Gasser v. Coffey

Appellate Case: 25-1316 Document: 43-1 Date Filed: 11/10/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT November 10, 2026 _________________________________ Christopher M. Wolpert Clerk of Court MATTHEW GASSER, Plaintiff - Appellee, v. No. 25-1316 (D.C. No. 1:24-CV-02956-SKC-STV) SHERYL COFFEY, (D. Colo.) Defendant - Appellant, and THE TOWN OF CASTLE ROCK, Defendant. _________________________________ ORDER AND JUDGMENT * _________________________________ Before TYMKOVICH, MATHESON, and PHILLIPS, Circuit Judges. _________________________________ Under the Colorado Governmental Immunity Act (“CGIA”), Colo. Rev. Stat. §§ 24-10-101 to 24-10-120, a public employee acting within the scope of her employment is immune from liability for any tort claim unless the employee’s act or After examining the briefs and appellate record, this panel has determined * unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.  Appellate Case: 25-1316 Document: 43-1 Date Filed: 11/10/2026 Page: 2 omission “was willful and wanton.” Id. § 24-10-118(2)(a). This appeal involves (1) whether willful and wanton conduct under the CGIA requires a conscious disregard of a risk of physical danger to the plaintiff and (2) whether plaintiff Matthew Gasser adequately pleaded that defendant Sheryl Coffey consciously disregarded the risk of danger of allegedly false statements she made about him. The district court concluded that a conscious disregard of physical danger is not required and that Gasser adequately alleged that Coffey had consciously disregarded the danger of her allegedly false statements. The court therefore denied Coffey’s motion to dismiss the tort claims against her. Coffey brings this interlocutory appeal from that ruling. We have jurisdiction pursuant to the federal collateral order doctrine. See Aspen Orthopaedics & Sports Med., LLC v. Aspen Valley Hosp. Dist., 353 F.3d 832, 837 (10th Cir. 2003) (holding that an order denying a defendant’s claim of immunity from suit under the CGIA is immediately appealable under the federal collateral order doctrine). We agree with the district court’s conclusions and affirm. I. BACKGROUND 1 At the time relevant to this action, Gasser worked as a Senior Athletics Supervisor for the Town of Castle Rock’s Parks and Recreation Department, and Coffey was the Town’s Human Resources (“HR”) Manager. 1 Coffey claims that allegations in Gasser’s complaint made upon information and belief are not entitled to be treated as true. However, we may accept such allegations as true provided there are also factual allegations that render the information-and-belief allegations plausible. See Al-Owhali v. Holder, 687 F.3d 2  Appellate Case: 25-1316 Document: 43-1 Date Filed: 11/10/2026 Page: 3 In August 2023, the HR Department hired a forensic accounting firm, FORVIS, to investigate the Town’s accounting practices based on reports that a Town employee was manipulating procurement-card receipts for Town purchases. The Town had paid Colorado state sales tax on those purchases despite being exempt from paying such taxes. Instead of requesting a refund of the taxes from the vendors, the employee allegedly removed the line items for the sales taxes and increased the price paid for the purchased items. In addition to the FORVIS investigation, the Town also decided to have Detective Mike Williams of the Town’s Police Department conduct a criminal investigation into the matter. Coffey worked with Detective Williams on that investigation. FORVIS determined that Gasser had committed no financial wrongdoing. Its investigation cost the Town at least $100,000, and perhaps as much as $150,000. Detective Williams determined that the correction of the receipts cost the Town approximately $3,000 in sales tax it should not have paid, but that Gasser had committed no financial or criminal wrongdoing. After reviewing the investigative reports, and based on information she learned from the investigations, which apparently included searches of Town-issued cell 1236, 1243 (10th Cir. 2012) (declining to accept a conclusory allegation made “[o]n information and belief” because it “lack[ed] any factual context” to push a claim “across the line from conceivable to plausible” (internal quotation marks omitted)). Our recitation of the facts, which we glean from the complaint and documents attached to it, thus includes those allegations made upon information and belief for which, in our view, Gasser provided sufficient factual context to demonstrate the plausibility of his claims. 