Opinion
20200296-CA
07-06-2023
Greg Graves, Appellant, v. Utah County Government, Nathan Ivie, Cammie Taylor, and William Lee, Appellees.
Ryan J. Schriever, Attorney for Appellant Andrew M. Morse and Andrew L. Roth, Attorneys for Appellees
Fourth District Court, American Fork Department The Honorable Robert C. Lunnen No. 190100114
Ryan J. Schriever, Attorney for Appellant
Andrew M. Morse and Andrew L. Roth, Attorneys for Appellees
Judge Michele M. Christiansen Forster authored this Opinion, in which Justice Jill M. Pohlman and Senior Judge Kate Appleby concurred.
Justice Jill M. Pohlman began her work on this case as a member of the Utah Court of Appeals. She became a member of the Utah Supreme Court thereafter and completed her work on the case sitting by special assignment as authorized by law. See generally Utah R. Jud. Admin. 3-108(4). Senior Judge Kate Appleby sat by special assignment as authorized by law. See generally id. R. 11-201(7).
OPINION
CHRISTIANSEN FORSTER, JUDGE:
¶ 1 Cammie Taylor lodged a complaint against then-County Commissioner Greg Graves, alleging that he sexually harassed and retaliated against her while she was employed as the human resources director for Utah County (County). The County hired an independent investigator, who produced an internal report (Report) to address Taylor's allegations. In response to public records requests from two media outlets, County Commissioners Nathan Ivie and William Lee (collectively, Commissioners) voted to disclose redacted copies of Taylor's complaint and the Report. After the vote, the Commissioners addressed the press and the public regarding the accusations and the investigation, publicly named Graves as the subject of the Report, and called on him to resign.
¶ 2 Graves sued the County, the Commissioners, and Taylor, bringing causes of action for false light invasion of privacy, defamation, slander/libel per se, intentional infliction of emotional distress, and negligent infliction of emotional distress. The district court granted the motion to dismiss Graves's complaint, and Graves appealed. We affirm in part and reverse in part.
BACKGROUND
¶ 3 We recite here the relevant allegations Graves made in his civil complaint filed in the district court.
¶ 4 Graves served as a county commissioner for three years, from 2015 to 2018. He was regarded as a "controversial figure" in local politics. Graves claimed that his "often contentious relationship" with his fellow commissioners led to "fierce policy debates," an accusation that he was "not acting like a conservative," and threats "to force his resignation." Graves claimed that he "briefly switched his party affiliation under the belief that it would deter Ivie and Lee from forcing his resignation because of the likelihood he would be replaced by a Democrat if he was registered as a Democrat."
¶ 5 Graves alleged that he was so controversial that "a group of influential Utah County politicians . . . began attending what they called 'Power Meetings' at the County Courthouse," the "primary purpose" of which "was to institute a write-in campaign to prevent [his] election" and "to find ways to impugn [his] character and reputation." As an "example of the active campaign to impugn [his] reputation," Graves alleged that "the curator of an influential conservative blog in Utah County ran an article reporting that Graves had accessed an account on a website known as Ashley Madison." Graves alleged that the Appellees knew the Ashley Madison story would predispose "many Utah County constituents . . . to believe Graves would sexually harass an employee."
Ashley Madison describes itself as "[t]he first married dating website" and has adopted as its motto, "Life is short. Have an affair." See Ashley Madison, https://www.ashleymadison.com/en -us/ [https://perma.cc/5YS6-MM9V].
¶ 6 Graves alleged that, in September 2017, Lee pulled him "into his office" and told him to "stay away" from Taylor. Approximately a month later, Taylor filed a "Notice of Charge of Discrimination" with the Utah Antidiscrimination and Labor Division of the Utah Labor Commission (UALD complaint) alleging Graves had sexually harassed and discriminated against her. Taylor sent a notice of claim to the County.
¶ 7 Graves asserted that "Taylor fabricated allegations of sexual harassment against [him] for malicious and improper purposes, including . . . retaliation, leverage to avoid termination, and/or leverage to force a settlement with Utah County when she was terminated from her job." Graves claimed that "Taylor was worried that Utah County would terminate her employment because of several issues in the human resources department," including the settlement of a grievance made against Taylor. Graves alleged that Taylor was also concerned about the future of her job because he was interested in "the potential of privatizing human resources." In addition, Graves "did not believe Taylor performed her job adequately" and had "openly stated to other employees that if it were his choice he would terminate Taylor's employment."
