Castillo v. Denver Health

20CA2116 Castillo v Denver Health 01-06-2022

COLORADO COURT OF APPEALS

Court of Appeals No. 20CA2116

City and County of Denver District Court No. 20CV91

Honorable Andrew P. McCallin, Judge

TinaMarie Castillo, RN,

Plaintiff-Appellant,

v.

Denver Health and Hospital Authority,

Defendant-Appellee.

JUDGMENT REVERSED AND CASE

REMANDED WITH DIRECTIONS

Division A

Opinion by JUDGE LIPINSKY

Fox and Freyre, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced January 6, 2022

Law Office of John B. Roesler, John B. Roesler, Denver, Colorado, for

Plaintiff-Appellant

Lewis Brisbois Bisgaard & Smith LLP, Alice Conway Powers, Denver, Colorado,

for Defendant-Appellee

1

¶ 1

TinaMarie Castillo appeals the district court’s dismissal of her

claims against Denver Health and Hospital Authority (Denver

Health) for lack of subject matter jurisdiction under

C.R.C.P. 12(b)(1). We reverse and remand for further proceedings.

I. Background Facts and Procedural History

¶ 2

Denver Health employed Castillo as its Senior RN Clinical Risk

Manager. In that role, Castillo was “responsible for the clinical

review and analysis of significant occurrences as related to risk

management, quality, and patient safety” at Denver Health.

¶ 3

Denver Health used the term “sentinel event” to refer to “the

injury or death of a patient during medical treatment.” Denver

Health was required to report all sentinel events to the Colorado

Department of Public Health and Environment (CDPHE) and to The

Joint Commission, “a national independent not-for-profit healthcare

accrediting body.”

¶ 4

Denver Health tasked Castillo with, among other

responsibilities, “gathering all the facts for the root cause analysis

[of a sentinel event] and putting together an emergency meeting”

where “all persons who were involved in the sentinel event”

2

determine what “prospective changes are necessary to make sure

that such a sentinel event never happens again.”

¶ 5

Denver Health conducted such an emergency meeting

following a sentinel event in its OB/GYN department involving the

death of an infant. Castillo alleged that, at the meeting, the director

of Denver Health’s OB/GYN department “minimize[d] the

. . . sentinel event” by “refus[ing] to acknowledge that the sentinel

event had occurred because there had been a significant deviation

from the [s]tandard of [c]are involving failure to properly monitor

vital signs of the fetus.”

¶ 6

Castillo reported her “ethical and compliance concerns” about

the director’s behavior to Denver Health’s general counsel and then,

as the general counsel instructed, to Denver Health’s chief quality

officer. Hours after reporting those concerns to Denver Health’s

chief quality officer, Castillo’s supervisor removed Castillo from her

position and placed her on unpaid administrative leave. Castillo’s

supervisor told Castillo that she had two weeks to resign or find

another position at Denver Health. Denver Health terminated

Castillo’s employment twelve days later on the grounds that she

3

had allegedly deleted all her computer files in violation of Denver

Health’s record-keeping policy.

¶ 7

Castillo brought claims against Denver Health for breach of

implied contract, breach of the covenant of good faith and fair

dealing, and promissory estoppel. In her complaint, Castillo

contended that Denver Health terminated her employment because

she had reported her ethical and compliance concerns regarding the

behavior of the director of the OB/GYN department. Castillo

asserted that Denver Health required its employees to report such

concerns and adopted policies (Denver Health’s policies) to protect

its employees from retaliation for making such reports.

¶ 8

Denver Health moved to dismiss Castillo’s claims, asserting

that the district court lacked subject matter jurisdiction to hear

them under the Colorado Governmental Immunity Act (the Act),

§§ 24-10-101 to -120, C.R.S. 2021, because they “lie in tort or could

lie in tort,” § 24-10-106(1), C.R.S. 2021. Denver Health noted that,

as a public entity, it was immune from liability for tort claims,

“regardless of whether [they] may be the type of action[s] or the form

of relief chosen by the claimant,” except as otherwise provided in

the Act.

