McGraw v. Univ. of Utah

449 P.3d 943

Bianca MCGRAW, Appellee,

v.UNIVERSITY OF UTAH, Appellant.

No. 20180289-CA

Court of Appeals of Utah.

Filed August 22, 2019

Sean D. Reyes and Peggy E. Stone, Salt Lake City, Attorneys for Appellant

Stephen T. Hester and Kimberley L. Hansen, Salt Lake City, Attorneys for Appellee

Judge Diana Hagen authored this Opinion, in which Judges Michele M. Christiansen Forster and Jill M. Pohlman concurred.

Opinion

HAGEN, Judge:

¶1 The University of Utah (the University) appeals the district court’s denial of the University’s motion to dismiss Bianca McGraw’s whistleblower action, arguing that McGraw failed to strictly comply with the requirements of the Governmental Immunity Act of Utah (the GIA). We agree with the University that McGraw did not wait the mandatory sixty days after delivering a valid notice of claim to the Utah Attorney General (the AG) before instituting this action and therefore she failed to strictly comply with the GIA. Accordingly, we reverse.

BACKGROUND

¶2 On September 28, 2016, the University hired McGraw as a clinical research coordinator for a physician. Soon after her employment began, she noticed "regulatory non-compliance issues" with one of the studies the physician was conducting. Over the next few weeks, McGraw repeatedly raised compliance concerns with the University’s Institutional Review Board until she was terminated on October 27, 2016. The University explained that it did not appear that McGraw and the physician would "be[ ] able to work together long term, therefore, [she] was released from her employment."

¶3 A few days after her termination, McGraw filed complaints with the University’s human resources department, asserting that her termination was improper and in retaliation for her raising concerns about the physician’s non-compliance. After speaking with a few different University employees, she was told that the information would be passed "up the chain of command." Eventually, the University stopped contacting McGraw or responding to her inquiries regarding whether the University was going to investigate her complaints about the physician.

¶4 On February 23, 2017, McGraw delivered a letter with the subject line "Retaliation Complaint" (the February 23 Retaliation Complaint) to the University’s General Counsel and the Employment Relations Administrator. In the February 23 Retaliation Complaint, she detailed her previous complaints, explained that she had not been able to gain employment following her termination, and stated that she was going to file a civil action for violations of the Utah Protection of Public Employees Act—also known as the Whistleblower Act (the WBA)—if the University did not respond.

¶5 On April 14, 2017, McGraw delivered a notice of claim (the April 14 Notice of Claim) to the AG’s authorized agent, which included substantially the same information as the February 23 Retaliation Complaint, with some additional details. Eleven days later, on April 25, 2017, McGraw filed a complaint in district court, alleging that the University took adverse employment action against her in violation of the WBA when she raised concerns about the physician’s non-compliance. McGraw did not serve the complaint on the University until June 19, 2017.

¶6 The University moved to dismiss McGraw’s complaint under rule 12(b)(1) of the Utah Rules of Civil Procedure. Among other things, the University argued that the February 23 Retaliation Complaint did not comply with the GIA because it was not delivered to the AG or the AG’s authorized agent. See Utah Code Ann. § 63G-7-401(3)(ii)(b)(E), -401(3)(ii)(b)(G) (LexisNexis 2016). The University also argued that, assuming the April 14 Notice of Claim was valid,¹ the district court did not have subject matter jurisdiction over her case because McGraw did not wait sixty days for the University to approve or deny her notice of claim as required by the GIA and instead filed her complaint on April 25, 2017. McGraw opposed the motion, arguing, among other things, that the February 23 Retaliation Complaint complied with the GIA’s requirements, even though it was delivered to the wrong person, because of her "good faith belief" that it "was sent to the correct governmental entity."

¶7 After hearing argument on the motion to dismiss, the district court announced its oral ruling and entered a written order denying the motion. The district court agreed with McGraw that although she had delivered the February 23 Retaliation Complaint to the wrong individual under the GIA, she had acted with "significant good faith compliance with the statutory requirements of both the [GIA] and the [WBA]." (Quotation simplified.)

¶8 The University filed this interlocutory appeal challenging the district court’s denial of its motion to dismiss.

