United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER
N. Parrish United States District Court Judge
November 20, 2015, the University of Utah and Dr. William
McMahon filed a Motion for Summary Judgment (ECF No. 46). The
court issued an order granting the motion in part and denying
it in part on July 1, 2016 (ECF No. 75), but the court
reserved judgment on two issues and certified those to the
Utah Supreme Court (ECF No. 76). That court issued its
opinion on January 23, 2018 and remitted to this court for
final adjudication on March 13, 2018. And on May 4, 2018, the
parties filed supplemental briefs (ECF Nos. 127, 128).
Consequently, the court now considers the remainder of the
defendants' 2015 motion and grants it in part and denies
it in part.
Judith Pinborough Zimmerman is a speech-language pathologist
who has been heavily involved in autism
research. In 2008, Dr. Zimmerman entered into an
employment contract with the University. Pursuant to that
contract, she was appointed as a research assistant professor
for a “renewable one-year term.” The contract
provided that Dr. Zimmerman's 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 renewed annually until her termination in June
August 2012, Dr. Zimmerman reported to the University
concerns she had regarding possible misconduct and privacy
violations. Specifically, she believed that confidential,
identifiable data were illegally copied by a University
employee and shared with individual researchers, including
Dr. McMahon. Dr. Zimmerman also reported that University
employees were “double-dipping” in reporting
their research time.
December 12, 2012, Dr. McMahon delivered a letter to Dr.
Zimmerman notifying her that her contract would not be
renewed. Consequently, her employment with the University
ended when her contract expired on June 30, 2013. Dr.
Zimmerman filed this action on December 27, 2013.
judgment is appropriate when “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The movant bears the initial burden of
demonstrating the absence of a genuine dispute of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Once the movant has met this burden, the burden then
shifts to the nonmoving party to “set forth specific
facts showing that there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). To do this, the nonmoving party “must do more
than simply show that there is some metaphysical doubt as to
the material facts.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986).
the nonmoving party bears the burden of proof at trial on a
dispositive issue, that party must go “beyond the
pleadings” and “designate specific facts”
so as to “make a showing sufficient to establish the
existence of an essential element to that party's
case.” Celotex, 477 U.S. at 322. “The
plain language of Rule 56(c) mandates the entry of judgment .
. . against a party who fails to make a showing sufficient to
establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial.” Id. Thus, summary
judgment is not a “disfavored procedural
shortcut” but rather “an integral part of the
Federal Rules as a whole” that is designed “to
secure the just, speedy and inexpensive determination of
every action.” Id. at 327.
court's prior order on the instant motion, the court
reserved judgment on two issues: Dr. Zimmerman's free
speech claim under the Utah Constitution and Dr.
Zimmerman's claim under the Utah Protection of Public
Employees Act (“UPPEA”). It then certified
questions pertaining to those issues to the Utah Supreme
Court. Having received and reviewed that court's decision
and the parties' supplemental briefing on these issues,
the court now addresses each in turn.
Dr. Zimmerman's Free Speech Claim
Zimmerman's fourth cause of action alleges that the
University violated Dr. Zimmerman's free-speech rights
under the Utah Constitution when it decided not to renew her
appointment. Dr. Zimmerman's asserted free-speech right
stems from Article I, Section 1 of the Utah Constitution.
That section reads:
All men have the inherent and inalienable right to enjoy and
defend their lives and liberties; to acquire, possess and
protect property; to worship according to the dictates of
their consciences; to assemble peaceably, protest against
wrongs, and petition for redress of grievances; to
communicate freely their thoughts and opinions, being
responsible for the abuse of that right.
Utah Const. art. I, § 1. And Article I, Section 15
provides, in part, that “[n]o law shall be passed to
abridge or restrain the freedom of speech or of the