2014 UT App 205
_________________________________________________________
THE UTAH COURT OF APPEALS
SUSAN NELSON,
Plaintiff and Appellant,
v.
TARGET CORPORATION,
Defendant and Appellee.
Opinion
No. 20121059-CA
Filed August 28, 2014
Third District Court, Salt Lake Department
The Honorable Royal I. Hansen
No. 110908898
Lincoln W. Hobbs and Sarah H. Orme, Attorneys
for Appellant
Robert O. Rice and Liesel B. Stevens, Attorneys
for Appellee
JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGE
GREGORY K. ORME and SENIOR JUDGE PAMELA T. GREENWOOD
concurred.1
ROTH, Judge:
¶1 This case involves several claims arising from Target
Corporation’s decision to terminate its employment of Susan
Nelson for taking a customer’s wallet. Nelson sued Target for
breach of contract, negligent and intentional infliction of
1. The Honorable Pamela T. Greenwood, Senior Judge, sat by
special assignment as authorized by law. See generally Utah Code
Jud. Admin. R. 11-201(6).
Nelson v. Target Corporation
emotional distress, and defamation. Each claim hinged in part on
Nelson’s assertion that Target conducted a deficient
investigation, basing its decision to terminate her solely on video
surveillance footage of the incident. The district court granted
Target summary judgment on each claim. It concluded that
Nelson was an at-will employee who could be terminated for
any reason, that Nelson had failed to identify any outrageous
behavior during the investigation that caused her emotional
distress, and that any alleged defamatory statements made
during the investigation were shielded by a conditional
privilege. The court also denied Nelson’s rule 56(f) motion for
additional discovery and her request to add a claim for breach of
the covenant of good faith and fair dealing. We affirm.
BACKGROUND
¶2 Nelson began working at a Target retail store in Orem,
Utah, in January 1997. When she was hired, Nelson signed an
acknowledgment form confirming that she had read Target’s
team member handbook (the handbook). According to the
handbook, each new employee had a ninety-day learning period:
The first 90 days are when you learn your
responsibilities and get acquainted with your
fellow team members. It’s a chance for you and
Target to see whether we make a good fit, whether
you’re happy with your job and if your Team
Leader is happy with your performance. If not,
either you or Target may decide your employment
shouldn’t continue beyond this 90-day learning
period.
¶3 But the handbook also stated that all Target employees
‚are ‘at-will’ team members, which means that team members
can terminate the employment relationship at any time, for any
or no reason,‛ and ‚Target reserves the same right.‛ The
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Nelson v. Target Corporation
handbook instructed employees that they ‚should not . . .
interpret any verbal or written statement, policies, practices or
procedures, including this handbook, as altering their ‘at-will’
status.‛ And the handbook further provided that it was ‚not a
contract‛ and ‚doesn’t guarantee . . . employment for any
particular length of time, or limit how employment may end.‛
¶4 Nelson was fired on February 25, 2011, after Target
security officers determined that she took a customer’s wallet.
The customer had contacted Target’s security department on
February 18 to report that her wallet was missing and that she
may have left it at a checkout lane after paying for her groceries.
Target’s security team reviewed the store’s video surveillance
footage to determine what had happened. Video footage from a
checkout location showed Nelson putting the customer’s wallet
in her purse. In the video, Nelson, who was shopping after her
shift ended that day, takes her own wallet out of her purse to
pay for groceries. Nelson notices another wallet a previous
customer apparently left at the checkout stand near the credit
card reader, glances at the cashier as the cashier turns away,
picks up the customer’s wallet with her right hand while her
own wallet is still in her left, and quickly places it in her purse,
which is in the shopping cart next to her. Nelson then finishes
paying for her groceries with her own wallet still in her hand,
puts her wallet back in her purse on top of the customer’s wallet,
and leaves the store.
¶5 A Target security officer called Nelson at home after
reviewing the video. Nelson confirmed that she had the wallet,
and the security officer asked her to return it. The officer stated
in a deposition that Nelson seemed surprised by his question
and returned the wallet within ten minutes. Nelson claimed that
she put the wallet in her purse because she mistook it for her
own.
¶6 Jason Turner, Target’s store security chief, investigated
the wallet incident. He interviewed the security officer and
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Nelson v. Target Corporation
viewed several store surveillance videos of the event. After
reviewing ‚the video over and over and over again to eliminate
any of the possibilities that it could have been an accident,‛
Turner concluded that there was ‚no way‛ Nelson could have
taken the wallet by mistake.
