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Houchin v. Denver Health and Hospital Authority

Court of Appeals of Colorado, Fifth Division

April 4, 2019

Brent M. Houchin Plaintiff-Appellee,
v.
Denver Health and Hospital Authority, Defendant-Appellant.

          City and County of Denver District Court No. 17CV32286 Honorable David H. Goldberg, Judge.

          EEO Legal Solutions LLC, Merrily S. Archer, Denver, Colorado, for Plaintiff-Appellee.

          Fairfield and Woods, P.C., Brent T. Johnson, Denver, Colorado, for Defendant-Appellant.

          Philip J. Weiser, Attorney General, Friedrick C. Haines, Senior Litigation Counsel and Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee, for Amicus Curiae the State of Colorado.

          OPINION

          RICHMAN JUDGE.

         ¶ 1 This case requires us to decide whether the claims of plaintiff, Brent M. Houchin, brought under the Colorado Anti-Discrimination Act (CADA) against defendant, Denver Health and Hospital Authority (Denver Health), a political subdivision of the State of Colorado, are subject to the Colorado Governmental Immunity Act (CGIA). In City of Colorado Springs v. Conners, 993 P.2d 1167 (Colo. 2000), the Colorado Supreme Court held that CADA claims were not subject to the CGIA.[1]

         ¶ 2 But CADA was amended in 2013 to include legal remedies for the first time. Denver Health thus claims that, applying the rationale in Conners to the amendments made to CADA in 2013, CADA claims are no longer exempt from CGIA coverage. Because we agree in part with Denver Health, we reverse that portion of the district court's order denying governmental immunity to plaintiff's claim seeking legal remedies. But, following Conners, we affirm the district court's order to the extent it allows plaintiff to pursue equitable remedies against Denver Health.

         I. Relevant Facts and Procedural History

         ¶ 3 Denver Health was created in 1994 by Colorado statute and is a political subdivision of the State of Colorado. § 25-29-103(1), C.R.S. 2018; see also Ch. 126, sec. 1, § 25-29-103(1), 1994 Colo. Sess. Laws 657. It owns and operates a major hospital in Denver and other health facilities in Colorado. Plaintiff is a former human resources manager at Denver Health. Denver Health terminated his employment, purportedly because he used confidential patient records of Denver Health employees for disciplinary purposes, in violation of the Federal Health Insurance Portability and Accountability Act of 1996.

         ¶ 4 Plaintiff filed a charge of discrimination with the Colorado Civil Rights Division (CCRD), asserting that the real reasons for his termination were sexual orientation discrimination and unlawful retaliation for asserting his CADA rights.[2] The charge of discrimination was not timely resolved by the CCRD, and the agency issued a notice of right to sue. See § 24-34-306(15), C.R.S. 2018.

         ¶ 5 Plaintiff filed suit in district court. His operative complaint asserted six claims against Denver Health: sexual orientation discrimination in violation of CADA; two claims of retaliation under CADA; wrongful discharge in violation of public policy; whistleblower retaliation under the State Employee Protection Act (SEPA), section 24-50.5-101, C.R.S. 2018; and breach of implied contract or promissory estoppel.

         ¶ 6 Denver Health claimed governmental immunity under the CGIA and moved under C.R.C.P. 12(b)(1) to dismiss all but the implied contract/promissory estoppel claim for lack of subject matter jurisdiction.[3]

         ¶ 7 The district court held an evidentiary hearing on the CGIA defense, as authorized by Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo. 1993). Following the hearing, the district court issued a detailed, written order denying Denver Health's C.R.C.P. 12(b)(1) motion as to all claims asserted under CADA, ruling that those claims are not subject to or barred by the CGIA. The court granted Denver Health's jurisdictional motion as to plaintiff's common law claim for wrongful discharge in violation of public policy, ruling that that claim is barred by the CGIA. The court also granted Denver Health's jurisdictional motion as to plaintiff's whistleblower claim under SEPA, ruling that he had failed to give the required statutory written notice, which the court held was a jurisdictional prerequisite to claims under that statute. Finally, the court denied Denver Health's motion to dismiss for failure to state a claim.

         ¶ 8 As was its right, Denver Health filed this interlocutory appeal of the district court's denial of governmental immunity as to the CADA claims. See § 24-10-108, C.R.S. 2018. Denver Health contends that those rulings were erroneous for two reasons: (1) when the General Assembly amended CADA in 2013 to add legal remedies, it abrogated the supreme court's decision in Conners; and (2) Denver Health is not a state agency, within the meaning of section 24-34-405(8)(g), C.R.S. 2018, and thus Denver Health retains immunity. Those are the only district court rulings before us in this interlocutory appeal. Plaintiff did not file a cross-appeal as to the dismissed claims.[4]

         II. Applicable Law

         ¶ 9 Section 24-10-106(1), C.R.S. 2018, provides that a public entity such as Denver Health is immune from liability for all claims for injury that lie in tort, or could lie in tort, regardless of whether that may be the type of action or form of relief chosen by the claimant, except as otherwise provided in that section. The parties agree that the discrimination claims asserted by plaintiff are not listed among the types of claims as to which CGIA compliance is waived.

         ¶ 10 Section 24-10-104, C.R.S. 2018, provides that notwithstanding any provision of law to the contrary, the governing body of a public entity may, by resolution, waive the immunity granted in section 24-10-106 for the types of injuries described in the resolution. The parties agree that Denver Health has not passed a resolution waiving the immunity granted in section 24-10-106 with respect to CADA claims.

