Conner v. Department of Commerce

2019 UT App 91THE UTAH COURT OF APPEALS
REBEKAH CONNER,
Appellant,
v.
DEPARTMENT OF COMMERCE, STATE OF UTAH,
AND FRANCINE GIANI,
Appellees.
Opinion
No. 20160909-CA
Filed May 23, 2019
Third District Court, Salt Lake Department
The Honorable Matthew Bates
No. 130907251
C. Reed Brown and Elizabeth B. Grimshaw,
Attorneys for Appellant
Kristin A. VanOrman, S. Spencer Brown, and Ashley
F. Leonard, Attorneys for Appellees
JUDGE DIANA HAGEN authored this Opinion, in which
JUDGES GREGORY K. ORME and JILL M. POHLMAN concurred.
HAGEN, Judge:
¶1 Rebekah Conner appeals from a dismissal of her wrongful
termination claim. The last business day before trial, the
Department of Commerce, State of Utah, and Francine Giani
(collectively, the Defendants) filed a motion for judgment on the
pleadings under rule 12(c) of the Utah Rules of Civil Procedure,
asserting that they were immune from suit due to governmental
immunity. The district court deferred consideration of the
motion until after trial. The jury found the Defendants liable for
wrongful termination and awarded Conner $240,000 in
damages. After trial, the district court granted the rule 12(c)
motion on the ground that the claim tried to the jury—wrongful
Conner v. Department of Commerce
termination in violation of public policy—is a tort claim for
which the government has not waived immunity. The court
rejected Conner’s argument that her amended complaint could
be reasonably read to state a statutory claim for wrongful
termination. The court also denied Conner’s subsequent motion
under rule 15(b) of the Utah Rules of Civil Procedure to amend
the pleadings to reflect that claim. Accordingly, the court
vacated the jury’s verdict for wrongful termination and entered
judgment on the pleadings, effectively immunizing the
Defendants from the jury’s verdict.
¶2 We conclude that the district court properly entered
judgment on the pleadings. Even when construed in the light
most favorable to Conner, her amended complaint did not state
a viable statutory claim for the simple reason that the statute on
which she relies does not provide for a private right of action.
For that same reason, the district court also properly denied
Conner’s motion to amend the pleadings to state such a
non-existent cause of action. We further conclude that the
Defendants did not waive their governmental immunity defense
and that the district court did not exceed its discretion when it
chose to entertain the Defendants’ rule 12(c) motion filed on the
eve of trial. Finally, Conner did not preserve her procedural due
process claim below and does not argue an exception to
preservation on appeal. Therefore, we affirm the district court’s
judgment on the pleadings.
BACKGROUND
¶3 Conner sued the Defendants after she was fired in 2013
from her job at the Department of Commerce. Conner had
served as the administrative assistant to the director, Giani, for
eight years. As a schedule AD employee in a confidential
relationship with and reporting directly to the department head,
Conner was exempt from the career service provisions of the
20160909-CA 2 2019 UT App 91Conner v. Department of Commerce
Utah State Personnel Management Act (USPMA). 1 Utah Code
Ann. § 67-19-15 (LexisNexis 2013). 2 According to Conner, Giani
did not like or trust the leadership of the Utah Attorney
General’s Office, where Conner’s husband worked as a special
agent. Conner claims that she was fired “based on Giani’s
troubled relationship with the A.G.’s office and the mere fact
that Conner’s husband was employed there.”
¶4 This appeal relates to the first cause of action alleged in
Conner’s amended complaint. 3 Conner titled this cause of action
as “Wrongful Termination Against Public Policy (Vindication of
Rights Created by Statute to be Free from Discrimination on
1. At-will employees are statutorily classified under Schedule A
of the USPMA while career service employees are statutorily
classified under Schedule B. “Career service systems were
designed to protect public employees from unfair personnel
practices occurring with political changes.” Report to the Utah
Legislature, A Limited Review of the State’s Career Service System
(July 2010), https://le.utah.gov/audit/10_08rpt.pdf [https://perma.
cc/K8VL-LD6W]. Among other protections, “[c]areer service
employees have the right to grieve certain personnel actions, a
right not granted to noncareer-service employees.” Id.
2. Throughout this opinion, we refer to the provisions of the
Utah Code in effect at the time of Conner’s termination, unless
otherwise noted.
3. Conner also claimed that the Defendants failed to pay her
severance benefits mandated by Utah law (second cause of
action) and, in the alternative, that the failure to pay severance
benefits breached the implied covenant of good faith and fair
dealing (third cause of action). Conner prevailed at trial on her
claim for severance benefits, and the Defendants have not
challenged that verdict and judgment on appeal.
20160909-CA 3 2019 UT App 91Conner v. Department of Commerce
the Basis of Political Affiliation or Other Nonmerit Factor).”
Conner cited Utah Code section 67-19-18(2) of the USPMA and
rule R477-2-3(2) of the Utah Administrative Code, both of
which provide that an employee may not be dismissed
because of “political affiliation.” Conner alleged that the statute
and rule reflect a substantial public policy against terminating
an employee based on political affiliation, which the
Defendants violated by firing Conner based on her husband’s
employment. She also alleged that she “has a statutory right
to be free from discrimination on the basis of political
affiliation.” 4
¶5 The Defendants filed an answer to the amended
complaint alleging two immunity-based affirmative defenses.