¶7 Turner interviewed Nelson about the incident on
February 25, 2011. As required by company policy, a human
resources representative was also present at the interview. After
some initial questioning, Turner left the room to allow Nelson
time to complete a written statement explaining why she took
the wallet. Nelson wrote that she took the wallet inadvertently
and did not realize she had it until she went home. Turner
returned, reviewed Nelson’s statement, listened to Nelson
explain her version of the incident, and told Nelson he did not
believe her. After Nelson refused to amend her written
statement, Turner left the room and returned with a supervisor
who informed Nelson that Target was dismissing her.
¶8 In April 2011, Nelson sued Target for breach of contract,
negligent and intentional infliction of emotional distress, and
defamation. In the complaint, Nelson alleged that ‚she
inadvertently picked up a wallet, resembling her own,‛ and
‚immediately returned‛ it when she realized her mistake. She
further alleged that Turner ‚interrogated *her+ at length and
repeatedly accused *her+ of being dishonest‛ even though he
knew or should have known that Nelson was telling the truth.
Nelson claimed that Turner’s questioning caused her ‚to suffer
emotional distress,‛ that Turner ‚communicated to third persons
. . . information that was untruthful and harmful to *Nelson’s+
business reputation,‛ and that Target ‚violated the express and
implicit terms of *Nelson’s+ contract of employment that she
would be treated fairly in connection with her termination.‛
¶9 Target moved for summary judgment on all of Nelson’s
claims. Nelson opposed the motion, filed a rule 56(f) motion
requesting leave to depose two additional witnesses, and moved
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Nelson v. Target Corporation
to amend her complaint to add a claim for breach of the
covenant of good faith and fair dealing. The court granted
Target’s motion for summary judgment on each claim. The court
observed that the handbook ‚explicitly includes an at-will
disclaimer‛ and that Nelson had not identified any ‚specific
manifestation of an intent to change the terms of her at-will
employment.‛ With respect to the emotional distress claim, the
court concluded that ‚the facts do not demonstrate any conduct
by [Target], or [its] agent, Mr. Turner, so outrageous and
intolerable that it would offend accepted standards of morality
and decency.‛ Finally, the court determined that any allegedly
defamatory statements were shielded by a ‚conditional
privilege‛ that applied while Target conducted its internal
investigation of the wallet’s disappearance and that Nelson
could not demonstrate that Target abused that privilege.
¶10 The district court also denied Nelson’s rule 56(f) motion
because ‚there was adequate time to conduct the discovery
sought during the discovery period‛ and ‚Nelson has failed to
show that the additional discovery sought would uncover
disputed material facts.‛ Finally, the court denied Nelson’s
motion to amend, concluding that the ‚amendment would be
futile because the covenant of good faith and fair dealing cannot
be construed to change an indefinite-term, at-will employment
contract into a contract that requires an employer to have good
cause to justify a discharge.‛ (Citation and internal quotation
marks omitted.)
ISSUES AND STANDARDS OF REVIEW
¶11 Nelson raises three issues on appeal. First, she argues that
the district court improperly granted Target’s motion for
summary judgment because ‚factual issues existed‛ on each of
her claims. We review the district court’s decision to grant or
deny summary judgment for correctness, viewing ‚the facts and
all reasonable inferences drawn therefrom in the light most
20121059-CA 5 2014 UT App 205
Nelson v. Target Corporation
favorable to the nonmoving party.‛ Orvis v. Johnson, 2008 UT 2,
¶ 6, 177 P.3d 600 (citation and internal quotation marks omitted).
¶12 Second, Nelson argues that her motion to amend should
have been granted because her proposed claim for breach of the
covenant of good faith and fair dealing ‚would have withstood a
motion to dismiss.‛ ‚Whether to grant or deny a motion to
amend is a matter within the broad discretion of the trial court
and we [will not] disturb its ruling unless [the appealing party]
establishes an abuse of discretion resulting in prejudice.‛ Pride
Stables v. Homestead Golf Club, Inc., 2003 UT App 411, ¶ 11, 82
P.3d 198 (alterations in original) (citation and internal quotation
marks omitted). Here, however, the district court denied
Nelson’s motion to amend as futile, concluding that the
proposed amendment would not survive a motion to dismiss.
