Sampson v. HB Boys

2024 UT App 56

THE UTAH COURT OF APPEALS

AARON SAMPSON,
Appellant,
v.
HB BOYS, LC,
Appellee.

Opinion
No. 20221003-CA
Filed April 18, 2024

Third District Court, Salt Lake Department
The Honorable Robert P. Faust
No. 210900310

Gregory W. Stevens, Attorney for Appellant
Robert L. Janicki, Michael L. Ford, and Thomas M.
Alldridge, Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES RYAN D. TENNEY and JOHN D. LUTHY concurred.

MORTENSEN, Judge:

¶1 A couple of interactions soured the relationship between
the shift supervisor at a Burger King and a customer, Aaron
Sampson, who in addition to requesting a new burger or a refund,
filmed his interactions with the shift supervisor (Shift Supervisor).
Running out of patience during a second interaction, the soon-to-
be-fired Shift Supervisor assailed Sampson with racist slights and
solicited a nearby acquaintance to assault him. Sampson
subsequently sued the franchise owner, HB Boys, LC (HBB),
under the Utah Civil Rights Act (UCRA)—specifically under the
private right of action provision. HBB moved for summary
judgment, claiming the common law doctrines of respondeat
superior and agency did not apply in these circumstances and
therefore it could not be held liable under the UCRA. The district
Sampson v. HB Boys

court agreed and granted the motion. Sampson appeals, and we
reverse.

BACKGROUND 1

¶2 In February 2019, Sampson was assaulted at a Burger King
owned by HBB. To understand this incident, we must first go back
to another incident that took place about two weeks prior when
Sampson received an undercooked cheeseburger at the same
Burger King. After Sampson took several bites of his burger, he
realized that it was not cooked through and approached the front
counter to ask for a new one or a refund. The employee left the
front counter to take the issue to Shift Supervisor at the back of
the restaurant. Sampson overheard Shift Supervisor in a raised
voice respond, “He can’t have another burger,” and, “If he wants
a burger, I’ll cook him a burger.” Concerned there would be a
problem, Sampson pulled out his phone to record as Shift
Supervisor made her way to the counter. Shift Supervisor asked
him what he wanted, and Sampson said that he would like a
refund. Shift Supervisor told him, “You can’t be eating the stuff
and then expect to get a refund.” Sampson explained that he
didn’t eat the burger because the meat was red and once again
stated that he would like a refund. Shift Supervisor again told him
he could not have one, so Sampson asked for her name, which she
refused to give him. Sampson then asked for a phone number to
file a complaint, and Shift Supervisor pushed a receipt with the
number into his chest, while also trying to grab his phone. Shift

1. We recite the facts of the case and draw all reasonable inferences
in the light most favorable to Sampson as the nonmoving party.
Ockey v. Club Jam, 2014 UT App 126, ¶ 2 n.2, 328 P.3d 880 (“In
reviewing a district court’s grant of summary judgment, we view
the facts and all reasonable inferences drawn therefrom in the
light most favorable to the nonmoving party and recite the facts
accordingly.” (cleaned up)).

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Supervisor threatened to call the police, at which point Sampson
left the restaurant.

¶3 Sampson considered filing a complaint with both the
police and HBB, but before he could do so, a second incident
occurred.

¶4 Two weeks after the first encounter at Burger King,
Sampson and his cousin (Cousin) returned to the same restaurant
to get food before the Super Bowl. Sampson waited in the car
while Cousin ran in to grab the food. After waiting about ten
minutes for Cousin to return, Sampson went into the restaurant
to see what was taking so long.

¶5 When Cousin had attempted to order, Shift Supervisor had
confronted him about filming her “again.” Cousin explained that
she must have him confused with someone else. As their
conversation went on, a large man came to the counter and
confronted Cousin in a “threatening manner.” Cousin continued
to tell the pair that they had the wrong person and he just wanted
to order his food. Shift Supervisor eventually took his order, and
Cousin stepped to the side to wait for what seemed to him like an
intentionally longer than usual amount of time. It was at this point
that Sampson entered the restaurant.