3  Appellate Case: 25-1316 Document: 43-1 Date Filed: 11/10/2026 Page: 4 phones, Coffey authored a letter purporting to immediately terminate Gasser’s employment for the following reasons: (1) Gasser had several images of topless women on his Town-issued cell phone; (2) he had made a number of remarks in text messages with various Town employees that Coffey considered either derogatory, harassing, unprofessional, indicative of a lack of leadership, or approving of Town employees stealing time from the Town; (3) Gasser knowingly committed financial fraud when he sent a Sam’s Club receipt for a large alcohol purchase to a co-worker for alteration; (4) Gasser’s spouse had billed the town for services her company had provided without following the Town’s request-for-proposal process and without a written agreement; and (5) Gasser stole from the Town when he did not take accrued leave for time spent providing $1,300 in services to the Town through his spouse’s company. In late September 2023, Coffey presented the termination letter to Gasser’s supervisor, Jeff Brauer. Gasser alleged she did so out of “personal animus against” him and because of “embarrassment of having launched an extraordinarily expensive and wide-scale investigation” into the altered receipts. Pub. App. at 11, ¶ 21. 2 Brauer refused to sign the letter because he knew it contained misrepresentations and false factual statements about Gasser. 2 Coffey filed a two-volume appendix. One volume is public, so we cite it as “Pub. App.” The other volume was provisionally filed under seal, so we refer to it as “Sealed App.” even though, as we later conclude, Coffey has not satisfied her burden to show that it warrants sealing. 4  Appellate Case: 25-1316 Document: 43-1 Date Filed: 11/10/2026 Page: 5 At a meeting the next day to discuss Gasser’s termination, Town Manager David Corliss instructed Brauer to get a response to Coffey’s letter from Gasser. Gasser composed a response, disputing Coffey’s accusations or offering explanations in rebuttal. Based on the response, Brauer continued to oppose Gasser’s termination. After two more meetings involving Coffey, Brauer, and Corliss, no agreement could be reached regarding Gasser’s termination. Corliss then met with Brauer separately, informing Brauer that he had just met with Coffey and Detective Williams, and Williams had agreed with “Coffey that Gasser should be terminated based on ‘character’ concerns.” Id. at 14, ¶ 58. Brauer told Corliss that he would not terminate Gasser’s employment or support Coffey and Williams’s recommendation. Corliss then told Brauer it would be in Gasser’s best interest to resign. Brauer conveyed that information to Gasser, who declined to resign. No further action was taken on the matter for several months until, in late December 2023, Gasser received a disciplinary letter Coffey had drafted at Corliss’s direction. Concerned about his own job, Brauer had signed the letter even though he did not agree with it. The disciplinary letter omitted most of the accusations of theft, fraud, and criminal acts, instead relying on the inappropriate photos, the text messaging, and the co-worker’s alteration of the Sam’s Club receipt. As a result, Gasser was suspended for 10 days and told he would be ineligible for a pay increase for almost a year. Meanwhile, in late November 2023, it was discovered that Coffey had been having an adulterous affair with Williams during the course of both investigations 5  Appellate Case: 25-1316 Document: 43-1 Date Filed: 11/10/2026 Page: 6 into the receipt-altering matter. Gasser alleged that but for the affair, the defamatory language in the termination letter, and Coffey’s attempt to justify the amount spent on the FORVIS investigation, he and other employees allegedly subject to disciplinary actions designed to justify the expense of the FORVIS investigation would not have been subject to any disciplinary action by the Town. Based on these allegations, Gasser filed a civil action in Colorado state court. He asserted three claims against Coffey: (1) defamation and defamation per se; (2) tortious interference with contract; and (3) tortious interference with prospective economic advantage. He also asserted a First Amendment retaliation claim against the Town along with claims for breach of contract and breach of implied contract. The Town removed the action to federal court and filed a motion to dismiss. Coffey also filed a motion to dismiss. The district court granted the