                   This opinion is subject to revision before final
                          publication in the Pacific Reporter

                                   2020 UT 15


                                      IN THE

         SUPREME COURT OF THE STATE OF UTAH

                           STEVEN ERIC GRAHAM,
                                Appellant,
                                         v.
                              ALBERTSON‘S LLC,
                                  Appellee.

                              No. 20180885
                         Heard December 9, 2019
                          Filed March 31, 2020

                   On Appeal of Interlocutory Order

                      Third District, Salt Lake
                The Honorable Judge Heather Brereton
                          No. 180900781

                                   Attorneys:
            Kenneth B. Grimes, Salt Lake City, for appellant
              Mark A. Wagner, Salt Lake City, for appellee

       JUSTICE PEARCE authored the opinion of the Court, in which
          CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
             JUSTICE HIMONAS, and JUSTICE PETERSEN joined.

   JUSTICE PEARCE, opinion of the Court:
                             INTRODUCTION
    ¶1 Steven Graham alleges Albertson‘s LLC (Albertson‘s) fired
him because he reported a workplace injury. Graham also alleges
that this termination is contrary to public policy and therefore
actionable. The district court granted Albertson‘s1 motion for partial
_____________________________________________________________
   1 We again find ourselves troubled by how to depict the
possessive form of an already possessive proper noun. See Utah State
Tax Comm’n v. See’s Candies, Inc., 2018 UT 57, 435 P.3d 147. Once
again we ―elect not to doggedly apply grammatical rules to the point
                                                    (continued . . .)
                       GRAHAM v. ALBERTSON‘S
                        Opinion of the Court
summary judgment, reasoning that the Utah Occupational Safety
and Health Act (UOSHA) preempts his wrongful termination claim.
Graham seeks interlocutory review of that decision. Because we find
that UOSHA does not reflect a clear legislative intent to preempt
common law remedies, we reverse.
                          BACKGROUND
     ¶2 Roughly six months after Graham began working at
Albertson‘s Salt Lake City Distribution Center, he injured his back.
Graham reported the injury to his supervisor. After Albertson‘s
terminated him, Graham filed a complaint with the Utah
Occupational Safety and Health Division (the Division) alleging that
Albertson‘s had ―disciplined, harassed, and ultimately discharged
[him] from his employment in retaliation for reporting his workplace
injury.‖ Graham further alleged that this termination violates Utah
Code section 34A-6-203. Among other things, section 203 prohibits
an employer from discharging or retaliating against an employee for
filing a UOSHA complaint. See UTAH CODE § 34A-6-203.
    ¶3 The Division found Albertson‘s had not wrongfully
terminated Graham. The Division concluded Graham‘s report of the
workplace injury was not a ―significant factor in, or the but-for cause
of,‖ Albertson‘s decision to terminate Graham. Specifically, the
Division found Albertson‘s had presented sufficient evidence of a
legitimate reason for termination unrelated to Graham‘s injury
report.
    ¶4 Graham then filed a Request for Review with the
Adjudication Division of the Utah Labor Commission. Graham
moved for partial summary judgment. Graham again argued he was
terminated for reporting his workplace injury. The administrative
law judge (the ALJ) denied Graham‘s motion, finding a genuine
issue of fact on the question of whether Graham resigned or was
terminated.
    ¶5 The ALJ also dismissed Graham‘s claim for damages for
reputational injuries, expenses for obtaining alternative employment,
mental stress, as well as his claim for punitive damages. The ALJ
concluded she was ―unaware of any statute, administrative rule or
historical precedent‖ addressing punitive and compensatory


of distraction.‖ Id. ¶ 1 n.1. And so we will treat Albertson‘s ―as a
kind of possessive.‖ Id. (citing BRYAN A. GARNER, GARNER‘S MODERN
ENGLISH USAGE 714 (4th ed. 2016)).