‚Whether a claim can withstand a motion to dismiss is a
question of law, and we therefore review the trial court’s
underlying determination regarding the legal sufficiency of the
claim for correctness.‛ Shah v. Intermountain Healthcare, Inc., 2013
UT App 261, ¶ 6, 314 P.3d 1079.
¶13 Finally, Nelson contends that the court ‚abused its
discretion by denying [her] rule 56(f) motion for additional time
to complete discovery.‛ We review the decision to deny a rule
56(f) motion for ‚an abuse of discretion,‛ and we will not disturb
the district court’s ruling unless ‚the denial of the motion
exceed*s+ the limits of reasonability.‛ Petersen v. Riverton City,
2010 UT 58, ¶ 25, 243 P.3d 1261 (alteration in original) (citation
and internal quotation marks omitted).
ANALYSIS
¶14 We conclude that the district court correctly determined
that Target was entitled to summary judgment on each of
Nelson’s claims. We also conclude that the motion to amend was
20121059-CA 6 2014 UT App 205
Nelson v. Target Corporation
futile and that the court did not abuse its discretion when it
denied Nelson’s rule 56(f) motion.
I. Summary Judgment
¶15 Nelson challenges the district court’s decision to grant
Target’s motion for summary judgment on her claims for breach
of contract, intentional infliction of emotional distress, 2 and
defamation. ‚Summary judgment is proper where ‘there is no
genuine issue as to any material fact and . . . the moving party is
entitled to a judgment as a matter of law.’‛ Jones & Trevor Mktg.,
Inc. v. Lowry, 2012 UT 39, ¶ 25, 284 P.3d 630 (omission in
original) (quoting Utah R. Civ. P. 56(c)). ‚Generally, the party
moving for summary judgment must make an initial showing
that he is entitled to judgment and that there is no genuine issue
of material fact that would preclude summary judgment in his
favor.‛ Id. ¶ 29. Once that showing is made, ‚the
burden . . . shifts to the nonmoving party to show that there is a
genuine issue of material fact or a deficiency with the moving
party’s legal theory that would preclude summary judgment.‛
Id. We agree with the district court that Nelson failed to meet her
burden on each of her three claims.
2. In her complaint, Nelson alleged both intentional and
negligent infliction of emotional distress, which are distinct
claims with different elements. See Anderson Dev. Co. v. Tobias,
2005 UT 36, ¶ 57, 116 P.3d 323 (‚Unlike a claim for intentional
infliction of emotional distress, a claim for negligent infliction of
emotional distress does not require proof of outrageous
conduct.‛). But on appeal, Nelson does not argue that the court
improperly dismissed her negligent infliction claim, so we do
not address it.
20121059-CA 7 2014 UT App 205
Nelson v. Target Corporation
A. Breach of Contract
¶16 With respect to the breach of contract claim, Nelson
argues that ‚Target’s handbook, as well as its counseling and
corrective action policies, create ambiguities in Target’s
employment policies which raise a factual question as to
whether Nelson’s employment was, in fact, at will.‛ Specifically,
she points to the ‚90-day learning period‛ outlined in the
handbook and three other paragraphs that she argues create an
‚implied-in-fact‛ employment contract.3 According to Nelson,
page six of the handbook states, ‚[W]e treat each other with
respect so our guests always get a good feeling when they show
up at Target.‛ And page twenty-three describes an ‚Open Door
Policy,‛ which expresses Target’s belief ‚in two-way
communication and fair dealing.‛ It further instructs employees
to ‚ask *their+ Team Leader‛ if they have ‚any questions or
difficulties on the job‛ and assures that the ‚door is always open
to [employees] and what [they] have to say.’‛ Nelson also claims
that the handbook describes Target’s ‚counseling and corrective
action policies,‛ where ‚*v+arious matters are set forth . . . for
which employees can be terminated immediately, others for
which they are to be counseled, and for which they get a final
warning.‛ Finally, Nelson cites her own deposition testimony
that she believed that ‚if *she+ was a good employee and did the
work that [she] was supposed to do, then [she] would remain
employed at Target.‛ Nelson does not allege that Target
management made any verbal statements altering her at-will
employment status. After carefully reviewing all the pertinent
evidence in the record, we conclude that the district court did
not err in concluding as a matter of law that Nelson was an at-
will employee and that Target did not breach any contractual
obligation in terminating her employment.
