IN THE SUPREME COURT OF THE STATE OF UTAH

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UTAH APPELLATE CCU“
m5

Traci Endow, JUL ‘ 7 2

Appellant,

v. Case No. 20140024-SC

Utah Transit Authority, Richard
Castleberry, Frank Cosens, and
Brett Demille,

Appellees.

ORDER

The Utah Federal District Court has certified to us the question of whether the
Utah Anti-discrimination Act (UADA) provides for individual liability. Before
discussing this question, however, we first address the Defendants’ argument that we
lack subject matter jurisdiction to answer the question because the federal district court
lacks subject matter jurisdiction over the Plaintiff’s UADA claims. While it is clear that
we have original jurisdiction to answer the certified question,l there does appear to be
significant uncertainty as to whether the federal district court has jurisdiction over these
claims. Accordingly, we revoke our acceptance of the certified question as improvident.

While we do not decide whether the federal district court has jurisdiction over
the Plaintiff’s UADA claims, we note that Ms. Endow faces serious jurisdictional
problems as to these claims, problems that were not brought to the attention of the
federal district court in the Defendants’ motion to dismiss. The court therefore had no
opportunity to consider them. First, the commencement of the Plaintiff’s federal law
claims may bar the continuation of her UADA claims under the plain language of the
Act.2 Further, she may have failed to exhaust her administrative remedies under the

1 See UTAH CONST. art. VIII, § 3; UTAH CODE § 78A-3-102(1); UTAH R. APP. P. 41(a).

2 See UTAH CODE § 34A-5-107(15)-(16); see also Blnuer v. Dep’t of Workforce Saws,

2014 UT App 100, ‘II 12, 331 P.3d 1 (recognizing that filing federal law claims, including
the transfer of a request for agency action to the federal EEOC, results in the plaintiff
(Continued)

UADA with respect to the individual defendants.3 Because of these serious
jurisdictional concerns, any opinion we issue on the certified question may be
advisory,4 and we do not issue advisory opinions.

While "our role in a certified case is . . . a step removed from a particular case or
controversy, our function in such matters nonetheless involves the exercise of judicial
power.”5 Therefore, ”[o]ur function . . . is not to issue abstract, advisory opinions . . . . It
is to resolve disputed questions of state law in a context and manner useful to the

 

losing his claims under the UADA); McNeil v. Kennecott Utah Copper Com, No.
2:08CV41DAK, 2009 WL 2554726, at *5—6 (D. Utah Aug. 18, 2009) aﬁ" d sub nom. McNeil v.
Kennecott Holdings, 381 F. App’x 791 (10th Cir. 2010) ("[A]ny claims Plaintiff may have
had under the UADA were terminated by his choice to pursue his federal
discrimination claims under Title VII. . . . [His UADA] claims are barred and should be
dismissed”).

3 See UTAH CODE § 34A-5-107(15)—(16); see, e.g., Zions Mgmt. Servs. 0. Record, 2013
UT 36, 1] 24, 305 P.3d 1062 (recognizing that because the UADA "grants ’exclusive’
jurisdiction over discrimination claims to the Labor Commission, a district court's role
in the adjudication of such claims is governed by the Utah Administrative Procedures
Act (UAPA), which authorizes judicial review of agency action only after the parties
have exhausted administrative remedies” (footnotes omitted»; Buckner v. Kennard, 2004
UT 78, 1] 37, 99 P.3d 842 ("[TJhe Utah Antidiscrimination Act prohibits certain
employment practices. However, the exclusive remedy for an employee claiming a
violation of the statute is an appeal to the state Division of Antidiscrimination and
Labor. . . . Additionally, the Division of Antidiscrimination may seek judicial
enforcement of its ruling. But the Act itself only provides for suit by the . . . Labor
Commission to enforce one of its own rulings, not for a suit by a private citizen
asserting a violation of the Act.” (citations omitted»; Harvath 0. Savage Mfg, Inc., 18 F.
Supp. 2d 1296, 1305 (D. Utah 1998) (noting that "to prove a violation of the [UADA], the
Act requires that the aggrieved party file a request for agency action with the Division
of Antidiscrimination and Labor. After the Department of Adjudication has reviewed
the charge against the employer and made a decision, then the order may be subject to
judicial review." (citation omitted)).

4 We underscore that we do not decide whether the federal district court has
jurisdiction over the Plaintiff’s UADA claims. We were not presented with full briefing
or a full record concerning these issues. For instance, while it does not appear that the

Plaintiff filed an administrative claim against the individual defendants, we were only
given one of the many documents relating to her administrative claim.

5 Fundamentalist Church of Iesus Christ of Latter—Day Saints v. Home, 2012 UT 66, 1] 7,
289 P.3d 502.

resolution of a pending federal case.”6 Accordingly, although we have original
jurisdiction, issuing what may well be an advisory opinion to a certified question would

be an improper use of our judicial power.

For the above reasons, we revoke our acceptance of the certified question as
improvident.

FOR THE COURT:

    

7»[Z~/>

’
Date Matthew B. Durrant

Chief Justice, Utah Supreme Court

6M1] 8.

