Gottling v. PR INC.

• Decision Date: 17 September 2002
• Docket Number: No. 20010324.,20010324.
• Citation: 2002 UT 95,61 P.3d 989
• Parties: Toby GOTTLING, Plaintiff and Appellee, v. P.R. INCORPORATED, d/b/a Carbmaster and Kelly Peterson, Defendants and Appellants.
• Court: Utah Supreme Court

61 P.3d 989

2002 UT 95

Toby GOTTLING, Plaintiff and Appellee, v. P.R. INCORPORATED, d/b/a Carbmaster and Kelly Peterson, Defendants and Appellants.

No. 20010324.

Supreme Court of Utah.

September 17, 2002.

Rehearing Denied December 13, 2002.

Robert H. Wilde, Russell A. Denton, Midvale, for plaintiff.

Steven R. McMurray, Bradley L. Tilt, Salt Lake City, for defendants.

HOWE, Justice.

INTRODUCTION

¶ 1 We granted this interlocutory appeal to decide whether the trial court correctly ruled that an at will employee who claims to have been discriminated against by her employer and who is unable to seek relief under the Utah Anti-Discrimination Act can pursue a civil action for wrongful termination in contravention of an alleged public policy against sex discrimination.

BACKGROUND

¶ 2 Plaintiff Toby Gottling alleges that her employer, defendant P.R. Incorporated, terminated her because she refused to maintain a sexual relationship with P.R. Incorporated's owner, defendant Kelly Peterson. The Utah Anti-Discrimination Act (UADA or the Act) provides an administrative remedy for discrimination, retaliation, or harassment by an employer on the basis of sex, race, color, pregnancy, age, religion, national origin, or disability. Utah Code Ann. §§ 34A-5-101 to -108 (1999). The remedy is limited, however, to those persons who work for an employer of fifteen or more employees (large employers). See Utah Code Ann. §§ 34A-5-102(8)(a)(iv) (defining "employer" for the purposes of the act as a "person employing 15 or more employees within the state for each working day in each of 20 calendar weeks or more in the current or preceding calendar year"). Because P.R. Incorporated—along with the majority of Utah employers—employs less than fifteen people, Gottling may not look to the UADA for relief from P.R. Incorporated's alleged discrimination. See Burton v. Exam Ctr. Indus. & Gen. Med., 2000 UT 18, ¶ 25, 994 P.2d 1261 (Durham, J., dissenting)

(stating that as recently as 1999, 69.7% of Utah employers were small employers).

¶ 3 Seeking an alternative remedy, Gottling brought this action asserting a common law tort cause of action previously unrecognized by this court. Relying on our case law forbidding the termination of an at will employee in contravention of a clear and substantial public policy, Gottling alleged that P.R. Incorporated wrongfully terminated her in contravention of a public policy against sex discrimination. See Burton, 2000 UT 18

at ¶ 17, 994 P.2d 1261 (stating that though Utah did not have a public policy against age discrimination, discrimination on account of "sex ... may present different considerations"); Fox v. MCI Communications Corp., 931 P.2d 857, 860 (Utah 1997) (stating that "a public policy whose contravention is achieved by an employment termination must be `clear and substantial' to be actionable"); Berube v. Fashion Ctr., Ltd., 771 P.2d 1033, 1043 (Utah 1989) (recognizing the existence of an action for wrongful termination of an at will employee in violation of a substantial and important public policy).

¶ 4 P.R. Incorporated answered Gottling's complaint by denying her allegations and asserting the affirmative defenses that (1) Gottling's cause of action was preempted by the UADA; (2) Gottling had failed to exhaust her administrative remedies under the UADA; and (3) Kelly Peterson could not be held personally liable for P.R. Incorporated's conduct. Gottling then moved for partial summary judgment and to strike P.R. Incorporated's affirmative defenses. In response, P.R. Incorporated cross-moved for summary judgment, arguing that an action for wrongful termination in contravention of a public policy against sex discrimination does not exist in Utah and that Kelly Peterson could not be held personally liable. After a hearing, the trial court ruled in favor of Gottling on all issues. We subsequently granted P.R. Incorporated's petition for interlocutory appeal.

STANDARD OF REVIEW

¶ 5 "We review a trial court's summary judgment ruling for correctness and afford no deference to its legal conclusions." Utah Coal & Lumber v. Outdoor Endeavors Unlimited, 2001 UT 100, ¶ 9, 40 P.3d 581.

ANALYSIS

¶ 6 P.R. Incorporated contends that Gottling cannot pursue a wrongful termination action based on the contravention of an alleged public policy against sex discrimination because (1) the UADA preempts all common law employment discrimination remedies and (2) Utah does not have a public policy against sex discrimination. P.R. Incorporated also argues that Kelly Peterson cannot be personally liable for the corporation's alleged discrimination. We address each argument sequentially.

