Oman v Davis School Dist.

2008 UT 70
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Michael K. Oman, 	No. 20061032
Plaintiff and Appellant,
v.
Davis School District, a political
subdivision of the state of Utah;
Dr. Darrell K. White, an individual;
Lynn Trenbeath, an individual;
Gary Payne, an individual; John
Swain, an individual; Mel Miles, an
individual; Leon Webster, an
individual; and Dale May, an 	F I L E D
individual,
Defendants and Appellees. 	October 3, 2008
---
Second District, Layton
The Honorable Thomas L. Kay
No. 050604228
Attorneys: 	Vincent C. Rampton, Salt Lake City, for appellant
Mark L. Shurtleff, Att’y Gen., Glen E. Davies, Asst.
Att’y Gen., Salt Lake City, for appellees
---
PARRISH, Justice:
INTRODUCTION
¶1 	Michael Oman was an employee of Davis County School
District (the “District”) until 2003, when he was fired. 	Oman
subsequently filed suit against the District and seven District
employees (collectively, “Defendants”), claiming breach of
contract, breach of the implied covenant of good faith and fair
dealing, defamation, intentional infliction of emotional
distress, and violation of the Utah Orderly School Termination
Procedures Act (“UOSTPA”). 	Oman appeals the district court’s
decision in its entirety. 	The Defendants moved for summary

1 Under the Classified Agreement, exempt employees were not
paid extra for any hours worked over the standard forty hours per
week. 	Exempt employees were compensated for overtime hours
worked by receiving hour-for-hour compensatory time off for the
amount of overtime worked.
No. 20061032 	2
judgment on all claims, which the district court granted. 	We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 	Oman began working for the District in 1982 as a
maintenance electrician and was assigned to various positions
before becoming a maintenance coordinator in 1998. 	After
becoming a maintenance coordinator, Oman no longer personally
performed maintenance work, but acted in a supervisory role to
assure that others carried out their work assignments. 	Oman
supervised the work of three foremen who performed or supervised
performance of maintenance work on the District’s physical
facilities. 	Much of Oman’s work was performed by phone; actual
site visits accounted for only about ten percent of his time.
¶3 	Oman’s employment as a maintenance coordinator was
governed by the terms and conditions set out in the 9CA
Classified Employees’ Agreement (the “Classified Agreement”). 	As
a maintenance coordinator, Oman became an exempt employee under
the Fair Labor Standards Act, which meant he received a salary
instead of an hourly wage. 	During his tenure as a maintenance
coordinator, Oman unilaterally decided that he was a “first
responder,” on duty “24/7.” 	Oman kept his cell phone with him to
respond to calls “on an as-needed basis.” 	About two years after
becoming a maintenance coordinator, he ceased tracking
compensation time 1 as he had previously done.
¶4 	In addition to his job with the District, Oman operated
his own electrical contracting business. 	No policy existed that
prevented District employees from having outside employment.
However, at some point, Oman’s supervisors began receiving
reports from District employees that Oman was performing personal
work for his contracting business during the District’s normal
work hours. 	In particular, Leon Webster, Oman’s subordinate,
complained that Oman was away from work during District work
hours, that he could not reach Oman by cell phone on a regular
basis, and that Oman was not doing his job, resulting in Webster
having to do more work.
¶5 	Gary Payne, the District’s administrator of facilities
management and planning, passed the complaints along to Lynn

2 In a subsequent agreement between Oman and the District,
Oman withdrew his request for a hearing and waived any claim,
(continued...)
3 	No. 20061032
Trenbeath, the District’s assistant superintendent. 	Trenbeath
decided that an internal investigation would be appropriate and
asked Dale May, the District’s security officer, to find someone
to conduct one. 	May contacted Officer Joe Morrison of the Layton
City Police Department, an acquaintance of May’s, and asked
Officer Morrison if he would be willing to conduct the
investigation on his personal time. 	Shortly thereafter, Layton
City Police Chief Terry Keefe contacted Trenbeath and offered to
take over the investigation as an official police matter. 	The
District agreed and cooperated in the police investigation. 	May
wrote a letter to the police department on March 21, 2002, which
detailed some of the reports about Oman that provided a basis for
the investigation: 	his absence from work, difficulty contacting
him by cell phone, and other similar circumstances.
¶6 	Officer Morrison conducted a police investigation of
Oman’s conduct in his official police capacity. 	The District
authorized the placement of a GPS tracking device on Oman’s
District vehicle so that his movements could be tracked. 	For
almost two months, Morrison used the tracking device to follow
the vehicle’s location. 	Morrison also personally followed Oman
on several days during that period. 	All of this was done without
Oman’s knowledge.
¶7 	The investigation revealed that on most days, Oman left
work early to go home. 	The tracking device also recorded that
Oman had used his District vehicle to visit job sites unrelated
to District projects. 	Additionally, Officer Morrison observed
Oman in his personal vehicle at personal job sites during the
District’s normal work hours. 	The police department turned over
the results of the investigation to the Davis County Attorney’s
Office, which filed charges against Oman for communications fraud
under Utah Code section 76-10-1801.
¶8 	Based on the results of the investigation, the District
suspended Oman on June 27, 2002 and offered to meet with him the
next day to discuss the situation. 	Oman declined to participate
in the meeting, choosing to first engage an attorney. 	On July 2,
2002, the District notified Oman that his suspension would be
without pay. 	Oman hired an attorney and demanded a hearing with
the District. 	A preliminary conference was held on August 16,
2002. 	The District then reaffirmed Oman’s suspension without
pay, and Oman requested a formal hearing. 	That hearing was
scheduled, but never occurred. 2

