McGraw v. University of Utah

2019 UT App 144

THE UTAH COURT OF APPEALS

BIANCA MCGRAW,
Appellee,
v.
UNIVERSITY OF UTAH,
Appellant.

Opinion
No. 20180289-CA
Filed August 22, 2019

Third District Court, Salt Lake Department
The Honorable Gary D. Stott
No. 170902670

Sean D. Reyes and Peggy E. Stone, Attorneys
for Appellant
Stephen T. Hester and Kimberley L. Hansen,
Attorneys for Appellee

JUDGE DIANA HAGEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and JILL M. POHLMAN
concurred.

HAGEN, Judge:

¶1 The University of Utah (the University) appeals the
district court’s denial of the University’s motion to dismiss
Bianca McGraw’s whistleblower action, arguing that McGraw
failed to strictly comply with the requirements of the
Governmental Immunity Act of Utah (the GIA). We agree with
the University that McGraw did not wait the mandatory sixty
days after delivering a valid notice of claim to the Utah Attorney
General (the AG) before instituting this action and therefore she
failed to strictly comply with the GIA. Accordingly, we reverse.
 McGraw v. University of Utah

BACKGROUND

¶2 On September 28, 2016, the University hired McGraw as a
clinical research coordinator for a physician. Soon after her
employment began, she noticed “regulatory non-compliance
issues” with one of the studies the physician was conducting.
Over the next few weeks, McGraw repeatedly raised compliance
concerns with the University’s Institutional Review Board until
she was terminated on October 27, 2016. The University
explained that it did not appear that McGraw and the physician
would “be[] able to work together long term, therefore, [she] was
released from her employment.”

¶3 A few days after her termination, McGraw filed
complaints with the University’s human resources department,
asserting that her termination was improper and in retaliation
for her raising concerns about the physician’s non-compliance.
After speaking with a few different University employees, she
was told that the information would be passed “up the chain of
command.” Eventually, the University stopped contacting
McGraw or responding to her inquiries regarding whether the
University was going to investigate her complaints about the
physician.

¶4 On February 23, 2017, McGraw delivered a letter with
the subject line “Retaliation Complaint” (the February 23
Retaliation Complaint) to the University’s General Counsel
and the Employment Relations Administrator. In the February
23 Retaliation Complaint, she detailed her previous complaints,
explained that she had not been able to gain employment
following her termination, and stated that she was going to file
a civil action for violations of the Utah Protection of
Public Employees Act—also known as the Whistleblower Act
(the WBA)—if the University did not respond.

¶5 On April 14, 2017, McGraw delivered a notice of claim
(the April 14 Notice of Claim) to the AG’s authorized agent,
which included substantially the same information as the

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February 23 Retaliation Complaint, with some additional details.
Eleven days later, on April 25, 2017, McGraw filed a complaint in
district court, alleging that the University took adverse
employment action against her in violation of the WBA when
she raised concerns about the physician’s non-compliance.
McGraw did not serve the complaint on the University until
June 19, 2017.

¶6 The University moved to dismiss McGraw’s complaint
under rule 12(b)(1) of the Utah Rules of Civil Procedure. Among
other things, the University argued that the February 23
Retaliation Complaint did not comply with the GIA because it
was not delivered to the AG or the AG’s authorized agent. See
Utah Code Ann. § 63G-7-401(3)(ii)(b)(E), -401(3)(ii)(b)(G)
(LexisNexis 2016). The University also argued that, assuming the
April 14 Notice of Claim was valid, 1 the district court did not
have subject matter jurisdiction over her case because McGraw
did not wait sixty days for the University to approve or deny her
notice of claim as required by the GIA and instead filed her
complaint on April 25, 2017. McGraw opposed the motion,
arguing, among other things, that the February 23 Retaliation
Complaint complied with the GIA’s requirements, even though
it was delivered to the wrong person, because of her “good faith
belief” that it “was sent to the correct governmental entity.”

¶7 After hearing argument on the motion to dismiss, the
district court announced its oral ruling and entered a written
order denying the motion. The district court agreed with
McGraw that although she had delivered the February 23
Retaliation Complaint to the wrong individual under the GIA,
she had acted with “significant good faith compliance with the
statutory requirements of both the [GIA] and the [WBA].”
(Quotation simplified.)

