Petition for Writ of Certiorari — Craven v. University of Colorado Hospital Authority

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Omi Court, U.S. 2

FILED

01 889 DEC 1 12001

———— OBIE OF Tile et

Dn the

Supreme Court of the Anited States

No.

PATRICIA S. CRAVEN,

Petitioner,

UNIVERSITY OF COLORADO

HOSPITAL AUTHORITY,

Respondent.

On PETITION For Writ OF CERTIORARI

To Tue UNitep States Court OF APPEALS

For THe TENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Barry D. ROSEMAN

Counsel of Record

ROSEMAN & KAZMIERSKI, LLC

899 LOGAN STREET

Surre 203

DENVER, CoLoRADO 80203

(303) 839-1771

Counsel for Petitioner

- BECKER GALLAGHER LEGAL PUBLISHING, INC.,

CINCINNATI, OHIO 800-890-5001

QUESTION PRESENTED

Does a federal court of appeals impermissibly depart

from the accepted and usual course of judicial proceedings by

deciding an appeal on non-jurisdictional grounds not raised or

argued by any of the parties in their appellate briefs?

ean

PARTIES TO THE PROCEEDINGS

Petitioner

Patricia S. Craven is the former Manager of Safety

and Risk Management for University Hospital in Denver,

Colorado.

Respondent

The University of Colorado Hospital Authority is a

body corporate and political subdivision of the State of

Colorado. It operates University Hospital in Denver,

Colorado.

TABLE OF CONTENTS

eb yy eB)

PARTIES TO THE PROCEEDINGS ............

ee eee eee

eee nk cg ke be! a6 486 00

CONSTITUTIONAL PROVISIONS INVOLVED ..

STATEMENT OF THECASE .......... tebe

REASONS FOR GRANTING THE WRIT .........

I, The General Rule in the Fenth Circuit and in

Other Circuits Is That an Appellate Court Will

Not Consider Arguments Not Made in Any of

ee ee

II. The Court of Appeals Departed from the

Accepted and Usual Course of Judicial

Proceedmmes ini This Case... 2. cece ee

III. | This Court Should Exercise Its Supervisory

ee ee ee

I Se Ge hy Sie aid a6 040 oe we 0

iii

Adler v. Wal-Mart Stores, Inc.,

144 F.3d 664 (10th Cir. 1998) ......

Albertson's, Inc. v. Kirkingburg,

Sat Was POP CRTOOD 6 hese ser anes

Andersen v. McCotter,

205 F.3d 1214 (10th Cir. 2000) .....

Arcadia v. Ohio Power Co.,

a Ee ae

Bd. of County Comm'rs v. Umbehr,

PES We COO CIPO 6 6c i wees vee

Bickel v. Korean Air Lines Co., —

96 F.3d 151 (6th Cir. 1996) ........

Carducci v. Regan, 230 U.S. App. D.C. 80,

714 F.2d 171 (D.C. Cir. 1983) ......

City of St. Louis v. Praprotnick,

GS a BEE ee 6 0 wh ep ee wet

Cleveland Bd. of Education v. Loudermill,

peice See eee eee er

Connick v. Myers, 461 U.S. 138 (1983) ......

Considine v. Bd. of Co: -*» Comm'rs,

910 F.2d 695 (ie Cir. 1990) .....:...... 14

Continental Ill. Nat’l Bank & Trust Co. v.

Chicago, Rock Island & Pac. Ry. Co.,

Se UB, GER Ce 6 bob ve es Cv kk y

David C. v. Leavitt, 242 F.3d 1206 (10th Cir. 2001) .. 5 -

Edmonson v. Leesville Concrete Co.,

wee are eee Ce 6s ob ce ee. 8

Flast v. Cohen, 392 U.S. 83 (1968) .............. 8

Florida v. Rodriguez, 469 U.S. 1 (1984) .......... 13

Friends of the Earth, Inc. v.

Laidlaw Environmental Svces. (TOC), Inc.,

pee Ue WO es 6 AR i oa os. 8

Gaines-Tabb v. ICI Explosives, USA, Inc.,

160 F.3d 613 (10th Cir. 1998) ............ 5

Gardetto v. Mason, 100 F.3d 803 (10th Cir. 1996)... . 15

Glover v. United States, 531 U.S. 198 (2001) ....... 6

Goldstein v. Chestnut Ridge Volunteer Fire Co..,

218 F306: 3a) (4 Cle. 2000) 2. eee ee 14

Greenwood v. FAA, 28 F.3d 971 (9th Cir. 1994) ..... 6

Hall v. Beals, 396 U.S. 45 (1969) ............... 8

Hartsfield v. Lemacks, 50 F.3d 950 (11th Cir. 1995) .. 6

Headrick v. Rockwell Internat’! Corp..,

24 F.3d 1272 (10th Cir. 1994) ............ 5

Heckler v. Campbell, 461 U.S. 458 (1989) ......... 9

H.J. Inc. v. Northwestern Bell Tel. Co.,

ae 2 re 9

Hoffman v. Caterpillar, Inc.,

yo RR ye ee ere 6

Johnsen v. Independent School Dist. No. 3, ;

891 F.2d 1485 (10th Cir. 1989) ........... 14

Kennedy v. Tangipahoa Parish Library Bd. of Control,

224 F.3d 359 (Sth Cir. 2000) ............. 14

Laborers’ Internat’l Union v. Foster Wheeler Corp..,

ae F.26 see 6 Gy Be as ve See Cs 6

Lee v. Nicholl, 197 F.3d 1291 (10th Cir. 1999) ...... 14

Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach,

SEP ta. Be CH h 6. REA RANA oe BS 10

Mansfield, C. & L. M. Ry. Co. v. Swan,

B31 U.S, STO CIRR®) 2 wot ec ess chee eens 13

Myers v. Hasara, 226 F. 3d 821 (7th Cir. 2000) ..... 14

Nealon v. Stone, 958 F.2d 584 (4th Cir. 1992) ...... 6

Neb. State Legislative Bd. v. Slater,

2S F.56 Cae Gs Fee ovis occ eens 6

Pembaur v. City of Cincinnati,

Ce a MP OU o bt cate ei Wee twee ees 3

Phillips Petroleum Co. v. Shutts,

5 ef A Ree er rarer 7

Pickering v. Bd. of Educ., 391 U.S. 563 (1968) . . . passim

Rankin v. McPherson, 483 U.S. 378 (1987) ........ 15

Richards v. Jefferson County, 517 U.S. 793 (1996) ... 7

Sniadach v. Family Fin. Corp., 395 U.S. 337 (1969) .. 7

Taylor v. Freeland & Kronz, 503 U.S. 638 (1992) .... 7

Terry v. Reno, 322 U.S. App. D.C. 124,

Don Fee Ween Gre CO. TSU ww ec cee es 6

Tolbert v. Queens College,

en eee Oe Ue es ED ho wk eek kk eiess 6

U.F.C.W. Local 751 v. Brown Group,

ee er er ee 8

United States v. Zannino, 895 F.2d 1 (1st Cir. 1990) . 5-6

Yohey v. Collins, 985 F.2d 222 (Sth Cir. 1993) ...... 6

Constitutional Provisions

Sue eee es Pe Se Sa icc cu es l

U.S. Const., First Amendment .............. passim

Ee en 2

Vii

Statutes

Rs bbs vs bee nee baw nee 59 9-10

I IR od gg 93 -eate wo are g ahs wae aie l

Rules

en le I I oy nao o's do wn Se whe 9 04,089 8

eS 0 SPREE ETE EU LAL TE Tree 13

ray a 6 So a 6 9 eo 08 0 6 Se ee eR 7

RE 6 ceo re ee owe CEN Ces ek os 7

Other Authorities

S. Allred, From Connick to Confusion: The Struggle

to Define Speech on Matters of Public Concern,

ff RA 2 ree eee ee 14

T. Massaro, Significant Silences: Freedom of Speech

in the Public Sector Workplace,

Oe A Cis Bis nS SO ow os Slee'oe os 14

R. Stern, E. Gressman, S. Shapiro & K. Geller,

Supreme Court Practice (7th ed. 1993) ....... 13

T. Eisenberg and S. J. Schwab,-Double Standard

on Appeal: An Empirical Analysis of

Employment Discrimination Cases in the

U.S. Court of Appeals,

http://www. findjustice.com/ms/pdf/

ar are 17-18

Viii

Patricia S. Craven respectfully requests that this Court

issue a writ of certiorari to review the opinion and judgment

entered in this case by the United States Court of Appeals for

the Tenth Circuit.

OPINIONS BELOW

The opinion of the court of appeals on the merits is

reported at 260 F.3d 1218 (10th Cir. 2001), and is

reproduced in App. B at 3a-28a. The rulings of the United

States District Court for the District of Colorado on

respondent’s motions for judgment as a matter of law during

the trial in this case are unreported and are reproduced in

App. C at 29a-32a. The decision of the court of appeals

denying the petition for rehearing and suggestion for

rehearing en banc is unreported and is reproduced in App. A

at la-2a.

JURISDICTION

The opinion of the United States Court of Appeals for

the Tenth Circuit'was issued on August 13, 2001. A timely

petition for rehearing and suggestion for rehearing en banc

was denied by that court on September 12, 2001. This Court

has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

Article III, Section 2 of the Constitution of the United

States provides, among other things, that “[t]he judicial

Power shall extend to all Cases, in Law and Equity, arising

under this Constitution, the Laws of the United States, and

Treaties made, or which shall be made, under their

Authority.”

The Fifth Amendment to the Constitution of the United

States provides, among other things, that “[nJo person shall

... be deprived of life, liberty, or property, without due

process of law.”

STATEMENT OF THE CASE

Dr. Patricia Craven filed a civil action against the

University of Colorado Hospital Authority (hereinafter,

“Authority” or “Hospital”), in which she alleged that the

Authority’s decision to terminate her employment was made

in retaliation for her exercise of her protected free speech

rights (App. B at 9a). The Authority decided to terminate the

petitioner’s employment after and, according to her dismissal

letter, because of a telephone conversation she had (/d.) with

Dr. Ed Hendrick, then the Chief of the Radiological Services

Division of the University of Colorado Health Sciences

Center (hereinafter, “HSC”), a sister institution. The

petitioner also asserted a state-law claim of wrongful

discharge in violation of public policy, and state-law claims

of breach of an implied contract and promissory estoppel

(Id.).

The district court granted summary judgment for the

Authority on Dr. Craven’s public policy claim, and denied

summary judgment on her free speech retaliation and contract

claims (App. B at 9a-10a). The respondent moved twice at

trial for judgment as a matter of law, each time arguing that

the petitioner’s speech did not implicate any matters of public

concern and that its interests in promoting the efficiency of its

services outweighed Dr. Craven’s interests in speaking on

matters of public concern (App. B at 10a). The district court

denied both of those motions (/d.). The jury returned a

verdict in favor of the Authority on both of those claims, and

the district court entered judgment in its favor on all of the

petitioner’s claims for relief.

The petitioner appealed that judgment to the United

States Court of Appeals for the Tenth Circuit. The only

grounds asserted in the petitioner’s opening brief in that court

were that the district court had erred in instructing the jury on

the First Amendment retaliation claim (App. D at 50a-59a)

and that it had erred in granting summary judgment to the

Authority on her public policy claim (App. D at 59a-63a).

The Authority responded to thors arguments (App. E). It did

not contend in its answer brief that the district court should

have granted either of its motions for judgment as a matter of

law. It did not discuss or cite the Supreme Court’s decisions

in Connick v. Myers, 461 U.S. 138 (1983), or Pickering v.

Bd. of Educ., 391 U.S. 563 (1968). The petitioner did not

discuss those motions and did not discuss or cite either

Connick or Pickering in her reply brief (App. F).

The principal ground asserted by the petitioner in

support of her claim of instructional error was that the jury

instruction that outlined the elements of her First Amendment

retaliation claim required her to establish that the respondent

“had an official policy or custom which required [her] to

report all health and safety concerns associated with her job

duties only to a supervisor ....” (App D at 52a-57a). She

contended that this element of liability was unnecessary and

inappropriate in a case such as this one, in which she claimed

that the employment decision and the basis for it were made

or approved by a person with final policymaking authority

(App. D at 53a-55a).'

' See Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81 (1986);

City of St. Louis v. Praprotnick, 485 U.S. 112, 127 (1998).

The petitioner also claimed instructional error in five

other respects (App. D at 57a-58a). One of those arguments

was that the instruction in question limited her liability claim

just to her one conversation with Dr. Hendrick, and did not

include her earlier speech concerning indoor air quality

(hereinafter, “IAQ”) problems resulting from construction

activities immediately adjacent to Hospital wards, the storage

and disposal of biohazardous wastes, and other matters (App.

D at 57a). The district court had limited that instruction to

Dr. Craven’s telephone conversation with Dr. Hendrick

because it concluded that “that’s what she reported” and that

that was her “version of what happened” (App. C at 32a).

The court of appeals decided that the district court had

erred in denying the respondent’s motions for judgment as a

matter of law, and that any instructional errors “were

harmless and we need not address them” because, it

concluded, the petitioner’s First Amendment retaliation claim

“should never have been submitted to the jury” (App. B at

23a). That court reasoned that the “underlying premise” of

the petitioner’s objection to the limited scope of the

instruction in question was “that the district court erred when

it ruled that the telephone call was protected, but that her

speech regarding the IAQ problem, the infectious waste

room, and other safety matters was not” (App. B at 14a).

That court then stated that, “[iJn order to assess the merits of

the objection, we must therefore determine whether any or all

of the above-referenced speech was protected” (/d.).

The court of appeals concluded that Dr. Craven’s

speech concerning the Hospital’s storage and disposal of

biohazardous wastes did not involve matters of public concern

(App. B at 15a-16a). That court went on to conclude that the

Pickering balance favored the Authority with respect to both

Dr. Craven’s speech concerning IAQ problems and

concerning the Hospital’s radiation safety officer (App. B at

17a-23a). It held that “of the four categories of speech cited

in Dr. Craven's brief, none can provide an adequate basis for

her retaliatory discharge claim” (App. B at 23a). It did not

discuss the petitioner’s argument of instructional error, except

in setting forth the standards for review (see App. B at 12a-

13a, 14a).

REASONS FOR GRANTING THE WRIT

I. The General Rule in the Tenth

Circuit and in Other Circuits Is That

an Appellate Court Will Not

Consider Arguments Not Made in

Any of the Parties’ Briefs.

It is settled in the Tenth Circuit that arguments not

raised in a party’s opening brief are waived. See, e.g., David

C. v. Leavitt, 242 F.3d 1206, 1212 n. 4 (10th Cir. 2001);

Gaines-Tabb v. ICI Explosives, USA, Inc., 160 F.3d 613, 624

(10th Cir. 1998); Adler v. Wal-Mart Stores, Inc., 144 F.3d

664, 679 (10th Cir. 1998). That court will not allow an

appellant to raise new arguments in a reply brief, both

because such a practice would be “manifestly unfair to the

appellee who, under our rules, has no opportunity for a

written response,” and because this would “run the risk of an

improvident or ill-advised opinion given our dependence as an

Article III court on the adversarial process for sharpening the

issues for decision.” Headrick v. Rockwell Internat’l Corp.,

24 F.3d 1272, 1278 (10th Cir. 1994) (citations and internal

quotation marks omitted).

Every circuit follows that same rule. See, e.g., United

States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (“Issues

adverted to in a perfunctory manner, unaccompanied by some

effort at developed argumentation, are deemed waived.”);

Tolbert v. Queens College, 242 F.3d 58, 75-76 (2d Cir. 2001)

(same); Laborers’ Internat’l Union v. Foster Wheeler Corp..,

26 F.3d 375, 398 (3d Cir. 1994) (“An issue is waived unless

a party raises it in its opening brief, and for those purposes a

passing reference to an issue ... will not suffice to bring that

issue before this court.”) (internal quotation marks omitted);

Nealon v. Stone, 958 F.2d 584, 590 n. 4 (4th Cir. 1992)

(argument waived that was not raised below or in any brief in

that court); Yohey v. Collins, 985 F.2d 222, 224-25 (Sth Cir.

1993) (party abandoned arguments by not including them in

body of his brief); Bickel v. Korean Air Lines Co. , 96 F.3d

151, 153 (6th Cir. 1996) (declining to address issue not raised

in party’s briefs); Hoffman v. Caterpillar, Inc. , 256 F.3d 568,

578 (7th Cir. 2001) (that court “will deem an issue waived

where the argument on appeal is undeveloped and not

supported with pertinent authority”); Neb. State Legislative

Bd. v. Slater, 245 F.3d 656, 658 n. 3 (8th Cir. 2001)

(“claims not raised in an initial brief are waived, and we

generally do not consider issues raised for the first time on

appeal in a reply brief”); Greenwood v. FAA, 28 F.3d 971,

977 (9th Cir. 1994) (“We review only issues which are

argued specifically and distinctly in a party's opening brief”);

Hartsfield v. Lemacks, 50 F.3d 950, 953 (11th Cir. 1995)

(“issues that clearly are not designated in the initial brief

ordinarily are considered abandoned”); Terry v. Reno, 322

U.S. App. D.C. 124, 101 F.3d 1412, 1415 (D.C. Cir. 1996)

(party waived issues that were listed in “Statement of Issues”

but that were not argued in brief).

This Court generally follows the same rule. It has

held repeatedly that it does not decide issues outside the

questions presented by a petition for certiorari. See, e.g.,

Glover v. United States, 531 U.S. 198, 205 (2001);

Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 563 n. 9

(1999); Bd. of County Comm’rs v. Umbehr, 518 U.S. 668,

677 n. * (1996); Taylor v. Freeland & Kronz, 503 U.S. 638,

645-46 (1992). This Court’s Rule 14.1(a) provides that

“[o]nly the questions set forth in the petition, or fairly

included therein, will be considered by the Court.” In

addition, this Court’s Rule 24.1 prohibits a brief on the merits

from “rais[ing] additional questions or chang[ing] the

substance of the questions already presented” in the petition.

This Court “decides which questions to consider through

well-established procedures; allowing the able counsel who

argue before us to alter these questions or to devise additional

questions at the last minute would thwart this system.”

Taylor, 503 U.S. at 646.

The rule of waiver for non-briefed appellate issues is

based on fundamental principles of due process. A court

must provide notice before it can grant preclusive effect to an

earlier judgment, Richards v. Jefferson County, 517 U.S.

