Carter v. Labor Com'n Appeals Bd.

• Decision Date: 30 November 2006
• Docket Number: No. 20050789-CA.,20050789-CA.
• Citation: 153 P.3d 763,2006 UT App 477
• Parties: Susan CARTER, Petitioner, v. LABOR COMMISSION APPEALS BOARD and Sullivan-Schein Dental Co., Respondents.
• Court: Utah Court of Appeals

153 P.3d 763

2006 UT App 477

Susan CARTER, Petitioner, v. LABOR COMMISSION APPEALS BOARD and Sullivan-Schein Dental Co., Respondents.

No. 20050789-CA.

Court of Appeals of Utah.

November 30, 2006.

Kenneth B. Grimes Jr. and Richard W. Perkins, Salt Lake City, for Petitioner.

Alan L. Hennebold and Mark O. Morris, Snell & Wilmer, Salt Lake City, Charles W. Pautsch, Murphy Gillick Wicht & Prachthauser, and Joseph E. Gumina, Milwaukee, Wisconsin, for Respondents.

Before BENCH, P.J., GREENWOOD, Associate P.J., and DAVIS, J.

OPINION

GREENWOOD, Associate Presiding Judge:

¶ 1 Petitioner Susan Carter petitions for review of the Utah Labor Commission Appeals Board's (the Board) order setting aside the Administrative Law Judge's (ALJ) decision and dismissing Carter's retaliation complaint brought under the Utah Antidiscrimination Act (the Act). See Utah Code Ann. §§ 34A-5-101 to -108 (2005). We affirm.

BACKGROUND

¶ 2 Carter was employed as a sales representative with Mountain West Dental from November 1992 until August 1993. During this time, Parke Simmons and Blaine Brown supervised Carter at Mountain West Dental. Between August 1993 and August 1997, Carter was employed by Henry Schein, Inc. (Henry Schein), and Simmons and Brown were employed by Sullivan Dental Products, Inc. (Sullivan Dental).

¶ 3 In August 1997, a merger occurred between Henry Schein and Sullivan Dental, forming Sullivan-Schein Dental Co. (Sullivan-Schein). Carter, Simmons, and Brown were all assigned to Sullivan-Schein's sales staff in Salt Lake City. On December 14, 1997, Carter wrote and sent a letter (complaint letter) to Sullivan-Schein management, alleging that Simmons and Brown had subjected her to gender discrimination when they were all employed by Mountain West Dental. In the complaint letter, Carter requested that she not be assigned to work in the same office with Simmons or Brown.

¶ 4 Sullivan-Schein's vice president directed a manager to advise Simmons and Brown of Carter's complaint and to tell them to refrain from any retaliation against her. The vice president then sent a letter to Carter, stating that her complaint had been investigated and handled properly. The letter also stated that if she experienced any retaliation she should contact him immediately. Simmons and Brown continued to work in the Salt Lake City office with Carter. Carter did not contact the vice president with complaints of retaliation.

¶ 5 Prior to the merger, sales representatives from Harry Schein and Sullivan Dental often competed against one another for the same accounts. After the merger, more than one sales representative sometimes called on the same accounts, which Sullivan-Schein termed "crossover" accounts. In order to quell the inter-company competition and resulting tension between sales representatives, Sullivan-Schein gradually began assigning the crossover accounts so that only one sales representative was assigned to each account. Until these assignments were completed, sales representatives were instructed to call on only their current accounts. Despite this instruction, Sullivan-Schein management and sales staff were concerned about "poaching," which occurred when a sales representative continued to call on an account assigned to another sales representative. At a company meeting, all of the Salt Lake sales representatives were advised of the new policies and were also warned that competition against each other would lead to termination.

¶ 6 Subsequently, two sale representatives, Mike Butler and Melanie Bingham, complained to the manager of the Salt Lake Region, Joe Scheutzow, that Carter violated the company policy by poaching their accounts. Butler, purportedly assigned to the Dr. Brooks account, complained that Carter had told the doctor that she was to be his contact. Butler then lost the account. The record is unclear as to whether Carter had been told that the Dr. Brooks account was assigned to Butler.

¶ 7 Next, Bingham complained that Carter tried to solicit Bingham's Dr. Clegg account. Carter admits she knew the Dr. Clegg account was Bingham's and claims that she did not try to solicit the account, but rather attempted to clarify a new computer billing system for Dr. Clegg's office. After receiving Bingham's complaint, James Engle, the manager for the western zone and Scheutzow's direct supervisor, wrote a letter to Carter warning her of termination if she continued to attempt to contact customers of other Sullivan-Schein sales representatives. Prior to sending the letter, Engle did not speak to Carter about the complaints that had been lodged against her. Carter was the only, or one of the few, sales representatives within the company to be admonished for violating the new policies.

