Cabaness v. Thomas

Decision Date23 April 2010
Docket NumberNo. 20080446.,20080446.
Citation2010 UT 23,232 P.3d 486
PartiesKipp CABANESS, an individual, and Does 1-20, Plaintiffs and Appellants,v.Brent THOMAS, an individual; Clifford C. Michaelis, an individual; Bountiful City, a Municipal Corporation; Bountiful City Power; and Does 1-100, Defendants and Appellees.
CourtUtah Supreme Court






Craig L. Taylor, Harold H. Armstrong, Willis F. McComas, Kaysville, for plaintiffs.

Stanley J. Preston, Maralyn M. Reger, Bryan M. Scott, Salt Lake City, for defendants Brent Thomas and Clifford C. Michaelis.

Russell L. Mahan, Bountiful, for defendants Bountiful City and Bountiful City Power.


PARRISH, Justice:


¶ 1 Kipp Cabaness brought intentional infliction of emotional distress claims against Brent Thomas and Clifford C. Michaelis for allegedly engaging in a pattern of harassment, intimidation, and abuse at his workplace. Additionally, Cabaness brought breach of contract and wrongful termination claims against Bountiful Light & Power (Bountiful Power). The district court granted summary judgment in favor of Thomas, Michaelis, and Bountiful Power (collectively Defendants) on each of Cabaness' claims. Cabaness subsequently filed a motion under Utah Rules of Civil Procedure 59 and 60(a) to amend or alter judgment. The district court denied the motion.

¶ 2 Cabaness appeals the district court's summary judgment ruling in favor of Defendants, denial of his cross motion for partial summary judgment, and denial of his motion under Utah Rules of Civil Procedure 59 and 60(b). We affirm in part and reverse in part.


¶ 3 “On appeal from a summary judgment we accept the facts and inferences in the light most favorable to the losing party.” Franco v. Church of Jesus Christ of Latter-day Saints, 2001 UT 25, ¶ 32, 21 P.3d 198 (internal quotation marks omitted). We therefore state the facts in the light most favorable to Cabaness.

¶ 4 Kipp Cabaness was employed by Bountiful Power from March 1978 to January 2004. From time to time, Cabaness was given a copy of the Personnel Policies & Procedures Manual of the City of Bountiful (the “Employee Manual” or “Manual”). The Employee Manual states that it is “specifically intended to apply to regular employees.” Defendants do not dispute that Cabaness was a “regular employee” as that term is defined within the Employee Manual. The Employee Manual contains a disclaimer stating that [n]o contract exists between Bountiful City and its employees with respect to salary, salary ranges, movement within salary ranges, or employee benefits.” Section 406 of the Manual, entitled “Work Environment”, states that “City policy will not tolerate verbal or physical conduct by any employee which harasses, disrupts, or interferes with another's work performance or which creates an intimidating, offensive, or hostile environment....” Section 408, entitled “Work Place Violence”, mandates that [o]ral or written threats, physical assault, harassment, intentional damage, and every other act or threat of violence by City employees is strictly prohibited.” Section 409, entitled Sexual and Other Harassment, provides as follows:

Any behavior or conduct of a harassing or discriminating nature ... which is pervasive, unwelcome, demeaning, ridiculing, derisive or coercive, or results in a hostile, abusive or intimidating work environment constitutes harassment and shall not be tolerated by the City.
No City official or employee shall harass, coerce, intimidate, threaten or discipline employees who exercise their rights under this procedure in good faith.

¶ 5 From 1984 to 2004, Cabaness was a line working foreman at Bountiful Power under the immediate supervision of Brent Thomas, the superintendent of operations. The director of Bountiful Power and Thomas' direct supervisor was Clifford Michaelis. While Michaelis had authority to hire and fire employees, Thomas did not.

¶ 6 Numerous employees at Bountiful Power testified that Thomas frequently used gross profanity and consistently verbally harassed, intimidated, and ridiculed the employees he supervised. To his subordinates, Thomas was known as “Little Hitler” or “Dr. Jekyl and Mr. Hyde,” and the walkway to his office was known as the “green mile,” a name from a movie depicting the pathway to the electric chair in a prison.

