Pead v. Ephraim City , 2020 UT App 113 ( 2020 )

2020 UT App 113THE UTAH COURT OF APPEALS
DARREN PEAD,
Appellee,
v.
EPHRAIM CITY,
Appellant.
Opinion
No. 20190416-CA
Filed August 6, 2020
Sixth District Court, Manti Department
The Honorable M. James Brady
No. 190600006
Nathan R. Skeen, Maralyn M. English, and
Nathanael J. Mitchell, Attorneys for Appellant
Erik Strindberg, Kass Harstad, and Cameron Platt,
Attorneys for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES KATE APPLEBY and RYAN M. HARRIS concurred.
POHLMAN, Judge:
¶1 Ephraim City appeals the district court’s denial of its
motion to dismiss Darren Pead’s complaint against it for
violations of Utah’s Whistleblower Act. The City argues that
Pead’s complaint is time-barred and that, in concluding
otherwise, the district court erroneously calculated the
applicable sixty-day period for the City to respond to Pead’s
notice of claim. On this basis, the City asks that we reverse and
remand the case with instructions to dismiss Pead’s claim with
prejudice. We agree and reverse.
Pead v. Ephraim City
BACKGROUND 1
¶2 Between October 2015 and June 28, 2017, 2 Pead was
employed as a police officer for the City. In early June, Pead and
other officers reported to the City illegal misconduct in the
police department involving incomplete reports and
uninvestigated crimes. Following an investigation by Utah
County, Pead resigned effective June 28. In his notice of
resignation, Pead explained that he had no choice but to resign
given the illegal conduct and retaliation against him.
¶3 On October 25, Pead filed a written notice of claim with
the City pursuant to the Governmental Immunity Act of Utah
(the GIA), see Utah Code Ann. §§ 63G-7-401 to -403 (LexisNexis
2016 & Supp. 2017), claiming that he had been wrongfully
terminated in violation of the Utah Protection of Public
Employees Act—also known as the Whistleblower Act (the
WBA), see id. § 67-21-4 (2016); see also id. § 63G-7-301(2)(f) (Supp.
2017) (providing that immunity from suit is waived for “actual
damages” suits “under Title 67, Chapter 21,” of the WBA). 3 Pead
then filed suit in federal district court on December 26, claiming
violations of the WBA and the First Amendment to the United
1. In reviewing the district court’s grant of a motion to dismiss,
we accept the factual allegations in the complaint as true and
recite the facts accordingly. Russell v. Standard Corp., 898 P.2d
263, 264 (Utah 1995).
2. All events relevant to the issue of whether the district court
erred by concluding that Pead’s complaint was not time-barred
occurred in 2017. For ease of reference, we refrain from
including the year when identifying the dates involved.
3. Unless otherwise indicated, we cite the statutes in effect in
2017 at the time of the relevant events.
20190416-CA 2 2020 UT App 113Pead v. Ephraim City
States Constitution. As of December 26, 181 days had elapsed
since Pead’s resignation in June.
¶4 The federal court dismissed Pead’s First Amendment
claim and declined to exercise supplemental jurisdiction over the
whistleblower claim. Pead then filed the present action in state
district court, again alleging violations of the WBA.
¶5 The City moved to dismiss the complaint. It argued that
the district court was deprived of subject matter jurisdiction
because Pead had not timely complied with the intersecting
filing requirements of the GIA and the WBA. See generally Thorpe
v. Washington City, 2010 UT App 297, ¶¶ 18–21, 243 P.3d 500(construing the GIA and the WBA to require an employee “to
file a notice of claim and a civil action—i.e., a district court
complaint—within 180 days” of the adverse employment action
(cleaned up)).
¶6 As applied to Pead, the City explained that under the
GIA, it had sixty days from the filing of Pead’s notice of claim to
approve or deny it and that Pead could not file a legal action
until after the City responded or the sixty days elapsed. Pead
filed his notice of claim on October 25, and the sixtieth day fell
on December 24. Noting that December 24 was a Sunday, and
Monday, December 25 was a legal holiday, the City invoked a
statutory rule of construction to argue that December 24 and
December 25 were excluded from the time period calculation
and that the time for it to respond to the notice of claim did not
elapse until Tuesday, December 26. See Utah Code Ann. § 68-3-7(LexisNexis 2016) (excluding weekends and legal holidays from
the last day of any time period provided by law to “perform an
act”). As a result, the City contended that, under the GIA, the
earliest Pead could have filed his WBA action would have been
December 27. Thus, his December 26 complaint was filed
prematurely under the GIA, and a filing on December 27 (182
20190416-CA 3 2020 UT App 113Pead v. Ephraim City
days from the date of his resignation) would have been too late
under the WBA’s 180-day statute of limitations.