3. None of the handbook sections Nelson cites are in the record.
In fact, the only handbook provision in the record is the at-will
(continued...)
20121059-CA 8 2014 UT App 205
Nelson v. Target Corporation
¶17 Utah law presumes ‚that all employment relationships
entered into for an indefinite period of time are at-will, which
means that an employer may terminate the employment for any
reason (or no reason) except where prohibited by law.‛
Tomlinson v. NCR Corp., 2013 UT App 26, ¶ 29, 296 P.3d 760
(citation and internal quotation marks omitted), cert. granted, 304
P.3d 469 (Utah 2013). An employee can overcome that
presumption with ‚proof that the parties entered into an implied
or express agreement that the employment may be terminated
only for cause or upon satisfaction of another agreed-upon
condition.‛ Id. (citation and internal quotation marks omitted).
‚Relevant evidence of the intent‛ to enter into such an
agreement ‚usually includes the language of the [employee]
manual itself, the employer’s course of conduct, and pertinent
oral representations.‛ Id. ¶ 33 (citation and internal quotation
marks omitted). In Tomlinson, we concluded that there was a
factual dispute about whether the plaintiff—who claimed to be a
‚full-time, core employee‛—was an at-will employee. Id. ¶ 36.
We noted that even though the company’s employee manual
‚expressly designate*d+‛ two classes of its employees ‚as
terminable at-will,‛ the manual did ‚not include an at-will
statement directed at full-time, core employees.‛ Id. We also
observed that despite the manual’s disclaimer that employee
disciplinary guidelines ‚are not intended to be contractual in
disclaimer that Target submitted in support of its motion for
summary judgment. The breach of contract claim therefore may
not have survived summary judgment based on Nelson’s failure
to support it with admissible evidence. See Poteet v. White, 2006
UT 63, ¶ 7, 147 P.3d 439 (‚If a motion for summary judgment is
supported by [admissible evidence in the record], in order to
raise a dispute of fact, a nonmoving party must use evidence
from these same types of sources.‛). We will nevertheless
assume that the handbook contains these sections because Target
has not disputed that they exist.
20121059-CA 9 2014 UT App 205
Nelson v. Target Corporation
nature,‛ the disclaimer did ‚not specifically state that
employment . . . [was] ‘at-will.’‛ Id. ¶ 44.
¶18 Here, the ninety-day learning period for new employees
and other provisions of the handbook are inadequate to rebut
the presumption that Nelson was an at-will employee for two
reasons. First, unlike the employee manual in Tomlinson, which
failed to expressly categorize the plaintiff’s position as at-will, see
id. ¶¶ 36, 44, the first page of Target’s handbook provides that
‚*a+ll Target team members are ‘at-will’ team members, which
means that team members can terminate the employment
relationship at any time, for any or no reason.‛ And it notes that
Target has the same prerogative. It further instructs employees
that they ‚should not . . . interpret any verbal or written
statement, policies, or practices or procedures including this
handbook, as altering their ‘at-will’ status.‛ When Nelson began
working for Target in 1997, she signed a form acknowledging
that she had received and read a copy of the handbook. And we
have previously held that ‚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., 904 P.2d 1110, 1112 (Utah Ct. App. 1995).
Nelson’s reliance on ‚Target’s handbook and other employment
policies‛ to establish that she was not an at-will employee is
therefore misplaced.
¶19 Second, the handbook provisions on which Nelson relies
are not necessarily inconsistent with Nelson’s status as an at-will
employee. Target may provide a ninety-day learning period to
make sure that an employee has demonstrated some indication
of intent to stay with the company beyond the short term before
she is eligible for benefits, or it may hold new employees to
lower performance standards for a few months until supervisors
have had enough time to provide adequate training. Nelson has
not pointed to any evidence indicating that Target’s learning
period does not serve a similar purpose, so the learning period
by itself does not raise a reasonable inference that Nelson was
20121059-CA 10 2014 UT App 205
Nelson v. Target Corporation
not an at-will employee, particularly in light of the handbook’s
specific disclaimer to the contrary. Cf. Maxfield v. North Am.