The thirteenth defense stated that Conner’s claims were “barred
by the doctrines of absolute and qualified immunity.” The
fourteenth defense stated that Conner’s claims were barred
because she had “failed to comply with the applicable
requirements of the Governmental Immunity Act” (GIA).
Although the Defendants later withdrew the fourteenth defense
concerning whether Conner had complied with the
requirements of the GIA, they did not withdraw the thirteenth
defense.
¶6 The Defendants did not move for judgment based on their
immunity from suit prior to the pretrial motion deadline. The
district court denied the Defendants’ motion for partial
summary judgment based on other grounds, and the case was
set for trial.
4. Although Conner’s briefs do not explain how her husband’s
employment in another part of state government constitutes
“political affiliation,” the jury found that she was terminated for
her “political affiliation,” and that finding is not at issue on
appeal.
20160909-CA 4 2019 UT App 91Conner v. Department of Commerce
¶7 One business day before trial, the Defendants filed a rule
12(c) motion for judgment on the pleadings, arguing that
Conner’s wrongful termination claim was barred by
governmental immunity. See Utah R. Civ. P. 12(c). Specifically,
the Defendants argued that Conner’s first cause of action was a
tort claim for wrongful termination in violation of public policy
for which governmental immunity had not been waived.
¶8 Conner moved to strike the motion for judgment on the
pleadings, arguing that it was untimely and that the
governmental immunity defense had been waived and
abandoned by the Defendants. The district court requested
briefing on the rule 12(c) motion but did not continue the trial.
The district court “made it clear that [it] was deferring on ruling
on the motion and that [it] . . . would rule on the motion after
trial.”
¶9 The jury returned a verdict in favor of Conner, finding
that Conner was terminated due to her political affiliation and
awarding her $240,000 in compensatory damages.
¶10 After full briefing post-trial, the district court heard
argument on the rule 12(c) motion. The district court recognized
that it “could have denied this motion for being untimely” as the
motion “was filed literally on the eve of trial.” Although the
court observed that governmental immunity “should have been
raised in a 12(b)(6) or in a 12(c) [motion] right after the answer
was filed,” it elected to entertain the motion because of the
“importance of the issues raised in the motion” and because,
when suing a governmental entity, a plaintiff is “responsible for
understanding [governmental immunity], knowing it, preparing
for it, [and] arguing alternative causes of action.” On the merits,
the district court construed Conner’s amended complaint to
assert “a wrongful termination tort” for which governmental
immunity had not been waived under the GIA. Accordingly, the
20160909-CA 5 2019 UT App 91Conner v. Department of Commerce
court granted the Defendants’ motion for judgment on the
pleadings.
¶11 In its oral ruling from the bench, the district court
indicated it was vacating the jury’s verdict. In a subsequent
written ruling, however, the court concluded that vacating the
jury’s verdict was “unnecessary and improper.” The court
explained,
The question of governmental immunity was not
put to the jury. Rather it was reserved for judgment
by the Court on the pleadings. Because the jury
never decided the issue of governmental
immunity, there is no reason to vacate the jury’s
verdict with respect to the first cause of action.
Instead, the jury’s verdict stands and the Court’s
order has the effect of immunizing [the]
Defendants from the verdict and dismissing the
cause of action.
¶12 Conner subsequently filed a rule 52(b) and 59 motion to
alter or amend the judgment and for a new trial, along with a
rule 15(b) motion to amend the pleadings to conform to the
evidence at trial. See Utah R. Civ. P. 52(b), 59(a)(7), 15(b)(1).
Conner argued that her wrongful termination claim could be
construed either as a claim sounding in tort, which would be
barred by governmental immunity, or as a statutory enforcement
claim. Conner argued that in granting the Defendants’ rule 12(c)
motion, the district court erred in not construing the pleadings
more liberally to include a claim that she was terminated in
violation of a statutory right. In the alternative, she argued that
such a statutory enforcement claim was tried by implied consent
and that the pleadings must be amended under rule 15(b) to
reflect the claim actually tried to the jury. The court denied
Conner’s motions, concluding that the “pleadings correctly
reflect the claim that was actually tried to the jury: wrongful
20160909-CA 6 2019 UT App 91Conner v. Department of Commerce
termination in violation of public policy,” which was “a tort
claim of wrongful termination.”
¶13 Conner appeals the district court’s grant of the
Defendants’ rule 12(c) motion, which resulted in the dismissal of
the wrongful termination claim, and the denial of her rule 15(b)
motion, in which the court refused to amend the pleadings to
include a claim of statutory enforcement.
ISSUES AND STANDARDS OF REVIEW
¶14 Conner makes two related arguments as to why her first
cause of action should not have been dismissed. She argues, first,
that the district court erred in granting the Defendants’ motion
for judgment on the pleadings under rule 12(c) of the Utah Rules
of Civil Procedure, and second, that the district court erred when
it declined to amend the pleadings to conform to the evidence
presented at trial under rule 15(b) of the Utah Rules of Civil
Procedure. Specifically, she argues that the district court should
have either construed her amended complaint or amended the
pleadings to assert a statutory cause of action that could survive
the affirmative defense of governmental immunity. Both issues
require us to consider the threshold question of whether such a
statutory cause of action exists. “Whether a particular statute
provides a private right of action is a question of statutory
interpretation,” Buckner v. Kennard, 2004 UT 78, ¶ 41, 99 P.3d 842,
which we review for correctness, Marion Energy, Inc v. KFJ Ranch
P’ship, 2011 UT 50, ¶ 12, 267 P.3d 863.
