Reynolds v. Gentry Finance Corp. & Royal Management ( 2016 )

2016 UT App 35THE UTAH COURT OF APPEALS
LUCINDA D. REYNOLDS,
Appellant,
v.
GENTRY FINANCE CORPORATION AND ROYAL MANAGEMENT,
Appellees.
Opinion
No. 20140574-CA
Filed February 19, 2016
Fifth District Court, St. George Department
The Honorable Eric A. Ludlow
No. 110501046
William F. Rummler and Christopher A. Lund,
Attorneys for Appellant
Steven R. Bangerter and Daniel P. Wilde, Attorneys
for Appellee Gentry Finance Corporation
JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN
concurred.
VOROS, Judge:
¶1 After being reassured repeatedly and prominently in
writing that her employer would take no adverse action against
any employee for bringing a complaint to the home office—and
in fact that the employer viewed not reporting violations of
company policy as misconduct—appellant Lucinda D. Reynolds
reported that her immediate supervisor had directed her to act in
violation of company policy and applicable law. She was fired
two weeks later. The district court ruled on summary judgment
that the discharge violated no law because Reynolds was an at-
will employee. Reynolds appeals from that order. We affirm in
Reynolds v. Gentry Finance Corporation
part and reverse in part and remand for further proceedings
consistent with this opinion.
BACKGROUND1
¶2 Reynolds began working for Gentry Finance Corporation
and Royal Management (collectively Gentry) in June 2009. She
received two employee manuals intended to provide employees
with an ‚understanding of our personnel policies‛ as part of her
orientation.
¶3 The manuals required managers to report wrongdoing.
The manuals stated in ‚numerous places‛ that ‚managers are
told to report wrongdoing . . . and are repeatedly assured that
‘NO EMPLOYEE WILL BE TERMINATED OR HAVE ANY
ADVERSE ACTION TAKEN AGAINST THEM FOR BRINGING
A COMPLAINT TO THE ATTENTION OF THE HOME
OFFICE.’‛ (Capitalization, boldface, and italics in original.) Such
assurances appear throughout the manuals, often bolded,
italicized, and set apart in text boxes; written in all capital letters;
punctuated with exclamation points; and prominently displayed
at the top of a page or on a separate page entirely. The manuals
also state that not reporting wrongdoing constitutes ‚violating
Company Policy.‛ But page 5 of the Gentry manual also includes
a disclaimer, buried in the body of the manual’s text, stating that
‚[this handbook] is not an employment contract and is not
intended to create contractual obligations of any kind. Neither
the employee nor the company is bound to continue the
employment relationship if either chooses, at its will, to end the
relationship at any time.‛
1. In reviewing a district court’s grant of summary judgment, we
view ‚the facts and all reasonable inferences drawn therefrom in
the light most favorable to the nonmoving party‛ and recite the
facts accordingly. Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600(citation and internal quotation marks omitted).
20140574-CA 2 2016 UT App 35Reynolds v. Gentry Finance Corporation
¶4 In February 2010, Gentry promoted Reynolds to manager
of its St. George office. That same month she signed an
employment agreement, containing an integration clause, stating
that she was ‚deemed to be an employee at will.‛ This
agreement contained no mention of a duty to report wrongdoing.
¶5 From the time she was hired until December 17, 2010,
Reynolds received at least 17 performance evaluations
containing a mix of positive and negative appraisals of her job
performance. In early January 2011, Reynolds’s supervisor
prepared a memo detailing a lack of year-over-year loan growth
in Reynolds’s office and describing her slow-file (delinquent
loan) rate as ‚too high for the lack of growth the office has had.‛
This memo also stated that Reynolds displayed ‚a negative
attitude‛ when discussing these issues. Shortly thereafter her
supervisor directed Reynolds to call former borrowers, including
those whose accounts had been closed for more than 14 months.
