Tomlinson v. NCR Corporation

2013 UT App 26_________________________________________________________
THE UTAH COURT OF APPEALS
MITCH TOMLINSON,
Plaintiff and Appellant,
v.
NCR CORPORATION,
Defendant and Appellee.
Opinion
No. 20110554‐CA
Filed January 31, 2013
Third District, Salt Lake Department
The Honorable Vernice Trease
No. 090905865
Mitch Tomlinson, Appellant Pro Se
Michael E. Blue and Liesel B. Stevens, Attorneys for Appellee
JUDGE CAROLYN B. MCHUGH authored this Opinion,
in which JUDGES GREGORY K. ORME
and STEPHEN L. ROTH concurred.
McHUGH, Judge:
¶1 Mitch Tomlinson appeals from the dismissal of all but two
claims in his amended complaint against NCR Corporation. He
also appeals from the trial court’s subsequent order granting
summary judgment in favor of NCR on his remaining claims of
wrongful termination and breach of the covenant of good faith and
fair dealing. Finally, Tomlinson asserts that the trial court erred in
denying his motion to alter or amend judgment. We affirm in part,
and reverse and remand in part.
Tomlinson v. NCR Corporation
BACKGROUND
¶2 NCR terminated Tomlinson’s employment as a customer
engineer on May 5, 2005. Following the termination, NCR reported
to the Salt Lake City Police Department that Tomlinson had stolen
NCR’s property and assaulted a manager. Tomlinson disputed the
allegations, and it appears from the record that Tomlinson was not
charged with any crime. At the time of his termination, Tomlinson
had been employed with NCR for about ten years.
¶3 On April 9, 2009, Tomlinson, appearing pro se, filed a
complaint against NCR, alleging several causes of action; he later
filed an amended complaint (the Amended Complaint). NCR
moved to dismiss Tomlinson’s Amended Complaint, arguing that
it failed to state any claims upon which relief could be granted
under rule 12(b)(6) of the Utah Rules of Civil Procedure. After a
hearing, the trial court dismissed seven of Tomlinson’s claims
without prejudice but allowed him to proceed with two of his
claims.1 Despite the trial court’s explanation that Tomlinson could
“file a motion” to amend the complaint, he did not file a second
amended complaint.
¶4 Thereafter, the trial court granted summary judgment for
NCR on Tomlinson’s remaining claims of wrongful discharge and
breach of the covenant of good faith and fair dealing. In response,
Tomlinson filed a motion to alter or amend judgment under rule 59
of the Utah Rules of Civil Procedure. The trial court denied that
motion, and Tomlinson now appeals.2
1. The trial court also dismissed three of Tomlinson’s claims with
prejudice based on Tomlinson’s stipulation that they were time
barred. Tomlinson does not challenge the dismissal of these claims
on appeal.
2. Because we reverse the trial court’s grant of summary judgment,
we need not address Tomlinson’s claim that the trial court erred in
denying his request to alter or amend judgment.
20110554‐CA 2 2013 UT App 26Tomlinson v. NCR Corporation
ISSUES AND STANDARDS OF REVIEW
¶5 Tomlinson contends that the trial court erred in dismissing
seven of his claims under rule 12(b)(6) of the Utah Rules of Civil
Procedure either as inadequately pleaded or as barred by the
Workers’ Compensation Act. Because a rule 12(b)(6) dismissal is a
question of law, “‘we give the trial court’s ruling no deference and
review it under a correctness standard.’” Sony Elecs., Inc. v. Reber,
2004 UT App 420, ¶ 8, 103 P.3d 186 (quoting St. Benedict’s Dev. Co.
v. St. Benedict’s Hosp., 811 P.2d 194, 196 (Utah 1991)).
¶6 Tomlinson also appeals the summary judgment in favor of
NCR on his claims of wrongful discharge and breach of the
covenant of good faith and fair dealing. “Because summary
judgment is granted as a matter of law, we review the trial court’s
ruling for correctness.” Harding v. Atlas Title Ins. Agency, Inc., 2012
UT App 236, ¶ 5, 285 P.3d 1260 (citation and internal quotation
marks omitted). In doing so, “[w]e examine the evidence in the
light most favorable to the losing party, and if that evidence and
the reasonable inferences drawn therefrom would support a
judgment in favor of the losing party, we must reverse.” Id.(emphasis, citation, and internal quotation marks omitted).
ANALYSIS
I. Inadequately Pleaded Claims
¶7 First, Tomlinson argues that the trial court erred when it
dismissed five of his claims under rule 12(b)(6) of the Utah Rules
of Civil Procedure for failure to state a claim on which relief could
be granted. The trial court noted that the Amended Complaint
contained many conclusions but few facts to support them. The
trial court also explained that it could not consider the additional
20110554‐CA 3 2013 UT App 26Tomlinson v. NCR Corporation
facts Tomlinson asserted at the hearing because they could not be
“reasonably inferr[ed] from . . . the [A]mended [C]omplaint.”3
¶8 “A complaint that alleges the facts and sets forth the legal
basis for an available legal remedy adequately states a claim upon
which relief can be granted.” Mack v. Utah State Dep’t of Commerce,
2009 UT 47, ¶ 17, 221 P.3d 194. Thus, when reviewing a trial court’s
dismissal of a complaint under rule 12(b)(6), we “must accept the
material allegations of the complaint as true, and the trial court’s
ruling should be affirmed only if it clearly appears the complainant
can prove no set of facts in support of his or her claims.” Mackey v.
Cannon, 2000 UT App 36, ¶ 9, 966 P.2d 1081; see also Sony Elecs.,
2004 UT App 420, ¶ 10 (stating that dismissal is appropriate only
if “‘it clearly appears that the . . . plaintiffs would not be entitled to
relief under the facts alleged or under any state of facts they could
prove to support their claim.’” (quoting Prows v. State, 822 P.2d 764,
766 (Utah 1991))).
¶9 The Amended Complaint alleges that (1) NCR’s written
employee policies created an employment contract, (2) NCR’s
termination of Tomlinson violated the procedures set forth in those
policies, (3) NCR reported to the Salt Lake Police department that
Tomlinson had stolen NCR’s property and assaulted an NCR
representative, (4) the allegations in the police report were false, (5)
NCR knew the allegations were false, (6) some of the NCR property
was in the possession of an NCR manager, (7) NCR wrote false
performance evaluations of Tomlinson, (8) NCR had a business
relationship with Tomlinson and handled money on his behalf, and
3. On appeal, Tomlinson also asserts facts not pleaded in the
complaint. Although our review under rule 12(b)(6) of the Utah
Rules of Civil Procedure assumes the facts alleged in the Amended
Complaint to be true, “‘we need not accept extrinsic facts not
pleaded nor need we accept legal conclusions in contradiction of
the pleaded facts.’” See Osguthorpe v. Wolf Mountain Resorts, LC,
2010 UT 29, ¶ 10, 232 P.3d 999 (quoting Allred v. Cook, 590 P.2d 318,
319 (Utah 1979)).
