Opinion
{1 Mitch Tomlinson appeals from the dismissal of all but two claims in his amended complaint against NCR Corporation. He also appeals from the trial court's subsequent order granting summary judgment in favor of NCR on his remaining claims of wrongful termination and breach of the covenant of good faith and fair dealing. Finally, Tomlin-son asserts that the trial court erred in denying his motion to alter or amend judgment. We affirm in part, and reverse and remand in part.
BACKGROUND
12 NCR terminated Tomlinson's employment as a customer engineer on May 5, 2005. Following the termination, NCR reported to the Salt Lake City Police Department that Tomlinson had stolen NCR's property and assaulted a manager. Tomlinson disputed the allegations, and it appears from the record that Tomlinson was not charged with any crime. At the time of his termination, Tom-linson had been employed with NCR for about ten years.
3 On April 9, 2009, Tomlinson, appearing pro se, filed a complaint against NCR, alleging several causes of action; he later filed an amended complaint (the Amended Complaint). NCR moved to dismiss Tomlinson's Amended Complaint, arguing that it failed to state any elaims upon which relief could be granted under rule 12(b)(6) of the Utah Rules of Civil Procedure. After a hearing, the trial court dismissed seven of Tomlin-son's claims without prejudice but allowed him to proceed with two of his claims. 1 Despite the trial court's explanation that Tom-linson could "file a motion" to amend the complaint, he did not file a second amended complaint.
{14 Thereafter, the trial court granted summary judgment for NCR on Tomlinson's remaining claims of wrongful discharge and breach of the covenant of good faith and fair dealing. In response, Tomlinson filed a motion to alter or amend judgment under rule 59 of the Utah Rules of Civil Procedure. The trial court denied that motion, and Tom-linson now appeals. 2
ISSUES AND STANDARDS OF REVIEW
{5 Tomlinson contends that the trial court erred in dismissing seven of his claims under rule 12(b)(6) of the Utah Rules of Civil Procedure either as inadequately pleaded or as barred by the Workers' Compensation Act. Because a rule 12(b)(6) dismissal is a question of law, "'we give the trial court's ruling no deference and review it under a correctness standard."" Sony Elecs., Inc. v. Reber,
16 Tomlinson also appeals the summary judgment in favor of NCR on his claims of wrongful discharge and breach of the covenant of good faith and fair dealing. "Because summary judgment is granted as a matter of law, we review the trial court's ruling for correctness." Harding v. Atlas Title Ins. Agency, Inc.,
ANALYSIS
I. Inadequately Pleaded Claims
17 First, Tomlinson argues that the trial court erred when it dismissed five of his *766 claims under rule 12(b)(6) of the Utah Rules of Civil Procedure for failure to state a claim on which relief could be granted. The trial court noted that the Amended Complaint contained many conclusions but few facts to support them. The trial court also explained that it could not consider the additional facts Tomlinson asserted at the hearing because they could not be "reasonably inferr[ed] from ... the [AJmended [Clomplaint." 3
18 "A complaint that alleges the facts and sets forth the legal basis for an available legal remedy adequately states a claim upon which relief can be granted." Mack v. Utah State Dep't of Commerce,
T9 The Amended Complaint alleges that (1) NCR's written employee policies created an employment contract, (2) NCR's termination of Tomlinson violated the procedures set forth in those policies, (8) NCR reported to the Salt Lake Police department that Tomlinson had stolen NCR's property and assaulted an NCR representative, (4) the allegations in the police report were false, (5) NCR knew the allegations were false, (6) some of the NCR property was in the possession of an NCR manager, (7) NCR wrote false performance evaluations of Tomlinson, (8) NCR had a business relationship with Tomlinson and handled money on his behalf, and (9) NCR's actions damaged Tomlinson's reputation with NCR's employees and customers. We assume these allegations are true in our review of the trial court's dismissal of Tomlinson's claims under rule 12(b)(6). See Mackey,
A. Breach of Fiduciary Duty
110 We first review Tomlinson's argument that he adequately pleaded his claim of breach of fiduciary duty. As a general rule, "in a fiduciary relationship, the property, interest or authority of the other is placed in the charge of the fiduciary." First See. Bank of Utah N.A. v. Banberry Dev. Corp.,
{11 Here, the only facts asserted in the Amended Complaint to support the breach of fiduciary duty claim are that NCR had a "business relationship" with Tomlinson and that NCR "handled money on [his] behalf." However, there is no allegation that NCR mishandled or misappropriated any money belonging to Tomlinson. Thus, even assuming that NCR had a fiduciary duty to handle Tomlinson's money appropriately, there is no allegation that it breached that duty. As a result, the Amended Complaint fails to allege facts which could support a breach of fiduciary duty claim.
