Debra S. RETHERFORD, Plaintiff and Appellant, v. AT & T COMMUNICATIONS OF the MOUNTAIN STATES, INC.; Cathy Bateson; Louise Johnson; Vickie Randall; and Doe I through Doe X, Defendants and Appellees.
No. 890464.
Supreme Court of Utah.
Dec. 9, 1992.
844 P.2d 949
Richard M. Hymas, Salt Lake City, for defendants and appellees.
ZIMMERMAN, Justice:
This case is before us on appeal from a grant of summary judgment dismissing plaintiff‘s complaint. Debra S. Retherford sued her former employer, AT & T Communications, under several theories for harms arising from alleged sexual harassment by her co-employees. Specifically, she alleged that AT & T fired her in retaliation for complaining of being sexually harassed by her AT & T co-workers. She argued that such a discharge violated Utah public policy barring reprisals for reports of sexual harassment. She also contended that the discharge breached a term of her implied contract with AT & T, which prohibited reprisal for reports of sexual harassment and was entirely separate from the agreement between her union‘s collective bargaining unit and AT & T. Retherford further asserted that AT & T was liable for negligently employing her harassers. Finally, Retherford sued former co-workers Cathy Bateson (aka Cathy Bateson-Hough), Louise Johnson, and Vickie Randall, claiming that their retaliatory conduct constituted intentional infliction of emotional distress and malicious interference with her contractual relations with AT & T.
Defendants moved to dismiss the complaint, claiming, inter alia, that workers covered by employment contracts that prohibit discharge other than for just cause should not be able to maintain a tort action for discharge in violation of public policy; that the Utah Anti-Discriminatory Act (“UADA“) preempted Retherford‘s common law causes of action, see
The district judge considered affidavits in support of and in opposition to the motion to dismiss and granted defendants summary judgment on all claims. Retherford appeals.
To summarize our ruling today, we hold as follows: first, that both employees covered by employment contracts that limit the bases for discharge and employees who are at-will can maintain a tort action for
In reviewing a grant of summary judgment, we view the facts and all reasonable inferences drawn therefrom in a light most favorable to the nonmoving party. Smith v. Batchelor, 832 P.2d 467, 468 (Utah 1992); Rollins v. Petersen, 813 P.2d 1156, 1158 (Utah 1991); Utah State Coalition of Senior Citizens v. Utah Power & Light Co., 776 P.2d 632, 634 (Utah 1989). We state the facts of the instant case—which we draw primarily from Retherford‘s affidavit submitted in opposition to AT & T‘s motion to dismiss—accordingly. See Sandy City v. Salt Lake County, 827 P.2d 212, 215 (Utah 1992).
In 1976, Mountain States Telephone and Telegraph Company hired Retherford to work as a telephone operator in Grand Junction, Colorado. In 1983, due to the nationwide restructuring of AT & T and its subsidiary companies, Retherford was transferred to AT & T‘s Wasatch office, located in Salt Lake City, where she continued working as a telephone operator.
Retherford alleges that two separate agreements governed her employment with AT & T. As an AT & T employee, Retherford was covered by a collective bargaining agreement between AT & T and her union, the Communications Workers of America (“CWA“). Independent of the collective bargaining agreement, AT & T also had promulgated a code of conduct that outlined employees’ rights and responsibilities and was specifically brought to the attention of and acknowledged in writing by all employees. Retherford argues that the code of conduct created an implied employment contract between AT & T and its employees.
Both the collective bargaining agreement and the code of conduct prohibited sexual harassment and outlined procedures for aggrieved employees to press any complaints. The collective bargaining agreement stated, “[N]either the Company nor the Union shall unlawfully discriminate against any employee because of such employee‘s race, color, religion, sex, age or national origin or because he or she is handicapped, a disabled veteran or a veteran of the Vietnam era.” The collective bargaining agreement required resort to arbitration to resolve “[g]rievances arising out of or resulting from the application or interpretation of the provisions of this Agreement” and “[g]rievances arising out of or resulting from the dismissal, suspension, or demotion of a regular employee....”
The code of conduct‘s provision on sexual harassment was more detailed than that in the collective bargaining agreement. The code of conduct read in relevant part:
Any sexually harassing conduct in the workplace, whether physical or verbal, committed by any employee is also prohibited. This includes: repeated offensive sexual flirtations, advances, propositions; continued or repeated verbal abuse of a sexual nature; graphic verbal commentaries about an individual‘s body; sexually degrading words used to describe an individual; and the display in the workplace of sexually suggestive objects, pictures or posters.
Employees who have complaints of sexual harassment should report such conduct to their supervisors. If this is not appropriate, employees are urged to seek the assistance of their EEO coordinator. Where the investigation confirms
the allegations, prompt corrective action should be taken. ....
Any reprisal against an employee because the employee, in good faith, reported a violation or suspected violation is strictly forbidden.
Soon after Retherford transferred to Salt Lake City, manager Fayonne Johanneson required Retherford meet with her to discuss the provisions of the conduct code and to sign a statement saying that she had read and understood them. This procedure was repeated every year during Retherford‘s tenure at the Wasatch office. In an affidavit submitted in opposition to defendants’ motion to dismiss, Retherford termed this annual procedure “a condition of her continued employment” with AT & T.
Among Retherford‘s co-workers at the Wasatch office were Cathy Bateson-Hough, an AT & T manager, Louise Johnson, a supervisor, Vickie Randall, a fellow employee and union steward, and Jolene Gailey,1 a fellow telephone operator. Upon her arrival in Salt Lake City, she noticed the sexually uninhibited atmosphere of the Wasatch office. In her affidavit, Retherford testified that during her first day at work, Bateson-Hough showed her an obscene Valentine‘s Day card. Soon Retherford became aware that obscene jokes and foul language were commonplace among her co-workers.
After approximately six months, Retherford switched to the night shift. At this time, she encountered a more sexually suggestive work environment, one she found threatening. As before, she noted that sex was a common topic of discussion. For example, in her affidavit she described Johnson‘s loud accounts of an alleged sexual relationship with another AT & T employee.
For the first time, however, Retherford found herself a target of the sexually suggestive commentary. Specifically, she alleges that Jolene Gailey subjected her to unwelcome sexual advances. Retherford‘s affidavit describes these advances as follows:
Retherford complains that Gailey touched her, made numerous comments regarding her appearance, and regularly suggested that Retherford join her “in various activities.” Gailey‘s friends, including defendant Johnson, also began to congregate around Retherford, conversing frequently and explicitly about subjects of a sexual nature. As time passed, Gailey became more aggressive. When “visibly intoxicated,” Gailey sat next to Retherford, touched her affectionately on the arm, and said, “I‘m going to save you from Dave Todd,” a male AT & T employee with whom Retherford had been sitting at meals. Gailey subsequently asked Retherford to pose nude while Gailey painted or sculpted her likeness, told Retherford that she was looking for a roommate, and informed Retherford that she hated men and even the sound of men‘s voices on the telephone. Retherford also believes that Gailey passed a note around the office stating that Retherford was having an affair with a male AT & T employee.
After approximately ten months of such treatment, Gailey telephoned Retherford at home and asked her if she intended to file an EEOC complaint about Gailey‘s conduct.2 Retherford testified in her affidavit that she replied that she would file a complaint if Gailey continued to bother her. According to Retherford‘s affidavit, Gailey responded, “I‘m sorry if I offended you, but I feel I shouldn‘t have to apologize for my sexuality.”
Retherford testified in her affidavit that after she informed Gailey that she was considering filing a complaint of sexual harassment, Gailey and other AT & T employees began to retaliate by staring at her, making “threatening facial expressions” at her, walking extremely close to
About five days later, Richard Salazar, an AT & T employee and a CWA union steward, called Retherford at home to discuss the complaint she had submitted. Retherford testified that Salazar told her, “You‘re the new kid on the block—you‘re not going to win this. We don‘t know you very well, but we do know Jolene [Gailey], she is a respectable person in the community and an artist.” He added, “Somebody could get fired over this.” Darlene Anderson, a first-level manager of the Wasatch office, also cautioned Retherford, saying, “Just be careful what you say and do; this is a strong and big group that you are dealing with.” Several weeks after Retherford complained to the AT & T EEO coordinator, she was attempting to cross the street at 1:15 a.m. when Gailey sped past her. When Retherford reached her own car and drove away, Gailey followed her for a few miles.