1. At oral argument on appeal, the University conceded that the
notice of claim filed on April 14, 2017, was valid and not
untimely.

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 McGraw v. University of Utah

¶8 The University filed this interlocutory appeal challenging
the district court’s denial of its motion to dismiss.

ISSUE AND STANDARD OF REVIEW

¶9 The University argues that the district court erred in
denying its motion to dismiss because McGraw failed to comply
with the statutory requirements of the GIA. Specifically, the
University argues that the February 23 Retaliation Complaint
did not qualify as a notice of claim because McGraw delivered it
to the wrong individual. And because no valid notice of claim
was delivered to the State until April 14, 2017, the University
contends that McGraw’s complaint filed on April 25, 2017, did
not comply with the sixty-day waiting period under the GIA.2
“When determining whether a trial court properly granted a
motion to dismiss, we accept the factual allegations in the
complaint as true and consider them, and all reasonable
inferences to be drawn from them, in the light most favorable to
the non-moving party.” Krouse v. Bower, 2001 UT 28, ¶ 2, 20 P.3d
895. “Because the propriety of a motion to dismiss is a question
of law, we review for correctness, giving no deference to the
decision of the trial court.” Id.; see also Wheeler v. McPherson, 2002
UT 16, ¶ 9, 40 P.3d 632 (explaining that when a district court
dismisses a claim based on governmental immunity, that
dismissal creates a question of law that appellate courts review
for correctness). To determine whether the court erroneously
denied the University’s motion to dismiss, we must consider
whether the court correctly interpreted the requirements of the
GIA in conjunction with the WBA. See generally Thorpe v.

2. The University also argues that the court erroneously denied
its motion to dismiss because (1) the February 23 Retaliation
Complaint did not contain the necessary contents under the GIA
and (2) McGraw failed to file the required undertaking when she
filed the complaint. Because we reverse on other grounds, it is
unnecessary to reach these arguments.

20180289-CA 4 2019 UT App 144
 McGraw v. University of Utah

Washington City, 2010 UT App 297, ¶¶ 10–13, 243 P.3d 500. “The
proper interpretation and application of a statute is a question of
law which we review for correctness, affording no deference to
the district court’s legal conclusions.” Bott v. Osburn, 2011 UT
App 139, ¶ 5, 257 P.3d 1022 (quotation simplified).

ANALYSIS

I. The Governmental Immunity Act

¶10 The WBA “prohibits public employers from ‘tak[ing]
adverse action against an employee’ who, in good faith, blows
the whistle on the government by exposing, inter alia, ‘waste of
public funds, property, or manpower, or a violation or suspected
violation of a law, rule, or regulation.’” Thorpe v. Washington
City, 2010 UT App 297, ¶ 11, 243 P.3d 500 (quoting Utah Code
Ann. § 67-21-3(1)(a) (LexisNexis 2004)). Governmental entities
and their employees are generally “immune from suit for any
injury that results from the exercise of a governmental function,”
Utah Code Ann. § 63G-7-201(1) (2016), but the GIA expressly
waives immunity from suits alleging retaliation under the WBA,
id. § 63G-7-301(2)(f). 3

¶11 “While the GIA expressly waives immunity for suits to
collect actual damages under the WBA, it does not waive the
requirement that a notice of claim be filed pursuant to [Utah
Code section 63G-7-401].” Thorpe, 2010 UT App 297, ¶ 12
(quotation simplified). “Thus, an employee may bring a WBA
claim against a governmental entity, provided that the employee

3. We refer to the provisions of the Utah Code in effect at the
time of McGraw’s termination. See Harvey v. Cedar Hills City,
2010 UT 12, ¶ 12, 227 P.3d 256 (“As a general rule, when
adjudicating a dispute we apply the version of the statute that
was in effect at the time of the events giving rise to the suit.”
(quotation simplified)).

20180289-CA 5 2019 UT App 144
 McGraw v. University of Utah

satisfies the GIA requirement of filing a notice of claim.” Id.
“Compliance with the [GIA] is a prerequisite to vesting a district
court with subject matter jurisdiction over claims against
governmental entities.” Wheeler v. McPherson, 2002 UT 16, ¶ 9, 40
P.3d 632.