{12 On appeal, Tomlinson also argues that "an [employee's] agreement to share the losses of the employer" creates a fiduciary duty. However, we need not consider this argument because Tomlinson did not raise it before the trial court. See La-
*767
Chance v. Richman,
B. Interference with Economic Relations
118 Next, Tomlinson argues that the trial court erred in dismissing his claim of interference with economic relations because he "reasonably expected" to benefit in the future from his established relationship with NCR's customers. The elements of interference with economic relations are that "the defendant intentionally interfered with the plaintiff's existing or potential economic relations ... for an improper purpose or by improper means ... causing injury to the plaintiff," Anderson Dev. Co. v. Tobias,
C. Abuse of Process
114 Tomlinson next asserts that the trial court erred in dismissing his abuse of process claim. "'A claim for abuse of process requires the plaintiff to show (1) that the defendant used legal process, (2) to accomplish an improper purpose or purpose for which that process was not designed, (8) causing the plaintiff's harm."" Moss v. Parr Waddoups Brown Gee & Loveless,
115 To satisfy the wilful act requirement, the party must allege conduct, other than the pursuit of the legal process itself, that could support a finding that the actor misused the process in order to achieve some ulterior objective. See id. In other words, "'[ulse of legal process with a bad motive alone'" is not enough. See id. (quoting Hatch II,
The Amended Complaint alleges that NCR made a false police report and then advised Tomlinson's coworkers of the police investigation, thereby injuring his reputation. NCR asserts that even accepting these allegations as true, the Amended Complaint does not allege an ulterior purpose sufficient to support a claim of abuse of process. Tomlinson's allegation that NCR filed the false police report in order to hurt his reputation does not alone state a claim for abuse of process because "allegations of intimidation and desire to hurt a reputation, alone, do not suggest an advantage or gain [that NCR] would receive collateral to the proceedings." See id. 116. Indeed, " 'ln an action for abuse of process, ... it is immaterial whether such proceeding was baseless or not'"
4
Id. ¶ 13 (alteration in original) (quoting Hatch v. Davis (Hatch I),
D. Civil Conspiracy
T17 Next, Tomlinson asserts that the trial court improperly dismissed his civil conspiracy claim. A claim of civil conspiracy requires proof of the following five elements:
(1) a combination of two or more persons, (2) an object to be accomplished, (@) a meeting of the minds on the object or course of action, (4) one or more unlawful, overt acts, and (5) damages as a proximate result thereof.
Peterson v. Delta Air Lines, Inc.,
118 The Amended Complaint does not identify "two persons," does not allege a "meeting of the minds" on a common "object or course of action," and does not allege facts that support these elements. Instead, the allegations of the Amended Complaint identify NCR and its employees as the only actors. As a general rule, "it is not possible for a single legal entity consisting of the corporation and its agents to conspire with itself," because they do not constitute two separate persons. McAndrew v. Lockheed Martin Corp.,
E. Intentional Infliction of Emotional Distress
11 19 Tomlinson also challenges the dismissal of his claim for intentional infliction of emotional distress. According to NCR, the conduct alleged in the Amended Complaint does not arouse sufficient "outrage or revulsion" to support the claim.