During June of 1984, Linda Johnston, an AT & T employee who Retherford says is a personal friend of Bateson-Hough‘s, investigated Retherford‘s complaint. Retherford said that Johnston‘s investigation consisted solely of personal interviews with and submission of written statements by Retherford and Gailey. About one month later, Johnston submitted the EEO coordinator‘s report, which recommended that Retherford and Gailey have as little contact with each other as possible. Subsequently, Retherford received a telephone call from Reta Pehrson, an AT & T supervisor and CWA vice president, who told her, “You have to be satisfied with the [EEO coordinator‘s] decision.... If anybody asks you about it, don‘t tell them and don‘t say anything.” Pehrson added, “Cathy [Bateson-Hough] wanted me to also tell you that if you would like a transfer, she will transfer you to the Sundance Office.”
Retherford stated in her affidavit that the harassment in the Wasatch office did not abate following the issuance of the EEO coordinator‘s report and recommendations. At one point, Retherford overheard an AT & T employee say to a group of co-workers, including defendant Johnson, “Debi [Retherford] would make a good stripper—she has big boobs.” Looking directly at Retherford, Johnson replied, “My bra size is 34B.” Retherford said that Gailey and other co-workers continued to stare at her, walk close to her, follow her, and make faces at her. She also said that on at least one occasion, Gailey and Johnson accused Retherford of staring at them.
In late August of 1984, Retherford filed a charge letter with the EEOC, alleging that some of her co-workers had sexually harassed her for a year and that AT & T had done nothing to remedy the situation. Several months later, Alfred Aros, an EEOC investigator, called Retherford at home to tell her that of the four witnesses he had interviewed while investigating her complaint, three had told him there was a “lesbian problem” at the Wasatch office. He said he intended to issue a warning to AT & T management about this situation. Around the same time, the AT & T EEO coordinator surveyed the workers in the Wasatch office about sexual harassment and eventually issued a report concluding that employees at the Wasatch office engaged in a great deal of sexually oriented discussion, including many obscene jokes. This report failed to curb the sexual atmosphere in the Wasatch office. Indeed, Retherford testified in her affidavit that after its issuance, the obscene jokes and explicit sexual conversations increased in frequency and offensiveness.
In late December of 1984, Retherford again delivered a written complaint to Bateson-Hough. Retherford says that Bateson-Hough summoned her and told her that the AT & T EEO coordinator had issued a letter chastising both Retherford and Gailey for their continued quarreling.
Retherford testified in her affidavit that the abuse by her co-workers continued, exacerbated by the perception that she was an informant. In Retherford‘s presence, Johnson and others made various comments lamenting the fact that someone was watching them and would report them if they broke company rules. Following one such comment, Johnson looked at Retherford and said, “Isn‘t that right, Debi?” Retherford also said that Bateson-Hough made no effort to protect her from this retaliation. In fact, she said, Bateson-Hough rearranged the seating in the Wasatch office, placing Retherford next to some of her harassers and assigning her to “slow” work stations, which hampered her productivity.
To cope with the stress of her work place, Retherford began visiting a psychiatrist and a physician in the summer of 1985. In September of 1985, Retherford says, she took medical disability leave to recover from the stress and anxiety caused by the harassment. Following her psychiatrist‘s instructions that she must not work in proximity to “the people who started the panic in her,” she never returned to the Wasatch office.
Retherford testified in her affidavit that on or about March 12, 1986, Douglas Erickson, group manager of the Wasatch office, and Vickie Randall, an AT & T employee and union steward, called Retherford to tell her that because she was medically incapable of returning to the Wasatch office, AT & T was transferring her to its office in Boise, Idaho. Erickson ordered her to report to her new assignment within ten days. When Retherford protested that her family obligations and medical treatment in Salt Lake City prevented her from moving to Boise on such short notice, Randall responded, “What do you expect us to do, build you a new building?” Erickson then advised Retherford that if she failed to report to the Boise office within ten days, AT & T would fire her.
Retherford did not report to Boise by the deadline, and AT & T fired her on March 26, 1986. She filed a written grievance with the CWA, Local 7704, on April 9th. On September 29th, the vice president of Local 7704 told Retherford that due to an oversight on the part of the CWA, the union had not submitted her grievance for arbitration and that the time for processing her grievance, as established by the bargaining agreement, had expired.
On July 21, 1988, two years and four months after she was fired, Retherford filed suit in United States District Court for the District of Utah, alleging federal claims under Title VII of the
On April 7, 1989, Retherford filed suit in the Third Judicial District Court, alleging the following: first, that AT & T fired her in violation of Utah public policy, which bars reprisals for reporting sexual harassment; second, that AT & T‘s discharging her in retaliation for complaining of sexual harassment violated a term of an employment contract implied from AT & T‘s code of conduct; third, that AT & T was liable for negligently employing Retherford‘s sexual harassers; fourth, that Bateson-Hough, Johnson, and Randall intentionally inflicted emotional distress on Retherford; and fifth, that Bateson-Hough, Johnson, and Randall maliciously interfered with Retherford‘s contractual relations.
Defendants moved to dismiss, arguing first, that Utah does not recognize a common law cause of action for discharge in violation of public policy; second, that even if Utah did recognize such a cause of action, federal and state anti-discrimination
Relying on affidavits in reaching its decision, the trial court treated defendants’ motion to dismiss as a motion for summary judgment. See
[T]he Court having found that there are no genuine issues of material fact; and the Court having further determined that Defendants are entitled to judgment as a matter of law ... [,] Defendants’ Motion to Dismiss, which is being treated as a motion for summary judgment, is hereby granted.4
Retherford appeals.
Before addressing the merits, we note the applicable standard of review. Summary judgment is appropriate only when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law.
The present appeal requires that we examine the interplay between statutory causes of action and common law tort and contract causes of action for discharge in retaliation for complaining of sexual harassment. We first address the common law. In the last decade, state courts have shown a growing willingness to increase employer exposure to suit for claims relating to the discharge of employees, a trend that has taken a number of different forms. James N. Dertouzos & Lynn A. Karoly, Labor-Market Responses to Employer Liability viii (The RAND Institute for Civil Justice 1992). In Utah, this court has joined the national trend by converting into a rebuttable presumption the common law rule that absent an express agreement, employment was at-will, see Berube v. Fashion Centre, Ltd., 771 P.2d 1033, 1044 (Utah 1989) (Durham, J., joined by Stewart, J.); id. at 1051-52 (Zimmerman, J., concurring in the result), by recognizing implied employment contracts, see id. at 1044-46, 1049 (Durham, J., joined by Stewart, J.); id. at 1052-53 (Zimmerman, J., concurring in the result), and by adopting the tort of discharge in violation of public policy, see Peterson v. Browning, 832 P.2d 1280, 1282 (Utah 1992) (Durham, J., joined by Stewart, J.); id. at 1285 (Howe, A.C.J., concurring). See generally Janet Hugie Smith & Lisa A. Yerkovich, Utah Employment Law Since Berube, Utah Bar J., Oct. 1992, at 15.
Her appeal presents the following novel questions: First, when an employee has a contractual right to be fired only for just cause and therefore has a breach of contract claim if he or she can demonstrate discharge on some other ground, such as retaliation for exercising a legal right, should we allow a common law tort action for discharge in violation of public policy that is based on the same facts that underlie the claim for breach of contract? Second, does the Utah Anti-Discriminatory Act‘s exclusive remedy provision preempt common law causes of action based on the same facts necessary to prove a cause of action under the statute, including common law causes of action for discharge in violation of public policy, breach of implied contract, negligent employment, intentional infliction of emotional distress, or malicious interference with contract? Third, does federal labor law preempt these same claims? Fourth, if neither state nor federal statute preempts her claims against her co-workers, is Retherford‘s assertion of these claims timely? Fifth, if neither state nor federal statute preempts Retherford‘s claim for intentional infliction of emotional distress, is the conduct Retherford alleges sufficiently severe to satisfy the standard we have set for this tort? We will discuss each issue in turn.