Reynolds refused, on the ground that the calls would violate
Gentry’s policy. According to Reynolds, her supervisor also
instructed her to call former borrowers whose accounts had been
closed for more than 18 months. Reynolds again refused, this
time on the ground that the calls would violate state and federal
law.
¶6 Reynolds reported this incident to an executive at Gentry
on January 12, 2011. The executive confirmed to Reynolds’s
supervisor that company policy prohibited contact with former
borrowers after 14 months, but also instructed Reynolds to be
‚more subtle in the way she relates disagreement with directives
to her supervisor.‛ One week later, Gentry suspended Reynolds
pending an investigation of her account activity by her
supervisor. Her supervisor’s investigation reported ‚slow file is
high,‛ ‚no growth,‛ ‚poor collection practices,‛ and ‚overall
attitude is poor‛ as reasons justifying termination. Gentry
terminated Reynolds’s employment on January 25, 2011, less
than two weeks after she reported her supervisor.
20140574-CA 3 2016 UT App 35Reynolds v. Gentry Finance Corporation
ISSUES AND STANDARD OF REVIEW
¶7 Reynolds contends that the district court erred as a matter
of law in granting summary judgment against her. First, she
contends that her termination breached the employee manuals,
which created an implied-in-fact contract that modified her at-
will employment status. Second, she contends that her
termination violates clear and substantial public policy. Finally,
she contends that genuine issues of fact preclude summary
judgment.
¶8 ‚The court shall grant summary judgment if the moving
party shows that there is no genuine dispute as to any material
fact and the moving party is entitled to judgment as a matter of
law.‛ Utah R. Civ. P. 56(a). ‚Since the trial court has no
comparative advantage over the appellate court in resolving
these questions, the appellate court reviews a summary
judgment for correctness, giving no deference to the trial court’s
decision.‛ Bahr v. Imus, 2011 UT 19, ¶ 15, 250 P.3d 56. We view
‚the facts and all reasonable inferences drawn therefrom in the
light most favorable to the nonmoving party.‛ Orvis v. Johnson,
2008 UT 2, ¶ 6, 177 P.3d 600 (citation and internal quotation
marks omitted). However, ‚the mere existence of genuine issues
of fact . . . does not preclude the entry of summary judgment if
those issues are immaterial to the resolution of the case.‛ Doyle v.
Lehi City, 2012 UT App 342, ¶ 19, 291 P.3d 853 (omission in
original) (citation and internal quotation marks omitted).
ANALYSIS
I. Implied-in-Fact Contract
¶9 Reynolds contends that the employee manuals created an
implied-in-fact contract that modified her at-will employment
status.
20140574-CA 4 2016 UT App 35Reynolds v. Gentry Finance Corporation
¶10 An employee manual may create a unilateral contract.
Johnson v. Morton Thiokol, Inc., 818 P.2d 997, 1001 (Utah 1991).
‚Under a unilateral contract analysis, an employer’s promise of
employment under certain terms and for an indefinite period
constitutes both the terms of the employment contract and the
employer’s consideration for the employment contract.‛ Id. at
1001–02. ‚The employee’s performance of service pursuant to
the employer’s offer constitutes both the employee’s acceptance
of the offer and the employee’s consideration for the contract.‛ Id.
at 1002. ‚The employee’s retention of employment constitutes
acceptance of the offer of a unilateral contract; by continuing to
stay on the job, although free to leave, the employment supplies
the necessary consideration for the offer.‛ Id. (citation and
internal quotation marks omitted).
¶11 ‚At-will employment is a bundle of different privileges,
any or all of which an employer can surrender through an oral
agreement.‛ Sanderson v. First Sec. Leasing Co., 844 P.2d 303, 307
(Utah 1992). The modification need not be oral. But the employer
must communicate a manifestation of intent to the employee
that is sufficiently definite that the ‚employee can reasonably
believe that the employer is making an offer of employment
other than employment at will.‛ Johnson, 818 P.2d at 1002. ‚*I+t is
not clear what type of evidence is sufficient to raise a triable
issue concerning the intentions of the parties and therefore the
existence of an implied-in-fact contract term.‛ Id. But an
employee handbook distributed to an at-will employee may
modify the at-will employment relationship. Id. at 1003.