4

¶ 9

Further, Denver Health argued that Castillo’s claims failed

because she had not complied with “the jurisdictional perquisite

[sic] of filing a notice of claim including written notice as required

by [section 24-10-109(1), C.R.S. 2021].” Section 24-10-109

imposes a reporting requirement on “[a]ny person claiming to have

suffered an injury by a public entity or by an employee thereof while

in the course of such employment.” § 24-10-109. Compliance with

the statute is a condition precedent to bringing a tort claim against

the public entity. Sussman v. Univ. of Colo. Health Scis. Ctr.,

706 P.2d 443, 445 (Colo. App. 1985). Section 24-10-109 does not

apply to claims for breach of contract. Ebke v. Julesburg Sch. Dist.

No. RE-1, 37 Colo. App. 349, 351, 550 P.2d 355, 358 (1976), aff’d,

193 Colo. 40, 562 P.2d 419 (1977).

¶ 10

Denver Health specifically asserted that Castillo’s claims

“qualify for the public policy exception[] to the at-will employment

doctrine” because she alleged that she suffered retaliation “for

whistleblowing about ethical and compliance concerns at a

hospital.” As explained below, claims arising from retaliation for

whistleblowing lie in tort. Denver Health argued that Castillo’s

5

claims were subject to dismissal because they were effectively tort

claims that are barred under the Act.

¶ 11

Castillo responded that she was not a “whistleblower” for

purposes of Colorado’s State Employee Protection Act (SEPA),

§§ 24-50.5-101 to -107, C.R.S. 2021, and that no other viable

public policy exception was available to her. Because Denver

Health “did not direct [her] to perform an illegal act[,] . . . prohibit

[her] from performing a public duty[,] . . . or [prohibit her] from

exercising an important job-related right or privilege,” Castillo

contended that her claims did not satisfy the first element of a

claim for wrongful discharge in violation of public policy — refusal

to participate in illegal activity. See Martin Marietta Corp. v. Lorenz,

823 P.2d 100, 107 (Colo. 1992) (identifying the elements that an at-

will employee must plead to establish a prima facie case for

wrongful discharge under the public policy exception). Thus, she

asserted that she was not required to file a notice of claim under

section 24-10-109(1) because her claims lay “solely in contract.”

¶ 12

In its reply in support of its dismissal motion, Denver Health

said that Castillo had a duty to report ethical and compliance

concerns that arose independently from Denver Health’s policies.

6

In addition, Denver Health argued that “[t]he rule-based right

related to public health allegedly exercised by [Castillo] was the

right to report ethical and compliance concerns based on [Denver

Health’s policies].”

¶ 13

The district court granted Denver Health’s motion, concluding

that “[a] termination based on exercising a job-related right

associated with public health, such as reporting compliance

concerns in accordance with [Denver Health’s] policies, is sufficient

to allege[] a claim for wrongful discharge in violation of public

policy.” The court said that, regardless of how Castillo

characterized her claims, she had alleged a breach of “tort duties”

and, therefore, “this action could lie in tort.” For this reason, the

court held that Denver Health “can claim immunity under the

[Act].”

II. Analysis

¶ 14

The principal issue in this appeal is whether, as a matter of

law, Castillo’s claims could lie in tort. If so, the district court

correctly dismissed her claims. If not, the district court’s judgment

must be reversed.

7

¶ 15

Castillo asserts that the district court erred by granting

Denver Health’s motion to dismiss because she could not have

brought claims for wrongful discharge in violation of public policy.

According to Castillo, the district court misapplied the law by

conflating two concepts. She argues that, under Colorado case law,

an employer’s curtailment of a “job-related right” supports an

employee’s claim for wrongful discharge in violation of public policy.

Castillo says that Denver Health did not curtail any of her “job-

related rights.” Rather, she contends that her claims were

contractual because they arose from the exercise of her “job-related

responsibilities and duties.”