We begin with defendants’ contention that we should not allow an employee with an employment contract that protects him or her from discharge without just cause—a contract that would prohibit discharge in violation of public policy—to maintain a common law tort action for discharge in violation of public policy. Defendants argue that because the facts Retherford alleges constitute a cause of action for breach of her collective bargaining agreement‘s just-cause provision, she is precluded from seeking tort damages for the same conduct.
The AT & T-CWA collective bargaining agreement provides the premise for defendants’ argument. It requires arbitration for “[g]rievances arising out of or resulting from the dismissal ... of a regular employee,” and it states that a dismissal “shall stand unless it is established that the dismissal ... was effected without just cause.” (Emphasis added.) Defendants contend that the concept of “just cause” should exclude all reasons for discharge that are inconsistent with public policy. They argue that because the contractual provision protecting an employee from all but a just-cause dismissal protects the same interests as a tort cause of action for discharge in violation of public policy, no purpose is served by permitting a discharged employee to proceed on the tort claim when he or she has a contractual cause of action. Defendants contend that the contractual provision adequately vindicates the public policy underlying the tort claim.
We disagree. Our recent decision in Peterson, which adopted a tort action for discharges in violation of public policy and was decided after the briefing and argument of the present case, requires rejection of defendants’ argument. As adopted in Peterson, the tort of discharge in violation of public policy differs in both scope and sanction from any contractual provision that might limit an employer‘s power to discharge an employee for other than just cause. See Peterson, 832 P.2d at 1282-83, 1285 (Durham, J., joined by Stewart, J.); id. at 1285-86 (Howe, A.C.J., concurring). Both respect for precedent and sound pub-
Our reasoning is as follows: First, the logic of Peterson and of the earlier Berube decision indicates that the cause of action for discharge in violation of public policy limits the power of all employers to discharge employees, without regard to whether the employee is at-will or protected by an express or implied employment contract. See id. at 1287 n. 2 (Zimmerman, J., concurring and dissenting, joined by Hall, C.J.); Berube, 771 P.2d at 1043 n. 10 (opinion of Durham, J., joined by Stewart, J.); id. at 1051 (Zimmerman, J., concurring in the result). A primary purpose behind giving employees a right to sue for discharges in violation of public policy is to protect the vital state interests embodied in such policies. We cannot fulfill such a purpose if we hinge this cause of action on employees’ contractual status and thus limit its availability to any one class of employees. See Peterson, 832 P.2d at 1287 n. 2 (Zimmerman, J., concurring and dissenting); see also Petermann v. International Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., Local 396, 174 Cal.App.2d 184, 344 P.2d 25, 27 (1959).
Second, not every discharge in violation of a contractual just-cause provision rises to the level of a violation of public policy. As Justice Durham pointed out in Peterson, only those public policies that are “clear” and “substantial” and arise from statutes or constitutions qualify for vindication through the tort of discharge in violation of public policy. 832 P.2d at 1282. Consequently, the overlap of a contractual just-cause cause of action and a public policy tort cause of action is not as great as defendants would have us believe.
Finally, the vindication of public policy worked by the tort cause of action cannot be accomplished by a contractual provision that prohibits discharges for any but just cause. Even when a contract prohibits conduct that also would violate public policy, the remedies for breach of that contract would satisfy only the private interests of the parties to the agreement, i.e., by restoring a wrongfully discharged employee to his or her position and making him or her whole. There is no reason to expect that these remedies would be as draconian as those that might be available under the tort cause of action, remedies that are designed not only to remedy the breach and make the employee whole, but to deter and punish violations of vital state interests. While any employer violating a contractual just-cause standard of dismissal should be liable for breaking its promise to its employee, Peterson dictates that an employer who violates clear and substantial public policies should be liable for the more expansive penalties of tort, a potentially harsher liability commensurate with the greater wrong against society. When an employer‘s act violates both its own contractual just-cause standard and a clear and substantial public policy, we see no reason to dilute the force of the double sanction. In such an instance, the employer is liable for two breaches, one in contract and one in tort. It therefore must bear the consequences of both.
For the foregoing reasons, we reject defendants’ argument. We hold that the tort of discharge in violation of public policy is a limitation on all discharges, not merely an exception to the at-will doctrine. See Peterson, 832 P.2d at 1287 n. 2 (Zimmerman, J., concurring and dissenting, joined by Hall, C.J.); Berube, 771 P.2d at 1043 n. 10 (opinion of Durham, J., joined by Stewart, J.); id. at 1051 (Zimmerman, J., concurring in the result); see also Midgett v. Sackett-Chicago, Inc., 105 Ill.2d 143, 85 Ill. Dec. 475, 478-79, 473 N.E.2d 1280, 1283-84 (1984), cert. denied, 474 U.S. 909 (1985); Ewing v. Koppers Co., 312 Md. 45, 537 A.2d 1173, 1175 (1988); Lepore v. National Tool & Mfg. Co., 224 N.J.Super. 463, 540 A.2d 1296, 1301 (1988), aff‘d, 115 N.J. 226, 557 A.2d 1371 (1989), cert. denied, 493 U.S. 954 (1989); cf. Johnson v. Transworld Airlines, Inc., 149 Cal.App.3d 518, 196 Cal.Rptr. 896, 899 (1983);
We next turn to the UADA to determine whether it preempts Retherford‘s common law claims for discharge in violation of public policy, breach of implied contract, malicious interference with contract, negligent employment, and intentional infliction of emotional distress. Retherford argues that the UADA has no preemptive effect because she hopes to avoid its provisions and pursue her common law remedies.
Our analysis of this question breaks down into two subsidiary issues. First, does the UADA preempt common law causes of action for retaliation against an employee for complaints of sexual harassment? Second, if the UADA does have this preemptive effect, do the causes of action Retherford alleges fall within the UADA‘s preemptive scope? We discuss these questions in turn.
The starting place for a determination of the preemptive effect of the UADA is the statute itself. The legislature enacted the UADA in 1969 as part of a comprehensive state labor law scheme. See 1969 Utah Laws ch. 85, §§ 160-67. As passed, the statute neither prohibited employer retaliation against employees complaining of discrimination nor provided that the UADA supplied the exclusive remedy for discriminatory or prohibited employment practices. In 1985, the legislature added both a provision barring employer retaliation against employees opposing any employment practices prohibited by the chapter, 1985 Utah Laws ch. 189, § 3, and a provision making the UADA‘s remedies exclusive, id. § 4. The 1985 exclusivity provision read as follows:
The procedures contained in this section and Section 34-35-8 are the exclusive remedy under state law for employment discrimination because of race, color, sex, age, religion, national origin, or handicap.
In arguing that the UADA is not the exclusive remedy for employer retaliation against employees who oppose prohibited discrimination, Retherford seizes upon the fact that the exclusivity provision in effect in 1986, when she was fired, did not expressly mention retaliation. She claims that this omission excepts her common law claims from the UADA‘s exclusivity provision. We disagree. We find that taken as a whole, the plain text of the statute then in effect preempts common law causes of action for retaliation for complaints of employment discrimination. Furthermore, the circumstances surrounding the 1990 amendment of the statute bolster this construction. We discuss our construction of the statute below.
As Retherford correctly notes, the word “retaliation” does not appear in the exclusivity provision in effect at the time she was fired. She also correctly notes that where statutory language is plain and unambiguous, this court will not look beyond it to divine legislative intent. See Schurtz v. BMW of North Am., Inc., 814 P.2d 1108, 1112 (Utah 1991); Allisen v. American Legion Post No. 134, 763 P.2d 806, 809 (Utah 1988). However, she neglects to mention that we interpret a statute as a whole, not piecemeal. See Schurtz, 814 P.2d at 1112; Clover v. Snowbird Ski Resort, 808 P.2d 1037, 1045 (Utah 1991); Hansen v. Salt Lake County, 794 P.2d 838, 841 (Utah 1990); Madsen v. Borthick, 769 P.2d 245, 252 n. 11 (Utah 1988);
Although the exclusivity provision itself specifies only “discrimination,” the statute as a whole defines retaliation as “discrimination,” thereby implicitly including retaliation within the exclusivity provision. Section 34-35-6(1)(a)(i) defines retaliation as a “discriminatory or prohibited” employment practice.