20110554‐CA 4 2013 UT App 26Tomlinson v. NCR Corporation
(9) NCR’s actions damaged Tomlinson’s reputation with NCR’s
employees and customers. We assume these allegations are true in
our review of the trial court’s dismissal of Tomlinson’s claims
under rule 12(b)(6). See Mackey, 2000 UT App 36, ¶ 9. Despite that
assumption, we agree with the trial court that Tomlinson inade‐
quately pleaded many of his claims.
A. Breach of Fiduciary Duty
¶10 We first review Tomlinson’s argument that he adequately
pleaded his claim of breach of fiduciary duty. As a general rule, “in
a fiduciary relationship, the property, interest or authority of the
other is placed in the charge of the fiduciary.” First Sec. Bank of Utah
N.A. v. Banberry Dev. Corp., 786 P.2d 1326, 1333 (Utah 1990) (citation
and internal quotation marks omitted). A fiduciary relationship
may arise when one person has “a duty to act primarily for the
benefit of another” and one party is the other’s superior. Id.(citation and internal quotation marks omitted).
¶11 Here, the only facts asserted in the Amended Complaint to
support the breach of fiduciary duty claim are that NCR had a
“business relationship” with Tomlinson and that NCR “handled
money on [his] behalf.” However, there is no allegation that NCR
mishandled or misappropriated any money belonging to
Tomlinson. Thus, even assuming that NCR had a fiduciary duty to
handle Tomlinson’s money appropriately, there is no allegation
that it breached that duty. As a result, the Amended Complaint
fails to allege facts which could support a breach of fiduciary duty
claim.
¶12 On appeal, Tomlinson also argues that “an [employee’s]
agreement to share the losses of the employer” creates a fiduciary
duty. However, we need not consider this argument because
Tomlinson did not raise it before the trial court. See LaChance v.
Richman, 2011 UT App 40, ¶ 15, 248 P.3d 1020 (“Generally, a party
cannot raise an issue for the first time on appeal.”). Even if we were
to address the argument on the merits, Tomlinson’s Amended
Complaint fails to state a claim for breach of fiduciary duty. In
20110554‐CA 5 2013 UT App 26Tomlinson v. NCR Corporation
McLaughlin v. Schenk, 2009 UT 64, 220 P.3d 146, the Utah Supreme
Court concluded that a closely held corporation may have a
fiduciary duty under some circumstances that would prevent the
termination of an at‐will employee who is also a stockholder. Id.
¶ 27. However, such a discharge does not constitute a breach of
fiduciary duty unless “a shareholder’s reasonable expectations
were thwarted.” Id. (citation and internal quotation marks omitted).
The Amended Complaint’s reference to a “business relationship”
and “handling money” does not support an inference that
Tomlinson was a shareholder in NCR, that he shared in NCR’s
profits and losses, that his “reasonable [investment] expectations
were thwarted” by the termination, or that NCR is a closely held
corporation. See id. Thus, “‘it clearly appears that [Tomlinson] . . .
would not be entitled to relief under the facts alleged’” in support
of this claim. See Sony Elecs., Inc. v. Reber, 2004 UT App 420, ¶ 10,
103 P.3d 186 (quoting Prows, 822 P.2d at 766).
B. Interference with Economic Relations
¶13 Next, Tomlinson argues that the trial court erred in
dismissing his claim of interference with economic relations
because he “reasonably expected” to benefit in the future from his
established relationship with NCR’s customers. The elements of
interference with economic relations are that “the defendant
intentionally interfered with the plaintiff’s existing or potential
economic relations . . . for an improper purpose or by improper
means . . . causing injury to the plaintiff.” Anderson Dev. Co. v.
Tobias, 2005 UT 36, ¶ 20, 116 P.3d 323 (citation and internal
quotation marks omitted). The Amended Complaint fails to
identify any existing or potential economic relationship between
Tomlinson and NCR’s customers, and does not allege that NCR
interfered for an improper purpose or by improper means. Thus,
even applying a liberal construction of the facts alleged and
making “all the reasonable inferences to be drawn from the facts in
a light most favorable to [Tomlinson],” the Amended Complaint
does not state a claim upon which relief may be granted for
interference with economic relations. See Anderson v. Dean Witter
Reynolds, Inc., 841 P.2d 742, 744 (Utah Ct. App. 1992).
20110554‐CA 6 2013 UT App 26Tomlinson v. NCR Corporation
C. Abuse of Process
¶14 Tomlinson next asserts that the trial court erred in
dismissing his abuse of process claim. “‘A claim for abuse of
process requires the plaintiff to show (1) that the defendant used
legal process, (2) to accomplish an improper purpose or purpose
for which that process was not designed, (3) causing the plaintiff’s
harm.’” Moss v. Parr Waddoups Brown Gee & Loveless, 2012 UT 42,
¶ 37 n.6, 285 P.3d 1157 (quoting Mountain W. Surgical Ctr., LLC v.
Hospital Corp. of Utah, 2007 UT 92, ¶ 11, 173 P.3d 1276). To
adequately plead a claim for abuse of process, “‘a party must allege
both an ulterior purpose and a wilful act in the use of the process
not proper in the regular conduct of the proceeding.’” See id.(quoting Hatch v. Davis (Hatch II), 2006 UT 44, ¶ 36, 147 P.3d 383).
¶15 To satisfy the wilful act requirement, the party must allege
conduct, other than the pursuit of the legal process itself, that could
support a finding that the actor misused the process in order to
achieve some ulterior objective. See id. In other words, “‘[u]se of
legal process with a bad motive alone’” is not enough. See id.(quoting Hatch II, 2006 UT 44, ¶ 39). The party must also allege that
the actor has engaged in independent conduct which confirms “‘his
improper ulterior motive for employing legal process against the
plaintiff.’” See id. (quoting Hatch II, 2006 UT 44, ¶ 40). The improper
or “ulterior purpose” element “usually involves coercing another
through the use of process to obtain something . . . such as the
surrender of property or the payment of money, or compelling the
victim to do something which he would not otherwise be legally
obligated to do.” Puttuck v. Gendron, 2008 UT App 362, ¶ 14, 199
P.3d 971 (omission in original) (brackets, citations, and internal
quotation marks omitted). Thus, the key to the ulterior purpose
element is that it is “an object for the process abuser’s collateral
advantage.” Id. (citation and internal quotation marks omitted).
