24CA1193 Oliveira v Ohlinger 05-15-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1193 Weld County District Court No. 23CV31002 Honorable Todd Taylor, Judge
Michael Oliveira,
Plaintiff-Appellant
v.
Sergeant Dan Ohlinger, Lieutenant Stephanie Southard, and Chief Tracey McCoy,
Defendants-Appellees.
JUDGMENT AFFIRMED
Division VI Opinion by JUDGE SCHUTZ Welling and Kuhn, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 15, 2025
Robert M. Liechty PC, Robert M. Liechty, Denver, Colorado, for Plaintiff- Appellant
SGR, LLC, Courtney B. Kramer, Jonathan N. Eddy, Denver, Colorado, for Defendants-Appellees ¶1 Michael Oliveira appeals the district court’s dismissal of his
complaint Sergeant Dan Ohlinger, Lieutenant Stephanie Southard,
and Chief Tracey McCoy (collectively, the Defendants) for their roles
in an internal investigation that lead to Oliveira’s termination as a
police officer at the City of Lochbuie Police Department (the
Department). We affirm.
I. Background and Procedural History
¶2 The allegations in Oliveira’s amended complaint and the
exhibits attached to the Defendants’ motion to dismiss establish the
following facts that gave rise to this dispute.
¶3 On June 12, 2023, while on duty near a convenience store,
Oliveira contacted a nineteen-year-old woman, G.C., who had
stopped at a number of the store’s gas pumps. During the
interaction, Oliveira gave G.C. the number to his Department-
issued cell phone. Between June 12 and 18, Oliveira and G.C.
exchanged approximately forty text messages of a personal and
flirtatious nature on that phone, one of which included a picture of
G.C. in a bathing suit. They also met for lunch.
1 ¶4 On June 14, G.C. stopped responding to Oliveira’s text
messages. On June 18, Oliveira sent G.C. a final message stating,
“Wow . . . you forgot about me already.”
¶5 Oliveira alleged that he later realized the “photo might be out
of line,” and therefore he reported some aspects of his interactions
with G.C. to his immediate supervisor, Sergeant Ohlinger. Oliveira
also showed him the picture of G.C. in her bathing suit. Oliveira
then deleted the photo and several of the text messages.
¶6 Days later, Sergeant Ohlinger took the phone from Oliveira
and informed Lieutenant Southard about the situation. Lieutenant
Southard copied the cell phone’s contents, returned it to Oliveira,
and opened an internal investigation into the matter.
¶7 Lieutenant Southard interviewed Oliveira — in the presence of
his counsel — about the phone’s contents after advising him that
he was under investigation for violating the Department’s cell phone
and performance policies. During the interview, Oliveira told
Lieutenant Southard that he thought G.C.’s bathing suit photo was
inappropriate so he “ghosted her.”
¶8 Through its internal investigation, the Department learned
that (1) Oliveira had called G.C. on the cell phone on one occasion
2 while using a feature to block the number; (2) at no point during
the text conversations did Oliveira and G.C. discuss police
business; and (3) the deleted messages revealed, contrary to
Oliveira’s assertion, that he did not stop texting G.C. after she sent
him the suggestive photo. Indeed, after receiving the photo, Oliveira
responded by signifying that he “loved” it and continued exchanging
messages with G.C. until she stopped responding later that evening.
He then sent the final message four days later.
¶9 After the Department had completed its internal affairs
investigation, Chief McCoy terminated Oliveira because he used the
Department’s cell phone for purely personal communications and
was dishonest about the nature and extent of his contacts with
G.C. Specifically, the Department found that Oliveira was
dishonest about who made the initial contact, how he provided his
phone number to G.C., the general nature of their communications,
and how and when the contact between them ended. Oliveira
alleges that he asked the Department to hold a hearing so that he
could address these inconsistencies, but the Department declined
his request.