As a final matter, we recognize that the legislature‘s later amendment of the exclusivity provision to prohibit retaliation explicitly might indicate that the earlier exclusivity provision had not included retaliation within its scope. However, Retherford has produced no evidence that the legislature intended this amendment to change the substantive law rather than merely to clarify it. Our own research into the history of this amendment has been similarly unavailing. Absent some evidence to the contrary, we conclude that taken as a whole, the version of the UADA in effect at the time of Retherford‘s firing defined retaliation as discrimination and provided the exclusive remedy for this type of discrimination. In reaching this conclusion, we are mindful of our statutory mandate to construe liberally statutes in derogation of the common law. See
Having determined that the UADA is the exclusive remedy for a claim of employer retaliation for complaints of employment discrimination, we turn to the question of whether Retherford‘s tort and contract claims come within the scope of the UADA‘s preemptive effect. This question presents us with an apparently novel question in Utah: What analytical model should determine when an exclusive statutory cause of action preempts a common law claim based on the same facts? Although the Code provides that courts are to construe liberally statutes that are in derogation of the common law, see id. § 68-3-2, and although we have considered that statute when examining the scope of statutorily created causes of action or duties, see, e.g., Asay v. Watkins, 751 P.2d 1135, 1136-37 (Utah 1988); AAA Fencing Co. v. Raintree Dev. & Energy Co., 714 P.2d 289, 290-91 (Utah 1986) (per curiam); Niblock v. Salt Lake County, 100 Utah 573, 581-82, 111 P.2d 800, 804 (1941), we have yet to propound a generic test for determining when a statutory cause of action functions as the exclusive remedy for the wrong, thereby foreclosing enforcement of either a preexisting common law remedy or a common law remedy recognized after the enactment of the statute.
Because we lack an analytical model to answer this question, we have looked to law outside our jurisdiction. Our research has revealed a diversity of approaches.
Second, in similar contexts, other courts have articulated a test grounded on what can be termed “antecedent existence.” These courts hold that the statutory action is the exclusive remedy if the common law cause of action did not exist before the statutory cause of action was created. See Bernstein v. Aetna Life & Casualty, 843 F.2d 359, 365 (9th Cir.1988); Froyd v. Cook, 681 F.Supp. 669, 674 (E.D.Cal.1988); Guevara v. K-Mart Corp., 629 F.Supp. 1189, 1191 (S.D.W.Va.1986); Mahoney v. Crocker Nat‘l Bank, 571 F.Supp. 287, 293 (N.D.Cal.1983); Register v. Coleman, 130 Ariz. 9, 633 P.2d 418, 423 (1981); Valley Drive-In Theatre Corp. v. Superior Court, 79 Ariz. 396, 291 P.2d 213, 215 (1955); cf. Lui v. Intercontinental Hotels Corp., 634 F.Supp. 684, 688 (D.Haw.1986).
Finally, in determining the preemptive scope of workers’ compensation statutes, courts have established a test that inquires whether the statutory scheme supplies an indispensable element of the tort claim. See Foley v. Polaroid Corp., 381 Mass. 545, 413 N.E.2d 711, 716 (1980); Gambrell v. Kansas City Chiefs Football Club, Inc., 562 S.W.2d 163, 168 (Mo.Ct.App.1978). We have adopted this test in determining whether the Utah workers’ compensation statute supplants common law causes of action for injuries on the job. See Mounteer v. Utah Power & Light Co., 823 P.2d 1055, 1058 (Utah 1991).
Because we see no reason why the indispensable element test should not apply to the area before us as well as to workers’ compensation6 and because the other two approaches appear to be cumbersome and indeterminate, we hold that the indispensable element test is the correct analytical model for determining whether a statutory cause of action forecloses a common law remedy. To explain this choice, we briefly outline our objections to the other two models courts have followed in this area.
We begin with the federal district court‘s test in Davis, under which the UADA would preempt only “those common law causes of action which are based upon the very conduct which is necessary to prove [a claim under the act].” Slip op. at 12. We think that this test is simply too ambiguous. First, the Davis court itself seems uncertain as to precisely how the test should be applied. In considering whether the UADA preempted several different claims, the court articulated the standard in varying and not wholly consistent ways. At one point, the court found that the UADA did not preempt a claim for intentional or negligent infliction of emotional distress “because the theoretical basis [sic] for the two claims are separate and distinct,” id. at 21, while at another, the court found that the UADA did not preempt a claim for negligent supervision because it “may encompass more than acts defined to be ‘discriminatory or prohibited employment practices’ under the Utah Act,” id. at 22. Second, we are unconvinced that inquiring whether a common law cause of action is broader than a statutory cause of action will result in defensible distinctions between those causes of action that are preempted and those that are not.7 Conse-
Similarly flawed is the test of antecedent existence, which appears most developed in California. This test focuses on timing. The general rule is that if the common law cause of action did not exist before the statutory cause of action was created, the statutory cause of action preempts the common law. See Bernstein, 843 F.2d at 365; Froyd, 681 F.Supp. at 674; Guevara, 629 F.Supp. at 1191; Mahoney, 571 F.Supp. at 293; Register, 633 P.2d at 423; Valley Drive-In Theatre Corp., 291 P.2d at 215; Strauss, 194 Cal.Rptr. at 522-23; Gay Law Students Ass‘n v. Pacific Tel. & Tel. Co., 24 Cal.3d 458, 156 Cal.Rptr. 14, 34, 595 P.2d 592, 612 (1979); Palo Alto-Menlo Park Yellow Cab Co. v. Santa Clara County Transit Dist., 65 Cal.App.3d 121, 135 Cal.Rptr. 192, 197 (1976).
We reject the test of antecedent existence for two reasons. First, we are unsure of its scope. Despite the apparently general statement of the rule, we cannot tell whether, in fact, the rule applies to anything other than a common law claim for discharge in violation of public policy, which is the usual context in which the rule has been applied. See, e.g., Bernstein, 843 F.2d at 362-64; Froyd, 681 F.Supp. at 673 & n. 10; Mahoney, 571 F.Supp. at 292-93; Strauss, 194 Cal.Rptr. at 522. The few cases in which courts have addressed other common law causes of action, ostensibly under the antecedent existence test, are so cryptic as to appear conclusory. See, e.g., Real v. Continental Group, Inc., 627 F.Supp. 434, 445 (N.D.Cal.1986); Diem v. City & County of San Francisco, 686 F.Supp. 806, 811-12 (N.D.Cal.1988). Although it is at least arguable that the rule should not apply to such common law claims as breach of contract, which generally predate state anti-discrimination statutes, we have found no reasoned analysis of this question.
This uncertainty contributes to our second reason for declining to adopt the test of antecedent existence. At its logical extremes, the theory of antecedent existence could infringe upon constitutional and statutory mandates. The United States Constitution protects against state interference with contracts, see
We now turn to what we term the indispensable element test, which we adopt as the analytical model for determining when a legislative enactment supplies the exclusive remedy for a certain wrong. We think that the indispensable element model will avoid much of the vagueness and uncertainty that plague the Davis test and the test of antecedent existence. The indispensable element test relies on neither timing nor conduct to determine preemption.
An illustration is in order. In Mounteer, in which we adopted the indispensable element test in the context of workers’ compensation, we applied the test as follows: Initially, we identified the injury that the workers’ compensation statute is designed to address, i.e., only physical and mental injuries on the job. Id. at 1057. Then we examined the elements of the plaintiff‘s tort claims against his employer to determine whether physical or mental injury was a necessary element of each cause of action. Id. at 1058-59. This inquiry led us to the following conclusions. First, we determined that the plaintiff‘s claim for slander did not require that the plaintiff prove physical or mental injury; it required defamation, or injury to reputation, which was not an injury the statute addressed. Consequently, we held that the nature of the injury was not among those injuries protected by the statute and therefore the Workers’ Compensation Act did not provide the exclusive remedy for the plaintiff‘s slander claim. Id. at 1058. Second, we determined that the plaintiff‘s claims for intentional and negligent infliction of emotional distress did require that the plaintiff prove mental injury because “‘mental harm is the essence’ of [those] tort[s].” Id. (quoting Foley, 413 N.E.2d at 716); see id. at 1059. Because mental injury was among those injuries addressed by the statute and because the plaintiff could not prove intentional and negligent infliction of emotional distress without proving mental injury, we held that the Workers’ Compensation Act provided the exclusive remedy for the plaintiff‘s mental distress.8
Applying this analysis to the case at hand, we begin with the task of determining what injuries the UADA is designed to address. This purpose is revealed on the face of the Act itself, which provides that it is a discriminatory or prohibited employment practice
for an employer to refuse to hire, or promote, or to discharge, demote, terminate any person, or to retaliate against, or discriminate in matters of compensation or in terms, privileges, and condi-
tions of employment against any person otherwise qualified, because of race, color, sex, age, if the individual is 40 years of age or older, religion, national origin, or handicap.