¶6 Shift Supervisor recognized Sampson and asked if he was
there to record her again. Sampson said he didn’t know what she
was talking about. Shift Supervisor responded by directing a
racial epithet at Sampson and calling him a “fool” before
returning to the drive-through area. Sampson again began
recording the incident. He asked Shift Supervisor, “Why are you
calling me out a name like that? Why are you calling me out a
name in front of these customers?” Shift Supervisor called him a
fool again, and Sampson again asked why she was calling him
names. Shift Supervisor then turned to him and said, “Don’t have
my brother beat you up.” Sampson dismissed the comment and
began to leave with Cousin. As they made their way to the exit,

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the same large man from before, a friend of Shift Supervisor and
the “brother” she had referred to (Friend), began exchanging
words with Sampson. Friend told Sampson to get his “black ass
out of [t]here,” to which Sampson responded “fuck you” as he
continued leaving the restaurant. Shift Supervisor then told
Friend more than once to “take care of him.” Following Shift
Supervisor’s request, Friend assaulted Sampson inside the
restaurant and continued to beat him outside in the parking lot.
Sampson called the police, who cited Friend for assault.

¶7 The day after the assault, Sampson called HBB’s district
manager, informing him of the incident. The district manager
conducted a brief investigation before terminating Shift
Supervisor two days later.

¶8 At the time of both incidents, Shift Supervisor was the shift
supervisor and neither the manager nor the assistant manager
was present. In the HBB policy manual, the role of a shift
supervisor is as follows:

The Shift Supervisor (SS) supports the Restaurant
Manager in ensuring delivery on the Guest
Experience through managing the daily operations
of a shift in a single restaurant. The SS helps manage
financial controls, operations, people development,
customer service and compliance during shift for
desired restaurant outcomes (i.e. increased sales,
profitability and employee retention). Within the
scope of the Shift Supervisor role, the SS has
accountability for restaurant operations in the
absence of the Assistant Manager and Restaurant
Manager.

¶9 Prior to starting her employment, Shift Supervisor received
training on HBB’s policies and signed an acknowledgment that
she both understood and would abide by them. The policies
included the following language:

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Sampson v. HB Boys

4.1.1 It is the Company’s policy to respect the rights
of all individuals regardless of the individual’s race,
color, sex, age, religion, national origin or disability.
The Company expects its employees to respect the
dignity and equality of all people.

....

4.2.1 . . . The Company is also committed to
providing its guests with an enjoyable setting that is
free from offensive, abusive or unwelcome conduct
that might interfere with their dining experience.
Accordingly, employees are prohibited from
engaging in conduct which creates an intimidating,
hostile or offensive environment, including . . . racial
harassment[] or other types of harassment.

....

4.2.3 Racial harassment involves the use of
derogatory, unwelcome or offensive racially-
oriented jokes, comments or conduct . . . .

Following her promotion to shift supervisor, Shift Supervisor
signed an acknowledgment that she had participated in a training
reviewing the policies.

¶10 In January 2021, Sampson filed this lawsuit, alleging
that HBB was liable for Shift Supervisor’s behavior under
the UCRA. See Utah Code §§ 13-7-1 to -4. Sampson also
alleged that HBB was vicariously liable for Shift Supervisor’s
behavior under the common law doctrine of respondeat superior. 2

2. Sampson’s amended complaint also included claims against
HBB for negligent employment and negligent infliction of
emotional distress, which Sampson agreed should be dismissed
(continued…)

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HBB filed a motion for summary judgment, arguing that
Sampson could prove neither that HBB discriminated against
him nor that HBB was vicariously liable for Shift Supervisor’s
acts. The district court granted HBB’s motion for summary
judgment.