3 ¶ 10 As required by Colorado statute, the Department subsequently
reported Oliveira’s conduct and termination to the Peace Officers
Standards and Training (POST) board, a governmental entity that
oversees the management and conduct of law enforcement officers
throughout Colorado. See §§ 24-31-301 to -310, C.R.S. 2024.
¶ 11 Shortly after his termination, Oliveira applied for positions
with multiple law enforcement agencies in Colorado. As a part of
the application process, he submitted to these prospective
employers signed liability waivers. In those waivers, Oliveira
authorized the release of “data or records to [the prospective
employer] pertaining to [his] employment [including] . . . internal
affairs or disciplinary records.” Oliveira’s efforts to obtain new
employment with a law enforcement agency were unsuccessful.
¶ 12 Oliveira filed claims alleging that the Defendants violated his
due process rights under article II, section 25 of the Colorado
Constitution and section 13-21-131, C.R.S. 2024, which was
adopted as part of the Enhance Law Enforcement Integrity Act
(ELEIA). Ch 110, sec. 3. § 13-21-131, 2020 Colo. Sess. Laws 452.
Oliveira also asserted common law claims for defamation and
intentional interference with a contract.
4 ¶ 13 The Defendants moved to dismiss under C.R.C.P. 12(b)(5),
asserting that Oliveira failed to state a viable claim for deprivation
of his right to due process under the Colorado Constitution. They
also argued that Oliveira’s common law claims failed to allege
sufficient facts to support the conclusion that the Defendants acted
willfully and wantonly, and therefore it failed to establish that they
had waived their right to sovereign immunity.
¶ 14 In resolving the motion to dismiss, the district court first
rejected the Defendants’ argument that the waivers Oliveira signed
for the benefit of his prospective employers waived any claims
against the Defendants for providing his employment information.
Nonetheless, as relevant here, the court granted the motion to
dismiss for the following reasons:
• Even assuming Oliveira had adequately asserted a valid
procedural due process claim for a deprivation of his liberty
interest, such claim failed because the Defendants’
communications were intra-governmental in nature and
therefore not published.
• Oliveira’s common law claims for defamation, intentional
interference with a contract, and intentional interference with
5 a prospective contract were barred under the Colorado
Governmental Immunity Act (CGIA), §§ 24-10-101 to -119,
C.R.S. 2024, because the amended complaint failed to allege
that the Defendants had acted “willfully and wantonly.”1
II. Issues on Appeal and Controlling Law
¶ 15 On appeal, Oliveira argues that the district court erred by
finding that the Defendants’ dissemination of his employment
information to the POST board was not a publication and that the
allegations of the amended complaint failed to support a conclusion
that the Defendants acted willfully and wantonly. We disagree with
both contentions.
A. Standards of Review Governing Interpretation of Constitutional Provisions and Statutes
¶ 16 The interpretation of a constitutional provision is a question of
law that we review de novo. Gessler v. Colo. Common Cause, 2014
CO 44, ¶ 7. Likewise, we interpret the terms of a statute de novo.
1 The district court noted in its order that Oliveira conceded he did
not have a property interest in his continued employment with the Department. Oliveira does not dispute this portion of the order, so we do not address it further. The district court also rejected the Defendants’ waiver argument, which we do not need to address given our disposition of other issues.
6 Edwards v. New Century Hospice, Inc., 2023 CO 49, ¶ 14. In doing
so, our primary task is to “give effect to the intent of the General
Assembly.” Id. at ¶ 15 (quoting People v. Dist. Ct., 713 P.2d 918,
921 (Colo. 1986)).
¶ 17 If a statute is unambiguous, we give its words their ordinary
meaning. Id. “We read and consider statutes as a whole,
construing each provision in harmony with the overall statutory
scheme, structure, and purpose.” Black Diamond Fund, LLLP v.