I. PREEMPTION

A.

¶ 7 We have long held that "where a conflict arises between the common law and a statute or constitutional law, the common law must yield," Hansen v. Utah State Ret. Bd., 652 P.2d 1332, 1337 (Utah 1982) because "the common law cannot be an authority in opposition to our positive enactments." In re Garr's Estate, 31 Utah 57, 68, 86 P. 757, 761 (1906). In fact,

[t]he rule of the common law that statutes in derogation thereof are to be strictly construed has no application to the statutes of this state. The statutes establish the laws of this state respecting the subjects to which they relate, and their provisions and all proceedings under them are to be liberally construed with a view to effect the objects of the statutes and to promote justice.

Utah Code Ann. § 68-3-2 (1999); see Retherford v. AT & T Communications, 844 P.2d 949, 962 (Utah 1992)

; Garr's Estate, 86 P. at

761. Consequently, like an ordinance, the common law is invalid "if it intrudes into an area which the [l]egislature has preempted by comprehensive legislation intended to blanket a particular field." State v. Hutchinson, 624 P.2d 1116, 1121 (Utah 1980) (analyzing a statute's preemptive effect on a county ordinance).

¶ 8 Whether legislation is intended to blanket a particular field—and thereby preempt existing or developing common law—is obviously a question of legislative intent. Richardson v. Matador Steak House, Inc., 948 P.2d 347, 350 (Utah 1997). In short, we must decide if the legislature, with its broad law-making power, intended to exercise that power and to occupy the field in such a way as to exclude the contemporaneous application and development of the common law. See Gilger v. Hernandez, 2000 UT 23, ¶ 11, 997 P.2d 305

. Generally, when answering this question we apply the two-tiered analysis for determining preemptive intent established by the United States Supreme Court.¹

Id.; Price Dev. Co. v. Orem City, 2000 UT 26, ¶ 12, 995 P.2d 1237. We recently summarized this analytical framework as follows:

[i] Sometimes courts, when facing the pre-emption question, find language in the... statute that reveals an explicit [legislative] intent to pre-empt [common] law. [ii] More often, explicit pre-emption language does not appear, or does not directly answer the question. In that event, courts must consider whether the ... statute's "structure and purpose," or nonspecific statutory language, nonetheless reveal a clear, but implicit, preemptive intent. [a] A... statute, for example, may create a scheme of [statutory] regulation "so pervasive as to make reasonable the inference that [the legislature] left no room for the [common law] to supplement it." [b] Alternatively, [statutory] law may be in "irreconcilable conflict" with [the common] law. Compliance with both ..., for example, may be a "physical impossibility," or, [c] the [common] law may "stand as an obstacle to the accomplishment and execution of the full purpose and objectives of [the legislature]."

Gilger, 2000 UT 23 at ¶ 11, 997 P.2d 305 (quoting Barnett Bank of Marion County v. Nelson, 517 U.S. 25, 31, 116 S.Ct. 1103, 134 L.Ed.2d 237 (1996)); see also Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973)

; 2B Norman J. Singer, Sutherland Stat. Constr. § 50:05, at 156 (6th ed. 2001) ("Where common-law principles, associated with the subject matter of a statute, are not expressly affirmed or denied, the extent to which the common law is altered or changed is left to implication."). Thus, where a statute's plain language or its structure and purpose demonstrate a legislative intent to preempt an area of the law, the statute becomes the only source of law in that area, and the development and application of common law principles necessarily ceases.

B.

¶ 9 Turning to the UADA, we find that the plain language of section 34A-5-107(15) reveals an explicit legislative intention to preempt all common law remedies for employment discrimination.² This section provides: "The procedures contained in this section are the exclusive remedy under state law for employment discrimination based upon race, color, sex, retaliation, pregnancy, childbirth, or pregnancy-related conditions, age, religion, national origin, or disability." § 34A-5-107(15). The language of this "exclusivity provision" unambiguously indicates that the UADA preempts "common law causes of action" for employment discrimination based on the "specific grounds" it lists. Retherford, 844 P.2d at 961 (holding that the UADA preempts common law causes of action for retaliation).

¶ 10 In declaring the UADA to be the "exclusive remedy under state law for employment discrimination," section 34A-5-107(15) makes no distinction between actions against large and small employers. It might be argued that, as used in this section, the phrase "employment discrimination" refers solely to discrimination by large employers because only large employers are subject to the remedial provisions of the UADA. This argument fails, however, because the UADA does not define the phrase "employment discrimination," and therefore, we must read the phrase literally, according to its ordinary and accepted meaning. Versluis v. Guar. Nat'l Cos., 842 P.2d 865, 867 (Utah 1992) (stating that we must "give effect to each term...