¶16 The Amended Complaint alleges that NCR made a false
police report and then advised Tomlinson’s coworkers of the police
investigation, thereby injuring his reputation. NCR asserts that
even accepting these allegations as true, the Amended Complaint
20110554‐CA 7 2013 UT App 26Tomlinson v. NCR Corporation
does not allege an ulterior purpose sufficient to support a claim of
abuse of process. Tomlinson’s allegation that NCR filed the false
police report in order to hurt his reputation does not alone state a
claim for abuse of process because “allegations of intimidation and
desire to hurt a reputation, alone, do not suggest an advantage or
gain [that NCR] would receive collateral to the proceedings.” See
id. ¶ 16. Indeed, “‘[i]n an action for abuse of process, . . . it is
immaterial whether such proceeding was baseless or not.’”4 Id. ¶
13 (alteration in original) (quoting Hatch v. Davis (Hatch I), 2004 UT
App 378, ¶ 33, 102 P.3d 774, aff’d, 2006 UT 44, 147 P.3d 383).
Instead, Tomlinson must allege “an advantage or gain [that NCR]
would receive collateral to the proceedings.” See id. ¶ 16. Compare
id. ¶¶ 15–16 (affirming the dismissal of an abuse of process claim
in which the defendant allegedly filed a false counterclaim and
gave false testimony, causing the plaintiff to incur attorney fees,
because the complaint had not alleged an “ulterior purpose or
collateral advantage that [the defendant] hoped to gain”), with
Hatch I, 2004 UT App 378, ¶ 35 (holding that the defendant had
pleaded an “ulterior motive or purpose” where the plaintiff had
initiated actions against the defendant “in federal and state court
. . . in order to . . . intimidate the residents of the town as well as the
town council to comply with [Plaintiff’s] narrow and peculiar
political and philosophical positions.” (alteration in original)).
Because he has failed to allege any such advantage or gain, the
Amended Complaint does not state a claim for abuse of process.
4. The alleged malicious intent on the part of NCR falls more
appropriately within a claim of malicious prosecution, under
which an actor may be liable for initiating or procuring “criminal
proceedings against another who is not guilty of the offense
charged . . . if (a) [the accuser] initiates or procures the proceedings
without probable cause and primarily for a purpose other than that
of bringing an offender to justice, and (b) the proceedings have
terminated in favor of the accused.” Restatement (Second) of Torts
§ 653 (1977); accord Gilbert v. Ince, 1999 UT 65, ¶ 19, 981 P.2d 841(acknowledging the Restatement definition of malicious
prosecution of criminal actions).
20110554‐CA 8 2013 UT App 26Tomlinson v. NCR Corporation
See MBNA Am. Bank, N.A. v. Goodman, 2006 UT App 276, ¶ 6, 140
P.3d 589 (stating that to support a claim for relief, a plaintiff “must
have alleged sufficient facts . . . to satisfy each element” of a claim).
D. Civil Conspiracy
¶17 Next, Tomlinson asserts that the trial court improperly
dismissed his civil conspiracy claim. A claim of civil conspiracy
requires proof of the following five elements:
(1) a combination of two or more persons, (2) an
object to be accomplished, (3) a meeting of the minds
on the object or course of action, (4) one or more
unlawful, overt acts, and (5) damages as a proximate
result thereof.
Peterson v. Delta Air Lines, Inc., 2002 UT App 56, ¶ 12, 42 P.3d 1253(citation and internal quotation marks omitted).
¶18 The Amended Complaint does not identify “two persons,”
does not allege a “meeting of the minds” on a common “object or
course of action,” and does not allege facts that support these
elements. Instead, the allegations of the Amended Complaint
identify NCR and its employees as the only actors. As a general
rule, “it is not possible for a single legal entity consisting of the
corporation and its agents to conspire with itself,” because they do
not constitute two separate persons. McAndrew v. Lockheed Martin
Corp., 206 F.3d 1031, 1036 (11th Cir. 2000). In addition, Tomlinson
makes no attempt to identify the common objective of the alleged
conspiracy or to identify an act taken in furtherance of it.
Accordingly, the trial court properly dismissed Tomlinson’s civil
conspiracy claim as failing to state a claim upon which relief can be
granted. See Utah R. Civ. P. 12(b)(6).
E. Intentional Infliction of Emotional Distress
¶19 Tomlinson also challenges the dismissal of his claim for
intentional infliction of emotional distress. According to NCR, the
20110554‐CA 9 2013 UT App 26Tomlinson v. NCR Corporation
conduct alleged in the Amended Complaint does not arouse
sufficient “outrage or revulsion” to support the claim.5 That
position is supported by our decision in Magistro v. Day, 2010 UT
App 397U (mem.). There, the plaintiff asserted a claim of
intentional infliction of emotional distress based on allegations that
the defendant had filed a false police complaint against him. See id.para. 4. We upheld the trial court’s summary judgment in favor of
the defendant on that claim, stating “that ‘[a] mere allegation of
improper filing of a lawsuit or the use of legal process against an
individual does not state a claim for outrageous or intolerable
conduct and, as such, is not redressable by a cause of action for
intentional infliction of emotional distress.’” Id. (alteration in
original) (quoting Anderson Dev. Co. v. Tobias, 2005 UT 36, ¶ 55, 116
P.3d 323). Likewise, in Zoumadakis v. Uintah Basin Medical Center,
Inc., 2005 UT App 325, 122 P.3d 891 (mem.), we concluded that
alleged defamatory statements coupled with termination of
employment did not constitute the “kind of outrageous conduct
required to support the cause of action” of intentional infliction of
emotional distress. See id. ¶ 8.
¶20 Based on these decisions, we agree with NCR that
Tomlinson’s Amended Complaint, which alleges that NCR made
false statements to the police and wrongfully terminated his
employment, fails to state a claim for intentional infliction of
emotional distress.6
5. Because we decide this issue under rule 12(b)(6) we need not
consider NCR’s argument that the claim was barred under the
Workers’ Compensation Act. See Olsen v. Chase, 2011 UT App 181,
¶ 19, 270 P.3d 538 (“While we possess the authority to affirm on
alternative grounds, ‘we are not obligated to exercise this
authority.’” (quoting OʹConnor v. Burningham, 2007 UT 58, ¶ 23, 165
P.3d 1214)).
6. Tomlinson’s intentional infliction of emotional distress claim also
fails because he has not alleged that he actually suffered extreme
emotional distress as a result of NCR’s conduct. Compare
(continued...)