We begin with Retherford‘s claim for discharge in violation of public policy. In order to prove this tort, Retherford must show that AT & T discharged her in a manner or for a reason that contravened a “clear and substantial public policy” of the State of Utah, a public policy rooted in Utah‘s constitution or statutes.9 Peterson, 832 P.2d at 1281; see also Berube, 771 P.2d at 1051 (Zimmerman, J., concurring in the result). The only possible source in Utah‘s statutes or constitution for a clear and substantial public policy allegedly violated by Retherford‘s dis-
charge is the UADA‘s prohibition of retaliation for good faith complaints of employment discrimination.10 See
Moving to Retherford‘s other common law causes of action, the Mounteer analytical model leads to the conclusion that the UADA does not preempt these other causes of action because discrimination is not an indispensable element of these claims. A more detailed discussion of the elements of each of these claims is included in the analysis of the federal labor law preemption issue discussed below; however, for the purposes of determining the state law preemption question, it is enough to lay out the indispensable elements of Retherford‘s remaining claims and to note that none of them comprehends an injury that is the target of the UADA.
claim of negligent employment, Retherford must prove that AT & T‘s negligence in hiring, supervising, or retaining its employees proximately caused her harm. See Stone v. Hurst Lumber Co., 15 Utah 2d 49, 51-52, 386 P.2d 910, 911-12 (1963).
Noticeably absent from this list of the indispensable elements of the four claims is an injury that is a target of the UADA: retaliation for complaints of sexual harassment. While it is true that all four claims arise out of defendants’ retaliatory conduct, preemption depends on the nature of the injury, not on the nature of the conduct allegedly responsible for that harm. See Foley, 413 N.E.2d at 716. The injuries Retherford alleges—the broken promise, the mental anguish, the wrongful interference with her contract, and the unchecked misconduct of her fellow employees—are distinct from the injury of retaliation. Because Retherford would be able to maintain these claims without alleging retaliatory harassment, we hold that under the Mounteer test, the UADA does not preempt Retherford‘s claims for breach of implied contract, intentional infliction of emotional distress, tortious interference with contract, and negligent employment.
Having determined that the UADA preempts only Retherford‘s claim for discharge in violation of public policy, we next address whether federal labor law
The legislative enactment that determines the federal preemption question is section 301 of the
Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this Act, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.
Labor Management Relations (Taft-Hartley) Act, § 301(a),
On its face, it is not apparent that section 301 preempts state law. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208, 105 S.Ct. 1904, 1909, 85 L.Ed.2d 206 (1985). However, the United States Supreme Court has interpreted section 301 as not only providing federal jurisdiction over controversies involving collective bargaining agreements, but also as vesting exclusive power in “federal courts to fashion a body of federal law for the enforcement of these collective bargaining agreements.” Textile Workers Union of Am. v. Lincoln Mills of Alabama, 353 U.S. 448, 451, 77 S.Ct. 912, 915, 1 L.Ed.2d 972 (1957); accord Allis-Chalmers Corp., 471 U.S. at 210, 105 S.Ct. at 1910; Local 174, Teamsters, Chauffeurs, Warehousemen & Helpers of Am. v. Lucas Flour Co., 369 U.S. 95, 103-04, 82 S.Ct. 571, 577, 7 L.Ed.2d 593 (1962); see also Sperber v. Galigher Ash Co., 747 P.2d 1025, 1027 (Utah 1987).
The policy underlying this expansive interpretation of section 301 is well-founded. If the terms of collective bargaining agreements were subject to differing interpretations by state and federal courts, it could severely disrupt both the negotiation and the administration of collective bargaining agreements. Lucas Flour Co., 369 U.S. at 103, 82 S.Ct. at 576. To avoid this possibility, the Court held that the meaning to be given to the terms of collective bargaining agreements must be determined exclusively by uniform federal law. Id. at 103-04, 82 S.Ct. at 577; see Allis-Chalmers Corp., 471 U.S. at 210, 105 S.Ct. at 1910.
An elaboration on this doctrine of federal exclusivity in the interpretation of collective bargaining agreements is the Supreme Court‘s conclusion that section 301 preempts any common law cause of action where the trial court, in adjudicating that cause of action, must interpret the terms of a collective bargaining agreement. See Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 405-06, 108 S.Ct. 1877, 1881, 100 L.Ed.2d 410 (1988). In essence, the Supreme Court has held that section 301 preempts any common law claim that is “‘substantially dependent on analysis of a collective bargaining agreement,‘” Caterpillar Inc. v. Williams, 482 U.S. 386, 395, 107 S.Ct. 2425, 2431, 96 L.Ed.2d 318 (1987) (quoting International Bhd. of Electric Workers, AFL-CIO v. Hechler, 481 U.S. 851, 859 n. 3, 107 S.Ct. 2161, 2167 n. 3, 95 L.Ed.2d 791 (1987)), lest the common law provide a vehicle for state courts to intrude into the exclusive federal preserve that is the interpretation of collective bargaining agreements. The justification for this expansive view of section 301 preemption is the ease with which an aggrieved employee otherwise could turn a suit for breach of a collective bargaining agreement into a state tort or contract claim, thereby obtain-
The interests in interpretive uniformity and predictability that require that labor-contract disputes be resolved by reference to federal law also require that the meaning given a contract phrase or term be subject to uniform federal interpretation. Thus, questions relating to what the parties to a labor agreement agreed, and what legal consequences were intended to flow from breaches of that agreement, must be resolved by reference to uniform federal law, whether such questions arise in the context of a suit for breach of contract or in a suit alleging liability in tort. Any other result would elevate form over substance and allow parties to evade the requirements of § 301 by relabeling their contract claims as claims for tortious breach of contract.
Allis-Chalmers Corp., 471 U.S. at 211, 105 S.Ct. at 1911.
The question before us, then, is whether resolution of the state law claim depends upon the interpretation of the collective bargaining agreement. If it does, section 301 preempts the state law cause of action. Lingle, 486 U.S. at 405-06, 108 S.Ct. at 1881. However, “even if dispute resolution pursuant to a collective-bargaining agreement, on the one hand, and state law, on the other, would require addressing precisely the same set of facts, as long as the state-law claim can be resolved without interpreting the agreement itself, the claim is independent of the agreement for § 301 pre-emption purposes.” Id. at 409-10, 108 S.Ct. at 1883. Under such circumstances, there is no section 301 preemption.
Defendants argue that the Lingle test bars Retherford‘s claims of breach of implied contract, tortious interference with contract, intentional infliction of emotional distress, and negligent employment because evaluation of the state claims is “inextricably intertwined with consideration of the terms of the labor contract.” In order to determine whether resolution of Retherford‘s claims indeed depends upon the meaning of the collective bargaining agreement, we must examine the discrete elements of each claim. See Douglas v. American Info. Technologies Corp., 877 F.2d 565, 570 (7th Cir.1989).
We first address Retherford‘s claim for breach of implied contract. Defendants argue that section 301 bars Retherford‘s implied contract claim because the state court must interpret the collective bargaining agreement in order to determine whether the AT & T code of conduct upon which the claim is based is separate from or subsumed into the collective bargaining agreement. We hold that Retherford‘s implied contract claim is inactionable, but on somewhat different grounds. See Hill v. Seattle First Nat‘l Bank, 827 P.2d 241, 246 (Utah 1992).