¶ 16

So, the outcome of this case hinges on whether, as Denver

Health argues, Castillo alleged that Denver Health retaliated against

her for exercising a “job-related right” to “blow the whistle” based on

a duty external to Denver Health’s policies, or whether, as Castillo

asserts, Denver Health terminated her employment because she

exercised “job-related responsibilities and duties.”

¶ 17

Denver Health responds that the district court did not err in

analyzing the public policy exception to the at-will employment

doctrine and that Castillo’s arguments on appeal are frivolous.

8

Denver Health requests an award of its appellate attorney fees

under C.A.R. 38.

¶ 18

We hold that the district court erred by dismissing Castillo’s

claims because she did not plead facts that would support a claim

for wrongful discharge in violation of public policy. Accordingly, we

remand the case to the district court for further proceedings

consistent with this opinion and deny Denver Health’s request for

an award of appellate attorney fees.

A. Preservation

¶ 19

Before turning to the merits of Castillo’s argument regarding

the nature of her claims, we must determine whether Castillo

preserved it. See Rinker v. Colina-Lee, 2019 COA 45, ¶ 22, 452 P.3d

161, 167 (“We do not review issues that have been insufficiently

preserved.”).

¶ 20

According to Denver Health, Castillo failed to assert in her

response to its motion to dismiss, as she does now, that Denver

Health did not terminate her employment for exercising a “job-

related right.” Instead, Denver Health contends that Castillo argued

in her response that she did not satisfy the first element of a claim

for wrongful discharge in violation of public policy for the sole

9

reason that Denver Health did not direct her to perform an illegal

act.

¶ 21

While Castillo indeed raised this argument in her response to

Denver Health’s dismissal motion, she also asserted that she could

not have brought a claim for wrongful discharge in violation of

public policy because Denver Health did not “prohibit [her] from

performing a public duty or from exercising an important job-

related right or privilege.” (Citations omitted.) Castillo presented

these assertions under a heading entitled “No Viable Public Policy

Exception was Available to [Castillo].”

¶ 22

Although, in her response, Castillo did not specifically discuss

what constitutes a “job-related right” for purposes of the public

policy exception to the at-will employment doctrine, she had no

reason to do so because Denver Health did not argue in its

dismissal motion that she could have premised a claim for wrongful

discharge in violation of public policy on her exercise of a “job-

related right.” Denver Health raised this argument for the first time

in its reply brief in support of the dismissal motion.

¶ 23

Moreover, given our holding below that Castillo did not

exercise a “job-related right” by reporting her compliance concerns

10

to Denver Health, infra Part II.E.1, Castillo had no reason to raise

an argument in her response to Denver Health’s motion premised

on her exercise of a “job-related right” and explain why it could not

have supported a tort claim for wrongful discharge.

¶ 24

Finally, the district court addressed Denver Health’s “job-

related right” argument, holding that Castillo pleaded facts that

would support a claim for wrongful termination in violation of

public policy because she “exercis[ed] a job-related right associated

with public health.” Although, in responding to the motion to

dismiss, Castillo did not explain with any specificity what

constitutes a “job-related right,” we conclude that Castillo

sufficiently preserved her assertion that she did not plead facts that

could have supported a claim for wrongful discharge in violation of

public policy and, specifically, that she did not exercise a “job-

related right” when she reported her ethical and compliance

concerns to Denver Health. See In re Estate of Owens, 2017 COA

53, ¶ 21, 413 P.3d 255, 261-62 (“Where an issue was brought to

the district court’s attention and the court ruled on it, it is

preserved for appellate review; no talismanic language is required to

preserve an issue.”).

11

B. Standard of Review

¶ 25

“Whether a claim falls within an exception to the [Act’s] waiver

of sovereign immunity is a question of subject matter jurisdiction

and, if raised before trial, it appropriately is addressed under

C.R.C.P. 12(b)(1).” Fogg v. Macaluso, 892 P.2d 271, 277 (Colo.