2 (...continued)
including a denial of due process claim, based on the District’s
failure to provide a hearing. 	In return, the District waived any
defense that Oman failed to exhaust his administrative remedies.
No. 20061032 	4
¶9 	Meanwhile, the criminal charges against Oman proceeded
and a preliminary hearing was held on November 4, 2002. 	At the
conclusion of the evidence, Oman was bound over for trial. 	On
December 5, 2002, as a result of a plea agreement between Oman
and the Davis County Attorney’s Office, Oman pleaded no contest
to the charge of attempted communications fraud, a class A
misdemeanor.
¶10 	On March 11, 2003, the District sent Oman a letter
stating that his employment was terminated for cause, effective
fifteen days from the date of the letter. 	The letter detailed
the facts upon which the District based its decision to
terminate, including the hours that Oman’s District vehicle was
tracked away from the District, times that Morrison followed Oman
to his personal work sites, examples of Oman’s misuse of his
District vehicle, falsification of time cards, and neglect of
professional obligations in violation of the Classified
Agreement.
¶11 	In 2004, Oman filed suit in the Federal District Court
for the District of Utah against the District and seven District
employees (the “District Employees”) individually: 	Lynn
Trenbeath; Gary Payne; Leon Webster; Dale May; Dr. Darrell K.
White, the District’s superintendent; John Swain, the District’s
director of environmental maintenance services; and Mel Miles,
the District’s human resources director. 	Oman’s complaint
included a claim under 42 U.S.C. § 1983 and five state law
claims: 	breach of contract, breach of the implied covenant of
good faith and fair dealing, intentional infliction of emotional
distress, defamation, and violation of UOSTPA. 	The federal
district court granted summary judgment for the Defendants on the
§ 1983 claim and dismissed the state law claims without
prejudice.
¶12 	In 2005, Oman filed a complaint in state district
court, alleging the same five state causes of action that had
been dismissed without prejudice by the federal court. 	The
Defendants subsequently moved for summary judgment on all of
Oman’s claims. 	The district court granted the motion, thereby
dismissing Oman’s complaint.

5 	No. 20061032
¶13 	Oman appeals the district court’s decision in its
entirety, raising multiple issues for review. 	We address each of
these issues below and conclude that the district court properly
granted the Defendants’ motion for summary judgment. 	We
therefore affirm the district court’s decision.
STANDARD OF REVIEW
¶14 	“‘[S]ummary judgment is appropriate only when there is
no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law.’” 	Swan Creek Vill.
Homeowners Ass’n v. Warne, 2006 UT 22, ¶ 16, 134 P.3d 1122
(quoting Norman v. Arnold, 2002 UT 81, ¶ 15, 57 P.3d 997). 	“A
district court’s decision to grant summary judgment is reviewed
for correctness, with no deference afforded to the district
court.” 	Pearce v. Utah Athletic Found., 2008 UT 13, ¶ 13, 179
P.3d 760.
ANALYSIS
I. 	THE DISTRICT COURT CORRECTLY GRANTED SUMMARY JUDGMENT IN
FAVOR OF THE SCHOOL DISTRICT ON OMAN’S BREACH OF CONTRACT CLAIM
A. 	Procedural History: 	Federal Court Action
¶15 	Oman originally filed suit in the United States
District Court for the District of Utah, seeking recovery under
42 U.S.C. § 1983. 	Oman also brought five state law claims
pursuant to the federal court’s supplemental jurisdiction,
including a breach of contract claim. 	In 2005, the federal court
granted summary judgment to the District on Oman’s § 1983 claim.
As part of its summary judgment order, the federal court made
several findings and conclusions regarding the Classified
Agreement, including the following:
During the two months that Morrison conducted
surveillance on Plaintiff, he continued to
turn in time cards reporting eight hours
worked on District business each day, even
though most of his days were spent at work
sites for his own personal contracting
business. 	It is disingenuous for Plaintiff
to argue that as long as he had his cell
phone with him, he was still working for the
District. 	Plaintiff’s representations to the
District regarding his work hours provided a
sufficient basis for termination for cause.
(Emphasis added.)

3 Issue preclusion was also one of the district court’s
alternative bases for granting summary judgment to the District
on Oman’s claim that the District violated UOSTPA. 	We find this
conclusion to be erroneous because the federal court’s order did
not address the application of the Act to Oman’s § 1983 claim.
Thus, while we affirm the district court’s grant of summary
judgment on this claim, we do so on different grounds.
No. 20061032 	6
¶16 	Having disposed of the § 1983 claim over which it had
subject matter jurisdiction, the federal district court declined
to exercise supplemental jurisdiction over Oman’s remaining state
law claims and dismissed them without prejudice.
B. 	Procedural History: 	State Court Action
¶17 	Following the dismissal in the federal court, Oman
filed an action in state court. 	In his complaint, Oman alleged
the same five causes of action that had been dismissed without
prejudice by the federal court, including the breach of contract
claim. 	The state district court granted summary judgment to the
District on Oman’s breach of contract claim, relying on two
alternative bases. 	First, the court “independently looked at the
issues” and found that Oman had been properly terminated for
cause and that the District “was not contractually required to
give any prior notice, opportunity to be heard, or progressive
discipline to [Oman] prior to his termination.” 	Second, the
state district court noted that “the findings and conclusions [of
the federal court] involve precisely the same issues as those
raised in [Oman’s] breach of contract [claim].” 	The district
court thus concluded that under the doctrine of issue preclusion,
it was bound by the federal court’s determinations that Oman was
properly terminated for cause under the Classified Agreement and
that Oman was not contractually entitled to the procedures he
sought. 3
¶18 	On appeal, Oman argues that both conclusions were
erroneous. 	We hold that a combination of the two theories on
which the district court relied provides a sufficient basis on
which to affirm the summary judgment.
C. 	Analysis: 	Contractual Provisions
¶19 	In his memorandum opposing summary judgment to the
district court--and in his opening brief to this court--Oman
argued that the District breached the Classified Agreement by
failing to follow the procedures contained therein. 	We disagree
and conclude that the district court was correct in holding that

