Zimmerman v. Univ. of Utah & Dr. William Mcmahon

• Decision Date: 23 January 2018
• Docket Number: No. 20160572,20160572
• Citation: 417 P.3d 78
• Parties: Judith Pinborough ZIMMERMAN, Ph.D., Plaintiff, v. UNIVERSITY OF UTAH and Dr. William McMahon, Defendants.
• Court: Utah Supreme Court

417 P.3d 78

Judith Pinborough ZIMMERMAN, Ph.D., Plaintiff,

v.UNIVERSITY OF UTAH and Dr. William McMahon, Defendants.

No. 20160572

Supreme Court of Utah.

Filed January 23, 2018

April L. Hollingsworth, Salt Lake City, for plaintiff

Sean D. Reyes, Att’y Gen., Tyler R. Green, Solic. Gen., Stanford E. Purser, Deputy Solic. Gen., Peggy E. Stone, Asst. Solic. Gen., Salt Lake City, for defendants

Associate Chief Justice Lee authored the opinion of the Court, in which Chief Justice Durrant, Justice Himonas, Presiding Judge Orme, and Judge Brown joined.

Having recused himself, Justice Pearce does not participate herein; Court of Appeals Presiding Judge Gregory K. Orme sat.

Due to her retirement, Justice Durham did not participate herein; District Court Judge Jennifer A. Brown sat.

Justice Petersen became a member of the Court on November 17, 2017, after oral argument in this matter, and accordingly did not participate

Associate Chief Justice Lee, opinion of the Court:

¶1 This case comes to us on certification from the United States District Court for the District of Utah. UTAH R. APP. P. 41. The certified questions are as follows:

1. Is the Free Speech Clause of the Utah Constitution self-executing?

2. If question 1 is answered in the affirmative, what are the elements of a claim brought under the clause?

3. Does an employee who receives notice that his or her employment will be terminated effective on a future date suffer an adverse employment action for purposes of the Utah Protection of Public Employees Act when he or she receives the notice, when the employment is actually terminated, or both?

These are important questions. The first two, in particular, are matters of first impression of great significance. Clearly that is why Judge Parrish certified these matters for our decision, and why we accepted the certification.

¶2 Our authority to answer certified questions, however, is a matter of discretion. UTAH CONST. art. VIII, § 3 ; UTAH R. APP. P. 41. The power to elect to decide a certified question encompasses the power to decline to resolve it conclusively in appropriate circumstances. And on reflection we see reasons not to render a conclusive answer to the first two questions certified in this case. Because these questions are not adequately briefed by the parties we decline to resolve them here. Instead we answer only the third question, which is squarely presented and amply addressed in the parties’ briefs.

¶3 On the third question, we hold that a notice of termination may be an adverse employment action independent of an actual termination under the Utah Protection of Public Employees Act (UPPEA). We also set forth an analytical framework for assessing whether such employment actions are independent of each other under the UPPEA, while leaving the application of this standard for the United States District Court in the first instance.

I

¶4 Dr. Judith Zimmerman filed a federal lawsuit against Dr. William McMahon and the University of Utah (University), asserting claims (among others) arising under the Utah Constitution and the UPPEA, Utah Code section 67-21-3. We state the facts of relevance to her claims as described by the United States District Court in the order of certification.

¶5 Dr. Zimmerman is a speech-language pathologist. She entered into a contract with the University in 2008. Pursuant to the contract, Dr. Zimmerman was appointed as a research assistant professor for a "renewable one-year term." The contract stated that her appointment "will subsequently be renewed each year thereafter, contingent on [her] progress and the availability of funds, for successive terms of one (1) year unless either [she] or the University gives written notice to the other of its intent not to renew [her] appointment." Dr. Zimmerman’s employment contract was subsequently renewed until her termination in June of 2013.

¶6 Dr. Zimmerman’s research focused on autism in Utah. She worked under a grant from the Centers for Disease Control and Prevention (CDC). Dr. Zimmerman and her team collected data about pre-identified students from schools and medical facilities, including private health and educational information. Their data collection was subject to HIPPA and FERPA regulations, as well as protocols established by the CDC. In addition, the University required the research to be approved by the Institutional Review Board, and individual researchers were also required to seek approval from the Utah Department of Health to use health data in a research study.

