Rackley v. Fairview Care Centers, Inc.

2001 UT 32, 23 P.3d 1022, 418 Utah Adv. Rep. 28, 17 I.E.R. Cas. (BNA) 895, 2001 Utah LEXIS 57

• Court: Utah Supreme Court
• Decided: April 6, 2001
• Docket: 990044
• Status: Published

Opinions

HOWE, Chief Justice:

INTRODUCTION

T1 We granted certiorari to review the decision of the court of appeals holding that defendant did not violate a clear and substantial public policy when it terminated plaintiff's employment. See Rackley v. Fairview Care Ctrs., Inc., 970 P.2d 277, 282 (Utah Ct.App.1998).

BACKGROUND

T2 On November 1, 1998, plaintiff Cathleen L. Rackley began working as an at-will employee for defendant Fairview Care Centers, Inc., as the administrator of a nursing home known as Fairview West. In that capacity, she made suggestions to management and took steps to bring the care facility into compliance with both federal and state law. For example, plaintiff implemented changes in payroll so that if a payday fell on a weekend or holiday, employees would be paid the first prior working day. Additionally, she informed employees that by law they were entitled to a Hepatitis B vaccination at Fair-view's expense. Plaintiff also instituted changes in employee scheduling, food service, laundry service, and in the basic cleanliness, organization, and efficiency of Fairview West.

13 Sometime in February 1994, Karleen Merkley, the manager responsible for resident funds at Fairview West, informed most of the members of the staff that a check for $720 from the Veteran's Administration was expected to arrive for resident Ms. Mellen, and that Ms. Mellen was not to be notified when it came. Plaintiff was not informed of that prohibition. Sharon Mellen, Ms. Mel-len's daughter-in-law who had been aiding Ms. Mellen in managing her financial affairs for many years, had requested that Ms. Mel-len not be told about the money because she feared Ms. Mellen would try to use it to move out of Fairview West and attempt to live on her own. Sharon wanted to inform Ms. Mellen of the check's arrival personally and to convince her to use the money to purchase a new wheelchair.

{4 In the latter part of February, upon notification that the check had arrived, Sharon went to Fairview West, signed an authorization form in the presence of a witness, and took the check and deposited it in Ms. Mel-len's personal bank account.¹ Soon thereafter, plaintiff became aware that the check had arrived and had been picked up by Sharon. She notified Ms. Mellen of that fact. Ms. Mellen was upset that she had not been informed of the check's arrival or subsequent deposit and consequently requested that plaintiff contact Sharon on her behalf.

15 There is some dispute about the content of the phone call to Sharon. Plaintiff contends that she simply told Sharon she had notified Ms. Mellen of the arrival of the check and expressed concern about the impropriety of keeping the information from Ms. Mellen. Plaintiff asserts that Sharon "screamed" at her for telling Ms. Melien about the money because "she was promised that nobody would find out about the money, that Karleen had talked to her and nobody should find out about it." Sharon contends that plaintiff called her at her place of work, yelled at her over the phone, and accused her of dishonesty and improper conduct. She stated, "[all she did was kept telling me, you're stealing Ms. Mellen's money, you can't do that, you need to turn it-return the money to Fairview West.... She was very unprofessional. - She had me in tears." Plaintiff did not then notify Joseph Peterson, owner and general manager of Fairview, of what had transpired or request investigation by any outside authority.²

16 Shortly thereafter, Sharon contacted Peterson and told him her version of what had happened. Peterson then arranged a meeting with plaintiff, Merkley, and Sallie Maroney (the manager of Fairview East) to discuss the incident. At that meeting, Merk-ley and Maroney received written reprimands for failing to tell Ms. Mellen about the check, and a new official policy was instituted requiring that residents be informed of all their incoming funds, regardless of who assisted them with their financial affairs. Plaintiff was reprimanded for calling Sharon at work. Peterson said he would arrange an appointment with Sharon, Maroney, plaintiff, and himself to discuss the incident. The meeting was then adjourned. .