1995). “[W]here a plaintiff has sued a governmental entity and that

entity interposes a motion to dismiss for lack of jurisdiction, the

plaintiff has the burden of demonstrating that governmental

immunity has been waived.” Tidwell v. City & Cnty. of Denver,

83 P.3d 75, 85 (Colo. 2003).

¶ 26

“[W]here, as here, the relevant facts are undisputed, the issue

of governmental immunity is one of law, and the district court may

rule on the jurisdictional issue without a hearing.” Foster v. Bd. of

Governors of the Colo. State Univ. Sys., 2014 COA 18, ¶ 10,

342 P.3d 497, 500. In such circumstances, we review the district

court’s jurisdictional ruling de novo. Tidwell, 83 P.3d at 81; see

Robinson v. Colo. State Lottery Div., 179 P.3d 998, 1003 (Colo. 2008)

(“We review the issue of whether [the plaintiff’s] claims are barred

by the [Act] de novo because [they] concern[] a matter of statutory

construction.”).

12

C. Immunity Under the Act

¶ 27

The Act provides that “[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.” § 24-10-106(1); see § 24-10-108,

C.R.S. 2021 (same). While the Act does not bar claims that lie

solely in contract, it bars “claims that could arise in both tort and

contract.” Robinson, 179 P.3d at 1004.

¶ 28

Under the Act, “the form of the complaint is not determinative

of the claim’s basis in tort or contract.” Id. at 1003. “Instead, we

consider both the nature of the injury and the relief sought.” Elder

v. Williams, 2020 CO 88, ¶ 21, 477 P.3d 694, 698. “Although the

nature of the relief requested is not dispositive on the question of

whether a claim lies in tort, the relief requested informs our

understanding of the nature of the injury and the duty allegedly

breached.” Robinson, 179 P.3d at 1003.

D. Wrongful Discharge in Violation of Public Policy

¶ 29

“In general, employment contracts are at-will and either the

employer or the employee may terminate the relationship at any

time” without incurring legal liability. Rocky Mountain Hosp. &

13

Med. Serv. v. Mariani, 916 P.2d 519, 523 (Colo. 1996). However, the

supreme court has “recognized an exception to this general rule in

situations where the employer terminated the employment contract

in violation of public policy.” Id.; see Lorenz, 823 P.2d at 108 (“[A]

cause of action under the public-policy exception to the at-will

employment doctrine in cognizable in the State of Colorado.”).

¶ 30

The public policy exception generally allows “at-will employees

to pursue claims for wrongful discharge if they allege that they were

discharged because they either (1) refused to engage in conduct

that would violate public policy, or (2) engaged in conduct that is

protected or encouraged as a matter of public policy.” Coors

Brewing Co. v. Floyd, 978 P.2d 663, 666-67 (Colo. 1999). Claims

for wrongful discharge lie in tort. See Lorenz, 823 P.2d at 113.

Claims for wrongful discharge under the

public-policy exception have included

termination of employees for: (1) refusal to

participate in illegal activity, (2) the employee’s

refusal to forsake the performance of an

important public duty or obligation, (3) the

employee’s refusal to forego the exercise of a

job-related legal right or privilege, (4) the

employee’s “whistleblowing” activity or other

conduct exposing the employer’s wrongdoing,

and (5) the employee’s performance of an act

that public policy would encourage under

circumstances where retaliatory discharge is

14

supported by evidence of [the] employer’s bad

faith, malice, or retaliation.

Id. at 107 (citations omitted).

¶ 31

“The essence of the public-policy exception is that an employee

will have a cognizable claim for wrongful discharge ‘if the discharge

of the employee contravenes a clear mandate of public policy.’” Id.

(quoting Thompson v. St. Regis Paper Co., 685 P.2d 1081, 1089

(Wash. 1984)). Although “public-policy wrongful discharge is not

subject to precise definition,” Crawford Rehab. Servs., Inc. v.