¶7 In response, Pead argued that the GIA’s sixty-day period
for responding to the notice of claim could not be extended
under computation of time rules because the claim was deemed
denied by operation of law on the sixtieth day—in this case,
December 24. Pead also asserted that he timely filed his
complaint within the 180-day limitations period under the WBA,
arguing that rule 6 of the Utah Rules of Civil Procedure applied
to extend the last day for filing his complaint from December
25—a legal holiday and the 180th day after his resignation—to
December 26, the date he filed his original complaint in federal
court. See Utah R. Civ. P. 6(a) (explaining how to compute time
periods specified in court rules, court orders, and statutes that
do not specify a method for computing time).
¶8 The district court denied the City’s motion. Noting that
the timeliness of Pead’s complaint was “determined by the
intersection” of the GIA and the WBA, the court first concluded
that the complaint was timely filed under the 180-day limitations
period of the WBA. The court applied rule 6 of the Utah Rules of
Civil Procedure to determine that, although the “terminal date”
from Pead’s resignation was December 25, rule 6 operated to
extend the filing period to December 26. The court then
determined that the sixty-day notice of claim period under the
GIA ended on December 24. Rejecting the City’s argument for
time computation under Utah Code section 68-3-7, the court
relied on Utah caselaw to support its conclusion that the “60-day
cutoff [under the GIA] ends at precisely 60 days, even when it
occurs on a weekend.” On this basis, the court determined that
the sixty-day period ended on December 24, sixty days from the
date the notice of claim was filed on October 25. As a result, the
court concluded that Pead satisfied both statutes by filing his
complaint on December 26.
20190416-CA 4 2020 UT App 113Pead v. Ephraim City
¶9 Pursuant to rule 5 of the Utah Rules of Appellate
Procedure, the City petitioned for interlocutory appeal of the
district court’s denial of its motion to dismiss, and we granted
the petition.
ISSUES AND STANDARDS OF REVIEW
¶10 The City challenges the district court’s denial of its motion
to dismiss. Specifically, the City argues that the district court
“erroneously concluded that the statutory notice of claim period
terminated after 60 days, despite the final day landing on a
weekend.” Second, and relatedly, the City argues that the court
erred in denying its motion to dismiss because Pead failed to
“file his notice of claim with sufficient time under the [GIA] to
allow him to comply with the 180-day statute of limitations
under the [WBA].” “A trial court’s decision to dismiss a case
based on governmental immunity is a determination of law that
we afford no deference.” Hall v. Utah State Dep’t of Corr., 2001 UT
34, ¶ 11, 24 P.3d 958. Likewise, the City’s challenge requires that
we interpret the relevant statutes, and we “review questions of
statutory interpretation for correctness, affording no deference to
the district court’s legal conclusions.” Grimm v. DxNA LLC, 2018
UT App 115, ¶ 14, 427 P.3d 571 (cleaned up).
ANALYSIS
¶11 The City argues that the district court erred by concluding
that the sixty-day notice of claim response period under the GIA
ended on December 24 and, by extension, that Pead’s complaint
was timely filed under the WBA’s 180-day limitations period.
We agree.
¶12 This case involves the intersection of timelines in the GIA
and the WBA. The GIA generally immunizes “each
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governmental entity and each employee of a governmental
entity . . . from suit for any injury that results from the exercise of
a governmental function.” Utah Code Ann. § 63G-7-201(1)
(LexisNexis 2016). But the GIA waives that immunity in certain
cases, including from suits against a governmental entity for
actual damages “under Title 67, Chapter 21,” of the WBA. See id.
