Retherford v. AT & T Communications of Mountain States, Inc., 890464

CourtSupreme Court of Utah
Citation844 P.2d 949
Decision Date09 December 1992
Docket NumberNo. 890464,890464
Parties142 L.R.R.M. (BNA) 2668, 124 Lab.Cas. P 57,203, 8 IER Cases 405 Debra S. RETHERFORD, Plaintiff and Appellant, v. AT & T COMMUNICATIONS OF the MOUNTAIN STATES, INC.; Cathy Bateson; Louise Johnson; Vickie Randall; and Doe I through Doe X, Defendants and Appellees.

Richard W. Perkins, Salt Lake City, for plaintiff and appellant.

Richard M. Hymas, Salt Lake City, for defendants and appellees.


This case is before us on appeal from a grant of summary judgment dismissing plaintiff's complaint. Debra S. Retherford sued her former employer, AT & T Communications, under several theories for harms arising from alleged sexual harassment by her co-employees. Specifically, she alleged that AT & T fired her in retaliation for complaining of being sexually harassed by her AT & T co-workers. She argued that such a discharge violated Utah public policy barring reprisals for reports of sexual harassment. She also contended that the discharge breached a term of her implied contract with AT & T, which prohibited reprisal for reports of sexual harassment and was entirely separate from the agreement between her union's collective bargaining unit and AT & T. Retherford further asserted that AT & T was liable for negligently employing her harassers. Finally, Retherford sued former co-workers Cathy Bateson (aka Cathy Bateson-Hough), Louise Johnson, and Vickie Randall, claiming that their retaliatory conduct constituted intentional infliction of emotional distress and malicious interference with her contractual relations with AT & T.

Defendants moved to dismiss the complaint, claiming, inter alia, that workers covered by employment contracts that prohibit discharge other than for just cause should not be able to maintain a tort action for discharge in violation of public policy; that the Utah Anti-Discriminatory Act ("UADA") preempted Retherford's common law causes of action, see Utah Code Ann. §§ 34-35-1 to -8 (1988) (amended 1989, 1990 & 1991); that federal labor law preempted Retherford's common law causes of action, see 29 U.S.C. § 185(a); and that Retherford had failed to state tort claims against her former co-workers or to bring those claims within the period fixed by the relevant statute of limitations.

The district judge considered affidavits in support of and in opposition to the motion to dismiss and granted defendants summary judgment on all claims. Retherford appeals.

To summarize our ruling today, we hold as follows: first, that both employees covered by employment contracts that limit the bases for discharge and employees who are at-will can maintain a tort action for discharge in violation of Utah public policy; second, that the UADA provides the exclusive remedy for Retherford's claim for discharge in violation of public policy but does not bar her other causes of action; third, that federal labor law preempts Retherford's claims for breach of implied contract and malicious interference with contractual relations and partially preempts Retherford's claim for intentional infliction of emotional distress; and fourth, that Retherford brought her claims for emotional distress and negligent employment in a timely manner and has stated a cause of action for intentional infliction of emotional distress against her former co-workers. We therefore reverse the order granting summary judgment and remand this case for further proceedings on Retherford's claim of negligent employment and the nonpreempted portion of her claim for intentional infliction of emotional distress.

In reviewing a grant of summary judgment, we view the facts and all reasonable inferences drawn therefrom in a light most favorable to the nonmoving party. Smith v. Batchelor, 832 P.2d 467, 468 (Utah 1992); Rollins v. Petersen, 813 P.2d 1156, 1158 (Utah 1991); Utah State Coalition of Senior Citizens v. Utah Power & Light Co., 776 P.2d 632, 634 (Utah 1989). We state the facts of the instant case--which we draw primarily from Retherford's affidavit submitted in opposition to AT & T's motion to dismiss--accordingly. See Sandy City v. Salt Lake County, 827 P.2d 212, 215 (Utah 1992).

In 1976, Mountain States Telephone and Telegraph Company hired Retherford to work as a telephone operator in Grand Junction, Colorado. In 1983, due to the nationwide restructuring of AT & T and its subsidiary companies, Retherford was transferred to AT & T's Wasatch office, located in Salt Lake City, where she continued working as a telephone operator.