5
That position is supported by our decision in Magistro v. Day, 2010 UT App 397U,
120 Based on these decisions, we agree with NCR that Tomlinson's Amended Complaint, which alleges that NCR made false statements to the police and wrongfully terminated his employment, fails to state a claim for intentional infliction of emotional distress. 6
II. Negligence Claims
121 Tomlinson next argues that the trial court erred in determining that the Workers' Compensation Act precluded his claims of "negligent hiring, supervision, or retention of [an] employee" and gross negli-genee. The Workers' Compensation Act provides employees with "the exclusive remedy against the employer ... in place of any and all other civil liability" for accidental injuries sustained "in the course of or because of or arising out of the employee's employment." Utah Code Ann. § 34A-2-105 (LexisNexis 2011);
7
Mounteer v. Utah Power & Light Co.,
122 However, the act does not preempt all claims. For example, it does not preclude a defamation action for damages to one's reputation.
8
See Mounteer, 823 P.2d at
*770
1058. Likewise, the exclusive remedy provision does not bar all claims for physical or mental injuries caused by intentional torts. See Helf,
NCR asserts that the trial court correctly dismissed this claim because it is a negligence claim preempted by the Workers' Compensation Act. In contrast, Tomlinson argues that the Workers' Compensation Act does not bar his negligence claims because he alleges that NCR "acted with willful intent." See id. We need not reach this issue because, even if not preempted, Tomlinson's negligence claims do not assert facts on which relief could be granted. See Batley v. Bayles,
124 The elements of negligence are: (1) "[T)he defendant owed the plaintiff a duty," (2) "the defendant breached that duty," (3) "the breach of duty was the proximate cause of the plaintiff's injury," and (4) "the plaintiff in fact suffered injuries or damages." Webb v. University of Utah,
125 Tomlinson's negligent hiring, supervision, or retention claim contains one paragraph incorporating all of the prior paragraphs of the Amended Complaint by reference, and then adding two additional paragraphs, which state:
45. Defendant(s) retained employee's and supervisors that did not exercise ordinary or reasonable care when evaluating Tomlinson's performance.
Tomlinson's supervisors did not adhere to the standards set in the employment contract when evaluating Torlinson's performance and reporting.
[ 26 While the Amended Complaint alleges that NCR's employees and supervisors were negligent themselves, it does not allege any fact that could support a claim that NCR was "negligenft] in hiring, supervising, or retaining its employees" or that NCR's negligence in doing so "proximately caused [Tomlinson] harm." See Retherford v. AT & T Commc'ns,
127 Next, we evaluate Tomlin-son's gross negligence claim. "Gross negligence is the failure to observe even slight
*771
care; it is carelessness or recklessness to a degree that shows utter indifference to the consequences that may result." Pearce v. Utah Athletic Found.,
III. Summary Judgment
28 Tomlinson next argues that the trial court erred in granting summary judgment in favor of NCR on his claims of wrongful discharge and breach of the covenant of good faith and fair dealing (the Good Faith Covenant). Summary judgment is appropriate if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Utah R. Civ. P. 56(c).