§ 63G-7-301(2)(f) (Supp. 2017); see also McGraw v. University of
Utah, 2019 UT App 144, ¶ 10, 449 P.3d 943 (“[T]he GIA expressly
waives immunity from suits alleging retaliation under the
WBA.” (cleaned up)). The WBA, in turn, prohibits an employer
from taking adverse actions against an employee for the
employee’s “good faith” communications regarding, among
other things, “a violation or suspected violation of a law, rule, or
regulation adopted under the law of this state [or] a political
subdivision of this state” or, “as it relates to a state government
employer,” “gross mismanagement,” “abuse of authority,” or
“unethical conduct.” Utah Code Ann. § 67-21-3(1)(a) (LexisNexis
2016). See generally Thorpe v. Washington City, 2010 UT App 297,
¶¶ 11–12, 243 P.3d 500 (describing the overall operation of both
the GIA and the WBA).
¶13 Our courts have “consistently and uniformly held that
suit may not be brought against the state or its subdivisions
unless the requirements of the [GIA] are strictly followed,” in
that “any conditions placed on [a statutory right of action] must
be followed precisely.” Hall v. Utah State Dep’t of Corr., 2001 UT
34, ¶ 23, 24 P.3d 958; accord McGraw, 2019 UT App 144, ¶ 18; see
also Wheeler v. McPherson, 2002 UT 16, ¶ 12, 40 P.3d 632(“Applying this rule of strict compliance, we have repeatedly
denied recourse to parties that have even slightly diverged from
the exactness required by the [GIA].”). Indeed, “[c]ompliance
with the [GIA] is a prerequisite to vesting a district court with
subject matter jurisdiction over claims against governmental
entities.” Wheeler, 2002 UT 16, ¶ 9.
20190416-CA 6 2020 UT App 113Pead v. Ephraim City
¶14 One of the GIA requirements that must be “strictly
followed” is filing the notice of claim and allowing the
governmental entity sixty days to respond before filing a
complaint in court. See Hall, 2001 UT 34, ¶¶ 21–26; accord
McGraw, 2019 UT App 144, ¶¶ 12, 18, 24–27; Thorpe, 2010 UT
App 297, ¶ 12 (“[A]n employee may bring a WBA claim against
a governmental entity, provided that the employee satisfies the
GIA requirement of filing a notice of claim.”). More specifically,
under the GIA, once a notice of claim has been properly filed, see
Utah Code Ann. § 63G-7-402 (LexisNexis 2016), “[w]ithin 60
days . . . the governmental entity . . . shall inform the [employee]
in writing that the claim has either been approved or denied,” id.
§ 63G-7-403(1)(a) (Supp. 2017). If the governmental entity does
not “approve or deny the claim” “at the end of the 60-day
period,” the claim is “considered to be denied.” Id.
§ 63G-7-403(1)(b). Significantly, “[o]nce a plaintiff’s notice of
claim is filed, the [GIA] continues to bar its initiation in court
until the [governmental entity] either denies the claim in writing
or fails to act.” Hall, 2001 UT 34, ¶ 22 (“Only after the
[governmental entity] has had the opportunity to consider the
claim for [the requisite time period] is suit against the
government allowed.”); accord McGraw, 2019 UT App 144, ¶ 25
(explaining that “existing case law . . . has consistently
interpreted [the GIA] to bar the act of filing a complaint in the
district court until the expiration of the sixty-day waiting
period”); Thorpe, 2010 UT App 297, ¶¶ 20–21.
¶15 Once the sixty-day notice of claim period has expired, the
WBA’s 180-day statute of limitations applicable to whistleblower
claims comes into play. See Thorpe, 2010 UT App 297, ¶¶ 18–21.
Under the WBA, “an employee who alleges a violation . . . may
bring a civil action for appropriate injunctive relief, damages, or
both, within 180 days after the occurrence of the alleged
violation.” Utah Code Ann. § 67-21-4(1)(a) (LexisNexis 2016).
Significantly, as this court explained in Thorpe, when construed
20190416-CA 7 2020 UT App 113Pead v. Ephraim City
and applied together, “the WBA’s provisions—including its 180-
day statutory period for filing a complaint—govern over the
more general GIA provisions.” 2010 UT App 297, ¶ 20. This
means that a plaintiff seeking relief under the WBA is required
to “file a notice of claim and a civil action—i.e., a district court
complaint—within 180 days” of the adverse employment
decision. Id. (cleaned up).
¶16 As a practical matter, plaintiffs seeking to assert claims
against governmental entities under the WBA must therefore
“proceed more quickly than either the WBA or the GIA would
suggest when their respective terms are considered in isolation.”