‚*E+mployee manuals and bulletins containing policies for
employee termination are legitimate sources for determining the
apparent intentions of the parties and for fixing the terms of the
employment relationship.‛ Id. at 1002. However, a manual that
‚contains clear and conspicuous language disclaiming any
contractual liability and stating *the employer’s+ intent to
maintain an at-will relationship with its employees‛ will not
raise a triable issue. Id. at 1003.
20140574-CA 5 2016 UT App 35Reynolds v. Gentry Finance Corporation
¶12 This is so because ‚Utah law allows employers to disclaim
any contractual relationship that might otherwise arise from
employee manuals.‛ Tomlinson v. NCR Corp., 2014 UT 55, ¶ 25,
345 P.3d 523. Thus, ‚when an employee handbook contains a
clear and conspicuous disclaimer of contractual liability, any
other agreement terms must be construed in the light of the
disclaimer.‛ Hodgson v. Bunzl Utah, Inc., 844 P.2d 331, 334 (Utah
1992). ‚The prominence of the text, the placement of the
disclaimer, and the language of the disclaimer are all relevant
factors in determining whether a disclaimer is clear and
conspicuous.‛ Tomlinson, 2014 UT 55, ¶ 26. For example, in
Tomlinson, a disclaimer ‚conspicuously located at the top of the
relevant policy‛ and ‚prominently bolded and set apart by a text
box‛ was ‚sufficiently prominent to put employees on notice of
its terms.‛ Id. ¶ 28.
¶13 Here, both Reynolds’s employment agreement and
Gentry’s employee manuals describe her employment as at-will.
Altogether the portions of the employee manuals included in the
record contain four references to at-will employment. One of
these references also contains a disclaimer of contractual liability.
The disclaimer reads, ‚[This] is not an employment contract and
is not intended to create contractual obligations of any kind.
Neither the employee nor the company is bound to continue the
employment relationship if either chooses, at its will, to end the
relationship at any time.‛ The text of this disclaimer closely
tracks the text of the disclaimer in Johnson, which our supreme
court held was sufficiently clear to convey the intent of Johnson’s
employer to maintain an at-will relationship. Johnson, 818 P.2d at
1003.
¶14 However, the disclaimer here is far from being ‚clear and
conspicuous.‛ In Tomlinson, a disclaimer ‚conspicuously located
at the top of the relevant policy and . . . prominently bolded and
set apart by a text box‛ was deemed ‚sufficiently prominent to
place a reasonable employee on notice.‛ Tomlinson, 2014 UT 55,
¶ 28. Gentry’s disclaimer, by contrast, is not placed at the top of
20140574-CA 6 2016 UT App 35Reynolds v. Gentry Finance Corporation
the relevant policy, not prominent, not bolded, and not set apart
by a text box. It is, in a word, inconspicuous.
¶15 Far more conspicuous are the manuals’ repeated
assurances that no employee ‚will be terminated for submitting
a complaint or grievance.‛ These statements, which occur no
fewer than ten times in the manuals provided to Reynolds, are
frequently bolded, italicized, set apart in text boxes, written in all
capital letters, and punctuated with exclamation points. Some of
these assurances occupy an entire page or appear at the top or
bottom of the page, distinctly apart from the rest of the text.
¶16 We conclude that the employment manuals create a
triable issue as to whether Gentry intended to be contractually
bound by its repeated statements that no employee would be
terminated for submitting a complaint or grievance. Indeed,
these statements overshadow the four references to at-will
employment in the company manuals in frequency, prominence,
and placement.2
¶17 But that conclusion does not end the inquiry. The district
court ruled that under the parol evidence rule the integration
clause in Reynolds’s employment agreement rendered her
‚attempt to find a contract in the employee handbook . . .
unavailing.‛ Whether the disclaimer found in the employment
manuals qualifies as an implied-in-fact unilateral contract will
not matter if the parol evidence rule excludes the employee
manuals from the analysis.
