Elder v. Williams

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ADVANCE SHEET HEADNOTE
December 21, 2020
2020 CO 88No. 19SC1009 Elder v. Williams—Civil Rights—Employment Practices—
Governmental Immunity—Statutory Construction.
This case principally requires the supreme court to decide whether claims
against a governmental entity for compensatory relief under the Colorado
Anti-Discrimination Act (“CADA”), section 24-34-405, C.R.S. (2020), are barred by
operation of the Colorado Governmental Immunity Act (“CGIA”), section
24-10-106, C.R.S. (2020). The court is also asked to decide whether subsection
24-34-405(8)(g) of CADA, which allows for compensatory damages against “the
state,” should be read to include political subdivisions of the state of Colorado and
whether front pay is compensatory in nature, lies in tort, and is therefore barred
by the CGIA.
The court now concludes that (1) claims for compensatory relief under
CADA are not claims for “injuries which lie in tort or could lie in tort” for purposes
of the CGIA and therefore public entities are not immune from CADA claims
under the CGIA; (2) “the state,” as used in subsection 24-34-405(8)(g), includes
political subdivisions of the state and thus political subdivisions are not immune
from claims for compensatory damages based on intentional unfair or
discriminatory employment practices; and (3) front pay is equitable and not
compensatory in nature under CADA, and age discrimination and retaliation
claims seeking front pay do not lie and could not lie in tort for CGIA purposes.
The court therefore affirms the judgment of the division below.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2020 CO 88Supreme Court Case No. 19SC1009
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 18CA1987
Petitioners:
Bill Elder, as Sheriff of El Paso County, Colorado; and
El Paso County Sheriff’s Office,
v.
Respondent:
Timothy Williams.
Judgment Affirmed
en banc
December 21, 2020
Attorney for Petitioners:
Bryan E. Schmid, Senior Assistant County Attorney
Colorado Springs, Colorado
Attorneys for Respondent:
Livelihood Law, LLC
Rachel E. Ellis
Euell B. Thomas
Denver, Colorado
Attorneys for Amicus Curiae Colorado Plaintiff Employment Lawyers
Association:
Cornish & Dell’Olio, P.C.
Ian D. Kalmanowitz
Bradley J. Sherman
Colorado Springs, Colorado
JUSTICE GABRIEL delivered the Opinion of the Court.
JUSTICE MÁRQUEZ dissents, and CHIEF JUSTICE COATS and JUSTICE
BOATRIGHT join in the dissent.
2
¶1 This case requires us to address the interplay between two statutes—the
Colorado Anti-Discrimination Act (“CADA”), section 24-34-405, C.R.S. (2020), and
the Colorado Governmental Immunity Act (“CGIA”), section 24-10-106, C.R.S.
(2020)—each of which serves substantial public policy objectives. In particular, we
must resolve three issues of apparent first impression for this court. First, we must
decide whether claims against a governmental entity for compensatory relief
under CADA are barred by operation of the CGIA. This, in turn, requires us to
determine whether CADA claims for compensatory relief “lie in tort or could lie
in tort” for purposes of the CGIA because if they do, then governmental entities
would be immune under the CGIA from such claims. Second, we must decide
whether subsection 24-34-405(8)(g) of CADA, which allows for compensatory
damages against “the state,” should be read to include political subdivisions of the
state of Colorado. And finally, we must decide whether front pay is compensatory
in nature, lies in tort, and is therefore barred by the CGIA.1
1 Specifically, we granted certiorari to review the following issues:
1. Whether the Colorado Governmental Immunity Act bars an
employee’s claim seeking compensatory relief against a
governmental entity under section 24-34-405, C.R.S. (2019) of the
Colorado Anti-Discrimination Act.
2. Whether section 24-34-405(8)(g), C.R.S. (2019), exempts public
sector employers that are a political subdivision, commission,
3
¶2 We now conclude that (1) claims for compensatory relief under CADA are
not claims for “injuries which lie in tort or could lie in tort” for purposes of the
CGIA and therefore public entities are not immune from CADA claims under the
CGIA; (2) “the state,” as used in subsection 24-34-405(8)(g), includes political
subdivisions of the state and thus political subdivisions are not immune from
claims for compensatory damages based on intentional unfair or discriminatory
employment practices; and (3) front pay is equitable and not compensatory in
nature under CADA, and age discrimination and retaliation claims seeking front
pay do not lie and could not lie in tort for CGIA purposes.
¶3 Accordingly, we affirm the judgment of the division below.
department, institution, or school district of the state from
compensatory damages for an intentional unfair or discriminatory
employment practice under the Colorado Governmental
Immunity Act, §§ 24-10-101 to -120, C.R.S. (2019).
3. Whether front pay damages for claims that sound in tort are
compensatory in nature and therefore excluded from age
discrimination claims pursuant to section 24-34-405(3)(g), C.R.S.
(2019), and retaliation claims pursuant to section 24-34-405(8)(g),
C.R.S. (2019).
4
I. Facts and Procedural History
¶4 Because the matter before us arises from an order on a motion to dismiss
Timothy Williams’s claims, for purposes here, we take the facts from the
allegations of Williams’s complaint.
¶5 Williams began working at the El Paso County Sheriff’s Office in 2002 and,
after multiple promotions over the course of his career, reached the rank of
lieutenant. In March 2016, Sheriff Bill Elder ordered a mandatory survey
requesting, among other things, retirement eligibility dates from all employees.
Williams, who then would have been eligible for full retirement benefits on June 1,
2018, completed this survey and reported that he expected to retire within the next
five years.
¶6 Thereafter, Williams was assigned to a team that conducted investigations
into alleged misconduct by personnel in his office. Apparently, Sheriff Elder was
unhappy with Williams’s investigation and the sanctions that Williams
recommended, and he confronted Williams in a meeting about it. In this same
meeting, Sheriff Elder went on to criticize Williams’s job performance and
indicated that Williams should be concerned about his job security. Then, several
days later, Sheriff Elder held a lengthy lieutenants’ meeting, at which he
demanded that all employees, including Williams, “step up or step out” and
5
stated, “[I]f you can’t cut it then check out.” Sheriff Elder allegedly looked at
Williams when he made this last statement.
¶7 A few days later, Sheriff Elder demoted Williams to the rank of senior
deputy, a significant change in rank, pay, and duties that resulted in substantial
adverse retirement benefit consequences for Williams. To avoid these
consequences, Williams retired the following day, ultimately to be replaced by a
younger and purportedly less qualified employee.
¶8 Based on the foregoing events, Williams filed age discrimination and
retaliation charges against the El Paso County Sheriff’s Office with the Colorado
Civil Rights Division and the Equal Employment Opportunity Commission (for
convenience, we will refer to Sheriff Elder and his office collectively as the
“Sheriff’s Office”).
¶9 While these discrimination charges were pending, the Sheriff’s Office
received and responded to a Colorado Open Records Act request for certain
documents. In its response, the Sheriff’s Office stated that Williams had been
responsible for the requested documents but when he retired, he had removed
items from his office and the documents in question could not be located. Williams
claimed that this response, which was publicly available, was false and amounted
to a public shaming for Williams’s having filed discrimination charges against the
Sheriff’s Office.