¶ 8 According to Graves, Taylor's "false allegations of sexual harassment" included claims that Graves (1) made "inappropriate statements to her of a sexual or suggestive nature"; (2) rubbed her knee and said, "Don't show it if you don't want it touched"; (3) told her that "he was unhappy in his marriage and wanted to get divorced"; (4) asked her if she dated divorced men; and (5) told her that "he could get sex anywhere because women are attracted to the power he had as a commissioner." He denied making these statements.
¶ 9 The County hired an investigator to conduct a factual inquiry into Taylor's allegations of sexual harassment and gender discrimination. Graves asserted that the investigator was "unable to conclude" that Graves had "engaged in any unwelcome sexual or suggestive behavior or conduct toward" Taylor.
While the investigator was "unable to identify any eyewitnesses who could either confirm or deny the various allegations of sexual or suggestive comments and behaviors by" Graves, the Report can hardly be said to have exonerated Graves. The investigator stated, "[Taylor] appears to be a credible witness, and the evidence shows that she complained to several [C]ounty employees that [Graves's] 'harassing' behavior made her feel uncomfortable." Moreover, the investigator stated that the "majority of witnesses interviewed confirmed that [Graves] treated [Taylor] very well in early 2017, but that his behavior and conduct toward [Taylor] changed dramatically around early May 2017 when [Taylor] asked him not to accompany her on . . . [a] training trip," after which Graves "began treating [Taylor] in a very poor manner, [waving] his buttocks in the air near her face, referring to her as a 'worthless piece of shit' and 'stupid' and going out of his way to tell others (both in public and in private) how he wanted her to be fired." Finally, the investigator reported that Graves displayed a general pattern of bad behavior: "[B]ased on statements from nearly all of the witnesses, [Graves] is widely viewed as a workplace 'bully,' 'dishonest,' 'demeaning,' 'intimidating,' 'threatening,' 'explosive,' and someone with whom personal interaction is to be avoided as much as possible." The investigator concluded that Graves "treated [Taylor] in an unfair, demeaning and offensive manner . . . and that this behavior was fully consistent with the way [Graves] treats many other employees of the County."
¶ 10 Graves's complaint alleged that around this same time, "Taylor sent an email to media reporter(s), or contacted the media through other means, informing the media of the complaint and/or the notice of claim she had filed." Two media outlets made public records requests under the Government Records Access and Management Act (GRAMA), see generally Utah Code §§ 63G-2-101 to -901, for "the complaint against Commissioner Graves," "[a]ll emails sent between Utah County Commissioner Greg Graves and Cammie Taylor, the Utah County personnel director," and "any complaint of sexual harassment against Utah County Commissioner Greg Graves." The County initially denied the GRAMA requests because it had not yet received the complaint and "there were no documents to produce." And once the County received the complaint, it continued to deny the requests pending an investigation.
¶11 The Commissioners later held a GRAMA appeal hearing regarding the documents related to Graves's alleged misconduct; although he was still a commissioner, Graves did not attend the hearing. The Commissioners voted to release the requested documents but to redact personal identification from them. Immediately after the hearing, however, Ivie addressed the media, announcing that the Report was about Graves and that Ivie would release a prepared statement on his official social media page. Ivie's statement read,
I voted to release information pertaining to internal investigations into Commissioner [Graves's]
conduct. I felt it important that his actions and the claims filed against him by multiple employees receive due process before entering the public arena. The conclusion of that investigation confirmed my personal feelings. He abuses his power, intimidates employees and is vindictive to those who disagree with him.
. . . .
. . . I believe Mr. Graves should resign his position effective immediately.
. . . .
. . . After [observing] multiple people in my office in tears, others in anger and all in complete frustration, I feel compelled to take this action for the benefit of the citizens of Utah County and those who dedicate their lives working for those citizens.
Lee reposted Ivie's statement to his own official social media page.
¶12 The County released the redacted UALD complaint, but Graves's name was not redacted from it. The next day, the County released the Report, in which all the names-including Graves's-and identifying information were redacted. Graves alleged that the Commissioners "knew or should have known" that publishing the UALD complaint (with his name included) "without simultaneously releasing the [Report] would portray Graves in a false light in that people would falsely believe he was guilty of sexual harassment." Following the release of the UALD complaint, the media reported extensively about the allegations of Graves's sexual harassment, leading to calls for his resignation.
Graves's civil complaint referred to "complaints" being released, but it is not clear if he was referring to other complaints filed by Taylor in addition to the UALD complaint or if he was referring to the multiple allegations made by Taylor that were included in her UALD complaint or that were referenced in the Report. We employ the singular for consistency.