¶15 Next, we address Conner’s contention that the
Defendants should have been precluded from raising the
affirmative defense of governmental immunity on the eve of
trial. “We review the trial court’s findings of fact for clear error
and its conclusions of law for correctness.” Hart v. Salt Lake
County Comm’n, 945 P.2d 125, 132 (Utah Ct. App. 1997). We
20160909-CA 7 2019 UT App 91Conner v. Department of Commerce
review the district court’s interpretation and application of the
rules of civil procedure for correctness and will reverse only if
the appellant shows “error that was substantial and prejudicial.”
Hofheins v. Bajio Mountain West LLC, 2017 UT App 238, ¶¶ 26, 32,
414 P.3d 531 (quotation simplified).
¶16 Finally, Conner contends that her right to due process
was violated because the district court granted the Defendants’
rule 12(c) motion without providing Conner an opportunity to
modify her presentation at trial. “Constitutional issues,
including questions regarding due process, are questions of law
that we review for correctness.” Osburn v. Bott, 2011 UT App 138,
¶ 4, 257 P.3d 1028 (quotation simplified). But where the
constitutional issue is unpreserved, the appellant must establish
an exception to the preservation requirement. See In re A.W.,
2018 UT App 217, ¶ 26, 437 P.3d 640. Unless an exception to the
preservation rule applies, an appellate court will not review
unpreserved constitutional claims. Id.ANALYSIS
¶17 The overarching issue on appeal is whether Conner’s
complaint adequately stated, or should have been amended to
state, a claim that is not barred by the GIA. “Generally, to
determine whether a governmental entity is immune from suit
under [the GIA], we apply a three-part test, which assesses
(1) whether the activity undertaken is a governmental function;
(2) whether governmental immunity was waived for the
particular activity; and (3) whether there is an exception to that
waiver.” Van de Grift v. State, 2013 UT 11, ¶ 8, 299 P.3d 1043(quotation simplified).
¶18 On appeal, the parties do not dispute that the first part of
the test is met, because the Defendants’ actions with respect to
Conner’s employment qualify as a governmental function.
20160909-CA 8 2019 UT App 91Conner v. Department of Commerce
Concerning the second part, our supreme court has held that
termination of employment “for a reason that contravenes a
clear and substantial public policy gives rise to a cause of action
in tort,” Hansen v. America Online, Inc., 2004 UT 62, ¶ 7, 96 P.3d
950 (citing Peterson v. Browning, 832 P.2d 1280, 1284 (Utah 1992)),
for which immunity has not been waived, see Broadbent v. Board
of Educ. of Cache County School Dist., 910 P.2d 1274, 1277 (Utah Ct.
App. 1996). Therefore, if Conner’s first cause of action is
properly characterized as a tort claim for wrongful termination
in violation of public policy, immunity has not been waived and
there is no need to look for an exception to waiver under the
third part of the test.
¶19 Thus, the crux of this appeal is whether Conner’s first
cause of action could be properly construed or amended to state
a “statutory enforcement” claim instead of a wrongful
termination tort claim for which governmental immunity has not
been waived. 5 Because we conclude that the statute on which
Conner relies does not create a private right of action, Conner’s
claims could not be construed or amended in a way that would
survive the defense of governmental immunity.
I. No Statutory Cause of Action
¶20 On appeal, Conner makes two alternative arguments that
rely on the assumption that there is a private statutory cause of
action for violation of Utah Code section 67-19-18(2) and rule
R477-2-3(2) of the Utah Administrative Code. As an initial
matter, Conner contends that the district court should have
denied the Defendants’ rule 12(c) motion for judgment on the
5. Conner presumes that governmental immunity would be
waived for a claim of “statutory enforcement.” Because we
conclude that there is no private right of action under Utah Code
section 67-19-18(2), we have no need to address that premise.
20160909-CA 9 2019 UT App 91Conner v. Department of Commerce
pleadings because, when construed in the light most favorable to
her as the nonmoving party, her amended complaint could be
read as stating a statutory enforcement claim. Alternatively, she
argues that such a statutory enforcement claim was tried by
implied consent and that the district court should have granted
her motion to amend the pleadings under rule 15(b) to reflect the
claim actually tried to the jury. See Fisher v. Davidhizar, 2011 UT
App 270, ¶ 9, 263 P.3d 440 (explaining that where an issue is
tried by the parties’ express or implied consent, the court “must
treat the claim as if it were properly raised in the pleadings”
(quotation simplified)).
¶21 In her amended complaint, Conner titled her first cause of
action “Wrongful Termination Against Public Policy,” which, as
the district court noted, is “a well-recognized tort claim in Utah.”
However, the label attached to the claim is not necessarily
dispositive. “Our rules of pleading require that a cause be made
out, but not necessarily that it always be correctly labeled.”
Youngblood v. Auto-Owners Ins. Co., 2007 UT 28, ¶ 22, 158 P.3d
1088. Where a complaint is “capable of more than one
construction,” only one of which is barred by governmental
immunity, our supreme court has “required that ambiguities be
construed in a manner that sustains the complaint.” Bingham v.