6
¶10 The Colorado Civil Rights Division ultimately issued a Notice of Right to
Sue, and Williams filed a complaint against the Sheriff’s Office in the El Paso
County District Court, alleging claims of age discrimination and retaliation under
CADA, section 24-34-402, C.R.S. (2020). In his complaint, Williams demanded
judgment for any and all damages permissible by law, including, as pertinent here,
front pay and compensatory damages.
¶11 The Sheriff’s Office moved to dismiss, arguing, among other things, that
Williams’s claims for front pay and compensatory damages under CADA lie in
tort and therefore are barred by the CGIA. Specifically, the Sheriff’s Office argued
that although prior case law from this court had concluded that CADA claims
were not subject to the CGIA, this case law was announced before the General
Assembly amended CADA to include front pay and compensatory damages and
was therefore inapposite. Instead, the Sheriff’s Office contended that because front
pay and compensatory damages claims arise out of conduct that is either tortious
in nature or that constitutes the breach of a duty recognized in tort law, and
because such claims seek relief in the form of compensation for injury, these claims
lie in tort or could lie in tort for CGIA purposes and are therefore barred. The
Sheriff’s Office further argued that any claim for compensatory damages
associated with Williams’s alleged age discrimination claim must be dismissed
under the plain language of subsection 24-34-405(3)(g), which limits a plaintiff’s
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recovery for age discrimination claims to equitable relief under CADA and to the
relief prescribed by federal law.
¶12 The district court ordered supplemental briefing on whether CADA’s more
recently available remedies for front pay and compensatory damages lie in tort
and thus are barred under the CGIA. Williams responded that (1) front pay is an
equitable remedy under both the plain language of subsection 24-34-405(2) and
federal case law interpreting Title VII and (2) when reading CADA’s remedies
provisions as a whole, an award of compensatory damages is permitted under that
statute and is not subject to the CGIA. The Sheriff’s Office replied that (1) whether
front pay is considered equitable relief is not dispositive of whether a claim lies in
tort and is thus subject to the CGIA; (2) all claims for compensatory damages lie in
tort and are subject to the CGIA; and (3) Williams’s compensatory damages and
front pay claims alleged elements that are common to multiple intentional torts.
Thus, the Sheriff’s Office asserted that all of Williams’s claims were barred by the
CGIA.
¶13 The district court ultimately agreed with Williams and denied the Sheriff’s
Office’s motion to dismiss. In so concluding, the district court observed that front
pay under CADA is an equitable remedy and under this court’s prior case law,
claims for equitable relief are not claims for injuries that lie in tort or could lie in
tort and thus are not barred by the CGIA. The court likewise concluded that
8
Williams’s claims for compensatory damages for age discrimination and
retaliation under CADA were not barred by the CGIA. In the court’s view, reading
CADA’s remedies provisions as a whole, a consistent and sensible reading permits
the recovery of such damages against the state and other public entities.
¶14 The Sheriff’s Office appealed, and, in a unanimous, published decision, a
division of the court of appeals affirmed in part and reversed in part. Williams v.
Elder, 2019 COA 172, __ P.3d __. As pertinent here, the division agreed that
Williams’s claims for front pay and for compensatory damages based on
retaliation could proceed. Id. at ¶¶ 21–29. The division, however, concluded that
under the express language of subsection 24-34-405(3)(g), Williams could not
recover compensatory damages in connection with his age discrimination claim.
Williams, ¶¶ 12–20, 29.
¶15 The Sheriff’s Office petitioned this court for certiorari, and we granted that
petition.
II. Analysis
¶16 We begin by setting forth the applicable standards relating to statutory
interpretation. We then proceed to discuss the relationship between CADA and
the CGIA, ultimately concluding that a claim brought pursuant to CADA does not
and could not lie in tort and is therefore not barred by the CGIA. Next, we consider
whether the language of subsection 24-34-405(8)(g) evinces a legislative intent to
9
bar, under the CGIA, compensatory damages claims against a political subdivision
of the state, and we conclude it does not. Last, we address whether claims for front
pay under CADA are compensatory in nature and lie in tort, and are therefore
barred by the CGIA. We conclude that they are not and that Williams may
therefore pursue his claims for front pay.
A. Applicable Legal Standards
¶17 We review questions of statutory interpretation de novo. Dep’t of Revenue v.
Agilent Techs., Inc., 2019 CO 41, ¶ 16, 441 P.3d 1012, 1016.
¶18 In construing a statute, we seek to ascertain and give effect to the General
Assembly’s intent. Id. In doing so, we apply words and phrases in accord with
their plain and ordinary meanings. Id. In addition, we look to the entire statutory
scheme in order to give consistent, harmonious, and sensible effect to all of its
parts, and we avoid constructions that would render any words or phrases
superfluous or that would lead to illogical or absurd results. Id. If the statute is
unambiguous, then we apply it as written and need not resort to other rules of
statutory construction. Id. If the statute is ambiguous, however, then we may look
to the legislature’s intent, the circumstances surrounding the statute’s adoption,
and the possible consequences of different interpretations to determine the
statute’s proper construction. Colo. Oil & Gas Conservation Comm’n v. Martinez,
10
2019 CO 3, ¶ 19, 433 P.3d 22, 28. A statute is ambiguous when it is reasonably
susceptible of multiple interpretations. Id.B. CADA Claims Do Not Lie in Tort
¶19 The Sheriff’s Office contends that employment discrimination claims
seeking compensatory damages pursuant to section 24-34-405 of CADA lie or
could lie in tort and that the CGIA bars such claims when asserted against
governmental entities. We are not persuaded.
¶20 The CGIA provides, in pertinent part, “A public entity shall be immune
from liability in all claims for injury which lie in tort or could lie in tort regardless
of whether that may be the type of action or the form of relief chosen by the
claimant,” subject to exceptions not pertinent here. § 24-10-106(1). The CGIA’s
legislative declaration of policy makes clear that one of the CGIA’s purposes is to
protect the state and its political subdivisions from unlimited financial liability
because “the state and its political subdivisions provide essential public services
and functions” and “unlimited liability could disrupt or make prohibitively
expensive the provision of such essential public services and functions.”
§ 24-10-102, C.R.S. (2020). In addition, we note that because the CGIA derogates
Colorado’s common law, we must strictly construe its immunity provisions but
broadly construe its waiver provisions. Smokebrush Found. v. City of Colo. Springs,
2018 CO 10, ¶ 22, 410 P.3d 1236, 1240.
11
¶21 In deciding whether a claim lies or could lie in tort, we have made clear that
the form of the complaint is not determinative. Robinson v. Colo. State Lottery Div.,
179 P.3d 998, 1003 (Colo. 2008). Instead, we consider both the nature of the injury
and the relief sought. Id.¶22 With respect to the nature of the injury, we have said, “When the injury
arises either out of conduct that is tortious in nature or out of the breach of a duty
recognized in tort law, and when the relief seeks to compensate the plaintiff for
that injury, the claim likely lies in tort or could lie in tort for purposes of the CGIA.”
Id. We have further stated that the CGIA “encompasses all claims against a public
entity arising from the breach of a general duty of care, as distinguished from
contractual relations or a distinctly non-tortious statutorily-imposed duty.” Colo.
Dep’t of Transp. v. Brown Grp. Retail, Inc., 182 P.3d 687, 691 (Colo. 2008).