¶ 13 Graves's lawsuit against the Commissioners, Taylor, and the County alleged that Taylor's accusations against him were false and that she acted with malice in asserting claims of sexual harassment and gender discrimination. Graves also claimed that the Commissioners "acted with malice in publishing the false statements." He asserted that this conduct "irreparably damaged" his reputation, resulting in loss of employment opportunities, marital problems, bullying of his children, and exacerbation of a preexisting traumatic brain injury. He sought economic and non-economic damages.
¶ 14 In response, the County, the Commissioners, and Taylor filed a motion to dismiss for failure to state a claim on which relief could be granted, see Utah R. Civ. P. 12(b)(6), arguing that Graves's claims were barred by the Governmental Immunity Act of Utah (GIA), see generally Utah Code §§ 63G-7-101 to -904; that Graves did not and could not properly plead that the Commissioners or Taylor acted with actual malice; and that Graves's infliction of emotional distress claims failed as a matter of law.
¶ 15 The district court orally granted the motion to dismiss. Its subsequent written order explained that, under Deseret News Publishing Co. v. Salt Lake County, 2008 UT 26, 182 P.3d 372, the Commissioners and the County were required to disclose the Report because it was not a protected record, and that accordingly, "as a matter of law," Graves could not "prove they acted with actual malice." As to Taylor's conduct-including lodging the UALD complaint and allegedly surreptitiously disclosing to the media her claims of sexual harassment and gender discrimination-the court concluded that Graves's claims were barred by the GIA because reporting and investigating sexual harassment allegations are mandatory and both actions are governmental functions. Moreover, the district court concluded that Taylor's intentional acts, including her alleged leaking of the sexual harassment allegations to the media, were activities for which immunity was not waived. See Utah Code § 63G-7-201(4). Accordingly, the court dismissed with prejudice Graves's claims of false light invasion of privacy, defamation, and slander/libel per se; the parties stipulated to the dismissal with prejudice of the emotional distress claims. Graves appeals.
The district court's language referred repeatedly to the release of the "investigative report," hence our use of "Report" above. It is unclear why the court did not include a reference to the UALD complaint or the notice of that complaint Taylor provided to the County. But we note that the record uses generally inconsistent terminology related to the UALD complaint.
ISSUES AND STANDARDS OF REVIEW
¶ 16 The first issue on appeal is whether the district court erred in dismissing Graves's claims based on governmental immunity. We generally review a district court's decision to dismiss a case under rule 12(b)(6) for correctness. Blanch v. Farrell, 2018 UT App 172, ¶ 14, 436 P.3d 285. And "dismissal of . . . claims based on governmental immunity is a determination of law that we afford no deference." Heughs Land, LLC v. Holladay City, 2005 UT App 202, ¶ 5, 113 P.3d 1024 (quotation simplified), cert. denied, 124 P.3d 634 (Utah 2005).
¶ 17 The other issue on appeal is whether Graves's complaint was properly dismissed because he failed to plead sufficient facts supporting his allegations. Graves's defamation claims were dismissed pursuant to a rule 12(b)(6) motion. "A motion to dismiss should be granted only if, assuming the truth of the allegations in the complaint . . ., it is clear that the plaintiff is not entitled to relief." Hudgens v. Prosper, Inc., 2010 UT 68, ¶ 14, 243 P.3d 1275 (quotation simplified). In reviewing a motion to dismiss for failure to state a claim upon which relief can be granted, we accept the facts pleaded as true, interpreting those facts and reasonable inferences drawn from those facts in the light most favorable to the non-moving party. Moss v. Pete Suazo Utah Athletic Comm'n, 2007 UT 99, ¶ 8, 175 P.3d 1042. But "[w]hen reviewing claims of defamation, . . . [an appellate] court takes a slightly different approach," Jacob v. Bezzant, 2009 UT 37, ¶ 18, 212 P.3d 535, because a defamation claim "never arrives at court without its companion and antagonist, the First Amendment, in tow," O'Connor v. Burningham, 2007 UT 58, ¶ 27, 165 P.3d 1214. Thus, "[t]o accommodate the respect we accord its protections of speech, the First Amendment's presence merits altering our customary rules of review by denying a nonmoving party the benefit of a favorable interpretation of factual inferences." Id. "Accordingly, whether a challenged statement is susceptible to a defamatory interpretation is a question of law that we consider de novo without indulging inferences in favor of the nonmoving party." Pipkin v. Acumen, 2020 UT App 111, ¶ 13, 472 P.3d 315 (quotation simplified).