7 	No. 20061032
Oman’s arguments failed, as a matter of law, based on the
Classified Agreement.
¶20 	Oman first argues that section 8.5.3(1) of the
Classified Agreement required the District to notify him when his
actions placed his continued employment at risk. 	Second, Oman
argues that section 8.5.4(1) required the District to inform him
that his continued employment was in question, inform him of the
reasons, and give him an opportunity to correct the problems.
Third, Oman argues that section 8.3 of the Classified Agreement
required the District to conduct individual employee evaluations
at least once annually. 	Oman asserts that he did not receive
such evaluations and that an evaluation “would quickly have
addressed and resolved” any problems associated with his
activities.
¶21 	On summary judgment, the district court reviewed Oman’s
claims and the Classified Agreement. 	It concluded that, as a
matter of law, the Classified Agreement “provides for a dual
track of termination: 	one for unsatisfactory conduct . . . and
the second for cause.” 	The court further concluded that
“[t]ermination for cause under the Classified Agreement is
sufficient grounds, standing alone, for termination, and no prior
notice or warning, or opportunity to correct the conduct[] is
required to be afforded to the employee.” 	Finally, the court
determined that “[t]here exists no issue of material fact that
[Oman] was properly terminated by [the District] for cause under
the terms of the Classified Agreement, or that [the District] was
not contractually required to give any prior notice, opportunity
to be heard, or progressive discipline to [Oman] prior to his
termination.” 	Based on these determinations, the district court
granted summary judgment in favor of the District on Oman’s
breach of contract claim. 	We affirm the district court’s grant
of summary judgment.
¶22 	If the terms of a contract are unambiguous, “the
contract may be interpreted as a matter of law.” 	Green River
Canal Co. v. Thayn, 2003 UT 50, ¶ 17, 84 P.3d 1134 (internal
quotation marks omitted). 	Like the district court, we find that
the terms of the Classified Agreement are unambiguous and we
therefore interpret them as a matter of law.
¶23 	We first address Oman’s claim that he was entitled to
notice when his actions placed his employment at risk. 	This
claim is based on section 8.5.3(1) of the Classified Agreement.
Oman’s reliance on this section is misguided. 	Under the
Classified Agreement, there are two “tracks” of termination. 	The
first is termination for unsatisfactory action or conduct, which

4 We note that the District did initially elect to use some
of the disciplinary procedures contained in section 8.5.3(1),
such as placing Oman on suspension. 	However, the District
ultimately concluded that Oman should be terminated for cause
under section 8.5.3(2) and it was not precluded from doing so
under the Classified Agreement. 	Indeed, section 8.5.3(1)
specifically states that “[n]o disciplinary action shall
prejudice the right of the District to proceed with termination
for cause on the same set of facts which gave rise to the
disciplinary action.”
No. 20061032 	8
is addressed in section 8.5.3(1). 	The second is termination for
cause, which is addressed in section 8.5.3(2). 	Oman was
terminated for cause under section 8.5.3(2). 4 	Accordingly, the
procedures governing termination for unsatisfactory conduct
contained in section 8.5.3(1) do not apply, and Oman was,
therefore, not contractually entitled to them.
¶24 	We next address Oman’s claim that he was entitled to
notice and an opportunity to correct the problem. 	This claim is
based on section 8.5.4(1) of the Classified Agreement. 	Again,
Oman’s reliance is misplaced. 	Section 8.5.4(1) contains the
notice requirements applicable when an employee’s contract is not
being renewed. 	These requirements do not apply to Oman because
his termination was not due to the District’s decision not to
renew his contract; rather, he was terminated during his contract
term. 	Accordingly, the notice provisions of section 8.5.4(2)
apply. 	That section specifies the notification requirements when
an employee is terminated during his contract term. 	Oman has not
argued that the District failed to meet these notification
requirements. 	Indeed, the record shows that the District met
them.
¶25 	Finally, we address Oman’s claim that he was entitled
to performance evaluations under section 8.3 of the Classified
Agreement. 	We agree with Oman that the terms of the Classified
Agreement specify that the District should evaluate each
permanent employee “at least once annually.” 	Nevertheless, this
requirement does not bear on Oman’s termination. 	The evaluation
requirements in section 8.3 are exclusive of the termination
procedures in section 8.5. 	Thus, any failure of the District to
give performance evaluations does not preclude the District from
terminating an employee under the procedures contained in the
Classified Agreement. 	The issue in this case is whether the
District properly followed the termination procedures in the
Classified Agreement when it fired Oman. 	Whether the District
conducted performance evaluations of its employees has no bearing
on the resolution of this issue.

5 In Massey v. Board of Trustees of the Ogden Area Community
Action Committee, Inc., the Utah Court of Appeals was faced with
an issue of first impression in Utah: 	whether to apply federal
common law or Utah common law when deciding if a federal court’s
decision has preclusive effect on a subsequent state court
proceeding. 	2004 UT App 27, ¶¶ 6-7, 86 P.3d 120. 	The court of
appeals cited case law from across the country and “conclude[d]
that the current majority and better-reasoned approach is to
apply federal law.” 	Id. 	We have not yet had the opportunity to
address the rule enunciated by the court of appeals and take this
opportunity to express our agreement with the court of appeals’
conclusion that federal law applies. 	Nevertheless, we apply Utah
common law here for the following reasons: 	(1) because we have
not adopted a rule until now, both parties based their arguments
on Utah common law; (2) the legal analysis under Utah common law
is virtually identical to that under federal common law; and (3)
our ultimate conclusion would be the same regardless of whether
(continued...)
9 	No. 20061032
¶26 	We therefore hold that the district court properly
interpreted the Classified Agreement. As a matter of law, the
District was not contractually obligated to satisfy the
procedural requirements that Oman argued were required
thereunder.
D. 	Analysis: 	Issue Preclusion
¶27 	In his reply brief to this court, Oman raises, for the
first time, an additional argument to support his claim that
summary judgment was inappropriate on his breach of contract
claim. 	Oman contends that under any interpretation of the
classified agreement, there was still a triable issue as to
whether Oman’s conduct was sufficient grounds for termination for
cause. 	We could disregard this argument because it was not
presented to the district court during the summary judgment
proceedings. 	See State v. Labrum, 925 P.2d 937, 939 (Utah 1996)
(“Issues not raised before the trial court are usually waived and
cannot be raised on appeal.”). 	Nevertheless, we choose to
address it, and we conclude that the issue was resolved by the
federal district court and that the state district court was
bound by the federal court’s determination under the doctrine of
issue preclusion.
¶28 	“The doctrine of res judicata embraces two distinct
theories: 	claim preclusion and issue preclusion.” 	Buckner v.
Kennard, 2004 UT 78, ¶ 12, 99 P.3d 842. 	This appeal raises only
the latter principle of issue preclusion. 5 	Issue preclusion,