1 29 The trial court announced its summary judgment ruling from the bench, stating that "as a matter of law there was no implied contract limiting the right of NCR to terminate Mr. Tomlinson." The court's decision is based on the presumption under Utah law "that all employment relationships en-an are at-will," which means that an employer "may terminate the employment for any reason (or no reason) except where prohibited by law." See Hansen v. America Online, Inc.,
130 To prove the existence of an implied contract the employee must make an affirmative showing that "meet[s] the requirements for an offer of a unilateral contract." See Johnson,
*772 1 31 Here, the trial court concluded that no reasonable jury could find that NCR agreed to limit its right to fire Tomlinson at-will. Tomlinson challenges that decision, claiming that policies contained within NCR's Corporate Management Policy Manual (the Manual), created a disputed issue of material fact concerning NCR's intent. Specifically, the Amended Complaint infers that NCR's Corporate Management Policy Number 210 (Policy 210) overcame the at-will presumption because it "specifically stated the procedures to be required to be performed before NCR could terminate [Tomlinson's] employment." At the summary judgment hearing, Tomlin-son further explained that NCR's Corporate Management Policy Number 422 (Policy 422) distinguishes between a "core workforce who perform ongoing work which is necessary for the continuing operation of the business" and a "workforce buffer that sets the staffing arrangements that will allow for expansion and contraction." Tomlinson notes that under Policy 422 "the only at will employees are the ... workforce buffer." Therefore, he argues that, as a "core" employee, Policy 210 "defined the steps required in order to terminate [him]." 9 Although NCR contends that Tomlinson was a tactical employee, and therefore part of the workforce buffer, it further asserts that the issue is not material because all of its employees are terminable at-will. 10
A. Tomlinson's Employment Classification
~€32 In support of his argument that he was a core employee, Tomlinson provided a copy of his "employee profile" that identifies him as a "salaried non-exempt employee" and indicates that he was expected to work forty hours per week indefinitely. In addition, he attached Policy 422 to his brief in opposition of summary judgment, which describes the core workforce as "employees who perform ongoing work which is necessary for the continuing operation of the business," 11 and defines full-time, core employees as "expected to work the regular number of scheduled work hours established for the business unit." Because Tomlinson produced evidence that he was a long-term employee who performed ongoing, full-time work, he came forward with evidence that created a disputed issue of fact as to whether he was a core employee.
€83 Nonetheless, to survive summary judgment, that disputed fact must be material. See Utah R. Civ. P. 56 (allowing summary judgment if "there is no genuine issue as to any material fact"). Therefore, Torlin-son was required to produce sufficient evidence from which a "reasonable jury could conclude that the parties agreed to limit the employer's right to terminate" full-time, core employees. See Johnson,
B. Limited At-Will Statements
{34 In support of his claim that NCR could terminate core employees only for cause, Tomlinson relies on the Manual's express designation of only a subset of NCR employees as being terminable at-will. Policy 422 explains that NCR's core workforce is comprised of full-time employees, part-time employees, and interns. The "workforce buffer" includes temporary or tactical workforce employees, contract personnel, and vendors. After explaining this distinction, Policy 422 sets forth "Conditions Governing U.S. Tactical Workforce," which states, "Employment at NCR is AT WILL. No statement in this policy implies any guarantee of employment. Completion of an individual's temporary employment period is always dependent on the Company's needs and the individual's performance" (the At-Will Statement). The At-Will Statement expressly governs only the "U.S. Tactical Workforce," and no similar At-Will Statement is included for full-time, core employees. Based on this distinction, Tomlinson concedes that NCR can terminate tactical employees at-will, but argues that the limitation of the At-Will Statement to tactical employees evidences NCR's intent to terminate core employees only for cause. CL Hamilton v. Parkdale Care Cir., Inc.,
T 35 In Cabaness v. Thomas,
136 The supreme court's reasoning in Ca-bamness suggests that NCR's inclusion of the express At-Will Statement in Policy 422 that governs only the "U.S. Tactical Workforce" is evidence of its intent not to terminate other NCR employees without cause. Furthermore, although neither party has raised the immediately following section of the Manual, NCR's Corporate Management Policy Number 428 (Policy 423), we interpret the policies that have been highlighted in the context of the Manual as a whole. See Hodgson v. Bunsl Utah, Inc.,
C. Policy 210