¶ 18 Moreover, the "sufficiency of [a] plaintiff's pleadings, which are construed together, must be determined by the facts pleaded rather than the conclusions stated." Ellefsen v. Roberts, 526 P.2d 912, 915 (Utah 1974). Finally, the propriety of a rule 12(b)(6) dismissal is a question of law that we review for correctness, giving no deference to the district court's determination. Wright v. University of Utah, 876 P.2d 380, 382 (Utah Ct. App. 1994), cert. denied, 883 P.2d 1359 (Utah 1994).
On appeal, Graves raises additional challenges to the dismissal of his complaint. But "this court need not analyze and address in writing each and every argument, issue, or claim raised. Rather, it is a maxim of appellate review that the nature and extent of an opinion rendered by an appellate court is largely discretionary with that court." Carter v. State, 2012 UT 69, ¶ 16 n.7, 289 P.3d 542 (quotation simplified). Thus, "[t]o the extent that we have not addressed" these other issues, "we have determined that they are foreclosed" by the ensuing analysis. See State v. Pullman, 2013 UT App 168, ¶ 46 n.11, 306 P.3d 827.
ANALYSIS
I. No Immunity for Governmental Employees Committing Willful Misconduct
¶ 19 Governmental immunity shields the State and its employees acting in their official capacities from suit unless the State expressly consents to being sued. In Utah, the GIA states that except as otherwise provided by the GIA, "each governmental entity and each employee of a governmental entity are immune from suit for any injury that results from the exercise of a governmental function." Utah Code § 63G-7-201(1); see also Wheeler v. McPherson, 2002 UT 16, ¶ 10, 40 P.3d 632 ("The [GIA] grants the state and its political subdivisions broad, background immunity from injuries that result due to the exercise of a governmental function." (quotation simplified)). A governmental function is defined as "each activity, undertaking, or operation performed by a department, agency, employee, agent, or officer of a governmental entity." Utah Code § 63G-7-102(5)(b); see also Scott v. Universal Sales, Inc., 2015 UT 64, ¶ 58, 356 P.3d 1172 (noting that the legislature has "restricted governmental liability . . . by expanding the [GIA's] definition of 'governmental function' . . . and the statute currently defines that term as encompassing anything the government decides to do").
¶ 20 At the same time, the GIA waives governmental immunity in certain circumstances and specifically "defines narrower parameters" where immunity is expressly waived and "legal liability may arise." See Wheeler, 2002 UT 16, ¶ 10. To determine if an employee of a "governmental entity is immune from suit under the [GIA], we apply a three-part test, which assesses "(1) whether the activity undertaken is a governmental function; (2) whether governmental immunity was waived for the particular activity; and (3) whether there is an exception to that waiver." Van de Grift v. State, 2013 UT 11, ¶ 8, 299 P.3d 1043 (quotation simplified). The first portion of the test is discussed infra ¶¶ 26-27, 32; the second portion is discussed infra ¶¶ 28-30, 33-34; and the third portion is discussed infra ¶ 24 note 9.
¶ 21 Two statutory provisions at issue in this case speak to whether immunity applies to the actions alleged in Graves's complaint. First, the district court concluded that as to the individual defendants, section 63G-7-201(4) of the GIA barred "the claims of intentional acts against the individual Defendants." That provision states that a "governmental entity, its officers, and its employees are immune from suit, and immunity is not waived, for any injury proximately caused by a negligent act or omission of an employee committed within the scope of employment, if the injury arises out of or in connection with, or results from . . . libel, slander, deceit . . .; the institution or prosecution of any judicial or administrative proceeding, even if malicious or without probable cause; [or] a misrepresentation by an employee whether or not the misrepresentation is negligent or intentional." Utah Code § 63G-7-201(4)(b), (e), (f) (emphasis added).
¶ 22 This provision, by its plain terms, states that immunity is not waived for an injury caused by a negligent act of a governmental employee if that injury arises out of the enumerated intentional acts. See Atiya v. Salt Lake County, 852 P.2d 1007, 1011 (Utah Ct. App. 1993) ("Section 63-30-10 applies only to injury proximately caused by a negligent act or omission of an employee committed within the scope of employment. In the complaint in the present case, [the plaintiff] does not allege injury caused by a negligent act of the county or its employee; rather, she specifically alleges that the county's intentional acts caused her emotional distress. Accordingly, section 63-30-10 is inapposite to the case at bar." (quotation simplified)). It does not, however, purport to immunize individual governmental employees for their own intentional conduct. Section 63G-7-202(3)(c)(i) speaks to that. It states that a "plaintiff may not bring or pursue any civil action or proceeding based upon the same subject matter against the employee . . . whose act or omission gave rise to the claim, unless . . . the employee acted or failed to act through fraud or willful misconduct." Utah Code § 63G-7-202(3)(c)(i) (emphasis added). And the GIA defines "willful misconduct" as "the intentional doing of a wrongful act." Id. § 63G-7-102(11). The only thing this can mean is that individual immunity is waived for the acts of a governmental employee if those acts are fraudulent or the result of willful misconduct.