Phillips Consumer Elecs. Corp., 724 F. Supp. 840, 845–46 (D. Utah
1989) (concluding that an employer did not alter an employee’s
at-will employment status by placing him on probation). And
the other provisions describing Target’s disciplinary policy and
efforts to treat its employees fairly are simply not specific
enough under our case law to raise an issue of fact about
whether Target ever intended to alter Nelson’s at-will employee
status. See, e.g., Trembly v. Mrs. Fields Cookies, 884 P.2d 1306, 1313
(Utah Ct. App. 1994) (noting that it was not reasonable for an
employee to interpret ‚general *oral+ statements of fairness made
to all company employees‛ as ‚an offer of employment other
than at-will‛); Sorenson v. Kennecott Copper Corp., 873 P.2d 1141,
1148–49 (Utah Ct. App. 1994) (concluding that a progressive
disciplinary policy and yearly performance reviews ‚failed to
rebut the presumption of at-will employment‛). Nelson was
therefore an at-will employee, and Target could terminate her
employment for any reason. Accordingly, we conclude that the
district court correctly granted summary judgment to Target on
Nelson’s breach of contract claim.
B. Intentional Infliction of Emotional Distress
¶20 The court also properly denied Nelson’s claim of
intentional infliction of emotional distress. Nelson argues that
because Turner, the store security chief, admitted that he
‚conducted the interrogation after he had determined that
Nelson had intentionally taken the wallet and was to be
terminated,‛ ‚the interview served no legitimate purpose other
than to inflict emotional distress or to extract an admission from
Nelson through intimidation in order to attempt to insulate
Target from liability.‛ But even if Turner intended to cause
Nelson some distress, Nelson must still show that Turner’s
conduct during the interview was ‚outrageous and intolerable in
that [it] offend[s] against the generally accepted standards of
decency and morality.‛ See Franco v. Church of Jesus Christ of
20121059-CA 11 2014 UT App 205
Nelson v. Target Corporation
Latter-day Saints, 2001 UT 25, ¶ 25, 21 P.3d 198 (citation and
internal quotation marks omitted).4 Conduct that is merely
‚unreasonable, unkind, or unfair‛ does not qualify. Id. ¶ 28
(citation and internal quotation marks omitted). Rather, the
plaintiff must identify behavior so extreme that it ‚evoke*s+
outrage or revulsion.‛ Id.
¶21 Here, Turner told Nelson that he did not believe she had
taken the wallet by mistake and gave her several opportunities
to explain herself. The interview was private and, according to
company policy, conducted in the presence of a human
resources representative. There is no evidence that Turner was
verbally abusive or unprofessional. To the extent Nelson alleges
that Turner interviewed her so that Target could avoid liability
for her termination, such a purpose is legitimate and does not
support Nelson’s claim that Target deliberately caused her
emotional distress. Cf. Bennett v. Jones, Waldo, Holbrook &
McDonough, 2003 UT 9, ¶¶ 68–69, 70 P.3d 17 (concluding that
allegations that a law firm engaged in conduct ‚to take advance
action to prevent‛ a client from ‚prosecuting any action for
damages‛ against the firm were insufficient to plead a prima
facie intentional infliction of emotional distress claim). And the
4. ‚*T+o state a claim for intentional infliction of
emotional distress, a plaintiff must allege that the
defendant intentionally engaged in some conduct
toward the plaintiff, (a) with the purpose of
inflicting emotional distress, or, (b) where any
reasonable person would have known that such
would result; and his actions are of such a nature as
to be considered outrageous and intolerable in that
they offend against the generally accepted
standards of decency and morality.‛
Franco v. Church of Jesus Christ of Latter-day Saints, 2001 UT 25,
¶ 25, 21 P.3d 198 (citation and internal quotation marks omitted).
20121059-CA 12 2014 UT App 205
Nelson v. Target Corporation
fact that Turner had already concluded that Nelson intentionally
took the wallet and interviewed her for the sole purpose of
persuading Nelson to admit it simply does not offend ‚generally
accepted standards of decency and morality.‛ See Franco, 2001
UT 25, ¶ 25 (citation and internal quotation marks omitted); see
also Dubois v. Grand Central, 872 P.2d 1073, 1079 (Utah Ct. App.
1994) (concluding that the plaintiff’s allegations that a retail store
‚fired her . . . based on incorrect information*+ does not rise to
the level of outrageous or intolerable conduct necessary to
establish a prima facie claim of emotional distress‛); cf. Cabaness
v. Thomas, 2010 UT 23, ¶¶ 39–45, 232 P.3d 486 (holding that there
was a factual issue about whether a supervisor’s conduct was
outrageous where the supervisor insulted and demeaned the
plaintiff every day for years, told him to divorce his wife, forced
him to work on a power line in the rain, and criticized him about
personal matters in front of other employees after learning that
the plaintiff suffered from depression). Consequently, the district
court did not err when it determined that Turner’s conduct was
not sufficiently outrageous for Nelson’s claim to withstand
summary judgment.