793, 797-805 (1996), extinguish an absent class member’s

cause of action, Phillips Petroleum Co. v. Shutts, 472 U.S.

797, 812 (1985), or garnish a person’s wages, Sniadach v.

Family Fin. Corp. , 395 U.S. 337 (1969), among other things.

The core of due process are the rights to notice and a

meaningful opportunity to be heard. Cleveland Bd. of

Education v. Loudermill, 470 U.S. 532, 542 (1985). A party

does not, indeed cannot, receive notice of the grounds for an

appellate court’s decision if that court decides the case on a

ground not raised by any of the parties on appeal.

In addition, this rule ensures that judicial decisions are -

based on the presentation of facts and the articulation of legal

disputes that are at the heart of the adversarial process:

The premise of our adversarial system 3

is that appellate courts do not sit as self-

directed boards of legal inquiry and research,

but essentially as arbiters of legal questions

presented and argued by the parties before

them. Thus, Rule 28(a) (4) of the Federal

Rules of Appellate Procedure requires that the

appellant’s brief contain “the contentions of

the appellant with respect to the issues

presented, and the reasons therefor, with

Citations to the authorities, statutes and parts of

the record relied on.” Failure to enforce this

requirement will ultimately deprive us in

substantial measure of that assistance of

counsel which the system assumes - a

deficiency that we can perhaps supply by other

means, but not without altering the character

of our institution.

Carducci v. Regan, 230 U.S. App. D.C. 80, 714 F.2d 171,

177 (D.C. Cir. 1983).

The standing requirement is based in substantial part

on the policy of adjudicating only disputes that are presented

through the adversarial process. Flast v. Cohen, 392 U.S.

83, 101 (1968). See also U.F.C.W. Local 751 v. Brown

~ Group, 517 U.S. 544, 556 (1996) (associational standing);

Edmonson v. Leesville Concrete Co., 500 U.S. 614, 628-31

(1991) (third-party standing). The mootness doctrine is based

on the same principles. Friends of the Earth, Inc. v. Laidlaw

Environmental Svces. (TOC), Inc., 528 U.S. 167, 212-13

(2000) (Scalia, J., dissenting). For the same reasons, federal

courts are to avoid issuing advisory opinions on abstract

propositions of law. Hall v. Beals, 396 U.S. 45, 48 (1969)

(per curiam).

On occasion, this Court has discussed and sometimes

decided cases on the basis of arguments noi raised by any of

the parties. These exceptional cases, see Heckler v.

Campbell, 461 U.S. 458, 468-69 n. 12 (1989), have involved

subsidiary matters encompassed within the issue or issues

upon which certiorari was granted and which at least one

amicus has argued in its brief, H.J. Inc. v. Northwestern Bell

Tel. Co., 492 U.S. 229, 243 (1989); involved an issue that

was “antecedent” to the issues presented in the petition and

that was “ultimately dispositive of the present dispute,”

Arcadia v. Ohio Power Co., 498 U.S. 73, 77 (1989); or

concerned the constitutional validity of the statute on which

the claim was based, Continental Ill. Nat'l Bank & Trust Co.

v. Chicago, Rock Island & Pac. Ry. Co., 294 U.S. 648, 667

(1935).

Those decisions merely demonstrate that, on occasion,

this Court feels it necessary to include, in the issues “fairly

included” in a petition for writ of certiorari, those that have

been argued in this Court or that are subsumed within the

issues specifically presented. For example, in Arcadia, a case

in which the petitioner claimed that § 318 of the Federal

Power Act, 16 U.S.C. § 825q, deprived the FERC of

jurisdiction to enter a rate order because of an alleged conflict

between the authority of that agency and the SEC, this Court

decided that a conflict covered by § 318 did not exist in that

2 To the extent this Court decided in those cases to review non-

subsumed issues that none of the parties and none of the amici had

briefed, it may have undertaken that review because of its unique

role in the federal judicial system to resolve inter-circuit disputes

and to provide definitive guidance to the lower federal courts. In

addition, due to its limited docket, this Court may need to decide a

spectrum of subsidiary questions that otherwise might not arise

again in this Court for years, if at all.

case. 498 U.S. at 77-85. In contrast, this Court has refused

to consider arguments similar to the grounds upon which the

court of appeals in this case based its decision - that a claim

that went forward to trial should have been dismissed in

pretrial proceedings. Lexecon Inc. v. Milberg Weiss Bershad

Hynes & Lerach, 523 U.S. 26, 43 n. 5 (1998).

Il. The Court of Appeals Departed from

the Accepted and Usual Course of

Judicial Proceedings in This Case.

The court of appeals based its decision on Dr.

Craven’s First Amendment retaliation claim on the Connick

and Pickering tests (App. B at 14a-23a), even though the

Authority had not raised those issues in its answer brief (App.

E) and even though Dr. Craven had not discussed or argued

them in either her opening brief (App. D) or reply brief (App.

F).? It attempted to link those issues to Dr. Craven’s

argument of instructional error through the following

reasoning:

The underlying premise of Plaintiff's objection

to the limited scope of Instruction 22 is that the

district court erred when it ruled that the

telephone call was protected, but that her

speech regarding the IAQ problem, the

infectious waste room, and other safety

matters was not. In order to assess the merits

of the objection, we must therefore determine

whether any or all of the above-referenced

3 The court of appeals noted that the Authority had not filed a cross

appeal on those issues, even though it had raised them in the district

court (App. B at 14a-15a & n. 7).

een eee ee

speech was protected. This is a purely legal

inquiry, which we conduct on the basis of the

trial record, notwithstanding UH’s failure to

file a cross-appeal on this point.

(App. B at 14a) (citations and footnote omitted).

This reasoning is based on a false premise. The

district court’s decision on the scope of this instruction was

not based on any conclusion that Dr. Craven’s speech on

other issues was not protected. Instead, the district court

limited that instruction to that one télephone call because it

believed that limitation was Dr. Craven’s “version of what

happened” (App. C at 32a).

The court of appeals’ reasoning is belied by that

court’s own analysis and decision. It noted initially that the

district court had denied the Authority’s motions for judgment

as a matter of law, motions that were based in substantial part

on Connick and Pickering (App. B at 10a).° It stated in

conclusion that Dr. Craven’s First Amendment retaliation

claim “should never have been submitted to the jury” (App.

B at 23a). Either the district court concluded that Dr.

Craven’s speech on IAQ issues and on the storage and

* The court of appeals cited Connick, 461 U.S. at 148 n. 7 & at

150 n. 10) in that paragraph. Both the district court and the court

of appeals had concluded in that case that the plaintiff's speech

involved a matter of public concern. /d. at 142. This Court did not

intimate that it or any other court could decide that issue if it had

been waived or abandoned by not being briefed in the court of

appeals or in this Court.

> The court of appeals stated that the district court’s ruling on those

motions was limited to Dr. Craven’s speech concerning the

Hospital’s radiation safety officer (App. B at i0a).

disposal of biohazardous wastes was protected or it did not

decide that issue. In either event, the Connick and Pickering

issues, which neither of the parties had briefed, were not

subsumed in the question of whether the district court had

committed reversible error by limiting the key First

Amendment liability instruction to Dr. Craven’s telephone

discussion about the Hospital’s radiation safety officer.°

Even if the court of appeals was justified in reviewing

the protected status of Dr. Craven’s speech in order to

determine that issue, this justification did not apply to the

balance of her arguments of instructional error. Dr. Craven’s

principal contention in that section of her opening brief (App.

D at 52a-57a) and four of her five subsidiary points (App. D

at 57a-58a) were based only on her claim that the Authority

had terminated her employment in retaliation for what she

allegedly had said to Dr. Hendrick about the work

performance of the Hospital’s radiation safety officer.’’ The

® The limited scope of that instruction was not Dr. Craven’s

principal appellate argument of instructional error. She devoted

most of that section of her opening brief to her argument that the

district court had erred by refusing to instruct the jury on her theory

of the case, that of First Amendment retaliation (App. D at 52a-

57a). She devoted only one paragraph to her contention that the

district court erred by limiting that instruction to one telephone

conversation.

” Dr. Craven summarized that telephone call, in her opening brief,

as concerning what she understood to be a spill of radioactive

iodine on one of the Hospital’s wards, the unavailability of the

Hospital’s radiation safety officer to advise nurses in that ward

about the proper and safe procedures for cleaning up that

radioactive material, emergency responses to these kinds of

situations, and a résumé for that position that she had received by

court of appeals admitted that the district court had concluded

that this speech was protected (App. B at 22a n. 9). The

Connick and Pickering tests were not subsumed in Dr.

Craven’s major argument (App. D at 52a-57a) that the district

court had erred by requiring her to prove the existence of a

prior policy or practice of restraint of free speech in order to

establish post hoc unconstitutional retaliation by a person with

final policymaking authority.*

III. This Court Should Exercise Its

Supervisory Authority in This Case.

One of the grounds for granting certiorari is that a

court of appeals “has so far departed from the accepted and

usual course of judicial proceedings ... as to call for an

exercise of this Court’s supervisory authority.” Sup. Ct. R.

10.1(a)(1). “As the Court of last resort in the federal system,

we have supervisory authority and therefore must occasionally

perform a pure error-correcting function in federal litigation.”

Florida v. Rodriguez, 469 U.S. 1, 7 (1984) (Stevens, J.,

dissenting). See generally R. Stern, E. Gressman, S. Shapiro

& K. Geller, Supreme Court Practice 191-92 (7th ed. 1993).

The court of appeals’ use of a non-argued basis to

reverse the district court’s Connick and Pickering rulings

deprived Dr. Craven of property without due process of law.

Whether particular public employee speech touches on matters

mistake (App. D at 44a).

® The grounds upon which the court of appeals decided Dr.

Craven’s First Amendment claim did not involve that court’s

subject matter jurisdiction, which that court could have decided on

its own motion. Mansfield, C. & L. M. Ry. Co. v. Swan, 111 U.S.

379, 382 (1884). ,

- of public concern and whether the balance of interests favor

the employee or the governmental employer are highly fact-

specific questions, on which there are both intra-circuit and

inter-circuit splits in very similar fact situations.? For

example, the court of appeals in this case decided that Dr.

Craven’s speech concerning the storage and disposal of

biohazardous waste at the Hospital did not involve a matter of

public concern (App. B at 15a-16a). Yet in other cases, the

Tenth Circuit has held that public employee speech

concerning public health and safety involved matters of public

concern. See, e.g., Lee v. Nicholl, 197 F.3d 1291, 1296

(10th Cir. 1999) (traffic safety and snow removal at an

intersection); Considine v. Bd. of County Comm'rs, 910 F.2d

695, 699-700 (10th Cir. 1990) (highway project); Johnsen v.

Independent School Dist. No. 3, 891 F.2d 1485, 1490 (10th

Cir. 1989) (school district’s medication policy). That is also

the law in other circuits. See, e.g., Goldstein v. Chestnut

Ridge Volunteer Fire Co., 218 F.3d 337, 353 (4th Cir. 2000)

(“Matters relating to public safety are quintessential matters

of ‘public concern.’”); Myers v. Hasara, 226 F.3d 821, 826-

27 (7th Cir. 2000) (speech concerning public health

inspections); Kennedy v. Tangipahoa Parish Library Bd. of

Control, 224 F.3d 359, 372-75 (Sth Cir. 2000) (speech

concerning public safety at library).

® One commentator has claimed that, in this area, this “Court has

fashioned doctrine that is vague” and “internally inconsistent.” T.

Massaro, Significant Silences: Freedom of Speech in the Public

Sector Workplace, 61 SO. CAL. L. REV. 1, 25 (1987). Another has

noted that “lower federal courts have been anything but consistent

in their determination of what speech is protected” under Connick.

S. Allred, From Connick to Confusion: The Struggle to Define

Speech on Matters of Public Concern, 64 IND. L. J. 43, 75 (1988).

The Pickering balancing test is even more fact-

specific. While a public employer can rely on “predictions of

harm ... to justify restriction of employee speech,” Umbehr,

518 U.S. at 676, the employer must make a reasonable

prediction, based on specific evidence, that the statement

would “impair[ ] discipline by superiors or harmony among

co-workers, ha[ve] a detrimental impact on close working

relationships for which personal loyalty and confidence are

necessary, or “impede[ ] the performance of the speaker’s

duties or interfere{ ] with the regular operation of the

enterprise.” Rankin v. McPherson, 483 U.S. 378, 388

(1987). See also Gardetto v. Mason, 100 F.3d 803, 811 (10th

Cir. 1996) (governmental employer cannot “rely on purely

speculative allegations that certain statements caused or will

cause disruption”); Andersen v. McCotter, 205 F.3d 1214,

1218 (10th Cir. 2000) (“the government must articulate

specific concerns about the impact of an employee’s speech,

and those concerns must be reasonable and formed in good

faith”) (citations omitted).

The court of appeals based its holding that Dr.

Craven’s speech concerning biohazardous waste at the

Hospital did not involve a matter of public concern on its

conclusion that she “was obviously speaking as an employee

- not a citizen,” at least in part because she had described

photographs of leaking bags of such waste as “really gross”

(App. B at 15a-16a). That court also held that the Pickering

balancing test favored the employer in connection with her

discussion with an HSC employee concerning the work

performance of the Hospital’s radiation safety officer - an

HSC employee who did that work on a contract basis for the

Hospital - based on predictions of future problems made by

Dr. Craven’s immediate supervisor (App. B at 20a-23a).

Dr. Craven presented no arguments on either of those

issues in her opening brief (App. D) or her reply brief (App.

F). She summarized the facts surrounding her speech on

biohazardous waste and the radiation safety officer in the

“Statement of the Case” section of her opening brief (App. D

at 40a-45a), but presented no case authority or argument as to

why those facts supported the district court’s denial of the

Authority’s motions for judgment as a matter of law. She did

not do so in her opening brief because the Authority had not

raised those issues in a cross-appeal. She did not address

those issues in her reply brief for the same reason - the

Authority had presented no argument on those issues, and had

not even cited Connick or Pickering, in its answer brief.'°

In addition, the court of appeals’ decision effectively

constituted an advisory opinion on the Connick and Pickering

issues on which that decision was based. The Authority, for

reasons known best to itself, decided not to raise those issues

on appeal. It is not the purpose of the courts in this country

to decide issues that the parties have chosen not to assert,

unless those issues involve the very power of a court to decide

a particular controversy. Carducci, 714 F.2d at 177. The

technique used by the court of appeals in this case might be

appropriate in a civil-law system, in which judges play a far

more activist role than is true in the United States, but it is

foreign to the American judicial system.

'0 One could imagine an appellate system in which a prudent party

would argue every possible ground upon which the court of appeals

could base its decision, whether or not any of those grounds had

been contained in a notice of appeal or cross-appeal and whether or

not they had been argued in the opposing party’s brief(s). Such

tactics would require a court of appeals to wade through a myriad

of irrelevant issues and arguments presented precisely to avoid the

kind of decision made in this case.

But the court of appeals’ decision does not implicate

merely the parties to this case and merely this dispute.

According to a recent empirical study, the reversal rate in

federal courts of appeals for defense trial victories in

employment discrimination cases is only 5.8%, the lowest

reversal rate for any category of cases other than prisoner

habeas corpus trials. T. Eisenberg and S. J. Schwab, Double

Standard on Appeal: An Empirical Analysis of Employment

Discrimination Cases in the U.S. Courts of Appeals, p. 2,

http://www. findjustice.com/ms/pdf/double-standard. PDF

(accessed Dec. 7, 2001). The reversal rate for plaintiff trial

victories is 43.61%, the highest reversal rate for any category

of cases other than “other civil rights cases.” J/d.'' The

37.81% gap between plaintiffs’ and defendants’ reversal rates

is greater for employment discrimination cases than for any

other category of cases for which the Administrative Office of

the United States Courts maintains statistics. '*

These statistics suggest that many judges in the courts

of appeals are applying a results-based approach in

employment litigation, one in which different substantive and

procedural standards exist based on which side prevailed in

the district court. They suggest that many judges in those

courts search for reasons to reverse plaintiff trial victories and

to affirm defense trial victories. As the authors of that study

conclude, this gap “raises the specter that appellate courts

have a double standard for employment discrimination cases,

'! The statistics for “other civil rights cases,” which would include

Dr. Craven’s First Amendment claim, is 48.04% for plaintiff trial

victories and 13.86% for defense trial victories. /d., pp. 8-9.

12 The gap for “other civil rights cases” is almost as large -

34.18%.

harshly criticizing employee victories at trial while gazing

benignly at employer victories at trial.” /d., p. 6.

The court of appeals’ use of non-argued, non-briefed

issues enabled it to affirm the result below. Had it not done

sO, it might have - and Dr. Craven submits it would have -

reversed the district court on the basis of the argument she

and the Authority did brief.'? This decision therefore is an

example of a more pervasive and serious pattern of results-

and party-oriented appellate decisions. This Court should

exercise its supervisory power in order to review and to

reverse that decision.

13 The court of appeals agreed that a party is entitled to an

instruction on her theory of the case if she has offered sufficient

evidence for the jury to find in her favor (App. B at 12a-13a). It

agreed that Dr. Craven explained repeatedly at trial that she was not

attempting to show the existence of a pre-existing policy that

restricted her rights of free speech, but rather that she had been

terminated in retaliation for protected speech (App. B at 21a n. 9).

It also agreed that there was no evidence that anyone ever expressly

prohibited her from speaking with other people in addition to Ms.

Cashman (App. B at 8a n. 3). Had the court of appeals not decided

this case on the basis of Connick and Pickering, it appears it would

have been compelled to reverse the jury’s verdict and remand this

case for a new trial based upon proper jury instructions.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Barry D. Roseman

Counsel of Record

ROSEMAN & KAZMIERSKI, LLC

899 Logan Street, Suite 203

Denver, Colorado 80203

(303) 839-1771

Attorney for Petitioner

Patricia S. Craven

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

No. 99-1519

(D.C. No. 97-D-258)

Filed, September 12, 2001

PATRICIA CRAVEN,

Plaintiff-Appellant,

Vv.

UNIVERSITY OF COLORADO HOSPITAL

AUTHORITY,

Defendant-Appellee.

a a a ae a a a

Before TACHA, KELLY, Circuit Judges, and

LUNGSTRUM,, District Judge.

ORDER

Appellant’s petition for rehearing is denied.