20110554‐CA 10 2013 UT App 26Tomlinson v. NCR Corporation
II. Negligence Claims
¶21 Tomlinson next argues that the trial court erred in
determining that the Workers’ Compensation Act precluded his
claims of “negligent hiring, supervision, or retention of [an]
employee” and gross negligence. The Workers’ Compensation Act
provides employees with “the exclusive remedy against the
employer . . . in place of any and all other civil liability” for
accidental injuries sustained “in the course of or because of or
arising out of the employee’s employment.” Utah Code Ann.
§ 34A‐2‐105 (LexisNexis 2011);7 Mounteer v. Utah Power & Light Co.,
823 P.2d 1055, 1057 (Utah 1991). “[E]ach provision for
compensation relates to a diminution or loss of earning power
caused by a physical or mental injury or by death sustained in the
work place.” Mounteer, 823 P.2d at 1057. “The primary objective of
workers’ compensation has been to remove industrial negligence,
in all its forms, from the concept of the law of tort.” Helf v. Chevron
U.S.A., Inc., 2009 UT 11, ¶ 17, 203 P.3d 962 (citation and internal
quotation marks omitted).
¶22 However, the act does not preempt all claims. For example,
it does not preclude a defamation action for damages to one’s
6. (...continued)
Schuurman v. Shingleton, 2001 UT 52, ¶¶ 5, 25, 26 P.3d 227 (holding
that claims of a destroyed marriage, failing to seek treatment for an
eating disorder and depression, and the need for future counseling
services were insufficient to maintain a claim of intentional
infliction of emotional distress), with Walter v. Stewart, 2003 UT
App 86, ¶ 29, 67 P.3d 1042 (holding that emotional pain and a need
for counseling combined with “physical pain, medical bills, loss of
employment, and a need for sexual therapy” supported a claim of
intentional infliction of emotional distress).
7. Because statutory amendments made subsequent to the events
alleged in the Amended Complaint are not material to our analysis,
we cite the current version of the Utah Code for the convenience of
the reader.
20110554‐CA 11 2013 UT App 26Tomlinson v. NCR Corporation
reputation.8 See Mounteer, 823 P.2d at 1058. Likewise, the exclusive
remedy provision does not bar all claims for physical or mental
injuries caused by intentional torts. See Helf, 2009 UT 11, ¶ 18. In
Helf, our supreme court clarified that such claims are not barred by
the Workers’ Compensation Act if the employee can show an
“intent to injure” by establishing “a specific mental state in which
the actor knew or expected that injury would be the consequence
of his action.” Id. ¶ 43. Indeed, “the employer must know or expect
that a specific employee will be injured doing a specific task.” Id.
¶23 NCR asserts that the trial court correctly dismissed this
claim because it is a negligence claim preempted by the Workers’
Compensation Act. In contrast, Tomlinson argues that the Workers’
Compensation Act does not bar his negligence claims because he
alleges that NCR “acted with willful intent.” See id. We need not
reach this issue because, even if not preempted, Tomlinson’s
negligence claims do not assert facts on which relief could be
granted. See Bailey v. Bayles, 2002 UT 58, ¶ 13, 52 P.3d 1158 (“[A]n
appellate court may affirm the judgment appealed from if it is
sustainable on any legal ground or theory apparent on the record.”
(citation and internal quotation marks omitted)).
¶24 The elements of negligence are: (1) “[T]he defendant owed
the plaintiff a duty,” (2) “the defendant breached that duty,” (3)
“the breach of duty was the proximate cause of the plaintiff’s
injury,” and (4) “the plaintiff in fact suffered injuries or damages.”
Webb v. University of Utah, 2005 UT 80, ¶ 9, 125 P.3d 906 (citation
and internal quotation marks omitted). The tort of negligent hiring,
supervision, or retention is an exception to the general rule “that
there is no affirmative duty to control the conduct of a third party
so as to prevent the third party from causing harm to another.” See
Restatement (Third) of Torts § 41, cmt. a. (2012). Thus, to state such
a claim, Tomlinson must allege facts that, if true, would “show that
8. The trial court dismissed Tomlinson’s defamation claim as
barred by the applicable statute of limitations. Tomlinson does not
challenge that decision on appeal.
20110554‐CA 12 2013 UT App 26Tomlinson v. NCR Corporation
[NCR] had a duty to protect him from harm at the hands of its
employees, a negligent breach of that duty, and the harm and
damages caused by that breach.” See J.H. ex rel D.H. v. West Valley
City, 840 P.2d 115, 126 (Utah 1992). While the Amended Complaint
need not prove these essential elements, it must set forth facts
sufficient to state a claim for negligence. See Williams v. Bench, 2008
UT App 306, ¶ 21, 193 P.3d 640 (“We will affirm the rule 12(b)(6)
dismissal of a negligence claim if it appears to a certainty that the
plaintiff would not be entitled to relief under any state of facts
which could be proved in support of its claim.” (brackets, citation,
and internal quotation marks omitted)).
¶25 Tomlinson’s negligent hiring, supervision, or retention claim
contains one paragraph incorporating all of the prior paragraphs
of the Amended Complaint by reference, and then adding two
additional paragraphs, which state:
45. Defendant(s) retained employee’s and
supervisors that did not exercise
ordinary or reasonable care when
evaluating Tomlinson’s performance.
46. Tomlinson’s supervisors did not
adhere to the standards set in the
employment contract when evaluating
Tomlinson’s performance and
reporting.
¶26 While the Amended Complaint alleges that NCR’s
employees and supervisors were negligent themselves, it does not
allege any fact that could support a claim that NCR was
“negligen[t] in hiring, supervising, or retaining its employees” or
that NCR’s negligence in doing so “proximately caused
[Tomlinson] harm.” See Retherford v. AT&T Commc’ns, 844 P.2d 949,
967 (Utah 1992); see also Dee v. Johnson, 2012 UT App 237, ¶ 4, 286
P.3d 22 (“Proximate cause is ‘that cause which, in a natural and
continuous sequence, unbroken by any new cause, produced the
injury, and without which the injury would not have occurred.’”
20110554‐CA 13 2013 UT App 26Tomlinson v. NCR Corporation
(quoting Bunker v. Union Pac. R.R. Co., 114 P. 764, 775 (Utah 1911))).
As a result, Tomlinson has failed to state a claim upon which relief
could be granted for negligent hiring, supervision, or retention.
¶27 Next, we evaluate Tomlinson’s gross negligence claim.