2. The evidence that Gentry intended to be bound by these
statements is so persuasive that even counsel for Gentry
acknowledged in oral argument that these statements qualified
Reynolds’s at-will employment status. However, he quickly
added that it did not matter, because ‚[Reynolds] was not fired
for that reason.‛
20140574-CA 7 2016 UT App 35Reynolds v. Gentry Finance Corporation
¶18 Our supreme court has explained that, under the parol
evidence rule, ‚when parties have reduced to writing what
appears to be a complete and certain agreement, it will be
conclusively presumed, in the absence of fraud, that the writing
contains the whole of the agreement between the parties.‛
Tangren Family Trust v. Tangren, 2008 UT 20, ¶ 12, 182 P.3d 326(citation and internal quotation marks omitted). However, the
rule ‚has a very narrow application.‛ Union Bank v. Swenson, 707
P.2d 663, 665 (Utah 1985). It will ‚exclude evidence of
contemporaneous conversations, representations, or statements
offered for the purpose of varying or adding to the terms of an
integrated contract‛ in the absence of fraud or other invalidating
causes. Tangren, 2008 UT 20, ¶ 11 (citation, emphasis, and
internal quotation marks omitted). But it does not foreclose
future amendments or modifications to an integrated agreement.
‚The parol evidence rule only purports to foreclose events which
precede or accompany a written or oral integration, not those
which come later . . . .‛ Wilson v. Gardner, 348 P.2d 931, 933 (Utah
1960). Thus, ‚*t+he parol evidence rule precludes extrinsic
evidence of prior or contemporaneous agreements that
contradict, vary, or add to an integrated writing—it does not
relate to future agreements and does not bar extrinsic evidence
that proves that the parties subsequently modified their
integrated writing.‛ In re Insurance Installment Fee Cases, 150 Cal.
Rptr. 3d 618, 632 (Ct. App. 2012) (alteration in original) (citation,
emphasis, and internal quotation marks omitted).
¶19 Reynolds’s employment agreement unambiguously states
that she may be fired ‚at any time and without cause, notice or
excuse for any reason.‛ And it contains an integration clause.
Because the agreement is integrated and unambiguous, the court
could not admit parol evidence to vary or contradict its terms.
See Tangren, 2008 UT 20, ¶ 11. But we do not understand
Reynolds to be relying on the employee manuals for that
purpose—or at least not for that purpose alone. Our supreme
court held in Johnson that ‚subsequent expressed or implied
20140574-CA 8 2016 UT App 35Reynolds v. Gentry Finance Corporation
agreements [may modify] the at-will employment relationship.‛
Johnson v. Morton Thiokol, Inc., 818 P.2d 997, 1004 (Utah 1991).
¶20 We understand Reynolds to be offering the employee
manuals at least in part for this purpose—to show that the
parties subsequently modified the at-will nature of Reynolds’s
employment agreement. True, Reynolds received the manuals
before signing the employment agreement. But thereafter Gentry
continued to promulgate the manuals and Reynolds continued
to work, each thereby re-entering the unilateral contract;
accordingly, their ‚conduct . . . [met] the standards of a
unilateral offer and acceptance.‛ Hodgson v. Bunzl Utah, Inc., 844
P.2d 331, 334 (Utah 1992) (citing Johnson, 818 P.2d at 1002).3
¶21 Our supreme court has held that an employee manual
may modify a prior employee contract. In Ryan v. Dan’s Food
Stores, Inc., 972 P.2d 395 (Utah 1998), the court held that even
where ‚an express or implied contract‛ governs an employment
relationship, ‚if an employee has knowledge of a distributed
handbook that changes a condition of the employee’s
employment, and the employee remains in the company’s
employ, the modified conditions become part of the employee’s
employment contract.‛ Id. at 401 (quoting Trembly v. Mrs. Fields
Cookies, 884 P.2d 1306, 1312 (Utah Ct. App. 1994)). Although in
that case the rule supported the employer’s attempt to bind the
employee to the terms of the employee manual, the rule by its
nature equally supports an employee’s attempt to bind the
employer to the terms of the employee manual.