¶23 With respect to the relief sought, we have opined that the nature of the relief
requested is not dispositive as to whether a claim lies in tort, although it may
inform our understanding of the nature of the injury and the duty allegedly
breached. Robinson, 179 P.3d at 1003. This is particularly true in the case of a
statutory claim without origins in common law in which, for example, the
legislature intended to address constitutionally based concerns of equality rather
than compensation for personal injuries. Id. at 1006; see also Brown Grp. Retail,
182 P.3d at 690 (noting that “we have distinguished some statutorily created
12
duties, despite their general and non-contractual nature, on the basis of their broad
policy rather than compensatory goals”).
¶24 CADA is just such a statutory claim. CADA derives from the Colorado Civil
Rights Act (“CRA”), which the legislature enacted in 1963 and which created a
statutory duty prohibiting employers from engaging in a variety of discriminatory
employment practices. See ch. 177, sec. 3, § 80-24-6, 1963 Colo. Sess. Laws 625,
627–28; § 24-34-402. Neither the CRA nor CADA has origins in the common law.
Nor do claims under these statutes arise from the breach of a general duty of care.
Rather, “the legislature adopted these anti-discrimination provisions to fulfill the
‘basic responsibility of government to redress discriminatory employment
practices on the basis of race, creed, color, sex, age, national origin, or ancestry.’”
City of Colo. Springs v. Conners, 993 P.2d 1167, 1174 (Colo. 2000) (quoting in part
Colo. C.R. Comm’n ex rel. Ramos v. Regents of the Univ. of Colo., 759 P.2d 726, 731
(Colo. 1988)). Accordingly, the CRA and CADA were “not designed primarily to
compensate individual claimants but rather to eliminate discriminatory practices
as defined by [those statutes].” Id. As a result, any benefits to an individual
claimant resulting from a claim under CADA (and under the CRA before it) are
“merely incidental” to those statutes’ greater purposes of eliminating workplace
discrimination. See Brooke v. Rest. Servs., Inc., 906 P.2d 66, 71 (Colo. 1995); Agnello v.
Adolph Coors Co., 689 P.2d 1162, 1165 (Colo. App. 1984).
13
¶25 Several provisions of CADA reinforce our view of its non-compensatory
purpose. For example, subsection 24-34-405(3)(d) provides for a capped damages
structure that, in conjunction with the damages available under Title VII, limits
compensatory damages awards based on the size of the employer and the
egregiousness of the intentional discriminatory or unfair employment practice, not
based on the claimant’s injury. See § 24-34-405(3)(d); 42 U.S.C. § 1981a(b)(3) (2018).
This statutory scheme confirms CADA’s focus on discriminatory or unfair
employment practices, and not on ensuring full compensation for claimants.
¶26 In addition, in our view, CADA’s provision allowing a prevailing plaintiff
to recover reasonable attorney fees effectively creates a mechanism by which
claimants act as private attorneys general, seeking to vindicate the rights secured
by CADA. Subsection 24-34-405(5) authorizes a court to award attorney fees to all
prevailing plaintiffs but restricts awards of defense fees and costs to cases in which
the plaintiff’s claims are found to be frivolous, groundless, or vexatious. Such a
structure encourages private actions that are more akin to civil prosecutions in the
public interest of eliminating employment discrimination than to actions designed
primarily to compensate an individual for personal injury. See Gudenkauf v.
Stauffer Commc’ns, Inc., 158 F.3d 1074, 1081 (10th Cir. 1998) (noting that (1) under
Title VII’s private enforcement provisions, individual Title VII litigants act as
private attorneys general; (2) it is in society’s interest to ensure that equality of
14
opportunity in the workplace is not undermined by unlawful discrimination; and
(3) even small victories advance that interest).
¶27 For these reasons, we conclude that CADA claims derive from statutory
duties designed to implement the broad policy of eliminating intentional
discriminatory or unfair employment practices, rather than to compensate an
individual for personal injuries. Accordingly, CADA claims do not and could not
lie in tort, and Williams’s claims under CADA are not barred by the CGIA.
¶28 In so concluding, we acknowledge that our decision in Conners, the viability
of which no party in this case has challenged, appears to have engendered some
confusion in the aftermath of the 2013 amendments to CADA. We, however, see
no inconsistency between that case and the case now before us.
¶29 In Conners, 993 P.2d at 1168, we addressed the question of whether claims
for non-compensatory equitable relief under CADA’s predecessor, the CRA, were
claims for injuries that lie in tort or could lie in tort for purposes of the CGIA. We
concluded that they were not, distinguishing between actions seeking
compensatory damages for personal injuries and those in which any benefits to an
individual claimant are incidental to the CRA’s greater purpose of eliminating
workplace discrimination. Id. at 1173–74.
¶30 Notwithstanding the Sheriff’s Office’s assertion to the contrary, our
discussion in Conners was not so narrow as to address solely claims for equitable
15
relief. Rather, Conners is properly understood as more broadly addressing a
statute with no foundation in common law that principally served a societal
purpose of eliminating workplace discrimination. It was in this context that we
concluded that claims under the CRA were not barred by the CGIA, and we apply
the same analysis and reach the same conclusion here.
¶31 In reaching this conclusion, we are not persuaded by the Sheriff’s Office’s
contention that the 2013 amendments to CADA changed the focus of that statute
such that claims brought under it (including equitable claims) now lie or could lie
in tort for CGIA purposes. Contrary to the Sheriff’s Office’s position, we perceive
nothing in the 2013 amendments suggesting a legislative intent to alter CADA’s
fundamental purpose of eliminating workplace discrimination and to substitute a
regime focused on compensation for claimants. Nor do we perceive anything in
those amendments signaling a legislative intent to override our decision in Conners
and to bring CADA claims within the immunity afforded by the CGIA. To the
contrary, we read the legislature’s inclusion in the amendments of the private
enforcement and capped damages provisions discussed above as reflecting the
legislature’s desire to advance CADA’s central purpose of eliminating workplace
discrimination while, at the same time, including within CADA itself provisions
protecting public entities from unlimited financial liability, which, as noted above,
is one of the CGIA’s purposes.
16
¶32 Nor are we persuaded by the Sheriff’s Office’s argument that by referring to
the CGIA in subsection 24-34-405(8)(g) of CADA, the General Assembly intended
to signal that a CADA claim is a tort covered by the CGIA and that CGIA
immunity should be waived, but only as to the state and not any of its political
subdivisions. The Sheriff’s Office has cited no authority or legislative history
supporting such a premise, and we have seen no such authority or history.
Accordingly, we are unwilling to infer such a legislative intent. Were we to infer
any legislative intent from the statutory language, however, it would be solely that
the legislature sought to ensure consistency with our ruling in Conners (which
concluded that remedies under CADA’s predecessor statute were not barred by
the CGIA) while at the same time seeking to ensure governmental immunity from
punitive damages claims. See § 24-34-405(3)(b)(I).