* The Honorable John W. Lungstrum, District Judge,

United States Court for the District of Kansas, sitting by

designation.

The petition for rehearing en banc was transmitted to

all of the judges of the court who are in regular active service

as required by Fed. R. App. P. 35. As no member of the

panel and no judge in regular active service on the court

requested that the court be polled, that petition is also denied.

Entered for the Court

PATRICK FISHER,

Clerk of Court

By:

Deputy Clerk

APPENDIX B

UNITED STATES COURT OF APPEALS FOR THE

TENTH CIRCUIT

No. 99-1519

August 13, 2001, Filed

PATRICIA CRAVEN,

Plaintiff-Appellant,

VS.

UNIVERSITY OF COLORADO

HOSPITAL AUTHORITY,

Defendant-Appellee.

Appeal from

The United States District Court

For the District of Colorado

(D.C. No. 97-D-258)

- D.C. Judge Wiley Y. Daniel

JUDGES:

Before TACHA, KELLY, Circuit Judges, and

LUNGSTRUM*, District Judge.

* The Honorable John W. Lungstrum, District Judge, United

States District Court for the District of Kansas, sitting by

designation.

Tenth Circuit Court of Appeals Opinion - 08/13/01

OPINION

KELLY, Circuit Judge.

Dr. : Patricia Craven filed this action against the

University of Colorado Hospital Authority ("UH" or "the

hospital"), asserting: (1) a federal claim under 28 U.S.C. §

1983 for retaliatory discharge in violation of the First and

Fourteenth Amendments ("retaliatory discharge claim" or

"$1983 claim"); (2) a pendent state claim for wrongful

discharge in violation of public policy ("public policy claim"

or "pendent state claim"); and (3) a second pendent state

claim for breach of implied contract. The court granted

summary judgment for UH on Dr. Craven's public policy

claim; the others were tried to a jury, which returned a

verdict for UH on both claims. The district court denied

Plaintiff's Motion for a New Trial or, in the Alternative, to

Amend or Alter the Judgment ("Rule 59 Motion"), and she

appeals only as to the § 1983 and public policy claims. For

the reasons stated below, we affirm.

Background

From March 21 through November 8, 1994, Dr.

Craven was employed by UH as the Manager of Safety and

Risk Management. IV Aplt. App. 1149.' In that capacity, she

Plaintiff's initial and supplemental appendices, both filed

June 5, 2000, are cited herein as "I Aplt. App." and “II Aplt.

App.", respectively. Her second supplemental appendix, filed

August 29, 2000, is cited as "III Aplt. App." Plaintiff's third

supplemental appendix, filed June 4, 2001, and erroneously titled

"Second Supplemental Appendix," is cited as "IV Apit. App."

Tenth Circuit Court of Appeals Opinion - 08/13/01

was responsible for "assessing, developing, implementing,

and monitoring the effectiveness of safety, security, and risk

management programs for University Hospital." II Aplt. App.

1. The plaintiff became involved in a number of issues during

her tenure at UH. For the purpose of this appeal, her

involvement with problems relating to internal air quality, the

infectious waste room, and radiation safety are the most

significant.

I. Internal Air Quality

Almost immediately upon assuming her position at

UH, the plaintiff became concerned about fumes emissions

from a construction project in the Barbara Davis Center,

which was adjacent to the hospital. The Barbara Davis Center

was part of the University of Colorado's Health Science

Center ("HSC"), a separate but affiliated entity of UH. IV

Aplt. App. 605. Fumes were seeping into UH's ventilation

system, causing internal air quality ("IAQ") problems within

the hospital. The record shows that Dr. Craven's approach to

the IAQ problem was confrontational and inflexible, and that

she was consistently demeaning to HSC and other project

personnel. After an early meeting with project personnel, the

plaintiff circulated a memorandum to all affected areas of the

hospital and to several high level officials at UH and HSC,

reporting her conclusion that the fumes must be halted

immediately. She did not consult her then-supervisor, Dr.

Ann Jones, before circulating the memorandum. A few weeks

later, the plaintiff invited ten to fifteen angry hospital

employees to another meeting with project personnel. The

record contains overwhelming evidence that Plaintiff's

conduct at that meeting was abrasive and uncooperative. E.g.,

id. at 200-03, 620-22, 664, 1110-12. According to one

Tenth Circuit Court of Appeals Opinion - 08/13/01

attendee, the "meeting turned into havoc" when Dr. Craven

and the hospital employees began “chanting[:] Who wants to

shut them down, let's take a vote, who wants to shut them

down." /d. at 664. As a result of these and other incidents,

the plaintiff was repeatedly advised to develop a more

effective problem-solving approach. E.g., id. at 1109

(5/24/94 letter); id. at 1130 (5/28/94 e-mail); id. at 1105

(6/1/94 letter);? id. at 1004-05 (6/4/94 e-mail).

II. Infectious Waste Room

By July 1994, Dr. Craven had become aware that "the

refrigerated infectious waste room on the dock [was] being

improperly used[,] resulting in an increased risk of blood

borne pathogen exposure." Id. at 1017. In addition to

reporting to the safety committee and consulting with

2 Although the June 1 letter included a directive that Dr.

Craven "direct all comments about the safety of the Hospital to me

as your immediate supervisor," IV Aplt. App. 1106, the record

indicates that this directive was subsequently modified or withdrawn

as impracticable. See id. at 224-26 (testimony of Dr. Craven,

describing meeting on or about June 29 with Ruth Sens, Dr. Jones,

and Donna Koeppel, a human resources representative, about the

plaintiff's upcoming transfer to Ms. Sens' department, during

which Ms. Koeppel had informed the plaintiff that after discussing

the June 1 letter, she and both supervisors had agreed that "it would

have been impossible for [Dr. Craven] to tell [Dr. Jones] even one-

tenth of everything that was going on in safety," and that the June

1 directive "was to be disregarded"); id. at 729-30 (testimony of

Dr. Jones that she never intended to prevent Dr. Craven from

making safety-related comments to others in the hospital, only to

require that the plaintiff keep her immediate supervisor informed of

those concerns).

Tenth Circuit Court of Appeals Opinion - 08/13/01

appropriate hospital personnel to remedy the problem, id. at

274, Dr. Craven and her staff took a number of photographs

to be used in a presentation to the hospital's management

council at their monthly meeting in August. Id. at 275-76,

399. Her then-supervisor, Ruth Sens, advised against the

presentation on the grounds that given the management

council's inability to solve the problem, the presentation

"would have been a complete waste of time and cause nothing

but stirring the group up." /d. at 549. Although plaintiff was

allowed to compile a poster display, stand with it outside the

meeting, and answer various managers' questions as they

entered or left the meeting, id. at 277, 400, she was

ultimately dissatisfied with the arrangement: "I wanted to

present [the problem] to everyone, not just people that had the

time to stop and talk." /d. at 278.

III. Radiation Safety Officer

Finally, Dr. Craven also clashed with her supervisors

regarding the hospital's Radiation Safety Officer ("RSO"),

Dr. Tim Johnson. In addition to her concerns about Dr.

Johnson's performance, e.g., id. at 294, 550-51, 1104, the

plaintiff disagreed with the placement of the RSO position in

the hospital's overall organizational structure. /d. at 398-99,

871-72. Plaintiff was advised to express these concerns to

Joyce Cashman - her second-line supervisor and the hospital's

then-Chief Operating Officer. /d. at 733-34. A few days later,

Dr. Craven called Dr. Ed Hendrick, then-Chief of HSC's

Radiological Sciences Division, to discuss her concerns about

Tenth Circuit Court of Appeals Opinion - 08/13/01

the RSO.? /d. at 306-11. Dr. Craven told Dr. Hendrick that

nurses had been unable to reach Dr. Johnson to respond to a

radioactive iodine spill in a chemotherapy patient's room. The

plaintiff noted that another employee had responded to the

incident, but expressed concern as to who should be called

upon in the future.

On November 3, 1994, Ms. Sens posted a note on Dr.

Craven's door, informing her that her "communications with

Ed Hendrick{}" had caused "major problems . . . between UH

Administration and the Health Sciences Center" and

requesting "copies of all notes, E-Mails, and the context of all

phone messages that you have had with [Dr. Hendrick]

concerning the role of the RSO." /d. at 1114. Plaintiff

responded in writing, id. at 1115, and met with Ms. Sens the

following day. After initially placing Dr. Craven on leave,

Ms. Sens terminated Plaintiff's employment on November 8,

3 There is no evidence that anyone ever expressly

prohibited Dr. Craven from speaking with other people in addition

to Ms. Cashman. Thus, UH's claim that Dr. Craven's telephone

call to Dr. Hendrick constituted an act of direct insubordination is

not supported by the evidence. Nonetheless, unless Dr. Craven was

discharged in retaliation for engaging in protected speech activities,

"a federal court is not the appropriate forum in which to review the

wisdom of a personnel decision taken by a public agency allegedly

in reaction to the employee's behavior." Connick v. Myers, 461

U.S. 138, 147, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983); see also

id. at 146 ("Government officials should enjoy wide latitude in

managing their offices, without intrusive oversight by the judiciary

in the name of the First Amendment. Ordinary dismissals from

government service . . . are not subject to judicial review even if

the reasons for the dismissal are alleged to be mistaken or

unreasonable.) (citations omitted).

= oo Cnt ,

Tenth Circuit Court of Appeals Opinion - 08/13/01

1994, due to her "lack of professional behavior and

insubordination." /d. at 1102. The termination letter described

Dr. Craven's conversation with Dr. Hendrick as "extremely

inappropriate" and "in direct conflict with the information you

[had] received from Joyce Cashman, Vice President of

Operations, telling you to address issues regarding the

radiation safety officer directly to her." /d.; see supra, note

3. Plaintiff's internal appeal was unsuccessful. /d. at 1051,

1116-19.

Procedural History

This action was originally filed in state court. In her

complaint, Dr. Craven alleged state claims for breach of

implied contract and wrongful discharge in violation of public

policy, as well as a federal claim for retaliatory discharge in

violation of the First and Fourteenth Amendments.‘ I Aplt.

App. 1-6. After removing the case to federal court, UH

moved for summary judgment as to each claim for relief. /d.

at 12-13. With respect to Plaintiff's §1983 claim, UH argued,

inter alia, that the speech for which Dr. Craven was allegedly

terminated did not touch on matters of public concern, id. at

39-41, and that UH's interests in maintaining an efficient

workplace - specifically, in maintaining collegial relations

with HSC and its employees - outweighed Dr. Craven's

interests in engaging in the speech at issue. /d. at 41-43, 149-

51. Although the record before us does not contain the

* The complaint contained allegations as to her speech

regarding internal air quality and radiation safety, but not as to

infectious waste. I Aplt. App. 2-3, PP 7, 9-11. Her third claim for

relief did not specify the speech upon which her retaliatory

discharge claim was premised. /d. at 4-5.

Tenth Circuit Court of Appeals Opinion - 08/13/01

complete transcript of the hearing on that motion, it appears

that UH's only successful argument on summary judgment

was its claim of immunity under the Colorado Governmental

Immunity Act ("CGIA") with respect to the state tort claim.

Id. at 154-58. Thus, a jury trial was held on the implied

contract and §1983 claims.

At the close of Dr. Craven's case and again at the

close of all the evidence, UH moved for judgment as a matter

of law under Rule 50(a) of the Federal Rules of Civil

Procedure. IV Aplt. App. 504-27, 876-79. In both motions,

the hospital's primary contention was that the speech upon

which Plaintiff's §1983 claim was premised could not legally

support a retaliatory discharge claim. As in its motion for

summary judgment, UH argued that Dr. Craven's speech did

not relate to matters of public concern and that UH's interests,

as an employer, in maintaining an efficient workplace

outweighed her interests, as a citizen, in speaking out as she

did. /d. at 504-05, 517-22, 877. The court rejected both

motions, but limited its ruling as to the protected status of

Plaintiff's speech to her telephone call to Dr. Hendrick. /d.

at 518, 520-21, 523-24, 878-79. Both claims were then

submitted to the jury, which returned a general verdict for the

defendant on each theory. /d. at 1170-71.

On appeal, Plaintiff challenges the jury's verdict on

her §1983 claim on the basis of six alleged errors in Jury

Instruction No. 22.

10a

Tenth Circuit Court of Appeals Opinion - 08/13/01

Discussion

I. Federal Claim: Retaliatory Discharge

in Violation of First and Fourteenth

Amendments

An individual public employer is liable for retaliatory

discharge when he terminates an employee because she

engaged in protected speech. Lybrook v. Members of

Farmington Mun. Schools Bd. of Educ. , 232 F.3d 1334, 1338

(10th Cir. 2000). If the court determines that the speech at

issue was not protected, the defendant is entitled to judgment

as a matter of law.’ If the speech was protected, the claim is

then submitted to the jury, which must decide whether that

speech “was a substantial or motivating factor in the

termination," Bd. of County Comm'rs, Wabaunsee County,

Kan. v. Umbehr, 518 U.S. 668, 675, 135 L. Ed. 2d 843, 116

S. Ct. 2342 (1996), and if so, whether the employer "would

have taken the same action even in the absence of the

protected” speech. /d. (citing Mt. Healthy City School Dist.

Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 50 L. Ed. 2d 471,

97 S. Ct. 568 (1977)). If the jury resolves the foregoing

Causation issues in the employee's favor, the individual who

made the termination decision may be liable for damages. /d.

> A determination that speech is “unprotected” in the

context of a retaliatory discharge claim does not mean that the

speech "is totally beyond the protection of the First Amendment. .

. . We in no sense suggest that speech on private matters falls into

one of the narrow and well-defined classes of expression which

carries so little social value, such as obscenity, that the state can

prohibit and punish such expression by all persons in its

jurisdiction." Connick, 461 U.S. at 147 (citations omitted).

lla

Tenth Circuit Court of Appeals Opinion - 08/13/01

Because the mere fact "that a plaintiff has suffered a

deprivation of federal rights at the hands of a [public]

employee will not alone permit an inference of [governmental]

culpability and causation," Bd. of County Comm'rs of Bryan

County, Okla. v. Brown, 520 U.S. 397, 406-07, 137 L. Ed.

2d 626, 117 S. Ct. 1382 (1997), a plaintiff who seeks to reach

beyond an individual defendant to the employer - as a public

entity - must also show that the constitutional violation is

attributable to that entity. See, e.g., City of St. Louis v.

Praprotnik, 485 U.S. 112, 121-23, 99 L. Ed. 2d 107, 108 S.

Ct. 915 (1988) (plurality opinion); Pembaur v. City of

Cincinnati, 475 U.S. 469, 480-83 & n.12, 89 L. Ed. 2d 452,

106 S. Ct. 1292 (1986) (plurality opinion); Monell v. Dep't of

Social Servs., 436 U.S. 658, 694, 56 L. Ed. 2d 611, 98S. Ct.

2018 (1978).

We begin our analysis with the plaintiff's most

fundamental objection: that the district court refused to

instruct the jury on her theory of the case.° See FDIC v.

® In pertinent part, the challenged instruction, No. 22, read

as follows:

In order for the Plaintiff * . . to recover from the

Defendant . . . on her claim of violation of the

Plaintiff's constitutional right to freedom of

speech, you must find [that]... :

(1) The Plaintiff reported to Dr. Hendrick

substantial concerns she had regarding a radiation

spill at 8 North of University Hospital, how that

spill was handled, its adverse impact on patient

care and overall hospital safety, and the

12a

— ee

Tenth Circuit Court of Appeals Opinion - 08/13/01

Schuchmann, 235 F.3d 1217, 1222 (10th Cir. 2000)

(recognizing that "a party is entitled to an instruction on [her]

theory of the case . . . if he has offered sufficient evidence for

the jury to find in his favor") (internal quotations and citations

omitted). Specifically, Plaintiff claims that Instruction 22

erroneously:

limited the scope of expressive activities on

which [her] First Amendment retaliation claim

was based just to her one telephone

conversation with Dr. Hendrick. That was not

the theory of Dr. Craven's case. She claimed

retaliation based not only on that [1] one

conversation, but also upon her earlier speech

in connection with [2] indoor air quality

problems resulting from construction activities

at the Barbara Davis Center, [3] the storage

unavailability of the Radiation Safety Officer to

attend to such emergencies;

(2) The Defendant terminated the Plaintiff

following this contact with Dr. Hendrick;

(3) The Plaintiff's expression of her views to Dr.

Hendrick on the issues specified in paragraph (1)

above was a substantial or motivating factor in the

Defendant's decision to terminate the Plaintiff;

“ee

I Aplt. App. 362.

13a

Tenth Circuit Court of Appeals Opinion - 08/13/01

and disposal of bio-hazardous waste, and [4]

other matters.

Aplt. Br. at 16-17 (emphasis added). Because Dr. Craven

raised this objection to the trial court before the jury retired,

see IV Aplt. App. 818, our review is de novo. Karnes v. SCI

Colo. Funeral Serv., Inc., 162 F.3d 1077, 1079 (10th Cir.

1998); see also Fed. R. Civ. P. 51. In de novo review, we

consider the "instructions in their entirety and reverse only if

we determine that the error was prejudicial in light of the

record as a whole." Giron v. Corrections Corp. of Am., 191

F.3d 1281, 1287 (10th Cir. 1999).

The underlying premise of Plaintiff's objection to the

limited scope of Instruction 22 is that the district court erred

when it ruled that the telephone call was protected, but that

her speech regarding the IAQ problem, the infectious waste

room, and other safety matters was not. See IV Aplt. App.

520, 523-24, 878-79. In order to assess the merits of the

objection, we must therefore determine whether any or all of

the above-referenced speech was protected. Cf. Connick, 461

U.S. at 150 n.10 (noting that courts are obligated to "examine

. . . the statements in issue and the circumstances under which

they are made to see whether or not they .. . are of a

character which the principles of the First Amendment. . .

protect," and therefore "cannot avoid making an independent

constitutional judgment on the facts of the case") (internal

quotations and citations omitted, first omission in original).

This is a purely legal inquiry, see id. at 148 n.7, which we

conduct on the basis of the trial record, notwithstanding UH's

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failure to file a cross-appeal on this point.’ See Koch v. City

of Hutchinson, 847 F.2d 1436, 1441 n.14 (10th Cir. 1988)

(en banc).

