United States District Court, D. Utah, Central Division
COLLETTE C. RUSSELL, Plaintiff,
NEBO SCHOOL DISTRICT, BRUCE MOON, ANGIE KILLIAN, Defendants.
MEMORANDUM DECISION AND ORDER
SAM SENIOR JUDGE
Collette Russell is a former employee of Defendant Nebo
School District (“Nebo”) who worked as a Resource
Technician at Mount Loafer Elementary School in Salem, Utah.
She alleges that Defendant Moon, who worked as a custodian at
the same school, subjected her to various acts of sexual
harassment. Ms. Russell generally alleges that while employed
by Nebo she was subjected to sexual harassment and
discrimination, and ultimately retaliated against because of
her complaints of harassment and discrimination in violation
of federal law. Ms. Russell's Amended Complaint lists
state law claims against Moon for assault and battery and for
intentional infliction of emotional distress.
Moon has filed a Motion to Dismiss the claims against him.
Pursuant to Rule 12(d) that Motion was converted by the Court
to one for Summary Judgement under Rule 56 of the Federal
Rules of Civil Procedure. Mr. Moon contends that under the
Governmental Immunity Act of Utah, Utah Code Ann. §
63G-7-101, et seq., he is not liable for damages to Russell
for claims based on alleged conduct that occurred in the
workplace during their employment with Nebo School District.
He further contends that he is not liable to Russell for any
claims regarding his conduct outside the workplace because
the conduct was consensual.
SUMMARY JUDGEMENT STANDARD
Federal Rule of Civil Procedure 56, summary judgment is
proper only when the pleadings, affidavits, depositions or
admissions establish there is no genuine issue regarding any
material fact and the moving party is entitled to judgment as
a matter of law. When applying this standard, the court views
the evidence and draws inferences in the light most favorable
to the non-moving party. Nahno-Lopez v. Houser, 625
F.3d 1279. 1283 (10th Cir. 2010). The burden of
establishing the nonexistence of a genuine issue of material
fact is on the moving party. E.g., Celotex Corp. v.
Catrett, 477 U.S. 317 (1986). This burden has two
distinct components: an initial burden of production on the
moving party, which burden when satisfied shifts to the
nonmoving party, and an ultimate burden of persuasion, which
always remains on the moving party. See 10A C.
Wright, A. Miller & M. Kane, Federal Practice and
Procedure § 2727 (2d ed. 1983).
central inquiry is "whether the evidence presents a
sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a
matter of law." Id. If the nonmoving party
cannot muster sufficient evidence to make out a triable issue
of fact on his claim, a trial would be useless and the moving
party is entitled to summary judgment as a matter of law.
Celotex, 477 U.S. 242.
Governmental Immunity Act
Moon first asserts that under the Governmental Immunity Act
of Utah (“Act”), Utah Code Ann. § 63G-7-101,
et seq., he is not liable for damages to Russell for claims
based on alleged conduct that occurred in the workplace
during their employment with Nebo School District. The Act
can serve to bar “claims against governmental entities
or against their employees or agents arising out of the
performance of the employee's duties, within the scope of
employment, or under color of authority.” Id.
at 63G-7-101(2)(b). Moon's position is that he is not
liable to Russell for damages because his alleged conduct was
within the scope of his employment. He reasons as follows.
The alleged harassment occurred while Moon was performing
work assigned by his employer. Plaintiff described the
alleged harassment as starting with “innocent
compliments and touching” while Plaintiff and Moon were
at work. Russell Dep. (dkt. no. 91-2) at 68:20. During this
time, Moon's conduct was subject to the control of the
District. In order to control employee conduct, the District
had a sexual harassment policy that prohibited conduct such
as the alleged harassment. Regardless of whether the District
enforced such a policy, simply having such a policy evidences
the District's control over Moon at the time the alleged
harassment occurred. Because the conduct occurred while Moon
was at work, performing work assigned by the District, and
his conduct was under the control of the District, Moon was
acting with the scope of his employment under the standard
set forth in Wisan [M.J. v. Wisan, 371 P.3d
21 (Utah 2016)].
ECF No.146, p. 6.
reasoning and misplaced reliance on Wisan is
rejected. The Utah Supreme Court not long ago addressed scope
of employment for purposes of the Act.
The scope of employment standard is statutory. It comes from
Utah Code section 63G-7-202(3)(a), which protects employees
from personal liability for actions “caused by an act
or omission that occurs ... within the scope of
employment.” This incorporates a principle from the law
of agency. And the analysis is accordingly informed by our
case law defining the agency principle of “scope of
employment”-in particular the standard set forth in
Birkner v. ...