5 (...continued)
we applied federal or state law. 	See Youren v. Tintic Sch.
Dist., 2004 UT App 33, ¶ 2 n.1, 86 P.3d 771; see also Massey,
2004 UT App 27, ¶ 7 (“[T]here will usually be no difference in
outcome from applying Utah common law on res judicata.”).
No. 20061032 	10
which is also known as collateral estoppel, “prevents parties or
their privies from relitigating facts and issues in the second
suit that were fully litigated in the first suit.” 	Id. (internal
quotation marks omitted). 	The purposes of issue preclusion
include “(1) preserving the integrity of the judicial system by
preventing inconsistent judicial outcomes; (2) promoting judicial
economy by preventing previously litigated issues from being
relitigated; and (3) protecting litigants from harassment by
vexatious litigation.” 	Id. ¶ 14.
¶29 	Issue preclusion applies only when the following four
elements are met:
(i) the party against whom issue preclusion
is asserted must have been a party to or in
privity with a party to the prior
adjudication; (ii) the issue decided in the
prior adjudication must be identical to the
one presented in the instant action;
(iii) the issue in the first action must have
been completely, fully, and fairly litigated;
and (iv) the first suit must have resulted in
a final judgment on the merits.
Collins v. Sandy City Bd. of Adjustment, 2002 UT 77, ¶ 12, 52
P.3d 1267 (internal quotation marks omitted).
¶30 	Oman argues that issue preclusion does not apply in
this case. 	Specifically, he argues that there was no final
adjudication because the federal court dismissed his state law
breach of contract claim “without prejudice.”
¶31 	In making this argument, Oman confuses issue preclusion
with claim preclusion. 	“[C]laim preclusion bars a party from
prosecuting in a subsequent action a claim that has been fully
litigated previously.” 	Snyder v. Murray City Corp., 2003 UT 13,
¶ 34, 73 P.3d 325 	(emphasis added)(internal quotation marks
omitted). 	“On the other hand, issue preclusion . . . prevents
parties or their privies from relitigating facts and issues in
the second suit that were fully litigated in the first suit.”
Id. ¶ 35 	(emphasis added) (internal quotation marks omitted).
While claim preclusion corresponds to causes of action, issue

6 Indeed, in an order denying Oman’s motion to alter or
amend judgment, the federal court noted that “the court’s
findings and conclusions relate only to those issues that were
necessary to the determination of the federal . . . claim as that
issue was framed by the parties.”
11 	No. 20061032
preclusion corresponds to the facts and issues underlying causes
of action. 	And where two causes of action embody the same
dispositive issue, a prior determination of that issue in the
context of one cause of action can have a preclusive effect in
later litigation regarding the other cause of action. 	As we have
previously held, issue preclusion “prevents the relitigation of
issues that have been once litigated and determined in another
action even though the claims for relief in the two actions may
be different.” 	Penrod v. Nu Creation Creme, Inc., 669 P.2d 873,
875 (Utah 1983) (emphasis added); see also Restatement (Second)
of Judgments § 27 (1982) (“When an issue of fact or law is
actually litigated and determined by a valid and final judgment,
and the determination is essential to the judgment, the
determination is conclusive in a subsequent action between the
parties, whether on the same or a different claim.” (emphasis
added)). 	That is precisely the situation in this case.
¶32 	Underlying the § 1983 claim was the dispositive issue
of whether the District breached the Classified Agreement when it
fired Oman for cause. 	Indeed, when Oman filed his complaint in
federal court, his basis for the § 1983 cause of action was
twofold: 	(1) that the District’s “pre-termination conduct
deprived him of due process rights secured by the Fifth and
Fourteenth Amendments to the United States Constitution,” and
(2) that the District’s “decision to suspend, and later
terminate, his employment violated the terms of the Classified
Agreement.” 	Thus, a resolution of the § 1983 claim, as framed by
Oman, required the federal court to resolve the underlying issue
of whether the District violated the Classified Agreement when it
fired Oman. 	The issue was squarely before the federal court, was
litigated by the parties, and was necessary to the court’s final
judgment on the § 1983 claim. 6 	Accordingly, the federal court
made findings and conclusions regarding the alleged breach of
contract--including the previously quoted conclusion that the
District had a sufficient basis for firing Oman for cause under
the Classified Agreement--and these findings and conclusions are
binding in subsequent actions under the doctrine of issue
preclusion.
¶33 	Although Oman’s breach of contract claim was not
litigated in the federal court, it is based upon the same
underlying issue that was resolved by the federal court: 	whether