¶11 The court based its dismissal of Sampson’s claim of
discrimination under the UCRA on a determination that there
was no genuine issue of material fact that (1) HBB had non-
discrimination policies in place and did not tolerate the violation
of those policies; (2) Shift Supervisor completed all required
training and signed the acknowledgment that she understood and
would abide by those policies; (3) Sampson pointed to no actual
authority that HBB gave to Shift Supervisor to act in the manner
that she did; and (4) there could be no implied authority where
the alleged conduct was “explicitly prohibited.” Thus, the district
court determined that common law principles applied to the
UCRA and concluded that Sampson’s claim failed under general
agency principles.

¶12 The court also dismissed Sampson’s claim that HBB was
vicariously liable for Shift Supervisor’s actions as a matter of law
because it determined that “no reasonable jury could conclude
that [Shift Supervisor’s] authority to control the restaurant
involved the authority to call a guest racially derogatory names
and then have a third-party assault that guest.” The court
concluded, “This conduct is clearly not of the general kind she
was employed to perform and cannot be viewed as motivated at
all to serve [HBB]’s interests.”

¶13 Sampson now appeals.

at the summary judgment hearing. Therefore, these claims are not
a part of this appeal.

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ISSUES AND STANDARD OF REVIEW

¶14 Sampson argues that the district court erred in granting
HBB’s summary judgment motion for two reasons. First,
Sampson contends that the district court incorrectly interpreted
the UCRA to apply common law agency principles in finding that
Shift Supervisor had no implied authority to act as she did on
behalf of HBB—and that if a common law principle is required by
the UCRA, the appropriate doctrine is respondeat superior.
Second, Sampson argues that the court erred in finding that HBB
was not vicariously liable under the doctrine of respondeat
superior as Shift Supervisor’s conduct was outside the scope of
her employment. “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
favorable to the nonmoving party.” Nelson v. Target Corp., 2014 UT
App 205, ¶ 11, 334 P.3d 1010 (cleaned up).

ANALYSIS

I. Applying the UCRA

¶15 Section 13-7-3 of the UCRA states,

All persons within the jurisdiction of this state are
free and equal and are entitled to full and equal
accommodations, advantages, facilities, privileges,
goods and services in all business establishments
and in all places of public accommodation, and by
all enterprises regulated by the state of every kind
whatsoever, without discrimination on the basis of
race, color, sex, pregnancy, religion, ancestry or
national origin.

Utah Code § 13-7-3. The UCRA then creates the following public
rights:

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Any business establishment or place of public
accommodation or enterprise regulated by the state
in which a violation of the rights provided in
[s]ection 13-7-3 of this chapter occurs is a public
nuisance. The operator of any such business
establishment or place of public accommodation or
enterprise regulated by the state is guilty of
maintaining a public nuisance and may be enjoined
as hereinafter provided.

Id. § 13-7-4. The UCRA also expressly provides for a private right
of action:

Any person who is denied the rights provided for in
[s]ection 13-7-3 shall have a civil action for damages
and any other remedy available in law or equity
against any person who denies him the rights
provided for in [s]ection 13-7-3 or who aids, incites
or conspires to bring about such denial.

Id. § 13-7-4(3). Finally, the UCRA defines a person as “an
individual, partnership, association, organization, corporation,
labor union, legal representative, trustee, trustee in bankruptcy,
receiver, and other organized groups of persons.” Id. § 13-7-2.

¶16 In its grant of summary judgment for HBB, the district
court determined that the private cause of action section, see id.
§ 13-7-4(3), implicitly incorporates common law principles—
specifically general agency principles—in order for an individual,
like Sampson, to be able to satisfy the elements of a cause of action
against a covered business establishment. But the court concluded
that the undisputed facts showed that Sampson could not meet
the requirements of common law agency principles as a matter of
law. While we agree that common law principles apply here, we
disagree with the district court on both the proper analysis to
reach that conclusion and which common law principles apply.

20221003-CA 8 2024 UT App 56
Sampson v. HB Boys

And we hold that genuine issues of material fact should have
precluded a grant of summary judgment.