T7 Days later, Peterson again called plaintiff into a meeting where he indicated that he was considering terminating her over the Mellen incident. While there is some confusion over what happened next, the parties have stipulated that for purposes of this case, plaintiff was terminated by Fairview.³ Rackley filed this action, claiming she was wrongfully discharged in violation of public policy.

T8 After a bench trial, the court held that a clear and substantial public policy of notifying care facility residents of the arrival of their funds had been implicated and that notifying Ms. Mellen and contacting Sharon were actions furthering such policy. On appeal, the court of appeals reversed the trial court's judgment, holding that notifying care facility residents of the arrival of their personal funds is not required by any clear and substantial public policy, and therefore, terminating plaintiff was within Fairview's discretion under the employment-at-will doe-trine. See Rackley, 970 P.2d at 282. We granted certiorari. This court has jurisdiction over this matter pursuant to section 78-2-2(8)(a) of the Utah Code.

ANALYSIS

T9 The parties dispute the precise issue before us. Fairview contends that the key issue is whether notification to care center residents of the arrival of their personal funds is a clear and substantial public policy. Plaintiff disagrees and asserts that the policy at issue is not the extremely narrow policy of notifying residents of the arrival of their funds, but the broader right of residents to manage their own financial affairs. Plaintiff asserts that the court of appeals's narrow interpretation of the policy at issue erroneously requires that "all the specifics of a given - employment - termination - seenario would have to be most specifically anticipated by constitutional provision, statute, or regulation in order [for] a claim for wrongful termination for violation of public policy [to] succeed." '

I 10 We have held in the past that mate reliance on a public policy exeeption to the at-will rule requires an attempt to identify the proper sources of public policy and the principles which underlie it." Berube v. Fashion Ctr., Ltd., 771 P.2d 1033, 1042-43 (Utah 1989). We agree with plaintiff that if we were to require the law to be so specifically tailored, the public policy exception would be meaningless. Thus, we hold that the proper issue before us is whether a care facility resident's right to manage her own funds constitutes a clear and substantial pub-lie policy.

On certiorari, we review the decision of the court of appeals, not that of the trial court. See Lysenko v. Sawaya, 2000 UT 58, ¶ 15, 7 P.3d 783. Whether a clear and substantial public policy exists supporting a wrongful discharge claim based on an employer's violation of that policy is a question of law. We review the court of appeals's conclusions of law for correctness and afford them no deference. See Bear River Mut. Ins. Co. v. Wall, 1999 UT 33, ¶ 4, 978 P.2d 460.

112 Under Utah law, an employment relationship entered into for an indefinite period of time is presumed to be at-will and gives rise to a contractual arrangement where the employer or the employee may terminate the employment for any reason, exeept as provided by law. See Ryan v. Dan's Food Stores, Inc., 972 P.2d 395, 400 (Utah 1998); Fox v. MCI Communications Corp., 931 P.2d 857, 859 (Utah 1997); Brehany v. Nordstrom, Inc., 812 P.2d 49, 53-55 (Utah 1991); Berube, 771 P.2d at 1044; Bihlmaier v. Carson, 603 P.2d 790, 792 (Utah 1979). Both parties in this case agree that plaintiff was an at-will employee of Fairview. Thus, under ordinary cireumstances, plaintiff could have been terminated for any reason and at any time.

113 However, there are exceptions to the at-will presumption. An at-will employee may overcome the at-will presumption by showing: "'(1) there is an implied or express agreement that the employment may be terminated only for cause or upon satisfaction of another agreed-upon condition; (2) a statute or regulation restricts the right of an employer to terminate an employee under certain conditions; or (8) the termination of employment constitutes a violation of a clear and substantial policy'" Burton v. Exam. Ctr. Indus. & Gen. Med. Clinic, Inc., 2000 UT 18, ¶6, 994 P.2d 1261 (quoting Fox, 931 P.2d at 859); see also Ryan, 972 P.2d at 400; Retherford v. AT & T Communications, 844 P.2d 949, 958-59 (Utah 1992) (implied or express agreement and public policy exeeptions); Heslop v. Bank of Utah, 839 P.2d 828, 836-38 (Utah 1992) (implied or express agreement exception); Peterson v. Browning, 832 P.2d 1280, 1281 (Utah 1992) (public policy exception); Hodges v. Gibson Prods. Co., 811 P.2d 151, 165 (Utah 1991) (same). "Employers have a duty not to terminate any employee, 'whether the employee is at-will or protected by an express or implied employment contract,' in violation of a clear and substantial public policy." Ryan, 972 P.2d at 404 (quoting Retherford, 844 P.2d at 960). If an employer breaches this duty, the terminated employee has a cause of action in tort against the employer. See Ryan, 972 P.2d at 404; Fox, 931 P.2d at 860; Retherford, 844 P.2d at 959; Peterson, 832 P.2d at 1283-86.

