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Mcgraw v. University of Utah

Court of Appeals of Utah

August 22, 2019

Bianca McGraw, Appellee,
v.
University of Utah, Appellant.

          Third District Court, Salt Lake Department The Honorable Gary D. Stott No. 170902670

          Sean D. Reyes and Peggy E. Stone, Attorneys for Appellant

          Stephen T. Hester and Kimberley L. Hansen, Attorneys for Appellee

          Judge Diana Hagen authored this Opinion, in which Judges Michele M. Christiansen Forster and Jill M. Pohlman concurred.

          OPINION

          HAGEN, JUDGE:

         ¶1 The University of Utah (the University) appeals the district court's denial of the University's motion to dismiss Bianca McGraw's whistleblower action, arguing that McGraw failed to strictly comply with the requirements of the Governmental Immunity Act of Utah (the GIA). We agree with the University that McGraw did not wait the mandatory sixty days after delivering a valid notice of claim to the Utah Attorney General (the AG) before instituting this action and therefore she failed to strictly comply with the GIA. Accordingly, we reverse.

         BACKGROUND

         ¶2 On September 28, 2016, the University hired McGraw as a clinical research coordinator for a physician. Soon after her employment began, she noticed "regulatory non-compliance issues" with one of the studies the physician was conducting. Over the next few weeks, McGraw repeatedly raised compliance concerns with the University's Institutional Review Board until she was terminated on October 27, 2016. The University explained that it did not appear that McGraw and the physician would "be[] able to work together long term, therefore, [she] was released from her employment."

         ¶3 A few days after her termination, McGraw filed complaints with the University's human resources department, asserting that her termination was improper and in retaliation for her raising concerns about the physician's non-compliance. After speaking with a few different University employees, she was told that the information would be passed "up the chain of command." Eventually, the University stopped contacting McGraw or responding to her inquiries regarding whether the University was going to investigate her complaints about the physician.

         ¶4 On February 23, 2017, McGraw delivered a letter with the subject line "Retaliation Complaint" (the February 23 Retaliation Complaint) to the University's General Counsel and the Employment Relations Administrator. In the February 23 Retaliation Complaint, she detailed her previous complaints, explained that she had not been able to gain employment following her termination, and stated that she was going to file a civil action for violations of the Utah Protection of Public Employees Act-also known as the Whistleblower Act (the WBA)-if the University did not respond.

         ¶5 On April 14, 2017, McGraw delivered a notice of claim (the April 14 Notice of Claim) to the AG's authorized agent, which included substantially the same information as the February 23 Retaliation Complaint, with some additional details. Eleven days later, on April 25, 2017, McGraw filed a complaint in district court, alleging that the University took adverse employment action against her in violation of the WBA when she raised concerns about the physician's non-compliance. McGraw did not serve the complaint on the University until June 19, 2017.

         ¶6 The University moved to dismiss McGraw's complaint under rule 12(b)(1) of the Utah Rules of Civil Procedure. Among other things, the University argued that the February 23 Retaliation Complaint did not comply with the GIA because it was not delivered to the AG or the AG's authorized agent. See Utah Code Ann. § 63G-7-401(3)(ii)(b)(E), -401(3)(ii)(b)(G) (LexisNexis 2016). The University also argued that, assuming the April 14 Notice of Claim was valid, [1] the district court did not have subject matter jurisdiction over her case because McGraw did not wait sixty days for the University to approve or deny her notice of claim as required by the GIA and instead filed her complaint on April 25, 2017. McGraw opposed the motion, arguing, among other things, that the February 23 Retaliation Complaint complied with the GIA's requirements, even though it was delivered to the wrong person, because of her "good faith belief" that it "was sent to the correct governmental entity."

         ¶7 After hearing argument on the motion to dismiss, the district court announced its oral ruling and entered a written order denying the motion. The district court agreed with McGraw that although she had delivered the February 23 Retaliation Complaint to the wrong individual under the GIA, she had acted with "significant good faith compliance with the statutory requirements of both the [GIA] and the [WBA]." (Quotation simplified.)

         ¶8 The University filed this interlocutory appeal challenging the district ...


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