¶17 In considering whether common law principles apply in
this statutory context, we first analyze whether common law
principles are expressly incorporated. M.J. v. Wisan, 2016 UT 13,
¶¶ 45–48, 371 P.3d 21. Next, we determine whether common law
principles are statutorily preempted. Bishop v. GenTec Inc., 2002
UT 36, ¶ 10, 48 P.3d 218. Finally, we review whether the
application of common law principles is consistent with the
statute at issue. Id.

¶18 We first address express incorporation. In M.J., our
supreme court faced a similar question when determining
whether, under the Utah Uniform Trust Code, a trust could be
held vicariously liable for a trustee’s acts under the doctrine of
respondeat superior. 2016 UT 13, ¶¶ 45–48. The statute provided
that “a trust is liable for the trustee’s acts performed in the course
of administering the trust.” Id. ¶ 47 (cleaned up). Neither Utah
statute nor caselaw defined this standard, and the court found
caselaw from other jurisdictions too limited to be helpful. Id. Yet
the court determined that the “terms of the statute, in context,
[were] quite clear” because the phrase “[i]n the course of” referred
to “the traditional formulation of the standard for vicarious
liability under” respondeat superior. Id. ¶ 48. Accordingly, the
court interpreted the statute as “incorporating the established”
common law “standard of respondeat superior liability.” Id.
(cleaned up). Here, however, no similar language exists in the
UCRA. And the parties do not point us to any other language
from which we could conclude that common law principles were
considered. Therefore, as far as we can determine, common law
principles are not expressly incorporated into the UCRA.

¶19 Next, we consider whether common law principles are
statutorily preempted. In Bishop, our supreme court addressed
“the interaction between [Utah’s Liability Reform Act] and the

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common law doctrine of respondeat superior.” 2002 UT 36, ¶ 9.
The court noted that Utah had adopted the common law so long
as it did not conflict with the United States or Utah Constitutions,
federal or Utah statutes, “or Utah public policy.” Id.; see also Utah
Code § 68-3-1. Thus, our supreme court in Bishop had to determine
whether the statute preempted the common law. 2002 UT 36, ¶ 9.
The court’s analysis asked (1) whether the statutory language
explicitly preempted the common law, which language “more
often . . . does not appear, or does not directly answer the
question,” and (2) whether the “statute’s structure and purpose,
or nonspecific statutory language, nonetheless reveal[ed] a clear,
but implicit, [preemptive] intent.” Id. (cleaned up). With no
explicit preemptive language, the court nonetheless determined
that the statute implicitly preempted the common law doctrine of
respondeat superior. Id. ¶ 10. The court found implied legislative
intent from the legislature’s objectives in enacting the statute and
the fact that if respondeat superior applied, certain sections of the
statute “would be without meaning or function.” Id. ¶ 11.

¶20 Here, the UCRA neither expressly nor implicitly preempts
application of the common law. Indeed, the parties do not point
to any language that can be construed as preempting the common
law. Moreover, the parties do not identify any tension between
any provisions of the UCRA and the common law. Accordingly,
we conclude that the UCRA itself does not preempt the
application of the common law.

¶21 Finally, we consider whether the application of common
law principles is otherwise consistent with the statute. Two points
buttress a conclusion that common law principles are consistent
with the UCRA. First, the language employed by the UCRA
supports the conclusion that common law principles should
apply. It is clear from the UCRA that a private right of action is to
be available and that the UCRA as a whole, including the private
right of action, is to be construed “liberally” in the interest of
justice. See Utah Code §§ 13-7-1, -4(3). The UCRA provides that a