This section is the predecessor to the current section. The earlier statute spoke of immunity being waived for negligent acts except if the injury arose out of enumerated torts, while the current statute reverses polarity by speaking of immunity not being waived for a negligent act if the injury arises out of the enumerated torts. Compare Utah Code § 63-30-10 (1992), with id. § 63G-7-201(4) (2022).
¶ 23 In Salo v. Tyler, 2018 UT 7, 417 P.3d 581, a case involving a defamation claim in the context of summary judgment, our supreme court confirmed this understanding when it explained that individual employees could be liable under the GIA for intentionally making a defamatory statement that they knew to be false. See id. ¶ 44 ("A defamatory statement is wrongful only if it is false. And defamation is intentional (and thus willful) only if the defendant had knowledge of its falsity."). And this is consistent with the reasoning in several other cases. See Hoyer v. State, 2009 UT 38, ¶ 31, 212 P.3d 547 (explaining that the GIA "provides that an action may be brought against individuals in certain cases where intentional damage is caused," namely "if the employee acted or failed to act through fraud or willful misconduct" (quotation simplified)), abrogated on other grounds as recognized by True v. Utah Dep't of Transp., 2018 UT App 86, 427 P.3d 338; Miller v. Utah, 638 Fed.Appx. 707, 716 (10th Cir. 2016) ("The [GIA] . . . permits tort claims against individual employees if they acted or failed to act through fraud or willful misconduct." (quotation simplified)); Rossi v. University of Utah, No. 2:15-CV-00767, 2016 WL 3570620, at *7 (D. Utah June 24, 2016) ("In light of [the plaintiff's] plausible factual allegations that [a university employee] engaged in willful misconduct related to his conflict of interest, [the] defendants' reliance on the [GIA] is misplaced and cannot support dismissal of this claim. The [GIA] specifically waives immunity for a governmental actor who injures another due to fraud or willful misconduct." (quotation simplified)); Cavanaugh v. Woods Cross City, No. 1:08-CV-32-TC-BCW, 2009 WL 4981591, at *6 (D. Utah Dec. 14, 2009) ("Because [the police officer] is an employee, not a governmental entity, his immunity is waived when it is shown he acted or failed to act through fraud or willful misconduct." (quotation simplified)), aff'd, 625 F.3d 661 (10th Cir. 2010).
The Appellees cite Cline v. State, 2005 UT App 498, 142 P.3d 127, cert. denied, 133 P.3d 437 (Utah 2006)-a memorandum decision issued by this court-for the proposition that Utah Code section 63G-7-201(4) immunizes governmental employees from suit for libel, slander, and fraud. We acknowledge this decision seems to adopt an alternate view from that which we adopt today. However, Cline appears to overlook the negligence language in the statute; conflicts with the negligence perspective employed by Atiya v. Salt Lake County, 852 P.2d 1007, 1011 (Utah Ct. App. 1993); is at odds with the caselaw we have identified, see supra ¶ 23; and does not address the availability of action against an employee who acts through fraud or willful misconduct, see Utah Code § 63G-7-202(3)(c)(i).
¶ 24 In sum, immunity is waived for individual employees when they commit willful misconduct by making and maliciously repeating false claims, as Graves has alleged happened here.
Neither party has suggested, nor are we aware of, any exception to the waiver of immunity that may be applicable here.
II. Graves's Claims Against Taylor and the Commissioners
A. Taylor's Filing of the UALD Complaint and Alleged Disclosure to Media
¶ 25 Graves asserts that the district court erred in dismissing his complaint alleging that Taylor harmed and defamed him by publishing false statements about him "in print in the form of a discrimination complaint and a written statement to the investigator." Graves also alleged that-before the UALD complaint had been made public-Taylor "sent an email to media reporter(s), or contacted the media through other means, informing the media of the complaint and/or the notice of claim she had filed." Graves argues that the district court erred in dismissing his claim that Taylor defamed him when she allegedly disclosed this information.