{14 To succeed on a wrongful discharge claim for violation of such a public policy, plaintiff must satisfy a four-pronged test. Plaintiff must prove that (1) her employment was terminated; (2) a clear and substantial public policy existed; (8) the plaintiff's conduct implicated that clear and substantial public policy; and (4) the termination and conduct in furtherance of the public policy are causally connected. See Ryan, 972 P.2d at 404; Heslop, 839 P.2d at 837; Wilmot v. Kaiser Aluminum & Chem. Corp., 118 Wash.2d 46, 821 P.2d 18, 28-29 (1991). Because Fairview concedes for purposes of this case that plaintiff was terminated, we move directly to the second prong.

I. CLEAR AND SUBSTANTIAL PUBLIC POLICY

115 The public policy exception to the employment at-will presumption is much narrower than traditional notions of public policy. See Ryan, 972 P.2d at 405. Only "clear and substantial public policies will support a claim of wrongful discharge in violation of public policy." Ryan, 972 P.2d at 404; see also Peterson, 832 P.2d at 1282. The nature and scope of what constitutes a "clear and substantial" public policy, however, is not always easily discernible. See, eg., Patton v. United States, 281 U.S. 276, 306, 50 S.Ct. 253, 74 L.Ed. 854 (1980) ("The truth is that the theory of public policy embodies a doctrine of vague and variable quality...."). "In Utah, we have frequently invoked the concept of public policy without articulating precisely its origin or definition." Berube 771 P.2d at 1042; see also Fox, 931 P.2d at 860 (stating that "a more precise definition of the term must await the time when this Court has had sufficient experience with a number of cases"); Peterson, 832 P.2d at 1282 ("'The identification of clear and substantial public policies will require case-by-case development.").

1 16 Our prior cases in this area provide us with some general governing principles. We have stated that a public policy is "clear" if it is plainly defined by one of three sources: (1) legislative enactments; (2) constitutional standards; or (8) judicial decisions. See Dixon v. Pro Image Inc., 1999 UT 89, ¶ 31, 987 P.2d 48 (citing Ryan, 972 P.2d at 405); Hodges, 811 P.2d at 165-66; see also Burton, 2000 UT 18 at ¶ 6, 994 P.2d 1261 (stating that "declarations of public policy can be found in constitutions and statutes"). For example, we have held that the enforcement of a state's criminal code that reflects Utah policy constitutes a clear and substantial public policy. See Peterson, 832 P.2d at 1283 (holding that employer who fired employee for refusing to feloniously provide false information on tax forms could be held liable for wrongful termination); Hodges, 811 P.2d at 166-68 (holding that discharged employee had action for wrongful termination where employee was fired for refusing to accede to extortionate demands by employer).

117 We have also held that a pub-lie policy is "substantial" if it is of "overreaching importance to the public, as opposed to the parties only." Ryan, 972 P.2d at 405. "[Wle must ... inquire whether the discharge is against public policy and affects a duty which inures to the benefit of the public at large rather than to a particular employer or employee." Foley v. Interactive Data Corp., 47 Cal.3d 654, 254 Cal.Rptr. 211, 765 P.2d 373, 379 (1988); see, eg., Fox, 931 P.2d at 861-862 (holding that retaliatory termination for reporting possible criminal conduct of co-workers to employer does not give rise to a violation of substantial public policy). Statutes that simply regulate conduct between private individuals or impose requirements whose fulfillment does not implicate fundamental public policy concerns are not sufficient to require an exeeption to the at-will presumption. See id. As we stated in Ryan:

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.