Of the four categories of speech upon which Plaintiff

seeks to base her §1983 claim, we must reject two at the

outset. First, Dr. Craven's allegation that she was terminated

in retaliation for her speech on "other matters" is patently

inadequate. See Fed. R. App. P. 28(a)(9)(A). It is the place of

counsel, not the Court of Appeals, to identify the specific

instances of speech upon which the plaintiff seeks to base her

claim. "We will not manufacture arguments for an appellant,

and a bare assertion does not preserve a claim, particularly

when, as here, a host of other issues are presented for

review." Entertainment Research Group, Inc. v. Genesis

Creative Group, Inc., 122 F.3d 1211, 1217 (9th Cir. 1997);

see also United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.

1991) (per curiam) ("Judges are not like pigs, hunting for

truffles buried in briefs.").

Second, the plaintiff's reliance on her speech

concerning the infectious waste room is misplaced. In any

retaliatory discharge case, the threshold inquiry is whether the

speech at issue involved a matter of public concern. Connick,

461 U.S. at 146-47. Although it is not entirely clear from

Plaintiff's brief, she appears to argue that she was terminated, _

in part, for the proposal she made to Ms. Sens regarding a

presentation to the management council about "the storage and

” Notably, UH has contested the protected status of the

speech at issue throughout the course of this litigation. I Aplt. App.

39-43, 149-51 (Mot. for Summ. J.); IV Aplt. App. 504-05, 517-22

(first Rule 50(a) Mot.); id. at 877 (second Rule 50(a) Mot.).

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Tenth Circuit Court of Appeals Opinion - 08/13/01

disposal of bio-hazardous waste." Aplt. Br. at 17. Although

it is well-settled that a public employee need not "spread [her]

views before the public" in order to pursue a claim for

retaliatory discharge, Givhan v. W. Line Consol. Sch. Dist.,

439 U.S. 410, 415-16, 58 L. Ed. 2d 619, 99 S. Ct. 693

(1979), it is equally weil-settled that "in deciding whether a

particular statement involves a matter of public concern, the

fundamental inquiry is whether the plaintiff speaks as an

employee or as a citizen." David v. City & County of Denver,

101 F.3d 1344, 1355 (10th Cir. 1997) (citing Connick, 461

U.S. at 147). In consulting with Ms. Sens regarding the

propriety of presenting certain photographs to a group of

managers with no direct responsibility for the photographs'

subject matter, Plaintiff was obviously speaking as an

employee - not as a citizen. /d. at 277, 549; see also id. at

277 (testimony of Dr. Craven, describing photographs as

"really gross"). The Supreme Court has firmly rejected the

view that "all matters which transpire within a government

office are of public concern," noting that such a presumption

"would mean that virtually every remark . . . would plant the

seed of a constitutional case." Connick, 461 U.S. at 149. This

is not the law. "The First Amendment does not require a

public office to be run as a roundtable for employee

complaints over [such] internal office affairs" as the pooper

forum and composition for a presentation on infectious waste.*

n8 /d.

® To the extent Plaintiff's argument is based on the poster

display, we reject it as well. The record before us contains no

evidence that anyone with the oy to terminate Dr. Craven

ever saw the display.

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Tenth Circuit Court of Appeals Opinion - 08/13/01

Strictly for the sake of analysis, we assume without

deciding that Dr. Craven's speech regarding internal air

quality and radiation safety did involve matters of public

concern, and we proceed to the second component of our

inquiry: whether Dr. Craven's interests, "as a citizen, in

commenting upon matters of public concern" outweigh "the

interest of the State, as an employer, in promoting the

efficiency of the public services it performs through its

employees." Pickering v. Bd. of Educ., 391 U.S. 563, 568,

20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968). We have held that

the balance of interests may favor the employer when "some

restriction is necessary to . . . insure effective performance by

the employee." Gardetto v. Mason, 100 F.3d 803, 815 (10th

Cir. 1996) (internal quotations and citations omitted).

Relevant considerations include: "whether the {employee's

speech] impairs discipline by superiors or harmony among co-

workers, has a detrimental impact on close working

relationships for which personal loyalty and confidence are

necessary, or impedes the performance of the speaker's duties

or interferes with the regular operation of the enterprise."

Rankin v. McPherson, 483 U.S. 378, 388, 97 L. Ed. 2d 315,

107 S. Ct. 2891 (1987) (citing Pickering, 391 U.S. at 570-

73).

Because "the government's interest in achieving its

goals as effectively and efficiently as possible is elevated from

a relatively subordinate interest when it acts as sovereign to a

significant one when it acts as employer," Umbehr, 518 U.S.

at 676 (quoting Waters v. Churchill, 511 U.S. 661, 675, 128

L. Ed. 2d 686, 114 S. Ct. 1878 (1994) (plurality opinion)),

courts have "consistently given greater deference to

government predictions of harm used to justify restriction of

employee speech than to predictions of harm used to justify

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Tenth Circuit Court of Appeals Opinion - 08/13/01

restrictions on the speech of the public at large." /d. (quoting

Waters, 511 U.S. at 673). The employer cannot, however,

"rely on purely speculative allegations that certain statements

caused or will cause disruption . . . ." Gardetto, 100 F.3d at

815. “Instead, the government must articulate specific

concerns about the impact of an employee's speech, and those

concerns must be reasonable and formed in good faith."

Andersen v. McCotter, 205 F.3d 1214, 1218 (10th Cir. 2000)

(citations omitted). The government need not "allow events to

unfold to the extent that the disruption of the [operation] and

the destruction of working relationships is manifest .

Connick, 461 U.S. at 152; accord Moore v. City of

Wynnewood, 57 F.3d 924, 934 (10th Cir. 1995) (noting that

employer need not "wait for speech actually to disrupt core

operations before taking action"). With these legal standards

in mind, we turn to the speech at issue.

A. Internal Air Quality

Plaintiff's speech regarding the IAQ problem had a

significantly adverse impact on her relationship with various

HSC personnel involved in the Barbara Davis Center

construction project. Because UH and HSC have, in many

senses, a "Common mission," it is "extremely important" that

employees of both institutions maintain "good collegial

relationships” and "respect and trust each other." IV Aplt.

App. 736 (testimony of Ms. Cashman). Negative relationships

between UH and HSC employees create "a lot of tension. . .

[and] distrust,” and have an adverse effect on the institutions’

abilities to resolve problems. /d. at 737. With respect to the

IAQ problem, it was particularly important for Dr. Craven to

have a comfortable and coilegial relationship with John

Allison, HSC's project manager for the Barbara Davis Center,

Tenth Circuit Court of Appeals Opinion - 08/13/01

as well as the other HSC employees and contractors involved.

Dr. Craven made no attempt to foster such a relationship. In

fact, it appears that she went out of her way to antagonize Mr.

Allison and his team, first by copying a memorandum that

concerned him directly to his supervisor and other high level

Officials, id. at 980, then by bringing angry staff members to

a meeting at which she was rude and disrespectful to her HSC

colleagues, eventually becoming so emotional that she had to

withdraw from participating in the meeting in order to collect

herself. /d. at 203 (testimony of Dr. Craven).

As a result, the colleagues with whom the plaintiff was

Supposed to be working in harmony to resolve problems and

further a common goal came to view her as "snide,"

"abrasive," "unprofessional," "unwilling to help,"

"degrading," "nonrespectful," id. at 620-22 (testimony of Mr.

Allison), "completely inappropriate," "cynical,"

"argumentative," "uncooperative," incorporating "vigilante-

ism,” id. at 1110-12 (5/19/94 e-mail from Mr. Allison to Mr.

Pauline), and tending to create "havoc". /d. at 664 (testimony

of Mr. Kohler). Dr. Jones expressed her concerns about Dr.

Craven's approach to the IAQ problem on numerous

occasions. /d. at 1108-09 (5/24/94 letter, advising the plaintiff

"to slow down and think clearly," to be more sensitive to "the

appropriate manner in dealing with patients, staff and

faculty," to employ procedures that would "keep people calm

rather than contribute to their anxiety," and commenting: "I

find the surprise appearance of employées at a construction

meeting to be thoroughly inappropriate and need to advise you

that it should not reoccur"); id. at 1130 (5/28/94 e-mail:

"Your effectiveness has little to do with where you sit, but a

lot to do with how you approach people."); see also id. at

1105-07 (6/1/94 letter); id. at 1004-05 (6/4/94 e-mail). On the

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Tenth Circuit Court of Appeals Opinion - 08/13/01

record before us, it was more than reasonable for UH to

conclude that Plaintiff's manner, including the manner in

which she expressed herself to others, was having a negative

impact both on her performance and on the hospital's

operations. See Umbehr, 518 U.S. at 676. Because there is no

basis for us to second-guess that judgment, we hold that the

Pickering balance favors the defendant as to Dr. Craven's

IAQ-related speech, and that her speech on that issue was not

entitled to First Amendment protection for purposes of her

retaliatory discharge claim.

B. Radiation Safety

There is no dispute as to the substance of the plaintiff's

telephone conversation with Dr. Hendrick. See IV Aplt. App.

307-09; cf. Waters, 511 U.S. at 668. Several of the facts

asserted by Dr. Craven in that conversation, however, were

controverted by Dr. Johnson. He testified that the incident at

issue did not involve a spilt infusion of intravenous radioactive

iodine, cf. IV Aplt. App. 307 (testimony of Dr. Craven), but

rather, a patient's reaction to radioactive iodine in capsule

form. /d. at 686 ("What had happened was that the patient

had thrown up."). Dr. Johnson also clarified the procedures

to be followed when a radiation incident occurred. He

explained that the hospital maintained a "call-down list" of

several people - including him - that could be called upon to

respond in the event of a radiation emergency. /d. at 680.

Regardless, inadvertently false speech on a matter of public

concern may still provide a basis for a retaliatory discharge

claim. See, e.g., Pickering, 391 U.S. at 572-73.

Even assuming that the call did involve matters of

public concern, UH's interests in efficiency far outweigh the

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Tenth Circuit Court of Appeals Opinion - 08/13/01

plaintiff's interests, as a citizen, in commenting on the

radiation incident at issue to Dr. Hendrick. From the record

before us, it appears that Plaintiff's conversation with Dr.

Hendrick had a “detrimental impact on close working

relationships for which personal loyalty and confidence are

necessary, . . . interfered with the regular operation of the

enterprise," and "impeded the performance of the speaker's

duties . . . ." Rankin, 483 U.S. at 388. As noted, it is

essential that UH and HSC employees maintain collegial

relationships so that they can work with, rather than against,

one another in solving problems that affect both institutions.

See IV Apit. App. 736-37. According to Ms. Sens, "major

problems developed between UH Administration and the

Health Sciences Center because of [Dr. Craven's]

communications with Ed Hendrick[] concerning the radiation

safety officer." Jd. at 1114. Ms. Cashman testified that the

plaintiff's conversation with Dr. Hendrick would lead to

misunderstandings between UH and HSC's radiology

department and call Ms. Cashman's credibility as a manager

into question. Jd. at 845-47.

With respect to the plaintiff's own performance, Ms.

Sens testified that she had "explicitly advised Dr. Craven to

make her concerns known to Joyce Cashman and then let it

rest," id. at 553, but that Dr. Craven "would just not give it

up,” id., and that her persistence eventually went "from

annoying to destructive." /d. at 574. After Dr. Craven's

telephone call to Dr. Hendrick, Ms. Sens realized that if Dr.

Craven was to continue in her position, she would require

“very intense” supervision on a “day to day” basis, obligating

Ms. Sens to constantly "check{] what she had said [and] who

She had spoken to, a very inappropriate level of supervision”

for a manager. /d. at 570-71. Simply put, Ms. Sens felt that

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Tenth Circuit Court of Appeals Opinion - 08/13/01

she could no longer trust the plaintiff's judgment. /d. at 571.

We find the foregoing evidence sufficient to tip the Pickering

balance in favor of the hospital with respect to the plaintiff's

telephone call to Dr. Hendrick.’ Accordingly, that call

® Due in large part to its misconception of this case as

involving an alleged prior restraint, the district court reached a

different conclusion as to the balance of interests with respect to the

telephone call. IV Aplt. App. 523-24, 878-79. Instead of

considering whether and to what extent the hospital's efficiency

interests were compromised by speech in which the plaintiff had

actually engaged, the court framed the question as whether the

hospital's interests were directly furthered by the alleged

requirements that Dr. Craven report only to her immediate

supervisor or - with respect to radiation safety issues - only to Ms.

Cashman. Id. at 510-11, 517, 519, 523-24, 878-79; cf. supra, notes

2-3. It also appears that the court conflated the Pickering balancing

inquiry with the separate and distinct analysis required to determine

whether a constitutional violation by an individual government

employee - if proven - can be attributed to the governmental entity.

See, e.g., IV Aplt. App. 508 (statement by the court: "I'm trying

to understand what custom or policy was in place by the hospital

authority that prevented the plaintiff from speaking out on a matter

of public concern . . . ."); id. at 523 (statement by the court,

concluding that the alleged reporting requirements did "in fact

constitute a custom or policy that . . . fwas] designed in a way that

doesn't promote the efficiency of the public service being

performed by the hospital authority"); cf. Monell, 436 U.S. at 694

("It is when execution of a government's policy or custom, whether

made by its lawmakers or by those whose edicts or acts may fairly

be said to represent official policy, inflicts the injury that the

government as an entity is responsible under § 1983.") (emphasis

added). As Plaintiff's counsel explained repeatedly, however, Dr.

Craven was not attempting to show that she had been "prevented

from speaking out," IV Aplit. App. 508, but rather, that she had

Tenth Circuit Court of Appeals Opinion - 08/13/01

provides no basis for Dr. Craven's §1983 claim.

C. Conclusion

In sum, of the four categories of speech cited in Dr.

Craven's brief, none can provide an adequate basis for her

retaliatory discharge claim. Her argument regarding speech

on “other matters" is too vague, her speech concerning

infectious waste did not involve a matter of public concern,

and even assuming that her IAQ- and radiation safety-related

speech touched on matters of public concern, UH's interests,

as an employer, clearly outweighed the plaintiff's interests, as

a citizen, in commenting on those matters as she did.

Accordingly, we hold that UH was entitled to judgment as a

matter of law on Dr. Craven's §1983 claim. Because the

§1983 claim should never have been submitted to the jury, the

other five errors alleged in Dr. Craven's brief were harmless,

and we need not address them. See Aplt. Br. at 16-17. We

now turn to the plaintiff's pendent claim for wrongful

discharge in violation of public policy.

II. Pendent State Claim: Wrongful

Discharge in Violation of Public

Policy

Dr. Craven's public policy claim never reached the

jury. Instead, the district court granted summary judgment for

UH on sovereign immunity grounds, I Aplt. App. 154-55,

rejecting Plaintiff's argument that § 24-10-106(1)(b) of the

Colorado Governmental Immunity Act ("CGIA") waived

been terminated in retaliation for protected speech. Id. at 509.

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Tenth Circuit Court of Appeals Opinion - 08/13/01

UH's immunity as to her claim. Plaintiff renews this argument

on appeal.

We review an award of summary judgment de novo,

applying the same standard as the district court. Stamper v.

Total Petroleum, Inc. Retirement Plan for Hourly Rated

Emplsyees, i188 F.3d 1233, 1237 (10th Cir. 1999). Summary

judgment is appropriate only "if the pleadings, depositions,

answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine issue

as to any material fact and that the [appellee is] entitled to a

judgment as a matter of law." Fed. R. Civ. P. 56(c) (emphasis

added). Plaintiff's appeal involves a narrow question of pure

law: whether §106(1)(b) waives the State's sovereign

immunity with respect to a wrongful discharge action against

a public hospital by a former employee whose job duties did

not include patient care. Because the Colorado Supreme Court

has not yet considered this question, we must predict what that

court would do in order to resolve Plaintiff's claim. See Lytle

v. City of Haysville, Kan., 138 F.3d 857, 868 (10th Cir.

1998).

Under §106(1)(b) of the CGIA, "sovereign immunity

is waived by a public entity in.an action for injuries resulting

from: . . . (b) The operation of a public hospital, correctional

facility, . . . or jail by such public entity . . . ." Colo. Rev.

Stat. §24-10-106(1). The statute defines "operation" as "the

act or omission of a public entity or public employee in the

exercise and performance of the powers, duties, and functions

vested in them by law with respect to the purposes of any

public hospital, [or] jail . . . ." Colo. Rev. Stat. §24-10-

103(3)(a). Neither the CGIA nor any other statute defines "the

purpose of [a] public hospital," cf. Neiberger v. Hawkins, 70

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Tenth Circuit Court of Appeals Opinion - 08/13/01

F. Supp. 2d 1177, 1194 (D. Colo. 1999) (citing statutory

purpose of particular hospital), nor has the Colorado Supreme

Court articulated a definition of a public hospital's purpose.

The Colorado Court of Appeals, however, has held that "the

primary purpose of a hospital is to provide medical or surgical

care to sick or injured persons." Sereff v. Waldman, 2000

Colo. App. LEXIS 2146, No. 99CA1193, 99 CA1497, 2000

WL 1785165, at *4 (Colo. App. 2000) (citing Plummer vy.

Little, 987 P.2d 871, 874 (Colo. App. 1999)). While not

binding on this court, "decisions by a state's intermediate

appellate courts provide evidence of how the state's highest

court would rule on the issue, and we can consider them as

such.” Stauth v. Nat'l Union Fire Ins. Co. of Pittsburgh, 236

F.3d 1260, 1267 (10th Cir. 2001); accord West v. Am. Tel. &

Tel. Co., 311 U.S. 223, 237, 85 L. Ed. 139, 61 S. Ct. 179

(1940) ("Where an intermediate appellate state court rests its

considered judgment upon the rule of law which it announces,

that is a datum for ascertaining state law which is not to be

disregarded by a federal court unless it is convinced by other

persuasive data that the highest court of the state would decide

otherwise. ").

In contrast to the dearth of case law as to the purposes

of a public hospital, the Colorado courts have considered the

purposes of a jail or correctional facility - also referenced in

§ 106(1)(b) - on more than one occasion. In both Flores y.