¶33 Finally, we are unpersuaded by the Sheriff’s Office’s argument that federal
case law interpreting Title VII suggests that claims brought under CADA lie or
could lie in tort. As an initial matter, we note that the federal case law on which
the Sheriff’s Office relies does not address CADA or its intent, nor does any of such
case law contradict our understanding of CADA’s central purpose of eliminating
workplace discrimination. Moreover, although some federal cases at times refer
to Title VII claims as statutory torts, other cases focus on Title VII’s overriding
purpose of promoting equality and prohibiting wrongful discrimination in the
17
workplace, analyzing Title VII much as we have analyzed CADA here. Compare
Price Waterhouse v. Hopkins, 490 U.S. 228, 264 (1989) (O’Connor, J., concurring)
(referring to a Title VII claim as a statutory employment “tort”), with Griggs v. Duke
Power Co., 401 U.S. 424, 429–30 (1971) (“The objective of Congress in the enactment
of Title VII is plain from the language of the statute. It was to achieve equality of
employment opportunities and remove barriers that have operated in the past to
favor an identifiable group of white employees over other employees.”), and
29 C.F.R. § 1608.1(b) (2020) (“Congress enacted title VII in order to improve the
economic and social conditions of minorities and women by providing equality of
opportunity in the work place.”).
¶34 In addition, we note that none of the federal cases describing Title VII claims
as statutory torts do so in the context of discussing governmental immunity.
Instead, to the extent that these cases discuss tort principles, they appear to do so
in connection with defining the element of causation in Title VII claims. See, e.g.,
Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 346 (2013) (“This case requires
the Court to define the proper standard of causation for Title VII retaliation
claims.”); Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175–76 (2009) (framing the
primary issue as determining the meaning of the words “because of”).
¶35 Lastly, we note that federal case law interpreting Title VII specifically allows
for compensatory damages against governmental entities while precluding the
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recovery of punitive damages. See 42 U.S.C. § 1981a(b) (permitting awards of
compensatory damages against any respondent while prohibiting awards of
punitive damages against the government, a government agency, or a political
subdivision); Baker v. Runyon, 114 F.3d 668, 671–72 (7th Cir. 1997) (noting that
Title VII’s damages provision reinforces the clear statutory intent that
compensatory damages are available against federal, state, and local
governmental defendants to the same extent that they are available against private
sector defendants but that punitive damages are not recoverable); see also 42 U.S.C.
§ 2000e-16 (2018) (prohibiting discrimination based on race, color, religion, sex, or
national origin in the federal government).
¶36 Given that section 24-34-405(6) of CADA expressly requires that we
construe, interpret, and apply section 24-34-405 consistently with the standards
established through judicial interpretation of Title VII, among other federal laws,
the fact that federal case law interpreting Title VII expressly allows compensatory
damages claims against governmental entities further confirms the conclusion that
we reach today.
¶37 For all of these reasons, we conclude that Williams’s claim seeking
compensatory relief against the Sheriff’s Office under section 24-34-405 does not
and could not lie in tort and therefore is not barred by the CGIA.
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C. Subsection 24-34-405(8)(g)
¶38 The Sheriff’s Office next contends that although subsection 24-34-405(8)(g)
provides that certain CADA claims for compensatory damages against “the state”
are not subject to the CGIA, because the Sheriff’s Office is a state agency and not
“the state,” Williams’s compensatory damages claims here are subject to the CGIA.
We are not persuaded.
¶39 As an initial matter, for the reasons noted above, compensatory damages
claims under CADA do not and could not lie in tort, and therefore, such claims are
not barred by the CGIA as against any public entity.
¶40 In any event, we do not agree that “the state,” as that term is used in
subsection 24-34-405(8)(g), excludes state agencies like the Sheriff’s Office.
¶41 Subsection 24-34-405(8)(g) provides, “A claim filed pursuant to this
subsection (8) by an aggrieved party against the state for compensatory damages
for an intentional unfair or discriminatory employment practice is not subject to
the [CGIA].” The term “the state,” however, is undefined.
¶42 The Sheriff’s Office contends that this term refers to the state of Colorado
and only the state of Colorado, and that it does not include state agencies or
political subdivisions. In support of this contention, the Sheriff’s Office observes
that elsewhere in CADA, the General Assembly has distinguished between “the
state” and “any political subdivision, commission, department, institution, or
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school district of the state.” See, e.g., § 24-34-405(3)(b)(I). The Sheriff’s Office thus
asserts that had the legislature intended for “the state” to include any state
agencies or political subdivisions, it would have said so expressly.
¶43 Williams, in contrast, argues that the term “the state,” as distinguished from
“the state of Colorado,” generally includes state agencies and political
subdivisions. He further argues that, in his view, “the state” must be read to
include state agencies and political subdivisions in order to construe all of the
provisions of CADA harmoniously. See, e.g., § 24-34-401(3), C.R.S. (2020) (defining
an “employer” to include “the state of Colorado or any political subdivision,
commission, department, institution, or school district thereof, and every other
person employing persons within the state”); § 24-34-405(3)(b)(I) (precluding
punitive damages awards against “the state or any political subdivision,
commission, department, institution, or school district of the state”).
¶44 In our view, both of these competing interpretations are reasonable.
Accordingly, we conclude that the term “the state” as used in subsection
24-34-405(8)(g) is ambiguous, and we therefore look to the legislature’s intent, the
circumstances surrounding the statute’s adoption, and the possible consequences
of different interpretations to determine that provision’s proper construction.
Martinez, ¶ 19, 433 P.3d at 28. Doing so persuades us that, as used in subsection
24-34-405(8)(g), “the state” includes both the state of Colorado and also state
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agencies and political subdivisions of the state. We reach this conclusion for
several reasons.
¶45 First, we note that interpreting subsection 24-34-405(8)(g) as referring solely
to the state of Colorado would render subsection 24-34-405(3)(b) largely
superfluous. Subsection 24-34-405(3)(b)(I) states, in pertinent part, that “a plaintiff
may recover punitive damages against a defendant, other than the state or any
political subdivision, commission, department, institution, or school district of the state,”
if the enumerated criteria are demonstrated. (Emphasis added). If “the state,” as
used in subsection 24-34-405(8)(g), is read to refer solely to the state of Colorado,
such that compensatory damages against state agencies and political subdivisions
are barred, then the legislature would have had no reason to exclude punitive
damages awards against state agencies or political subdivisions in subsection
24-34-405(3)(b) (because there would be no basis for an award of punitive damages
against such entities, given their immunity from compensatory damages claims).
See Ferrer v. Okbamicael, 2017 CO 14M, ¶ 44, 390 P.3d 836, 848 (“Exemplary
damages do not present a separate, distinct cause of action, but rather, depend on
an underlying claim for actual damages.”); Wagner v. Dan Unfug Motors, Inc.,
529 P.2d 656, 659 (Colo. App. 1974) (“It is settled law that an award of exemplary
damages cannot stand unless there has been an award of ‘actual damages.’”)
(citations omitted); § 13-21-102(1)(a), C.R.S. (2020) (providing for an award of
22
exemplary damages in civil actions in which compensatory damages are assessed,
if certain conditions are satisfied). As noted above, we cannot construe a statute
so as to render any provision superfluous. Agilent Techs., ¶ 16, 441 P.3d at 1016.
¶46 Second, the fiscal note accompanying the proposed 2013 amendments to
CADA stated, “The size of potential damages allowed will depend on the size of
the local governments involved and cannot be estimated.” Fiscal Note on
HB 13-1136, at 5, 69th Gen. Assemb., 1st Sess. (Feb. 13, 2013) (emphasis added).
