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Gallagher v. Board of Trustees For The University of Northern Colorado9/16/2002
JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS EN BANC
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.
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 clai
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