¶7 In 2012, Dr. Zimmerman concluded that a University employee had copied confidential data in violation of governing laws and regulations. In August, she reported her concerns regarding research misconduct and privacy violations to the University. She alleged that the data was shared with individual researchers, including Dr. McMahon, in violation of confidentiality and privacy agreements and potentially in violation of federal privacy laws. Dr. Zimmerman also reported to the University’s legal department that she believed University employees were "double-dipping" because time spent on research for one group was being charged as time to another group of researchers.

¶8 On December 12, 2012, Dr. McMahon delivered a letter to Dr. Zimmerman notifying her that her contract would not be renewed. Her employment with the University ended on June 30, 2013. Dr. Zimmerman served a Notice of Claim on October 25, 2013, and filed this action on December 27, 2013.

¶9 Dr. Zimmerman brought claims against the University and Dr. McMahon for, among other things, infringement of her free speech rights under the Utah Constitution and under the UPPEA. The University moved for summary judgment. First, it asserted that Dr. Zimmerman had no private right of action under the free speech clause of the Utah Constitution, which the University viewed as not self-executing. Second, it contended that the UPPEA claim was time-barred—asserting that Dr. Zimmerman suffered an adverse employment action upon receiving notice that her contract would not be renewed, and noting that she had not asserted her claim within 180 days of that action as required by section 67-21-4 of the Utah Code.

¶10 The United States District Court determined that the University’s motion implicated important, unresolved questions of state law. And it accordingly certified these questions for our review.

II

¶11 The federal court’s certification order identified three questions of state law. The first two are of relevance to Dr. Zimmerman’s free speech claim under the Utah Constitution. They ask us to decide whether the Utah free speech clause is "self-executing" and, if so, to identify the elements of a free speech claim under the Utah Constitution. The third question is of relevance to Dr. Zimmerman’s UPPEA claim. It asks us to identify the "adverse employment action" triggering the 180-day filing requirement under the UPPEA.

¶12 These are important questions of first-impression—questions on which this court should and will one day have the final say. For that reason we can certainly understand the U.S. District Court’s decision to certify these issues for our review. That said, the briefing and procedural posture of this case make it difficult for us to render a confident answer to the first two questions presented. And for reasons explained below we decline to exercise our discretion to resolve these questions on the briefing that is now before us. Instead we answer only the third question, reserving the first two for another day.

A

¶13 "The posture of a matter certified to us by a federal court is unusual." Fundamentalist Church of Jesus Christ of Latter-Day Saints v. Horne , 2012 UT 66, ¶ 7, 289 P.3d 502. In deciding certified questions we are not reviewing a decision of a lower court. Typically we are addressing abstract questions of law, albeit "in a context and manner useful to the resolution of a pending federal case." Id . ¶ 8.

¶14 If this case were before us on appeal we would have the benefit of a lower court’s disposition of Dr. Zimmerman’s claims. We would also be presented with the legal standards adopted by the trial court and the application of those standards to the evidence in the record. In a case involving both statutory and constitutional claims, moreover, we might well have a basis for deciding the case on purely statutory grounds while avoiding the constitutional question.

¶15 None of this is available to us here. We have no articulation of the constitutional standard deemed appropriate for disposition of the case by a trial court. And we have no application of that standard to the evidence presented by the parties below. Without such application, moreover, we are not in a position to avoid the constitutional question presented by resolving the case on purely statutory grounds.¹

¶16 These obstacles alone are not insurmountable. In an appropriate case, we could answer constitutional questions on certification from a federal court. But we have determined that this is not an appropriate case. We reach that conclusion because the above-noted problems are exacerbated here by the limited nature of the briefing presented by the parties.

¶17 The question of the basis for and elements of a free speech claim under the Utah Constitution is a sensitive one. To decide whether Dr. Zimmerman has a private right to sue for damages under the Utah free speech clause we would first have to decide that this provision is self-executing. Spackman ex rel. Spackman v. Bd. of Educ. of the Box Elder Cty. Sch. Dist. , 2000 UT 87, ¶¶ 7–9, 16 P.3d 533. "A constitutional provision is self-executing if it articulates a rule sufficient to give effect to the underlying rights and duties intended by the framers" of our constitution. Bott v. DeLand , 922 P.2d 732, 737 (Utah 1996) (citation omitted), abrogated on other grounds by Spackman , 2000 UT 87, 16 P.3d 533. "In other words, courts may give effect to a provision without implementing legislation" if we...