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person may make a claim for discrimination against “any person
who denies him the rights provided for in [s]ection 13-7-3 or who
aids, incites or conspires to bring about such denial.” Id. § 13-7-
4(3) (emphasis added). The UCRA includes a business entity, such
as HBB, in its definition of “person.” Id. § 13-7-2(2). It is self-
evident that while a business entity like HBB meets the statutory
definition of person, a business entity can only act through others,
i.e., its employees. Thus, defining a business entity as a person
subject to liability under the UCRA’s private right of action
assumes a legal mechanism whereby an entity can be liable for its
employee’s actions, which in turn implicates vicarious liability.
Applying the doctrine of respondeat superior allows us to apply
the UCRA to a business entity as it requires and enables us to
carry out the legislative intent and purpose of the UCRA, which
is “to assure all citizens full and equal availability of all goods,
services and facilities offered by business establishments and
places of public accommodation . . . without discrimination
because of race.” Id. § 13-7-1. 3

3. While the district court correctly determined that common law
principles apply here, its application was incorrect. The court
found that Sampson could not satisfy the elements of a
discrimination claim under the UCRA because he “point[ed] to no
actual authority [HBB] gave to [Shift Supervisor] to conduct
herself in the manner alleged.” Actual authority is an agency
doctrine that “relates to a principal’s manifestations to the agent.”
Burdick v. Horner Townsend & Kent, Inc., 2015 UT 8, ¶ 21, 345 P.3d
531. Actual authority can be either express or implied. Drew v.
Pacific Life Ins. Co., 2021 UT 55, ¶ 54, 496 P.3d 201. “Express
authority exists whenever the principal directly states that its
agent has the authority to perform a particular act on the
principal’s behalf. Implied authority includes acts which are
incidental to, or are necessary, usual, and proper to accomplish or
perform, the main authority expressly delegated to the agent.” Id.
(continued…)

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Sampson v. HB Boys

¶22 Second, applying common law principles, particularly the
doctrine of respondeat superior, to the UCRA is consistent with
federal cases that have applied respondeat superior to analogous
federal public accommodation and civil rights statutes to hold
private employers vicariously liable for the acts of their
employees. See, e.g., General Bldg. Contractors Ass’n v. Pennsylvania,
458 U.S. 375, 403–04 (1982) (O’Connor, J., concurring)
(emphasizing that “nothing in the Court’s opinion prevents the
respondents from litigating the question of the employers’
liability under [42 U.S.C. § 1981] by attempting to prove the
traditional elements of respondeat superior” because the Court
determined only that the petitioners could not be held vicariously
liable due to a failure of the trial court to make findings that
support the application of the doctrine (cleaned up)); Arguello v.
Conoco, Inc., 207 F.3d 803, 810–12 (5th Cir. 2000) (discussing
general agency principles in the context of a section 1981 claim
and reversing summary judgment on scope of employment);
Miller v. Bank of Am., 600 F.2d 211, 213 (9th Cir. 1979) (applying
respondeat superior to section 1981 and section 2000 claims);
McKinnon v. YUM! Brands, Inc., No. 1:15-cv-00286, 2017 WL
3659166, at *6–7 (D. Idaho Aug. 24, 2017) (applying respondeat
superior to section 1981 and section 2000 claims). 4

(cleaned up). Here, neither express nor implied authority exists as
HBB had clear policies, which Shift Supervisor was trained on
multiple times, against discrimination and mistreatment of its
customers. Therefore, we agree with Sampson that the correct
doctrine to apply here is respondeat superior.

4. HBB concedes that federal “cases recognize vicarious liability
under 42 U.S.C. § 1981.” However, HBB attempts to distinguish
the cases by arguing that the decisions are based on the language
of federal statutes, which “do not have any controlling authority
over a claim under the [UCRA].” HBB is, of course, correct that
(continued…)