Town’s motion as to the contract claims, denied it as to the First Amendment claim, and denied Coffey’s motion. In denying Coffey’s motion, the court rejected her argument that to overcome CGIA immunity based on a public employee’s willful and wanton conduct, a plaintiff has to show a conscious disregard of danger to the defendant’s physical safety, but Gasser had alleged only harm to his reputation. The court also rejected Coffey’s alternative argument that even if conscious disregard of reputational harm was enough to demonstrate wanton and willful conduct, Gasser had advanced only speculative and conclusory allegations devoid of factual enhancement. The court deemed this argument “woefully underdeveloped,” declined to consider additional supporting argument 6  Appellate Case: 25-1316 Document: 43-1 Date Filed: 11/10/2026 Page: 7 advanced for the first time in Coffey’s reply brief, and determined it therefore had no obligation to consider the argument. Pub. App. at 69 & n.3. Nonetheless, the court concluded that the few allegations Coffey specifically characterized “as speculative and conclusory simply [were] not.” Id. at 70. II. STANDARD OF REVIEW “We review questions of CGIA immunity de novo.” Sawyers v. Norton, 962 F.3d 1270, 1288 (10th Cir. 2020) (internal quotation marks omitted). Because Coffey’s motion to dismiss involved only the allegations in the complaint, we evaluate whether the allegations plausibly state a claim for relief. See Schmitz v. Colo. State Patrol, 841 F. App’x 45, 54 (10th Cir. 2020) (explaining, in case involving attack on sufficiency of complaint’s allegations to overcome CGIA immunity, our review “mirrors how we assess [Fed. R. Civ. P.] 12(b)(6) motions”). 3 In doing so, we accept the well-pleaded allegations of the complaint as true and construe them in the light most favorable to Gasser while also considering the complaint’s attachments. See Morphew v. Chaffee Cnty., 172 F.4th 802, 813 (10th Cir. 2026). III. DISCUSSION We read Coffey’s opening brief as presenting three issues: (1) the district court applied an improper willful-and-wanton-conduct standard; (2) Gasser did not allege sufficient facts to demonstrate willful and wanton conduct; and (3) Gasser 3 We cite unpublished decisions of this court only for their persuasive value. See 10th Cir. R. 32.1(A). 7  Appellate Case: 25-1316 Document: 43-1 Date Filed: 11/10/2026 Page: 8 failed to state any tort claims against Coffey because he did not allege the involvement of a third party. We disagree as to the first two issues and decline to exercise pendent appellate jurisdiction over the third issue. A. Willful and wanton conduct The CGIA provides that “[a] public employee” is “immune from liability in any claim for injury . . . which lies in tort or could lie in tort” and “arises out of an act or omission of such employee occurring during the performance of his duties and within the scope of his employment unless the act or omission causing such injury was willful and wanton.” Colo. Rev. Stat. § 24-10-118(2)(a) (emphasis added). However, the CGIA does not define willful and wanton acts or omissions, so we turn to the case law. Because the district court had original jurisdiction over Gasser’s First Amendment claim against the Town, the court had supplemental jurisdiction over Gasser’s state-law claims against Coffey. See 28 U.S.C. § 1367(a). Thus, Colorado’s substantive law applies. See Sawyers, 962 F.3d at 1287 n.16. “When . . . called upon to interpret state law, [a] federal court must look to rulings of the highest state court, and, if no such rulings exist, must endeavor to predict how that high court would rule.” Amparan v. Lake Powell Car Rental Cos., 882 F.3d 943, 947 (10th Cir. 2018) (internal quotation marks omitted). Attempting to predict how the state’s highest court would rule in the absence of an on-point decision requires examining “the decisions of the state’s intermediate court of appeals,” which should “not . . . be disregarded . . . unless [the federal court] is convinced by persuasive data that the 8  Appellate Case: 25-1316 Document: 43-1 Date Filed: 11/10/2026 Page: 9 highest court of the state would decide otherwise.” Id. at 947–48 (internal quotation marks omitted). The principal Colorado case guiding our analysis is Martinez v. Estate of Bleck, 379 P.3d 315 (Colo. 2016), which involved the unintentional discharge of a police officer’s gun during an interaction with a suicidal man, see id. at 317. In Martinez, the Colorado Supreme Court (“CSC”) declined to choose from among three definitions of willful and wanton conduct, 4 each of which referred to safety, danger, or evil, because all three definitions “share[d] a common feature—namely, a conscious disregard of the danger” to the plaintiff. Id. at 323. Accordingly, the CSC held that “willful and wanton conduct . . . must exhibit a conscious disregard for the danger.” Id. However, Martinez said nothing definitive about the nature of “the danger.” The district court recognized this standard but rejected Coffey’s argument, which she repeats on appeal, that the disregarded danger must involve physical danger. See Pub. App. at 66–69. In doing that, the district court relied on a pre-Martinez case “hold[ing] that loss of consortium constitutes an injury within the [CGIA],” Lee v. Colo. Dep’t of Health, 718 P.2d 221, 230 (Colo. 1986). The district court also relied on two Colorado Court of Appeals decisions applying Martinez, one involving whether a public employee’s defamatory conduct was willful and wanton, 4 The definitions were taken from Black’s Law Dictionary (5th ed. 1979); Colorado’s exemplary-damages statute, Colo. Rev. Stat. § 13-21-102(1)(b); and Colorado’s automobile guest statute. See Martinez, 379 P.3d at 323. 9  Appellate Case: 25-1316 Document: 43-1 Date Filed: 11/10/2026 Page: 10 i.e., a non-physical danger context, Sigalla v. Meidhof, No. 23CA1810, 2025 WL 415470, at *6–7 (Colo. App. Feb. 6, 2025), cert. denied, No. 25SC325, 2026 WL 125099 (Colo. Jan. 12, 2026); and one expressly concluding, in the context of a defamation claim, that the disregarded danger need not be physical danger, Southway v. Crone, No. 24CA0219, 2024 WL 5162947, at *1, *5 (Colo. App. Dec. 19, 2024). Lee and Sigalla lend some support for the conclusion that conscious disregard need not be of a physical danger, but neither one explicitly addresses whether conscious disregard of a nonphysical danger suffices to show willful and wanton conduct. Southway, however, is on point and persuasive. The Southway court concluded that the Colorado “legislature plainly intended for plaintiffs suffering nonphysical injuries to be able to seek redress if those injuries were caused by a public employee’s willful and wanton conduct.” Id. at *4. It based that conclusion on three observations. First, the statutory grant of immunity to a public employee extends to “‘any claim for injury that lies in tort . . . or could lie in tort.’” Id. (emphasis omitted) (quoting Colo. Rev. Stat. § 24-10-118(2)(a)). Second, in Lee, the CSC had construed the CGIA’s definition of “injury” in Colo. Rev. Stat. § 24-10-103(2) to include “‘any type of injury that would be actionable in tort if inflicted by a private person.’” Southway, 2024 WL 5162947, at *4 (quoting Lee, 718 P.2d at 230). And third, “[d]amage to one’s reputation from defamatory statements has long been recognized as a personal injury in tort.” Id. We take these observations to mean that, because the CGIA provides a public employee immunity from liability for all torts regardless of whether a risk of physical 10  Appellate Case: 25-1316 Document: 43-1 Date Filed: 11/10/2026 Page: 11 danger is involved, then as a matter of statutory construction, the exception for willful and wanton conduct also applies to all torts regardless of the nature of the risk of danger. The Southway court next addressed Martinez, noting that Martinez had “specifically declined to adopt a single definition for willful and wanton conduct under the CGIA,” and observing that Martinez referred to “risks to a plaintiff’s physical safety” not “to limit the applicability of the ‘willful and wanton’ exception to circumstances involving a risk of physical harm,” but “simply because the plaintiff’s claim involved physical injury from the discharge of a weapon.” Id. at *5. 5 The Southway court therefore concluded that “the common defining feature of willful and wanton conduct articulated in Martinez—a ‘conscious disregard of the danger’—is broad enough to apply to both physical and nonphysical danger or risk.” Id. (quoting Martinez, 379 P.3d at 323). The Southway court considered its conclusion to be consistent with Wilson v. Meyer, 126 P.3d 276, 282 (Colo. App. 2005), which applied “a similar standard in a defamation claim against a public employee,” Southway, 2024 WL 5162947, at *5. 5 The CSC made one of those references to safety in the introduction of the Martinez opinion, stating that on remand, the trial court should determine whether the defendant’s conduct was “not only negligent, but exhibit[ed] conscious disregard for the safety of others.” 