3. The agreement also states, ‚No change or modification hereof
shall be valid or shall be binding unless the same is in writing
and signed by the party intended to be bound.‛ However, ‚a
written contract may be orally modified notwithstanding a
clause in the contract stipulating that any modification must be
in writing.‛ R.T. Nielson Co. v. Cook, 2002 UT 11, ¶ 13 n.4, 40 P.3d
1119.
20140574-CA 9 2016 UT App 35Reynolds v. Gentry Finance Corporation
¶22 Accordingly, we reverse the district court’s ruling that the
employment agreement foreclosed Reynolds’s reliance on the
employee manuals. Under Ryan, the employee manuals may
well have modified the conditions of Reynolds’s employment.
And, as explained above, the manuals’ terms present a triable
issue of fact as to whether their disclaimers were sufficiently
clear and conspicuous to negate other terms of the manuals that
purport to qualify Reynolds’s at-will status.
¶23 However, ‚we stress the narrowness of the implied-in-
fact contract term that *Reynolds’s+ allegations would support.‛
See Sanderson v. First Sec. Leasing Co., 844 P.2d 303, 307 (Utah
1992). Gentry promised merely that it would not fire Reynolds
for the reasons stated in the employee manuals—reporting
misconduct—but it retained its ‚at-will prerogative to fire
[Reynolds] at any time for any other reason.‛ See id.II. Violation of Clear and Substantial Public Policy
¶24 Reynolds also contends on appeal that regardless of the
at-will nature of her employment, her termination violated clear
and substantial public policy. This is so, she argues, because she
was fired in retaliation for refusing to violate state and federal
do-not-call laws and for reporting to management that her
supervisor ordered her to break company policy and applicable
law.
¶25 Generally an employer may terminate an at-will
employee for any reason other than those prohibited by law. Ray
v. Wal-Mart Stores, Inc., 2015 UT 83, ¶ 12, 359 P.3d 614. However,
‚[a]n at-will employee whose employment has been terminated
in violation of a clear and substantial public policy may sue for
wrongful termination.‛ Id. This exception applies only when
‚‘the public interest is so strong and the policy so clear and
weighty that we should place the policy beyond the reach’ of
any at-will employment contract.‛ Id. (quoting Touchard v. La-Z-
Boy Inc., 2006 UT 71, ¶ 13, 148 P.3d 945).
20140574-CA 10 2016 UT App 35Reynolds v. Gentry Finance Corporation
¶26 Our supreme court has identified four categories of public
policy that may provide a basis for a wrongful termination claim;
these include refusing to violate the law and reporting criminal
activity to a public authority:
(i) refusing to commit an illegal or wrongful act,
such as refusing to violate the antitrust laws; (ii)
performing a public obligation, such as
accepting jury duty; (iii) exercising a legal right
or privilege, such as filing a workers’
compensation claim; or (iv) reporting to a
public authority criminal activity of the
employer.
Id. ¶ 13 (citation, emphasis, and internal quotation marks
omitted).
¶27 The supreme court has clarified that the Utah Code and
the Utah Constitution may be used as authoritative sources to
identify whether an issue is reflected in the clear and substantial
public policy of Utah. Id. ¶¶ 28–29. Furthermore, ‚*p+ersons who
are terminated from their employment because they refuse to
engage in illegal activities that implicated clear and substantial
Utah public policy considerations should be protected regardless
of whether the applicable law is that of Utah, the federal
government, or another state.‛ Rackley v. Fairview Care Centers,
Inc., 2001 UT 32, ¶ 44, 23 P.3d 1022 (citation and internal
quotation marks omitted). But even ‚if a public policy is
reflected in the Utah Constitution, the Utah Code, and our
common law decisions, it is not clear and substantial unless it is
of overarching importance to the public, as opposed to the
parties only.‛ Ray, 2015 UT 83, ¶ 39 (citation and internal
quotation marks omitted).