Colo. Dep't of Corrections, 3 P.3d 464 (Colo. App. 2000),

and Pack v. Arkansas Valley Correctional Facility, 894 P.2d

34 (Colo. App. 1995), the courts held that "the purpose of a

correctional facility is to manage convicts Safely and

effectively . . . ." Flores, 3 P.3d at 466; accord Pack, 894

P.2d at 37 ("purpose of the correctional facility [is] to confine

inmates safely and effectively"). Although the purpose of a

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Tenth Circuit Court of Appeals Opinion - 08/13/01

correctional facility has no bearing on the present case, the

courts’ decisions in Flores and Pack are instructive on a

related, yet more subtle, point. Taken together, those cases

stand for the proposition that the alleged injury underlying the

action must be “directly related to the purpose, as distinct

from the operation," Pack, 894 P.2d at 37, of the §106(1)(b)

facility before the court will find that the State's sovereign

immunity has been waived.

In Flores, for example, the court held that the State's

sovereign immunity had been waived where the plaintiff

alleged that she had slipped and fallen "on a wet floor inside

the secure visitor's area of the [correctional] facility." 3 P.3d

at 465. "Because the purpose of a correctional facility is to

manage convicts safely and effectively, and [because]

visitation within the facility directly assists in meeting that

purpose, the maintenance of the visitor area within the

custodial facility here is directly related to the purpose of the

correctional facility." Jd. at 466 (emphasis added). In Pack,

however, the court had held that sovereign immunity was not

waived with respect to a claim arising from a slip and fall in

the correctional facility's parking lot. 894 P.2d at 37. In so

holding, the court of appeals carefully distinguished the

operation of the facility from its purpose:

The maintenance of visitor parking areas in

order to facilitate prison visitation is not

directly related to the purpose, as distinct from

the operation, of a correctional facility. . . .

Although the [Department of

Corrections] has established and is maintaining

a visitors’ parking lot, such function merely is

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Tenth Circuit Court of Appeals Opinion - 08/13/01

ancillary to the purpose of the correctional

facility. Therefore, it is not part of the

operation of the correctional facility as defined

under the CGIA .....

Pack, 894 P.2d at 37 (emphasis added). We believe the

Colorado Supreme Court would agree with this distinction.

Further, we believe that the Court would agree with

the court of appeals' conclusion that "the primary purpose of

a hospital is to provide medical or surgical care to sick or

injured persons. " Sereff, 2000 Colo. App. LEXIS 2146, *10,

2000 WL 1785165, at *4: see also Plummer, 987 P.2d at 874.

Just as a parking lot is "merely . . . ancillary" to the safe and

effective confinement of persons convicted of crimes, Pack,

894 P.2d at 37, the personnel action at issue here is only

remotely related to UH's primary purpose. The relation

between a hospital employee's discharge and the provision of

"medical or surgical care to sick Or injured persons" is

particularly tenuous with respect to administrative employees

like Dr. Craven. See, é.g., If Aplt. App. 1. Accordingly, we

cannot construe §106(b)(1) as a waiver of the State's CGIA

immunity with respect to Plaintiff's claim. Although Plaintiff

Correctly notes that Colorado Supreme Court "broadly

construes the CGIA provisions that waive immunity in the

interest of compensating victims of governmental negligence, "

Springer v. City & County of Denver, 13 P.3d 794, 798

(Colo. 2000) (citations omitted); accord Corsentino y.

Cordova, 4 P.3d 1082, 1086 (Colo. 2000), State v. Nieto, 993

P.2d 493, 506 (Colo. 2000), the Court has also cautioned that

"nonetheless, our primary task in construing a statute is to

determine and give effect to the intent of the legislature."

Nieto, 993 P.2d at 506 (citation omitted). As explained, we do

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Tenth Circuit Court of Appeals Opinion - 08/13/01

not believe the Colorado General Assembly intended

§106(1)(b) to be applied to claims like the one before us.

Accordingly, the jury's verdict on the plaintiff's §1983

claim is VACATED and that claim is REMANDED to the

district court for the entry of judgment as a matter of law in

favor of the defendant. The district court's award of summary

judgment in favor of the defendant on plaintiff's public policy

claim is AFFIRMED.

APPENDIX C

District court’s ruling at trial on defense motion for judgment

as a matter of law, after the plaintiff had rested (trial

transcript, pp. 520-21, 523-24):

THE COURT: Here’s my ruling on this. The issue,

is, that, of course, RSO Johnson, radiation -

MR. RICE: Radiation safety officer.

THE COURT: Radiation safety officer Johnson really

wasn’t someone over whom she had direct authority. He was

employed by the Health Sciences Center and was on contract

to University Hospital. And there’s enough evidence on the

record to show that there were safety concerns about whether

or not he had a beeper, or a Pager and was reachable. So

that’s sort of a backdrop.

And when you have a specific incident where there

was a radiation spill and because of the plaintiff's concern

about that radiation spill and how it was handled and her

belief on a concomitant basis that the handling of that

jeopardized Safety and was a matter of public concern, I’m

going to make a legal finding that the employee’s speech for

which she was fired can be fairly characterized as constituting

speech in a matter of public concern for the reasons I’ve just

Stated.

So let’s go to the second issue.

** *

29a

District Court Ruling

Here’s what I’m going to do. I’m not going to

foreclose another Rule 50 motion after all the evidence is in.

But based on the motion you made now rather than at the

close of all the evidence, the Court believes that viewing the

evidence in the light most favorable to the nonmoving party,

the plaintiff, there is sufficient evidence on the record that the

directive from Ann Jones, coupled with the directive from

Miss Cashman that the plaintiff communicate her safety

concerns in all instances to Miss Jones as to all issues and then

to Miss Cashman as to the issues concerning things that may

relate to RSO Johnson and environmentally things that involve

radiation spills, does in fact constitute a custom or policy that

again, for purposes of this case, is designed in a way that

doesn’t promote the efficiency of the public service being

performed by the hospital authority.

So I’m going to find that - and I’ll make a ruling

under the Pickering analysis that the second prong of the test

has been established such that, in this case, the employee’s

interests, Dr. Craven’s interests as a citizen in commenting

upon matters of public concern outweighs the interests of the

state as an employer in performing the public service it

performs through its employees based on this custom the

Court has articulated. Which means, then, that the jury will

have to decide questions three and.four.

And what I would urge counsel to do, if he wishes to,

is revisit this, the Court’s ruling, or ask me to revisit it after

the [sic] all the evidence is in, because I don’t have enough

evidence to put it in context. I’m not going to rule against the

plaintiff at this stage of the case, because I don’t have all the

evidence.

District Court Ruling

District court’s ruling at trial on defense motion for judgment

as a matter of law, after both parties had rested (trial

transcript, pp.878-79): !

THE COURT: I’m going to deny the motions. First

incorporate by reference all my prior statements. So | deny

the motion for Rule 50 judgment as to the breach of implied

contract for all the reasons previously stated.

Also incorporate by reference everything I said

regarding the Pickering balancing test, and I add these

factors. I believe there is sufficient evidence for the jury to

decide the fact questions. I will reaffirm my legal ruling that

with respect to the first two prongs of the Pickering test that

the Court make legal findings that free speech issues were

implicated in a way that gives rise to a valid claim.

And even though there’s been evidence that there was

justification from the employer’s standpoint to preclude Dr.

Craven from reporting directly outside of her chain of

command, we still have the testimony of the plaintiff which

has been unrebutted that there was a radiation spill

immediately preceding her communication to Dr. Hendrick,

and the jury will have to decide if in fact that occurred or

didn’t occur.

But taking the plaintiff's testimony as truthful just for

purposes of this motion, I still believe that the hierarchy that

was in place and the directives given by Miss Cashman, as

chief operating officer, which required the plaintiff to go

through her before she could comment on any RSO safety

issues did in fact constitute a policy that had the potential for

restraining free speech. So I believe the first two prongs of

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District Court Ruling

the Pickering test are met for legal reasons, and I’ll let the

jury decide questions three and four.

District court’s ruling at trial on scope of speech covered in

paragraph 1 of instruction 22 (trial transcript, p. 805):

MR. ROSEMAN: And, Your Honor, I know you said

not to go back to 22, but we also ask you to look at the [sic]

paragraph 1, in our proposed, tender [sic] 2 because we

submit that the first paragraph - that subparagraph 2 is too

narrow in terms of my client’s free speech claim.

THE COURT: You mean you want it to be broader.

MR. ROSEMAN: We want the language that I think

is [sic] the version that’s in front of the Court. I’m not sure

what the exact language is.

THE COURT: This is the proposed instruction no. 2.

I’m going to reject that. What I’m going to do is I’m

going to give it the way it is because that’s what she reported.

I went back and looked carefully at her testimony. So she’s

going to either win or lose based on her version of what

happened, and that’s the way it should be in trial.

32a

APPENDIX D

IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

‘

Civil Action No. 99-1519-

PATRICIA CRAVEN,

Plaintiff-Appellant,

Vv.

UNIVERSITY OF COLORADO HOSPITAL

AUTHORITY,

)

Defendant-Appellee. )

)

PLAINTIFF-APPELLANT’S OPENING BRIEF

COMES NOW the Plaintiff-Appellant, by and through

her attorneys, Roseman & Kazmierksi, LLC, and respectfully

submits the following Opening Brief herein:

TIONS P ED F Ww

The following questions are presented for review in

this case:

1. Whether the district court erred in refusing to

instruct the jury on Dr. Craven’s theory that University

Hospital was liable for a single decision, allegedly made in

33a

Plaintiff-Appellant’s Opening Brief

retaliation for the exercise of her First Amendment rights, if

a person with final policymaking authority approved that

decision and the basis for it; and

2. Whether the district court erred in concluding

that University Hospital was not liable on Dr. Craven’s claim

of termination of employment in violation of public policy, on

the ground that the termination of her employment did not

result from the operation of a public hospital.

STATEMENT OF THE CASE

Summary of the Facts. Patricia A. Craven, Dr.

P.H. (Aplt. App. 298), worked for the University of Colorado

Hospital Authority (hereinafter, “University Hospital”) in

1994 as the hospital’s Manager of Safety and Risk

Management. Her Position Description (Aplt. Supp. App. 1-

2) provided, inter alia, that she served as the hospital’s Safety

Officer and as its Risk Manager. The former set of

responsibilities included assessing, developing, implementing

and monitoring the effectiveness of the hospital-wide Safety

Management Program; monitoring the effectiveness of

hospital-wide and departmental safety policies and procedures;

and monitoring compliance with applicable codes, standards

and regulations (Aplit. Supp. App.. 1).

Dr. Craven began working at University Hospital on

March 21, 1994 (Aplit. App. 181). Her immediate

predecessor, Beverly Rahorst, showed her a thick file labeled

“Frustrations, Stumbling Blocks, and Problems” that

contained documents about indoor air quality, asbestos

removal, leakage of bio-hazardous substances, and other

health and safety issues (Aplt. App. 185-187). Ms. Rahorst

34a

Plaintiff-Appellant’s Opening Brief

described indoor air quality, ~blems, dating back to October

1993, resulting from construcion activity at the adjacent

Barbara Davis Center (Aplt. App. 183-184), since an air

intake for the hospital was located a short distance from that

construction site. At a meeting on April 12, 1994 (see Aplt.

App. 303-304), Dr. Craven reported that the Barbara Davis

Center fumes were causing employees and patients in the

hospital’s west wing to become ill, that those employees said

they were “putting up with it,” but did not know how much

longer they would take it (Aplt. App. 188).

The Barbara Davis Center is affiliated with the

University of Colorado Health Sciences Center (hereinafter,

“Health Sciences Center”). The project manager for the

renovation work on that facility in 1993 and 1994 was John

Allison, a Health Sciences Center employee (Aplt. App. 243,

244). Dr. Craven met with Mr. Allison, other employees of

the Health Sciences Center, and representatives of the general

contractor for the project on April 29 and May 2, 1994, in

connection with these indoor quality problems (Apit. App.

305). She provided a written report (/d.) to University

Hospital employees on May 2, 1994, in which she described

the efforts that were being taken to deal with those problems.

Between May 2 and 5, 1994, 72 University employees

completed a survey form (Aplt. App. 306-14), in which they

reported a series of symptoms, including fatigue, headaches,

burning eyes and nausea, which they attributed to the Barbara

Davis Center construction work. Dr. Craven spoke with

approximately half of those persons, who related their health

problems to her quite emotionally (Aplt. App. 189). Dr.

Craven informed her immediate supervisor, Ann Jones, that

the problem was bigger than imagined (Aplt. App. 190).

35a

Plaintiff-Appellant’s Opening Brief

Dr. Craven attended a meeting with Health Sciences

Center and contractor representatives on May 10, 1994 (Apt.

App. 191). Although she emphasized the urgency of

resolving this long-standing problem, she testified that the

construction representatives at the meeting did not want to

admit there was a problem (Apit. App. 192-94). Between

May 10 and 19, 1994, Dr. Craven sent Mr. Allison and other

construction representatives a series of e-mail messages (Aplt.

App. 315-23), in an attempt to learn the status of the

contractor’s mitigation efforts and to urge that that work be

expedited. On May 18, 1994, Dr. Jones gave Dr. Craven

authority to shut down the Barbara Davis Center project any

time she felt it was appropriate (Aplt. App. 323).

Dr. Craven continued to receive complaints of

emission-related symptoms from employees, and began

receiving complaints from patients, after she received

authority to shut down this project (Aplt. App. 195). She

testified that Mr. Allison had no problem with her inviting

University Hospital employees to a meeting on May 19, 1994

(Aplt. App. 196).' Some employees were planning to picket

the hospital building and to contact the media if something

was not done about the indoor air quality problem (Aplt. App.

228).? Dr. Craven hoped that providing these employees with

' Mr. Allison claimed that he had no prior knowledge that she

would be inviting hospital employees to that meeting (Aplt. App.

245).

2 James Robert Kohler, a project manager for the general

contractor (Aplit. App. 249), testified that he had heard talk of

employees’ picketing the hospital and calling investigative reporters

at television stations in connection with this problem (Aplt. App.

251). :

36a

Plaintiff-Appellant’s Opening Brief

a forum to discuss their concerns and an Opportunity to hear

about the mitigation efforts directly from the persons

responsible for implementing them would help to defuse this

Situation (/d.)

That meeting became emotional.’ Although Mr.

Allison wrote his immediate supervisor an e-mail message

about Dr. Craven’s alleged conduct during that meeting (Apt.

App. 350-52), Dr. Jones sent Dr. Craven an e-mail message

(Aplt. App. 324) the following Monday, May 23, 1994, in

which she stated that she thought that Dr. Craven was “doing

a nice job, and it is nice to have you here.”

Dr. Jones sent Dr. Craven a memorandum (Aplt. App.

348-49) on May 24, 1994, the purpose of which was to make

Suggestions that she felt would make Dr. Craven more

effective in her work (Apit. App. 264).* On June 2, 1994,

: University Hospital’s witnesses contradicted each other about the

hospital employees’ demeanor and conduct during that meeting.

Mr. Allison, who claimed to have no problem with the attendance

of those employees at that meeting (Aplt. App. 246), testified that

they were civil and that they understood that progress was being

made (Aplt. App. 247). Mr. Kohler testified that the meeting

turned into havoc after two minutes, with the employees wanting to

shut the construction site down and not wanting to discuss the

efforts to mitigate the indoor air quality problem (Aplt. App. 250).

* Dr. Jones also testified that she had written that memorandum

because Dr. Craven had suggested in the May 19 meeting that the

Health Sciences Center stop construction, allegedly without

involving Dr. Jones in advance (Apit. App. 259-60). Dr. Jones

admitted under cross-examination that she had given Dr. Craven the

authority to shut down that project the day before that meeting

(Aplt. App. 263).

37a

Plaintiff-Appellant’s Opening Brief

Dr. Jones’ secretary signed a memorandum, entitled a

“Written Warning” letter (Aplit. App. 345-47), concerning

Dr. Craven’s decision to send her May 2 memorandum (Apt.

App. 305) to senior management without notifying Dr. Jones

in advance and concerning an alleged discussion outside Dr.

Jones’ office (Aplit. App. 266-67).° Dr. Jones testified that a

letter that serious is not one that she would have had her

secretary sign and that she did not recall giving her secretary

the authority to sign that letter on her behalf (Apit. App. 265).

Dr. Jones did not recall contributing some of the language

contained in that document (/d.).

This June 2 memorandum stated that one of the

corrective actions Dr. Jones should take was to “[dJirect all

comments about the safety of the Hospital to me as your

immediate supervisor” (Aplt. App. 346). Dr. Jones admitted

under cross-examination that she was not saying that Dr.

Craven could not discuss safety issues with members of the

safety committee or the disaster committee, with her own

employees, with employees of the hospital’s Engineering

Services Department, with employees at the Health Sciences

Center who were involved in those safety issues, or with

employees of regulatory agencies (Aplt. App. 267-68). Dr.

Jones testified that all that she meant by that statement was

that she wanted to be sure she.was informed about the

comments Dr. Craven made to other people about safety

issues (Aplit. App. 268).

Dr. Craven recalled that, in a meeting held on June

25, 1994, Donna Koeppel, a representative of the hospital’s

> Dr. Craven denied having made the statement outside Dr. Jones’

office alleged in that memorandum (Aplt. App. 198).

38a

Plaintiff-Appellant’s Opening Brief

Human Resources Department, stated that she and other

management employees were in agreement that it would not

be realistic for Dr. Craven to direct her safety-related

comments only to her immediate supervisor (Aplt. App. 201).

Dr. Craven testified that both Dr. Jones and her new

supervisor, Ruth Sens, agreed with that statement (Aplt. App.

202).

In June 1994, Dr. Jones ceased being Dr. Craven’s

supervisor. Both Dr. Craven (Aplt. App. 199-200) and Dr.

Jones (Aplt. App. 261-62) testified that this change occurred

because of the inherent conflict of interest between Dr. Jones’

supervision of Dr. Craven as the hospital’s Safety Officer and

Dr. Jones’ role in supervising the construction activities for

which Dr. Craven had safety responsibilities. Ms. Sens was

the Director of Quality Management at University Hospital

(Aplt. App. 234-35), and reported to Joyce Cashman.