Id. ¶ 21. “[B]ecause the GIA requires that the governmental
entity be allowed 60 days to review the notice of claim and
approve or deny it, it follows that the plaintiff must submit the
notice of claim before the elapse of 120 days from the date of the
alleged WBA violation so that, after the governmental entity
either denies or fails to approve the notice of claim within 60
days, the plaintiff may still file a timely complaint within the
WBA’s 180-day statutory period.” Id. (cleaned up).
¶17 Here, neither party disputes the applicability of the sixty-
day and 180-day periods under the GIA and the WBA or that
both the notice of claim and the civil action filed in federal court
had to be filed within 180 days of the adverse employment
action—Pead’s June 28 resignation. Rather, the parties dispute
how those time periods ought to be computed for purposes of
counting days.
¶18 The City argues that the sixty-day notice of claim period
should have been counted according to Utah Code section 68-3-7
or rule 6 of the Utah Rules of Civil Procedure, either one of
which would have given it until December 26 to respond to
Pead’s notice of claim (with the result that Pead could not have
filed his complaint in federal court until December 27—182 days
20190416-CA 8 2020 UT App 113Pead v. Ephraim City
from his resignation). See Utah Code Ann. § 68-3-7 (LexisNexis
2016); Utah R. Civ. P. 6(a)(1).
¶19 Pead, on the other hand, argues that the district court got
it right. He contends that under the relevant provisions of the
GIA, his notice of claim was automatically deemed denied on
the sixtieth day, regardless of whether that day fell on a
weekend or a legal holiday, which would have been December
24. On this basis, he argues that his civil action under the WBA
was timely filed on December 26.
¶20 The resolution of this appeal therefore hinges on whether
the district court erred in its computation of the sixty-day notice
of claim period. If it did not, and the sixty days expired by
operation of law on December 24, then Pead’s December 26
complaint was not prematurely filed under the GIA (and was
timely under the WBA). In contrast, if the district court erred in
its computation and instead ought to have excluded December
24 and December 25, then the notice of claim period extended
through December 26, rendering the filing premature.
¶21 This issue is one of statutory interpretation. “When
interpreting statutes, our primary goal is to evince the true intent
and purpose of the Legislature.” Schleger v. State, 2018 UT App
84, ¶ 11, 427 P.3d 300 (cleaned up). “As we have often noted, the
best evidence of the legislature’s intent is the plain language of
the statute itself.” Monarrez v. Utah Dep’t of Transp., 2016 UT 10,
¶ 11, 368 P.3d 846 (cleaned up). In discerning legislative intent,
“we seek to render all parts thereof relevant and meaningful,
and we accordingly avoid interpretations that will render
portions of a statute superfluous or inoperative.” Thorpe, 2010
UT App 297, ¶ 18 (cleaned up). We also “do not interpret the
plain meaning of a statutory term in isolation” and instead
“determine the meaning of the text given the relevant context of
the statute.” Monarrez, 2016 UT 10, ¶ 11 (cleaned up). As a result,
“we read the plain language of the statute as a whole, and
20190416-CA 9 2020 UT App 113Pead v. Ephraim City
interpret its provisions in harmony with other statutes in the
same chapter and related chapters.” Id. (cleaned up).
¶22 We begin by addressing whether the district court erred
in determining that the sixty-day notice of claim time period
under the GIA elapsed on December 24, and we ultimately
conclude that the court erred. We then address the consequences
of the court’s error as it pertains to the timeliness of Pead’s filing
under the WBA.
I. Timeliness Under the GIA
¶23 As explained above, the GIA provides that governmental
entities have sixty days to approve or deny a claim. See Utah
Code Ann. § 63G-7-403(1) (LexisNexis Supp. 2017). However, the
GIA does not instruct how to compute those sixty days. For
example, the GIA does not state whether the day the notice of
claim was filed is included in the computation. Similarly, and of
particular significance here, the GIA does not state how the time
is computed when the sixtieth day falls on a weekend or a legal
holiday. See generally id. §§ 63G-7-101 to -904 (LexisNexis 2016
& Supp. 2017).
¶24 But the fact that the GIA does not answer these questions
does not mean that the legislature has left us without guidance.