“Gross negligence is the failure to observe even slight care; it is
carelessness or recklessness to a degree that shows utter
indifference to the consequences that may result.” Pearce v. Utah
Athletic Found., 2008 UT 13, ¶ 24, 179 P.3d 760 (citation and internal
quotation marks omitted). Tomlinson’s gross negligence claim
incorporates by reference all prior paragraphs and further states
that NCR acted “intentionally, willfully and maliciously,” and was
“careless and reckless” when it “claimed that Tomlinson had
received parts that were in the possession of his immediate
supervisor, wrote false performance evaluations, gave false
information regarding Tomlinson’s termination and fabricated
allegations against Tomlinson.” Nevertheless, Tomlinson fails to
identify any tort injury proximately caused by the alleged reckless
conduct. Therefore, Tomlinson has failed to state a gross negligence
claim. See Steffenson v. Smith’s Mgmt. Corp., 820 P.2d 482, 486 (Utah
Ct. App. 1991) (stating that a negligence claim requires showing
that “the breach of the duty was the proximate cause of the
plaintiff’s injury; and that there was in fact injury”); accord SME
Indus., Inc. v. Thompson, Ventulett, Stainback & Assocs., Inc., 2001 UT
54, ¶ 32, 28 P.3d 669 (“[E]conomic damages are not recoverable in
negligence absent physical property damage or bodily injury.”),
holding modified by Sunridge Dev. Corp. v. RB & G Engʹg, Inc., 2010
UT 6, 230 P.3d 1000.
III. Summary Judgment
¶28 Tomlinson next argues that the trial court erred in granting
summary judgment in favor of NCR on his claims of wrongful
discharge and breach of the covenant of good faith and fair dealing
(the Good Faith Covenant). Summary judgment is appropriate if
“there is no genuine issue as to any material fact and . . . the
moving party is entitled to a judgment as a matter of law.” Utah R.
Civ. P. 56(c).
20110554‐CA 14 2013 UT App 26Tomlinson v. NCR Corporation
¶29 The trial court announced its summary judgment ruling
from the bench, stating that “as a matter of law there was no
implied contract limiting the right of NCR to terminate Mr.
Tomlinson.” The court’s decision is based on the presumption
under Utah law “that all employment relationships entered into for
an indefinite period of time are at‐will,” which means that an
employer “may terminate the employment for any reason (or no
reason) except where prohibited by law.” See Hansen v. America
Online, Inc., 2004 UT 62, ¶ 7, 96 P.3d 950. That presumption can be
overcome by proof that the parties entered into an “implied or
express agreement that the employment may be terminated only
for cause or upon satisfaction of another agreed‐upon condition.”
Fox v. MCI Commc’ns Corp., 931 P.2d 857, 859 (Utah 1997). Where
there is no express contract altering the at‐will relationship, “the
employee has the burden of establishing the existence of an
implied‐in‐fact contract provision” by showing that “the parties
nevertheless agreed that the employment would not be at will.”
Johnson v. Morton Thiokol, Inc., 818 P.2d 997, 1001 (Utah 1991); see
also Berube v. Fashion Ctr., Ltd., 771 P.2d 1033, 1044 (Utah 1989)
(stating that the at‐will presumption may “be overcome by an
affirmative showing by the plaintiff that the parties expressly or
impliedly intended a specified term or agreed to terminate the
relationship for cause alone”).
¶30 To prove the existence of an implied contract the employee
must make an affirmative showing that “meet[s] the requirements
for an offer of a unilateral contract.” See Johnson, 818 P.2d at 1002;
Berube, 771 P.2d at 1044. This requires “a manifestation of the
employer’s intent that is communicated to the employee and
sufficiently definite to operate as a contract provision,” such that
“the employee can reasonably believe that the employer is making
an offer of employment other than employment at will.” Id.
(footnote omitted). “The existence of such an agreement is a
question of fact which turns on the objective manifestation of the
parties’ intent.” Id. at 1001. Therefore, “it is ‘primarily a jury
question.’” Cabaness v. Thomas, 2010 UT 23, ¶ 56, 232 P.3d 486(quoting Johnson, 818 P.2d at 1001). However, a court may decide
the issue as a matter of law “if the evidence presented is such that
20110554‐CA 15 2013 UT App 26Tomlinson v. NCR Corporation
no reasonable jury could conclude that the parties agreed to limit
the employer’s right to terminate the employee.” Johnson, 818 P.2d
at 1001.
¶31 Here, the trial court concluded that no reasonable jury could
find that NCR agreed to limit its right to fire Tomlinson at‐will.
Tomlinson challenges that decision, claiming that policies
contained within NCR’s Corporate Management Policy Manual
(the Manual), created a disputed issue of material fact concerning
NCR’s intent. Specifically, the Amended Complaint infers that
NCR’s Corporate Management Policy Number 210 (Policy 210)
overcame the at‐will presumption because it “specifically stated the
procedures to be required to be performed before NCR could
terminate [Tomlinson’s] employment.” At the summary judgment
hearing, Tomlinson further explained that NCR’s Corporate
Management Policy Number 422 (Policy 422) distinguishes
between a “core workforce who perform ongoing work which is
necessary for the continuing operation of the business” and a
“workforce buffer that sets the staffing arrangements that will
allow for expansion and contraction.” Tomlinson notes that under
Policy 422 “the only at will employees are the . . . workforce
buffer.” Therefore, he argues that, as a “core” employee, Policy 210
“defined the steps required in order to terminate [him].”9 Although
NCR contends that Tomlinson was a tactical employee, and
therefore part of the workforce buffer, it further asserts that the
9. In opposition to summary judgment, Tomlinson also relied on
NCR’s Corporate Management Policy Number 209 which
addresses “Performance Management” and instructs that
[a]ll NCR Corporation people are to receive a
thorough explanation of the results expected from
them at the beginning of each performance cycle,
interim reviews of progress towards those expected
results during the performance period, and a
comprehensive appraisal of their performance in
relation to those expectations at the close of each
performance period.
20110554‐CA 16 2013 UT App 26Tomlinson v. NCR Corporation
issue is not material because all of its employees are terminable at‐
will.10
A. Tomlinson’s Employment Classification
¶32 In support of his argument that he was a core employee,
Tomlinson provided a copy of his “employee profile” that
identifies him as a “salaried non‐exempt employee” and indicates
that he was expected to work forty hours per week indefinitely. In
addition, he attached Policy 422 to his brief in opposition of
summary judgment, which describes the core workforce as
“employees who perform ongoing work which is necessary for the
continuing operation of the business,”11 and defines full‐time, core
employees as “expected to work the regular number of scheduled
work hours established for the business unit.” Because Tomlinson
produced evidence that he was a long‐term employee who
performed ongoing, full‐time work, he came forward with
evidence that created a disputed issue of fact as to whether he was
a core employee.
¶33 Nonetheless, to survive summary judgment, that disputed
fact must be material. See Utah R. Civ. P. 56 (allowing summary
judgment if “there is no genuine issue as to any material fact”).