Roosevelt City Corp., 2010 UT 37, ¶ 45, 235 P.3d 730; see also Baker
v. Angus, 910 P.2d 427, 432 (Utah Ct. App. 1996) (viewing the
complaint in the light most favorable to the plaintiffs to state a
claim exempt from governmental immunity).
¶22 Conner notes that there are three exceptions to the general
rule that an employer’s decision to terminate an at-will
employee, like her, is presumed valid. An employee can
overcome the presumption of validity by demonstrating that
(1) there is an implied or express agreement that
the employment may be terminated only for cause
or upon satisfaction of some agreed-upon
20160909-CA 10 2019 UT App 91Conner v. Department of Commerce
condition; (2) a statute or regulation restricts the
right of an employer to terminate an employee
under certain conditions; or (3) the termination of
employment constitutes a violation of a clear and
substantial public policy.
Hansen, 2004 UT 62, ¶ 7 (quotation simplified).
¶23 The district court ruled that Conner had pled and tried a
tort claim for wrongful termination in violation of public policy.
An at-will employee may bring a claim under the third exception
when “the public interest is so strong and the policy so clear and
weighty that we should place the policy beyond the reach of an
at-will employment contract.” Ray v. Wal-Mart Stores, Inc., 2015
UT 83, ¶ 12, 359 P.3d 614 (quotation simplified). In determining
“whether the legal right at issue reflects the type of clear and
substantial Utah public policy that qualifies as an exception to
the at-will rule,” courts consider, among other things, “whether
the policy at issue is reflected in authoritative sources of state
public policy.” Id. ¶ 14. “A policy is recognized in an
authoritative source of state public policy if it is plainly defined
by legislative enactments, constitutional standards, or judicial
decisions.” Id. ¶ 15 (quotation simplified).
¶24 In her amended complaint, Conner cited to Utah Code
section 67-19-18(2) of the USPMA to show that termination of an
employee based on political affiliation is against public policy in
Utah. The USPMA provides, in part, that an employee may not
be dismissed because of “political affiliation, or other nonmerit
factor.” Utah Code Ann. § 67-19-18(2) (LexisNexis 2013). A
knowing violation of a provision of the USPMA is punishable as
a class A misdemeanor. See id. § 67-19-29. Conner also quoted
rule R477-2-3(2) of the Utah Administrative Code, which
implements the USPMA and states that employment actions
may not be based on “political affiliation . . . or any other non-job
related factor.” Conner then explained how the cited statute and
20160909-CA 11 2019 UT App 91Conner v. Department of Commerce
rule supported her claim of wrongful termination in violation of
public policy:
The fact that both the state legislature and the
executive branch through its rules-making process
have expressly stated that Utah State Government
employers . . . may not discriminate against
employees on the basis of an employee’s political
affiliations, or discriminate against an employee for
any reason that is not related to job performance,
demonstrates that this is a substantial public
policy. Likewise, the fact that the legislature
criminalized behavior that would violate the
[USPMA] also supports the fact that this is a
substantial public policy.
¶25 As the district court recognized, the alleged “violation of
Rule 477-2-3(2) and Utah Code section 67-19-18(2) was put to the
jury because it was the public policy that underpinned
[Conner’s] tort claim.” In other words, the references to the
governing statute and regulation were offered “to demonstrate a
substantial public policy against terminating at-will employees
for political affiliations.” Our courts frequently look to statutes
“as a source of clear and substantial public policy,” even when
the statute does not create a private statutory cause of action.
Touchard v. La-Z-Boy, Inc., 2006 UT 71, ¶¶ 21–22, 148 P.3d 945; see
also Petersen v. Browning, 832 P.2d 1280, 1282 (Utah 1992)
(holding that “the public policy exception applies in this state
when the statutory language expressing the public conscience is
clear and when the affected interests of society are substantial”);
Berube v. Fashion Centre, Ltd., 771 P.2d 1033, 1043 (Utah 1989)
(“Public policy is most obviously, but not exclusively, embodied
in legislative enactments.”). Moreover, in pretrial proceedings,
Conner affirmatively represented that her claim sounded in tort.
On this record, the district court correctly determined that
20160909-CA 12 2019 UT App 91Conner v. Department of Commerce
Conner’s first cause of action was pled and tried as a tort claim
for wrongful termination in violation of public policy.
¶26 Given that such a tort claim is barred by governmental
immunity, Conner argues that her amended complaint can be
alternatively construed (or amended) to state a statutory claim.
But, as the Defendants point out, Conner’s argument assumes
her statutory claim “is a valid cause of action.” The Defendants
maintain that the Utah Code does not provide a private right of
action for state employees alleging discrimination based on
“political affiliation” in violation of section 67-19-18(2). We
agree. Conner has not demonstrated that the USPMA should be
construed as creating a private right of action for a violation of
section 67-19-18(2).
¶27 “[T]he courts of this state are not generally in the habit of
implying a private right of action based upon state law, absent
some specific direction from the Legislature.” Broadbent v. Board
of Educ. of Cache County School Dist., 910 P.2d 1274, 1278 (Utah Ct.
App. 1996). Because it is a matter of statutory interpretation, we
“look first to the plain language of the statute for an express
indication that a private right of action was intended.” Machan v.