Indeed, the legislature has adopted a statutory provision
instructing on this very issue. Title 68, Chapter 3, of the Utah
Code addresses how the legislature intends statutes of the Utah
Code to be construed. See id. §§ 68-3-1 to -14; see also State Board of
Land Comm’rs v. Ririe, 190 P. 59, 63 (Utah 1920) (Thurman, J.,
concurring) (“Rules of construction adopted by the Legislature
are entitled to serious consideration in arriving at the intent and
meaning of the statutes.”). And as the City points out, Utah
Code section 68-3-7 expressly sets forth a specific method for
computing time periods described in statutes. It provides,
20190416-CA 10 2020 UT App 113Pead v. Ephraim City
(1) A person shall compute the period of time
provided by law to perform an act by:
(a) excluding the first day; and (b) except as
provided in Subsection (2), including the last day.
(2) If the last day is a legal holiday, a Saturday, or a
Sunday, then a person shall: (a) exclude the day
described in this Subsection (2) from the time
computation described in Subsection (1); and
(b) compute the period of time to include the end
of the next day that is not a legal holiday, a
Saturday, or a Sunday.
Utah Code Ann. § 68-3-7 (2016). On its face, section 68-3-7 thus
provides a method of computation specifically applicable to
statutes that include stated time periods to perform an act, such
as responding to a notice of claim filed pursuant to the GIA. See
Monarrez v. Utah Dep’t of Transp., 2016 UT 10, ¶ 11, 368 P.3d 846;
Hall v. Utah State Dep’t of Corr., 2001 UT 34, ¶ 15, 24 P.3d 958. In
this respect, we agree with the City that section 68-3-7 provides
an “unambiguous methodolog[y] for calculating statutory
deadlines that fall on a weekend or holiday” as applied to the
GIA’s notice of claim provisions.
¶25 Nevertheless, Pead offers several arguments against
section 68-3-7’s application to this case, none of which we find
persuasive.
¶26 First, the district court rejected application of section
68-3-7 to compute the notice of claim time period in large part by
determining that “Utah appellate courts have found in multiple
cases that [the] 60-day cutoff [for notice of claims under the GIA]
ends at precisely 60 days, even when it occurs on a weekend.”
Pead echoes this, arguing that “prior appellate decisions show”
that his notice of claim was “denied by operation of law” on
December 24.
20190416-CA 11 2020 UT App 113Pead v. Ephraim City
¶27 In this respect, Pead urges that Monarrez v. Utah
Department of Transportation, 2016 UT 10, 368 P.3d 846, in
particular ought to be read as supporting the conclusion that the
sixty-day period ended on Sunday, December 24, and he, like the
district court, cites Craig v. Provo City, 2016 UT 40, 389 P.3d 423,
and Schleger v. State, 2018 UT App 84, 427 P.3d 300, for
additional support. But these cases did not render any holding
with respect to how the sixty-day period should be computed;
that question was not at issue in any of them and therefore was
not decided. Indeed, none of these cases even name or note the
specific day of the week on which the last of the sixty-day period
apparently fell, fairly suggesting that the specific day of the
week was neither sufficiently cognizable to the courts in those
cases nor imperative to their resolution. As a result, the cases
relied on by Pead (and the district court) shed no light on how
the sixty-day notice of claim period ought to be computed. 4
4. Pead makes much of footnote 3 in Monarrez v. Utah Department
of Transportation, 2016 UT 10, 368 P.3d 846, as support for the
idea that Pead’s notice of claim was deemed denied on Sunday,
December 24. That footnote was attached to a statement in the
case’s background section stating that Monarrez’s claim “was
considered to be denied no later than October 24, 2011,” and it
states: “The parties treated October 24, 2011, as the cut-off date
below, though it appears the actual date was October 23.
Regardless of which of those two days applies, the outcome is
the same in this case.” Id. ¶ 3 & n.3 (cleaned up).
We do not view footnote 3 in Monarrez as rendering any
helpful statement about how the notice of claim period ought to
be computed. As explained, the court stated that its observation
was immaterial to its decision, and it evinced no awareness of
which days of the week applied to the dates it identified.
Further, it is unclear what method the court used to compute its
(continued…)
20190416-CA 12 2020 UT App 113Pead v. Ephraim City
¶28 Second, we are not persuaded by Pead’s argument that
Utah Code section 68-3-7 cannot be applied to section 63G-7-403
to compute the notice of claim period. Pead points out that
section 68-3-7 “only extends the time for the performance of an
act.” And he claims that section 68-3-7 does not apply to
subsection (1)(b) of section 63G-7-403 because a notice of claim is
deemed denied under that provision due to inaction by the
governmental entity. In other words, because the government
need not act for a notice of claim to be deemed denied under
subsection (1)(b), the computation rules in section 68-3-7 do not
apply. We disagree.