7 The legislature originally promulgated UOSTPA in 1973, see
1973 Utah Laws 288-91, and has amended it multiple times, most
recently in 2007. 	See Utah Code Ann. §§ 53A-8-101 to -107 (2006
& Supp. 2008). 	We construe UOSTPA as it was in 2002 when Oman
was first suspended. 	At that time, the legislature had amended
UOSTPA most recently in 2001.
No. 20061032 	12
the District had a sufficient basis for terminating Oman for
cause under the Classified Agreement. 	The state district court
was therefore bound by the federal court’s conclusion that
“[Oman]’s representations to the District regarding his work
hours provided a sufficient basis for termination for cause.”
Accordingly, even if Oman had argued to the district court that
his conduct did not give the District a basis for terminating him
for cause, the argument would have failed based on the federal
court’s prior ruling. 	We therefore hold that the district court
properly granted summary judgment to the District on Oman’s
breach of contract claim.
II. 	THE DISTRICT COURT CORRECTLY HELD THAT THE DISTRICT DID NOT
VIOLATE THE UTAH ORDERLY SCHOOL TERMINATION PROCEDURES ACT
¶34 	We next address whether the district court correctly
held that the District did not violate UOSTPA, Utah Code Ann.
§§ 53A-8-101 to -107 (2000 & Supp. 2001). 7 	We hold that the
District did not violate UOSTPA and affirm the district court’s
grant of summary judgment.
¶35 	“Under our rules of statutory construction, we look
first to the statute’s plain language to determine its meaning.”
State v. Gallegos, 2007 UT 81, ¶ 12, 171 P.3d 426 (internal
quotation marks omitted). 	“Furthermore, the plain language of a
statute is to be read as a whole, and its provisions interpreted
in harmony with other provisions in the same statute and with
other statutes under the same and related chapters.” 	State v.
Schofield, 2002 UT 132, ¶ 8, 63 P.3d 667.
¶36 	The section of UOSTPA at issue is section 53A-8-104
(“section 104”), entitled “Dismissal procedures.” 	More
specifically, the parties’ dispute focuses on subsections (2),
(3), (6), and (9) of section 104. 	Oman argues that the District
violated UOSTPA by not following the requirements of subsections
(2) and (3) when it terminated his employment. 	The District
contends--and the district court agreed--that section 104
provides a “dual track” for termination. 	Under this dual track,
an employee may be terminated for “unsatisfactory performance” or
“for cause,” and UOSTPA mandates different procedural

13 	No. 20061032
requirements for the two tracks. 	Because the requirements of
subsections (2) and (3) apply only to terminations for
unsatisfactory performance, and because Oman was fired for cause
and not for unsatisfactory performance, the District was not
required to follow the requirements of subsections (2) and (3)
when it terminated Oman’s employment. 	We agree with the
District’s interpretation of the statute.
A. 	The District Was Not Required to Follow the Procedural
Requirements of Subsections (2) and (3)
¶37 	Subsection (2) explicitly states that it applies only
to terminations “for reasons of unsatisfactory performance.”
Utah Code Ann. § 58A-8-104(2)(a) (Supp. 2001). 	Subsection (2)
provides that if a school district intends to terminate an
employee for unsatisfactory performance, “the unsatisfactory
performance must be documented in at least two evaluations
conducted at any time within the preceding three years.” 	Id. 	It
also provides that before a district can issue a “notice of
intent not to renew or continue the employee’s contract beyond
the then-current school year,” the district must give a career
employee thirty days’ notice that the employee’s “continued
employment is in question” and “the reasons for the anticipated
nonrenewal or discontinuance.” 	Id. § 53A-8-104(2)(b). 	The
district must also “give the career employee an opportunity to
correct the problem” and “may grant the career employee
assistance to correct the deficiencies.” 	Id. § 53A-3-104(2)(c),
(d).
¶38 	Subsection (3) builds upon the procedures outlined in
subsection (2). 	Subsection (3) provides that if the employee
does not correct the problem and if the district still intends to
not renew or to discontinue the employee’s contract at the end of
the school year, the district must issue a notice of intent-- as
referenced in subsection (2)(b)--at least thirty days prior to
the end of the employee’s contract term. 	Id. § 53A-3-104(3).
¶39 	Thus, subsections (2) and (3) together provide the
minimum procedures that a school district must follow when firing
an employee for unsatisfactory performance and they do not apply
when an employee is fired for cause. 	We make this determination
based on the plain language of the statute, but we also note that
the interpretation makes practical sense.
¶40 	Under Oman’s proposed interpretation, a school district
could not fire an employee unless it followed the requirements of
subsections (2) and (3), regardless of the reason for the
termination. 	But the requirements of these subsections are

No. 20061032 	14
clearly established for the purpose of providing an employee who
is not satisfactorily performing his job with notice of his
deficient performance, an opportunity to correct the deficiency,
and the assistance of the district in providing training,
instruction, or other means of helping the employee to correct
the deficiency. 	See id. § 53A-3-104(2). 	These procedural
safeguards and opportunities to improve performance would be
inappropriate in situations in which an employee is being
terminated for cause. 	For example, if an employee sexually
assaulted a student, it would make no sense if the district could
not terminate the employee without following the procedures in
subsections (2) and (3), i.e., documenting similar behavior by
the employee in two prior evaluations, giving notice to the
employee that the sexual assault has jeopardized the employee’s
continued employment, and giving the employee an opportunity to
correct the problem. 	We refuse to adopt such an interpretation.
See Tschaggeny v. Milbank Ins. Co., 2007 UT 37, ¶ 28, 163 P.3d
615 (“It is well-settled that this court will not interpret a
statute to embrace a result . . . that is so absurd that it could
not have been intended by the legislature.”).
¶41 	Accordingly, Oman’s argument that the District was
required to follow the requirements of subsections (2) and (3)
fails as a matter of law because Oman was fired for cause.
B. 	The District Properly Followed the Procedures Under
Subsections (6) and (9)
¶42 	Having determined that the District was not required to
follow the requirements of subsections (2) and (3) because Oman
was fired for cause, we now look to other subsections of section
104 to determine what requirements the District was required to
follow when it terminated Oman.
¶43 	Subsection (6) provides the procedural requirements
that a district must follow if it “intends to not renew or
discontinue the contract of a career employee or to terminate a
career or provisional employee’s contract during the contract
term.” 	Utah Code Ann. § 53A-8-104(6). 	By its plain language,
subsection (6) applies to any termination, whether it is
termination for unsatisfactory performance or termination for
cause. 	Thus, the District was required to follow the
requirements of subsection (6) when it fired Oman for cause.
Additionally, subsection (9) provides that a district must give
“a written notice of suspension or final termination including
findings of fact upon which the action is based if the suspension
or termination is for cause.” 	Id. § 53A-8-104(9).