UNUM Life Ins. Co. of Am., 2005 UT 37, ¶ 24, 116 P.3d 342. “A
statute’s mere prohibition of a certain act does not imply creation
of a private right of action for its violation.” See Antonin Scalia
& Bryan A. Garner, Reading Law: The Interpretation of Legal Texts
313 (2012) (discussing the presumption against an implied right
of action). Instead, “[t]he creation of such a right must be either
express or clearly implied from the text of the statute.” Id.
¶28 Unlike other provisions of the Utah Code, the USPMA
does not expressly state a private right of action. Where the Utah
Legislature has intended to establish a private right of action, it
has done so expressly. “The Utah Code has many examples of
the explicit language which creates such rights, none of which
require anyone to add language or make inferences to impart the
20160909-CA 13 2019 UT App 91Conner v. Department of Commerce
full meaning of the statute.” Miller v. Weaver, 2003 UT 12, ¶ 21, 66
P.3d 592. For example, the Utah Protection of Public Employees
Act provides that a public employee may assert a claim of
retaliatory action by “bringing a civil action for appropriate
injunctive relief, damages, or both.” Utah Code Ann. § 67-21-
4(1)(c)(ii) (LexisNexis 2016).
¶29 The USPMA contains no such provision. Instead, the
USPMA provides that a knowing violation of a provision of the
chapter is punishable as a class A misdemeanor. See id. § 67-19-
29 (2013). “When a statute makes certain acts unlawful and
provides criminal penalties for such acts, but does not
specifically provide for a private right of action, we generally
will not create such a private right of action.” Youren v. Tintic
School Dist., 2004 UT App 33, ¶ 4, 86 P.3d 771.
¶30 Moreover, it would be inconsistent with the legislature’s
statutory scheme to imply a private right of action in this case.
“Utah courts have rarely, if ever, found a Utah statute to grant
an implied private right of action.” Buckner v. Kennard, 2004 UT
78, ¶ 43, 99 P.3d 842. The reluctance to imply a private right of
action “is particularly strong when the Legislature has already
designated a method of resolution through an administrative
agency specifically empowered to handle issues such as the
discipline or termination” of public employees. Id. ¶ 49(quotation simplified). “Even where there is a strong public
policy, as in discrimination, the legislative body retains the right
to specify the remedies and course of action available for
violations of a statute it has enacted to pursue such policy.” Id.
¶ 52. For example, the Utah Antidiscrimination Act (the UADA)
“prohibits a number of forms of employment discrimination, but
limits a victim’s recourse by providing that the exclusive remedy
under state law for employment discrimination is the
administrative procedure set forth in the [UADA].” Id. ¶ 52(quotation simplified); see also Utah Code Ann. § 34A-5-107(15)
(LexisNexis 2013).
20160909-CA 14 2019 UT App 91Conner v. Department of Commerce
¶31 Here, in addition to the criminal penalty, the 2013 version
of the USPMA provides administrative remedies for
discriminatory employment actions. First, an employee alleging
employment actions based on race, color, sex, retaliation,
pregnancy or childbirth, age, religion, national origin, or
disability, which are prohibited by the UADA, 6 see Utah Code
Ann § 34A-5-107(15), “may submit a written grievance to the
department head where the alleged unlawful act occurred” and,
if dissatisfied with the decision, may submit a complaint to the
Division of Antidiscrimination and Labor, whose decision is
subject to further agency and judicial review, id. § 67-19-32(1).
Second, the USPMA provides that “[a]ll grievances based upon a
claim or charge of injustice or oppression, including dismissal
from employment, resulting from an act, occurrence,
commission, or condition shall be governed by Chapter 19a,
Grievance Procedures, and Title 63G, Chapter 4, Administrative
Procedures Act.” Id. § 67-19-30(2). Those grievance procedures
apply only to career service employees. Id. § 67-19a-301. Third,
the USPMA delegates authority to the executive director of the
Department of Human Resource Management to establish rules
governing executive branch dismissals. Id. § 67-19-18(3). These
rules, which apply to both career service and exempt employees,
Utah Admin. Code R477-2-1 (LexisNexis 2013), provide that any
“employee who alleges unlawful discrimination may: (a) submit
a complaint to the agency head; and (b) file a charge with the
Utah Labor Commission” or “directly with the [Equal
Employment Opportunity Commission (EEOC)],” id. R477-2-
3(3).
¶32 Conner argues that these administrative procedures
provide little protection in her particular case because
6. The current version of the UADA also prohibits employment
actions based on sexual orientation or gender identity. See Utah
Code Ann. § 34A-5-107 (LexisNexis Supp. 2018).
20160909-CA 15 2019 UT App 91Conner v. Department of Commerce
(1) “political affiliation” is not protected by the UADA; (2) as an
employee who was in a confidential relationship with and
reported directly to a department head, she was exempt from the
grievance procedures provided for career service employees;
and (3) “neither the Utah Antidiscrimination Division nor the
EEOC had jurisdiction to investigate discrimination based on
‘political affiliation,’” so her only remedy under the rules was to
submit a complaint to the agency head. We agree that the
statutory scheme plainly affords more protection to employees
alleging discrimination on the basis of race, color, sex,
retaliation, pregnancy or childbirth, age, religion, national origin,
or disability under the UADA than to employees alleging
discrimination based on “political affiliation, or other non-merit
factor” under section 67-19-18. It also provides more protection
to career service employees who are entitled to grievance
procedures not available to exempt employees in special
positions. Yet even employees in those more highly protected
situations have no private right of action and are limited to the
administrative procedures and judicial review provided by
statute. See Blauer v. Department of Workforce Services, 2014 UT
App 100, ¶ 6 n.2, 331 P.3d 1 (recognizing that “the UADA
provides only an administrative remedy for violations of its
provisions, not a private right of action”). Affording more
protection to Conner by implying a private right of action for
career service exempt employees alleging discrimination based
on “political affiliation” would be inconsistent with this
statutory scheme.