Under federal labor law, only duly authorized union representatives can bargain for the terms and conditions of employment for those within the bargaining unit. See
In applying this rule, at least two federal circuits have found unenforceable separate agreements that were more favorable to the individual employees than the collective bargaining agreement. See Chmiel v. Beverly Wilshire Hotel Co., 873 F.2d 1283, 1285-86 (9th Cir.1989); Eitmann, 730 F.2d at 362-63. For example, the Ninth Circuit has held that an employee whose collective
We think that the policy underlying these decisions is sound. Nothing could undermine the authority of the collective bargaining unit more thoroughly than allowing individuals or cohorts of employees to enforce separate contracts that were more advantageous to those employees than was the collective bargaining agreement itself. Although the interests of individual employees may be slighted in the process, Congress apparently is of the view that such sacrifices are necessary in order to match the power of the employer with the aggregate power of unionized employees. Cf. Lodge 76, Int‘l Ass‘n of Machinists & Aerospace Workers v. Wisconsin Employment Relations Comm‘n, 427 U.S. 132, 146 (1976); Allis-Chalmers Mfg. Co., 388 U.S. at 180; J.I. Case, 321 U.S. at 338-39. See generally Annotation, Collective Bargaining Under Labor Relations Act as Related to Freedom of Contract Between Employer and Individual Employees, 88 L.Ed. 770 (1944). Accordingly, we decline to upset this balance by allowing individual agreements to undercut the union as the bargaining agent. In the instant case, providing any remedy under an implied contract when no remedy is available under the collective bargaining agreement—because the time for arbitration has passed—obviously would put Retherford in a more advantageous position than AT & T employees bound by the collective bargaining agreement, thereby undermining the collective bargaining unit. Consequently, Retherford‘s alleged implied contract is unenforceable.
Our holding that Retherford‘s implied contract is invalid requires us to find that her claim for malicious interference with contract is similarly defective. Although some courts have held that the contract at issue in a case for malicious interference need not be enforceable, courts generally agree that the contract must not be illegal or contrary to public policy. See generally 45 Am.Jur.2d Interference §§ 8-9 (1969 & Supp.1992). Allowing a plaintiff to sue for malicious interference with a contract that is invalid would gut the federal policy of consolidating bargaining power in union representatives. Consequently, we affirm the summary judgment on Retherford‘s claim for malicious interference with contract, albeit on grounds different from those relied upon by the trial court.
Having determined that the LMRA bars Retherford‘s claims stemming from her implied contract, we next consider her tort claims for intentional infliction of emotional distress and negligent employment. We begin with her claim for emotional distress because AT & T can be held liable for negligent employment only if its employees Randall, Johnson, Gailey,13 and Bateson-Hough are liable for an independent tort. See Focke v. United States, 597 F.Supp. 1325, 1344 (D.Kan.1982); Mulhern v. City of Scottsdale, 165 Ariz. 395, 799 P.2d 15, 18 (Ct.App.1990). See generally Restatement (Second) of Agency § 213 (1958). Here, Retherford alleges that AT & T‘s employees committed the tort of intentional infliction of emotional distress.
To sustain her claim for intentional infliction of emotional distress, Retherford must show that (i) Gailey‘s, Randall‘s, Johnson‘s, and Bateson-Hough‘s conduct was outrageous and intolerable in that it offended against the generally accepted standards of decency and morality; (ii) they intended to cause, or acted in reckless disregard of the likelihood of causing, emo
A necessary element of Retherford‘s claim is that Bateson-Hough‘s, Gailey‘s, Randall‘s, and Johnson‘s behavior was outrageous and intolerable in that it offended against the generally accepted standards of decency and morality. See Samms, 11 Utah 2d at 293, 358 P.2d at 347. Before analyzing this tort under the test for section 301 preemption, it is helpful to identify the conduct that Retherford alleges. Retherford details the conduct of each co-worker as follows: With respect to Bateson-Hough, Retherford contends that Bateson-Hough responded to her complaining of sexual harassment by requiring her to sit next to Gailey, telling her she had a letter sanctioning her and Gailey, assigning her to certain “slow” work stations that hampered her productivity, reprimanding and criticizing her, and threatening to fire her if she continued to complain about Gailey.
As for Gailey, Retherford alleges that Gailey avenged Retherford‘s complaint to the AT & T EEO coordinator by following her, making threatening faces at her, and speeding by her late at night when she was trying to cross the street.14 As for Randall, Retherford charges that Randall told her she must report to Boise within ten days or lose her job. In addition, although the record is ambiguous, Randall may have been among Gailey‘s friends who retaliated against Retherford by staring at her, making “threatening facial expressions” at her, walking extremely close to her, and follow-
ing her around the office. Finally, Johnson also may have been among the group of Gailey‘s friends who discomfited Retherford by their staring and their threatening facial expressions. The record shows that on at least one occasion, Johnson accused Retherford of staring at her. Retherford also alleges that in her presence, Johnson and others lamented the fact that someone was watching them and would report them if they broke company rules. After one such comment, Johnson looked at Retherford and said, “Isn‘t that right, Debi?” Viewing the facts in the light most favorable to Retherford, as we must, see Rollins v. Petersen, 813 P.2d 1156, 1158 (Utah 1991), we accept for the purposes of this appeal that Retherford has alleged at least that Randall and Johnson made a habit of following her and mocking her after she complained of Gailey‘s sexual harassment.
Defendants argue that section 301 preempts Retherford‘s claims of intentional infliction of emotional distress because a court deciding whether this conduct was intolerable and outrageous must interpret the collective bargaining agreement to determine whether Bateson-Hough exceeded her supervisory authority and whether Gailey‘s, Randall‘s, and Johnson‘s work-place conduct was improper. We agree in part.
In considering section 301 preemption of tort claims alleging infliction of emotional distress by a supervisor or fellow employee, courts seem to have distinguished between situations in which the defendant has misused his or her authority under a collective bargaining agreement to torment the plaintiff and situations in which the defendant has inflicted the distress through conduct that is purely personal and does not implicate the exercise of supervisory authority. See Paradis v. United Technologies Pratt & Whitney Div., 672 F.Supp. 67, 71 (D.Conn.1987). Compare Douglas, 877 F.2d at 571-72 and Newberry v. Pacific Racing Ass‘n, 854 F.2d 1142, 1149-50 (9th Cir.1988) and Truex v. Garrett Freightlines, Inc., 784 F.2d 1347, 1350-51 (9th Cir.1985) with
The Douglas and Keehr cases, both from the Seventh Circuit, illustrate this distinction. In Douglas, the plaintiff charged her employer with “extreme and outrageous” treatment because of the employer‘s allegedly arbitrary denials of her requests for days off, an “unjustified” final warning, and “unwarranted and excessive” scrutiny of her work. 877 F.2d at 572. The Seventh Circuit concluded that a state court would have to interpret the collective bargaining agreement‘s provisions regulating the terms and conditions of the plaintiff‘s employment to determine whether the employer‘s actions were indeed arbitrary, unjustified, unwarranted, and excessive. It therefore held that section 301 barred Douglas‘s state tort claim. Id. at 572-73.
In contrast, the Keehr court found that section 301 did not preempt a claim for intentional infliction of emotional distress. There, Keehr complained that a company supervisor had engaged him in an altercation during which the supervisor allegedly made outrageous comments about the sexual activities of Keehr‘s wife, and the verbal abuse escalated into a fist fight. 825 F.2d at 135. The court reasoned that there was no section 301 preemption because the supervisor‘s abuse of the employee could not reasonably be seen as implicating the supervisor‘s authority under the collective bargaining agreement, even though it would have been possible for Keehr to file a grievance against his supervisor for using abusive language. Id. at 137-38.
We find that this distinction has merit and apply it to Retherford‘s emotional distress claim. Retherford‘s allegations that Randall ordered her to report to Boise within ten days or lose her job and that Bateson-Hough reprimanded Retherford, warned her to stop complaining, told her where to sit, and assigned her certain tasks raise questions about their respective authority under the collective bargaining agreement. Therefore, to the extent that this conduct constitutes a ground for the claim of intentional infliction of emotional distress, section 301 preempts Retherford‘s cause of action.
However, other allegations regarding the conduct of Gailey, Randall, and Johnson can withstand the section 301 preemption analysis. Specifically, Retherford alleges that Gailey responded to Retherford‘s complaint to the AT & T EEO coordinator with conduct ranging from following her around the office to attempting to frighten her as she crossed the street. She alleges that Randall and Johnson retaliated by following her and making threatening faces at her. Such alleged behavior raises issues of purely personal misconduct. Evaluating the severity and the consequences of this conduct in order to adjudicate Retherford‘s claim of intentional infliction of emotional distress should require no interpretation of the collective bargaining agreement. These allegations are analogous to those in Keehr, not to those in Douglas. To the extent that Retherford‘s tort claim is premised upon allegations of purely personal misconduct, as opposed to misconduct under color of possible contractual authority, section 301 does not preempt the cause of action.