Joseph, 211 P.3d 727, 736 (Colo. App. 2009). If a statute is
ambiguous or potentially conflicts with another statute, we “may
consider the statute’s legislative history, the object sought to be
attained, the consequences of a particular construction of the
statute, and the legislative declaration or purpose.” People v.
Garcia, 2016 COA 124, ¶ 10 (first citing § 2-4-203(1), C.R.S. 2024;
and then citing Martin v. People, 27 P.3d 846, 851 (Colo. 2001)).
B. Governmental Immunity
¶ 18 In adopting the CGIA, the General Assembly attempted to
balance competing policy considerations:
It is recognized by the [G]eneral [A]ssembly that the doctrine of sovereign immunity, whereunder the state and its political
7 subdivisions are often immune from suit for injury suffered by private persons, is, in some instances, an inequitable doctrine. . . . The [G]eneral [A]ssembly also recognizes that the state and its political subdivisions provide essential public services and functions and that unlimited liability could disrupt or make prohibitively expensive the provision of such essential public services and functions. The [G]eneral [A]ssembly further recognizes that the taxpayers would ultimately bear the fiscal burdens of unlimited liability and that limitations on the liability of public entities and public employees are necessary in order to protect the taxpayers against excessive fiscal burdens. It is also recognized that public employees, whether elected or appointed, should be provided with protection from unlimited liability so that such public employees are not discouraged from providing the services or functions required by the citizens or from exercising the powers authorized or required by law.
§ 24-10-102, C.R.S. 2024.
¶ 19 The General Assembly effectuated this balance by granting
public entities and employees broad immunity while also waiving
liability for injuries arising out of certain designated actions. § 24-
10-106(1), C.R.S. 2024 (“A public entity is immune from liability in
all claims for injury that lie in tort or could lie in tort” unless such
immunity has been expressly waived.); § 24-10-106(1)(a)-(k)
8 (waiving sovereign immunity for the injuries arising from specifically
delineated governmental actions).
¶ 20 The CGIA also immunizes public employees against tort claims
provided the claim is based on acts or omissions “occurring during
the performance of [their] duties and within the scope of [their]
employment unless the act or omission causing such injury was
willful and wanton.” § 24-10-118(2)(a), C.R.S. 2024. Thus, a
plaintiff may bring a tort action, regardless of whether there has
been a waiver, upon a showing that the governmental employee’s
“act or omission . . . was willful and wanton.” Id.; § 24-10-105(1),
C.R.S. 2024.
¶ 21 The CGIA does not define “willful and wanton” conduct. The
supreme court, however, has provided guidance on the breadth of
the phrase as used in the CGIA: “[W]illful and wanton conduct is
not merely negligent; instead, it must exhibit a conscious disregard
for the danger.” Martinez v. Est. of Bleck, 2016 CO 58, ¶ 32 (citing
Moody v. Ungerer, 885 P.2d 200, 205 (Colo. 1994)).
¶ 22 It is undisputed that the Department is a public entity, and
that the individual defendants were public employees acting within
the scope and during the performance of their employment. See
9 § 24-10-103(4)(a), C.R.S. 2024 (defining public employee); § 24-10-
103(5) (defining public entity). Oliveira does not contend that the
complained-of acts fall within the purview of actions for which
sovereign immunity has been waived under section 24-10-106(1)(a)-
(k). Nonetheless, Oliveira argues that his common law claims are
viable notwithstanding the CGIA because the Defendants’ actions or
omissions were willful and wanton.
C. Due Process Claim and ELEIA
¶ 23 The Colorado Constitution prohibits the deprivation “of life,
liberty or property” without the due process of law. Colo. Const.
art. II, § 25. Oliveira argues that he alleged sufficient facts to
support a claim that the Defendants violated his liberty interest by
disseminating false information regarding the facts surrounding his
termination, stigmatizing him and impeding his future
employability. Oliveira acknowledges that no reported Colorado
case has recognized this claim under the Colorado due process
clause, but points to the fact that the Tenth Circuit and other
federal courts have concluded that such a claim is viable under the
United States Constitution’s Due Process Clause. See, e.g., Renaud
v. Wyo. Dep’t of Fam. Servs., 203 F.3d 723, 726-27 (10th Cir. 2000);
10 Stiesberg v. California, 80 F.3d 353, 357 (9th Cir. 1996); Merritt v.
Brantley, 936 F. Supp. 988, 992 (S.D. Ga. 1996). He urges us to
follow their lead.