¶33 In the absence of any express direction or clear
implication in the language of the statute, we will not assume
that the legislature intended to create a private right of action for
violation of section 67-19-18(2). 7 Because Conner has not shown
7. Conner argues that the absence of a private right of action
under Utah Code section 67-19-18(2) would violate the “open
(continued…)
20160909-CA 16 2019 UT App 91Conner v. Department of Commerce
that such a cause of action exists, the district court did not err in
failing to construe or amend her complaint to state such a claim.
II. Timeliness
¶34 Conner also argues that the district court should not have
entertained the rule 12(c) motion because the Defendants waived
their defense of governmental immunity by failing to plead and
pursue this defense. “Governmental immunity is an affirmative
defense to suits against state or local government.” Buckner v.
Kennard, 2004 UT 78, ¶ 35, 99 P.3d 842. As an affirmative
defense, governmental immunity can be waived. Hart v. Salt Lake
County Comm’n, 945 P.2d 125, 133 (Utah Ct. App. 1997).
¶35 In Hart, this court affirmed the district court’s conclusion
that the Salt Lake County Commission waived its governmental
immunity defense. Id. Although the County raised the
affirmative defense in its answer, during oral argument on its
motion for summary judgment, the County “in open court . . .
waived and abandoned the governmental immunity defense.”
Id. at 131 n.4 (quotation simplified). The County made no
attempt to raise the defense “through the conclusion of trial and
the jury verdict.” Id. (quotation simplified). Six months after the
trial ended, the County moved for judgment notwithstanding
the verdict based on governmental immunity. Id. at 133. In
concluding that the County’s actions waived the governmental
immunity defense, this court emphasized that defendants have
the burden of proving governmental immunity at trial and that
(…continued)
courts” provision of article I, section 11 of the Utah Constitution.
The open courts provision does not create a remedy or cause of
action where none otherwise exists, but instead limits the
legislature’s power to abolish an existing remedy. See Puttuck v.
Gendron, 2008 UT App 362, ¶ 19, 199 P.3d 971.
20160909-CA 17 2019 UT App 91Conner v. Department of Commerce
the County “wholly failed to both argue governmental
immunity at trial and to produce any evidence supporting that
argument.” Id. “As a result of the County’s inaction and failure
to meet its burden at trial,” this court did not disturb “the
[district] court’s findings or conclusion that the County waived
its affirmative defense of governmental immunity.” Id.
¶36 Unlike the County in Hart, the Defendants’ actions during
the course of this litigation did not waive governmental
immunity. Instead, while they were not as diligent as they could
have been, the Defendants adequately pled and pursued the
affirmative defense.
¶37 First, the Defendants adequately pled the affirmative
defense of governmental immunity in their answer to the
amended complaint. The Utah Rules of Civil Procedure require
that pleadings “be construed to do substantial justice.” Utah R.
Civ. P. 8(f). In accordance with this rule, courts construe
pleadings in favor of the pleader and “require the parties to
proceed to the merits, if such a course is permissible, after giving
the allegations and averments contained in the pleadings, and
the necessary inferences arising therefrom, a liberal construction
and application.” Harman v. Yeager, 110 P.2d 352, 354 (Utah 1941)
(quotation simplified).
¶38 As their thirteenth defense, the Defendants asserted that
Conner’s claims were “barred by the doctrines of absolute and
qualified immunity.” Conner argues that this language did not
adequately plead a defense of governmental immunity under
the GIA. Although the terms absolute and qualified immunity
are more commonly used to refer to a type of immunity arising
under federal law, 8 the Utah Supreme Court has also applied
8. Under qualified immunity, “government officials are not
subject to damages liability for the performance of their
(continued…)
20160909-CA 18 2019 UT App 91Conner v. Department of Commerce
those terms when discussing immunity conferred by the GIA. In
this context, “qualified immunity” simply means “immunity
subject to exceptions,” Hansen v. Salt Lake County, 794 P.2d 838,
842 (Utah 1990), and refers to the GIA’s grant of “general
qualified immunity for governmental functions” subject to the
exceptions “as . . . otherwise provided in this chapter,” Provo
City Corp. v. State ex rel. Dep’t of Transp., 795 P.2d 1120, 1124
(Utah 1990). In contrast, “absolute immunity” would refer to
“unqualified immunity” not subject to the waivers provided in
the GIA. Id.
¶39 In ruling that the Defendants had adequately pled a
governmental immunity defense, the district court noted this
line of cases. While the court recognized that the Defendants
could “have phrased [their thirteenth defense] more artfully in
their answer,” it ultimately concluded that “by asserting the
defenses of qualified immunity and absolute immunity,” the
Defendants “affirmatively raised the defense of immunity under
the GIA.” Given our liberal pleading standards and in light of
the case law using the terms absolute and qualified immunity in
the context of the GIA, the district court correctly ruled that the
answer adequately asserted the affirmative defense of
governmental immunity.