Therefore, Tomlinson was required to produce sufficient evidence
from which a “reasonable jury could conclude that the parties
10. Although NCR also claims that Tomlinson was not aware of the
policy during his employment, we decline to consider this
argument because it is raised for the first time on appeal. See State
v. Moa, 2012 UT 28, ¶ 23, 282 P.3d 985 (“As a general rule, in order
to preserve an issue for appeal, the issue must be presented to the
district court in such a way that the district court has an
opportunity to rule on that issue.” (brackets, citation, and internal
quotation marks omitted)).
11. NCR argues that Policy 422 was adopted four years before
Tomlinson was hired, but does not indicate that it was
subsequently revoked or amended.
20110554‐CA 17 2013 UT App 26Tomlinson v. NCR Corporation
agreed to limit the employer’s right to terminate” full‐time, core
employees. See Johnson, 818 P.2d at 1001. “Relevant evidence of the
intent of the parties usually ‘includes the language of the manual
itself, the employer’s course of conduct, and pertinent oral
representations.’” Cabaness, 2010 UT 23, ¶ 57 (quoting Brehany v.
Nordstrom, Inc., 812 P.2d 49, 56 (Utah 1991)). As discussed,
Tomlinson points to two aspects of the Manual that he claims
evidences NCR’s intent to limit its right to terminate core
employees. First, he contends that by expressly designating certain
employees as at‐will, NCR indicated its intent to fire employees not
specifically designated as at‐will only for cause. Second, Tomlinson
claims that NCR was bound by Policy 210 from terminating him
without first following certain procedures. We address each of
these arguments in turn.
B. Limited At‐Will Statements
¶34 In support of his claim that NCR could terminate core
employees only for cause, Tomlinson relies on the Manual’s
express designation of only a subset of NCR employees as being
terminable at‐will. Policy 422 explains that NCR’s core workforce
is comprised of full‐time employees, part‐time employees, and
interns. The “workforce buffer” includes temporary or tactical
workforce employees, contract personnel, and vendors. After
explaining this distinction, Policy 422 sets forth “Conditions
Governing U.S. Tactical Workforce,” which states, “Employment
at NCR is AT WILL. No statement in this policy implies any
guarantee of employment. Completion of an individual’s
temporary employment period is always dependent on the
Company’s needs and the individual’s performance” (the At‐Will
Statement). The At‐Will Statement expressly governs only the “U.S.
Tactical Workforce,” and no similar At‐Will Statement is included
for full‐time, core employees. Based on this distinction, Tomlinson
concedes that NCR can terminate tactical employees at‐will, but
argues that the limitation of the At‐Will Statement to tactical
employees evidences NCR’s intent to terminate core employees
only for cause. Cf. Hamilton v. Parkdale Care Ctr., Inc., 904 P.2d 1110,
20110554‐CA 18 2013 UT App 26Tomlinson v. NCR Corporation
1112 (Utah Ct. App. 1995) (“[A] clear and conspicuous disclaimer
in an employee handbook negates an employee’s contention that
the employment relationship is other than at will.”).
¶35 In Cabaness v. Thomas, 2010 UT 23, 232 P.3d 486, the Utah
Supreme Court considered an analogous issue. There, an employee
brought a wrongful termination claim, alleging that an employee
manual created an implied contract imposing an obligation on the
employer to protect him from harassment by his supervisors. Id.
¶¶ 15, 47. In response, the employer relied on a disclaimer at the
beginning of the manual which stated, “‘No contract exists between
[the employer] and its employees with respect to salary, salary
ranges, movement within salary ranges, or employee benefits.’” Id.
¶ 58. The supreme court first concluded that the express language
of the provision “does not contain broad and conspicuous language
disclaiming any and all contractual liability,” but is limited to “a
few specifically identified items.” Id. It then reasoned that by
expressly restricting the contract disclaimer to those items, the
employer “intended to create a contract with its employees with
respect to the items in the [e]mployee [m]anual that are not
specifically listed in the disclaimer.” Id. Therefore, the Cabaness
court held, as a matter of law, that the manual’s imperative
statements that harassment would not be tolerated created an
implied contract that the employer would protect the employee
from harassment. Id. ¶ 60 & n.9.
¶36 The supreme court’s reasoning in Cabaness suggests that
NCR’s inclusion of the express At‐Will Statement in Policy 422 that
governs only the “U.S. Tactical Workforce” is evidence of its intent
not to terminate other NCR employees without cause.
Furthermore, although neither party has raised the immediately
following section of the Manual, NCR’s Corporate Management
Policy Number 423 (Policy 423), we interpret the policies that have
been highlighted in the context of the Manual as a whole. See
Hodgson v. Bunzl Utah, Inc., 844 P.2d 331, 335 (Utah 1992) (“An
employee handbook may create binding terms only if those terms
are consistent with the meaning of the contract as a whole.”). Policy
423 relates specifically to part‐time employees and states,
20110554‐CA 19 2013 UT App 26Tomlinson v. NCR Corporation
“Employment at NCR is AT WILL. No statement in this policy
implies any guarantee of employment or length of employment.”
That policy further explains that “[p]art‐time employees are
considered to be a component of the core workforce.” Thus, the
Manual expressly designates tactical employees and part‐time, core
employees as terminable at‐will, but it does not include an at‐will
statement directed at full‐time, core employees. As discussed,
Tomlinson has raised a factual issue of whether he was a full‐time,
core employee. See supra ¶ 32. In addition, NCR’s limitation of its
At‐Will Statement to tactical employees and a subset of core
employees raises a reasonable inference that NCR intended to
terminate full‐time, core employees only for cause. Cf. Cabaness,
2010 UT 23, ¶ 60.
C. Policy 210
¶37 Tomlinson further argues that NCR was required to follow
progressive discipline procedures before it could terminate him,
even for cause. In support, he argues that Policy 210, which is titled
“Addressing Misconduct and Improving Performance,” imposed
a contractual obligation on NCR. To create an implied contract, the
language of Policy 210 must evidence a “‘manifestation of [NCR’s]
intent that is communicated to [Tomlinson] and sufficiently
definite to operate as a contract provision.’” See Cabaness, 2010 UT
23, ¶ 55 (quoting Johnson v. Morton Thiokol, Inc., 818 P.2d 997, 1002
(Utah 1991)). If, however, Policy 210 is evidence only of “a practice,
not a policy,” then Tomlinson’s claim fails as a matter of law
because a “practice may be a sound one from an employer’s
perspective without becoming a mandate that such practices must
be utilized in every instance.”12 See Sorenson v. Kennecott–Utah
Copper Corp., 873 P.2d 1141, 1149 (Utah Ct. App. 1994).