C. Defamation
¶22 Finally, Nelson has not raised any factual issues that
preclude summary judgment on her defamation claim. The
district court ruled that any alleged defamatory statements were
shielded by a conditional privilege. On appeal, Nelson argues
that either no privilege applies or that Target abused any
applicable privilege by publicizing Nelson’s termination too
broadly and making reckless statements about the alleged theft.
We conclude that the district court did not err in determining
that a conditional privilege applies in these circumstances and
that Target did not abuse it.
¶23 ‚The publication of a defamatory statement is
conditionally or qualifiedly privileged in certain situations in
which a defendant seeks to vindicate or further an interest
20121059-CA 13 2014 UT App 205
Nelson v. Target Corporation
regarded as being sufficiently important to justify some latitude
for making mistakes . . . .‛ Brehany v. Nordstrom, Inc., 812 P.2d 49,
58 (Utah 1991). Our supreme court has noted that ‚*t+his
qualified privilege protects an employer’s communication to
employees and to other interested parties concerning the reasons
for an employee’s discharge.‛ Id. Thus, Target’s internal
communications about whether Nelson stole the wallet and
therefore ought to be terminated are protected by a conditional
privilege. As the name of the privilege implies, however, it is not
absolute—Nelson’s defamation claim could still survive
summary judgment if she can identify factual issues about
whether Target abused the privilege by ‚act*ing+ with malice,‛
publicizing ‚the defamatory material . . . beyond those who had
a legally justified reason for receiving it,‛ see id., or making
statements about Nelson ‚with knowledge of *their+ falsity or
with reckless disregard as to *their+ falsity,‛ see Ferguson v.
Williams & Hunt, Inc., 2009 UT 49, ¶ 21, 221 P.3d 205.
¶24 To that end, Nelson asserts that Target abused its
privilege when it told uninterested third parties about the theft
allegations. Specifically, she claims that a security officer ‚told
his wife about the allegations,‛ that ‚*o+ther Target employees
also knew of the allegations,‛ and that ‚the only reasonable
inference‛ from these facts ‚is that the allegations were
improperly disclosed to additional employees outside the
investigation.‛ But in support of these assertions, Nelson cites
only to a page in her memorandum opposing Target’s motion
for summary judgment. That memorandum contains mere
assertions that the security officer discussed the allegations with
his wife and that ‚everyone at Target‛ had heard about the
allegations; there are no affidavits attached to the memorandum
or citations to depositions or other evidence to substantiate
either of these conclusory allegations. Further, Nelson does not
specifically identify what the officer told his wife and why it was
defamatory, nor does she point to any specific statements by
Target management that were disseminated to employees who
had no need to know of the investigation.
20121059-CA 14 2014 UT App 205
Nelson v. Target Corporation
¶25 As a result, Nelson’s bare allegations are insufficient to
withstand summary judgment because they appear to be
unsupported by any admissible evidence. See Utah R. Civ. P.
56(e) (‚Supporting and opposing affidavits shall be made on
personal knowledge, shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that the
affiant is competent to testify to the matters stated therein.‛);
Norton v. Blackham, 669 P.2d 857, 859 (Utah 1983) (noting that
statements that ‚would not be admissible in evidence . . . may
not be considered on summary judgment under Rule 56(e)‛).