ISSUE AND STANDARD OF REVIEW

¶9 The University argues that the district court erred in denying its motion to dismiss because McGraw failed to comply with the statutory requirements of the GIA. Specifically, the University argues that the February 23 Retaliation Complaint did not qualify as a notice of claim because McGraw delivered it to the wrong individual. And because no valid notice of claim was delivered to the State until April 14, 2017, the University contends that McGraw’s complaint filed on April 25, 2017, did not comply with the sixty-day waiting period under the GIA.² "When determining whether a trial court properly granted a motion to dismiss, we accept the factual allegations in the complaint as true and consider them, and all reasonable inferences to be drawn from them, in the light most favorable to the non-moving party." Krouse v. Bower , 2001 UT 28, ¶ 2, 20 P.3d 895. "Because the propriety of a motion to dismiss is a question of law, we review for correctness, giving no deference to the decision of the trial court." Id. ; see also Wheeler v. McPherson , 2002 UT 16, ¶ 9, 40 P.3d 632 (explaining that when a district court dismisses a claim based on governmental immunity, that dismissal creates a question of law that appellate courts review for correctness). To determine whether the court erroneously denied the University’s motion to dismiss, we must consider whether the court correctly interpreted the requirements of the GIA in conjunction with the WBA. See generally Thorpe v. Washington City , 2010 UT App 297, ¶¶ 10–13, 243 P.3d 500. "The proper interpretation and application of a statute is a question of law which we review for correctness, affording no deference to the district court’s legal conclusions." Bott v. Osburn , 2011 UT App 139, ¶ 5, 257 P.3d 1022 (quotation simplified).

ANALYSIS

I. The Governmental Immunity Act

¶10 The WBA "prohibits public employers from ‘tak[ing] adverse action against an employee’ who, in good faith, blows the whistle on the government by exposing, inter alia, ‘waste of public funds, property, or manpower, or a violation or suspected violation of a law, rule, or regulation.’ " Thorpe v. Washington City , 2010 UT App 297, ¶ 11, 243 P.3d 500 (quoting Utah Code Ann. § 67-21-3(1)(a) (LexisNexis 2004)). Governmental entities and their employees are generally "immune from suit for any injury that results from the exercise of a governmental function," Utah Code Ann. § 63G-7-201(1) (2016), but the GIA expressly waives immunity from suits alleging retaliation under the WBA, id. § 63G-7-301(2)(f).³

¶11 "While the GIA expressly waives immunity for suits to collect actual damages under the WBA, it does not waive the requirement that a notice of claim be filed pursuant to [ Utah Code section 63G-7-401 ]." Thorpe , 2010 UT App 297, ¶ 12, 243 P.3d 500 (quotation simplified). "Thus, an employee may bring a WBA claim against a governmental entity, provided that the employee satisfies the GIA requirement of filing a notice of claim." Id. "Compliance with the [GIA] is a prerequisite to vesting a district court with subject matter jurisdiction over claims against governmental entities." Wheeler v. McPherson , 2002 UT 16, ¶ 9, 40 P.3d 632.

¶12 Under the GIA, a claimant must deliver a notice of claim to the governmental entity the claimant seeks to sue before pursuing the claim in district court. Utah Code Ann. § 63G-7-401(2) (LexisNexis 2016). The governmental entity then has sixty days after the notice of claim is received to approve or deny the claim. Id. § 63G-7-403(1)(a). If the governmental entity does not respond within sixty days, the claim is deemed denied. Id. § 63G-7-403(1)(b). Under subsection 63G-7-403(2)(a), a claimant may not "institute an action in the district court" until the claim is denied. Id. § 63G-7-403(2)(a). Thus, "[o]nce a [claimant’s] notice of claim is filed, the [GIA] continues to bar its initiation in court until the [governmental entity] either denies the claim in writing or fails to act" for sixty days. See Hall v. Utah State Dep’t of Corr. , 2001 UT 34, ¶ 22, 24 P.3d 958.

¶13 The University argues that McGraw did not deliver a valid notice of claim until April 14, 2017, and therefore failed to comply with Utah Code section 63G-7-403 when she instituted her action by filing her complaint in district court on April 25, 2017, well before the sixty-day waiting period would have elapsed on June 13, 2017.

¶14 McGraw disputes the date that she delivered a valid notice of claim. She argues that the February 23 Retaliation Complaint constituted a valid notice of claim and therefore her claim would have been deemed denied on April 24, 2017—one day before she filed her complaint. Alternatively, McGraw argues that if the February 23 Retaliation Complaint does not constitute a valid notice of claim, the denial of the motion to dismiss can be affirmed based on the April 14 Notice of Claim. Although she filed her complaint on April 25, 2017, she contends that she complied with the GIA by waiting until June 19, 2017 to serve the complaint, after the sixty-day waiting period expired.

¶15 We must now determine whether the February 23 Retaliation Complaint constituted a valid notice of...