12. NCR’s Corporate Management Policy Numbers 101 and 102
contain general provisions defining “policy development,”
“deviations from corporate management policies,” and the
distinction between policies and procedures.
20110554‐CA 20 2013 UT App 26Tomlinson v. NCR Corporation
¶38 Policy 210 addresses both employee misconduct and
employee performance issues. For misconduct, Policy 210 includes
a list of “Examples of Misconduct Suggesting an Initial Written
Warning.” At the end of that list, Policy 210 warns, “Repeated
violations of any of the above examples or other more serious
offenses will result in more extreme disciplinary action, up to and
including termination of employment.” Policy 210 then provides
thirteen “Examples of Misconduct Suggesting Termination.” The
misconduct section of Policy 210 states, “Misconduct, depending
on its seriousness, will generally be addressed by means of written
warning . . . or other discipline up to and including termination.”
Thus, the misconduct provisions of Policy 210 indicate that NCR
retains some discretion as to when and whether to provide a
written warning before terminating an employee. See Sanderson v.
First Sec. Leasing Co., 844 P.2d 303, 306 (Utah 1992) (holding that the
statement, in the employer’s progressive discipline policy, that
“[i]n situations where employee behavior warrants immediate
termination the stages of this process do not need to be followed,”
granted the employer “unbounded discretion to discharge
employees without following the guidelines”).
¶39 With respect to performance issues, however, Tomlinson
notes that Policy 210 uses command language. In particular, the
first page of Policy 210 includes a “Policy Perspective” statement
that indicates, “employees will be advised of expected levels of job
performance and behaviors and will receive notification when results
and behaviors fall below acceptable levels.” (Emphases added.) See
Cabaness, 2010 UT 23, ¶¶ 59–60 (holding, as a matter of law, that the
statement, “‘harassment . . . shall not be tolerated,’” combined with
a disclaimer limited to other topics, constituted an implied
contract). But see Francisconi v. Union Pac. R.R. Co., 2001 UT App
350, ¶¶ 10–12, 36 P.3d 999 (holding, as a matter of law, that the
existence of an expense reimbursement policy alone did not create
an implied contract limiting the employer’s right to terminate an
employee at‐will). It further provides, “Job performance issues
such as not achieving objectives, and/or not demonstrating
appropriate behaviors, will result in a Performance Improvement
Plan (PIP) with stated requirements for improvement,” and, “The
20110554‐CA 21 2013 UT App 26Tomlinson v. NCR Corporation
Performance Improvement Planning process will be initiated
immediately whenever a ‘Needs Improvement’ rating is received
during an annual review session, or anytime” that “performance
falls short” in enumerated areas. (Third and fourth emphases
added.) Policy 210 also directs managers to engage in certain
conduct including assessing employee performance issues,
preparing a performance improvement plan, ensuring that the
employee understands the plan, obtaining a “document
acknowledging receipt and understanding” signed by the
employee, and following up with the employee. The manager is to
“formally” close the plan if, after a reassessment, the employee’s
performance is “successful.” If the employee fails to improve,
however, “[t]he manager should issue the ‘Final Warning Letter,’”
which “may result in termination of the employment relationship if
immediate performance improvements are not made.” (Emphases
added.) Tomlinson asserts that because the performance
improvement portion of Policy 210 is mandatory, a reasonable jury
could conclude from the definite terms in these provisions “that the
parties agreed to limit the employer’s right to terminate [him].” See
Johnson, 818 P.2d at 1001.
¶40 NCR counters that Policy 210 does not create an
implied‐in‐fact contract limiting its right to fire Tomlinson at‐will
because it is prefaced, in bold‐faced print, with the following
admonishment (the Disclaimer):
These guidelines are not intended to be contractual
in nature, nor should they be interpreted as strict
rules for responses to individual activity. The
appropriate response to each unique situation may
differ. For example, some circumstances may call for
immediate action, either in the way of written
warning or termination, depending upon the
frequency or the severity of the offense.
According to NCR, the Disclaimer was sufficient as a matter of law
to inform Tomlinson that Policy 210 does not create an implied
contract limiting NCR’s right to terminate his employment at‐will.
20110554‐CA 22 2013 UT App 26Tomlinson v. NCR Corporation
In response, Tomlinson argues that the Disclaimer can reasonably
be interpreted as merely providing flexibility in determining
whether to issue a written warning or to terminate the employee
immediately due to the severity or frequency of the misconduct. In
either instance, he claims that discipline, including termination, is
permitted only for cause.
¶41 “[A] clear and conspicuous disclaimer in an employee
handbook negates an employee’s contention that the employment
relationship is other than at will.” Hamilton v. Parkdale Care Ctr.,
Inc., 904 P.2d 1110, 1112 (Utah Ct. App. 1995); see also Kirberg v.
West One Bank, 872 P.2d 39, 41 (Utah Ct. App. 1994) (“[W]here ‘an
employee handbook contains a clear and conspicuous disclaimer
of contractual liability, any other agreement terms must be
construed in light of the disclaimer.’” (quoting Hodgson v. Bunzl
Utah, Inc., 844 P.2d 331, 334 (Utah 1992))). Therefore, the issue
before us is whether the trial court was correct in concluding, as a
matter of law, that the Disclaimer clearly and conspicuously
notified Tomlinson that he could not “reasonably believe that
[NCR was] making an offer of employment other than employment
at will.” See Johnson, 818 P.2d at 1002; see also Francisconi, 2001 UT
App 350, ¶ 10 (“If we conclude that a reasonable jury could not
find an implied contract, we will affirm the summary judgment.”
(citation and internal quotation marks omitted)). “Factors relevant
in determining whether a disclaimer is clear and conspicuous
include (1) the prominence of the text; (2) the placement of the
disclaimer in the handbook; and (3) the language of the
disclaimer.” Hamilton, 904 P.2d at 1112 (emphasis omitted).
¶42 In Hamilton v. Parkdale Care Center, Inc., 904 P.2d 1110 (Utah
Ct. App. 1995), this court applied those factors and concluded that
the disclaimer at issue there was sufficient to defeat the plaintiff’s
wrongful termination claim as a matter of law. Id. at 1112–13. The
Hamilton disclaimer stated, “‘[N]or does the handbook constitute
a contract of employment. . . . Employment is voluntary, which
means at the will of both the employee and the Facility. . . . Either
the employee or the Facility can terminate the employment
relationship, at any time.’” Id. at 1112 (emphasis omitted). In
20110554‐CA 23 2013 UT App 26Tomlinson v. NCR Corporation
Hamilton, we first determined that the disclaimer was prominent
because it was “clearly enumerated and set forth under the heading
‘Handbook Information’” and because it was placed “on the first
interior page of the handbook” in a manner “such that a reasonable
employee ought to notice it.” Id. Second, we determined that the
disclaimer “specifically informed [the employee] that no contract
of employment was being formed, that no binding contract terms
were stated, and that either party could ‘terminate the employment
relationship . . . at any time.’” Id. at 1113.