This acknowledgement that damages could be assessed against local governments
reflects a contemporaneous understanding that local governments are, in fact,
subject to such damage awards.
¶47 Finally, given CADA’s primary goal of eliminating employment
discrimination in the workplace, it would be illogical for us to infer that in
attempting to broaden the tools available to those who have suffered workplace
discrimination, the legislature, at the same time, excluded from CADA’s reach a
broad swath of workers employed by the state’s political subdivisions and
agencies. As noted above, we must avoid such illogical statutory constructions.
See Agilent Techs., ¶ 16, 441 P.3d at 1016.
¶48 Accordingly, we conclude that “the state,” as used in subsection
24-34-405(8)(g), includes both the state of Colorado and any state agency or
political subdivision.
23
D. Front Pay
¶49 Finally, the Sheriff’s Office argues that claims for front pay in connection
with alleged age discrimination and retaliation are compensatory in nature and
thus lie or could lie in tort for CGIA purposes.
¶50 As an initial matter, we emphasize that the issue before us concerns only
whether Williams’s demand for front pay in connection with his discrimination
claims is compensatory and thus barred under the CGIA. We did not grant
certiorari to review, and we therefore do not review, the conclusion of the division
below that CADA itself expressly bars claims for compensatory damages in
connection with an age discrimination claim. See § 24-34-405(3)(g).
¶51 Because we have concluded that CADA claims do not and could not lie in
tort, Williams’s claims for front pay under CADA likewise do not lie in tort and
thus are not barred by the CGIA. In any event, under CADA’s plain language,
front pay is equitable in nature, and for that reason as well, claims for such relief
are not compensatory, as the Sheriff’s Office contends. See § 24-34-405(2)
(establishing that back pay, front pay, or “[a]ny other equitable relief” is available
against an employer who is found to have engaged in an unfair or discriminatory
employment practice) (emphasis added). Indeed, the Sheriff’s Office appears to
have conceded this fact when, in its opening brief, it described equitable relief
under CADA as including front pay.
24
¶52 We therefore conclude that Williams’s claims for front pay under CADA are
not barred by the CGIA.
III. Conclusion
¶53 For the foregoing reasons, we conclude that CADA claims seeking
compensatory damages do not and could not lie in tort and therefore are not
barred by application of the CGIA. We further conclude that the term “the state,”
as used in subsection 24-34-405(8)(g), subsumes both the state of Colorado and its
agencies and political subdivisions. Finally, we conclude that front pay under
CADA is equitable and not compensatory in nature and that age discrimination
and retaliation claims seeking front pay do not lie and could not lie in tort for CGIA
purposes.
¶54 Accordingly, we affirm the judgment of the division below.
JUSTICE MÁRQUEZ dissents, and CHIEF JUSTICE COATS and JUSTICE
BOATRIGHT join in the dissent.
25
JUSTICE MÁRQUEZ, dissenting.
¶55 Without question, the Colorado Anti-Discrimination Act, §§ 24-34-401
to -406, C.R.S. (2020) (“CADA”), serves to fulfill a “basic responsibility of
government to redress discriminatory employment practices on the basis of race,
creed, color, sex, age, national origin, or ancestry,” maj. op. ¶ 24 (quoting City of
Colo. Springs v. Conners, 993 P.2d 1167, 1174 (Colo. 2000)). But claims under CADA
are claims for “injuries which lie in tort or could lie in tort” and therefore are
barred by the Colorado Governmental Immunity Act, §§ 24-10-101 to -120, C.R.S.
(2020) (“CGIA”). While it may well be that the compensatory damages remedy
afforded by CADA should, as a policy matter, be extended to employees of
Colorado’s political subdivisions, I cannot agree that the 2013 amendments to
CADA waived governmental immunity to accomplish that.
¶56 The majority holds today that claims brought under CADA fall entirely
outside of the scope of the CGIA. Maj. op. ¶¶ 19–37, 53. The majority reaches this
conclusion by relying on and extending the reasoning of our opinion in Conners.
There, we held that “the CGIA does not provide the government immunity from
claims for relief under the [Colorado Civil Rights Act]1 when such claims are not
1Conners addressed a prior version of CADA known as the Colorado Civil Rights
Act, or CRA.
1
based on providing compensatory relief to individuals but instead focus on the
anti-discrimination purposes of the statute.” Conners, 993 P.2d at 1176–77.
¶57 I believe that this court’s opinion in Conners strayed significantly from the
plain text of the CGIA, and the majority’s extension of our erroneous holding in
that case continues down that errant path. Under the CGIA, governmental
immunity extends to all claims that “lie in tort or could lie in tort regardless of . . . the
form of relief chosen by the claimant.” § 24-10-106(1), C.R.S. (2020) (emphasis
added). Conners squarely contravened this statutory language by focusing on the
forms of relief available under the CRA to conclude that claims brought under that
Act were “non-compensatory” in nature, and therefore, did not and could not lie
in tort. In so doing, the opinion erroneously reasoned that the relief afforded or
sought drives whether the claim “lie[s] in tort or could lie in tort” for purposes of
the CGIA.
¶58 Today, the majority further deviates from the scope of government
immunity set forth in section 24-10-106(1) by grafting an exception for statutory
claims that “principally serve[] a societal purpose.” See maj. op. ¶ 30. Not only
does the majority’s reading of the CGIA find no purchase in the statutory text, it
also creates a vague standard against which other statutory causes of action must
now be measured.
2
¶59 Fidelity to the text of the CGIA demands that we apply the “lie[s] in tort or
could lie in tort” standard as written to determine whether CGIA immunity
encompasses claims under CADA. Because the injuries that give rise to CADA
claims can serve as the basis for common law tort claims, such as wrongful
discharge in violation of public policy or tortious interference with an employment
contract, see Martin Marietta Corp. v. Lorenz, 823 P.2d 100, 109 (Colo. 1992); Brooke v.
Rest. Servs., Inc., 906 P.2d 66, 68 (Colo. 1995), claims under CADA plainly “could
lie in tort.” Accordingly, CGIA immunity extends to CADA claims unless the
General Assembly has expressly waived immunity. There is no such waiver
applicable here. While the General Assembly may have effectuated a waiver of
CGIA immunity for claims for compensatory damages brought against the state in
section 24-34-405(8)(g), C.R.S. (2020), it did not do so for claims against political
subdivisions.
¶60 Though perhaps this omission was mere oversight, we cannot be sure; as I
explain in my dissent today in Houchin, there are rational, fiscal reasons to protect
local governments from compensatory damages claims under CADA. See Denver
Health v. Houchin, 2020 CO 89, ¶¶ 32–35, __ P.3d __ (Márquez, J., dissenting). But
even assuming it was oversight, we cannot fix the legislature’s mistakes by reading
language into section 24-34-405(8)(g) that isn’t there. Maj. op. ¶¶ 2, 44, 48, 53
3
(construing statutory reference to “the state” to include “state agencies and
political subdivisions of the state”). Thus, I respectfully dissent.
I. The Approach Adopted by Conners and the Majority is
Contrary to the Text and Purpose of the CGIA
¶61 The approach used by Conners and the majority looks to the nature of relief
afforded by a statute and sought by a claimant to determine whether statutory
claims fall within the CGIA. Such an approach runs directly counter to the plain
text and intent behind the scope of immunity set forth in section 24-10-106(1).