15 	No. 20061032
¶44 	Oman does not argue that the District failed to follow
the procedures contained in subsections (6) and (9). 	Indeed, our
review of the record shows that the District clearly fulfilled
its obligations under these two sections.
¶45 	Because the District was not obligated to follow the
requirements of subsections (2) and (3) and because the District
fulfilled the requirements of subsections (6) and (9), we
conclude that the District did not violate UOSTPA. 	We therefore
affirm the district court’s grant of summary judgment to the
District on this point.
III. 	THE DISTRICT COURT CORRECTLY HELD THAT THE DISTRICT DID NOT
VIOLATE THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING
¶46 	Oman argues that the District violated the covenant of
good faith and fair dealing with respect to his termination
because the District conspired against him and treated him
differently from other employees in similar circumstances. 	The
district court concluded that, as a matter of law, there existed
no genuine issue of material fact supporting Oman’s claim for
breach of the implied covenant and therefore dismissed the claim
on summary judgment. 	We affirm.
¶47 	“An implied covenant of good faith and fair dealing
inheres in every contract. 	Under the covenant of good faith and
fair dealing, both parties to a contract impliedly promise not to
intentionally do anything to injure the other party’s right to
receive the benefits of the contract.” 	Eggett v. Wasatch Energy
Corp., 2004 UT 28, ¶ 14, 94 P.3d 193 (citations omitted).
The good faith performance doctrine may be
said to permit the exercise of discretion for
any purpose--including ordinary business
purposes--reasonably within the contemplation
of the parties. 	A contract thus would be
breached by a failure to perform in good
faith if a party uses its discretion for a
reason outside the contemplated range--a
reason beyond the risks assumed by the party
claiming the breach.
Markham v. Bradley, 2007 UT App 379, ¶ 34, 173 P.3d 865 (emphasis
omitted)(internal quotation marks omitted).
¶48 	“[W]hether there has been a breach of good faith and
fair dealing is a factual issue, generally inappropriate for
decision as a matter of law.” 	Republic Group, Inc. v. Won-Door

No. 20061032 	16
Corp., 883 P.2d 285, 291 (Utah Ct. App. 1994). 	Summary judgment
is appropriate only when reasonable minds could not differ in
concluding that the party accused of breaching the covenant did
not wrongfully exercise its discretionary power or contractual
authority for a reason beyond the risks that the other party
assumed or for a reason inconsistent with the other party’s
justified expectations. 	See Olympus Hills Shopping Ctr., Ltd. v.
Smith’s Food & Drug Ctrs., Inc., 889 P.2d 445, 451 (Utah Ct. App.
1994); cf. Sanderson v. First Sec. Leasing Co., 844 P.2d 303, 306
(Utah 1992) (stating that it is appropriate for a court to grant
summary judgment on an issue that is normally a question of fact
when no reasonable jury could conclude that fact exists).
¶49 	The District’s conduct in this case does not constitute
a breach of the implied covenant of good faith and fair dealing.
The Classified Agreement gave the District the contractual
authority and the discretion to terminate Oman’s employment for
any of the reasons listed in the Agreement. 	As previously
mentioned, the district court was bound by the federal court’s
finding that the District had sufficient grounds to terminate
Oman for cause. 	And the district court also properly concluded
that, as a matter of law, the District followed the procedures
under the contract and under UOSTPA when it suspended and
terminated Oman. 	In light of these determinations, the district
court correctly held that no reasonable person could conclude
that the District wrongfully exercised its discretion and
authority for a reason beyond the risks assumed by Oman or for a
reason inconsistent with Oman’s justified expectations. 	We
therefore affirm the district court’s dismissal of Oman’s claim
for breach of the implied covenant of good faith and fair
dealing.
IV. 	THE DISTRICT COURT PROPERLY DISMISSED OMAN’S CLAIM FOR
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
¶50 	Relying upon its dismissal of Oman’s first four causes
of action, the district court concluded that “as a matter of law,
there is no longer any basis in this case for the claim of
intentional infliction of emotional distress” and dismissed the
claim. 	On appeal, Oman argues that summary judgment was
inappropriate and that he should have been allowed to present
this claim to a jury. 	We disagree.
¶51 	In order to properly state a claim for the tort of
intentional infliction of emotional distress,
a plaintiff must plead facts that demonstrate
that the defendant intentionally engaged in

17 	No. 20061032
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.
Bennett v. Jones, Waldo, Holbrook & McDonough, 2003 UT 9, ¶ 58,
70 P.3d 17 (internal quotation marks omitted). 	“Due to the
highly subjective and volatile nature of emotional distress and
the variability of its causations, the courts have historically
been wary of dangers in opening the door to recovery therefor.”
Id. ¶ 59 (citations and internal quotation marks omitted).
¶52 	“If the trial court determines that a defendant’s
conduct was not outrageous as a matter of law, then the
plaintiff’s claim fails, and a court may properly grant the
defendant summary judgment on an intentional infliction of
emotional distress claim.” 	Prince v. Bear River Mut. Ins. Co.,
2002 UT 68, ¶ 38, 56 P.3d 524 (citations omitted).
It is for the court to determine, in the
first instance, whether the defendant’s
conduct may reasonably be regarded as so
extreme and outrageous as to permit recovery,
or whether it is necessarily so. 	Where
reasonable men may differ, it is for the
jury, subject to the control of the court, to
determine whether, in the particular case,
the conduct has been sufficiently extreme and
outrageous to result in liability.
Gygi v. Storch, 503 P.2d 449, 450 (Utah 1972) (quoting
Restatement (Second) of Torts § 46 cmt. h (1965)).
¶53 	“To be considered outrageous, the conduct must evoke
outrage or revulsion; it must be more than unreasonable, unkind,
or unfair.” 	Franco v. Church of Jesus Christ of Latter-day
Saints, 2001 UT 25, ¶ 28, 21 P.3d 198 (citation and internal
quotation marks omitted).
In the employment context, as in other
factual settings, liability under the tort of
intentional infliction of emotional distress
. . . may be found only where the conduct
complained of has been so extreme in degree