¶ 26 As a threshold matter, an employee in Taylor's position would be acting in an official capacity when lodging a complaint of sexual harassment and making statements to an investigator hired by the County. Graves acknowledges that "Taylor was, at all times relevant to the allegations in [his complaint], an employee of Utah County" and that she "was at all times relevant . . . the manager of the human resources department for Utah County." Reporting allegations of harassment and discrimination is contemplated by statutes governing public employees and by municipal policies. See, e.g., Utah Code § 17-33-10 (stating that each county "shall establish in its personnel rules and regulations a grievance and appeals procedure," that "[t]he procedure shall be used to resolve disputes arising from grievances . . ., including acts of discrimination," and that "[a]ny charge . . . of discriminatory or prohibited employment practice . . . can be filed with the Division of Antidiscrimination and Labor within the Labor Commission"). And the County's internal policies in effect at the time had the following provision: "If employees believe that they have been subject to sexual harassment or unwanted sexual attention, they should . . . [r]eport the incident immediately to any of the following: A supervisor in the employee's chain of command, the Director of Human Resource Management, any County Commissioner, or the County Attorney." See Human Resource Rules and Regulations, Policy VII(L)(5)(a), https://www.utahcounty.gov/apps/WebLink/Dept/PERS/RR_7_X .pdf [https://perma.cc/84G3-WYUS]. Moreover, County policy directs that "[a]ll incidents must be reported regardless of their seriousness." Id. Given that Taylor lodged her complaint and spoke with the investigator in her capacity as a County employee and in compliance with County policy, her complaint about Graves and her response to an investigation were clearly governmental functions.
The current policy has been streamlined to include other forms of workplace harassment. See Utah County Human Resources Policies, Policy 4-4500: Workplace Harassment, II(C), https://www.utahcounty.gov/apps/WebLink/Dept/Pers/4-4500W orkplaceHarassment.pdf [https://perma.cc/VX8X-25H4].
We acknowledge that County policy does not explicitly mention filing a complaint with the Utah Antidiscrimination and Labor Division. But Utah law provides that "[a]ny charge by a county career service employee of discriminatory or prohibited employment practice . . . can be filed with the Division of Antidiscrimination and Labor within the Labor Commission." Utah Code § 17-33-10(2). Given this, we conclude that the County's policy regarding reporting claims of sexual harassment contemplates filing complaints available to aggrieved employees under state and federal law.
¶ 27 Whether Taylor's alleged disclosure to the media was a governmental function is a closer call. The Appellees argue that the term "governmental function," see Utah Code § 63G-7-102(5), is expansive in meaning. Quoting Jenkins v. Jordan Valley Water Conservancy District, 2012 UT App 204, 283 P.3d 1009, rev'd on other grounds, 2013 UT 59, 321 P.3d 1049, the Appellees assert that "the current statutory definition of 'governmental function' is plainly 'all-inclusive . . . for purposes of governmental immunity.'" See id. ¶ 46; see also Scott v. Universal Sales, Inc., 2015 UT 64, ¶ 58, 356 P.3d 1172 (describing the broad definition of "governmental function" as "encompassing anything the government decides to do"). From this statutory basis, the Appellees maintain that any disclosure by Taylor to the media was a governmental function under Utah Code section 63G-7-102(5) because "[t]he complaints she purportedly 'leaked' to the press alleged that her supervisor, a public official, had sexually harassed her during work and at work functions-all during performance of her duties as human resources manager."
¶ 28 But Graves did not contend that filing a complaint pursuant to County policy, making statements to an investigator hired by the County, or even surreptitiously disclosing to the media that a complaint had been filed are not, standing alone, governmental functions. Instead, Graves's complaint had another layer that made it largely irrelevant to his claims whether these actions-at least in the abstract-were governmental functions. In addition to these actions, he asserted that Taylor "fabricated [the] allegations of sexual harassment against Graves for malicious and improper purposes, including . . . retaliation, leverage to avoid termination, and/or leverage to force a settlement with Utah County when she was terminated from her job." In statutory terms, Graves brought his action against Taylor because he alleged she engaged in "fraud or willful misconduct" when she made the complaint of sexual harassment. See Utah Code § 63G-7-202(3)(c)(i).
