                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                              AUG 28 2001
                                    TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk

 KENNA RAE MERCER,

          Plaintiff-Appellant,
 v.

 THE BOARD OF TRUSTEES FOR THE
 UNIVERSITY OF NORTHERN
 COLORADO; JUDITH PRAUL,
                                                            No. 00-1163
                                                      (D.C. No. 96-WM-1375)
           Defendants,
                                                       (District of Colorado)
 JANICE MARTIN; RIK D’AMATO;
 ELLIS COPELAND; and JOHN and
 JANE DOE, whose true names are
 unknown,

          Defendants-Appellees.




                                 ORDER AND JUDGMENT*


Before EBEL, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and BRIMMER,**
District Judge.




      *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
      **
         Honorable Clarence A. Brimmer, District Judge, United States Court for the
District of Wyoming, sitting by designation.
       Kenna Rae Mercer (“Mercer”) enrolled in a graduate program at the University of

Northern Colorado (“UNC”) in the fall of 1993. In March, 1996, she was dismissed from

that program. As a result of her dismissal from the program, Mercer, pursuant to 42

U.S.C. § 1983, brought suit on June 11, 1996, in the United States District Court for the

District of Colorado. The named defendants were the Board of Trustees for UNC, who

were not identified by name, Janice Martin, Rik D’Amato, Ellis Copeland, Judith Praul,

and John and Jane Doe, employees of UNC.

       In her complaint, Mercer identified the defendants and under the heading “General

Allegations,” set forth in great detail a chronology of the problems she had at UNC.

Mercer then asserted eight claims for relief. The first claim for relief was against all

defendants for deprivation of a liberty interest without due process of law pursuant to 42

U.S.C. § 1983. A second claim for relief was against the Board of Trustees for

deprivation of a property interest pursuant to 42 U.S.C. § 1983. The third claim for relief

was against all defendants and alleged a conspiracy pursuant to 42 U.S.C. § 1983. The

fourth claim for relief was a pendent state claim against Martin for defamation. 28 U.S.C.

§ 1367. The fifth claim was also a pendent claim against the Board of Trustees for breach

of contract. The sixth claim for relief was against Martin “in her individual capacity for

outrageous conduct.” The seventh claim for relief was against Martin, Copeland,

D’Amato and Praul in their individual capacities and John and Jane Doe for tortious

interference with a contractual relationship. The eighth claim for relief was against

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Martin, Copeland, D’Amato and Praul for “conspiracy.”

       All defendants filed motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and

(6). On September 13, 1996, Mercer filed an amended complaint in which she again

alleged the eight claims for relief previously pled, but indicated that she only sought

equitable relief from the Board of Trustees (not monetary damages) and that the

individual defendants were being sued only in their individual capacities. On January 22,

1997, all parties consented to the dismissal of Praul as a defendant. Thereafter, on March

13, 1997, Martin filed a renewed motion to dismiss and for summary judgment, and, on

April 4, 1997, the other defendants filed a motion for summary judgment pursuant to Fed.

R. Civ. P. 56(b).

       After oral argument, the district court on June 15, 1998, granted the defendants’

motions for summary judgment as to Mercer’s first claim for relief, i.e., deprivation of a

liberty interest without due process of law under 42 U.S.C. § 1983, and also on Mercer’s

fourth claim for relief against Martin for defamation. A jury trial on Mercer’s six

remaining claims began on June 15, 1998. After Mercer concluded her presentation of

evidence, the district court granted the Board of Trustees’ motion under Fed. R Civ. P. 50

and dismissed UNC from the case. The jury thereafter found for the defendants on all

claims except Mercer’s seventh claim against Martin for tortious interference with a

contract, and on that claim the jury awarded Martin $7,500.00 in damages. On June 30,

1998, Martin filed a motion for judgment n.o.v. Almost two years later, the district court


                                            -3-
on March 29, 2000, granted Martin’s motion and entered judgment in favor of all

defendants on all claims. Mercer appeals that judgment.