¶29 Pead is correct that, at the time, section 63G-7-403 of the
GIA provided two alternative avenues for the notice of claim to
be denied—either a written denial under subsection (1)(a) or a
deemed denial under subsection (1)(b). See Monarrez, 2016 UT 10,
¶¶ 10–18, 26 (explaining that subsections (1)(a) and (1)(b)
provide “mutually exclusive” methods of denial, in that “a
denial—whether by operation of law or by written notice—can
occur only once within [the] sixty-day timeframe”). But as
explained in Monarrez, “a claim cannot be denied in both ways,”
with the result that “the time to file a lawsuit can be triggered
only once.” Id. ¶ 18. Stated another way, regardless of which
avenue a governmental entity takes, there is only one applicable
time period for both—sixty days. See id. ¶ 26 (“We hold today
that the [GIA] permits a denial to happen in only one of two
mutually exclusive ways: either the government responds in
writing within sixty days, or the claim is denied by operation of
law at the end of those sixty days.” (emphasis added)).
(…continued)
alternative cut-off date. The sixtieth day after the filing of the
notice of claim was October 22, not October 23. Thus, this
particular computation provides no direction.
20190416-CA 13 2020 UT App 113Pead v. Ephraim City
¶30 And reading the companion provisions together, it is clear
that subsection (1)(b) references the sixty-day time period first
identified in subsection (1)(a)—a time period to which section
68-3-7 applies. Subsection (1)(a) states that within sixty days of
filing a notice of claim, the governmental entity shall respond to
the notice of claim. And subsection (1)(b) continues that if the
governmental entity does not respond within “the 60-day
period,” the claim will be deemed denied. Utah Code Ann.
§ 63G-7-403(1)(a)–(b) (emphasis added). Thus, there is no
discernable basis to differentiate subsections (1)(a) and (1)(b) or
to conclude that the time computation rules set forth in section
68-3-7 do not apply to “the 60-day period” referred to in
subsubsection (1)(b).
¶31 Finally, Pead contends that section 68-3-7 cannot be
applied to section 63G-7-403’s notice of claim provisions, citing
Craig v. Provo City, 2016 UT 40, 389 P.3d 423, for the proposition
that the GIA is “all-encompassing” on the timing requirements
for filing a notice of claim and therefore may not be
supplemented by section 68-3-7. Although the court in Craig
concluded that sections 63G-7-402 and 63G-7-403 spoke
comprehensively and exclusively to the “means and timing of
filing claims against the government,” 2016 UT 40, ¶ 26, it did
not address or reject the application of common law or statutory
rules of construction to the interpretation of those requirements,
see id. ¶¶ 21–26. Rather, Craig addressed and resolved the
question of whether, as a substantive matter, the GIA foreclosed
the applicability of a general savings statute. Id. ¶¶ 19–26. And
where the GIA establishes specific time periods associated with a
notice of claim but does not address how those time periods
should be computed, see supra ¶ 23, we do not read Craig as
foreclosing the application of the legislature’s general rules of
computation to the GIA.