¶12 Under the GIA, a claimant must deliver a notice of claim
to the governmental entity the claimant seeks to sue before
pursuing the claim in district court. Utah Code Ann. § 63G-7-
401(2) (LexisNexis 2016). The governmental entity then has sixty
days after the notice of claim is received to approve or deny the
claim. Id. § 63G-7-403(1)(a). If the governmental entity does not
respond within sixty days, the claim is deemed denied. Id. § 63G-
7-403(1)(b). Under subsection 63G-7-403(2)(a), a claimant may
not “institute an action in the district court” until the claim is
denied. Id. § 63G-7-403(2)(a). Thus, “[o]nce a [claimant’s] notice
of claim is filed, the [GIA] continues to bar its initiation in court
until the [governmental entity] either denies the claim in writing
or fails to act” for sixty days. See Hall v. Utah State Dep’t of Corr.,
2001 UT 34, ¶ 22, 24 P.3d 958.

¶13 The University argues that McGraw did not deliver a
valid notice of claim until April 14, 2017, and therefore failed to
comply with Utah Code section 63G-7-403 when she instituted
her action by filing her complaint in district court on April 25,
2017, well before the sixty-day waiting period would have
elapsed on June 13, 2017.

¶14 McGraw disputes the date that she delivered a valid
notice of claim. She argues that the February 23 Retaliation
Complaint constituted a valid notice of claim and therefore
her claim would have been deemed denied on April 24, 2017—
one day before she filed her complaint. Alternatively, McGraw
argues that if the February 23 Retaliation Complaint does
not constitute a valid notice of claim, the denial of the motion
to dismiss can be affirmed based on the April 14 Notice of
Claim. Although she filed her complaint on April 25, 2017, she
contends that she complied with the GIA by waiting until June

20180289-CA 6 2019 UT App 144
 McGraw v. University of Utah

19, 2017 to serve the complaint, after the sixty-day waiting
period expired.

¶15 We must now determine whether the February 23
Retaliation Complaint constituted a valid notice of claim.
Because we conclude it did not, we then address McGraw’s
alternative argument for affirmance based on the April 14 Notice
of Claim. Specifically, we address whether McGraw instituted an
action in district court for purposes of the GIA when she filed
her complaint on April 25, or when she served the complaint on
June 19.

A. The February 23 Retaliation Complaint

¶16 Under the GIA, “[a]ny person having a claim against a
governmental entity . . . shall file a written notice of claim with
the entity before maintaining an action, regardless of whether or
not the function giving rise to the claim is characterized as
governmental.” Utah Code Ann. § 63G-7-401(2) (LexisNexis
2016). “The notice of claim shall set forth: (i) a brief statement of
the facts; (ii) the nature of the claim asserted; (iii) the damages
incurred by the claimant so far as they are known; and (iv) if the
claim is being pursued against a governmental employee
individually as provided in Subsection 63G-7-202(3)(c), the name
of the employee.” Id. § 63G-7-401(3)(a). The “notice of claim shall
be . . . directed and delivered . . . to the office of: . . . the attorney
general, when the claim is against the state” or “the agent
authorized by a governmental entity to receive the notice of
claim by the governmental entity.” Id. § 63G-7-
401(3)(b)(ii)(E), -401(3)(b)(ii)(G). The GIA defines “State” as
including, among other entities, state universities. Id. § 63G-7-
102(10).

¶17 Here, because McGraw attempted to bring a claim against
a state university, see id. § 63G-7-102(10), McGraw was required
to deliver her notice of claim to the AG or the agent authorized
by the AG, see id. § 63G-7-401(3)(b)(ii)(E), -401(3)(b)(ii)(G). But
McGraw delivered the February 23 Retaliation Complaint to the

20180289-CA 7 2019 UT App 144
 McGraw v. University of Utah

University’s General Counsel and not the AG or the AG’s
authorized agent. It was not until April 14, 2017, that McGraw
delivered a notice of claim to the AG.

¶18 Our supreme court has “consistently and uniformly held
that suit may not be brought against the state or its subdivisions
unless the requirements of the [GIA] are strictly followed.” Hall
v. Utah State Dep’t of Corr., 2001 UT 34, ¶ 23, 24 P.3d 958. “In
other words, where the government grants statutory rights of
action against itself, any conditions placed on those rights must
be followed precisely.” Id. Because the GIA “demands strict
compliance” with notice of claim delivery requirements, the
February 23 Retaliation Complaint was not a valid notice of
claim because it was not directed and delivered to the
appropriate office. See Wheeler v. McPherson, 2002 UT 16, ¶ 13, 40
P.3d 632.

