 1985.

Holme Roberts & Owen, Daniel S. Hoffman, McDermott, Hansen, Anderson & Reilly, Daniel M. Reilly, Denver, for petitioner.

Max P. Zall, City Atty., Robert M. Kelly, John L. Stoffel, Jr., Brian H. Goral, Asst. City Attys., Denver, for respondents City and County of Denver and Abraham J. Kauvar, in his capacity as Manager of Health and Hospitals.

Holland & Hart, William C. McClearn, Bruce W. Sattler, John C. Tredennick, Jr., Denver, for respondent Abraham J. Kauvar.

LOHR, Justice.

Dr. F. Cleveland Trimble, the former director of the Department of Emergency Medical Services (Emergency Medical Services) at Denver General Hospital brought suit against the City and County of Denver (City) and Trimble's immediate supervisor, Dr. Abraham J. Kauvar, manager of Denver's Department of Health and Hospitals (Health and Hospitals). Trimble's complaint stated a breach of contract claim against the City and claims for tortious conduct against Kauvar, all arising from the termination of Trimble's employment with Denver General Hospital. After a trial without a jury, the Denver District Court awarded Trimble compensatory and punitive damages against Kauvar, and compensatory damages against the City. The Colorado Court of Appeals affirmed part of the award against the City, and reversed the remainder of the judgment. Trimble v. City & County of Denver, 645 P.2d 279 (Colo.App.1981). We granted certiorari to review this decision.

We conclude that the court of appeals correctly determined the extent of the City's liability. Parts of the trial court's judgment against Kauvar, however, were proper and should have been sustained. Therefore, we affirm the judgment of the court of appeals in part, reverse it in part, and remand the case for further proceedings.

I.

The trial court made extensive findings detailing the relevant facts. It summarized the case as follows:

We are in Court on this matter because two very respected physicians clashed over philosophical differences as to how emergency services and ambulatory care should be administered at Denver General Hospital.... [B]ecause of their philosophical differences Dr. Kauvar decided to "get rid" of Dr. Trimble who, he believed, was not cooperating with his policies. In this case, the process and method of getting rid of Dr. Trimble was an abuse of administrative power. He had other authorized alternatives to correct the problem if he believed Dr. Trimble was mutinous or obstructive but he chose an unauthorized and improper method which resulted in the medical and academic community believing Dr. Trimble was "fired", thus damaging the reputation of Dr. Trimble. Also, in exchange for an agreement that Dr. Trimble would resign, give up the right to a career service hearing, and not sue the City or its employees, Dr. Kauvar and the City entered into a settlement contract with Dr. Trimble which the defendants did not thereafter honor, further damaging Dr. Trimble.

Trimble was appointed director of Emergency Medical Services at Denver General Hospital in 1972. This was a classified, permanent career service position. Kauvar was appointed manager of Health and Hospitals by the mayor in February 1974. He was Trimble's supervisor.

When Kauvar assumed his post, Emergency Medical Services was experiencing delays in ambulance service, shortages of personnel and equipment, and patient contacts at four times the designed capacity of the emergency facilities. The trial court found that Kauvar was not responsible for the resource problems that existed in Emergency Medical Services in 1974.

Differences of opinion between Kauvar and Trimble concerning hospital administrative policy surfaced almost immediately. Trimble threatened on several occasions to resign unless he were given more resources to improve emergency patient care. These threats irritated Kauvar. In order to provide faster service and reduce patient loads at Emergency Medical Services, Trimble began to divert ambulances to other hospitals. Kauvar opposed diversion of ambulances because this practice entailed loss of revenue. The differences between the two men intensified. In April 1974, Kauvar demanded Trimble's resignation, but Trimble refused. In May, Kauvar proposed splitting Emergency Medical Services into a critical care unit, which would care for unscheduled patients requiring emergency treatment, and a receiving unit, which would serve unscheduled patients less seriously injured or ill. Trimble was to remain overall chief as well as head of critical care. Trimble opposed this reorganization. The trial court found that, as a result of these disputes, Kauvar developed a personal hostility toward Trimble and began to explore ways of removing him.