No. 20061032 	18
as to go beyond all possible bounds of
decency, so as to be regarded as atrocious
and utterly intolerable in a civilized
society.
45 Am. Jur. 2d Proof of Facts 261 (1986).
¶54 	The District’s conduct in this case does not even
approach atrocious and intolerable conduct. 	This is especially
true in light of our holdings that the District properly followed
the procedures of both the Classified Agreement and UOSTPA when
it terminated Oman for cause. 	No reasonable person could
conclude that firing an employee under the terms of an employment
contract and according to the procedures provided by law is “so
extreme and outrageous as to permit recovery.” 	We therefore
hold, as a matter of law, that the District’s actions were not
outrageous.
¶55 	Because the actions of the District and the District
Employees were not outrageous as a matter of law, the district
court properly held that Oman could not sustain a claim for
intentional infliction of emotional distress. 	We therefore hold
that the district court properly dismissed Oman’s intentional
infliction of emotional distress claim.
V. 	THE DISTRICT COURT CORRECTLY HELD THAT THE DISTRICT EMPLOYEES
DID NOT DEFAME OMAN
¶56 	Oman argues that the District Employees are liable for
defamation because each of them “played a role in fomenting and
engineering the ordeal through which [Oman] has passed.” 	The
district court granted summary judgment in favor of the District
Employees on the defamation claim. 	We affirm that decision.
A. 	The District Court Correctly Struck Portions of Oman’s
Affidavit That Were Inadmissible Hearsay
¶57 	We begin by reviewing the district court’s decision to
strike portions of Oman’s affidavit that supported what Oman
referred to as the “[m]ost obvious” incident of defamation. 	The
incident was a meeting held on June 27, 2002--the day Oman
received his suspension letter--that involved Swain, May, and
many of the District’s maintenance employees. 	In an affidavit,
Oman stated that two of his coworkers who attended the
meeting--Paul Thurgood and Justin Mott--told Oman about
statements made by May during the meeting. 	The alleged
statements made by May were that Oman had been suspended from
employment because he had defrauded the District by visiting

19 	No. 20061032
construction sites during business hours; that Oman was under
criminal indictment, would be found guilty, and would be sent to
prison; that Oman’s conduct was similar to that of a former
District employee who had been found guilty of theft and
terminated; and that the District intended to make an example of
Oman.
¶58 	The Defendants moved to strike the paragraphs of Oman’s
affidavit that relied on what Oman was told by Thurgood and Mott.
The Defendants argued that the statements were hearsay and were
not based on personal knowledge. 	The district court agreed and
granted the Defendants’ motion to strike. 	Having stricken those
paragraphs of the affidavit, the district court concluded that
Oman was “left without any basis for the defamation claim” and
therefore dismissed it. 	On appeal, Oman argues that the district
court misinterpreted the Utah Rules of Evidence. 	We disagree.
¶59 	Testimony recounting direct observation of allegedly
defamatory statements made by a defendant does not constitute
hearsay. 	This is because the allegedly defamatory statements are
not being “offered in evidence to prove the truth of the matter
asserted.” 	Utah R. Evid. 801(c). 	Rather, the statements are
being offered simply to prove that they were made by the
defendant. 	See State v. Olsen, 860 P.2d 332, 335 (Utah 1993)
(“[I]f an out-of-court statement is offered simply to prove that
it was made, without regard to whether it is true, such testimony
is not proscribed by the hearsay rule.” (internal quotation marks
omitted)). 	Thus, in this case, if Thurgood or Mott would have
submitted affidavits in which they recounted the statements they
heard May make, such affidavits would not be hearsay.
¶60 	Nevertheless, Oman’s assertions in his affidavit
concerning Thurgood’s and Mott’s statements do constitute
hearsay. 	Oman’s assertions are being introduced to prove the
truth of the matter asserted: 	that May made the allegedly
defamatory statements. 	Oman’s knowledge is not based on first-
hand observation because he was not present at the meeting in
which May allegedly made the comments. 	Instead, his knowledge is
based on the declarations of third parties. 	Therefore, Oman’s
statements in his affidavit are hearsay. 	See Wayment v. Clear
Channel Broad., Inc., 2005 UT 25, ¶ 47, 116 P.3d 271 (examining
the testimony of two coworkers who testified that a secretary had
told them that the secretary’s boss had made allegedly defamatory
statements about the plaintiff to the secretary and determining
that the testimony was hearsay). 	Because the statements are
hearsay, they are not admissible unless they fall under an
exception to the hearsay rule. 	See Utah R. Evid. 802.