       On appeal, Mercer in her brief sets forth five issues to be resolved: (1) whether the

district court erred in granting summary judgment on her defamation claim (fourth claim);

(2) whether the district court erred in granting summary judgment on her deprivation of

liberty interest (first claim); (3) whether the form of verdict on her procedural due process

claim was “accurate;” (4) whether the jury’s award of only $7,500.00 for tortious

interference with a contract (seventh claim) was supported by the evidence, or was it

inadequate; and (5) whether the district court erred in granting Martin’s post-trial motion

for judgment n.o.v. for failure to comply with the Colorado Governmental Immunity Act.

       At the outset we note that we are here concerned with only three of the defendants

named in the complaint, i.e., Martin, D’Amato and Copeland. The Board of Trustees for

UNC and Praul were dismissed by the district court, and on appeal there is no challenge

to such dismissals. John and Jane Doe, named in the complaint as defendants, are still

John and Jane Doe, and have not been further identified. So, we are only concerned with

defendants Martin, D’Amato and Copeland.

       Counsel first argues that the district court erred in granting Martin summary

judgment on Mercer’s fourth claim for relief, which was a defamation claim under state

law against Martin only. This claim was based on the fact that Martin, who was Mercer’s

first faculty advisor, had accused Mercer of plagiarism in her presentation of a so-called


                                            -4-
“resource guide” paper. In granting Martin summary judgment on the defamation claim,

the district court held that, on the evidence before it, the “accusation” of plagiarism was

true and that Martin “did not ‘publish’ the accusation within the meaning of the law of

defamation.” In this latter connection, the district court noted that the charge of

plagiarism was not circulated “to anyone beyond the Psychology faculty,” and that

circulation of a statement within an institution or agency does not, by itself, constitute

publication, citing Asbill v. Housing Auth. of Choctaw Nation, 726 F.2d 1499, 1503 (10th

Cir. 1984). We are in general accord with the district court’s analysis of this particular

matter.

       Counsel next argues that the district court erred in granting summary judgment for

Martin, D’Amato and Copeland on Mercer’s first claim for relief. In her first claim,

Mercer alleged that the defendants acting under the color of state law deprived her of

constitutional rights under the Fifth and Fourteenth Amendments to the United States

Constitution by “impugning . . . [her] honesty and integrity by accusing her of

plagiarism,” which accusations, she said, were false. In connection with this particular

claim, the district court concluded, as it did in connection with Mercer’s fourth claim for

relief against Martin for defamation, that, on the record before it, Mercer had plagiarized

portions of her “resource guide” paper and that accordingly, Martin’s accusation of

plagiarism was not false nor had there been any “publication” thereof, again citing Asbill.

Again, we are in general accord with the district court’s analysis of this matter.


                                             -5-
       In her “Statement of the Issues” at the beginning of her brief, counsel suggests that

the form of verdict submitted to the jury in connection with “Mercer’s Procedural Due

Process Claim” was “not accurate.” Mercer has not indicated with any degree of

specificity the “inaccuracy” in the verdict form. There is a suggestion that the district

court erred in holding that Mercer’s termination from the program was for “academic”

reasons, as opposed to “behavioral” reasons, and therefore, according to counsel, Mercer

was entitled to “more due process” than she would otherwise be entitled to. How much

more “due process” is conjectural. Be that as it may, we are not inclined to further

speculate on this particular matter.

       Counsel next asserts that the jury’s award of only $7,500.00 against Martin on

Mercer’s claim of tortious interference with her “contractual relationship” was inadequate

and not supported by the record. We disagree. A jury’s award of damages should not be

overturned on appeal “unless it is clearly erroneous and there is no evidence to support

the award.” Greene v. Safeway Stores, Inc., 210 F.3d 1237, 1245 (10th Cir. 2000). The

amount of damages was a jury question and in this regard the jury was not required to

believe Mercer’s testimony as to the extent of her damages.