¶ 24 Under federal law, a public employee has a liberty interest in
protecting their professional reputation, and thus their future
employability, from being stigmatized. McDonald v. Wise, 769 F.3d
1202, 1212 (10th Cir. 2014). The government infringes upon that
interest when (1) it makes a statement that “impugn[s] the good
name, reputation, honor, or integrity of the employee”; (2) the
statement is false; (3) the statement is made during the course of
termination and “foreclose[s] other employment opportunities”; and
(4) the statement is published, in other words disclosed publicly.
Id. (quoting Workman v. Jordan, 32 F.3d 475, 481 (10th Cir. 1994)).
¶ 25 Intra-governmental communications between governmental
entities are deemed, as a matter of law, not to satisfy the
“publication” element of the federally recognized liberty interest
claim. See Asbill v. Hous. Auth. of Choctaw Nation of Oklahoma, 726
F.2d 1499, 1503 (10th Cir. 1984) (“We hold that [plaintiff’s] claim
falls short . . . [because] it does not appear from the record that
[the] statements were published outside the state government; such
11 intra-governmental dissemination, by itself, falls short of the
Supreme Court’s notion of publication: ‘to be made public.’”
(quoting Bishop v. Wood, 426 U.S. 341, 348 (1976))); Alcorn v. La
Barge, 784 F. App’x 614, 619-20 (10th Cir. 2019) (same).
¶ 26 Oliveira argues that we should recognize such a claim under
article II, section 25. But because Colorado has enacted ELEIA,
Oliveira argues, we should not adopt the intra-governmental
component of the publication element.
¶ 27 The General Assembly enacted ELEIA in 2020 and amended in
2021. It provides that
[a] peace officer . . . who, under color of law, subjects or causes to be subjected, including failing to intervene, any other person to the deprivation of any individual rights that create binding obligations on government actors secured by the bill of rights, article II of the state constitution, is liable to the injured party for legal or equitable relief or any other appropriate relief.
§ 13-21-131(1). To enable such claims, the statute specifies that
“[s]tatutory immunities and statutory limitations on liability,
damages, or attorney fees do not apply to claims brought pursuant
to this section. The [CGIA] does not apply to claims brought
pursuant to this section[, and] [q]ualified immunity is not a defense
12 to liability pursuant to this section.” § 13-21-131(2)(a)-(b). Oliveira
argues that we should treat ELEIA’s prohibition against the
assertion of certain immunity defenses as a rejection of the intra-
governmental exception to publication.
D. Peace Officer Standards and Training (POST)
¶ 28 POST is a governmental agency tasked with overseeing the
conduct and standards of peace officers. See § 24-31-303, C.R.S.
2024. Law enforcement agencies are required to report an officer’s
untruthfulness to POST, and they may be fined for failing to do so.
§ 24-31-303(1)(r)(II). Untruthfulness means a “peace officer
knowingly made an untruthful statement concerning a material fact
or knowingly omitted a material fact on an official criminal justice
record . . . during an internal affairs investigation or administrative
investigation and disciplinary process.” § 24-31-303(1)(r)(III).
E. Standards Governing Motions to Dismiss
1. Failure to State a Claim
¶ 29 We review a district court’s ruling on a motion to dismiss for
failure to state a claim de novo, “applying the same standards as
the [district] court.” Sch. Dist. No. 1 v. Masters, 2018 CO 18, ¶ 13
(citation omitted).