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                          Opinion of the Court
damages in an administrative proceeding, and as a result, the
Division lacked jurisdiction over those damages.2
   ¶6 While the administrative proceedings were pending,
Graham filed a complaint in the district court. Graham asserted three
causes of action: 1) wrongful termination in violation of public
policy, 2) breach of contract, and 3) breach of the implied covenant of
good faith and fair dealing.
    ¶7 In the district court proceeding, the parties filed
cross-motions for partial summary judgment focused on whether
UOSHA preempted Graham‘s common law wrongful termination
claim. The district court determined that, even though UOSHA does
not contain an express exclusive remedy provision, ―when
examining the legislative intent behind the UOSH Act, the court
finds that in passing the UOSH Act, the legislature put in place a
comprehensive piece of legislation to provide for the safety and
health of workers and provided a coordinated plan to establish
standards to do so.‖ The district court also found that a ―preemptive
intent is implied by the structure and purpose of the UOSH Act. The
UOSH Act establishes standards, procedures, a scheme of regulation,
and a bureaucratic system to implement its aims in a timely and
cost-effective approach.‖ This caused the district court to conclude
that UOSHA preempted Graham‘s claim for wrongful termination.
    ¶8 Graham filed an interlocutory appeal asking us to review
the grant of summary judgment on his wrongful termination cause
of action.
                ISSUE AND STANDARD OF REVIEW
    ¶9 ―We review a trial court‘s summary judgment ruling for
correctness and afford no deference to its legal conclusions.‖ Gottling
v. P.R. Inc., 2002 UT 95, ¶ 5, 61 P.3d 989 (citation omitted) (internal
quotation marks omitted). ―A district court‘s interpretation of a
statute is a question of law, which we . . . review for correctness.‖
Bell Canyon Acres Homeowners Ass’n v. McLelland, 2019 UT 17, ¶ 7, 443
P.3d 1212 (alteration in original) (citation omitted) (internal
quotation marks omitted).
                              ANALYSIS
  ¶10 Graham challenges the district court‘s conclusion that
UOSHA preempts his common law wrongful termination claim. We

_____________________________________________________________
   2   Graham has not challenged this ruling.


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                        GRAHAM v. ALBERTSON‘S
                          Opinion of the Court
have articulated a two-part test to decide whether a statute preempts
a common law cause of action. See Retherford v. AT&T Commc’ns of
Mountain States, Inc., 844 P.2d 949 (Utah 1992). First, we ask if
UOSHA reveals either an express or implicit legislative intent to
preempt common law causes of action. See id. at 961. If it does, we
inquire if Graham‘s wrongful termination claim falls within the
scope of what the Legislature intended UOSHA to preempt. See id.
   ¶11 But before we examine the district court‘s application of
Retherford to UOSHA, we pause to observe that the Retherford test
appears to skip a step. We have stated elsewhere that when
analyzing a preemption question, we first begin by ―determining
that there was a valid claim at common law.‖ Jedrziewski v. Smith,
2005 UT 85, ¶ 14, 128 P.3d 1146.3 Only after a plaintiff has established
that she has a valid common law claim do courts inquire about
preemptive intent. See id.4

_____________________________________________________________
   3  We have noted that an ―at-will employee whose employment
has been terminated in violation of a clear and substantial public
policy may sue for wrongful termination.‖ Ray v. Wal-Mart Stores,
Inc., 2015 UT 83, ¶ 12, 359 P.3d 614. And we have identified four
categories of public policies a plaintiff may use to provide the basis
for her wrongful termination claim: 1) refusing to commit an illegal
or wrongful act; 2) performing a public obligation, such as jury duty;
3) exercising a legal right or privilege; and 4) reporting an
employer‘s criminal activity to a public authority. Id. ¶ 13.
   4  Keeping these inquiries separate has important implications for
the burden of proof. The plaintiff bears the burden of proof on the
question of public policy—that is, the plaintiff must carry the burden
of establishing a ―clear and substantial policy‖ in positive law
sufficient to overcome the common law presumption of at-will
employment. See Ray, 2015 UT 83, ¶ 12. This burden falls on the
plaintiff because the default setting provides no claim for wrongful
termination in an at-will employment arrangement. See e.g., Rackley
v. Fairview Care Ctrs., Inc., 2001 UT 32, ¶¶ 12–14, 23 P.3d 1022.
    If the plaintiff can show that she possesses a basis in law to adjust
the default and assert that she was wrongfully terminated in
violation of public policy, the burden then shifts to the defendant to
demonstrate that the Legislature intended the statute to preempt the
common law remedy. See Jedrziewski, 2005 UT 85, ¶ 14.
    Our cases have not always made this distinction clear. And the
possibility for confusion on the burden of proof may be part of the
                                                          (continued . . .)
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                         Opinion of the Court
    ¶12 Here, it appears that Albertson‘s, for the purpose of the
summary judgment motion, did not challenge whether Graham
possessed a valid cause of action for termination in violation of
public policy. And because that issue was not presented to the
district court on summary judgment, the district court assumed that
Graham had a common law cause of action. Because the issue is
likewise not presented to us, we offer no opinion on that question.
But at the risk of sounding too metaphysical, we caution those who
look to Retherford for guidance to remember that a common law
cause of action must exist before it can be preempted.
    ¶13 We have noted that a Retherford analysis first instructs a
court to ―look at legislative intent to determine whether the act
preempts existing common law.‖ See Jedrziewski, 2005 UT 85, ¶ 14; see
also Retherford, 844 P.2d at 961. We start, of course, with the statute‘s
plain language. And we look to see if the Legislature has included a
clear expression of an intent to preempt, such as an exclusive remedy
provision. See e.g., UTAH CODE § 34A-6-101 et seq.5
    ¶14 Even if a statute does not include an ―explicit intent to
preempt common law doctrine, courts consider whether the statute‘s
‗structure and purpose‘ reveal an implicit preemptive intent.‖
Jedrziewski, 2005 UT 85, ¶ 14 (citation omitted). ―This can be done in
two ways: (i) the statute‘s regulatory scheme is so pervasive that the
common law doctrine can no longer function, or (ii) the statute is in
‗irreconcilable conflict‘ with the common law.‖ Id. (citation omitted).
When we look at the pervasiveness of the statutory scheme, we do so
to see if the structure is ―so pervasive as to make reasonable the
inference that [the legislature] left no room for the [common law] to
supplement it.‖ Gottling v. P.R. Inc., 2002 UT 95, ¶ 8, 61 P.3d 989
(alterations in original) (citation omitted).
    ¶15 The district court followed Retherford and began by looking
for express legislative intent to preempt. The district court noted that