379 P.3d at 318 (brackets and internal quotation marks omitted). We agree with Southway that the reference to safety was a case-specific application of the conscious-disregard standard rather than a prohibition on applying the willful-and-wanton exception to conduct not involving a risk of danger to physical safety. 11  Appellate Case: 25-1316 Document: 43-1 Date Filed: 11/10/2026 Page: 12 Coffey claims Southway is wrongly decided because, in the defamation context, it “effectively rendered the willful and wanton conduct requirement a nullity.” Aplt. Opening Br. at 24 (internal quotation marks omitted). She reads Southway as holding that “the only danger [a] defendant must ‘consciously disregard is the danger that he might damage someone’s reputation by spreading untrue statements about that person.’” Id. (quoting Southway, 2024 WL 5162947, at *5). She claims this effectively means “a defendant need not even intend to cause harm to another’s reputation,” but instead “need only consciously disregard the risk of doing so,” and that makes willful and wanton conduct “factually less stringent than a garden variety intentional tort.” Id. at 24–25. She adds that under Southway, “any intentional tort would necessarily create a waiver of sovereign immunity.” Id. at 25. She further posits that “willful and wanton conduct must require pleading factors more significant than just intent or conscious disregard. At minimum, it requires something more than the moral or equitable equivalent of physical danger.” Id. She makes similar arguments in her reply brief, where she also tries to more closely tie the CGIA standard to the general Colorado standard for determining whether exemplary damages are warranted, which was one of the definitions of willful and wanton Martinez cited. See Aplt. Reply Br. at 7–9. She concludes that in a CGIA case, there must be “allegations of something more than intentional conduct, and something beyond . . . ‘actual malice.’” Id. at 9. The argument that something more than conscious disregard is required directly conflicts with the standard set forth in Martinez—“conscious disregard of the 12  Appellate Case: 25-1316 Document: 43-1 Date Filed: 11/10/2026 Page: 13 danger,” 379 P.3d at 323. To interpret what Martinez meant by that, it is important to consider Martinez’s procedural posture. The trial court had applied a negligence “‘should have realized’” standard, which the CSC said was error because “willful and wanton conduct is not merely negligent; instead, it must exhibit a conscious disregard for the danger.” Id. Due to that error, the CSC remanded for a determination of “whether Martinez’s conduct exhibited a conscious disregard of the danger.” Id. 6 And because Martinez involved a risk of harm to physical safety, the CSC had no occasion to consider whether willful and wanton conduct can involve risk of nonphysical harm. Thus, as Southway reasoned, see 2024 WL 5162947, at *5, Martinez’s formulation of the conscious-disregard standard does not foreclose finding a public employee’s conduct was willful and wanton where she has consciously disregarded a risk of nonphysical harm. Coffey also relies on Rowan v. Vail Holdings, Inc., 31 F. Supp. 2d 889 (D. Colo. 1998), for its statement that in Colorado, willful and wanton behavior “is conduct which an actor realizes is highly hazardous and poses a strong probability of injury to another but nevertheless knowingly and voluntarily chooses to engage in.” Id. at 900 (internal quotation marks omitted). But Rowan did not involve the CGIA; instead, the discussion of willful and wanton conduct involved whether a 6 Coffey is wrong when she states that in Martinez, the CSC determined Martinez was entitled to CGIA immunity despite having recklessly shot a suicidal man. See Aplt. Opening Br. at 29–30. Thus, her argument that she should be entitled to CGIA immunity because her conduct was less dangerous than conduct “held not to waive sovereign immunity in Martinez,” id. at 30, rests on a false premise and is unpersuasive. 