¶ 8 Thereafter, Butler lodged his second complaint against Carter, claiming that she attempted to poach his Heritage Central account. Carter maintained that the Heritage Central account was hers prior to the merger. Again, the record is unclear as to whether Carter was aware that the account had been assigned to Butler after the merger.

¶ 9 After this third complaint, Engle and Scheutzow decided that Carter should be terminated. Engle testified that prior to terminating Carter, he had known about Carter's complaint letter. Nevertheless, he claimed that he did not know the contents of the complaint letter, including that Carter had alleged past gender discrimination by current Sullivan-Schein employees. He also stated that he had not spoken to Simmons or Brown about the complaint letter. Carter testified that she and Scheutzow spoke about her complaint letter. Simmons also testified that prior to Carter's termination from Sullivan-Schein, he had discussed Carter's complaint letter with Scheutzow. However, Scheutzow denied that he knew about Carter's complaint letter before terminating her.

¶ 10 Carter filed a charge of discrimination with the Utah Anti-Discrimination and Labor Division, alleging that her employer, Sullivan-Schein, terminated her in retaliation for her gender discrimination complaint, in violation of Utah Code section 34A-5-106(1)(a)(i)(C) of the Act. See Utah Code Ann. § 34A-5-106(1)(a)(i)(C) (2005) ("An employer may not . . . retaliate against . . . any person otherwise qualified, because of sex."); see also id. § 34A-5-102(17)(a) (2005) (defining retaliation as "the taking of adverse action by an employer . . . against one of its employees . . . because the employee . . . has opposed any employment practice prohibited under this chapter.").

¶ 11 After a four-day hearing, the ALJ found that Sullivan-Schein had violated the Act by terminating Carter in retaliation for her gender discrimination complaint. Carter was awarded damages totaling $191,649.72. Sullivan-Schein appealed. The Board reversed the ALJ's order and found that Sullivan-Schein had not terminated Carter in retaliation for her complaint letter, and therefore, had not violated the Act. The Board dismissed Carter's claim with prejudice and denied her motion to reconsider. Carter now petitions for judicial review.

ISSUE AND STANDARD OF REVIEW

¶ 12 Carter argues that the Board's findings are not supported by substantial evidence and should therefore be reversed. Whether Sullivan-Schein retaliated against Carter in violation of the Act is a factual determination. See Viktron/Lika Utah v. Labor Comm'n, 2001 UT App 394, ¶ 5, 38 P.3d 993. We will reverse the Board's determination of fact only if it is "not supported by substantial evidence when viewed in light of the whole record before the court." Utah Code Ann. § 63-46b-16(4)(g) (2004); see also Commercial Carriers v. Industrial Comm'n, 888 P.2d 707, 710 (Utah Ct.App.1994). In challenging the Board's factual determination, Carter "`must marshal all of the evidence supporting the findings and show that despite the supporting facts, and in light of the conflicting or contradictory evidence, the findings are not supported by substantial evidence.'" Viktron/Lika, 2001 UT App 394 at ¶ 5, 38 P.3d 993 (quoting Grace Drilling Co. v. Board of Review, 776 P.2d 63, 68 (Utah Ct.App.1989)).

ANALYSIS

¶ 13 Carter contends that the Board's findings of fact are not supported by substantial evidence. In particular, Carter challenges the Board's finding that she did not establish a causal connection between her complaint letter and her termination.¹ "`"Substantial evidence"' is that quantum and quality of relevant evidence that is adequate to convince a reasonable mind to support a conclusion." Id. at ¶ 13 (quoting First Nat'l Bank of Boston v. County Bd. of Equalization, 799 P.2d 1163, 1165 (Utah 1990)). After reviewing the whole record, we determine that there is substantial evidence to support the Board's finding that Sullivan-Schein did not terminate Carter in retaliation for her gender discrimination complaint.

¶ 14 First, there is evidence supporting the Board's determination that Sullivan-Schein responded to Carter's complaint letter promptly and appropriately. The Board also found it significant that the alleged gender discrimination had taken place several years prior in a different company. In addition the Board noted that two Sullivan-Schein employees filed complaints that they believed Carter had poached their accounts, and that Sullivan-Schein also believed Carter had violated the company's rules of conduct. There is also evidence that Sullivan-Schein's failure to more fully investigate the employees' complaints about Carter were attributable in part to the manager's multiple responsibilities and to confusion caused by the merger.²

¶ 15 Carter argues that the Board exceeded its authority by considering ...