Weissman, 938 P.2d 540, 552 (Colo. 1997),

[a] common requirement in cases discussing

the issue is that [the] public policy must

concern behavior that truly impacts the public

in order to justify interference into an

employer’s business decisions. In addition,

[the] public policy must be clearly mandated

such that the acceptable behavior is concrete

and discernible as opposed to a broad

hortatory statement of policy that gives little

direction as to the bounds of proper behavior.

Mariani, 916 P.2d at 525.

E. Discussion

¶ 32

Because Denver Health is a “public entity” for purposes of the

Act, see § 24-10-103(5), C.R.S. 2021 (“‘Public entity’ means . . . any

county, city and county, . . . or political subdivision thereof

15

organized pursuant to law . . . .”); § 25-29-103(1), C.R.S. 2021

(“There is hereby created [Denver Health], which shall be a body

corporate and a political subdivision of the state . . . .”), and

because Castillo did not provide notice of her claims under section

24-10-109(1), Castillo concedes that the Act bars her from bringing

claims against Denver Health that either “lie in tort or could lie in

tort,” § 24-10-106(1). Thus, because a claim for wrongful discharge

in violation of public policy lies in tort, see Lorenz, 823 P.2d at 113,

our analysis focuses on whether Castillo pleaded facts that would

support a tort claim. If Castillo’s claims neither lie in tort nor could

lie in tort, the Act does not bar them.

¶ 33

In Lorenz, the supreme court listed five expressions of public

policy that appellate courts across the country have held give rise to

cognizable claims for wrongful discharge in violation of public

policy. Id. at 107. The district court found that the third

expression of public policy was applicable to this case — Castillo’s

“refusal to forego the exercise of a job-related legal right or

privilege,” id. — and, consequently, held that Castillo could have

brought a tort claim for wrongful discharge in violation of public

policy.

16

¶ 34

Although we disagree with the district court’s reasoning, as we

explain further infra Part II.E.1, such determination does not end

our analysis. Because “[t]he identification of a sufficiently clear

expression of public policy is an issue of law for the court,” Kearl v.

Portage Env’t, Inc., 205 P.3d 496, 498 (Colo. App. 2008), and

because the parties do not dispute the facts surrounding Castillo’s

termination, we must also consider whether Castillo pleaded facts

that implicate any other expression of public policy that would

support a claim for wrongful discharge in violation of public policy,

see Tidwell, 83 P.3d at 81 (holding that we review a district court’s

jurisdictional ruling de novo when there is no evidentiary dispute).

Based on the facts Castillo pleaded, the parties’ arguments in the

district court and in this court, and the district court’s reliance on

the holding in Kearl, two additional expressions of public policy

could potentially support such a claim: (1) Castillo’s “refusal to

forsake the performance of an important public duty or obligation”

and (2) her “‘whistleblowing’ activity or other conduct exposing

[Denver Health]’s wrongdoing.” Lorenz, 823 P.2d at 107. We

consider these expressions of public policy after addressing whether

17

Castillo exercised a “job-related right” by reporting her compliance

concerns.

1. The District Court Erred by Holding that Castillo Exercised a

“Job-Related Right” by Reporting Her Compliance Concerns

¶ 35

We agree with Castillo that the district court erred by

conflating the concept of a “job-related right” with “job-related

responsibilities and duties.”

¶ 36

After holding that “a cause of action under the public-policy

exception to the at-will employment doctrine is cognizable in the

State of Colorado,” Lorenz, 823 P.2d at 108, the supreme court

explained that it “kn[ew] of no reason why the public-policy

exception should not apply to the discharge of an employee

. . . because of . . . the employee’s exercise of a statutory right or

privilege granted to workers,” id. at 109 (emphasis added). The

court cited to Lathrop v. Entenmann’s, Inc., 770 P.2d 1367 (Colo.