         ¶ 11 In Conners, 993 P.2d at 1176, the supreme court concluded that

[t]he CGIA's grant of immunity does not protect public entities from suits for noncompensatory relief deigned to redress general harms or prohibited conduct under statutes like the CRA, and Conners's claims for reinstatement, back pay, and other relief are distinct from the types of personal injury claims at which the CGIA is directed.

         ¶ 12 As a result, the supreme court held as follows:

Because Conners's claims for reinstatement, back pay, and other relief under the CRA are equitable and non-compensatory in nature, they are not claims for injuries that "lie in tort or could lie in tort" within the meaning of the CGIA. The CGIA does not provide the government immunity from those claims. Hence, because the CGIA is not implicated by Conners's pursuit of these claims, her failure to comply with the notice provisions of the CGIA has no bearing on her right to bring this action against the City.

Id. at 1177.

         ¶ 13 But thirteen years after the Conners decision, the General Assembly amended CADA to (1) allow plaintiffs to seek compensatory and punitive damages against defendant employers who are found to have engaged in intentional discriminatory or unfair employment practices, § 24-34-405(3)(a); but (2) preclude recovery of punitive damages against state or political subdivision employers, § 24-34-405(3)(b)(I). Ch. 168, sec. 1, § 24-34-405, 2013 Colo. Sess. Laws 550.

         ¶ 14 And in the same legislation, the General Assembly added the following provision: "A claim filed pursuant to this subsection (8) by an aggrieved party against the state for compensatory damages for an intentional unfair or discriminatory employment practice is not subject to the 'Colorado Governmental Immunity Act.'" § 24-34-405(8)(g) (emphasis added); see 2013 Colo. Sess. Laws at 554. The subsection does not explicitly provide that similar claims against political subdivision defendants are also excluded from the CGIA.

         ¶ 15 Consequently, we are now faced with the following question: Does the Conners holding that the CGIA does not apply to CADA claims continue to apply after the passage of the 2013 amendments?

         III. Analysis

         ¶ 16 The district court and plaintiff set forth persuasive reasons why plaintiff's claims under CADA should not be subject to the provisions of the CGIA. Indeed, we recognize the important remedial goals of CADA and agree that those goals should not be stymied by technical arguments over whether plaintiff's claims are torts, and what type of governmental entity defends those claims. Remediating discrimination in the workplace is a fundamental obligation of our state government, and we should particularly hold governmental employers, such as Denver Health, to the highest standards of fair employment practices.

         ¶ 17 However, as an appellate court, we are bound by the decisions of our supreme court and the unambiguous language used by the General Assembly. Due to these constraints, we disagree with the district court's order in part and agree with it in part.

         ¶ 18 In Conners, the supreme court concluded that the plaintiff's claims under the CRA (the version of CADA in effect at that time, see supra note 1) were not subject to the CGIA. In reaching that conclusion, the court repeatedly emphasized that the nature of the plaintiff's claims dictated that result. No fewer than three times, the court stated that the type of claims asserted, and the nature of the relief sought by the plaintiff, determined the framework for deciding whether the CGIA applied:

As demonstrated in [United States v.] Burke [, 504 U.S. 229, 234-35 (1992)] and [State Board of Personnel v.] Lloyd, [752 P.2d 559');">752 P.2d 559, 565 (Colo. 1988), ] the trial court must consider the nature of the injury and relief sought to determine whether a particular claim is one for injuries which lie or that could lie in tort for the purposes of the CGIA. This must be done on a case-by-case basis because the same discriminatory conduct that violates a civil rights statute, for example, could also form the basis of a common-law suit for injuries in tort. If a plaintiff seeks to redress discriminatory conduct and the relief does not compensate the plaintiff for any personal injuries, a court should conclude that the claims are not for injuries which lie in tort or that could lie in tort within the meaning of the CGIA. Conversely, a claimant who seeks compensatory relief for personal injuries suffered as a consequence of prohibited conduct, has brought a claim which lies or could lie in tort for the purposes of the CGIA. Thus, a court must examine the nature of the injury and remedy asserted in each case to determine whether a particular claim is for compensatory relief for personal injuries and is therefore a claim which lies or could lie in tort for the purposes of the CGIA.
We acknowledge that the practice of looking at the injury and remedy as part of the determination of whether a claim lies or could lie in tort is arguably inconsistent with the CGIA's language. The CGIA states that public entities are immune from suit for "injuries which lie in tort or could lie in tort regardless of whether that may be the type of action or the form of relief chosen by the claimant." §[§] 24-10-102, -106(1), -108 (emphasis added). This language could mean that a trial court must not look at the type of relief at issue when deciding whether the CGIA operates to bar a claim against the government. This interpretation is reasonable because some torts may involve equitable forms of relief, including nuisance, misrepresentation, invasion of privacy, and defamation. See, e.g., W. Page Keeton[ et al., Prosser and Keeton on the Law of Torts] § 89, at 640, § 105, at 729 [(5th ed. 1984)]; Dan B. Dobbs, Remedies § 7.9, at 532-34 (1973). Thus, the form of relief alone, whether damages or equitable relief, does not govern the categorization of a claim as a tort or other type of action.
Despite this language, however, the trial court must consider the nature of the relief sought to determine whether a particular action "lies in tort or could lie in tort" within the meaning of the CGIA. As our discussion of Burke and Lloyd demonstrates, a trial court should determine whether an action is one for "injury which lies in tort or could lie in tort" under the Act by assessing whether the plaintiff seeks compensation for personal harms.

Conners, 993 P.2d at 1176 (emphasis added) (citation omitted).

         ¶ 19 Because the plaintiff in Conners was seeking "reinstatement, back pay, and other [equitable] relief under the CRA," the supreme court determined the claims were not subject to the CGIA because they were ...


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