Late in June 1974, Kauvar announced the split of the receiving unit and the critical care unit. On July 3, Kauvar ordered Trimble to stop all ambulance diversions to other hospitals. On July 5, the Denver Post published an article reporting Trimble's disagreement with the reorganization of Emergency Medical Services. Kauvar was very upset by the newspaper report.

On July 8, 1974, Kauvar removed Trimble from his position as director of Emergency Medical Services and reassigned him to the Department of Surgery as a staff surgeon. Kauvar testified that he had determined that the transfer was permissible based upon the advice of the Career Service Authority. The trial court found that he had received no such advice, and that the reassignment was made with intentional and reckless disregard for career service rules. Although Kauvar described the reassignment as temporary, he immediately authorized formation of a search committee to look for a permanent successor to Trimble as director of Emergency Medical Services. The trial court found that Kauvar intended the reassignment to be permanent and that his actions in that regard "were not in good faith and were attended by circumstances of malice toward Dr. Trimble, to 'get rid' of him." Trimble, however, did not elect to leave Denver General Hospital.

In August, Kauvar officially abolished Emergency Medical Services as a separate department, thus eliminating the director's position. The critical care unit was transferred to the Department of Surgery, and the receiving unit became part of the Department of Medicine. The trial court found that the primary purpose of this reorganization was to effect Trimble's permanent removal from the emergency services area. The court specifically determined that the action was attended by malice toward Trimble and was not taken in good faith for bona fide organizational purposes.

In response to elimination of his position as director, and pursuant to career service rules, Trimble chose demotion rather than layoff. He was demoted to the position of associate director of the Department of Surgery. However, the former associate director continued to perform the duties of that office, while, as the trial court found, "Trimble was given an office in a maintenance building, known as the 'boiler house' and was not allowed to perform the duties of the Associate Director. Further, he was assigned to proctology, not his specialty by choice." Unbeknownst to Trimble, Kauvar had agreed with the director of the Department of Surgery that Trimble would never perform the duties of associate director of that department.

Trimble filed a grievance to challenge the validity of Kauvar's actions under career service rules, but in lieu of pursuing that relief to conclusion he entered into a settlement agreement with the City in December 1974, intended, as the trial court found, to restore his reputation. Trimble was to serve as a consultant in emergency medicine, including the instruction of emergency medical services ¹ staff and the provision of patient care, for not less than fifteen hours a week over the course of one year. In return, Trimble withdrew the grievance, resigned as a career service employee, and covenanted not to sue the City or its employees "relat[ing] to [his] previous employment at the City's Department of Health and Hospitals or the business and operation of the said Department...." However, Kauvar had determined before the agreement was executed that Trimble was not to be allowed to teach or provide patient care under the contract or to work in the emergency medical services area of the hospital, and Kauvar adhered to that decision.

Kauvar gave Trimble no work assignments until March 1975, when Trimble complained to Kauvar about the lack of work. Kauvar then assigned Trimble to write reports that did not require Trimble's presence on the hospital premises. After making contract payments to Trimble during the initial months of the contract period, the city auditor refused to authorize such payments for April and May. On June 2, 1975, Trimble elected to treat the contract as "discharged."

After his resignation, Trimble worked as a consultant for a private hospital in Denver and then accepted a position as a professor at the University of Florida in 1978. The discontinuation of his employment by the City had led to the termination of his assistant professorship at the University of Colorado and of his candidacy for an associate professorship there. The trial court found that there was a very significant negative reaction to Trimble among his peers following his separation from Denver General Hospital. His extensive professional affiliations and his opportunities to publish reports and make speeches were severely reduced. The court found that:

Dr. Trimble has suffered a serious and permanent loss of reputation and opportunity to gain employment in prestigious academic environments. The medical and academic community believes Dr. Trimble was 'fired'...