13  Appellate Case: 25-1316 Document: 43-1 Date Filed: 11/10/2026 Page: 14 liability-release agreement could bar a claim of willful and wanton conduct by a private ski company and whether there was sufficient evidence for that claim to go to the jury. See id. Furthermore, Rowan predates Martinez, and its references to “hazardous” and “injury” beg the question whether the hazardousness or injury must always be physical (as in Martinez, the injury in Rowan was physical—a skier died after crashing into a picnic deck, see id. at 892). In sum, Coffey fails to persuade us that the CSC would reach a different conclusion than the Southway court. See Amparan, 882 F.3d at 947–48. We therefore conclude that the CSC would hold that the willful-and-wanton-conduct standard under the CGIA does not require a conscious disregard of a risk of physical danger. Thus, the district court applied the proper standard. B. Sufficiency of allegations We next consider Coffey’s argument that Gasser did not plausibly plead that her conduct was willful and wanton and therefore failed to overcome CGIA immunity. The district court identified specific paragraphs of Gasser’s complaint in support of its conclusion that he sufficiently alleged Coffey “acted with reckless disregard of the consequences of her conduct,” Pub. App. at 68 (internal quotation marks omitted): (1) in her initial termination letter, Coffey accused Gasser of financial crimes despite knowing he had been cleared of financial wrongdoing (¶¶ 118–120); (2) Coffey knew her statements were false when she sent the initial termination letter to Gasser’s supervisor and the Town of Castle Rock (¶¶ 120, 135); and (3) “because she knew her statements were false, she intentionally recruited her 14  Appellate Case: 25-1316 Document: 43-1 Date Filed: 11/10/2026 Page: 15 romantic partner, Detective Williams, to offer his irrelevant personal opinions on [Gasser’s] character,” (¶ 58–61, 69). Id. at 68. In her opening brief, Coffey argues Gasser failed to adequately plead that her conduct was willful and wanton because (1) his own allegations show there were “several significant, non-pretextual bases for seeking his termination,” Aplt. Opening Br. at 27; and (2) after Gasser responded to Coffey’s initial termination letter, Coffey issued a revised termination letter that omitted statements related to theft, fraud, and criminal acts, which shows Gasser “was provided due process,” and “[t]hat cannot be willful and wanton conduct as a matter of law,” id. at 29. 7 These arguments are not persuasive. Neither one bears on whether Coffey, in the initial termination letter, consciously disregarded the risk of injury her allegedly false statements regarding Gasser’s alleged financial crimes could cause. Nor does either argument bear on her alleged recruitment of Detective Williams to offer an opinion about Gasser’s character that influenced Town Manager Corliss to ask for Gasser’s resignation in lieu of terminating Gasser’s employment if he did not resign. Coffey makes additional arguments in her reply brief, pointing to the speculative nature of many of the allegations regarding her state of mind and the content of discussions and meetings Gasser was not privy to. Aplt. Reply Br. at 12–15. Perhaps most importantly, she argues that Gasser did not “plausibly allege 7 She also makes the argument we rejected in footnote 6, supra. 15  Appellate Case: 25-1316 Document: 43-1 Date Filed: 11/10/2026 Page: 16 any factual basis for the idea that [she] knew he had been cleared of wrongdoing.” Id. at 15 (internal quotation marks omitted). These arguments do not persuade us that Gasser’s allegations were insufficient to survive dismissal. In his complaint, Gasser twice alleged that Coffey “had or should have had” the reports from FORVIS and Detective Williams that allegedly cleared him of financial wrongdoing. Pub. App. at 11, ¶ 25; id. at 20, ¶ 118. Coffey points to the “should have had” portion of this pleading construct as an indication that Gasser’s allegations regarding her knowledge of the reports are only speculation and therefore insufficient to plausibly demonstrate conscious disregard. See Aplt. Reply Br. at 12–13, 15. But in her motion to dismiss, she admitted she “was provided with the evidence gathered from [Gasser] and other subjects as the result of the two investigations,” and “[a]fter [her] review of the evidence” she “discovered multiple instances of Town employment policy violations on [Gasser’s] phone. As a result, . . . [she] drafted” the initial termination letter. Pub. App. at 30 (emphasis added). Even more to the point, the initial termination letter itself suggests Coffey already had the results relating to financial fraud. The letter states that “forensic accountants were secured to look into the overall financial practices of” Gasser’s department, Sealed App. at 12, which included seizing cell phones and computers, and