Further, despite offering an array of justifications for its conclusion that CADA
claims do not fall within the CGIA, the majority fails to articulate a real test to
determine whether other statutory claims for injury come within the CGIA’s
ambit.
A. The General Assembly Intended the “Could Lie in
Tort” Standard to be Interpreted Expansively
¶62 For nearly a century after statehood, Colorado and its political subdivisions
were immune from suit under the common law doctrine of sovereign immunity.
See Evans v. Bd. of Cnty. Comm’rs, 482 P.2d 968, 970 (Colo. 1971). In 1971, this court
abrogated the doctrine in Evans and two companion cases, Proffitt v. State, 482 P.2d
965 (Colo. 1971), and Flournoy v. School District No. One in City & County of Denver,
482 P.2d 966 (Colo. 1971). But we made clear that “[i]f the General Assembly
4
wishes to restore sovereign immunity and governmental immunity in whole or in
part, it has the authority to do so.” Evans, 482 P.2d at 972.
¶63 Two months later, the General Assembly responded by enacting the CGIA.
See ch. 323, sec. 1, §§ 130-11-1 to -17, 1971 Colo. Sess. Laws 1204, 1218. The CGIA
broadly reestablished governmental immunity, allowing suit against public
entities “only to such an extent and subject to such conditions as are provided by
this article.” See § 24-10-102, C.R.S. (2020); see also Young v. Brighton Sch. Dist. 27J,
2014 CO 32, ¶ 31, 325 P.3d 571, 581 (“The CGIA was designed to specifically
define—and thus limit—the circumstances when immunity is waived by public
entities.”).2 To this end, the Act provides that public entities “shall be immune
2 The majority opines that, “because the CGIA derogates Colorado’s common law,
we must strictly construe its immunity provisions.” Maj. op. ¶ 20. This is not the
first time this court has cited this notion when dealing with the CGIA. See
Smokebrush Found. v. City of Colo. Springs, 2018 CO 10, ¶ 22, 410 P.3d 1236, 1240;
Springer v. City & Cnty. of Denver, 13 P.3d 794, 798 (Colo. 2000). But this
interpretative canon makes no sense in the context of the CGIA. As noted, the
common law for nearly a century was that the government enjoyed sovereign
immunity. And when we abrogated the doctrine in Evans, we expressly invited
the legislature to re-establish governmental immunity in whole or in part. The
legislature did so almost immediately. Thus, it is somewhat misleading to suggest
that the CGIA “derogates the common law,” when at most that “common law”
absence of sovereign immunity existed for a few weeks. Moreover, when we
invited the legislature in Evans to reestablish governmental immunity, we stated
that the “full authority” to determine the scope of immunity belongs “in the hands
of the General Assembly.” 482 P.2d at 972. Accordingly, when determining the
scope of immunity granted under the CGIA, “our touchstone remains the intent
of the legislature,” not judicially adopted interpretive canons. See St. Vrain Valley
5
from liability in all claims for injury which lie in tort or could lie in tort regardless of
whether that may be the type of action or the form of relief chosen by the claimant
except as provided otherwise in this section.” § 24-10-106(1) (emphases added).
¶64 Although the CGIA’s “could lie in tort” concept is somewhat nebulous, we
have recognized that the CGIA “broadly encompasses all claims against a public
entity arising from the breach of a general duty of care, as distinguished from
contractual relations or a distinctly non-tortious statutorily-imposed duty.” Colo.
Dep’t of Transp. v. Brown Grp. Retail, Inc., 182 P.3d 687, 691 (Colo. 2008); see also State
Pers. Bd. v. Lloyd, 752 P.2d 559, 563 (Colo. 1988) (“The clear import of this language
is that the [CGIA] was intended to apply to all actions against public entities or
their employees which lie, or could lie, in tort but not contract.”).
¶65 Tellingly, nearly all of the cases in which we have held that a claim did not
and could not “lie in tort” for purposes of the CGIA involved contractual claims.
See City of Arvada ex rel. Arvada Police Dep’t v. Denver Health & Hosp. Auth., 2017 CO
97, ¶¶ 41–42, 403 P.3d 609, 617 (unjust enrichment arising out of a contract
dispute); Denny Constr., Inc. v. City & Cnty. of Denver ex rel. Bd. of Water Comm’rs,
199 P.3d 742, 750 (Colo. 2009) (lost profit damages in a breach of contract claim);
Sch. Dist. RE-1J v. A.R.L. by & through Loveland, 2014 CO 33, ¶ 12, 325 P.3d 1014,
1019.
6
Berg v. State Bd. of Agric., 919 P.2d 254, 259 (Colo. 1996) (promissory estoppel); Bd.
of Cnty. Comm’rs v. DeLozier, 917 P.2d 714, 717 (Colo. 1996) (promissory estoppel);
Julesburg Sch. Dist. No. RE-1 v. Ebke, 562 P.2d 419, 421 (Colo. 1977) (breach of
contractual duty).
¶66 By contrast, we have generally determined that claims arising from non-
contractual injuries fall within the CGIA’s broad ambit. See, e.g., Brown, 182 P.3d
at 692 (claims for contribution, unjust enrichment, and declaratory relief); Lloyd,
752 P.2d at 563 (retaliatory discharge claim under a state employee protection
statute); Robinson v. Colo. State Lottery Div., 179 P.3d 998, 1010 (Colo. 2008) (contract
and unjust enrichment claims that “could alternatively be pleaded and remedied
through a tort claim”). Conners stands as a rare exception to these trends.3
3 To my knowledge, the only other instance in which this court has determined
that a non-contractual claim does not and could not lie in tort for purposes of the
CGIA was in Antonopoulos v. Town of Telluride, 532 P.2d 346 (Colo. 1975). There,
we held that claims brought pursuant to the Liability of Peace Officers Act,
§ 29-5-111, C.R.S. (2020), were not subject to the CGIA because “liability of a
municipality’s police has traditionally existed despite the doctrine of sovereign
immunity,” and thus “the legislature’s enactment of the [CGIA] was without effect
on a peace officer’s vulnerability to liability.” Antonopoulos, 532 P.2d at 349.
Additionally, although this court has never been squarely presented with the
issue, we acknowledged in Lloyd that inverse condemnation and property damage
claims brought pursuant to the just compensation clause, Colo. Const. art. II, § 15,
may not lie in tort for purposes of the CGIA. See 752 P.2d at 563 n.6 (citing SRB v.
Bd. of Cnty. Comm’rs, 601 P.2d 1082 (Colo. App. 1979); and Hayden v. Bd. of Cnty.
Comm’rs, 580 P.2d 830 (Colo. App. 1978)).
7
B. Conners Misapplied the CGIA’s “Could Lie in Tort”
Standard
¶67 In Conners, this court determined that claims brought pursuant to the CRA
“neither lie in tort nor could lie in tort for the purposes of the CGIA.” 993 P.2d at
1174. We reached this conclusion by centering our analysis largely on the
equitable and non-compensatory forms of relief available under the CRA,
emphasizing that the CRA “does not provide monetary compensation for tort-like
personal injuries for those who are the victims of prohibited discrimination.” Id.
at 1176. We reasoned that these limited forms of relief were aimed at “eliminating
workplace discrimination, not compensating individuals for their particular
injuries arising from violations of the CRA.” Id. at 1175. Working backwards from
the relief available under the statute, we concluded that that the claims themselves
were “equitable and non-compensatory in nature,” and therefore such actions
“neither lie in tort nor could lie in tort for the purposes of the CGIA.” Id. at 1174.