This indoor air quality matter was far from the only

safety-reiated issue in which Dr. Craven was involved, either

before or after her department was transferred to Ms. Sens’

supervision. University Hospital had extensive problems with

asbestos exposure, due to renovation work in areas of the

hospital in which asbestos was hanging out of the walls

exposed and was airborne (Aplt. App. 203-04). In early April

1994, she began efforts to have speed bumps installed in the

parking structure for the hospital. She took that action

because the hospital exit and patient pick-up area was located

next to the bottom of a spiral-shaped exit ramp, exposing

wheelchair-bound patients to the risk of injury from speeding

motorists (Apit. App. 213-14). On April 5, 1994, Dr. Craven

sent Mr. Allison a memorandum, with Dr. Jones’ approval,

concerning toddler-high, non-childproof electrical outlets in

39a

Plaintiff-Appellant’s Opening Brief

a walkway between the parking structure and the hospital

building (Aplt. App. 215). Dr. Craven had to send a follow-

up e-mail message to Mr. Allison on May 10, 1994, asking

him about the status of the speed bumps and the childproof

outlets that she had addressed in her April 5 memorandum to

him (Aplit. App. 248). The speed bumps, but not the

childproof outlets, had been installed by August 9, 1994

(Aplt. App. 325).

Dr. Craven also had to deal with serious problems

concerning the storage of bio-hazardous waste. Although

University Hospital had a well designed, refrigerated and

locked storage room, the door to that room frequently was left

unlocked (Aplit. App. 205). Hypodermic needles and other

“sharps” also were stored in the bags left in that room (/d.).

Dr. Craven’s assistants took photographs of the leaking,

decayed bags that were stored in that room and on the loading

dock (/d.).

After bringing this issue to the attention of the

hospital’s safety committee and other employees involved with

the issue of infection control and after arriving at some

proposed solutions (Apit. App. 206), Dr. Craven decided to

bring this issue to the attention of University Hospital’s

management council (Aplt. App. 207). She wanted to show

the photographs to this group, which consisted of peers of

hers who supervised hospital units that generated this bio-

hazardous waste, in order to illustrate the seriousness of this

problem (Apit. App. 207-08). Dr. Craven testified that Ms.

Sens responded to that proposal by telling her that “you’re

treading on thin ice there” and by telling her that Ms.

Cashman did not like photographs -- especially of bio-

hazardous waste -- to be presented at meetings (Aplt. App.

40a

Plaintiff-Appellant’s Opening Brief

208-09). Dr. Craven also testified that Ms. Sens warned Dr.

Craven that it could be real dangerous for her to do this (Aplt.

App. 209). Dr. Craven proposed having the photographs

displayed on a poster board outside the management council’s

meeting room (/d.). Ms. Sens removed the photographs that

she felt to be “really gross,” in Dr. Craven’s words, told her

not to put captions or locations on them, and to stand in the

hall in case someone had questions for her (/d.).°

This was not the first time that one of Dr. Craven’s

supervisors had told her not to discuss safety issues with

others. In addition to the June 2 memorandum (Aplt. App.

345-47), Dr. Jones had told Dr. Craven that she should not

have brought other hospital employees to the meeting on May

19, 1994 (Aplt. App. 197). Dr. Jones also had forbidden Dr.

Craven from meeting with her counterpart at the Department

of Veterans Affairs Medical Center, a hospital located

immediately next to University Hospital (Aplt. App. 210-11),

because those employees were federal employees (Aplt. App.

212-13).

In September and October 1994, an issue arose

concerning Dr. Timothy Johnson, the designated Radiation

Safety Officer (hereinafter “RSO”) for University Hospital

(Aplt. App. 217, 330). Under a cost allocation contract with

the Health Sciences Center, Dr. Johnson was responsible for

emergency responses in the hospital, radiation safety drills,

6 Ms. Sens confirmed that Dr. Craven had asked her about

presenting this photographic evidence to the management counsel,

and that she had discouraged Dr. Craven from doing so. (Aplt.

App. 236-37).

4la

Plaintiff-Appellant’s Opening Brief

and other matters (Aplit. App. 216). Under a different

contract, Dr. Harry Cullings was responsible for matters such

as file badges and certain investigations (/d.). In September

1994, Dr. Craven informed Ms. Cashman that Dr. Johnson

was not wearing a pager and was not available in the event of

spills of radioactive materials or other similar accidents (ApIt.

App. 218). ’

At 11:09 a.m. on October 27, 1994, Ms. Cashman

sent a e-mail message to Dr. Craven (Aplit. App. 333), in

which she discussed the recruitment for a new RSO and stated

that “[i)f you find areas not being addressed please send me

details of the issues and I will address them.” Dr. Craven

responded in an e-mail message at 12:14 p.m. that same day

(/d.), in which he stated that the Emergency Room, the Health

Sciences Center, and she had “many issues that are not being

addressed” and that Dr. Johnson “is simply not doing the

job.” Ms. Cashman responded in an e-mail message at 12:35

p.m. that same day (/d.), in which she stated:

’ This was not a new issue. When Dr. Craven began her

employment at University Hospital, Ms. Rahorst showed her

minutes of meetings in which Dr. Johnson was sanctioned by the

head of the disaster committee for being unavailable and not

wearing a pager (Apit. App. 182). Dr. Johnson admitted that he

did ‘iot weer a pager (Apit. App. 254) and that the only way to

reach un outside of his normal working hours was through a call

to tse “larversity Hospital police department, which had his home

teleptiwne number (Aplt. App. 257). He also admitted that he

wanted to discontinue serving as the hospital’s RSO because of his

receipt of a five-year research grant and other increased duties in

his faculty position at the Health Sciences Center (Apit. App. 252-

53). ,

42a

Plaintiff-Appellant’s Opening Brief

Pat, The kRSO [sic] position is a radiology

position hired by the school of medicine, as I

told you. It remains a separate position form

[sic] the general hospital safety function. You

may need to be a member of the radiation

safety committee. Please address your issue to

me and I will review with Tim Johnson. |

assume by your info that you have raised all

the issues with him to date. I’ll look forward

to reading your summary of the issues yuou

{sic] refer to.

Ms. Cashman testified at trial that she did not tell Dr.

Craven, in these e-mail messages or otherwise, not to talk or

speak with anyone else about her concerns, and did not forbid

her from talking to Dr. Ed. Hendrick of the Health Sciences

Center (Aplt. App. 294-95). In her deposition, Ms. Sens

testified that she did not tell Dr. Craven not to speak with

anyone other than Ms. Cashman about the RSO issue (Aplt.

App. 240-41). Dr. Craven understood Ms. Cashman’s

comment, in her second e-mail message on October 27 to

“address your issue to me and I will review with Tim

Johnson,” to mean that she should include these issues in the

report she was preparing for Ms. Cashman (Aplt. App. 219).

Dr. Craven decided to contact Dr. Johnson, since she had not

raised all of her issues with him by that date (/d.).

At 4:33 p.m. on that same date, Dr. Johnson sent an

e-mail message to Dr. Craven, in response to an earlier

message she had sent to him about the status of the RSO

position at University Hospital (Aplt. App. 333-34). Dr.

Johnson suggested in that message that she contact either Dr.

Ed Hendrick, the Health Sciences Center’s Division Chief of

43a

Plaintiff-Appellant’s Opening Brief

Radiological Services, or Dr. Michael Manco-Johnson, the

Department Chair, since they were responsible for hiring the

new RSO (Apit. App. 334). He stated: “Maybe if you talked

to them you could prod things along a little faster. Somebody

needs to light a fire under them!” (/d.).

Dr. Craven left a telephone message with Dr.

Hendrick, to which he responded (Aplt. App. 220). She

discussed a spill of radioactive iodine involving a patient on

8 North of University Hospital, which she described as being

the cancer ward (Aplt. App. 221). She understood that the

nurses were terrified to go into the room because they were

not skilled in radioactive cleanup (/d.). Because they could

not reach Dr. Johnson, they evidentially called Dr. Cullings,

who had done the cleanup even though that was not part of his

responsibilities (Aplt. App. 222). He stated that he did not

want to be called out in the middle of the night for a job that

was not his responsibility to perform (/d.).° Dr. Craven and

Dr. Hendrick discussed emergency responses to these kinds

of situations and a résumé for the RSO position that she had

received by mistake (Aplt. App. 222-23).

Dr. Craven described her tone of voice during that

telephone conversation as being “conversational” (Aplt. App.

224). Dr. Hendrick did not recall Dr. Craven as being angry,

upset or saying anything in a loud or confrontational tone of

® Ms. Cashman testified that no radiation therapy was done on 8

North, since that was a gastrointestinal ward (Aplit. App. 272). Dr.

Johnson testified that the incident had occurred on 8 West (Aplt.

App. 255). He claimed that this was not a radiation emergency

(Apit. App. 256) and blamed the nurses on that ward for not

“choos[ing] to learn” what he had attempted to teach them (Aplt.

App. 257-58).

Plaintiff-Appellant’s Opening Brief

voice (Apit. App. 229). He recalled there being nothing

unusual about that conversation (/d.). He did not recall being

upset or angry as a result of that conversation (/d.).

On November 3, 1994 (Aplit. App. 227), Ms. Sens

taped a memorandum to the door to Dr. Craven’s office on a

day that Dr. Craven was not at work due to a doctor’s

appointment (Aplt. App. 225). In that memorandum (Aplt.

App. 353), she requested copies of all notes, e-mail messages,

and the context of all telephone messages that Dr. Craven had

had with Dr. Hendrick concerning the role of the RSO. Dr.

Craven responded the same day with a typewritten

memorandum (Aplit. App. 354) that summarized her

conversation with Dr. Hendrick. The next day, Ms. Sens

prepared a draft memorandum for a five-day suspension of

Dr. Craven (Apit. App. 335-37). The only incident that she

discussed in that document in terms of needed improvement

by Dr. Craven involved her telephone conversation with Dr.

Hendrick (Aplt. App. 335).

On November 8, 1994, Ms. Sens wrote a letter (Aplt.

App. 344) to Dr. Craven terminating her employment “due to

a lack of professional behavior and insubordination.” The

only event listed in that letter that had occurred under Ms.

Sens’ supervision of Dr. Craven was that she had contacted

Dr. Hendrick “and proceeded to have an extremely

inappropriate phone discussion with him” (/d.). Ms. Sens

claimed that this “was in direct conflict with the information”

Dr. Craven had received from Ms. Cashman, “telling you to

address issues regarding the radiation safety officer directly to

her” (/d.).

Dr. Craven submitted a written appeal (Aplt. App.

Plaintiff-Appellant’s Opening Brief

359-61) from that decision. On November 30, 1994, Ms.

Cashman -- University Hospital’s Vice President of

Operations -- sent Dr. Craven a letter (Apit. App. 355-58),

denying that appeal. Ms. Cashman informed Dr. Craven that

her decision was based, in whole or in part, on the fact that

she believed that Dr. Craven had acted inappropriately in

speaking with Dr. Hendrick (Aplt. App. 355-56). Dennis

Brimhall, the President of University Hospital, upheld Dr.

Craven’s termination after a “complete review” of her

grievance material and after intensive interviews with the

individuals directly involved with the termination decision

(Aplt. App. 343).

Summary of the Proceedings. Dr. Craven filed a

Complaint (Aplt. App. 1-6) against University Hospital.’ The

claims asserted in that Complaint included termination of

employment in violation of public policy and in violation of

her First amendment rights." On December 2, 1997,

University Hospital moved for summary judgment on all of

Dr. Craven’s claims for relief.'' Judge Daniel ruled from the

® Dr. Craven filed that Complaint in state court. University

Hospital removed the case to federal district court (Aplt. App.

407). ‘

'© Dr. Craven also included claims for breach of implied contract

and promissory estoppel in that Complaint. The jury reached a

verdict for University Hospital on the implied contract claim and

the district court found in favor of University Hospital on the

promissory estoppel claim. Dr. Craven is not appealing those

decisions in this case.

'! Appellant’s Appendix contains the briefs filed by the parties in

connection with that Motion for Summary Judgment, and those

46a

Plaintiff-Appellant’s Opening Brief

bench on those claims at a hearing held on January 13, 1999.

The district court dismissed Dr. Craven’s public policy

claim on the ground that University Hospital, a political

subdivision of the State of Colorado, §23-21-503(1), C.R.S.,

was immune from liability pursuant to the Colorado

Governmental Immunity Act (“CGIA”).'? The district court

concluded that Dr. Craven’s public policy claim did not

“flow[] from the operation of a public hospital,” and that

instead what “it flows from is that she had a dispute and

disagreement with her supervisors which led to her

termination” (Aplit. App. 155). It elaborated on that

conclusion by stating that the claim she was asserting “really

does not go to the true purpose for which the public hospital

was operational” (Aplt. App. 158).

University Hospital moved for judgment as a matter of

law at the close of Dr. Craven’s case in chief at trial. The

district court ruled that the speech for which Dr. Craven’s

employment was terminated could be fairly characterized as

constituting speech on a matter of public concern (Aplt. App.

230-31). The district court also found that Dr. Craven’s

interests as a citizen in commenting upon matters of public

concern outweighed the interests of University Hospital as an

employer in performing the public services it performs

exhibits or attachments to the briefs that concerned Dr. Craven's

public policy claim.

'? As discussed in more detail infra at 18-20, the CGIA provides

that sovereign immunity is waived in an action for injuries resulting

from a public entity’s “operation” of a public hospital. §24-10-

106(1)(b), C.R.S.

47a

Plaintiff-Appellant’s Opening Brief

through its employees (232-33)."? The district court reached

the same conclusion with respect to the second of these two

issues in its ruling on University Hospital’s motion for

judgment as a matter of law at the close of all the evidence at

trial (Apit. App. 296-97).

Dr. Craven objected (Aplt. App. 273-80, 285-88) to

Instruction No. 22, which had been drafted by the district

court. That instruction set forth the elements for Dr.

Craven’s First Amendment retaliation claim. Dr. Craven will

discuss that instruction and her objections in more detail infra

at 12-17. The district court overruled those objections and

decided to give that instruction (Aplt. App. 291-93).

The jury entered a verdict in favor of University

Hospital on Dr. Craven’s First Amendment retaliation claim

(Aplt. App. 366). Dr. Craven filed a post-trial motion (Aplt.

App. 368-79), in which she argued, inter alia, that the district

court had erred in giving Instruction No. 22. The district

court denied that motion on October 15, 1999 (Aplt. App.

397-403).

Dr. Craven filed a timely notice of appeal to this Court

on November 12, 1999 (Aplt. App. 404-05).

STANDARD OF REVIEW

When a party objects to instructions at trial, this Court

conducts “a de novo review to determine whether, as a whole,

'3 Since University Hospital has not cross-appealed from those

decisions, Dr. Craven will not discuss them any further in this

brief. :

48a

Plaintiff-Appellant’s Opening Brief

the instructions correctly stated the governing law and

provided the jury with an ample understanding of the issues

and applicable standards.” Advantor Capital Corp. v. Yeary,

136 F.3d 1259, 1265 (10th Cir. 1998). This Court’s reviews

the trial court’s conclusions on legal issues in connection with

jury instructions de novo, and needs not defer to its decisions

on questions of law.” Roberts v. Progressive Independence

Inc., 183 F.3d 1215, 1222 (10th Cir. 1999). Assuming that

an instruction properly sets forth the relevant law, this Court

reviews the district court’s decision to give the particular

instruction for an abuse of discretion. Kinser v. Gehl Co., 184

F.3d 1259, 1273 (10th Cir. 1999), cert. denied, 120 S.Ct.

985 (2000).

This Court grants de novo review of an order granting

summary judgment. Universal Money Centers, Inc. v. A.T.&

T., 22 F.3d 1527, 1529 (10th Cir. 1994), cert. denied, 513

U.S. 1052 (1994). Summary judgment is appropriate only if

the record contains no evidence of a genuine issue of material

fact and demonstrates that the moving party is entitled to

judgment as a matter of law. See Woodman v. Runyon, 132

F.3d 1330, 1337 (10th Cir. 1997). This Court requires that

the nonmovant be given “wide berth to prove a factual

controversy exists.” Ulissey v. Shvartsman, 61 F.3d 805, 808

(10th Cir. 1995). Neither this Court nor the district court can

weigh the evidence, but instead must determine “whether the

evidence presents a sufficient disagreement to require

submission to a jury or whether it is so one-sided that one

party must prevail as a matter of law.” Bingaman v. Kansas

City Power & Light Co., 1 F.3d 976, 980 (10th Cir. 1993)

(internal quotation marks and citation omitted). In making

this determination, this Court and the district court must view

the record and all reasonable inferences drawn therefrom in

49a

the light most favorable to the nonmoving party. See Thomas

v. Internat'l Business Machines, 48 F.3d 478, 484 (10th Cir.

1995).

Plaintiff-Appellant’s Opening Brief

ARGUMENT

THE DISTRICT COURT ERRED IN

REFUSING TO INSTRUCT THE JURY

ON DR. CRAVEN’S THEORY THAT

UNIVERSITY HOSPITAL WAS LIABLE

FOR A SINGLE DECISION, ALLEGEDLY

MADE IN RETALIATION FOR THE

EXERCISE OF HER FIRST

AMENDMENT RIGHTS, IF A PERSON

WITH FINAL POLICYMAKING

AUTHORITY APPROVED THAT

DECISION AND THE BASIS FOR IT.

Instruction No. 22 set forth the elements of Dr.

Craven’s claim that University Hospital had terminated her

employment in violation of her First Amendment rights. That

instruction (Aplt. App. 362-63) read as follows:

In order for the Plaintiff, Patricia Craven, to

recover from the Defendant, University of

Colorado Hospital Authority, on her claim of

violation of the Plaintiff's constitutional right

to freedom of speech, you must find all of the

following have been proved:

(1) The Plaintiff reported to Dr. Hendrick

substantial concerns she had regarding

a radiation spill at 8 North of

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Plaintiff-Appellant’s Opening Brief

University Hospital, how that spill was

handled, its adverse impact on patient

care and overall hospital safety, and the

unavailability of the Radiation Safety

Officer to attend to such emergencies;

(2) | The Defendant terminated the Plaintiff

following this contact with Dr.

Hendrick:

(3) The Plaintiff's expression of her views

to Dr. Hendrick on the issues specified

in paragraph (1) above was a

substantial or motivating factor in the

Defendant's decision to terminate the

Plaintiff;

(4) The Defendant had an official policy or

custom, which required the Plaintiff to

report all health and safety concerns

associated with her job duties only to a

supervisor, and such policy or custom

deprived the Plaintiff of her

constitutional right of freedom of

speech.

If you find that any one or more of these four

Propositions has not been proved by a

preponderance of the evidence, then your

verdict must be for the Defendant.

On the other hand, if you find that all of these

four propositions have Seen proved by a

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Plaintiff-Appellant’s Opening Brief

preponderance of the evidence then your

verdict must be for the Plaintiff unless you also

find that the Defendant’s affirmative defense of

termination for other constitutionally

permissible reasons or motives has been

proved by a preponderance of the evidence, in

which event, your verdict must be for the

Defendant.