       As indicated, on June 30, 1998, Martin filed a motion for judgment n.o.v. under

Fed. R. Civ. P. §§ 12(b)(1) and 50(b) alleging that Mercer had failed to comply with the

Colorado Governmental Immunity Act (“Act”), C.R.S. § 24-10-101, et seq.. That Act

reads, in part, as follows:


                                            -6-
              Any person claiming to have suffered an injury by a public
              entity or by an employee thereof while in the course of such
              employment, whether or not by a willful and wanton act or
              omission, shall file a written notice as provided in this section
              within one hundred eighty days after the date of the discovery
              of the injury, regardless of whether the person then knew all
              of the elements of a claim or of a cause of action for such
              injury. Compliance with the provisions of this section shall
              be a jurisdictional prerequisite to any action brought under the
              provisions of this article, and failure of compliance shall
              forever bar any such action.

C.R.S. § 24-10-109(1)(2000).

       Martin stated in her motion that Mercer had not filed her “notice of claim” until

January 12, 1996, that Mercer had “discovered her injury” within the meaning of the Act

no later than June 20, 1995, and that Mercer’s notice was not filed within 180 days after

such discovery. Mercer filed a response to Martin’s motion, alleging that the 180 day

provision of the Act did not commence to run on June 20, 1995, but later, possibly in

August, 1995, and that the notice was filed within 180 days after her discovery of

“tortious interference,” which, as she indicated, was, at the earliest, around the end of

August, 1995.

       In Martin’s motion for judgment n.o.v., mention is made of a “letter dated June 16,

1995, which would constitute interference with plaintiff’s contract with the University of

Northern Colorado.” In this regard, it appears that on June 16, 1995, Martin wrote a

memorandum, distributed to the School Psychology Faculty, concerning Mercer. In that

memorandum, Martin stated that she had “continued concerns about Ms. Kenna Mercer’s


                                             -7-
behavior as a school psychology practicum student.” Martin then listed her several

“concerns,” one of which was related to “A District 6 Resource Guide that she turned in

as her own work.” Immediately after that statement, Martin wrote as follows: “(This is

plagiarism.).” In support of Martin’s motion for judgment n.o.v., counsel argues that no

later than June 20, 1995, Mercer became aware of the June 16 letter by Martin which

would trigger the 180 day period prescribed by C.R.S. § 24-10-109. As indicated,

Mercer’s notice of intent was not filed until January 12, 1996, well beyond 180 days from

June 20, 1995.

       In her response to Martin’s motion for judgment n.o.v., Mercer alleged that she did

not become aware of the June 16 letter until August, 1995, and did not “review” it until

September 1, 1995, and that therefore her “notice” filed on January 12, 1996, was timely.

       Some time later, the district court, on March 29, 2000, entered an order granting

Martin’s motion for judgment n.o.v. Apparently that order was entered on the basis of the

motion and response thereto, without oral argument. In so doing, the district court noted

that “there is no dispute that the alleged tortuous [sic] interference arose from a June 15,

1995, memorandum authored by Martin accusing plaintiff of plagiarism and other

wrongs.” The district court then went on to state that “plaintiff’s own verified complaint

establishes that she knew of Martin’s charges against her no later than June 20, 1995,”




                                             -8-
and that January 12, 1996, was more than 180 days later than June 20, 1995.1 In so

doing, the district court rejected Mercer’s suggestion that the notice period did not begin

to run until she discovered the ultimate consequences of Martin’s tortious acts, namely

either when she received notice of the termination of her degree program in March, 1996,

or, at the earliest, when she actually received a copy of the June 16 memorandum in

August of 1995. The district court noted that the Act itself ties the 180 days to the “date

of discovery of the injury,” but concluded that under Colorado law, an aggrieved party

may not wait to file notice until all the elements of the claim mature and the 180 day

period begins to run when a claimant knows of, or through the exercise of reasonable

diligence should have known of, or discovered, the wrongful act, citing Trinity

Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916, 923 (Colo. 1993).