¶ 29 To be clear, it would not have been enough to avoid the consequences of a motion to dismiss if Graves had merely asserted that Taylor's allegations were false. A bare assertion of falsity is a conclusory statement that cannot survive a motion to dismiss. See Chapman v. Primary Children's Hosp., 784 P.2d 1181, 1186 (Utah 1989) ("We have stressed, and continue to hold, that mere conclusory allegations in a pleading, unsupported by a recitation of relevant surrounding facts, are insufficient to preclude dismissal or summary judgment."), abrogated on other grounds by Bright v. Sorensen, 2020 UT 18, 463 P.3d 626; see Williams v. State Farm Ins. Co., 656 P.2d 966, 971 (Utah 1982) ("[W]hen the pleader complains of conduct described by such general terms as libel, intimidation, or false statements, the allegation of the conclusion is not sufficient; the pleading must describe the nature or substance of the acts or words complained of."). Rather, the "sufficiency of [a] plaintiff's pleadings, which are construed together, must be determined by the facts pleaded rather than the conclusions stated." Ellefsen v. Roberts, 526 P.2d 912, 915 (Utah 1974).
¶ 30 And when "construed together," see id., Graves's allegations are neither bare assertions nor "mere conclusory allegations," see Chapman, 784 P.2d at 1186. In addition to asserting that Taylor's complaints of sexual harassment were false, Graves's complaint provided a constellation of facts to support his claim that they were false. He alleged that Taylor feared she was about to be terminated because of issues in the human resources department, that her management of the department was under discussion by County leadership, and that Graves was investigating the possibility of privatizing the County's human resources services, which Taylor viewed as a threat to her job. Graves's complaint also asserted that he did not believe Taylor "performed her job adequately" and that he "openly stated to other employees that if it were his choice he would terminate Taylor's employment." Thus, Graves's complaint did not merely claim that Taylor's allegations were false. Instead, it also set forth a putative reason that Taylor would make false allegations against Graves.
Our resolution of this case should not be construed to suggest that we believe Graves has an actionable claim against Taylor. Although the GIA does not bar his claims against Taylor, other defenses may well apply.
B. The Commissioners' Statements
¶ 31 Graves asserts that the district court erred in dismissing his complaint that the Commissioners made allegedly defamatory statements against him. Specifically, he complained that they "published the statements in print when they released the [unredacted] discrimination complaint and other complaints in writing," "promoted the publication of those documents on their official social media pages," and "published the statements orally when [Ivie] held an impromptu press conference after the GRAMA appeal hearing."
¶ 32 The district court relied on Deseret News Publishing Co. v. Salt Lake County, 2008 UT 26, 182 P.3d 372, in reaching its conclusion that the Commissioners were required to release the Report. But while responding to a GRAMA request is certainly a governmental function and the Commissioners were acting within the scope of their employment to produce the responsive information, the release of the documents was not the crux of Graves's complaint. Instead, he complained that the way the UALD complaint and the Report were released-along with their apparent endorsement as to the veracity of Taylor's complaints, which Graves contends the Commissioners knew to be false- amounted to defamation.
Graves concedes as much in his brief on appeal: "This case is not concerned with whether the Commissioners have authority to hear GRAMA appeals or hold press conferences. This case is concerned with whether governmental officials have authority to make a decision and then act contrary to that decision with impunity. . . . Violating GRAMA is not essential to the function of the government."
¶ 33 Graves's complaint alleged that the Commissioners "did not reasonably believe the statements of Graves's alleged sexual harassment and discrimination were true because they had the [Report] stating that the preponderance of the evidence weighed against the truthfulness of [Taylor's] statements." Thus, Graves alleged that the Commissioners acted knowingly and recklessly in publishing the unredacted UALD complaint (at least as to his name) and the associated documents because they "knew or should have known that the independent investigation concluded that the preponderance of the evidence did not show sexual harassment." Graves also complained that the Commissioners disclosed information about him that they had previously classified as private when the Commissioners "publicly connected Graves's name" to the Report. Graves contends that, in making this connection, the Commissioners intentionally defamed him, an action that would fall under the waiver to immunity as "fraud or willful misconduct." See Utah Code § 63G-7-202(3)(c)(i).
¶ 34 With much the same reasoning that we applied to the claims against Taylor, we conclude that Graves's complaints against the Commissioners should have survived the motion to dismiss. Graves asserted that he was a "controversial figure" in local politics and had an "often contentious relationship" with the Commissioners, who wanted to "force his resignation." He claimed that the threat was so imminent that he took the drastic step of switching political parties as a type of poison pill to deter the Commissioners from acting against him. Graves further asserted that "influential Utah County politicians" made a concerted effort to impugn his reputation in the eyes of his constituents. Thus, Graves's complaint, when read as a whole, did not merely assert that the Commissioners simply released the UALD complaint and the Report in response to a GRAMA request, but that they engaged in additional conduct intended to harm him so as to rid themselves of a political rival.