13 ¶ 30 Under C.R.C.P. 12(b)(5), a claim may be dismissed if it fails to
allege plausible facts upon which relief may be granted. Warne v.
Hall, 2016 CO 50. In ruling on a C.R.C.P. 12(b)(5) motion, the court
must accept all supporting factual allegations as true and view
them in the light most favorable to the nonmoving party. Norton v.
Rocky Mountain Planned Parenthood, Inc., 2018 CO 3, ¶ 7. But the
court is not required to accept as true legal conclusions that are
couched as factual allegations, or conclusory allegations
unsupported by the alleged facts. Warne, ¶ 27. When deciding a
motion to dismiss for failure to state a claim, a court may consider
the facts alleged in the pleadings and documents attached as
exhibits or incorporated therein by reference. Denver Post Corp. v.
Ritter, 255 P.3d 1083, 1087 (Colo. 2011).
2. Lack of Jurisdiction
¶ 31 C.R.C.P. 12(b)(1) requires the dismissal of a claim if the court
lacks jurisdiction over the subject matter. Whether the CGIA
applies to protect the government from suit is a question of subject
matter jurisdiction governed by the standards for dismissal under
C.R.C.P. 12(b)(1). Maphis v. City of Boulder, 2022 CO 10, ¶ 13. The
14 plaintiff carries the burden of proving that the government waived
its immunity with respect to the claim. Id.
¶ 32 If a plaintiff fails to establish facts supporting the conclusion
that a public employee’s actions or omissions were willful and
wanton, dismissal pursuant to C.R.C.P. 12(b)(1) is appropriate. See
Trinity Broad. of Denver, Inc. v. City of Westminster, 848 P.2d 916,
925 (Colo. 1993); § 24-10-118(2)(a). In contrast to the evaluation of
a C.R.C.P. 12(b)(5) motion, a court reviewing a C.R.C.P. 12(b)(1)
motion “need not treat the facts alleged by [the plaintiff] as true.”
Medina v. State, 35 P.3d 443, 452 (Colo. 2001) (quoting City of
Lakewood v. Brace, 919 P.2d 231, 244 (Colo. 1996)). Instead, if the
operative facts are disputed, the court may consider affidavits and
documents and, if necessary, conduct a limited hearing to resolve
disputed jurisdictional facts. See id.; Trinity, 848 P.2d at 924-25.
III. Analysis
¶ 33 Having set forth the applicable standards of review and
controlling law, we now turn to the merits of Oliveira’s appellate
claims.
15 A. The Due Process and ELEIA Claim
¶ 34 Oliveira argues that article II, section 25 of the Colorado
Constitution protects a public employee’s liberty interest in
preventing false statements made during the course of termination
that stigmatize the employee, thereby impeding future
employability. The Defendants do not dispute that article II, section
25 could be interpreted to protect such interest, but their brief does
not meaningfully develop the legal parameters or policy
considerations informing whether we should recognize such a claim
under Colorado’s due process clause.
¶ 35 We conclude that even if Colorado formally recognized this
type of liberty interest claim under article II, section 25, the claim
would be subject to the intra-governmental publication exception.
See, e.g., People v. Dunaway, 88 P.3d 619, 630 (Colo. 2004)
(interpreting Colorado’s due process clause in view of the Federal
Due Process Clause, and noting that “[w]here the analogous federal
and state constitutional provisions are textually identical, we have
always viewed cases interpreting the federal constitutional provision
as persuasive authority”); Workman, 32 F.3d at 481 (describing the
elements of the federal liberty interest claim in future employment);
16 Asbill, 726 F.2d at 1503 (describing and applying the intra-
governmental exception). Applying the exception, we conclude that
the assumed claim fails as a matter of law.