¶28 Reynolds alleges that Gentry discharged her for refusing
to violate the law, for reporting her immediate supervisor’s
demand that she violate the law to upper management, or both.
The supreme court has held the public policy exception to apply
20140574-CA 11 2016 UT App 35Reynolds v. Gentry Finance Corporation
where an employee was discharged for making an internal
report about a bank’s noncompliance with state reporting
requirements, see id. ¶ 56 (citing Heslop v. Bank of Utah, 839 P.2d
828 (Utah 1992)), and where an employee was discharged for
refusing to falsify tax documents, see id. ¶ 55 (citing Peterson v.
Browning, 832 P.2d 1280 (Utah 1992)).
¶29 ‚But having a legal right or privilege alone does not mean
that a terminated employee will necessarily have a valid claim
for wrongful termination.‛ Id. ¶ 14. To determine whether the
legal principle at issue reflects the type of clear and substantial
Utah public policy that qualifies as an exception to the at-will
rule, our courts consider three factors: ‚(1) whether the policy at
issue is reflected in authoritative sources of state public policy, (2)
whether the policy affects the public generally as opposed to the
private interests of the employee and the employer, and (3)
whether countervailing policies outweigh the policy at issue.‛ Id.
(citations omitted).
¶30 Here, Reynolds identifies the state and federal statutes
and the federal regulations that she refused to violate, which
prohibit certain telemarketing calls. But her briefing on appeal
does not demonstrate that those provisions embody the clear
and substantial public policy of the State of Utah. She asserts
merely that these laws ‚were created to protect the public from
telemarketing abuse.‛ While undoubtedly true, this single
assertion, without elaboration or analysis, does not establish that
protecting the public from unwanted telemarketing calls is of
‚overarching importance to the public.‛ Ray v. Wal-Mart Stores,
Inc., 2015 UT 83, ¶ 39, 359 P.3d 614. Accordingly Reynolds has
not discharged her appellate burden to demonstrate district
court error. See Simmons Media Group, LLC v. Waykar, LLC, 2014
UT App 145, ¶ 37, 335 P.3d 885 (describing the level of argument
required to prevail on appeal).
¶31 In sum, Reynolds has not shown that discharging an
employee for refusing to violate state and federal telemarketing
statutes and regulations contravenes the clear and substantial
20140574-CA 12 2016 UT App 35Reynolds v. Gentry Finance Corporation
public policy of the State of Utah. Accordingly, we affirm the
order of the district court dismissing her cause of action insofar
as it rests on public policy grounds.
III. Genuine Issues of Material Fact
¶32 Finally, Reynolds contends that genuine issues of material
fact preclude summary judgment. ‚We review a district court’s
decision granting summary judgment for correctness, viewing
‘the facts and all reasonable inferences drawn therefrom in the
light most favorable to the nonmoving party.’‛ Mind & Motion
Utah Invs., LLC v. Celtic Bank Corp., 2016 UT 6, ¶ 15 (quoting
Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600).
¶33 A court ‚shall grant summary judgment if the moving
party shows that there is no genuine dispute as to any material
fact and the moving party is entitled to judgment as a matter of
law.‛ Utah R. Civ. P. 56(a). A genuine dispute need not be
shown by direct evidence; ‚inferences drawn from
circumstantial evidence . . . may create a genuine issue of
material fact.‛ USA Power, LLC v. PacifiCorp, 2010 UT 31, ¶ 65,
235 P.3d 749. ‚Even absent a ‘complete conflict as to certain
facts,’ a dispute of ‘the understanding, intention, and
consequences of those facts’ may defeat summary judgment.‛ Id.