App. 1989), and Frampton v. Central Indiana Gas Co., 297 N.E.2d

425 (Ind. 1973), to support the latter statement. See Lorenz,

823 P.2d at 109.

¶ 37

Lathrop and Frampton recognized a cognizable claim for

wrongful discharge in violation of public policy after the employer

18

terminated the employee for filing a workers’ compensation claim.

See Lathrop, 770 P.2d at 1373 (“[S]ince an employee is granted the

specific right to apply for and receive compensation under the Act,

an employer’s retaliation against such an employee for his exercise

of such right violates Colorado’s public policy.”); Frampton,

297 N.E.2d at 428 (“[U]nder ordinary circumstances, an employee

at will may be discharged without cause. However, when an

employee is discharged solely for exercising a statutorily conferred

right an exception to the general rule must be recognized.”).

¶ 38

Since Lorenz, the Colorado appellate courts have

acknowledged only a limited number of “job-related rights” that can

support a claim for wrongful discharge in violation of public policy.

See Weissman, 938 P.2d at 553 (“The General Assembly is the

branch of government charged with creating public policies, and the

courts may only recognize and enforce such policies.”). Other than

directing us to Kearl — which addressed the public policy of

granting relief to a whistleblower whose employment was

terminated for exposing his employer’s attempts to defraud the

government, and not for exercising a “job-related right,” 205 P.3d at

499 — the parties do not cite to a single case in which the courts

19

recognized a cognizable claim for wrongful discharge based on an

employee’s termination for exercising a “job-related right.”

¶ 39

Our research has uncovered only three employment

termination cases holding that the employer had violated a “job-

related right.” See Bonidy v. Vail Valley Ctr. for Aesthetic Dentistry,

P.C., 186 P.3d 80, 84-85 (Colo. App. 2008) (holding that the

Department of Labor and Employment’s wage order “constituted a

clearly expressed public policy” concerning the dental employee’s

right to take a lunch break); Herrera v. San Luis Cent. R.R. Co.,

997 P.2d 1238, 1240 (Colo. App. 1999) (holding that because the

Federal Employers’ Liability Act provided the employee the “right to

seek compensation for his work-related injury,” it constituted “a

recognized public policy exception to the at-will employment

doctrine”); Hoyt v. Target Stores, 981 P.2d 188, 192 (Colo. App.

1998) (holding that “the Colorado Wage Claim Act clearly

establishes as public policy that employees are entitled to be paid

for the time they work”). Indeed, the supreme court rejected a

wrongful discharge claim based on a statutory right that did not

truly impact the public. See Weissman, 938 P.2d at 553 (holding

that the Department of Labor and Employment’s wage order “d[id]

20

not rise to the level of a public-policy mandate susceptible to private

enforcement” concerning a clerical typist’s right to take rest breaks).

¶ 40

These cases demonstrate that a court will only recognize a

“job-related right” as an expression of public policy if such right is

clearly expressed in a statute or an administrative regulation.

¶ 41

We can discern no direct or indirect reference to a “job-related

right” in Castillo’s complaint. Neither the district court nor the

parties cite to any legal authority granting Castillo the right to

report her compliance and ethical concerns to Denver Health. And

Castillo did not enjoy such a right simply because she was a

registered nurse. See Jaynes v. Centura Health Corp., 148 P.3d

241, 244-45 (Colo. App. 2006) (holding that neither the American

Nurses Association’s policies nor the American Association of

Critical-Care Nurses’ policies serve as expressions of public policy);

Lampe v. Presbyterian Med. Ctr., 41 Colo. App. 465, 468, 590 P.2d

513, 515 (1978) (holding that the Colorado statute defining and

regulating the nursing profession does not confer on nurses a

“specifically enacted right” to raise concerns about staffing levels at

a hospital).

21

¶ 42

Thus, we conclude that the district court erred by holding that

Castillo could have brought a claim for wrongful discharge in

violation of public policy premised on her exercise of a “job-related

right.”

