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Zimmerman v. University of Utah

Supreme Court of Utah

January 23, 2018

Judith Pinborough Zimmerman, Ph.D, Plaintiff,
v.
University of Utah and Dr. William McMahon, Defendants.

         On Certification from the United States District Court for the District of Utah The Honorable Jill N. Parrish Case No. 2:13-cv-1131-JNP

          April L. Hollingsworth, Salt Lake City, for plaintiff

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

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

          Having recused themselves, Justice Durham and Justice Pearce do not participate herein; Court of Appeals Presiding Judge Gregory K. Orme and District Court Judge Jennifer A. Brown

          Associate Chief Justice Lee

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

1.Is the Free Speech Clause of the Utah Constitution self-executing?
2.If question 1 is answered in the affirmative, what are the elements of a claim brought under the clause?
3. Does an employee who receives notice that his or her employment will be terminated effective on a future date suffer an adverse employment action for purposes of the Utah Protection of Public Employees Act when he or she receives the notice, when the employment is actually terminated, or both?

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

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

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

         I

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

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

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


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