       C.R.S. § 24-10-109 requires any person claiming to have suffered an injury as a

result of a tort committed by a public employee committed in the course of her public


       1
        Paragraphs 38 and 39 of Mercer’s verified complaint reads as follows:
             38. On, or about, June 16, 1995, Defendant Copeland telephoned Plaintiff to
       inform her of a meeting between himself, Plaintiff and Defendant Praul, on June
       20, 1995. During that telephone conversation Plaintiff was informed that
       Defendant Martin had accused her of plagiarism. In fact, Plaintiff had not
       plagiarized any work, and Defendant Martin either knew, or recklessly disregarded
       the truth, of Plaintiff’s innocence of this allegation.
              39. On, or about, June 20, 1995, Plaintiff met with Defendant Copeland and
       Defendant Praul. Discussed was Plaintiff’s concerns regarding her grade in PPSY
       680 and the plagiarism charges. During this meeting, Plaintiff was told that she
       had wrongly created a “dual relationship” with Defendant Martin.



                                            -9-
employment, to file notice of her claim within 180 days of the date of discovery of the

injury. The burden of proof is on the plaintiff to show compliance with the Act’s notice

requirement and a failure to substantially comply with the notice requirement is a

“complete defense . . . .” State Personnel Board v. Lloyd, 752 P.2d 559, 562 (Colo.

1988). As the district court indicated in its grant of Martin’s motion for judgment n.o.v.,

the district court had previously deferred ruling on pretrial motions to dismiss for failure

to comply with the notice requirements of the Act until after trial.

       In considering this particular matter, it should be emphasized that we are only

concerned with Mercer’s seventh claim for relief,, i.e., a state claim for tortious interference

with Mercer’s contractual relationship with UNC. In that claim for relief, Mercer alleged

that Martin wantonly and intentionally interfered with UNC’s performance of a contract she

had for “matriculation through the Ed. S. program at the University of Northern Colorado.”

As we understand it, the parties agree that Martin’s memorandum of June 16, 1995, wherein

she accused Mercer of several improprieties, including that of plagiarism, constituted, if

untrue, “tortious interference” with Mercer’s contractual relationship with UNC.

Accordingly, Mercer’s meeting with Praul and Copeland on June 20, 1995, becomes critical.

       As we understand it, at the meeting of June 20, 1995, Mercer became fully aware of

Martin’s various complaints about her school performance, including the accusation of

plagiarism. Accordingly, the legal “injury” was discovered by Mercer no later than June 20,

1995, when she met with Copeland and Praul. On that occasion, Mercer became fully aware


                                             - 10 -
of the fact that Martin, in her letter of June 16, 1995, accused her of plagiarism and circulated

the letter to members of the school faculty. From our reading of the record, which includes

the allegations contained in Martin’s verified complaints, the June 20 meeting definitely

involved, inter alia, a discussion concerning Martin’s accusation of plagiarism, which the

district court held triggered the notice requirement in the Act. January 12, 1996, is more

than 180 days from June 20, 1995. In such circumstance, the district court, in our view, was

justified in concluding that the notice requirements of the Act had not been met. In sum, on

this particular matter we are not inclined to disturb the district court’s understanding of

Colorado law.

       Judgment affirmed.



                                                      Entered for the Court,

                                                      Robert H. McWilliams
                                                      Senior Circuit Judge




                                             - 11 -
00-1163, Mercer v. Board of Trustees
EBEL, Circuit Judge, dissenting in part

       I agree with the majority’s disposition of every issue except the last: whether

the district court was correct to grant Martin’s post-trial motion for judgment

notwithstanding the verdict on Mercer’s successful claim for $7,500 against Martin

for tortious interference of contract . The district court entered judgment n.o.v.

because it found that Mercer had failed to comply with the notice requirement of the

Colorado Governmental Immunity Act (“CGIA”). See Colo. Rev. Stat. § 24-10-109-

(1).

       Unlike the majority, I would hold that Mercer complied with the notice

provision of the CGIA, and thus that the district court’s entry of judgment n.o.v.

should be reversed. Because it would have been impossible for Mercer to know or

discover, in June 1995, that Martin’s memorandum would ultimately lead to Mercer’s

dismissal from UNC, I believe the district court clearly erred in finding that Mercer

had actual or constructive knowledge in June 1995 that she had been “injured”

sufficient to trigger the CGIA. See Quintana v. City of Westminster, 8 P.3d 527, 529

(Colo. App. 2000) (“[T]he trial court’s findings of fact supporting a determination

under the [CGIA] will not be reversed unless clearly erroneous.”). I would conclude

that Mercer knew Martin had tortiously interfered with the contract between Mercer

and UNC only when Mercer had actually been dismissed, i.e., on January 12, 1996.