Further, a plaintiff cannot avoid summary judgment based on
‚doubtful, vague, speculative or inconclusive evidence.‛ Andalex
Res., Inc. v. Myers, 871 P.2d 1041, 1047 (Utah Ct. App. 1994); see
also Kranendonk v. Gregory & Swapp, PLLC, 2014 UT App 36, ¶ 15,
320 P.3d 689 (‚A reasonable inference exists when there is at
least a foundation in the evidence upon which the ultimate
conclusion is based, while in the case of speculation, there is no
underlying evidence to support the conclusion.‛ (citation and
internal quotation marks omitted)). And in defamation cases,
‚the language complained of must be set forth‛ with ‚a certain
degree of specificity.‛ Dennett v. Smith, 445 P.2d 983, 984 (Utah
1968). Thus, given the vague and speculative nature of even her
unsupported assertions, Nelson has not met her burden to show
a dispute of material fact or a legal error in the district court’s
conclusion that Target did not abuse its conditional privilege by
sharing the circumstances of Nelson’s termination with third
parties. See Jones & Trevor Mktg., Inc. v. Lowry, 2012 UT 39, ¶ 29,
284 P.3d 630.
¶26 Nelson has also failed to raise an issue of fact about
whether Target abused its conditional privilege by making false
statements ‚with knowledge‛ or ‚with reckless disregard as to
[their] falsity.‛ See Ferguson, 2009 UT 49, ¶ 21. In Ferguson, the
Utah Supreme Court affirmed a district court’s summary
judgment ruling that a law firm did not abuse its conditional
privilege when it informed a client that a terminated attorney
had overbilled the client’s case. Id. ¶¶ 30–33. The attorney stated
20121059-CA 15 2014 UT App 205
Nelson v. Target Corporation
in an affidavit that the firm did not discuss the matter with him
before talking to the client and that there were serious flaws in
the firm’s analysis of his billable work that he could have
pointed out had they spoken with him first. Id. ¶ 32. The court
noted that the attorney’s allegations did not show that the firm
abused its conditional privilege because the allegations did not
demonstrate that the firm ‚made the statement . . . knowing that
it was false or that [firm members] acted with reckless disregard
as to its falsity.‛ Id. ¶ 33. The court concluded, ‚While there may
be questions about the adequacy of *the firm’s+ investigation and
what, in hindsight, may appear to have been a premature and
possibly even erroneous conclusion, the evidence does not
satisfy the standard of abuse required for the conditional
privilege.‛ Id.
¶27 Here, Nelson argues that Target abused the privilege
because Turner’s theft allegations ‚were based solely on his
viewing the security camera video‛ without ‚interview*ing+ the
cashier or Nelson until after he had drawn his conclusion about
Nelson having stolen the wallet.‛ But Nelson fails to
acknowledge that the surveillance footage itself is quite
damning—she puts the customer’s wallet in her purse with her
right hand while her own wallet is in her left, apparently after
first confirming with a glance that the cashier had looked away.
And then she pays for her items using her own wallet before
placing it in her purse on top of the other wallet. Perhaps Target
could have conducted a more thorough investigation, but we
cannot conclude that ‚there are obvious reasons to doubt . . . the
accuracy of his‛ conclusions even if we agreed with Nelson that
the investigation was inadequate. See id. ¶ 30 (citation and
internal quotation marks omitted). And Nelson has not pointed
to any other evidence showing that Target management ever
entertained serious doubts about whether Nelson intentionally
took the wallet. Consequently, she has not raised an issue of fact
about whether Target abused its conditional privilege by making
false statements knowingly or recklessly. We therefore conclude
20121059-CA 16 2014 UT App 205
Nelson v. Target Corporation
that the district court properly granted Target’s motion for
summary judgment on Nelson’s defamation claim.5
II. Motion to Amend
¶28 Because we have already determined as a matter of law
that Nelson was an at-will employee, we also conclude that the
district court correctly denied her motion to amend as futile.
Nelson attempted to add a claim for breach of the covenant of
good faith and fair dealing, arguing that ‚*a+n implied covenant
of good faith and fair dealing was created by [language in]
Target’s‛ employee handbook. A covenant of good faith and fair
dealing inheres in every contract, but the covenant cannot create
obligations that the parties did not contemplate in the contract
itself. Oakwood Vill. LLC v. Albertsons, Inc., 2004 UT 101, ¶ 45, 104
P.3d 1226 (noting that the covenant of good faith and fair dealing
‚cannot be read to establish new, independent rights or duties to
which the parties did not agree ex ante‛). The handbook clearly
indicated that Nelson was an at-will employee, explained what
that term means, and notified her that no statement in the
handbook or by her supervisors should be understood to alter
that relationship. Consequently, the covenant of good faith and
fair dealing cannot prevent Target from exercising its right to
terminate her ‚for any reason (or no reason) except where
prohibited by law,‛ see Cabaness v. Thomas, 2010 UT 23, ¶ 78, 232
P.3d 486 (citation and internal quotation marks omitted), and a
claim for breach of the covenant of good faith and fair dealing
would not have survived a motion to dismiss. Consequently, we
conclude that the district court’s decision to deny the motion as
futile was correct. See Jensen v. IHC Hosps., Inc., 2003 UT 51,
¶ 139, 82 P.3d 1076 (‚It is well settled that a court may deny a
5. Nelson has not argued on appeal that Target abused its
privilege by ‚act*ing+ with malice.‛ See Brehany v. Nordstrom,
Inc., 812 P.2d 49, 58 (Utah 1991).