No. 20061032 	20
¶61 	Oman argues that Thurgood’s and Mott’s statements were
not hearsay because they were vicarious admissions under rule
801(d)(2)(D) of the Utah Rules of Evidence. 	Rule 801(d)(2)(D)
states that “[a] statement is not hearsay if . . . [t]he
statement is offered against a party and is . . . a statement by
the party’s agent or servant concerning a matter within the scope
of the agency or employment, made during the existence of the
relationship.” 	Utah R. Evid. 801(d)(2)(D).
¶62 	Oman’s argument on this point is hard to decipher. 	He
notes that Thurgood and Mott are employees of the District, that
May and Swain are also employees of the District, that Thurgood
and Mott were required to attend the meeting, and that May and
Swain have some sort of “supervisory responsibility” over
Thurgood and Mott. 	However, Oman fails to explain how any of
these facts make Thurgood and Mott the agents of May and Swain or
how their statements to Oman regarding what was said in the
meeting is a matter within the scope of their alleged agency.
Oman admits that he can provide no case law to support his agency
argument, and we find no authority for it. 	Thus, Oman’s argument
under rule 801(d)(2)(D) fails.
¶63 	Oman does not point us to any other exception to the
hearsay rule that would render his statements admissible. 	We
therefore conclude that the district court properly struck the
paragraphs of Oman’s affidavit in which he recounted his
coworkers’ statements regarding comments they heard May make
during the June 27 meeting.
B. 	Oman’s Claims of Alleged Defamation Fail
¶64 	In his reply brief on appeal, Oman refers to six
incidents of alleged defamation. 	These include: 	(1) comments
made by May and acquiesced to by Swain at the June 27 meeting,
(2) comments made by Payne during a June 2003 meeting between
Payne and Thurgood, (3) May’s March 21 report sent to the Layton
Police Department, (4) May’s June 28 follow-up report sent to the
Layton Police Department, (5) the March 11 termination letter,
and (6) Webster’s reports of Oman’s alleged misconduct made to
District personnel. 	We address these incidents in turn and
conclude that each claim fails.
¶65 	We first address the incident that Oman refers to as
the “most obvious” incident of defamation: 	the statements made
by May during the June 27 meeting with District maintenance
workers. 	Because we have concluded that the district court
properly struck from Oman’s affidavit the paragraphs discussing
this incident, we likewise affirm the district court’s conclusion

21 	No. 20061032
that striking the paragraphs leaves Oman with no evidentiary
basis for the defamation claim.
¶66 	We next dispose of Oman’s alleged defamation relating
to the June 2003 meeting between Payne and Thurgood and the March
21 report prepared by May. 	Oman did not refer to these incidents
in his pleadings in the district court, and he is therefore
barred from raising them for the first time on appeal. 	See State
v. Labrum, 925 P.2d 937, 939 (Utah 1996) (“Issues not raised
before the trial court are usually waived and cannot be raised on
appeal.”).
¶67 	With regard to Oman’s remaining three incidents of
alleged defamation, the district court did not specifically
discuss them in its order granting summary judgment.
Nevertheless, we conclude that Oman has failed to present
evidence to support them.
¶68 	“Defamation is the act of harming the reputation of
another by making a false statement to a third person.” 	Jensen
v. Sawyers, 2005 UT 81, ¶ 35, 130 P.3d 325. 	To establish a claim
for defamation, a plaintiff must demonstrate that “(1) the
defendant published the statements [in print or orally]; (2) the
statements were false; (3) the statements were not subject to
privilege; (4) the statements were published with the requisite
degree of fault; and (5) the statements resulted in damages.”
DeBry v. Godbe, 1999 UT 111, ¶ 8, 992 P.2d 979.
¶69 	Oman clearly failed to demonstrate these elements in
his pleadings to the district court. 	In his motion opposing
summary judgment, Oman made generalized allegations that
defamatory statements were made in certain instances and in
certain documents. 	However, Oman failed to identify the specific
statements made during the instances or contained in the
documents that were defamatory. 	He also failed to demonstrate
that any such statements were false, not subject to privilege,
and negligently published by defendants. 	See Wayment, 2005 UT
25, ¶ 32 n.13 (“[A] defamation plaintiff who is not a public
figure must . . . establish negligence on the part of the
defendant.”). 	Additionally, Oman failed to show how the
statements resulted in damages.
¶70 	For example, the extent of Oman’s discussion regarding
May’s June 28 report to the Layton Police Department is one
sentence: 	“May’s written report of June 28, 2002 . . . which was
plainly shared with the School District, clearly paints Mr. Oman
as a felon--his vehicle being searched, its contents itemized,
etc.” 	The report detailed the procedures the District had taken

No. 20061032 	22
in giving Oman a notice of suspension and confiscating his office
and vehicle keys and related the results of the subsequent search
of Oman’s District vehicle. 	The only parts of the report that
Oman identifies as being defamatory--his vehicle being searched
and its contents itemized--are facts that did occur. 	Oman does
not show that these facts are false or that they were negligently
included in the report by May. 	Oman cites no other specific
parts of the report that are allegedly defamatory. 	Additionally,
he fails to show how the report, which was sent to police the day
after the District suspended Oman’s employment, caused Oman any
damage.
¶71 	Even on appeal, Oman fails to properly support his
defamation claim. 	Because Oman failed to properly plead and
support the alleged incidents of defamation, we conclude that the
district court properly dismissed his defamation claim. 	We
therefore affirm the district court’s grant of summary judgment
to the District Employees on Oman’s defamation claim.
VI. 	THE DISTRICT COURT DID NOT GRANT SUMMARY JUDGMENT FOR AN
IMPROPER PURPOSE
¶72 	Oman’s final argument on appeal is that the district
court granted summary judgment for an improper purpose. 	Oman
asserts that the court granted summary judgement “as a procedural
device to obtain guidance on governing law from this court.”
While we agree that such conduct would be improper, we see no
basis for Oman’s assertion that the district court acted with an
improper motive in this case. 	The district court reviewed the
District’s motion, considered the memoranda in support and in
opposition to the motion, and heard extensive oral argument. 	The
district court then issued an order in which it recognized the
absence of disputed facts and applied the law to the facts,
ultimately concluding that the District was entitled to summary
judgment. 	The district court’s actions were proper. We therefore
find no error in the court’s grant of summary judgment.
CONCLUSION
¶73 	The district court properly granted summary judgment to
the District and the District Employees on all of Oman’s claims.
Affirmed.
---
¶74 	Chief Justice Durham, Associate Chief Justice Durrant,
Justice Wilkins, and Justice Nehring concur in Justice Parrish’s
opinion.