We even instructed that a trial court “must consider the nature of the relief sought
to determine whether a particular action ‘lies in tort or could lie in tort’” for
purposes of the CGIA, openly acknowledging that to do so was “arguably
inconsistent with the CGIA’s language.” Id. at 1176. Nonetheless following this
approach, we relied on the non-compensatory and equitable relief afforded under
the CRA to conclude that the claims brought under that Act were not for injuries
which “lie in tort” for purposes of the CGIA. Id.
8
¶68 Although we later retreated somewhat from Conners in Robinson to say that
the nature of the relief requested is not dispositive, we reiterated that the nature
of the relief serves to inform our understanding of the injury and the duty
breached to determine if a claim lies or could lie in tort. 179 P.3d at 1006.
¶69 Notably, the majority now overlooks the absence of compensatory relief so
critical to our holding in Conners. Maj. op. ¶ 29. The majority ultimately concludes
that it is solely CADA’s “societal purpose,” rather than the absence of
compensatory damages, that takes CADA claims outside of the scope of the CGIA.
See id. at ¶¶ 29–31. But in addition to ignoring the core rationale for our holding
in Conners, the majority’s analysis repeats the broader error underlying our
opinion in that case; by focusing on the nature of relief provided by the CRA rather
than the type of injuries underlying the claims brought, Conners ignored the
legislature’s mandate that governmental immunity applies to “all claims for injury
which lie in tort or could lie in tort regardless of . . . the form of relief chosen by the
claimant.” § 24-10-106(1) (emphases added).
¶70 At no point did Conners, nor does the majority today, explain why the
injuries underlying CADA claims cannot lie in tort. As we have more recently
made clear, “[t]he nature of the injury alleged—not the relief requested—is the
primary inquiry to determine whether the CGIA applies to [a] claim.” Open Door
Ministries v. Lipschuetz, 2016 CO 37M, ¶ 16, 373 P.3d 575, 579 (emphasis added).
9
To determine whether a claim “could lie in tort” for purposes of the CGIA, we
should look to whether the claimant is asserting injuries arising out of a “breach
of a general duty of care,” Brown, 182 P.3d at 691, “regardless of whether that may
be . . . the form of relief” provided by the cause of action in question or sought by
the claimant at bar, § 24-10-106(1).
C. The Majority Has Articulated No Real Test to
Determine Whether Statutory Claims Fall Outside of the
CGIA
¶71 The majority offers two main justifications to support its conclusion that
CADA claims are not subject to the CGIA. Neither is persuasive nor offers
workable guidance for determining whether other statutory causes of action are
subject to the CGIA.
¶72 First, the majority opines that, because CADA serves “greater purposes”
that are in the “public interest,” it is primarily non-compensatory in nature and
thus cannot be subject to the CGIA. See maj. op. ¶¶ 24, 26. But many causes of
action that are subject to the CGIA implicate public policy. By their very nature,
claims for wrongful discharge in violation of public policy have public interest
implications, Martin Marietta, 823 P.2d at 109, but are still torts subject to the CGIA.
And in Lloyd we determined that a claim brought pursuant to the state employee
whistleblower statute, which clearly implicates the public interest, is nevertheless
subject to the CGIA. See 752 P.2d at 565. I am concerned that the majority’s
10
approach amounts to little more than an ad hoc inquiry in which courts determine
which policy goals are in the “public interest” and thus outside the scope of the
CGIA. Such a process gives the appearance of judicial policymaking. 4 Instead,
such determinations can and should be made by the General Assembly in the form
of an express waiver of CGIA immunity.
¶73 Second, the majority suggests that CADA claims may not be subject to the
CGIA because they do not have “origins in the common law.” Maj. op. ¶ 24. But
we have never before required a claim to have common law origins to come within
the scope of the CGIA. Indeed, we have held the exact opposite in Brown. 182 P.3d
at 690–91 (“[W]e have never suggested that coverage of the Act is limited to claims
that are capable of being recast as common-law torts by the party bringing the
claim. Most especially, we have never suggested that claims for relief developed
and historically administered by courts of chancery or equity, rather than courts
of law, necessarily fall outside the coverage of the Act.”). And we have determined
that other statutory claims that have no common law analogue fall within the
4That the majority makes such a determination here with reference only to judicial
decisions—rather than, say, a legislative declaration—makes this approach all the
more concerning. See maj. op. ¶¶ 24, 26.
11
scope of the CGIA. See Lloyd, 752 P.2d at 565 (holding that claims brought
pursuant to a whistleblower statute were subject to the CGIA).
¶74 I fear the majority’s opinion leaves the legislature and courts with no clear
or workable standard as to what statutory causes of action fall outside of the CGIA.
Perhaps any statutory claim that does not “ensur[e] full compensation for claimants”
has a primarily “non-compensatory purpose” and is thus outside the scope of the
CGIA. See maj. op. ¶ 25 (emphasis added). Or perhaps this is only true for claims
that do not have “origins in the common law.” Id. at ¶ 24. Alternatively, maybe
the CGIA applies to all statutory claims other than those that “address
constitutionally based concerns,” id. at ¶ 23, or fulfill a “basic responsibility of
government,” id. at ¶ 24 (quoting Conners, 993 P.2d at 1174). All are equally
plausible readings of the majority’s opinion.
II. CADA Claims Could Lie in Tort
¶75 Looking simply to the broad “could lie in tort” language used by the
legislature in section 24-10-106(1), CADA claims clearly fall within the scope of the
CGIA. CADA claims involve an assertion of a “breach of a general duty of care”
to not discriminate against employees and thus plainly “could lie in tort.” See
Brown, 182 P.3d at 691; maj. op. ¶ 24 (noting that CADA creates “a statutory duty
prohibiting employers from engaging in a variety of discriminatory employment
12
practices”).5 The scope of the CGIA “is not limited to claims that are presented, or
are capable of being presented, directly by the claimant as tort claims.” Brown,
182 P.3d at 691. However, if “the pleaded allegations . . . could be alternatively
pleaded in tort” this strongly suggests a statutory claim is subject to the CGIA.
Robinson, 179 P.3d at 1006.
¶76 The same injuries that underlie CADA claims could be alternatively pleaded
as tort claims. An employee who is terminated in violation of “a clearly expressed
public policy relating to . . . the employee’s right or privilege as a worker” could
plead a tort claim for wrongful discharge in violation of public policy. Martin
Marietta, 823 P.2d at 109.6 The same employee could bring a claim for tortious
interference with employment. See Brooke, 906 P.2d at 68. As we have made clear,
5 The majority asserts, without explanation, that this statutory duty not to
discriminate is not a general duty of care. See maj. op. ¶ 24. Why? Because it only
applies to employers? Because the duty does not have common law origins? It is
not clear. As with its failure to establish a clear test for determining whether
statutory claims fall within the CGIA, I fear the majority’s unexplained statement
here may sow confusion.