Retherford alleges that two separate agreements governed her employment with AT & T. As an AT & T employee, Retherford was covered by a collective bargaining agreement between AT & T and her union, the Communications Workers of America ("CWA"). Independent of the collective bargaining agreement, AT & T also had promulgated a code of conduct that outlined employees' rights and responsibilities and was specifically brought to the attention of and acknowledged in writing by all employees. Retherford argues that the code of conduct created an implied employment contract between AT & T and its employees.

Both the collective bargaining agreement and the code of conduct prohibited sexual harassment and outlined procedures for aggrieved employees to press any complaints. The collective bargaining agreement stated, "[N]either the Company nor the Union shall unlawfully discriminate against any employee because of such employee's race, color, religion, sex, age or national origin or because he or she is handicapped, a disabled veteran or a veteran of the Vietnam era." The collective bargaining agreement required resort to arbitration to resolve "[g]rievances arising out of or resulting from the application or interpretation of the provisions of this Agreement" and "[g]rievances arising out of or resulting from the dismissal, suspension, or demotion of a regular employee...."

The code of conduct's provision on sexual harassment was more detailed than that in the collective bargaining agreement. The code of conduct read in relevant part:

Any sexually harassing conduct in the workplace, whether physical or verbal, committed by any employee is also prohibited. This includes: repeated offensive sexual flirtations, advances, propositions; continued or repeated verbal abuse of a sexual nature; graphic verbal commentaries about an individual's body; sexually degrading words used to describe an individual; and the display in the workplace of sexually suggestive objects, pictures or posters.

Employees who have complaints of sexual harassment should report such conduct to their supervisors. If this is not appropriate, employees are urged to seek the assistance of their EEO coordinator. Where the investigation confirms the allegations, prompt corrective action should be taken.


Any reprisal against an employee because the employee, in good faith, reported a violation or suspected violation is strictly forbidden.

Soon after Rutherford transferred to Salt Lake City, manager Fayonne Johanneson required Retherford meet with her to discuss the provisions of the conduct code and to sign a statement saying that she had read and understood them. This procedure was repeated every year during Retherford's tenure at the Wasatch office. In an affidavit submitted in opposition to defendants' motion to dismiss, Retherford termed this annual procedure "a condition of her continued employment" with AT & T.

Among Retherford's co-workers at the Wasatch office were Cathy Bateson-Hough, an AT & T manager, Louise Johnson, a supervisor, Vickie Randall, a fellow employee and union steward, and Jolene Gailey, 1 a fellow telephone operator. Upon her arrival in Salt Lake City, she noticed the sexually uninhibited atmosphere of the Wasatch office. In her affidavit, Retherford testified that during her first day at work, Bateson-Hough showed her an obscene Valentine's Day card. Soon Retherford became aware that obscene jokes and foul language were commonplace among her co-workers.

After approximately six months, Retherford switched to the night shift. At this time, she encountered a more sexually suggestive work environment, one she found threatening. As before, she noted that sex was a common topic of discussion. For example, in her affidavit she described Johnson's loud accounts of an alleged sexual relationship with another AT & T employee.

For the first time, however, Retherford found herself a target of the sexually suggestive commentary. Specifically, she alleges that Jolene Gailey subjected her to unwelcome sexual advances. Retherford's affidavit describes these advances as follows:

Retherford complains that Gailey touched her, made numerous comments regarding her appearance, and regularly suggested that Retherford join her "in various activities." Gailey's friends, including defendant Johnson, also began to congregate around Retherford, conversing frequently and explicitly about subjects of a sexual nature. As time passed, Gailey became more aggressive. When "visibly intoxicated," Gailey sat next to Retherford, touched her affectionately on the arm, and said, "I'm going to save you from Dave Todd," a male AT & T employee with whom Retherford had been sitting at meals. Gailey subsequently asked Retherford to pose nude while Gailey painted or sculpted her likeness, told Retherford that she was looking for a roommate, and informed Retherford that she hated men and even the sound of men's voices on the telephone. Retherford also believes that Gailey passed a note around the office stating that Retherford was having an affair with a male AT & T employee.

After approximately ten months of such treatment, Gailey telephoned Retherford at home and asked her if she intended to file an EEOC complaint about Gailey's conduct. 2 Retherford testified in her affidavit that she replied that she would file a complaint if Gailey continued to bother her. According to...

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