then recounts what appears to be the results of the investigation, including the allegations of financial fraud, see id. at 12–14. For these reasons, it is hard not to reasonably infer that Coffey had the complete results of the investigation at the time she penned the initial termination 16  Appellate Case: 25-1316 Document: 43-1 Date Filed: 11/10/2026 Page: 17 letter. And taking as true Gasser’s allegation that the investigation cleared him of financial wrongdoing, Gasser has plausibly alleged that Coffey consciously disregarded the risk of accusing him of such wrongdoing as it related to injury in the form of either defamation, tortious interference with contract, or tortious interference with prospective economic advantage. 8 But even if Coffey did not actually have the investigation results before penning the initial termination letter, accusing Gasser of financial fraud in that letter shows conscious disregard of a risk of harm because she did not await verification of her accusations. Based on our analysis, we conclude Gasser plausibly alleged that Coffey consciously disregarded a risk of harm arising from her allegedly false accusations in the initial termination letter that he had committed financial fraud or wrongdoing. Accordingly, the district court properly denied the motion to dismiss as to all three claims against Coffey. C. Pendent appellate jurisdiction In her opening brief, Coffey contends the district court erred in denying her Rule 12(b)(6) motion to dismiss the three state-law claims against her because Gasser did not (and cannot) allege that (1) she published any allegedly false statements to a third party, which is an element of a defamation claim, see Williams v. Dist. Ct., 8 Coffey makes much of the fact that in his response to the initial termination letter, see Sealed App. at 25–32, Gasser did “not so much as hint that the investigation cleared his name.” Aplt. Reply Br. at 18. But it could easily be that Gasser did not receive a copy of the results of the investigation until after he wrote the response. 17  Appellate Case: 25-1316 Document: 43-1 Date Filed: 11/10/2026 Page: 18 866 P.2d 908, 911 n.4 (Colo. 1993); (2) there was a valid and enforceable contract between Gasser and a third party to Coffey, which is an element of a claim of tortious interference with contract, see Galleria Towers, Inc. v. Crump Warren & Sommer, Inc., 831 P.2d 908, 912 (Colo. App. 1991); or (3) Coffey intended to induce or cause a third party not to enter into or continue a business relationship with Gasser, which is an element of a claim of tortious interference with prospective economic advantage, see Nobody in Particular Presents, Inc. v. Clear Channel Commc’ns, Inc., 311 F. Supp. 2d 1048, 1117 (D. Colo. 2004). See Aplt. Opening Br. at 30–34. Apparently recognizing that this court lacks interlocutory jurisdiction over the denial of her Rule 12(b)(6) motion as to these claims, see, e.g., Dababneh v. FDIC, 971 F.2d 428, 432 n.6 (10th Cir. 1992) (“Orders denying motions to dismiss are generally not immediately appealable.”), Coffey asks us to “exercise supplemental jurisdiction” over these arguments “under 28 U.S.C. § 1367(a),” Aplt. Opening Br. at 11. But the plain terms of § 1367(a) makes clear that supplemental jurisdiction applies only in district court: [I]n any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution. § 1367(a) (emphasis added). For us to review these claims in this interlocutory appeal, Coffey had the burden to establish pendent appellate jurisdiction. See Bustillos v. City of Artesia, 18  Appellate Case: 25-1316 Document: 43-1 Date Filed: 11/10/2026 Page: 19 98 F.4th 1022, 1037 (10th Cir. 2024). But she did not address pendent appellate jurisdiction in her opening brief and therefore has waived the issue. See id. at 1038. Even if we considered her belated reply-brief effort to meet this test, we would decline to exercise pendent appellant jurisdiction. The exercise of pendent appellate jurisdiction “is generally disfavored.” Moore v. City of Wynnewood, 57 F.3d 924, 929 (10th Cir. 1995). “It is appropriate . . . only where resolution of the appealable issue necessarily resolves the nonappealable issue, or where review of the nonappealable issue is necessary to ensure meaningful review of the appealable one.” Bustillos, 98 F.4th at 1037 (internal quotation marks omitted). But contrary to Coffey’s contentions, none of her arguments on the appealable issues—whether willful and wanton conduct under the CGIA requires conscious