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federal cases do not having binding authority in construing a
Utah statute, but those authorities are still persuasive. When
addressing an issue that has not yet been decided by our courts,
looking at the decisions of other jurisdictions informs our
analytical process. For example, the United States Supreme
Court’s inclination to apply respondeat superior to public
accommodation statutes is particularly informative and
persuasive here. See General Bldg. Contractors Ass’n v. Pennsylvania,
458 U.S. 375, 403–04 (1982) (O’Connor, J., concurring).
HBB further argues that it is significant that some federal
courts do not recognize the application of respondeat superior
under 42 U.S.C. § 1983. See Monell v. Department of Social Services,
436 U.S. 658, 691–92 (1978) (denying the application of respondeat
superior to public employers under section 1983); Tsao v. Desert
Palace, Inc., 698 F.3d 1128, 1139 (9th Cir. 2012) (applying the
decision in Monell to private employers). But we conclude that this
actually supports our determination that respondeat superior is
the appropriate doctrine to apply to the UCRA. Claims under
section 1983 involve an entirely different analysis—such as the
“under color of any law” analysis, Monell, 436 U.S. at 691–92
(cleaned up)—from public accommodation statutes like section
1981, with a cause of action reading similarly to the UCRA’s. The
United States Supreme Court itself alludes to the significance of
this difference by at least indicating that it will apply respondeat
superior to section 1981 claims, which are more similar to the
UCRA, and not section 1983 claims. See General Bldg. Contractors
Ass’n, 458 U.S. at 403–04 (O’Connor, J., concurring) (indicating, at
least in Justice O’Connor’s concurrence, that the Court would
apply respondeat superior to section 1981 claims); cf. Monell, 436
U.S. at 691 (“In particular, we conclude that a municipality cannot
be held liable solely because it employs a tortfeasor—or, in other
words, a municipality cannot be held liable under section 1983 on
a respondeat superior theory.”).

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¶23 For all these reasons, we conclude that common law
principles, and particularly the doctrine of respondeat superior,
apply in the context of UCRA cases.

II. Applying Respondeat Superior

¶24 Under the common law agency doctrine of respondeat
superior, “an employer can be held vicariously liable for the torts
of her employees.” Burton v. Chen, 2023 UT 14, ¶ 15, 532 P.3d 1005.
Employers are “liable for an employee’s actions that occur within
the scope of employment when performing work assigned by the
employer or engaging in a course of conduct subject to the
employer’s control.” Id. (cleaned up). Employee’s acts are within
the scope of employment if “(1) the employee’s conduct is of the
general kind the employee is employed to perform and (2) the
employee’s acts were motivated, at least in part, by the purpose
of serving the employer’s interest.” Aguila v. Planned Parenthood of
Utah, 2023 UT App 49, ¶ 21, 530 P.3d 959 (cleaned up). This
determination is a question of fact that “must be submitted to a
jury whenever reasonable minds may differ as to whether the
employee was at a certain time involved wholly or partly in the
performance of his employer’s business or within the scope of
employment.” Clover v. Snowbird Ski Resort, 808 P.2d 1037, 1040
(Utah 1991) (cleaned up). We conclude that, here, reasonable
minds could differ as to whether Shift Supervisor was acting
within the scope of her employment, so the issue is not
appropriate for summary judgment.

¶25 Regarding the first factor, the “scope of authority refers to
those acts which are so closely connected with what the servant is
employed to do, and so fairly and reasonably incidental to it, that
they may be regarded as methods, even though quite improper
ones, of carrying out the objectives of the employment.” Wardley
Better Homes & Gardens v. Cannon, 2002 UT 99, ¶ 26, 61 P.3d 1009
(cleaned up). Here, as shift supervisor, Shift Supervisor was in
charge of “tak[ing] care of the customers and mak[ing] sure

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everything [was] running smooth with the shifts throughout,”
was given “control over the restaurant” in the absence of the
assistant manager or store manager, and managed “the daily
operations of a shift,” including “people development, customer
service and compliance.” Additionally, on more than one
occasion, the restaurant had “people who [came] in there acting
crazy, especially [during] night shifts.” Therefore, given the
frequency of dealing with difficult customers, and given that Shift
Supervisor was charged with making sure the shifts ran smoothly,
reasonable minds might differ as to whether Shift Supervisor’s
conduct while handling a customer like Sampson, as improper as
it might have been, was “of the general kind the employee is
employed to perform.” See Drew v. Pacific Life Ins. Co., 2021 UT 55,
¶ 56, 496 P.3d 201 (cleaned up).