Dr. Craven argued at trial that subparagraph (4) of this

instruction was erroneous (Aplt. App. 273-74, 276-77, 279-

80, 283-90).'* That subparagraph required Dr. Craven to

prove by a preponderance of the evidence that University

Hospital “had an official policy or custom which required

[her] to report all health and safety concerns associated with

her job duties only to a supervisor ....”(Aplt. App. 362). To

subject a governmental entity such as University Hospital to

liability, “a municipal policy must be a ‘policy statement,

ordinance, regulation, or decision officially adopted and

promagated by [its] officers.’” Murrell v. School Dist. No. 1,

186 F.3d 1238, 1249 (10th Cir. 1999); Lankford v. City of

Hobart, 73 F.3d 283, 286 (10th Cir. 1986). In the absence of

such an official policy, a public entity such as University

Hospital can be held liable if the practice in question is “so

permanent and well settled as to constitute a ‘custom or usage’

with the force of law.” Murrell, 186 F.3d at 1249; Lankford,

73 F.3d at 286. These same principles apply in First

'* Instruction No. 22, as given to the jury, consolidated into

subparagraph (4) the language that had been contained in

subparagraphs (4) and (5) of the draft of that instruction that the

district court and the parties’ attorneys discussed on the record at

the end of the prior day’s testimony (Aplt. App. 282-83).

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Plaintiff-Appellant’s Opening Brief

Amendment retaliation cases. See, e.g., Schalk v. Gallemore,

906 F.2d 491, 498 (10th Cir. 1990).

Dr. Craven presented no evidence, and did not

contend at trial, that University Hospital had adopted a formal

policy or had a custom of requiring any person in her position

or any person in a similar position to report all health and

safety concerns associated with that person’s job duties only

to a supervisor. The district court was of the opinion that Dr.

Jones’ memorandum of June 2, 1994, Ms. Cashman’s e-mail

messages, and Ms. Sens’ alleged communications with Dr.

Craven established that “there was a policy in place” to that

effect (Aplt. App. 287-88). However, Dr. Craven got Dr.

Jones to admit, under cross-examination, that she was not

saying that Dr. Craven could not say anything about safety in

meetings of the safety or disaster committees, in discussions

with any of the employees she supervised, with employees at

the hospital’s Engineering Services Department, or with

employees at the Health Sciences Center who were involved

in the safety issues about she was concerned (Aplt. App. 267-

68). Dr. Jones also admitted under cross-examination (Aplt.

App. 268) that the statement in her June 2 memorandum that

Dr. Craven should “[dJirect all comments about the safety the

Hospital to me as your immediate supervisor” meant that Dr.

Craven could direct comments about safety to other people as

long as Dr. Jones was informed about those comments.

Similarly, Dr. Craven got Ms. Cashman to admit under cross-

examination that she had not told Dr. Craven “not to contact

or speak to anyone else about her concerns” (Apit. App. 295).

Ms. Sens admitted under cross-examination that she did not

recall telling Dr. Craven not to contact anyone other than Ms.

Cashman about her safety-related concerns (Aplt. App. 239).

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Plaintiff-Appellant’s Opening Brief

In addition, Ms. Cashman testified that each

department at University Hospital had a policy and procedure

manual, in addition to the specific written policies dealing

with human resources issues (Aplt. App. 269-70). The jury

easily could have believed from all this testimony that

University Hospital had no official policy requiring Dr.

Craven to report all health and safety concerns associated with

her job duties only to a supervisor. Dr. Craven presented no

evidence that any of the thousands of policies contained in the

hospital’s policy and procedure manuals contained any such

requirement. Dr. Jones, Ms. Cashman and Ms. Sens all

testified that they had not required Dr. Craven to report all

such concerns only to a supervisor. Instruction No. 22

effectively required the jury to return a verdict for University

Hospital on Dr. Craven’s §1983 claim.

Dr. Craven asked the district court instead to give her

Tendered Instruction No. 2 (Aplit. App. 364). Subparagraph

(1) through (3) of that tendered instruction would have

required Dr. Craven to prove that she had expressed her

views concerning the RSO position to Dr. Hendrick, that

University Hospital had terminated her employment after she

had expressed those views, and that her expression of those

views was a substantiai or motivating factor in that decision.

Subparagraph (4) would have required her, in addition, to

prove that a “person with final decision-making authority for

University Hospital with respect to her employment either

decided to terminate her employment or approved a

subordinate’s decision and the basis for it” (/d.).

Dr. Craven’s Tendered Instruction. No. 2 correctly

stated the law. An entity such as University Hospital can be

held liable for a single decision made by a person with final

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Plaintiff-Appellant’s Opening Brief

policymaking authority for that governmental entity with

respect to a particular action upon which the lawsuit is based.

Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81 (1986).

A governmental entity also can be held liable for monetary

damages when the persons with final policymaking authority

“approve a subordinate’s decision and the basis for it.” City

of St. Louis v. Praprotnick, 485 U.S. 112, 127 (1998). See

also Turner v. Upton County, Tex., 915 F.2d 133, 136 (Sth

Cir. 1990) (one method of establishing liability is if the public

entity’s final policymakers have “condoned creation of a

custom by ratifying the unconstitutional or illegal actions of

subordinate officers or employees”); Feliciano vy. City of

Cleveland, 988 F.2d 649, 655 (6th Cir. 1993) (City can be

liable if the Chief of Police had the final authority to make

final policy regarding drug testing of police or if a final

policymaker for the City ratified his actions); Cornfield by

Lewis v. Consolidated High School Dist. No. 230, 991 F.2d

1316, 1330 (7th Cir. 1993).

The evidence presented at trial supported that

instruction, and in particular subparagraph (4) of it. Ms.

Cashman testified in her deposition, in an excerpt that was

read the jury, that Ms. Sens needed her approval in order to

terminate Dr. Craven’s employment (Aplt. App. 294). Ms.

Sens asked Ms. Cashman, in a draft of the memorandum she

prepared before the one that terminated Dr. Craven’s

employment (Apit. App. 335-37), for Ms. Cashman’s input on

what language to include in that document (Apt. App. 242).

Both Ms. Cashman (Aplt. App. 355-58) and Mr. Brimhall

(Aplt. App. 343), University Hospital’s President, approved

Ms. Sens’ decision to terminate Dr. Craven’s employment.

Ms. Cashman stated explicitly that she had approved Ms.

Sens’ decision to terminate Dr. Craven’s employment because

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Plaintiff-Appellant’s Opening Brief

of Dr. Craven’s telephone call with Dr. Hendrick (Aplt. App.

355-56). Mr. Brimhall stated that he had made his decision

after a complete review of Dr. Craven’s grievance material

and intensive interviews with the individuals directly involved

with the termination decision (Aplt. App. 343). University

Hospital’s appeal procedure (Apit. App. 341) provided that

the decision of the President of University Hospital on an

employee appeal “is final.” Starrett v. Wadley, 876 F.2d

808, 818 (10th Cir. 1989) (county assessor had final authority

to set employment policy as to the hiring and firing of his

staff); Hall v. Marion School Dist. No. 2, 31 F.3d 183, 196

(4th Cir. 1994) (school board ratified superintendent’s

retaliatory actions against teacher in violation of the First

Amendment); Pearson v. Macon-Bibb County Hosp.

Authority, 952 F.2d 1274, 1281-82 (11th Cir. 1992) (publicly

funded hospital could be held liable for allegedly

unconstitutional termination of employment if its administrator

ratified the termination decision).

In Harrison v. Eddy Potash, Inc., 158 F.3d 1371,

1377 (10th Cir. 1998), aff’g 112 F.3d 1437, 1450-51 (10th

Cir. 1997), cert. granted, vacated and remanded, 118 S. Ct.

2364 (1998), this Court held that the district court had erred

by refusing to instruct the jury on the plaintiff's theory of

misuse of supervisory authority...This Court concluded that

the evidence at trial clearly indicated that an individual

defendant had had actual immediate supervisory authority

over the plaintiff and had misused that authority to harass her.

“Thus, Harrison was entitled to have the jury instructed on

her ‘abuse of actual authority’ theory of liability against Eddy

Potash, and was clearly prejudiced by the. district court’s

failure to do so.” Id.; Wilks v. Young, 897 F.2d 896, 898

(7th Cir. 1990) (district court erred by failing to instruct the

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Plaintiff-Appellant’s Opening Brief

jury on a theory of liability that was available to the Plaintiff).

That is not the only problem with Instruction No. 22.

In addition:

° This instruction did not inform the jury what

constitutes an “official policy or custom.” The jurors

therefore had no guidance as to whether Dr. Jones’

memorandum, Ms. Cashman’s e-mail messages or Ms. Sens

alleged conversations with Dr. Craven constituted an “official

policy or custom,” or whether they needed additional

evidence to satisfy that element of this claim.

° Subparagraph (4) required the jury to find that

University Hospital’s official policy or custom “deprived the

Plaintiff of her constitutional right to freedom of speech.”

The district erred by submitting this question of law to the

jury for its decision. See Dillard & Sons, 51 F.3d at 916.

e Subparagraphs (1) through (3) limited the scope

of the expressive activities on which Dr. Craven’s First

Amendment retaliation claim was based just to her one

telephone conversation with Dr. Hendrick. That was not the

theory of Dr. Craven’s case. She claimed retaliation based

not only on that one conversation, but also upon her earlier

speech in connection with indoor air quality problems

resulting from construction activies at the Barbara Davis

Center, the storage and disposal of bio-hazardous waste, and

other matters.

° Subparagraph (1) required Dr. Craven to

~ prove, by a preponderance of the evidence, that she had

expressed “substantial” concerns to Dr. Hendrick “regarding

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Plaintiff-Appellant’s Opening Brief

a radiation spill at 8 North of University Hospital,” among

other matters (Aplt. App. 362). Dr. Johnson and Ms.

Cashman testified that this radiation spill had not occurred on

8 North (Apit. App. 255, 272). The jurors therefore were

required to enter a verdict for University Hospital based upon

the legally irrelevant question of the specific location of this

incident, as opposed to whether she had reported that incident

to Dr. Hendrick.

° Subparagraph (1) also required the jury to find

that Dr. Craven had reported to Dr. Hendrick all four of the

items (the spill, how it was handled, its adverse effect, and the

unavailability of the RSO) in order to prevail on her First

Amendment retaliation claim. Dr. Craven argued that the

word “and” in that subparagraph should be changed to “or”

so that the jurors’ decision would not turn on whether they

believed that Dr. Craven had reported every single one of

those items.

The district court’s decision to give Instruction No. 22

to the jury, and its refusal to give Dr. Craven’s Tendered

Instruction No. 2, was highly prejudicial. Instruction No. 22

set forth the elements of Dr. Craven’s First Amendment

retaliation claim. In order for the jury to find for Dr. Craven,

it had to determine that she had proven facts that supported a

legal theory that she had not attempted to present at trial. The

district court refused to give an instruction that would have

allowed the jury to enter a verdict for Dr. Craven based upon

evidence that she did present at trial and upon a well-

established basis for recovery in a §1983 claim. Instruction

No. 22 was incomplete, confusing, and required the jurors to

find for University Hospital if they concluded that Dr. Craven

had failed to establish evidence that was legally irrelevant io

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Plaintiff-Appellant’s Opening Brief

her claim for relief. This Court should reverse the judgment

entered in this case on Dr. Craven’s First Amendment claim,

and should remand this case for a new trial in front of a

properly instructed jury.

II. THE DISTRICT COURT ERRED IN

CONCLUDING THAT UNIVERSITY

HOSPITAL WAS NOT LIABLE ON DR.

CRAVEN’S CLAIM OF TERMINATION

OF EMPLOYMENT IN VIOLATION OF

PUBLIC POLICY, ON THE GROUND

THAT TERMINATION OF HER

EMPLOYMENT DID NOT RESULT

FROM THE OPERATION OF A PUBLIC

HOSPITAL.

Dr. Craven alleged in her Complaint that University

Hospital had terminated her employment in violation of public

policy. Specifically, Dr. Craven’s Complaint alleged that

University Hospital terminated her employment “in retaliation

for her refusal to accede to conduct she reasonably believed

to be contrary to a clearly expressed public policy relating to

the public health, safety or welfare and/or which she

reasonably believed to be violative or her legal rights or

privileges as a worker” (Aplt. App. 4). See generally Martin

Marietta Corp. v. Lorenz, 823 P.2d 100 (Colo. 1992) (holding

plaintiff had stated claim upon which relief could be granted

based on discharge allegedly for having refused to commit

felony fraud); Rocky Mountain Hosp. and Med. Service v.

Mariani, 916 P.2d 519 (Colo. 1996) (recognizing claim for

C.P.A. who claimed she was discharged for having refused to

engage in allegedly unethical conduct). University Hospital

moved for summary judgment on that claim, arguing, inter

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Plaintiff-Appellant’s Opening Brief

alia, that this claim was barred by the CGIA. The district

court granted that motion on that ground (Aplt. App. 154-58).

In 1971, the Colorado Supreme Court abolished the

doctrine of sovereign immunity. Evans v. Board of County

Comm'rs, 174 Colo. 97, 105, 482 P.2d 968, 972 (1971).

That decision abolished that doctrine prospectively, in order

to provide the Colorado General Assembly with an

opportunity to legislate on this matter before that decision

became effective. 174 Colo. At 105-06, 482 P.2d at 972.

The Colorado General Assembly responded by enacting the

CGIA, §§24-10-101, et seg., C.R.S.

As a political subdivision of the State of Colorado,

§23-21-503(1), C.R.S., University Hospital is subject to the

provision of the CGIA. That statue, which restored the

doctrine of sovereign immunity as a general rule, provides for

a waiver of immunity by a public entity in an action for

injuries resulting from the “operation of any public hospital,

correctional facility ... or jail by such public entity.” §24-10-

106(1)(b), C.R.S. This statute defines the term “operation” to

mean “the act or omission of a public entity or public

employee in the exercise and performance of the powers,

duties, and functions vested in them by law with respect to the

purposes” of that facility. §24-10-103(3)(a), C.R.S.

The district court concluded that the waiver provisions

of the CGAA must be interpreted “in a narrow way rather

than an expansive way” (Aplit. App. 154). The Colorado

Supreme Court has reached the opposite conclusion.

Specifically, it has stated that that statue’s “waiver provisions

are entitled to deferential construction in favor of victims

injured by the negligence of governmental agents, while the

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Plaintiff-Appellant’s Opening Brief

immunity provisions are subject to strict construction.” State

of Colorado v. Nieto, 993 P.2d 493, 506 (Colo. 2000);

Walton v. State of Colorado, 968 P.2d 636, 643 (Colo. 1998).

The Colorado Court of Appeals has held that the CGIA

did not bar a claim by a visitor to a State correctional facility

who was injured when she allegedly slipped and fell on a wet

floor inside the secured visitors’ area of that facility. Flores

v. Colo. Dept. of Corrections, 1999 Colo.App. Lexis 305

(Colo. App. 1999). That court noted:

A purpose of the facility is to confine

persons convicted of crimes safely and

effectively. Visitation assists in safe and

effective confinement by contributing to

offender stability. A visitor program cannot be

implemented without providing a secure place

within the facility for the visitation to occur.

Accordingly, because the purpose of a

correctional facility is to manage convicts

safely and effectively, and visitation within the

facility directly assists in meeting that purpose,

the maintenance of the visitor area within the

custodial facility here is directly related to the

purpose of the correctional facility.

Hence, the provision of a secure area

within the facility for visitation is part of the

operation of a correctional facility as defined

under the GIA.

(/d.) at **6-7 (citations omitted).

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Plaintiff-Appellant’s Opening Brief

The Flores opinion distinguished that court's earlier

decision in Pack v. Arkansas Valley Correctional Facility,

894, P.2d 34, 36-38 (Colo. App. 1995). That decision held

that the maintenance of visitor parking areas for a correctional

facility “is not directly related to the purpose, as distinct from

the operation,” of that facility and “merely is ancillary to the

purpose of the correctional facility.” /d. at 37. That court

concluded that the statutory duties of the Colorado

Department of Corrections, “as they pertain to visitors,

specifically are only to search those admitted to the facility

and to restrict visitors’ entry to the facility except as set forth

by prison rules or special permission,” and thus relate “not to

the visitor but to the purpose of the correctional facility to

confine inmates safely and effectively.” /d.

The district court in this case concluded that this claim

did not arise out of the “operation” of a public hospital, and

therefore was not exempt from the sovereign immunity

provisions of the CGIA. Specifically it concluded “that the

entity in question here could have been a widget factory that

made widgets, and this claim would still be the same and it

really does not go to the true purpose for which the public

hospital was operational” (Aplt. App. 15).

That interpretation was far too narrow. In Flores, the

Colorado Court of Appeals held that the provision of a safe

area for visits with convicts is part of the “operation” of a

correctional facility. It follows that the job of ensuring the

safety of patients, staff and visitors in a public hospital is part

of the “operation” of that hospital. The operation of

University Hospital is not limited just to providing medical

Cale to its patients. It also includes making sure that patients,

staff and visitors are not exposed to radiation, airborne

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Plaintiff-Appellant’s Opening Brief

asbestos fibers and noxious fumes, among other things, and

that the public is not endangered as the result of the improper

storage and disposal of bio-hazardous wastes.

The district court’s decision was erroneous as a matter

of law. This Court should reverse its grant of summary

judgment to University Hospital on Dr. Craven’s public

policy claim and should remand this matter to the district

court for a new trial.

ORAL ARGUMENT STATEMENT

Dr. Craven requests oral argument in this case. Oral

argument would significantly assist the decisional process, by

enabling the parties to provide this Court with a Clear

understanding of the record resulting from the five-day jury

trial and the legal issues involved in this case.

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Plaintiff-Appellant’s Opening Brief

CONCLUSION

For the reasons stated herein, Dr. Craven submits that

this Court should reverse the judgment entered by the district

court on her First Amendment retaliation and public policy

claims, and should remand this cause to the district court for

a new trial on those claims.

Respectfully submitted,

ROSEMAN & KAZMIERSKI, LLC

BARRY D. ROSEMAN

899 Logan Street, Suite 203

Denver, Colorado 80203

303/839-1771

Attorneys for Plaintiff-Appellant

CERTIFICATE OF HAND DELIVERY

The undersigned hereby certifies that, on the twenty-

second day of May, 2000, a true and correct copy of the

above and foregoing Plaintiff-Appellant’s Opening Brief was

hand delivered to:

Thomas S. Rice, Esq.