972 P.2d at 405.

118 It is important to note, however, that "not every employment termination that has the effect of violating some public policy is actionable." Fox, 981 P.2d at 860. "[EJven those principles which are widely held values may not be sufficient to justify wrongful termination recovery." Berube, 771 P.2d at 1048. This court "'recognizes the importance of keeping the scope of the public policy exception narrow to avoid unreasonably eliminating employer discretion in discharging employees'" Dixon, 1999 UT 89 at ¶ 31, 987 P.2d 48 (quoting Ryan, 972 P.2d at 405); see also Peterson, 832 P.2d at 1285-86 (Howe, A.C.J., concurring) (" 'The public policy exception is narrow enough in its seope and application to be no threat to employers who operate within the mandates of the law.... Such employers will never be troubled."). We have held, and continue to ensure, that "public policies [are construed] narrowly and will [protect] only those principles which are so substantial and fundamental that there can be virtually no question as to their importance for promotion of the pub-lie good." Berube, 771 P.2d at 1043.

119 "Legitimate reliance on a public policy exception to the at-will rule requires an attempt to identify the proper sources of public policy and the principles which underlie it." Id. at 1042-48. The court of appeals found that the following constitutional and statutory provisions did not provide grounds for a finding of clear public policy: (1) article I, sections 1 and 27 of the Utah Constitution; (2) federal and state ombudsman provisions provided in 42 U.S.C. § 8058g(a)(8) and (5) and sections 62A-3-201 to -202 of the Utah Code; and (8) 42 U.S.C. § 1396r(c)(6), R482-150-4 of the Utah Administrative Code, and 42 C.E.R. § 483.10.⁴ We address each in turn.

A. Article I, Sections 1 and 27 of the Utah Constitution

120 Plaintiff first asserts that two provisions in the Utah Constitution form the basis of a clear public policy. Article I, section 1 of the Utah Constitution provides in pertinent part that "(alll men have the inherent and inalienable right to ... acquire, possess and protect property...." Article I, seetion 27 provides that "[fIrequent recurrence to fundamental principles is essential to the security of individual rights and the perpetuity of free government." While these two provisions .do protect the right to acquire, possess, and protect property, they do not enunciate the narrow type of policy envisioned by our case law ereating the public policy exception. The right of a care facility resident to manage her own funds is not "plainly defined by ... [these] constitutional standards." Ryan, 972 P.2d at 405.

B. 42 USC. $ 3058g(a)(8) and (5), and Utah Code Ann. §§ 62A-3-201 to -208

11 21 Next, plaintiff contends that 42 U.S.C. § 3058g(a)(8) and (5), and sections 62A-3-201 to -208 of the Utah Code also plainly define such a public policy.⁵ Plaintiff specifically points to subsections (a)(3)⁶ and (a)(5)⁷ in support of her position. However, subsections (a)(8) and (a)(5) are devoid of any language relating to a resident's right to manage her funds. While these provisions broadly discuss the duty of the ombudsman to monitor and protect the rights of care facility residents, they in no way state a narrow and clear public policy necessary for an exception to the at-will rule. This statute governs the duties and functions of the office of the ombudsman and its representatives and entities, and in no way enunciates rights of care facility residents.

[ 22 Similarly, we find sections 62A-3-201 and -202 of the Utah Code unavailing. The stated purpose of these provisions "is to establish within the division [of Aging and Adult Services] the [Utah] long-term care ombudsman program for the aging ... and identify duties and responsibilities of that program ... in order to address problems relating to long-term care." Utah Code Ann. § 62A-3-201 (2000). In pertinent part, the ombudsman is to address the difficulties of the aging citizens of the state by assisting in asserting their civil and human rights as residents of care facilities through legal means. See id. We similarly find this language too broad to constitute a clear and substantial specific public policy.