¶ 35 In sum, the district court erred in granting the Appellees' rule 12(b)(6) motion to dismiss Graves's complaint because Taylor and the Commissioners were not protected by governmental immunity under the facts pleaded by Graves.
III. Graves's Claims Against the County
¶ 36 Graves's briefing does not specifically address claims against the County. But we observe that the waiver of immunity for willful misconduct of governmental employees does not apply to the governmental entity. See Utah Code § 63G-7-202(3)(c)(i) (waiving immunity for intentional claims against employees, not governmental entities). As such, the County retained immunity insofar as the alleged tortious conduct of Taylor and the Commissioners is concerned. See Miller v. Utah, 638 Fed.Appx. 707, 716 (10th Cir. 2016) (explaining that state "entities are immune from [the plaintiff's] tort claims under" the GIA even though the GIA "permits tort claims against individual employees if they acted or failed to act through fraud or willful misconduct" (quotation simplified)); see also Cavanaugh v. Woods Cross City, No. 1:08-CV-32-TC-BCW, 2009 WL 4981591, at *6 (D. Utah Dec. 14, 2009) (explaining that immunity is waived for an individual but not for the entity in cases where a governmental employee acts or fails to act through fraud or willful misconduct), aff'd, 625 F.3d 661 (10th Cir. 2010).
¶ 37 In this vein, Graves argues that this court should "consider whether immunity existed or was granted in the first place," asserting that "[w]ithout a specific grant of immunity, there is no immunity to consider." He points to the use of the word "retain" in the GIA: "A governmental entity and an employee of a governmental entity retain immunity from suit unless that immunity has been expressly waived in this chapter." Utah Code § 63G-7-101(3). Graves argues that in passing the GIA, "the legislature attempted to retain something that did not exist in the first place."
¶ 38 We understand this to be a constitutional challenge, which Graves did not preserve before the district court. "As a general rule, claims not raised before the trial court may not be raised on appeal. A party cannot circumvent that rule by merely mentioning an issue without introducing supporting evidence or relevant legal authority; such a mere mention does not preserve that issue for appeal." State v. Cruz, 2005 UT 45, ¶ 33, 122 P.3d 543 (quotation simplified). Rather, "for an issue to be sufficiently raised, even if indirectly, it must at least be raised to a level of consciousness such that the trial judge can consider it." State v. Brown, 856 P.2d 358, 361 (Utah Ct. App. 1993) (quotation simplified). Graves did not do that here. He made no argument below that the GIA somehow abrogated a remedy against the County that was once available. Indeed, his arguments were limited to whether the Commissioners and Taylor committed personal acts essential to core governmental functions. Although Graves mentioned in passing that an expansive understanding of governmental function that included intentional torts could violate the open courts clause, see Scott v. Universal Sales, Inc., 2015 UT 64, ¶¶ 57-59, 356 P.3d 1172 (noting that an expanded definition of "governmental function" could violate the open courts clause of Article I, Section 11 of the Utah Constitution), he never raised a constitutional challenge to the immunity of governmental entities to a degree that the district court had an opportunity to consider it.
¶ 39 Moreover-and perhaps of greater consequence-Graves did not notify the Utah Attorney General of his constitutional challenge to the GIA, as he was required to do. See Utah Code § 78B-6-403(3) ("If a statute . . . is alleged to be invalid, the attorney general shall be served with a copy of the proceeding and be entitled to be heard."); Utah R. Civ. P. 24(d)(1) ("If a party challenges the constitutionality of a statute in an action in which the Attorney General has not appeared, the party raising the question of constitutionality shall notify the Attorney General of such fact by serving the notice on the Attorney General by email or, if circumstances prevent service by email, by mail at the address below. The party shall then file proof of service with the court."); Utah R. App. P. 25A(a)(1) ("When a party challenges the constitutionality of a statute in an appeal or petition for review in which the Attorney General has not appeared, every party must serve its principal brief and any subsequent brief on the Attorney General on or before the date the brief is filed."). Accordingly, we decline to further address this issue.
CONCLUSION
¶ 40 Having determined that Graves's complaint sufficiently pleaded facts necessary to show that Taylor and the Commissioners intentionally defamed him, we conclude that the district court erred in dismissing it under rule 12(b)(6) of the Utah Rules of Civil Procedure. Grave's claims against the County were not properly presented below or on appeal. We therefore reverse the district court's dismissal of Graves's complaint against Taylor and the Commissioners individually but affirm the dismissal with respect to the County.