1. ELEIA’s Impact on a Liberty Interest Claim
a. Alleged Inconsistency
¶ 36 Oliveira argues that Colorado should not recognize the intra-
governmental exception to publication because the exception
insulates a public employer from liability for some types of false
communications that, if made by a private employer, would not be
subject to such an exception. Oliveira’s argument is premised on
the erroneous assumption that private employers would be subject
to a claim for violating a former employer’s due process rights by
providing false information. But such a claim is only actionable
against governmental employers and employees. See Jaffe v. City &
Cnty. of Denver, 15 P.3d 806, 812 (Colo. App. 2000) (The guarantee
of due process “has been applied only to ‘deliberate decisions of
government officials to deprive a person of life, liberty, or property.’”
(quoting Daniels v. Williams, 474 U.S. 327, 331 (1986))). Thus, we
do not perceive how recognizing the intra-governmental exception to
17 publication would create a disparity between public and private
employers.
¶ 37 Oliveira also argues that the intra-governmental exception
swallows any liberty interest claim because only governmental
employees can benefit from the liberty interest claim and yet
terminated governmental employees generally apply for future jobs
with governmental entities. Thus, the argument continues, if the
intra-governmental exception is applied it renders the employee’s
liberty interest claim meaningless.
¶ 38 But Oliveira points to nothing in the record that supports his
assumption that former governmental employees typically limit
their future employment searches to governmental entities. We
decline to base our analysis on this unsupported contention.
Woodbridge Condo. Ass’n v. Lo Viento Blanco, LLC, 2020 COA
34, 41 n.12 (“We don’t consider underdeveloped and unsupported
arguments.”), aff’d, 2021 CO 56. Moreover, the liberty interest
claim has existed at the federal level for years, subject to the intra-
governmental exception. Oliveira points to no authority suggesting
that the intra-governmental exception has swallowed the liberty
interest claim in the federal context.
18 ¶ 39 Oliveira’s disparity argument also assumes that governmental
employers and private employers are identically situated when it
comes to the obligation to report certain employment information.
But, as illustrated by the POST reporting requirements discussed in
Part III.A.1.b below, governmental employers and their employees
are often tasked with making reports for the public’s benefit that
may impact a former employee’s future employability. The
recognition and importance of these reporting obligations provides
the foundation of the intra-governmental exception to the
publication element of a liberty interest claim. See Alcorn, 784 F.
App’x at 619 (“[T]he ability to communicate the reasons for
terminating law enforcement officers to the agency tasked with
setting standards for and certifying those officers is essential to the
maintenance and integrity of local police departments.”). And they
justify application of the exception to governmental employers and
employees but not private employers. Id.
b. Policy Considerations
¶ 40 Oliveira next argues that recognizing the intra-governmental
exception contradicts ELEIA’s purpose and would be “poor public
19 policy because it encourages a government agency not to follow the
law.” We are not persuaded.
¶ 41 Section 13-21-131(1) unequivocally precludes a peace officer
from asserting sovereign immunity and the CGIA as defenses to a
claim that they deprived a person of “individual rights that create
binding obligations on government actors secured by the bill of
rights, article II of the [Colorado Constitution].” However, Oliveira
points to nothing in ELEIA suggesting that it modifies the elements
of individual tort claims asserted to protect those rights.
¶ 42 Absent a clear expression of the General Assembly’s intent, we
do not interpret legislation as abrogating common law rules:
Although the General Assembly possesses the authority to abrogate common law remedies, statutes may not be interpreted to abrogate the common law absent a clear expression of intent. A statute is not presumed to alter the common law except to the extent that such statute expressly provides.
....
. . . Absent a clearer and more specific statutory indication that the General Assembly actually intended to abrogate the fundamental common law rule . . . , we must presume that the General Assembly did not intend to change the common law rule.