20121059-CA 17 2014 UT App 205
Nelson v. Target Corporation
motion to amend as futile if the proposed amendment would not
withstand a motion to dismiss . . . .‛ (omission in original)
(citation and internal quotation marks omitted)).
III. Rule 56(f) Motion
¶29 For similar reasons, we also conclude that the district
court properly denied Nelson’s rule 56(f) motion. The denial of a
rule 56(f) motion is reviewed for an abuse of discretion.
Overstock.com, Inc. v. SmartBargains, Inc., 2008 UT 55, ¶ 20, 192
P.3d 858. We will not reverse such a decision ‚unless it exceeds
the limits of reasonability.‛ Id. (citation and internal quotation
marks omitted). This standard involves consideration of several
factors:
(1) an examination of the party’s rule 56(f) affidavit
to determine whether the discovery sought will
uncover disputed material facts that will prevent
the grant of summary judgment or if the party
requesting discovery is simply on a ‚fishing
expedition,‛ (2) whether the party opposing the
summary judgment motion has had adequate time
to conduct discovery and has been conscientious in
pursuing such discovery, and (3) the diligence of
the party moving for summary judgment in
responding to the discovery requests provided by
the party opposing summary judgment.
Id. ¶ 21. In Overstock.com, our supreme court affirmed the denial
of a rule 56(f) motion. Id. ¶ 27. The court observed that the
plaintiff had sent just one set of discovery requests in two years.
Id. ¶ 24. But ‚*t+he more fundamental problem‛ with the motion
was that ‚it failed to identify any discovery requests that, if
answered, would affect the outcome of the summary judgment
motion.‛ Id. ¶ 26.
20121059-CA 18 2014 UT App 205
Nelson v. Target Corporation
¶30 Here, Nelson asserts that she ‚diligently pursued
discovery throughout the discovery period, sending two sets of
interrogatories and requests for production of documents . . .
and conducting depositions of all of the witnesses identified by
*Target+ in its initial disclosures.‛ But like the plaintiff in
Overstock.com, Nelson has not identified any discoverable facts
that would preclude summary judgment on any of her claims.
Her memorandum supporting the rule 56(f) motion identified
two witnesses she intended to depose if the court allowed more
discovery—a Target manager, who Nelson contends was
required by company policy to approve her termination, and the
customer whose wallet Nelson had taken. Nelson argues that the
manager’s testimony might reveal that her termination was
never approved and violated company policy, but that would
not change Nelson’s status as an at-will employee whom is
subject to termination for any reason, and she does not explain in
any detail how Target’s violation of an internal policy would
support any claim that she has made here. Nelson also asserts
that the customer’s testimony ‚would rebut statements made by
Target,‛ but she does not identify which statements would be
rebutted or how the customer’s testimony would preclude
summary judgment on any of her claims. And of course, neither
witness was involved in Nelson’s ‚interrogation,‛ which is the
conduct that Nelson alleges ‚constituted the intentional
infliction of emotional distress.‛ Finally, Nelson does not argue
that either witness would have provided information related to
her defamation claim. Consequently, we cannot say that the
district court’s decision denying Nelson’s rule 56(f) motion
‚exceed*ed+ the limits of reasonability,‛ see id. ¶ 20 (citation and
internal quotation marks omitted), and we therefore decline to
disturb it.
CONCLUSION
¶31 We conclude that the district court properly granted
summary judgment on Nelson’s claims of breach of contract,
20121059-CA 19 2014 UT App 205
Nelson v. Target Corporation
intentional infliction of emotional distress, and defamation. We
also conclude that because there was no factual dispute about
Nelson’s at-will employment status, her motion to add a claim
for breach of the covenant of good faith and fair dealing was
properly denied as futile. Finally, we conclude that the court did
not exceed its discretion in denying Nelson’s rule 56(f) motion
because Nelson did not identify any discoverable facts that
would have precluded summary judgment on any of her claims.
______________
20121059-CA 20 2014 UT App 205