¶26 Moreover, Shift Supervisor herself treated the February
incident as one that was in the normal course of her employment.
Once police arrived, she contacted her manager to let her know
what had transpired, which was also what she did after the first
incident with Sampson at the restaurant and was what she and all
other shift supervisors did on a regular basis “if they need[ed]
something.”

¶27 With regard to whether an employee’s acts are at least in
part motivated by serving the employer’s interests, “[t]he notion
that an employee’s illegal conduct can never (i.e., as a matter of
law) fall within the course and scope of employment is simply not
supported by our caselaw.” Aguila, 2023 UT App 49, ¶ 21. And
“an employer is vicariously liable for an employee’s intentional
tort if the employee’s purpose in performing the acts was either
wholly or only in part to further the employer’s business, even if
the employee was misguided in that respect.” Id. (cleaned up); see
id. ¶¶ 23–24 (finding reasonable minds can differ as to whether an
employer was vicariously liable for an employee’s act of
publicizing a patient’s private healthcare information); Clark v.
Pangan, 2000 UT 37, ¶¶ 8, 19, 998 P.2d 268 (holding that “the

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intentional tort of battery is not outside the scope of employment
as a matter of law” and citing numerous cases to demonstrate that
the court “has long recognized that an employer can be
vicariously liable for the intentional tortious acts of employees
under the theory of respondeat superior if those acts are
conducted within the scope of employment”).

¶28 As shift supervisor, Shift Supervisor was charged with
managing the operation of the restaurant during the shift to
achieve “desired restaurant outcomes (i.e. increased sales,
profitability and employee retention).” Thus, reasonable minds
also may differ as to whether her tortious actions, as misguided
as they might have been, were at least motivated “in part” to
benefit HBB. Certainly, maintaining a smoothly running shift
without the disturbance of a problematic customer can yield
“desired restaurant outcomes.” And whether HBB had anti-
discrimination policies in place 5 that were designed to preclude
Shift Supervisor’s alleged discriminatory behavior is not, in and

5. While the district court’s decision to grant summary judgment
under both the UCRA and respondeat superior claims was greatly
influenced by the fact that HBB had anti-discrimination policies
in place, HBB itself did not rely on those policies in terminating
Shift Supervisor’s employment. HBB terminated Shift Supervisor
due to her handling of the cheeseburger incident during
Sampson’s first visit to the restaurant; indeed, HBB concluded
Sampson should have received a hamburger cooked to his liking
(i.e., having it his way). HBB did not reach a conclusion that Shift
Supervisor’s behavior in conjunction with the assault on Sampson
was “racially motivated,” and HBB did not conclude that Shift
Supervisor violated company discrimination policies with regard
to that incident. Thus, reasonable minds may differ as to how to
weigh the fact that HBB’s anti-discrimination policies played no
role in its decision to terminate Shift Supervisor, which in turn
would affect the determination of whether Shift Supervisor was
acting in the scope of her employment.

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of itself, determinative of whether Shift Supervisor was acting
with a purpose of serving HBB’s interests. Phillips v. JCM Dev.
Corp., 666 P.2d 876, 882 (Utah 1983) (holding that a broker could
be subject to liability for a salesperson’s tortious acts despite being
“in complete violation of [the broker’s] established policies and
practices”).

¶29 Thus, applying the doctrine of respondeat superior to Utah
Code section 13-7-4(3), we agree with Sampson that the existence
of disputed material facts precludes summary judgment under
the UCRA, and therefore the court’s grant of summary judgment
under this common law cause of action was improper as well.

CONCLUSION

¶30 The doctrine of respondeat superior applies to the UCRA’s
private cause of action section. Applying respondeat superior to
the facts of this case presents a dispute of material fact as to
whether Shift Supervisor acted within the scope of her
employment when interacting with Sampson. Therefore, we
reverse the district court’s grant of summary judgment on
Sampson’s claims.

20221003-CA 17 2024 UT App 56