137 Tomlinson further argues that NCR was required to follow progressive discipline procedures before it could terminate him, even for cause. In support, he argues that Policy 210, which is titled "Addressing Misconduct and Improving Performance," imposed a contractual obligation on NCR. To create an implied contract, the language of Policy 210 must evidence a " 'manifestation of [NCR's] intent that is communicated to [Tomlinson] and sufficiently definite to operate as a contract provision.)" See Cabaness,
{88 Policy 210 addresses both employee misconduct and employee performance issues. For misconduct, Policy 210 includes a list of "Examples of Misconduct Suggesting an Initial Written Warning." At the end of that list, Policy 210 warns, "Repeated violations of any of the above examples or other more serious offenses will result in more extreme disciplinary action, up to and including termination of employment." Policy 210 then provides thirteen "Examples of Misconduct Suggesting Termination." The misconduct section of Policy 210 states, "Misconduct, depending on its seriousness, will generally be addressed by means of written warning ... or other discipline up to and including termination." Thus, the misconduct provisions of Policy 210 indicate that NCR retains some discretion as to when and whether to provide a written warning before terminating an employee. See Sanderson v. First See. Leasing Co.,
€89 With respect to performance issues, however, Tomlinson notes that Policy 210 uses command language. In particular, the first page of Policy 210 includes a "Policy Perspective" statement that indicates, "employees will be advised of expected levels of job performance and behaviors and will receive notification when results and behaviors fall below acceptable levels." (Emphases added.) See Cabaness,
{40 NCR counters that Policy 210 does not create an implied-in-fact contract limiting its right to fire Tomlinson at-will because it is prefaced, in bold-faced print, with the following admonishment (the Disclaimer):
These guidelines are not intended to be contractual in nature, nor should they be interpreted as strict rules for responses to individual activity. The appropriate response to each unique situation may differ. For example, some cireumstances may call for immediate action, either in the way of written warning or termination, depending upon the frequency or the severity of the offense.
According to NCR, the Disclaimer was sufficient as a matter of law to inform Tomlinson that Policy 210 does not create an implied contract limiting NCR's right to terminate his employment at-will. In response, Tom-Tinson argues that the Disclaimer can reasonably be interpreted as merely providing flexibility in determining whether to issue a written warning or to terminate the employee immediately due to the severity or frequency of the misconduct. In either instance, he claims that discipline, including termination, is permitted only for cause.
T41 "[A] clear and conspicuous disclaimer in an employee handbook negates an employee's contention that the employment relationship is other than at will." Hamilton v. Parkdale Care Ctr., Inc.,
1 42 In Hamilton v. Parkdale Care Center, Inc.,
*776 {43 Here, there is no general disclaimer or at-will statement at the introduction of the Manual. Instead, NCR's Corporate Management Policy Number 101 (Policy 101), the first policy in the Manual, ambiguously states, "Policies may provide for varying degrees of flexibility depending upon the specific linkage to company plans and objectives. If flexibility is not explicitly indicated in a policy, it is required that the policy be executed as defined." But the Disclaimer is prominently set forth in a separate text box, in bold font, at the beginning of Policy 210, which is the section of the Manual dealing with "Addressing Misconduct and Improving Performance." This placement is such that "a reasonable employee ought to notice it." See id. at 1112.
1 44 Unlike the Homilton disclaimer, the Disclaimer in this case does not specifically state that employment at NCR is "at-will," nor does it define the voluntary nature of the employment relationship. See id.; accord Johnson v. Morton Thiokol, Inc.,
145 In the context of the facts of this case, we agree with Tomlinson that the disclaimer does not entitle NCR to judgment as a matter of law. The inclusion of at-will statements limited to tactical employees and part-time employees raised a reasonable inference that NCR intended to restrict its right to terminate full-time, core employees only for cause. Tomlinson has raised an issue of material fact concerning his status as *777 a full-time, core employee. Furthermore, the Disclaimer could reasonably be interpreted as providing NCR the flexibility to forgo a written warning for severe or frequent misconduct, but affording no discretion with respect to employee performance plans. Even if NCR were free to deviate from both aspects of Policy 210, nothing in Policy 210 indicates that NCR could also discharge a full-time, core employee who has neither engaged in misconduct nor failed to meet performance expectations. Thus, the Disclaimer does not negate the inference created by the limited application of the express At-Will Statement that the termination of full-time, core employees must be for cause. Under these circumstances, a reasonable jury could find an implied contract limiting NCR's right to terminate Tomlinson at-will. Accordingly, the trial court erred in entering summary judgment against Tomlinson on his wrongful termination claim.