20 Beach v. Beach, 74 P.3d 1, 4 (Colo. 2003) (citations omitted). In the
absence of the General Assembly’s express intent, we decline to
assume that it intended to abrogate the intra-governmental
exception to the publication element of a liberty interest claim.2
¶ 43 Nor are we persuaded by Oliveira’s argument that applying the
intra-governmental exception to POST disseminations “encourages
a government agency not to follow the law.” As previously noted,
POST mandates that law enforcement agencies report an officer’s
untruthful statements concerning a material fact made during an
internal affairs or administrative investigation and disciplinary
proceedings. § 24-31-303(1)(r)(II)-(III). If the intra-governmental
exception to publication were not recognized it would increase the
civil exposure for governmental employees accused of reporting
untruthful statements under POST.
¶ 44 POST and ELEIA serve a common purpose: to facilitate the
employment of quality law enforcement officers across Colorado
2 Indeed, no published Colorado case has recognized a Colorado
due process liberty interest in the circumstances presented here. It is particularly speculative to assume that the General Assembly intentionally modified a common law claim not yet recognized by a reported Colorado appellate case.
21 who are truthful and respect the constitutional rights of the public.
Indeed, ELEIA expressly recognizes the POST reporting
requirements and their benefit in facilitating ELEIA’s purpose.
If a person believes that an employer has violated the provisions of subsection (4)(b)(I) of this section, the person shall submit a complaint to the [POST] board, created in section 24-31-302, [C.R.S. 2024,] which shall refer the complaint to an administrative law judge to determine whether a violation occurred. The administrative law judge shall notify the [POST] board chair of a finding that a violation of subsection (4)(b)(I) of this section occurred. If a violation is found, the [POST] board shall not provide [POST] cash fund money to the employer for one full year from the date of the finding.
§ 13-21-131(4)(b)(II).
¶ 45 This type of reporting requirement, which the General
Assembly endorsed when passing ELEIA, is central to the purposes
of both ELEIA and the intra-governmental exception to the
publication element of a liberty interest claim. Thus, the failure to
recognize the intra-governmental exception for POST
communications would incentivize law enforcement agencies and
their employees not to robustly comply with POST reporting
22 requirements. This was not the General Assembly’s intent when
enacting ELEIA.
¶ 46 Noting the absence of an express legislative intent to modify
the common law elements of a liberty interest claim, and given our
obligation to read statutes as a whole in order to accord consistent,
harmonious, and sensible effect to all their parts, see Black
Diamond, 211 P.3d at 736, we decline Oliveira’s request that we
jettison the intra-governmental exception to the publication element
of a liberty interest claim.
2. Publication Analysis
¶ 47 Applying the intra-governmental exception to an assumed
liberty interest claim, the district court concluded that the
Defendants did not publish the allegedly stigmatizing information
related to Oliveira’s termination. In addition to his previously
addressed argument that we should not recognize the intra-
governmental exception, Oliveira argues that the court erred by
applying the intra-governmental exception to governmental
employees, rather than limiting its application to law enforcement
agencies. We disagree.
23 ¶ 48 Oliveira cites no legal authority that has held that the intra-
governmental exception applies only to agencies. And though he
asserts that Alcorn supports that conclusion, he is mistaken.
¶ 49 In Alcorn, a former police officer was terminated following an
investigation for allegedly falsifying her timesheets. 784 F. App’x at
616. Following her termination, the department notified POST. Id.
When she applied for another position in the same county, her
application was denied, in part, because the police department’s
investigation showed up in the background check. Id. at 617.
Alcorn alleged that the department and the police chief who
terminated her deprived her of her liberty interest in continued
employment by defaming her good name and reputation. Id. The
Tenth Circuit applied the intra-governmental exception and held
that Alcorn had failed to establish that the defendants deprived her
of a protected liberty interest. Id. In doing so, the court made no
distinction when applying the exception to the agency and its
individual officers. See id.; see also Workman, 32 F.3d at 480-81
(applying the intra-governmental exception when addressing claims
against the agency and its officer).
24 ¶ 50 In addition to the absence of authority, we see no rationale for
the distinction between officers and agencies that Oliveira urges.
After all, an agency’s POST reporting is necessarily based on the
actions of its employees, including law enforcement personnel.