¶19 In arguing that the February 23 Retaliation Complaint
should nonetheless be considered a valid notice of claim,
McGraw relies on the “good faith” exception to the requirement
that the notice of claim be delivered to the correct governmental
entity. The district court agreed with McGraw, finding that
“there was significant good faith compliance with the statutory
requirements of both the [GIA] and the [WBA].” (Quotation
simplified.) But the GIA requires strict compliance, and the
statutory “good faith” exceptions available at the time did not
apply to McGraw.

¶20 The statutory exception for filing a notice of claim in
good faith upon the wrong governmental entity does not apply
to the facts of this case. Utah Code section 63G-7-401(3)(b) lists
various governmental entities—such as the state, cities and
towns, counties, school districts, and special service districts—
and provides that notices of claims must be directed to certain
offices or individuals within those entities. Utah Code Ann.
§ 63G-7-401(3)(b) (LexisNexis 2016); see also id. § 63G-7-102(3)
(defining “governmental entity”). The good faith exception
provides that “[a] governmental entity may not challenge the

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timeliness . . . of a notice of claim” if the claimant delivered a
notice of claim that is otherwise “in accordance with the
requirements of this section” but delivered it to the “incorrect
governmental entity . . . in the good faith belief that the
claimant” delivered it to the correct governmental entity. Id.
§ 63G-7-401(8)(b).

¶21 Here, McGraw did not deliver the February 23 Retaliation
Complaint to the wrong governmental entity. She did not,
for example, mistakenly direct it to Salt Lake County and
deliver it to the county clerk. See id. § 63G-7-401(3)(b)(ii)(B).
Instead, she directed it to the correct governmental entity (the
state) but not to the correct office or agent of the state (the AG).
See id. § 63G-7-401(3)(b)(ii)(E). At the time McGraw filed the
February 23 Retaliation Complaint, the statute contained no
exception for filing a notice of claim on the correct governmental
entity but to someone other than the designated agent.4 See id.
§ 63G-7-401. Therefore, McGraw cannot rely on the “good faith”
exception to the filing requirement under subsection 63G-7-
401(8).

¶22 McGraw similarly cannot rely on subsection 63G-7-401(7),
which provides that “[a] governmental entity may not challenge

4. The legislature recently enacted an amendment to the GIA
that provides an additional exception where a claimant fails to
deliver the notice of claim to the correct office or agent. Effective
as of May 14, 2019, and now codified in Utah Code section 63G-
7-401(8)(b), a governmental entity may no longer challenge the
timeliness of a notice of claim if the claimant delivers the notice
to “an elected official or executive officer of the correct
governmental entity but not to the correct office under
Subsection (3)(b)(ii),” and contemporaneously sends a copy of
the notice of claim to an attorney representing the correct
governmental entity or is not notified of the delivery defect
within sixty days. H.B. 311 Substitute, 63d Leg., Gen. Sess. (Utah
2019).

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 McGraw v. University of Utah

the validity of a notice of claim on the grounds that it was not
directed and delivered to the proper office or agent if the error is
caused by the governmental entity’s failure to file or update the
statement” designating “the office or agent designated to receive
a notice of claim.” Id. § 63G-7-401(7), (5)(a)(ii). McGraw has not
alleged that the State failed to “file a statement with the Division
of Corporations and Commercial Code within the Department of
Commerce” identifying the proper office or agent. Utah Code
Ann. § 63G-7-401(5), (7).

¶23 Because the GIA “demands strict compliance,” Wheeler,
2002 UT 16, ¶ 13, the district court erred in denying the motion
to dismiss based on McGraw’s “significant good faith
compliance with the statutory requirements.” The February 23
Retaliation Complaint did not constitute a valid notice of claim
as it was not delivered to the proper office as required by section
63G-7-401.