Having determined that Gailey, Johnson, and Randall may be held liable for the tort of intentional infliction of emotional distress without implicating the collective bargaining agreement, we turn to the question of whether Retherford can hold AT & T liable for Gailey‘s, Johnson‘s, and Randall‘s behavior under a theory of negligent employment without running afoul of section 301 preemption. The issue is whether, in determining AT & T‘s liability under this claim, a court could avoid determining any issue that would implicate the collective bargaining agreement.
Negligent employment is a tort of some novelty in Utah. Although we have recognized this cause of action, see Clover v. Snowbird Ski Resort, 808 P.2d 1037,
For the purposes of this discussion, we will assume that Retherford can prove that Gailey, Randall, and Johnson intentionally inflicted emotional distress upon her. Also we note that because the tort of negligent employment can impose liability on the employer even when the employer would not otherwise be liable under the doctrine of respondeat superior, we have no need to consult the collective bargaining agreement to determine whether Gailey, Randall, and Johnson were acting in the scope of their employment. See Clover, 808 P.2d at 1048; Birkner, 771 P.2d at 1059.
Defendants argue that a state court cannot determine the elements of the tort—i.e., that AT & T knew or reasonably should have known that Gailey, Randall, and Johnson posed a hazard of such tortious conduct and could have taken steps to avoid this hazard—without referring to any provision of the collective bargaining agreement. Defendants insist that the court will have to resort to the collective bargaining agreement‘s termination and discipline provisions to determine whether
In analyzing this issue, we first note that AT & T misunderstands the source of its duty to control the conduct of its employees. AT & T suggests that this obligation arises from the collective bargaining agreement. This is incorrect. The employer‘s duty toward those people whom its employees place in a position of reasonably foreseeable risk or injury does not stem from its private employment contract. Cf. Valdez, 742 P.2d at 519. Instead, it is a duty imposed by the common law of the state. The common law of tort expresses public policy, the scope of which is not generally determined by reference to privately contracted obligations. Certainly, we may vindicate some public policies by implying them as covenants to private contracts. See, e.g., Beck v. Farmers Ins. Exch., 701 P.2d 795, 801 (Utah 1985). However, such covenants are judicial creations that express public policy and constitute public law; they are not private agreements between private parties, and they are not avoidable by contract. See id. at 801 n. 4.
In the present case, the duty that Retherford relies upon arises from the public law of tort, not from the private collective bargaining agreement. Therefore, the existence of the duty and the determination of its scope do not require resort to any term of the collective bargaining agreement. Other duties might be due to Retherford and other employees by reason of the collective bargaining agreement, but their existence is not relevant to the duty inquiry for purposes of the tort of negligent employment.
It is true, however, that in an action for negligent employment, the plaintiff must show that the employer‘s failure to fulfill the duty owed the injured party in hiring, supervising, or retaining the malfeasing employee proximately caused the injury of which the plaintiff complains. In making this factual determination, a court might have to resort to the collective bargaining agreement to discover whether contractual limitations on the power of the employer to deal with the employee precluded it from taking steps to prevent the harm. Although such an eventuality might raise questions of section 301 preemption, the defendants in the present case have made no showing that the trial court, in adjudicating this particular matter, would have to refer to the collective bargaining agreement to determine whether AT & T could have prevented Gailey‘s, Johnson‘s, and Randall‘s allegedly tortious acts. It is not enough that we might imagine a situation where a court might have to make such a reference. There must be a realistic possibility that it may occur. Because defendants have not shown any such realistic possibility, we hold that there is no section 301 preemption of the claim for negligent employment.16
To summarize the preemptive effects of state and federal statutes on Retherford‘s claims, the UADA preempts only Retherford‘s claim for discharge in violation of public policy, while the LMRA preempts Retherford‘s claims for breach of implied contract and malicious interference with contract and partially preempts her claim for intentional infliction of emotional distress. We therefore affirm the trial court‘s summary judgment against Retherford on those preempted claims. The only claims to survive state and federal preemption are Retherford‘s claim for negligent employment and the part of her emotional distress claim that alleges purely personal misconduct on the part of Gailey, Johnson, and Randall.
We now examine defendants’ objections to Retherford‘s nonpreempted causes of ac
Defendants base their untimeliness contention on
The question presented is whether, taking the facts in a light most favorable to Retherford, the statute of limitations ran before April 7, 1989. Defendants contend that as a matter of law, the statute began to run at the time of the first complaint. Under Utah law, the statute of limitations begins to run when the cause of action accrues. See
We begin with Retherford‘s claim of intentional infliction of emotional distress. Because of the nature of this cause of action, it can be difficult to determine when all its elements—intentional, outrageous conduct proximately causing extreme distress—have come into being. Of particular difficulty is the element of injury—extreme emotional distress. Sometimes, to be sure, a single outrageous incident, such as an egregiously vicious practical joke, see Restatement (Second) of Torts § 46 cmt. d, illus. 1 (1965), results in immediate and easily identifiable emotional distress. Often, however, emotional distress does not so much occur as unfold—for example, where a defendant subjects a plaintiff, not to a single outrageous act, but to a pattern or practice of acts tolerable by themselves though clearly intolerable in the aggregate.
Here, Retherford alleges a pattern of retaliatory harassment. Such patterns present courts with the difficult task of identifying when during a series of related acts the element of emotional distress “occurred.” We have been unable to locate authority that is directly on point concerning the application of statutes of limitation to a pattern of conduct that constitutes, in the aggregate, intentional infliction of emotional distress. However, we find the treatment of claims of alienation of affections instructive in this regard. In adjudicating such claims, which often allege a series of wrongful acts over a substantial period of time, courts have determined that the statute of limitations begins to run when the alienation is accomplished, i.e., when love and affection are finally lost. See e.g., Gibson v. Gibson, 244 Ark. 327, 424 S.W.2d 871, 874 (1968); Dobrient v. Ciskowski, 54 Wis.2d 419, 195 N.W.2d 449, 451 (1972); see also Flink v. Simpson, 49 Wash.2d 639, 305 P.2d 803, 804 (1957); Strode v. Gleason, 9 Wash.App. 13, 510 P.2d 250, 254 (1973). Applying this standard by analogy, we hold that the statute of limitations for intentional infliction of emotional distress does not begin to run until the distress is actually inflicted, i.e., when the plaintiff suffers severe emotional disturbance.
Although easy to describe, this standard is difficult to apply, particularly because the element of emotional distress is specific to the plaintiff in each case. Because the tort of intentional infliction of
The record before us identifies this moment.18 In September of 1985, after almost eighteen months of retaliatory abuse by her co-workers, during which she re-
peatedly sought assistance from her immediate supervisors, the AT & T EEO coordinator, and the EEOC, Retherford took medical disability leave at the instance of her psychiatrist. She never returned to her job because, physically and emotionally, she could not work in proximity to “the people who started the panic in her.” Retherford‘s dramatic steps of taking leave from her job, seeking medical and psychiatric attention to heal the stresses of her work place, and remaining on leave for approximately six months because she could not bring herself to face her harassers all support a factual inference that the element of extreme emotional distress did not come into existence before September of 1985.
Of course, at trial defendants will have the opportunity to prove to the satisfaction of the finder of fact that the element of extreme emotional distress accrued some time before Retherford‘s leave of absence. However, on the facts before us, we cannot say as a matter of law that it accrued before April of 1985. Consequently, the four-year statute of limitations poses no bar to Retherford‘s recovery for defendants’ entire course of conduct. See
The next question is whether Retherford‘s claim for negligent employment also was filed within the four-year statute of limitations. Before an employer can be found liable for negligent employment, one of its employees must have committed a tort. See Mulhern v. City of Scottsdale, 165 Ariz. 395, 799 P.2d 15, 18 (Ct.App.1990); Restatement (Second) of Agency § 213 cmt. a (1958). Thus, as a general matter, the statute of limitations will not begin to run on a cause of action for negligent employment until all elements of the employee‘s tort are present. However, although the tort of negligent employment requires the employee‘s tort as a condition precedent, we note that in situations where the victim does not accrue a cause of action until she or he suffers a subjective harm, it may be contended that the employer‘s breach of duty has become evident long before that point, i.e., that the conduct element of the tort, the employee malfeasance, has become sufficiently apparent that the employer should have taken steps to correct it, even before the victim has fully accrued a cause of action. As a consequence, one might argue that the statute of limitations against the employer for negligent employment should begin to run before the statute begins to run on the tort by the employee. Such a situation might exist where, as here, the victim alleges intentional infliction of emotional distress.