2. Castillo Did Not Have an “Important

Public Duty” to Report Her Concerns

¶ 43

We now turn to whether Castillo had an “important public

duty” to report her compliance and ethical concerns. See Lorenz,

823 P.2d at 107 (“Claims for wrongful discharge under the public-

policy exception have included termination of employees for . . . the

employee’s refusal to forsake the performance of an important public

duty or obligation . . . .”) (emphasis added).

¶ 44

Denver Health contends that Castillo had a duty to report

such concerns and that her duty was “triggered by statutory

requirements and other legal and ethical obligations” binding on

Castillo in her capacity as Denver Health’s Senior RN Clinical Risk

Manager. Thus, according to Denver Health, Castillo’s “duty to

report is not limited to [its] policies.” However, again, the parties

fail to direct us to any specific authority — other than Denver

Health’s policies — imputing such a duty to Castillo.

22

¶ 45

Denver Health points to the following allegation in Castillo’s

complaint:

[Denver Health] is required to timely report all

sentinel events to the . . . CDPHE and The

Joint Commission, and is thereafter required

to conduct a “root cause analysis” to determine

why the sentinel event occurred. [Denver

Health] is also statutorily mandated to report

deaths, including all fetal deaths that occur in

[its] OB/GYN Department, to CDPHE.

Assuming that Castillo’s statement is accurate, Denver Health, and

not Castillo, had a duty to report sentinel events to the external

authorities. Nothing in the statement required Castillo to

personally report anything — internally at Denver Health or

externally. Denver Health does not argue that Castillo had specific

reporting duties beyond those enumerated in its policies.

¶ 46

It is also unclear from the parties’ arguments when Castillo’s

(or Denver Health’s) alleged duty to report was triggered. Denver

Health does not dispute Castillo’s assertion that it terminated her

employment for raising concerns regarding a “yet uncompleted

internal risk management investigation.” Thus, even though

Castillo had a duty to report her concerns to Denver Health, we

23

cannot discern whether that duty was triggered before Denver

Health terminated her employment.

¶ 47

For these reasons, we conclude that Castillo did not have an

“important public duty or obligation” to report her ethical and

compliance concerns. See Lorenz, 823 P.2d at 107. Any such duty

emanated solely from Denver Health’s internal policies. This type of

duty cannot support a claim for wrongful discharge in violation of

public policy. See Mariani, 916 P.2d at 525 (holding that the

“public policy must be clearly mandated”).

3. Castillo Did Not Engage in a Whistleblowing Activity

When She Reported Her Compliance Concerns

¶ 48

Although the district court held that Castillo exercised a “job-

related right” by voicing her ethical and compliance concerns, it

predominately based its reasoning on Kearl, which, as noted above,

addressed an employee’s termination for whistleblowing. 205 P.3d

at 499. Thus, we consider whether Castillo pleaded facts

supporting a claim for wrongful discharge in violation of public

policy due to “‘whistleblowing’ activity or other conduct exposing

[Denver Health’s] wrongdoing.” Lorenz, 823 P.2d at 107.

24

¶ 49

We conclude that Castillo did not engage in “whistleblowing

activity” by reporting her compliance concerns to Denver Health for

two reasons.

¶ 50

First, Castillo did not plead that Denver Health had violated

SEPA, which protects state employees from retaliatory discharge for

whistleblowing. See § 24-50.5-103(1), C.R.S. 2021 (“[A]n appointing

authority or supervisor shall not initiate or administer any

disciplinary action against [a State of Colorado] employee on

account of the employee’s disclosure of information.”). Although

Castillo allegedly observed the director of Denver Health’s OB/GYN

department “minimize the . . . sentinel event” by “refus[ing] to

acknowledge that the sentinel event had occurred because there

had been a significant deviation from the [s]tandard of [c]are

involving failure to properly monitor vital signs of the fetus,” she did

not allege that Denver Health had violated the law. Rather, Castillo

voiced concerns regarding her perception of the director’s attitude

toward the sentinel event. She did not allege that the director had

covered up the sentinel event or that he would cover up a similar

event in the future. And she did not allege that Denver Health was

complicit in the director’s alleged mishandling of the situation.