¶40 Conner also argues that the Defendants waived the
governmental immunity defense when they agreed to withdraw
(…continued)
discretionary functions when their conduct does not violate
clearly established statutory or constitutional rights of which a
reasonable person would have known.” Buckley v. Fitzsimmons,
509 U.S. 259, 268 (1993) (quotation simplified). Absolute
immunity applies only when a public official is performing
“special functions” that “deserve absolute protection from
damages liability.” Id. at 268–69.
20160909-CA 19 2019 UT App 91Conner v. Department of Commerce
their fourteenth defense. The fourteenth defense alleged that
Conner had “failed to comply with the applicable requirements
of the [GIA] and, therefore, her claims in this civil action [were]
barred.” The GIA provides that a plaintiff’s claim against a
governmental entity or employee is barred unless the plaintiff
complies with the requirement of filing a timely written notice of
claim. See Utah Code Ann. § 63G-7-402 (LexisNexis 2016).
Withdrawing this defense related to whether Conner had
complied with the applicable procedural requirements of the
GIA did not waive the argument that the Defendants were
immune from suit. Indeed, in the same correspondence
withdrawing the fourteenth defense, the Defendants’ attorney
stated, “My client will not agree to withdraw its Thirteenth
Defense in this matter.” Thus, the Defendants’ conduct in this
case is readily distinguishable from the type of express
abandonment that occurred in Hart.
¶41 Second, the Defendants in this case did not wait until
after trial to raise the governmental immunity defense. As we
pointed out in Hart, the defendant has the burden of proving an
affirmative defense at trial. By failing to raise governmental
immunity until six months after trial, the County in Hart failed
to meet that burden. 945 P.2d at 133. But Conner has not directed
us to any authority that would require a defendant to establish
an affirmative defense prior to trial, although doing so by means
of a dispositive motion would surely be more efficient and, in
this case, may have obviated the need for discovery and trial. 9
The affirmative defense of governmental immunity, in
particular, “conceptually arises subsequent to the question of
9. It is uncertain whether resolution of the immunity issue earlier
in this case would have avoided trial. Conner ultimately
prevailed on her claims for severance benefits. The parties may
or may not have settled those claims had the wrongful
termination claim been dismissed before trial.
20160909-CA 20 2019 UT App 91Conner v. Department of Commerce
whether there is tort liability in the first instance.” Ferree v. State,
784 P.2d 149, 153 (Utah 1989), overruled on other grounds by Scott
v. Universal Sales, Inc., 2015 UT 64, 356 P.3d 1172. As noted,
judicial economy may have been better served had the
Defendants brought the motion in time to avoid or substantially
limit the scope of trial, but their failure to more diligently pursue
the affirmative defense prior to trial does not necessarily amount
to waiver.
¶42 Relatedly, Conner contends that the district court violated
the timing requirement in rule 12(c) of the Utah Rules of Civil
Procedure when it allowed the Defendants to file such a motion
the day before trial. Rule 12(c) requires that the motion be
brought “after the pleadings are closed but within such time as
not to delay the trial.” Utah R. Civ. P. 12(c). In this case, the
motion was filed one business day before the scheduled trial. As
the district court here recognized, it would have been well
within its discretion to deny the motion as untimely. See
Tschaggeny v. Milbank Ins. Co., 2007 UT 37, ¶ 17, 163 P.3d 615(recognizing that “a trial court does not abuse its discretion
when it denies as untimely last minute motions on the eve of
trial”). But the question on appeal is whether rule 12(c) prohibits
the district court from entertaining the motion under these
circumstances.
¶43 The district court did not violate the rules of civil
procedure or exceed its discretion by reserving its ruling on
the motion for judgment on the pleadings until after trial. See
Maxfield v. Herbert, 2012 UT 44, ¶ 11, 284 P.3d 647 (recognizing
that “[w]ithin the bounds set by rule and statute, . . . a district
court’s management of its docket and trial schedule is reviewed
for an abuse of discretion” (quotation simplified)). Given
the district court’s handling of the rule 12(c) motion, the late
filing did not in fact delay trial. Although the motion could not
have been fully briefed and resolved “within such time as not to
delay trial,” the rules do not require district courts to hear and
20160909-CA 21 2019 UT App 91Conner v. Department of Commerce
resolve a rule 12(c) motion prior to trial. To the contrary, the
rules expressly allow a court to defer its ruling on a rule 12(c)
motion. Rule 12(d) provides that a rule 12(c) motion “shall be
heard and determined before trial on application of any party,
unless the court orders that the hearings and determination
thereof be deferred until the trial.” Utah R. Civ. P. 12(d).
Significantly, rule 12(d) expressly contemplates a deferred ruling
even though, by definition, a motion for judgment on the
pleadings would not rely on the evidence developed or the facts
found at trial. When Conner moved to strike the rule 12(c)
motion as untimely, the district court “made it clear that [it] was
deferring on ruling on the motion and that [it] . . . would rule on
the motion after trial.”