¶ 32 (quoting Sandberg v. Klein, 576 P.2d 1291, 1292 (Utah 1978)).
¶34 Reynolds argues that the parties disagree on whether
Gentry instructed her ‚to call persons on the national do-not-call
registry or those with accounts older than 18 months.‛ Gentry
does not deny that a factual conflict exists on this point; it argues
rather that the issue ‚is not critical.‛ It is not critical, Gentry
reasons, because even if Gentry did instruct Reynolds to make
impermissible calls, ‚there is no evidence or reasonable inference
that this had any bearing on *Gentry’s+ reason for terminating
*her+.‛ Gentry claims to have terminated her solely ‚because she
failed to grow the office as expected.‛ Reynolds responds that
the evidence supports a logical inference that Gentry’s stated
reason for terminating her was pretextual.
20140574-CA 13 2016 UT App 35Reynolds v. Gentry Finance Corporation
¶35 A triable issue of fact may arise where ‚pretext is one of
the logical inferences arising from the facts‛ raised by the
employee. See Uintah Basin Med. Ctr. v. Hardy, 2008 UT 15, ¶ 17,
179 P.3d 786. Under related federal law, even if ‚an employer’s
proffered legitimate reason for a termination is factually true—
for example, [the employee] did commit a safety violation—the
reason may nevertheless be deemed pretextual if circumstances
suggest that it does not adequately explain the employer’s
actions—for example, if the employer was more lenient with
similarly-situated employees who committed the same
violation.‛ Smothers v. Solvay Chems., Inc., 740 F.3d 530, 547 (10th
Cir. 2014).
¶36 Here, Reynolds points to evidence that Gentry’s stated
reason for terminating her is pretextual. For example, Reynolds’s
scores on eight performance audits had ranged between 70 and
85 (out of a total of 100). But after she refused to break the law
and questioned company supervisors about the issue, her
immediate supervisor suspended her and conducted another
audit. Her score on that audit dropped to 30. Reynolds argues
that her score fell dramatically in part because she was not
working due to the suspension. Reynolds also cites evidence that
her predecessor failed three audits before being terminated,
whereas Reynolds failed only one. Reynolds also argues that the
timing of her discharge—eight days after she refused to violate
the law and reported the request to her supervisor’s superior—
‚is not a coincidence.‛ Gentry responds that this inference is
‚pure speculation, conclusory argument, and unsubstantiated
opinion.‛
¶37 In addition, Reynolds testified that her direct supervisor
directed her to act in violation of law, stating that ‚sometimes, in
order to keep your job, you have to be willing to break the
rules.‛ Reynolds then contacted that supervisor’s superior. That
superior later testified that if he were given the choice between
obeying company policy and obeying a direct supervisor, he
would obey the direct supervisor. And Reynolds testified that
the superior told her, ‚Well, when your supervisor tells you to
20140574-CA 14 2016 UT App 35Reynolds v. Gentry Finance Corporation
do something, you need to do it.‛ When Reynolds took the issue
to the supervisor’s superior, he stated, ‚Well, we all know that
our job is on the line every day.‛
¶38 We agree with Gentry that Reynolds ‚cannot create a
dispute on a material issue of fact or disputed inference by
simply saying there is a dispute, or, based upon speculation, a
subjective belief or opinion.‛ But Reynolds has done more than
that here. Viewing the evidence in the light most favorable to
her, as we must, we conclude that pretext is one of the logical
inferences arising from the facts presented and thus that
Reynolds has raised a genuine issue of material fact as to
‚whether the business reasons offered by [Gentry] for
[Reynolds’s+ termination were pretextual.‛ See Uintah Basin, 2008
UT 15, ¶ 20.
CONCLUSION
¶39 Insofar as the summary judgment concludes that
Reynolds has no colorable claim under the public policy
exception to the at-will employment rule, it is affirmed. In all
other respects, it is reversed. We accordingly remand the case for
further proceedings consistent with this opinion.
20140574-CA 15 2016 UT App 35