D. The Good Faith Covenant
146 We also conclude that summary judgment is inappropriate on the issue of the Good Faith Covenant. Because the Good Faith Covenant is inherent in any contract, if the Manual established an implied contract, it would be subject to the Good Faith Covenant. See Cabaness v. Thomas,
CONCLUSION
1 47 We affirm the trial court's dismissal of seven of Tomlinson's claims against NCR under rule 12(b)(6) of the Utah Rules of Civil Procedure. However, the trial court erred in granting summary judgment to NCR on Tomlinson's claims that the Manual created an implied contract and that NCR violated the Good Faith Covenant.
€48 Affirmed, in part; reversed and remanded, in part.
Notes
. The trial court also dismissed three of Tomlin-son's claims with prejudice based on Tomlinson's stipulation that they were time barred. Tomlin-son does not challenge the dismissal of these claims on appeal.
. Because we reverse the trial court's grant of summary judgment, we need not address Tomlin-son's claim that the trial court erred in denying his request to alter or amend judgment.
. On appeal, Tomlinson also asserts facts not pleaded in the complaint. Although our review under rule 12(b)(6) of the Utah Rules of Civil Procedure assumes the facts alleged in the Amended Complaint to be true, " 'we need not accept extrinsic facts not pleaded nor need we accept legal conclusions in contradiction of the pleaded facts'" See Osguthorpe v. Wolf Mountain Resorts, LC,
. The alleged malicious intent on the part of NCR falls more appropriately within a claim of malicious prosecution, under which an actor may be liable for initiating or procuring "criminal proceedings against another who is not guilty of the offense charged ... if (a) [the accuser] initiates or procures the proceedings without probable cause and primarily for a purpose other than that of bringing an offender to justice, and (b) the proceedings have terminated in favor of the accused." Restatement (Second) of Torts § 653 (1977); accord Gilbert v. Ince,
. Because we decide this issue under rule 12(b)(6) we need not consider NCR's argument that the claim was barred under the Workers' Compensation Act. See Olsen v. Chase,
. Tomlinson's intentional infliction of emotional distress claim also fails because he has not alleged that he actually suffered extreme emotional distress as a result of NCR's conduct. Compare Schuurman v. Shingleton,
. Because statutory amendments made subsequent to the events alleged in the Amended Complaint are not material to our analysis, we cite the current version of the Utah Code for the convenience of the reader.
. The trial court dismissed Tomlinson's defamation claim as barred by the applicable statute of limitations. Tomlinson does not challenge that decision on appeal.
. In opposition to summary judgment, Tomlin-son also relied on NCR's Corporate Management Policy Number 209 which addresses "Performance Management" and instructs that
[alll NCR Corporation people are to receive a thorough explanation of the results expected from them at the beginning of each performance cycle, interim reviews of progress towards those expected results during the performance period, and a comprehensive appraisal of their performance in relation to those expectations at the close of each performance period.
. Although NCR also claims that Tomlinson was not aware of the policy during his employment, we decline to consider this argument because it is raised for the first time on appeal. See State v. Moa,
. NCR argues that Policy 422 was adopted four years before Tomlinson was hired, but does not indicate that it was subsequently revoked or amended.
. NCR's Corporate Management Policy Numbers 101 and 102 contain general provisions defining "policy development," "deviations from corporate management policies," and the distinction between policies and procedures.
. Other jurisdictions have held that a clear and conspicuous contract disclaimer can prevent an employee manual from limiting an employer's right to terminate its employees, even in the absence of a corresponding at-will statement, when the language is clear and definitive. See McCloud v. United Parcel Serv., Inc.,