District Court, Salt Lake Department The Honorable Gary D.
Stott No. 170902670
D. Reyes and Peggy E. Stone, Attorneys for Appellant
Stephen T. Hester and Kimberley L. Hansen, Attorneys for
Diana Hagen authored this Opinion, in which Judges Michele M.
Christiansen Forster and Jill M. Pohlman concurred.
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.
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
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
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
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.
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,
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
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]."
The University filed this interlocutory appeal challenging
the district ...