B. The April 14 Notice of Claim

¶24 Because we conclude that the February 23 Retaliation
Complaint did not constitute a valid notice of claim, we must
next decide whether, in violation of the GIA, McGraw
prematurely “institute[d] an action in the district court” less than
sixty days after her April 14 Notice of Claim. Utah Code Ann.
§ 63G-7-403(2)(a) (LexisNexis 2016). 5 The University argues that

5. In her brief and at oral argument, McGraw quoted language
from the current version of the statute, which allows a claimant
to “pursue an action in district court” once a claim is denied in
writing or deemed denied after sixty days. Utah Code Ann.
§ 63G-7-403(2)(a) (LexisNexis Supp. 2017). However, the
statutory amendment in which the phrase “institute an action”
was replaced with “pursue an action” did not become effective
until May 9, 2017. See id. McGraw has not explained why we
would apply a version of the statute that became effective two
weeks after her complaint was filed.

20180289-CA 10 2019 UT App 144
 McGraw v. University of Utah

McGraw instituted her action in district court by filing her
complaint on April 25, 2017, before the expiration of the
sixty-day period afforded to the University to consider her claim.
McGraw, on the other hand, argues that she complied with this
provision because “she served her complaint on the University on
June 19, 2017, which was more than 60 days after” the April 14
Notice of Claim was delivered. (Emphasis added.)

¶25 McGraw’s argument is foreclosed by existing case law,
which has consistently interpreted section 63G-7-403(2) to bar
the act of filing a complaint in the district court until the
expiration of the sixty-day waiting period. In Hall v. Utah State
Dep’t of Transp., 2001 UT 34, 24 P.3d 958, the Utah Supreme
Court applied the waiting period under the GIA to a
whistleblower action such as this one. The court explained that
“[o]nce a plaintiff’s notice of claim is filed, the [the GIA]
continues to bar its initiation in court until the state either denies
the claim in writing or fails to act” within the time provided. Id.
¶ 22. The court treated the phrase “institute an action” in section
63G-7-403(2) as synonymous with “filing suit.” Id. ¶ 26.

¶26 Later, in Thorpe v. Washington City, 2010 UT App 297, 243
P.3d 500, this court similarly addressed the interplay between
the GIA and the WBA. The WBA requires a plaintiff to “bring a
civil action” within 180-days of the alleged violation. Utah Code
Ann. § 67-21-4(2). This court noted that the phrase “civil action”
is “a term of art, and a rather precise one at that.” Thorpe, 2010
UT App 297, ¶ 15. Under the Utah Rules of Civil Procedure, “A
civil action is commenced (1) by filing a complaint with the
court, or (2) by service of a summons together with a copy of the
complaint[.]” Utah R. Civ. P. 3(a). Construing the WBA’s
180-day limitation period and the GIA’s 60-day waiting period
together, this court held that “the plaintiff must submit the
notice of claim before the elapse of 120 days from the date of the
alleged WBA violation so that, after the governmental entity
either denies or fails to approve the notice of claim within 60
days, the plaintiff may still file a timely complaint within the

20180289-CA 11 2019 UT App 144
 McGraw v. University of Utah

WBA’s 180-day statutory period.” Thorpe, 2010 UT App 297,
¶ 21.

¶27 McGraw has provided no statutory interpretation
analysis to justify revisiting the long-standing assumption that
“institute an action” in section 63G-7-403(2) means filing a
complaint. Applying this accepted interpretation, McGraw was
not permitted to file her complaint in district court until the
April 14 Notice of Claim was denied or deemed denied. Id.; see
also Utah Code Ann. § 63G-7-403(2). The April 14 Notice of
Claim was neither denied in writing nor deemed denied by the
passage of sixty days before she filed her complaint on April 25,
2017. She therefore prematurely instituted her action in district
court. Because strict compliance with the GIA “is a prerequisite
to vesting a district court with subject matter jurisdiction over
claims against governmental entities,” Wheeler v. McPherson,
2002 UT 16, ¶ 9, 40 P.3d 632, the University was entitled to
dismissal.

CONCLUSION

¶28 We conclude that the district court erroneously denied the
University’s motion to dismiss. McGraw did not deliver a valid
notice of claim to the AG or the AG’s authorized agent until
April 14, 2017. By filing her complaint on April 25, 2017,
McGraw impermissibly “institute[d] an action in the district
court” before the expiration of the sixty-day waiting period. See
Utah Code Ann. § 63G-7-403(a)(a) (LexisNexis 2016). Because
McGraw did not strictly comply with the requirements of the
GIA, we reverse the district court’s denial of the University’s
motion to dismiss and remand for the court to grant the
University’s motion.

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