Since she filed her notice of intent to sue on that date, I would therefore find her

notice timely under the CGIA.
       The Colorado Supreme Court has interpreted the CGIA such that “the 180-day

provision beg[ins] to run . . . [when the complainant] ha[s] all the information

necessary to fulfill the notice requirement of section 24-10-109(2).” City of Lafayette

v. Barrack, 847 P.2d 136, 139 (Colo. 1993). That section requires, inter alia, “a

concise statement of the factual basis of the claim, including the date, time, place,

and circumstances of the act, omission, or event complained of” and “the name and

address of any public employee involved.” Colo. Rev. Stat. § 24-10-109(2)(b), (c).

       Mercer could not have known or discovered that Martin’s actions would lead

to Mercer’s termination until the faculty decided that academic probation had failed

and she should be dismissed. That decision was not made until January 1996.

Consequently, it was impossible for Mercer to give “a concise statement of the

factual basis of the claim, including the date, time, place and . . . event complained

of” and “the name and address of any public employee involved” until she had in fact

been expelled. 1 The 180-day provision began to run at that time, and it is undisputed




       1
         While it is true that in mid-October 1995 the faculty was seriously considering
whether to expel Mercer, see App. at 1760, this fact does not change the outcome.
First, Mercer’s claim against Martin for tortious interference of contract arose only after
the faculty actually decided to terminate Mercer; the faculty might have decided not to
expel Mercer even after seriously considering it. For instance, Mercer could not
identify precisely who was involved in her termination, as required by § 24-10-
109(2)(c), prior to the faculty’s taking definitive action. Second, even if the 180-day
clock began to run in mid-October 1995, Mercer’s notice, filed in January 1996, would
still be timely.

                                            -2-
that she filed her notice of intent to sue on January 12, 1996, making her filing

unquestionably timely.

      The district court’s finding that “[Mercer’s] knowledge of the allegedly false

charge of plagiarism in June 1995 was the date of discovery of injury under Section

24-10-109(1)” is not supportable by the facts. This is most clearly shown by an

example: Had Mercer, in early July 1995, shortly after the “date of discovery”

attributed to her by the district court, filed notice of intent to sue Martin for tortious

interference of contract, her notice would have been so premature as to seem bizarre

or paranoid. The reason is that during the summer and early fall of 1995, the

program’s faculty were still trying to help Mercer attain her degree. For instance,

in a letter to Mercer dated August 29, 1995, Copeland explained that if, by December

8, 1995, she completed two outstanding conditions from the remedial plan on which

the Department had placed her at the end of the Spring 1995 semester, she would be

removed from academic probation and could sit for her comprehensive exams. (See

App. at 1745.) In addition, in a memorandum dated September 19, 1995, Copeland

offered to place Mercer on another, slightly modified, remedial plan. (See App. at

1749.) Thus, three months after the June 20, 1995, meeting of Praul, Copeland, and

Mercer, the underlying basis of Mercer’s claim against Martin – that Martin

wrongfully interfered with the contract between Mercer and UNC – had still not




                                           -3-
come to pass. While Mercer might have known of a defamation injury in June 1995,

she could not have known of a tortious interference with contract injury.

      It was not until mid-October 1995 that members of the Department were

recommending that Mercer be expelled from the program. (See App. at 1760.) And

it was not until January 12, 1996, that Copeland sent Mercer a letter formally stating

that the Department had recommended to UNC that Mercer be terminated – the event

supporting Mercer’s cause of action for tortious interference of contract. (See App.

at 1786.) Thus, only at that point did Mercer have the information required to file

properly a notice of intent to sue under the CGIA.

      For this reason, I would conclude the district court erred in granting Martin’s

motion for judgment notwithstanding the verdict, and would order the district court

to reinstate the jury’s award of $7,500. I respectfully dissent on this issue.




                                          -4-