We need not decide today whether such an argument has merit or whether it applies to the facts of this case. Defendants did not advance the argument before this court or the trial court, we have found no legal authority that speaks to the issue, and most important, the record provides no basis for our concluding as a matter of law that if the cause of action against AT & T for negligent supervision did accrue before the cause of action against the employees, all this occurred before April of 1985. There is therefore no basis for sustaining a summary judgment on the ground that the four-year statute of limitations bars the negligent employment claim. See
As a final objection to Retherford‘s claim of intentional infliction of emotional distress against Randall and Johnson, defendants argue that the conduct alleged is insufficiently outrageous and intolerable to support such a claim. We disagree. The standard Utah has adopted for determining whether the conduct of a defendant is sufficiently offensive to permit recovery is whether the defendant‘s actions “offend against the generally accepted standards of decency and morality.”19
Applying this standard to the facts at bar and viewing those facts in a light most favorable to plaintiff, we can say as a matter of law that Retherford has alleged outrageous and intolerable conduct sufficient to support a cause of action for intentional infliction of emotional distress. Certainly, as defendants claim, merely following or making faces at someone, without more, does not constitute conduct of such objective offensiveness that it can give rise to a claim of intentional infliction of emotional distress. However, Retherford alleges more than simple insult or annoyance. She alleges months of persecution by her co-workers, during which Gailey, Johnson, and Randall shadowed her movements, intimidated her with threatening looks and remarks, and manipulated circumstances at her work in ways that made her job markedly more stressful, all in retaliation for her good-faith complaint of sexual harassment. Indulging all inferences in favor of Retherford, as we must, Rollins v. Petersen, 813 P.2d 1156, 1158 (Utah 1991), such allegations are sufficient to satisfy the objective conduct requirement of the tort of intentional infliction of emotional distress.
It is worth stating forcefully that any other conclusion would amount to an intolerable refusal to recognize that our society has ceased seeing sexual harassment in the work place as a playful inevitability that should be taken in good spirits and has awakened to the fact that sexual harassment has a corrosive effect on those who engage in it as well as those who are subjected to it and that such harassment has far more to do with the abusive exercise of one person‘s power over another than it does with sex. See, e.g., Louise F. Fitzgerald, Science v. Myth: The Failure of Reason in the Clarence Thomas Hearings, 65 S.Cal.L.Rev. 1399, 1399 (1992); Carol Sanger, The Reasonable Woman and the Ordinary Man, 65 S.Cal.L.Rev. 1411, 1415 (1992). This consensus extends into all sectors of our society. Indeed, although Utah Senator Orrin Hatch never wavered from his conviction that law professor Anita Hill had fabricated her allegations that Supreme Court nominee Clarence Thomas had sexually harassed her, he reportedly condemned the alleged conduct in the strongest terms. Someone who would make such vulgar and degrading comments “would not be a normal person,” Senator Hatch said. “That person ... would be a psychopathic sex fiend or a pervert.” Fitzgerald at 1405.
As Senator Hatch recognized, sexual harassment is simply unacceptable in today‘s society. To refuse to label the retaliatory conduct alleged here as outrageous and intolerable would be a travesty. Prosser and Keeton quite properly call sexual harassment on the job “undoubtedly an intentional infliction of emotional distress.” W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 12, at 18 (Supp.1988). By this, we take them to mean that the conduct generally labeled sexual harassment is outrageous and intolerable and, when performed with the requisite intent, satisfies the elements of the tort of intentional infliction of emotional distress. If the conduct that constitutes sexual harassment is per se outrageous and intolerable, it stands to reason that retaliation for complaining of sexual harassment must also be considered outrageous and intolerable. Retherford has stated a claim for
In sum, we hold as follows: First, both employees covered by just-cause employment contracts and employees who are at-will can assert a claim in tort for discharge in violation of public policy; second, the UADA preempts only Retherford‘s claim for discharge in violation of public policy; third, the LMRA preempts Retherford‘s claims for breach of implied contract and malicious interference with contract, and partially preempts her claim for intentional infliction of emotional distress; fourth, the statute of limitations does not bar Retherford‘s claim for negligent employment and the nonpreempted portion of her claim for intentional infliction of emotional distress; and fifth, Retherford has stated a claim for intentional infliction of emotional distress. Consequently, we affirm the summary judgment in part, reverse in part, and remand for disposition consistent with this opinion.
HALL, C.J., and DURHAM, J., concur.
HOWE, Associate Chief Justice (concurring with reservation):
I concur in the majority opinion with the following reservation:
I would not reach the question whether Retherford can pursue a tort action for discharge in violation of public policy and also a claim for breach of her collective bargaining agreement‘s just-cause provision. It is not necessary to resolve this issue because assuming such tort cause of action exists, it is preempted by UADA, as explained in the majority opinion.
The majority holds that Retherford could pursue both a tort action and a contract claim, except for the preemption. Not only would this be duplicative, at least in part, but it possibly may violate the collective bargaining agreement, which requires that all grievances arising out of or resulting from the dismissal of a regular employee must be arbitrated. I therefore prefer to reserve judgment on this issue.
STEWART, J., concurs in the result.
Notes
Regarding Retherford‘s claim against her fellow employees for intentional infliction of emotional distress, we have long held that an employee injured by the intentional tort of a fellow employee may sue the fellow employee personally. See Bryan v. Utah Int‘l, 533 P.2d 892, 894 (Utah 1975). Therefore, the Workers’ Compensation Act poses no bar to Retherford‘s suing her fellow employees for intentional torts.
However, the Act‘s applicability to Retherford‘s claim against AT & T for negligent employment is less clear. We have yet to address directly whether a plaintiff who is mentally or physically injured by the intentional torts of a fellow employee can sue his or her employer for negligent employment or whether workers’ compensation provides the exclusive remedy for the employer‘s negligence. Neither the Act itself nor judicial interpretations of it in Utah or elsewhere supply an explicit exception for the tort of negligent employment in such an instance. Our ruling in Mounteer, based as it is on an injury-oriented analysis rather than on an analysis centered on the legal theory of the claim, would suggest that workers’ compensation would be an exclusive remedy. However, because the parties have neither raised nor briefed this issue, we decline to determine whether there is nonetheless some reason to allow the tort claim to go forward. In the event that this issue develops on remand, we do note that if Mounteer does not govern and workers’ compensation does not supply an exclusive remedy, our previous case law may provide some guidance in determining AT & T‘s liability for Bateson-Hough‘s alleged intentionally tortious conduct. We have already determined that a managerial employee‘s tortious intent can be imputed to his or her employer under certain circumstances. See Hodges v. Gibson Prods. Co., 811 P.2d 151, 157 (Utah 1991).
The following questions are relevant to determining whether a statute embodies a clear and substantial public policy. First, one must ask whether the policy in question is one of overarching importance to the public, as opposed to the parties only. Second, one must inquire whether the public interest is so strong and the policy so clear and weighty that we should place the policy beyond the reach of contract, thereby constituting a bar to discharge that parties cannot modify, even when freely willing and of equal bargaining power. Since these are the consequences of qualifying a policy as a basis for the tort action, these considerations should inform the evaluation of the policy itself. See id. at 1288 (Zimmerman, J., concurring and dissenting, joined by Hall, C.J.); see also Foley, 765 P.2d at 379-80 & n. 12.
“Retaliate” means the taking of adverse action by an employer against one of its employees ... because he [or she] has opposed any employment practice prohibited under this chapter or because he [or she] has filed charges, testified, assisted, or participated in any way in any proceeding, investigation, or hearing under this chapter.