disregard of physical danger and whether Gasser adequately pleaded that Coffey’s conduct was willful and wanton—involves either to whom the allegedly false or defamatory statements were made or with whose contract or prospective economic advantage those statements might have tortiously interfered. Thus, the exercise of pendent appellate jurisdiction would be inappropriate. Moreover, the arguments over which Coffey asks us to exercise pendent appellate jurisdiction involve whether Gasser adequately pleaded the role of a third party in any of the three claims against her. But in her motion to dismiss, the only basis on which she sought Rule 12(b)(6) dismissal was that Gasser did not adequately 19  Appellate Case: 25-1316 Document: 43-1 Date Filed: 11/10/2026 Page: 20 plead willful and wanton conduct. See Pub. App. at 38–39. 9 Coffey insists she raised the same third-party arguments in the district court by pointing to arguments she made in her district-court reply brief—“that her alleged statements were subject to a qualified privilege” and that “Gasser failed to allege the existence of a contract that could have been interfered with.” Aplt. Reply Br. at 24. But the district court stated it had “not considered [the] contentions” Coffey raised in her district-court reply brief because “[p]arties cannot raise arguments for the first time in a reply brief.” Pub. App. at 69 n.3. Thus, even if we credit her view that the arguments in that brief are the same as, or analogous to, the third-party arguments she advances in her opening appellate brief (a dubious proposition given that her district-court reply brief does not mention anything about third parties, see id. at 57-59), she has waived appellate review of any alleged error relating to her district-court reply-brief arguments. See Impact Energy Res., LLC v. Salazar, 693 F.3d 1239, 1246 n.3 (10th Cir. 2012) (explaining that failure to raise issue at appropriate time in the district court waives appellate review); C&M Res., LLC v. Extraction Oil & Gas, Inc., 159 F.4th 755, 762 (10th Cir. 2025) (“When an argument is raised for the first time in reply, a district court may either grant leave to file a surreply or may disregard the newly raised materials and arguments.”). The exercise of pendent appellate jurisdiction, therefore, would be inappropriate. 9 As noted above, the district court considered these contentions both “woefully underdeveloped” and unpersuasive, Pub. App. at 69–70. 20  Appellate Case: 25-1316 Document: 43-1 Date Filed: 11/10/2026 Page: 21 IV. MOTION TO SEAL Coffey has filed a motion to seal one volume of her appendix. Gasser opposes the motion. For reasons that follow, we deny the motion. The appendix volume at issue contains six exhibits that Gasser attached to his complaint. Exhibit A is the initial termination letter. Exhibits B and C are, respectively, Gasser’s draft and revised responses to the initial termination letter. Exhibit D is an email from Brauer to Corliss and Coffey stating that Gasser declined to resign. Exhibit E is the disciplinary letter suspending Gasser. And Exhibit F is a confidentiality notice related to the FORVIS investigation. In the district court, the parties jointly asked the court to restrict access to these documents. The district court granted the parties’ motion. In support of her motion on appeal, Coffey relies on a provision of the Colorado Open Records Act (“CORA”) that requires the custodian of any public record to “deny the right of inspection” of “[p]ersonnel files.” Colo. Rev. Stat. § 24-72-204(3)(a)(II)(A). She also directs our attention to Denver Publishing Co. v. University of Colorado, 812 P.2d 682, 684 (Colo. App. 1990), which characterized a prior version of § 24-72-204(3)(a)(II) as “a blanket protection for all personnel files, except applications and performance ratings”; and to Nixon v. Warner Communications, Inc., 435 U.S. 589, 598 (1978), for its observation that “courts have refused to permit their files to serve as reservoirs of libelous statements.” We conclude that Coffey has not met her burden to show the documents in the Sealed Appendix should remain under seal. 21  Appellate Case: 25-1316 Document: 43-1 Date Filed: 11/10/2026 Page: 22 “A party seeking to file court records under seal must overcome a presumption, long supported by courts, that the public has a common-law right of access to judicial records.” Eugene S. v. Horizon Blue Cross Blue Shield of N.J., 663 F.3d 1124, 1135 (10th Cir. 2011). “To do so, the parties must