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State Personnel Board3/7/1988
JUSTICE ERICKSON delivered the Opinion of the Court.
Following his discharge by the Fort Logan Mental Health Center, the respondent, Doctor Judson F. Lloyd, filed suit in Denver District Court alleging, among other grounds, retaliatory discharge under the whistleblower statute, section 24-50.5-103, 10 C.R.S. (1980 Supp.). The district court granted the petitioners' motion for summary judgment finding that, before initiating the action, the respondent had failed to comply with the 180-day notice of claim requirement of section 24-10-109, 10 C.R.S. (1973 & 1981 Supp.), of the Colorado Governmental Immunity Act. At the respondent's request, a final judgment was entered pursuant to C.R.C.P. 54(b), and the summary judgment was appealed to the court of appeals. The court of appeals, however, concluded that the provisions of the Immunity Act do not apply to actions under the whistleblower statute and reversed the district court's dismissal of the claim. Lloyd v. State Personnel Bd., 710 P.2d 1177 (Colo. App. 1985). We granted certiorari under C.A.R. 49 to determine whether an action brought under the whistleblower statute is subject to the notice provisions of section 24-10-109. The issue of substantial compliance with the notice provisions of section 24-10-109 was before the court of appeals, but was not an issue which we accepted for review when we granted certiorari and that issue was not briefed in this court. Since the issue is not properly before us on certiorari, we do not address it on appeal. See Berge v. Berge, 189 Colo. 103, 536 P.2d 1135 (1975); see also Carpenter v. Connecticut General Life Ins. Co., 68 F.2d 69 (10th Cir. 1933) (assignments of error not raised either at oral argument or in brief are abandoned); Contes v. Metros, 111 Colo. 561, 144 P.2d 782 (1943) (error will not be considered on review by Colorado Supreme Court if not argued in brief). We now reverse and remand to the court of appeals with directions to affirm the dismissal of the whistleblower claim by the district court.
I.
On December 4, 1979, Lloyd was hired as a physician on a probationary basis by the Department of Institutions, Division of Mental Health, Fort Logan Mental Health Center. In an evaluation covering the period from December 4, 1979, to June 30, 1980, Lloyd received an "above standard" rating and was described as overly conscientious, friendly, and medically current. After the favorable evaluation, Lloyd notified his supervisors of his concern about the propriety of certain medical practices at Fort Logan.
When his supervisors ignored his actions, Lloyd wrote letters to the American Civil Liberties Union and the Mile High Medical Association alleging numerous violations of the civil liberties of mental health patients at Fort Logan. He contended that the facility used excessive restraints and medication on patients and administered substandard medical care, which resulted in at least one death. He also notified one of his supervisors of the letters.
On August 18, 19, and 20, Lloyd met with his immediate supervisor, the president of the medical staff, and the acting director of Fort Logan to discuss his behavior. Lloyd informed them that he had encouraged the family of a patient who had died at Fort Logan to file a lawsuit against the facility. He refused to discontinue his involvement with the family and to comply with the directions of his supervisors. On August 20, 1980, Lloyd was dismissed for insubordination and exercising poor
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