¶32 For these reasons, we conclude that the method described
in section 68-3-7 for computing time applies to section 63G-7-403
20190416-CA 14 2020 UT App 113Pead v. Ephraim City
to compute the sixty-day time period applicable to the approval,
denial, or deemed denial of a notice of claim. See generally Utah
Code Ann. § 63G-7-403(1). And applying that method here, the
sixty-day time period ended, and Pead’s notice of claim was
deemed denied, on December 26. See id. § 68-3-7 (2016). Sixty
days from October 25 was Sunday, December 24. Then,
according to section 68-3-7, December 24 and December 25 each
were excluded for purposes of computing the last day, with the
result that the time period was extended to Tuesday, December
26, the “next day that [was] not a legal holiday, a Saturday, or a
Sunday.” See id. § 68-3-7(2). 5 On this basis, we conclude that the
earliest Pead could have filed his complaint was December 27
and that his complaint filed on December 26 was therefore
prematurely filed. See Hall, 2001 UT 34, ¶ 22 (“Only after the
[governmental entity] has had the opportunity to consider the
claim for [the requisite time period] is suit against the
government allowed.”); accord McGraw v. University of Utah, 2019
UT App 144, ¶ 25, 449 P.3d 943; Thorpe v. Washington City, 2010
UT App 297, ¶¶ 20–21, 243 P.3d 500; see also Hall, 2001 UT 34,
¶ 26 (concluding that dismissal of suit was proper where the
claimant filed the notice of claim contemporaneously with the
civil action, resulting in a failure to strictly comply with the
requirements of the GIA, including that plaintiffs may institute a
civil action “only after their claim is denied” (cleaned up));
Yearsley v. Jensen, 798 P.2d 1127, 1128–29 (Utah 1990) (dismissing
a claim under the GIA where the notice of claim was filed one
day late); Schleger, 2018 UT App 84, ¶¶ 7–15 (affirming that the
appellants’ suit was barred by the GIA’s statute of limitations
5. Because we have concluded that reversal is appropriate on
this issue on the basis of Utah Code section 68-3-7, we do not
reach the City’s additional arguments under rule 6 of the Utah
Rules of Civil Procedure.
20190416-CA 15 2020 UT App 113Pead v. Ephraim City
where, despite the short time frame in which to make the
required filings, their filings were untimely).
¶33 Accordingly, the district court erred when it denied the
City’s motion to dismiss on the basis that Pead had complied
with the notice of claim requirements under the GIA.
II. Timeliness Under the WBA
¶34 As explained above, an employee is not permitted to file
an action in district court until the notice of claim has been
denied. See Hall v. Utah State Dep’t of Corr., 2001 UT 34, ¶¶ 21–26,
24 P.3d 958. Further, the GIA and the WBA are construed
together to require an employee to “file a notice of claim and a
civil action—i.e., a district court complaint—within 180 days” of
the adverse employment action. Thorpe v. Washington City, 2010
UT App 297, ¶¶ 18–21, 243 P.3d 500 (cleaned up).
¶35 We concluded above that the notice of claim period
applicable to Pead’s claim ended on Tuesday, December 26. As a
result, the earliest Pead could have filed his complaint in district
court would have been December 27. But the 180-day limitations
period also expired at the latest on December 26. As a result,
Pead did not timely file his complaint in compliance with both
the GIA and the WBA.
¶36 In so concluding, we are sensitive to the unusual
consequences in this case: Pead filed his complaint too soon
under the GIA, but he also could not have then timely filed his
complaint on December 27, as that would have been too late
under the WBA. But as this court explained in Thorpe, the 180-
day limitations period applies when an employee seeks to
pursue a whistleblower claim against a governmental entity,
which necessarily “requires a WBA claimant to file a GIA notice
early enough in the 180-day period to allow the governmental
entity 60 days to evaluate the claim so that, at the elapse of that
20190416-CA 16 2020 UT App 113Pead v. Ephraim City
time, the claimant can file a civil action before the 180 days have
passed.” Id. ¶ 20. Pead, however, waited too long to file his
notice of claim. And the consequence of this failure is his
inability to pursue his WBA claim in district court. See Hall, 2001
UT 34, ¶ 26; Yearsley v. Jensen, 798 P.2d 1127, 1128 (Utah 1990);
Schleger v. State, 2018 UT App 84, ¶¶ 7–15, 427 P.3d 300; see also
Wheeler v. McPherson, 2002 UT 16, ¶ 11, 40 P.3d 632 (“We have
consistently and uniformly held that suit may not be brought
against the state or its subdivisions unless the requirements of
the [GIA] are strictly followed.” (cleaned up)). On this basis, we
reverse the district court’s denial of the City’s motion to dismiss,
and remand for the entry of judgment in the City’s favor. 6
CONCLUSION
¶37 We conclude that the district court erred when it failed to
exclude December 24 and 25 in its computation of the sixty-day
notice of claim period under the GIA. The sixty-day period
expired on December 26, and in filing his complaint in federal
court on that day, Pead filed his complaint prematurely.
Accordingly, the district court erred by denying the City’s
motion to dismiss, and we remand with instructions to enter
judgment in the City’s favor.
6. During oral argument, Pead conceded that if we concluded
that the notice of claim period extended to December 26, the
appropriate remedy would be reversal with instructions to enter
judgment in the City’s favor.
20190416-CA 17 2020 UT App 113