Given this reality, it makes no sense to apply the exception to
agencies but not their employees.
¶ 51 Finally, we reject Oliveira’s belated appellate contention that
the district court erred by failing to consider whether his allegations
would be actionable publications based on the possible disclosure
of the POST-related materials to private employers. We reject this
argument because Oliveira’s amended complaint failed to allege that
he applied for any position with a private employer or even that the
POST reports were available to private employers. Given his failure
to allege these facts before the district court, we decline to address
them on appeal. See Cedar Lane Invs. v. Am. Roofing Supply of
Colo. Springs, Inc., 919 P.2d 879, 882 (Colo. App. 1996) (declining to
address claim not raised before the trial court); Alcorn, 784 F. App’x
at 620 (refusing to address argument that POST publications were
eventually made public because the contention was not raised
before the district court).
25 B. Common Law Tort Claims
¶ 52 Oliveira next argues that the district court erroneously
concluded that he failed to allege facts supporting his claim that the
Defendants acted willfully and wantonly. We disagree.
1. Applicable Law
¶ 53 Recall that claims in which the government raises sovereign
immunity as a defense are reviewed under Rule 12(b)(1), rather
than Rule 12(b)(5). A plaintiff carries the burden of proving that
governmental employees acted willfully and wantonly. Duke v.
Gunnison Cnty. Sheriff’s Off., 2019 COA 170, ¶¶ 31-32. It is not
sufficient for a plaintiff to establish that governmental employees
acted negligently; rather, the plaintiff must prove a “conscious
disregard of [a known] danger.” Martinez, ¶ 32.
2. Application
¶ 54 Oliveira reasons that the district court erred because someone
at the Department — he does not specify who — deprived him of the
right to a hearing to contest his termination. He seems to suggest
that if he had been granted a hearing, he would have clarified that
the text he sent to G.C. on June 18 was intended for someone else.
But Oliveira does not dispute that the Defendants were unaware of
26 these unasserted facts when they investigated the claim and
subsequently terminated him. Thus, the actions that they took
were based on the facts they had when they acted.
¶ 55 Moreover, Oliveira’s termination was not based solely on his
false statement that his communications with G.C. ended on
June 14. The termination was also based on the fact that Oliveira
used the Department-issued phone for purely personal
communications in violation of Department policies, was dishonest
about his initial contact with G.C. and how he provided his
telephone number to her, and misrepresented the general nature
and extent of their communications. Based on these facts, which
Oliveira does not meaningfully dispute, we perceive no error in the
district court’s finding that Oliveira failed to establish that any of
the Defendants’ actions were willful and wanton.
¶ 56 Finally, we reject Oliveira’s suggestion that we should adopt a
negligence-based standard for defining willful and wanton conduct
in the employment context. Specifically, he proposes the following
standard: “[A] supervisor acts willfully and wantonly if the
information he provides to prospective employers (public or private)
was false and the employer should have known it was false.” But
27 Oliveira cites no authority adopting the standard he proposes.
More importantly, the supreme court expressly rejected a
negligence-based standard for the definition of willful and wanton
as used in the CGIA: “[W]illful and wanton conduct is not merely
negligent; instead, it must exhibit a conscious disregard for the
danger.” Martinez, ¶ 32.
¶ 57 Because Oliveira failed to establish that any of the Defendants’
conduct was willful and wanton, we discern no error in the district
court’s finding that his common law claims are barred by the CGIA.
IV. Attorney Fees and Costs
¶ 58 Oliveira seeks attorney fees under ELEIA, which requires
courts to award a prevailing plaintiff reasonable attorney fees and
costs. § 13-21-131(3). Because the district court did not err by
granting the motion to dismiss, Oliveira’s claim for attorney fees
and costs necessarily fails.
V. Disposition
¶ 59 The district court’s judgment is affirmed.
JUDGE WELLING and JUDGE KUHN concur.