C. 42 U.S.C. § 1896r(c)(6), Utah Admin. Code R482-150-4 and 42 C.F.R. § 488.10

%23 Next, plaintiff contends that 42 U.S.C. § 18396r(c)(6), R432-150-4 of the Utah Administrative Code and 42 C.F.R. § 483.10 provide a clear basis for her public policy claim. First, 42 U.S.C. § 1396r, which governs the requirements care facilities must meet to obtain grants for medical assistance programs, provides that "[the nursing facility ... may not require residents to deposit their personal funds with the facility." 42 U.S.C. § 18396r(c)(6)(A)(i). Subsection (c)(6) includes guidelines for how care facilities are to manage resident funds when management of such funds has been authorized by the resident. Although not clearly stated, this section could imply that care facility residents have the right to manage their own financial affairs. In the past we have held that we may look beyond the provision in question to determine whether the motivating policy behind it constitutes a clear and substantial public policy. See, eg., Heslop, 839 P.2d at 837 (finding that the "general" purposes of the Utah Financial Institutions Act constitute a clear and substantial public policy). However, we conclude that a mere hint to such an underlying policy, as is the case here, is insufficient to constitute the type of clear and substantial policy necessary to establish an exception to the employment-at-will doctrine. Thus, we hold that 42 U.S.C. § 1396r(c)(6) does not rise to the level of a clear public policy.

24 Rule 482-150-4.400 of the Utah Administrative Code provides that "Itlhe resident has the right to maintain his financial affairs and the facility may not require a resident to deposit his personal funds with the facility." Utah Admin. Code R82-150-4400 (1994). Both of these sections plainly state that care facility residents have the right to manage their own finances.

125 Additionally, 42 C.F.R. § 483.10, governing resident rights that must be recognized by long-term care facilities, provides the most detailed and applicable provision. It states:

The resident has a right to a dignified existence, self-determination, and communication with and access to persons and services inside and outside the facility. A facility must protect and promote the rights of each resident, including ... the right to manage his or her financial affairs, and the facility may not require residents to deposit their personal funds with the facility.

42 C.F.R. § 488.10(c). This regulation explicitly states that care facility residents have the right to manage their own funds.

126 However, we have earlier pointed out that a clear public policy must be found in our statutes or constitutions, see Burton, 2000 UT 18 at ¶ 6, 994 P.2d 1261; Peterson, 832 P.2d at 1282; Hodges, 811 P.2d at 165-66; Berube, 771 P.2d at 1043, or judicial decisions, see Hodges, 811 P.2d at 165; Berube, 771 P.2d at 1043. The provision in 42 C.F.R. § 483.10 is an executive agency regulation that governs practice and procedure before federal administrative agencies. Similarly, R432-150-4.400 is a provision in the Utah Administrative Code.

127 Administrative regulations by their very nature are not "substantial" under our case law. The character of the public policy exception is that it furthers policies that "protect the public or promote public interest." Berube, 771 P.2d at 1048. Agency regulations are created by the agencies themselves and are tailored to govern specific ageney needs. The public policy exception must be " 'narrow enough in its scope and application to be no threat to employers who operate within the mandates of the law and clearly established public policy as set out in the duly adopted laws.!" Peterson, 832 P.2d at 1285 (Howe, A.C.J., concurring) (citation omitted). Thus, we hold that while 42 C.E.R. § 483.10 and R482-150-4.400 of the Utah Administrative Code expressly state that care facility residents have the right to manage their own funds, our case law does not allow for administrative regulations alone to constitute expressions of clear public policy.⁸

11 28 In so holding, we recognize that care facility residents are often at the mercy of the facilities in which they reside. Residents face many challenges as their mobility decreases and their ability to take care of themselves physically, mentally, and emotionally deteriorates. However, while we agree with plaintiff that "[the rights of nursing home residents, especially with the increasing longevity of Utah residents and the growth of Utah's population, are a matter of most significant public concern," we also recognize the reality that many residents, while remaining in control of their funds, voluntarily seek the assistance of family members or friends with their banking and spending decisions. That appears to have been the situation in the instant case. Such efforts by honest and helpful advisors should be encouraged and not discouraged by rigid, government-imposed requirements.