25

¶ 51

Moreover, Castillo’s subjective belief that “there had been a

significant deviation from the [s]tandard of [c]are,” without more, is

insufficient to form the basis of a claim for wrongful discharge in

violation of public policy. See Goodman v. Wesley Med. Ctr., L.L.C.,

78 P.3d 817, 822-23 (Kan. 2003) (“It would be both troublesome

and unsettling to the state of the law if we were to allow a

retaliatory discharge claim to be based on a personal opinion of

wrongdoing.”). As noted above, the public policy “must be clearly

mandated such that the acceptable behavior is concrete and

discernible as opposed to a broad hortatory statement of policy that

gives little direction as to the bounds of proper behavior.” Mariani,

916 P.2d at 525.

¶ 52

Other than her general reference to a failure to monitor fetal

vital signs properly, Castillo did not plead how Denver Health failed

to conform to an applicable standard of care. Significantly, Castillo

did not point to a particular standard of care, such as an ethical

rule applicable to physicians, nurses, hospitals, or public health

agencies, that she believed Denver Health had violated. See

Goodman, 78 P.3d at 823 (“Because the [Kansas Nurse Practice Act]

does not provide definite or specific rules, regulations, or laws, it

26

cannot be the basis for a retaliatory discharge claim.”). The mere

existence of a sentinel event does not establish a violation of some

unspecified standard of care.

¶ 53

Second, for purposes of SEPA, Castillo did not “disclos[e]

. . . information” about Denver Health’s alleged violation of the

standard of care. § 24-50.5-103. Although Castillo discussed her

ethical and compliance concerns with Denver Health’s general

counsel and chief quality officer, her actions did not amount to a

“disclosure of information” — she did not plead that Denver Health

had violated the public interest. See Ferrel v. Colo. Dep’t of Corr.,

179 P.3d 178, 186 (Colo. App. 2007) (“[A]lthough the statutory

definition for disclosure does not use the phrase ‘public concern,’

§ 24-50.5-101[, C.R.S. 2021,] clearly contemplates that such

disclosures must relate to information about agency conduct

contrary to the ‘public interest.’”); § 24-50.5-102(2), C.R.S. 2021

(defining “[d]isclosure of information”).

¶ 54

Thus, under the facts Castillo pleaded, we conclude that she

could not have brought a claim for wrongful discharge in violation

of public policy for whistleblowing.

27

¶ 55

In sum, the district court erred by dismissing Castillo’s claims.

Castillo did not plead facts supporting a “clearly expressed public

policy.” Mariani, 916 P.2d at 524. And without a clear expression

of public policy supporting her claims, Castillo could not have

established the second element of an action for wrongful discharge

in violation of public policy — “that the action directed by the

employer would violate a specific statute relating to the public

health, safety, or welfare, or would undermine a clearly expressed

public policy relating to the employee’s basic responsibility as a

citizen or the employee’s right or privilege as a worker.” Lorenz,

823 P.2d at 109.

F. Appellate Attorney Fees

¶ 56

Because the district court erred by dismissing Castillo’s

claims, we hold that Castillo’s appeal is not frivolous. Thus, we

decline to award appellate attorney fees to Denver Health. See

Calvert v. Mayberry, 2019 CO 23, ¶ 42, 440 P.3d 424, 434

(“Colorado law provides that a court shall assess attorney[] fees

against a party if the party brought an action that lacked

substantial justification or was for the purpose of delay or

harassment.”); C.A.R. 38(b) (providing that an appellate court may

28

award attorney fees when an appeal is frivolous); see also Ferrel,

179 P.2d at 189 (holding that a party that successfully defends a

dismissal order under the Act for lack of subject matter jurisdiction

is entitled to recover reasonable attorney fees on appeal).

III. Conclusion

¶ 57

The district court’s judgment is reversed, and the case is

remanded for further proceedings.

JUDGE FOX and JUDGE FREYRE concur.