¶43 Here, there is no general disclaimer or at‐will statement at
the introduction of the Manual. Instead, NCR’s Corporate
Management Policy Number 101 (Policy 101), the first policy in the
Manual, ambiguously states, “Policies may provide for varying
degrees of flexibility depending upon the specific linkage to
company plans and objectives. If flexibility is not explicitly
indicated in a policy, it is required that the policy be executed as
defined.” But the Disclaimer is prominently set forth in a separate
text box, in bold font, at the beginning of Policy 210, which is the
section of the Manual dealing with “Addressing Misconduct and
Improving Performance.” This placement is such that “a reasonable
employee ought to notice it.” See id. at 1112.
¶44 Unlike the Hamilton disclaimer, the Disclaimer in this case
does not specifically state that employment at NCR is “at‐will,” nor
does it define the voluntary nature of the employment relationship.
See id.; accord Johnson v. Morton Thiokol, Inc., 818 P.2d 997, 1003–04
(Utah 1991) (holding that a disclaimer setting forth policies for
“general guidance only,” which stated that it did “not create a
binding contract” and that the employee could “be terminated
without notice and at will at any time for any reason,”
unambiguously provided that employment was at‐will). While
both NCR and the trial court concluded that this case is controlled
by Hamilton, we consider the lack of an at‐will statement significant
in the context of the facts before us. Indeed, NCR cites no Utah
precedent in which a disclaimer lacking at‐will language was held
sufficient, as a matter of law, to defeat an employee’s claim that a
progressive discipline policy in an employee manual overcame the
20110554‐CA 24 2013 UT App 26Tomlinson v. NCR Corporation
at‐will presumption.13 While Utah appellate courts have affirmed
summary judgments based on disclaimers of contractual rights, the
decisions have consistently relied on language that also gives clear
and conspicuous notice that employment remains at‐will. See, e.g.,
Giusti v. Sterling Wentworth Corp., 2009 UT 2, ¶ 47, 201 P.3d 966(“‘Employer may terminate Employee’s employment with Employer
without cause at any time upon two (2) weeks advance written notice
to Employee.’” (emphases added)); Ryan v. Dan’s Food Stores, Inc.,
972 P.2d 395, 401 (Utah 1998) (“‘This handbook is not intended to
create a contract of employment . . . . You are an “at‐will”
employee. . . . [The employer] has the right to terminate your employment
at any time for any reason or no reason at all, without cause and without
prior notice.’” (emphasis added)); Johnson, 818 P.2d at 1003–04
(“‘Your employment is for no set period and may be terminated
without notice and at will at any time by you or the company.’”
13. Other jurisdictions have held that a clear and conspicuous
contract disclaimer can prevent an employee manual from limiting
an employer’s right to terminate its employees, even in the absence
of a corresponding at‐will statement, when the language is clear
and definitive. See McCloud v. United Parcel Serv., Inc., 543 F. Supp.
2d 391, 403 (E.D. Pa. 2008), affʹd, 328 F. App’x 777 (3d Cir. 2009)
(holding that a disclaimer stating, “‘This particular code or policy
handbook is not an expressed or implied contract of employment
and does not create any contractual rights of any kind between
[employer] and its employees,’” was clear enough that “[a]
reasonable person in [p]laintiff’s situation faced with such a
specific disclaimer would not believe [the employer] intended to
remove his at‐will status”); Anderson v. Douglas & Lomason Co., 540
N.W.2d 277, 288–89 (Iowa 1995) (holding that the statement, “This
Employee Handbook is not intended to create any contractual
rights in favor of you or the Company. The Company reserves the
right to change the terms of this handbook at any time,” was
sufficient to disclaim any implied contract to engage in progressive
discipline). However, neither of these decisions involved an
employee manual that expressly identified only a subset of
employees as terminable at‐will.
20110554‐CA 25 2013 UT App 26Tomlinson v. NCR Corporation
(emphasis added)). Thus, the issue before us is whether the
statement, “These guidelines are not intended to be contractual in
nature,” is sufficient, even without the accompanying reaffirmation
of Tomlinson’s at‐will status, to preclude a reasonable jury from
finding an implied‐in‐fact contract.
¶45 In the context of the facts of this case, we agree with
Tomlinson that the disclaimer does not entitle NCR to judgment as
a matter of law. The inclusion of at‐will statements limited to
tactical employees and part‐time employees raised a reasonable
inference that NCR intended to restrict its right to terminate full‐
time, core employees only for cause. Tomlinson has raised an issue
of material fact concerning his status as a full‐time, core employee.
Furthermore, the Disclaimer could reasonably be interpreted as
providing NCR the flexibility to forgo a written warning for severe
or frequent misconduct, but affording no discretion with respect to
employee performance plans. Even if NCR were free to deviate
from both aspects of Policy 210, nothing in Policy 210 indicates that
NCR could also discharge a full‐time, core employee who has
neither engaged in misconduct nor failed to meet performance
expectations. Thus, the Disclaimer does not negate the inference
created by the limited application of the express At‐Will Statement
that the termination of full‐time, core employees must be for cause.
Under these circumstances, a reasonable jury could find an implied
contract limiting NCR’s right to terminate Tomlinson at‐will.
Accordingly, the trial court erred in entering summary judgment
against Tomlinson on his wrongful termination claim.
D. The Good Faith Covenant
¶46 We also conclude that summary judgment is inappropriate
on the issue of the Good Faith Covenant. Because the Good Faith
Covenant is inherent in any contract, if the Manual established an
implied contract, it would be subject to the Good Faith Covenant.
See Cabaness v. Thomas, 2010 UT 23, ¶ 61, 232 P.3d 486; Brehany v.
Nordstrom, Inc., 812 P.2d 49, 55 (Utah 1991). Thus, the trial court
also erred in dismissing this claim.
20110554‐CA 26 2013 UT App 26Tomlinson v. NCR Corporation
CONCLUSION
¶47 We affirm the trial court’s dismissal of seven of Tomlinson’s
claims against NCR under rule 12(b)(6) of the Utah Rules of Civil
Procedure. However, the trial court erred in granting summary
judgment to NCR on Tomlinson’s claims that the Manual created
an implied contract and that NCR violated the Good Faith
Covenant.
¶48 Affirmed, in part; reversed and remanded, in part.
20110554‐CA 27 2013 UT App 26