¶44 Although rule 12(d) speaks of deferring a ruling “until the
trial,” the district court’s decision to rule on the matter after trial
is consistent with the concept that governmental immunity does
not conceptually arise until after liability is determined. See
Ferree, 784 P.2d at 153. “Generally, it is appropriate to address
liability issues . . . prior to addressing the affirmative defense of
the defendant’s immunity from suit.” Lyon v. Burton, 2000 UT 19,
¶ 12, 5 P.3d 616. As the district court explained, “[t]he question
of governmental immunity was not put to the jury,” because it
was a purely legal issue that the district court “reserved for
judgment by the Court on the pleadings.” Once the jury found
the Defendants liable, the court’s ruling had “the effect of
immunizing [the] Defendants from the verdict.”
¶45 Judicial economy may be better served by performing
the immunity analysis first, especially where, as here, that
analysis ends the inquiry. See Ledfors v. Emery County School Dist.,
849 P.2d 1162, 1164 (Utah 1993) (citing cases in which the
court has “performed the immunity analysis first, typically when
it ended the inquiry”). But, while a pretrial ruling in this case
may well have been preferable, we cannot say that the district
court was required to resolve the question of governmental
20160909-CA 22 2019 UT App 91Conner v. Department of Commerce
immunity before the jury determined liability. Therefore, the
district court’s handling of the rule 12(c) motion did not violate
the rules of civil procedure or otherwise constitute an abuse of
discretion.
III. Due Process
¶46 Finally, Conner contends that the timing of the rule 12(c)
motion and the court’s ruling deprived her of due process.
“Procedural due process requires, at a minimum, timely and
adequate notice and an opportunity to be heard in a meaningful
way.” McBride v. Utah State Bar, 2010 UT 60, ¶ 16, 242 P.3d 769(quotation simplified). This encompasses the right to be heard
both “at a meaningful time and in a meaningful manner.”
Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quotation
simplified).
¶47 Conner claims that the Defendants, intentionally or
unintentionally, “sandbagged” her by waiting to raise the
governmental immunity defense until it was too late for her to
pursue an alternative claim for statutory enforcement at trial. 10
She asserts that she “had a right to know what issues the
[district] court would be considering in reference to the Rule 12
motion before she presented her case at trial” and that “she did
not have a meaningful opportunity to oppose [the Defendants’]
motion at a meaningful time.”
10. Although we do not reach the merits of this claim for lack of
preservation, we note that Conner’s procedural due process
claim would necessarily fail given our conclusion that she has
not established that a private right of action exists for a violation
of Utah Code section 67-19-18(2). See supra ¶¶ 26–33. Even if the
rule 12(c) motion had been brought in a timely fashion and
resolved prior to trial, Conner could not have successfully
pursued a non-existent statutory enforcement claim.
20160909-CA 23 2019 UT App 91Conner v. Department of Commerce
¶48 “As a general rule, claims not raised before the trial court
may not be raised on appeal.” State v. Holgate, 2000 UT 74, ¶ 11,
10 P.3d 346. It is well-established that the preservation
requirement “applies to every claim, including constitutional
questions.” Id.; see also State v. Dalton, 2014 UT App 68, ¶ 55, 331
P.3d 1110 (“The preservation requirement applies to
constitutional issues.”). Although Conner claims that she
preserved this issue, the parts of the record cited by Conner do
not support that assertion. “For an issue to be preserved, a party
must raise it before the district court specifically, in a timely
manner, and with support by evidence and relevant legal
authority, such that the issue has been presented to the trial
court in such a way that the trial court has an opportunity to rule
on it.” True v. Utah Dep't of Transp., 2018 UT App 86, ¶ 24, 427
P.3d 338 (quotation simplified). The portions of the record
Conner cites reflect her objections to the timeliness of the rule
12(c) motion, but do not allege a violation of her constitutional
right to due process. Her constitutional claim is therefore
unpreserved. Where the constitutional issue is unpreserved, the
appellant must establish an exception to the preservation
requirement. See In re A.W., 2018 UT App 217, ¶ 26, 437 P.3d 640(“[I]t is well established that Utah appellate courts will not
review unpreserved constitutional claims unless an exception to
the preservation rule applies.”). Because Conner does not allege
an exception to preservation on appeal, we do not consider the
merits of her due process claim.
CONCLUSION
¶49 The belated rule 12(c) motion resulted in a regrettable
waste of party and judicial resources that might have been
avoided had the Defendants sought judgment based on
governmental immunity promptly after pleadings were closed
or, at the very least, in sufficient time to possibly avoid a
20160909-CA 24 2019 UT App 91Conner v. Department of Commerce
five-day jury trial. However, we cannot say that the court
exceeded its discretion in electing to entertain the motion.
¶50 On the merits, the district court correctly construed
Conner’s first cause of action as a tort claim for wrongful
termination in violation of public policy and denied her motion
to amend the pleadings post-trial to state a statutory
enforcement claim to overcome the defense of governmental
immunity. Conner has failed to establish that the statute on
which she relies creates a private right of action. Because the
government has not waived immunity for Conner’s only viable
claim—wrongful termination in violation of public policy—the
district court correctly granted the Defendants’ motion for
judgment on the pleadings, denied Conner’s motion to amend,
and dismissed the claim notwithstanding the jury’s verdict.
¶51 Affirmed.
20160909-CA 25 2019 UT App 91