Sonja S. McKenzie, Esq.

SENTER GOLDFARB & RICE, LLC

400 South Colorado Boulevard, Suite 700

Denver, Colorado 80222

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

Civil Action No. 99-1519

PATRICIA CRAVEN,

Plaintiff-Appellant,

AUTHORITY,

)

UNIVERSITY OF COLORADO HOSPITAL )

)

Defendant-Appellee. )

)

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORDO

THE HONORABLE WILEY Y. DANIEL

DISTRICT COURT JUDGE

DISTRICT COURT CIVIL ACTION NO. 97-D-258

DEFENDANT-APPELLEE’S ANSWER BRIEF

DEFENDANT-APPELLEE REQUESTS ORAL

ARGUMENT

Defendant-Appellee’s Answer Brief

I. ISSUES PRESENTED FOR REVIEW

A. WHETHER, AT TRIAL, THE

DISTRICT COURT PROPERLY

INSTRUCTED THE JURY ON

CRAVEN’S CLAIM FOR

VIOLATION OF HER _ FIRST

AMENDMENT RIGHTS.

B. WHETHER, ON SUMMARY

JUDGMENT, THE DISTRICT

COURT PROPERLY DISMISSED

CRAVEN’S TORT CLAIM FOR

WRONGFUL DISCHARGE IN

VIOLATION OF PUBLIC POLICY

ON THE BASIS OF SOVEREIGN

IMMUNITY UNDER THE

COLORADO GOVERNMENTAL

IMMUNITY ACT.

Il. STATEMENT OF THE CASE

Appellant Patricia Craven (hereinafter “Craven”) filed

the subject action in the, District Court for the City and

County of Denver, State of Colorado, on November 8, 1996

asserting claims for breach of implied contract, promissory

estoppel, a § 1983 claim for violation of her First Amendment

constitutional rights, and wrongful discharge in violation of

public policy. [Appendix, pp. 1-6']. Subsequently, as a

result of the federal question claim asserted by Craven, this

' Plaintiff-Appellant’s Appendix will be referred to as

Appendix throughout this brief.

66a

Defendant-Appellee’s Answer Brief

case was removed to the United States District Court for the

District of Colorado. (Appendix, p. 407]. After the

completion of factual discovery, Appellee, University of

Colorado Hospital Authority (hereinafter “University

Hospital”), filed a Motion for Summary Judgment asking the

District Court to dismiss all Craven’s claims. [Appendix, pp.

15-66]. The District Court partially granted the Motion for

Summary Judgment only with respect to Craven’s claim for

wrongful discharge based on violation of public policy

(Appendix, p. 155, Il. 5-13] and denied the Motion with

respect to Craven's claims for breach of implied contract and

promissory estoppel [Appendix, Pp. 155, 1. 16}, as well as with

respect to Craven’s claim for violation of her First

Amendment rights under 42 U.S.C. § 1983. [Appendix, p.

158, Il. 15-24.] Thus, this case proceeded to trial on

Craven’s claims for breach of implied contract and her § 1983

claim for violation of her constitutional rights.’

On May 17, 1999, the jury returned a verdict in favor

of University Hospital and against Craven on both her breach

of implied contract and § 1983 claims. [Appendix, pp. 365-

367.] Subsequently, on June 3, 1999, Craven filed a Motion

for New Trial or, in the Alternative, to Amend or Alter the

Judgment. [Appendix, pp. 368-379.] After said Motion as

briefed by the parties, the District Court entered its Order

> Craven's Promissory estoppel claim was also remaining at the

time of trial. However, since it was an equitable claim, the district

court took that claim under advisement until the jury had reached

its decision in regard to the other remaining claims. The District

Court subsequently also entered judgment in favor of University

Hospital with regard to the promissory estoppel claim. Because

Craven is not appealing any aspect of that latter claim, it will not be

further addressed herein.

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Defendant-Appellee’s Answer Brief

dated October 15, 1999 denying that post-trial motion.

[Appendix, pp. 397-403.] This appeal ensued.’ LAppenem.,

pp. 404-405. }

Ii, STATEMENT OF THE F

The subject action is an employment dispute arising

out of Craven’s employment as a Manager of Safety and Risk

Management for University Hospital from Mach 21, 1994

through November 8, 1994. [Appendix, p. 181, ll. 9-11; and

p. 344]. Craven’s performance problems began just weeks

after she was hired in May of 1994 when Craven behaved

inappropriately at a meeting held to discuss methods for

addressing complaints concerning fumes allegedly generated

by a construction project. [Appendix II, p. 8, 1. 19 - p. 10,

l. 18; and p. 26, 1. 24 - p. 30, 1. 11.4] As a result of

Craven’s conduct at the subject meeting, Craven’s supervisor,

Ann Jones, Ph.D., issued Craven a written warning letter

dated May 24, 1994. [Appendix, pp 348-349.] Craven’s

performance difficulties continued, and on June 1, 1994, Dr.

Jones issued a second written warning, again addressing

Craven’s non-professional approach to problem-solving.

[Appendix, pp. 345-47.] In particular, Dr. Jones noted “.:.1

have observed on several occasions that you still lack the

ability to act as a team member in a collegial environment and

find workable solutions to safety and facility issues.”

[Appendix, p. 345.] Subsequently, Craven’s line of

supervision was changed from Dr. Jones to Ruth Sens, the

> Craven has not appealed any aspect of the jury’s verdict with

respect to her breach of implied contract claim.

* Defendant-Appellee’s Appendix will be referred to as Appendix

II throughout this brief.

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Defendant-Appellee’s Answer Brief

Director of Quality Management at University Hospital.

[Appendix, p. 200, ll. 1-10; and Appendix II, p. 4, Il. 6-7.]

Even after Ms Sens became Craven’s supervisor,

Craven’s performance problems continued. [Appendix, II, p.

12, 1. 22-p. 13,1. 10.] Specifically, Craven had personality

conflicts with some employees and had difficulties interacting

with other employees at University Hospital. [Appendix II,

p. 14,1. 7-p. 18,1. 11.) There were ongoing problems with

the manner in which Craven raised safety issues with others.

[Appendix II, p. 19, Il. 3-7.}

The difficulties in interpersonal actions culminated in

Craven directly contacting Dr. Robert Hendrick to discuss her

concerns about Dr. Timothy Johnson as a Radiation Safety

Officer, in direct contravention to Ms. Sens’ advice.

[Appendix II, p. 20, 1. 7 - p. 22, 1. 4.] Asa result of these

unresolved performance problems, Ms. Sens decided to

terminate Craven due to her lack of trust and confidence in

Craven, due to Craven’s insubordination, and due to Craven’s

lack of professionalism. [Appendix II, p. 23, |. 18 - p. 24,

ll. 3.] The fact that Craven raised questions about Dr.

Johnson’s performance as a Radiation Safety Officer did not

play any role in Ms. Sens’ decision to terminate Craven:

rather, Ms. Sens’ concern was solely the manner in which

these questions were raised. [Appendix II, p. 25, ll. 9-18.]

As a result of her termination, Craven filed the subject

civil action from which this appeal then followed. Craven

Claimed that she was terminated because she spoke out about

Safety issues, and alleged that a termination under such

circumstances violated her First Amendment rights. Craven

further claimed that a termination under such circumstances

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Defendant-Appellee’s Answer Brief

constituted wrongful discharge in violation of public policy.

A review of the District Court record demonstrates that the

District Court did not commit error in giving Jury Instruction

No. 22, nor in granting University Hospital’s Motion for

Summary Judgment on Craven’s tort claim for wrongful

discharge based on public policy. [Appendix, pp. 362-363.]

As such, this Court should uphold the judgment entered in

favor of University Hospital.

IV. SUMMARY OF ARGUMENT

The District Court properly instructed the jury on

Craven’s 42 U.S.C. § 1983 claim for violation of her First

Amendment rights as the instruction given correctly stated the

law. Additionally, objections now made by Craven to the

instruction given by the District Court were not raised at trial

and thus, have been waived. Craven also failed to tender

alternative instructions which correctly stated the law. The

only instruction tendered by Craven relating to this § 1983

claim [Appendix, p. 364] was not a correct statement of the

law. : |

The District Court also properly granted University

Hospital’s Motion for Summary Judgment on Craven’s tori

claim for wrongful discharge based on public policy, applying

the doctrine of sovereign immunity. Specifically, Craven

failed to establish on summary judgment that her tort claim

fell within any of the exceptions to sovereign immunity under

the Colorado Governmental Immunity Act. As such, the

underlying decisions of the District Court should be upheld on

appeal.

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Defendant-Appellee’s Answer Brief

V. ARGUMENT

A. STANDARD OF REVIEW FOR’ JURY

INSTRUCTIONS.

“An error in jury instructions will mandate

reversal...only if the error is determined to have been

prejudicial after reviewing the record as a whole.” Rios v.

Bigler, 67 F.3d 1543, 1549 (10" Cir. 1995). Jury instructions

must be viewed as a whole to determine whether they

properly stated the applicable law and provided an ample

understanding of the applicable standards. Dillard & Sons

Constr., Inc., v. Burnup & Sims Comtec, Inc., 51 F.3d 910,

915 (10" Cir. 1995); Rios, supra. The instructions need not

be entirely free from fault, but they may not serve to mislead

the jury in any way. Dillard, supra. Thus, no new trial is

required where the jury instructions given correctly state that

applicable law. Dillard, supra.

B. THE JURY INSTRUCTIONS GIVEN BY THE

DISTRICT COURT FOR CRAVEN’S _ FIRST

AMENDMENT CLAIM WERE PROPER.

One of Craven’s claims at the time of trail was a 42

U.S.C. § 1983 claim for violation of her First Amendment

rights. Consequently, the District Court and the parties had

to craft an instruction setting forth the elements of that claim,

including the element of government entity liability and

University Hospital’s affirmative defense. The resulting

product was Instruction No. 22. [Appendix, p. 362-63.]

Craven made some objections to Instruction No. 22 at

trial [Appendix II, p. 32, 1. 19 - p. 46, |. 1; and p. 47, 1. 3 -

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Defendant-Appellee’s Answer Brief

p. 60, 1. 11], and in fact, tendered an alternative Instruction

- Craven’s tendered Instruction No. 2 [Appendix, p. 364] -

which was rejected by the District Court. [Appendix II, p.

45, 1. 1 - p. 46, 1. 1; and p. 58, Il. 2-10]. Specifically,

Craven is critical of Instruction No. 22 because of its alleged

failure to correctly define liability against University Hospital

as a government entity. Craven also complains that the

District Court failed to define the term “official policy or

custom.” Finally, Craven criticizes the factual components of

Instruction No. 22. All of these complaints lack merit.

The District Court properly instructed the jury on

Plaintiff's § 1983 claim for violation of her First Amendment

rights; thus, the jury’s verdict should stand. The leading 10"

Circuit decision describing the analysis to be employed with

response to First Amendment retaliation claims is Gardetto v.

Mason, 100 F.3d 803, 811 (10" Cir. 1996). Indeed, that very

analysis was employed by the District Court in crafting the

disputed Instruction No. 22 in this case and the holdings of

that case have been included in the language of the disputed

instruction. [Appendix II, p. 6, 1. 5 - p. 7, 1. 6; and

Appendix, pp. 362-63]. Thus, the instruction sets forth the

applicable test.

Additionally, the leading decision describing the

circumstances in which governing bodies can be sued under

42 U.S.C. § 1983 is Monell v. Department of Soc. Serv., 436

U.S. 658, 98 S. Ct. 2018, 56 L. Ed.2d 611 (1978). In that

case, the United States Supreme Court held that the

prerequisite for such a claim under § 1983 was the existence

of an unconstitutional official policy or custom. Monell, 436

U.S. at 2036. As paragraph 4 of Instruction No. 22 given by

the District Court mirrored this standard, the jury instruction

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Defendant-Appellee’s Answer Brief

properly and adequately set forth the applicable law.

Moreover, even Craven herself does not dispute that Monell

States the proper standard for liability under § 1983.

[Appendix II, p. 37, Il. 3-7.] -

Further, the given Instruction No. 22 was consistent

with the evidence presented by Craven at trial, namely, that

University Hospital had an official policy or custom requiring

her to report all health and safety concerns only to her

Supervisors. [Appendix, p. 200, Il. 12-22; and Appendix II,

p. 11, ll. 16-19.] Thus, in addition to stating the applicable

law, the instruction was consistent with at least one theory of

the case developed through the evidence presented by Craven.

Accordingly, there was no prejudice to Craven in the giving

of Instruction No. 22 to the jury.

Craven argues that the District Court should have

accepted her proposed version of subject instruction,

designated as Craven’s tendered Instruction No. 2 [Appendix,

p. 364], as a substitute for the version given by the District

Court. However, Craven’s tendered instruction is, itself, not

a correct statement of the law and, accordingly, would have

constituted error. Craven’s tendered instruction eliminated

the element of establishing an unconstitutional custom or

policy. Instead, that instruction only required that a final

policymaker make the decision to terminate Craven or

approve a subordinate’s decision and the basis for it. Those

findings alone are insufficient to establish § 1983 liability.

Specifically, as the United State Supreme Court has held,

every decision by a government official does not automatically

subject a government entity to § 1983 liability. Pembaur v.

City of Cincinnati, 475 U.S. 469, 106 S. Ct. 1292, 1299, 89

L. Ed.2d 452 (1986).

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Defendant-Appellee’s Answer Brief

In rejecting Craven’s tendered instruction, the District

Court specifically found that one method of establishing an

official policy or custom was through a decision made by a

final policymaker; however, there must still be a finding of

policy through a single action. [Appendix II, p. 57, ll. 8-16).

See City of St. Louis v. Praprotnick, 485 U.S. 112, 108 S. Ct.

915, 924, 99 L. Ed.2d 107 (1988). Since Craven’s tendered

instruction eliminated this element, it was properly rejected by

the District Court as an incorrect statement of law, and also

as an unbalanced instruction. [Appendix II, p. 45, |. 1 - p.

46, 1. 1; and p. 58, Il. 2-10.]

An additional defect in Craven’s tendered instruction

is that it instructs jurors that a mere approval by a

policymaker of a decision to terminate Craven is sufficient to

satisfy the fourth element of the instruction. It included no

requirement that the basis for the termination be

unconstitutional or unlawful. The lack of any such

requirement was also not a proper statement of the law. See,

Pembaur, 106 S. Ct. at 1300 (where the United States

Supreme Court held that governmental liability can attach to

a single decision if it results in unlawful action by a final

policymaker.).

Moreover, the evidence presented by Craven at trial

did establish that any University Hospital employee with final

policy-making authority approved any unconstitutional or

unlawful bases for terminating Craven. Rather than meeting

this requirement, Craven suggested that the mere approval of

her termination was an approval of unconstitutional activity.

Such evidence is insufficient to meet Craven’s burden in

proving a violation of her constitutional rights, particularly

since the exercise of a discretionary function alone by a final

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Defendant-. .»° llee’s Answer Brief

policymaker is insufficient to establish § 1983 liability.

Pembaur, 106 S. Ct. at 1299. Accordingly, this additional

reason further justifies the District Court’s refusal to utilize

Craven’s tendered Instruction No. 2, as it did not comport

with the evidence presented by Craven, nor the applicable

law.

Craven also finds fault with the submitted version of

Instruction No. 22 as it did not define “official policy or

custom” Under Fed.R.Civ.P. 51, “[nJo party may assign as

error the giving or failure to give an instruction unless that

party objects thereto before the jury retires to consider its

verdict, stating distinctly the matter objected to and the

grounds of the objection.” Where the party fails to

specifically object at trial to a defect in a jury instruction, that

party waives its right to claim error in the jury instructions.

Unit Drilling Co. v. Enron Oil & Gas Co., 108 F.3d 1186,

1190 (10 Cir. 1997).

At no time during the various jury instruction

conferences at trial in this case did Craven object to

Instruction No. 22 on the basis that the District Court failed

to provide a definition of an official policy or custom.

[Appendix II, p. 5, 1. 11 - p. 7, 1. 20; p. 32, 1. 19 - p. 46, 1;

and p. 47, 1. 3 - p. 60, 1. 11.] More significantly, Craven

failed to even tender a proposed instruction to the District

Court defining the term official policy or custom.* Since none

> Craven only tendered three instructions at trial which were

refused. [Appendix II, p. 31, Il. 19-21; p. 37, Il. 16-25; and p. 44,

1. 9 - p. 46, 1. 1; and p. 61, 1. 4 - p. 63, 1. 6.] None of the

tendered alternative instructions included a definition of official

policy or custom. [Appendix, p. 364 and Appendix II, pp. 64-65.]

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Defendant-Appellee’s Answer Brief

of the instructions tendered by Craven contained a definition

of the term official policy or custom, Craven waived this

particular objection to Instruction No. 22 under the Unit

Drilling decision.

Craven also questions paragraph 4 of Instruction No.

22 on the basis that the District Court improperly submitted

a question of law to the jury. Since the necessary element

under the Monell decision is the existence of an

unconstitutional official policy or custom, paragraph 4

properly stated the law; as such, this instruction was not

prejudicial to Craven. Secondly, the case law cited by

Craven, é.g., Dillard, supra, does not stand for the

proposition that a trial court may not submit the issue of the

unconstitutionality of the official policy or custom to the jury.°

Thus, Craven has failed to cite any case law in support of this

argument. Moreover, as Craven also failed to raise this issue

at trial [Appendix II, p. 5, 1. 11 - p. 7, 1. 20; p. 32, 1. 19 -p.

46, 1. 1; and p. 47, 1. 3 - p. 60, 1. 11], she has waived the

right to object to this error. Unit Drilling, supra.

Craven also criticizes paragraphs | and 3 of Instruction

No. 22 based on her desire to have that instruction include a

wider range of speech activities. In particular, Craven argues

that her speech concerning indoor air quality problems and the

disposal of biohazardous waste should also have been included

in the instruction. However, Craven’s Opening Brief fails to

direct this Court to evidence in the record supporting such an

instruction. Craven also failed to raise this issue on the

record at the time of the jury instruction conferences.

® Rather, Dillard stands for the general proposition that a District

Court errs in submitting a question of law to the jury.

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Defendant-Appellee’

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