II. CONDUCT IMPLICATING A CLEAR AND SUBSTANTIAL PUBLIC POLICY

129 Because we do not find that a clear public policy has been enunciated by statute, constitutional provision, or judicial decision, we need not address whether plaintiff in notifying Ms. Mellen of the arrival of her funds, or calling Sharon at work and questioning the propriety of her removing those funds from Fairview West, constituted conduct in furtherance of that policy. Neither need we determine whether such conduct was causally related to plaintiffs termination. Thus, defendant did not violate the law in terminating plaintiff because of her involvement in the Mellen incident.

CONCLUSION

130 After careful review, we hold that defendant did not violate a clear public policy in terminating plaintiffs employment. We therefore affirm the court of appeals.

1 31 Associate Chief Justice RUSSON, Justice DURRANT, and Judge EYRE concur in Chief Justice HOWE'S opinion. 1 32 Having disqualified himself, Justice WILKINS does not participate herein; District Judge Donald EYRE, Jr. sat.

1 . While Ms. Mellen had not signed over full control of her funds to Sharon, Sharon had signature authority on Ms. Mellen's account. Sharon did not have power of attorney over Ms. Mellen's funds before or during the events in question. Ms. Mellen had signed a document stating: 'To whom it may concern, I hereby certify that Sharon Mellen has authorization to assist me in managing my personal needs allowance funds." The document had originally provided that "Fairview Care Center" was to assist Ms. Mellen in her financial matters, but had been crossed out to read "Sharon Mellen" instead. We would be faced with a different situation had Ms. Mellen given written authorization to Fair-view to manage her money, as both federal and state laws provide guidelines for managing resident monies.

2 . After her termination, Rackley contacted the Utah Department of Heath and Safety and the Office of the Ombudsman about the situation.

3 . Conflicting testimony was given at trial as to whether Peterson fired plaintiff or whether he changed his mind and decided to keep her as the Fairview West administrator and she quit.

4 . The provisions referred to in this opinion are in their most current form, as they have not been substantially altered since the commencement of this action.

Additionally, plaintiff asserts that we should consider 42 U.S.C. § 1395i-3(c)(6) in making our determination. This provision was not addressed by either the trial court or the court of appeals, and plaintiff has failed to brief why we should consider it on this review. Rule 24 of the Utah Rules of Appellate Procedure provides that the brief of the appellant "shall contain the contentions and reasons of the appellant with respect to the issues presented...." Utah R.App.P. 24(a)(9). Issues that do not comply with our briefing rules may be disregarded. See MacKay v. Hardy, 973 P.2d 941, 949 (Utah 1998). Regardless, we do not believe this section presents any information not already contained within the sections properly before us. We therefore address only those sections addressed by the trial court and court of appeals.

5 . In general, 42 U.S.C. § 3058g provides that in order to receive federal funding for state long-term care ombudsman programs, states must meet certain requirements, including appointing an ombudsman and establishing an official office of the ombudsman. See 42 U.S.C. § 3058(a)(1), (2).

6 . Subsection (a)(3) provides in relevant part the functions of the ombudsman. Under this subsection, the ombudsman is to provide services to assist care facility residents in protecting their rights and investigate complaints as to actions and decisions that may adversely affect the rights of residents by long-term care providers. See 42 U.S.C. § 3058g(@)(3)(A)(i)(I), (a)(3)(B). The ombudsman is also to monitor and analyze developments under both state, federal, and local laws that pertain to the rights of care facility residents. See (a)(3)(G)@).

7 . Subsection (a)(5) provides in relevant part that individuals designated as local ombudsman entities or representatives are to provide services to protect the health, safety, welfare, and rights of residents, see (a)(5)(B)(i), identify and investigate complaints made by or on behalf of residents that relate to actions or decisions that may affect the rights of residents, see (a)(5)(B)(iii), and review and comment upon existing or proposed laws or regulations that pertain to the rights and well-being of residents, see (a)(5)(B)(v).

8 . We do not hold that an administrative regulation may not provide support to a legislatively or judicially created public policy.