¶ 7 Thomas frequently made the work of his subordinates harder without providing any justification for doing so other than to assert his authority over them. For example, in the late 1990s, Cabaness' crew and another crew were pulling in underground wire at a high school. Cabaness and the other foreman had positioned the trucks and other equipment to begin pulling the wire when Thomas arrived and ordered that the trucks and other equipment be repositioned. When Cabaness and the other foreman questioned why, Thomas responded that he was the boss, and if they did not do what he said, he would write them up for insubordination, and they might be fired. Similarly, in 2000 or 2001, Cabaness and his crew were building a transmission line and had just finished framing a pole. As the crew went to set it into the ground, Thomas arrived and ordered them to disassemble the pole and to frame another identical pole to set in its place. Again, when Thomas was asked why, he gave no explanation other than that was what he wanted to happen.

¶ 8 Thomas' conduct also evinced a disregard for safety procedures in an occupation that relies on such procedures to protect its employees. Around 1983 or 1984, Thomas refused to let Cabaness put a ground on a pole with a primary line of 7200 volts before working on it in order to save time. On another occasion, Thomas ignored for several months Cabaness' concerns regarding blown fuses on a power line near an elementary school that Cabaness felt were potentially hazardous for children. Although emergencies sometimes required Bountiful Power employees to work in the rain, Thomas would order crews to work in the rain even when the work could have been postponed and completed more safely in drier conditions. Thomas dismissed the employees' concerns by telling them that he had bought them rain gear and they should use it. As safety director, Cabaness held monthly safety meetings, but Thomas routinely cut the meetings short.

¶ 9 In July 2003, Thomas ordered Brent Tuttle, a member of Cabaness' crew, to remove concrete from around a conduit of live, primary electrical distributors using a jackhammer. Tuttle testified that he told Thomas this was unsafe and that he could be killed if the jackhammer broke through and touched the live line, but Thomas ordered him to do it anyway. Fearing for his job, and based on past intimidation from Thomas, Tuttle jackhammered the concrete. The operation was fortunately shut down before anyone was actually injured. Cabaness was not present during this incident and did not become aware of it until he returned to work more than a month after the incident occurred. After the incident took place, the Bountiful Power Safety Committee investigated and, among other things, recommended that Thomas be given a Serious Safety Violation citation.1

¶ 10 On a regular basis, Thomas would tell Cabaness that he was “lucky to have this job” and that if he did not do what he was told he could be fired even though Thomas lacked the authority to do so. Indeed, many employees at Bountiful Power testified that Thomas regularly threatened to fire them. On one occasion, Thomas walked up to a new employee and told him he was fired and only later told the employee he was not serious.

¶ 11 Throughout Cabaness' career with Bountiful Power, Thomas would insult and demean him by, among other things, calling him “dumbass,” “jackass,” and “asshole,” and using cutting sarcasm. Thomas would occasionally tell Cabaness that he had a “piss poor attitude.” On one occasion, Thomas told Cabaness, “You know what your problem is? It's your wife. You need to get rid of your wife.” Thomas pursued this subject until Cabaness finally responded “my wife is none of your business and my relationship with my wife is none of your business, so drop it.” On another occasion, Cabaness witnessed Thomas knee an employee in the groin with enough force to cause the employee to fall to the floor in pain, after which Thomas stated, “I guess I showed you who is boss.”

¶ 12 In August 1997, Cabaness was first diagnosed with depression related to “unusual stress in his work environment from his supervisor.” In June 2003, Cabaness met with Dr. VandeMerwe who also diagnosed him with major depression and chronic dysthymia with insomnia. Dr. VandeMerwe testified that Cabaness' work environment and abusive boss were a “substantial factor” in his diagnosis of depression. Cabaness was off work from July 23 to September 8, 2003, due to medically-diagnosed depression attributable in significant part to “a hostile work environment and an abusive boss.” Thomas and Michaelis were both aware that Cabaness was off work for depression-related problems. Yet, when Cabaness returned to work in September 2003, Thomas singled him out in an employee meeting, threatened to fire him, and criticized him about personal issues in front of other employees.

¶ 13 Numerous employees, including Cabaness, complained to Michaelis on various occasions regarding Thomas' abusive, harassing, and intimidating conduct. In 1997, Cabaness and two other foremen complained to Michaelis about Thomas. In response, Michaelis warned them that any further complaints regarding Thomas' conduct may result in their termination.2 Finally, in September 2003, after Thomas' involvement in the jackhammer incident, Michaelis formed a committee to investigate complaints of harassment and intimidation by Thomas. The committee interviewed fifteen Bountiful Power employees. As a result of the investigation, Michaelis sent a...

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