6 In Middleton v. Hartman, 45 P.3d 721 (Colo. 2002), we later hinted that claims
involving such conduct are subject to the CGIA. Noting that the plaintiff had
conceded that her retaliation claim under the Fair Labor Standards Act, 29 U.S.C.
§ 215 (1994), could lie in tort for purposes of the CGIA, we cited to Martin Marietta
for the notion that “a retaliatory discharge claim is a common law tort claim.”
Middleton, 45 P.3d at 730 n.6.
13
both tort claims remain viable as alternative causes of action even after the
enactment of CADA. See id. at 70 n.4.
¶77 Even if the majority is correct that CADA claims themselves are not torts, it
fails to address why the injuries underlying those claims could not lie in tort.
CADA claims involve breach of a general duty to not engage in discriminatory
employment practices. Breach of this duty can form the basis of either a CADA
claim or a common law tort claim. Thus, CADA claims “could lie in tort,” and
claims against governmental entities are barred under section 24-10-106 unless the
General Assembly has expressly waived immunity.
III. The General Assembly Did Not Waive Immunity for
Political Subdivisions
¶78 In enacting the CGIA, the General Assembly expressly intended to
“includ[e] within one article all the circumstances under which the state, any of its
political subdivisions, or the public employees of such public entities may be
liable” to plaintiffs. § 24-10-102. To that end, section 24-10-106(1) provides that “a
public entity shall be immune from liability in all claims for injury which lie in tort
or could lie in tort . . . except as provided otherwise in this section.” The provision
goes on to state that “[s]overeign immunity is waived” in specific, enumerated
instances set forth in subsection (1). § 24-10-106(1).
¶79 In the past, when the General Assembly has sought to alter or waive
immunity for claims, it has amended section 24-10-106 to reflect the change. See,
14
e.g., ch. 280, sec. 1, § 24-10-106(1)(g), 2004 Colo. Sess. Laws 1056, 1056 (waiving
immunity for injuries resulting from operation and maintenance of a qualified
state capital asset); ch. 434, sec. 4, § 24-10-106(1)(h), 2008 Colo. Sess. Laws 2224,
2226–27 (waiving immunity for injuries resulting from a failure to perform an
education employment background check); ch. 212, sec. 3, § 24-10-106(1)(i),
2015 Colo. Sess. Laws 773, 776 (waiving immunity for injuries resulting from a
police officer interfering with the lawful recording of a police incident); see also
ch. 280, sec. 1, § 24-10-106(1.5), 2002 Colo. Sess. Laws 63, 63 (removing waiver of
immunity for backcountry landing facilities).
¶80 The General Assembly’s consistent practice in this regard, coupled with the
CGIA’s stated goal of establishing all bases for governmental liability within one
article, strongly suggests that when the legislature intends to waive immunity, it
does so through section 24-10-106.7 Yet the General Assembly did not amend
7 Although we have never squarely determined the issue, it may be possible for
the General Assembly to alter governmental immunity outside of
section 24-10-106 if it does so clearly and unambiguously. In Norsby v. Jensen,
916 P.2d 555, 560 (Colo. App. 1995), for example, a division of the court of appeals
determined that a statute limiting liability for Department of Corrections “boot
camp” programs acted to amend CGIA liability even though the relevant waiver
provision in section 24-10-106 was not altered. We cited Norsby approvingly in
Brighton Sch. Dist., ¶ 18, 325 P.3d at 577, noting that the statute at issue in Norsby
was in “truly irreconcilable conflict” with the CGIA.
15
section 24-10-106(1) to waive liability for CADA claims as a part of the 2013
amendments.
¶81 The General Assembly likewise did not waive immunity for political
subdivisions anywhere in CADA. CADA provides that a claim “against the state
for compensatory damages . . . is not subject to the [CGIA],” but does not provide
that the same holds true for a claim against a political subdivision. § 24-34-405(8)(g)
(emphasis added). Although the term “state” is not defined in CADA, the
legislature clearly treated “the state” as distinct from “political subdivisions” by
consistently using the phrase “the state or any political subdivision” throughout
CADA when it sought to refer to both the state and local governments. See
§§ 24-34-401(3), 24-34-405(3)(b)(I), 24-34-405(8)(b). Accordingly, we must assume
the legislature’s lone use of the term “state” in section 24-34-405(8)(g) was
intentional. Standing alone, we must read the term “state” in section
24-34-405(8)(g) to unambiguously exclude political subdivisions.8
¶82 Unlike the majority, see maj. op. ¶¶ 38–48, I cannot plausibly read “state” to
encompass political subdivisions in section 24-34-405(8)(g) when the term plainly
8Notably, the CGIA, to which subsection (8)(g) cites, defines “state” as excluding
any “county, municipality, city and county, school district, special district, or any
other kind of . . . political subdivision.” § 24-10-103(7), C.R.S. (2020).
16
means something different throughout the remainder of CADA, including
elsewhere within section 24-34-405 itself. See Colo. Common Cause v. Meyer,
758 P.2d 153, 161 (Colo. 1988) (“[W]hen, as here, the legislature employs the same
words or phrases in different parts of a statute, . . . the meaning attributed to the
words or phrases in one part of the statute should be ascribed to the same words
or phrases found elsewhere in the statute.”). Because the reference to “state” in
subsection (8)(g) unambiguously excludes political subdivisions, we need not
resort to legislative history to determine the meaning of the word “state.” See maj.
op. ¶¶ 44–46.
¶83 The majority posits that interpreting the term “state” in
section 24-34-405(8)(g) to exclude political subdivisions would render
section 24-34-405(3)(b)(I) “largely superfluous” because there is no need to
preclude punitive damages against political subdivisions if all claims against such
entities are barred under the CGIA. Maj. op. ¶ 45. But the majority’s interpretation
renders section 24-34-405(8)(g) similarly superfluous; if all CADA claims fall
outside of the CGIA, what purpose does subsection (8)(g) serve? In truth, the 2013
amendments to CADA added internally inconsistent language, perhaps in an
attempt to grapple with our unclear holding in Conners. Given the vague test
established by the majority today, I suspect we will be confronted with similar
challenges of statutory interpretation in the future.
17
¶84 If the General Assembly intended to waive immunity for political
subdivisions, it did not effectuate that intent in the language of CADA as enacted.
Neither section 24-10-106(1) of the CGIA nor CADA contains any express waiver
of sovereign immunity, and we cannot “read into a statute language that is not
there.” In re Marriage of Gromicko, 2017 CO 1, ¶ 23, 387 P.3d 58, 62. Absent such a
waiver of immunity from liability for political subdivisions, claims brought
against such entities are barred under the CGIA.
IV. Conclusion
¶85 I fully agree with the majority that CADA serves a fundamental role in
eliminating workplace discrimination. But I cannot read language into the Act
that does not exist. CADA claims plainly “could lie in tort,” and the General
Assembly has not waived immunity for such claims with respect to political
subdivisions. Accordingly, Williams’s claim against the Sheriff’s Office is barred
under the CGIA. Thus, because I would reverse the judgment of the court of
appeals, I respectfully dissent.
I am authorized to state that CHIEF JUSTICE COATS and JUSTICE
BOATRIGHT join in this dissent.
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