reason why this case has come to us in its current posture. We do not
delve into the matter in any great detail here. We simply flag this
point in the interest of clarifying a legal nuance that may be of
relevance on remand and in future cases.
   5   For example, the Utah Antidiscrimination Act contains an
exclusive remedy provision. UTAH CODE § 34A-5-107(15) (―The
procedures contained in this section are the exclusive remedy under
state law for employment discrimination . . . .‖).


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                      GRAHAM v. ALBERTSON‘S
                        Opinion of the Court
UOSHA contains no exclusive remedy clause. So it turned to
UOSHA‘s purpose and structure to assess whether it could infer an
intent to preempt. There is much to like in the district court‘s
analysis. Indeed, we see many parallels between the way the district
court analyzed UOSHA and the analysis we applied to the Utah
Antidiscrimination Act (UADA) in Gottling. See id.
   ¶16 The district court examined UOSHA and concluded that it
―establishes standards, procedures, a scheme of regulation, and a
bureaucratic system to implement its aims in a timely and
cost-effective approach.‖ Based on this, it concluded that the
Legislature intended to put in place ―a comprehensive [act] to
provide for the health and safety of workers and provided a
coordinated plan to establish standards to do so.‖
    ¶17 This mirrors what we did in Gottling. There, we first noted
that UADA created an administrative remedy against large
employers, agencies, labor organizations, and others who ―aid,
incite, compel, or coerce‖ to commit prohibited discriminatory
behavior. Id. ¶ 12. We also considered the ―substantial bureaucratic
system‖ for implementing UADA‘s goals, the delegation of power to
receive and investigate complaints, UADA‘s directing how
complaints are investigated and studied, and that UADA ―provides
for the formulation of plans for elimination of discrimination, the
issuance of publications designed to promote good will and
eliminate discrimination, and the proposal of legislation designed to
eliminate discrimination.‖ Id.
    ¶18 We next looked at UADA‘s structure. Id. ¶ 13. We noted that
UADA established a comprehensive legislative scheme, exempted
small employers from its administrative remedy, and created an
elaborate remedial process. Id. Taking all of this together, we opined
that even if the Legislature had not included an exclusive remedy
clause, UADA‘s structure and purpose demonstrate that the
Legislature intended that UADA preempt common law remedies.
See id.
    ¶19 The district court‘s order permits us to see the similarities
between the frameworks the Legislature implemented in UOSHA
and UADA. And if there were nothing else in UOSHA that spoke to
preemption, we might agree with the district court that UOSHA‘s
structure and purpose, much like UADA‘s, permits an inference that
the Legislature intended UOSHA to occupy the field and preempt
common law remedies.
  ¶20 But, as Graham argues, UOSHA contains a provision that
UADA lacks.

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                         Opinion of the Court
   ¶21 Utah Code section 34A-6-110 states:
       (1) Nothing in this chapter is deemed to limit or
       repeal requirements imposed by statute or otherwise
       recognized by law.
       (2) Nothing in this chapter shall be construed or held
       to supersede or in any manner affect workers‘
       compensation or enlarge or diminish or affect the
       common-law or statutory rights, duties, or liabilities
       of employers and employees under any law with
       respect to injuries, occupational or other diseases, or
       death of employees arising out of, or in the course of
       employment.
    ¶22 Subsection 110(1)‘s sweep is broad. The Legislature instructs
that UOSHA does not ―limit or repeal requirements imposed by
statute or otherwise recognized by law.‖ § 34A-6-110(1) (Emphasis
added). Graham‘s claim of wrongful termination in violation of
public policy would appear to fall into the category of a requirement
―otherwise recognized by law,‖ which the statute mandates UOSHA
not disturb. See id.; see also Ray v. Walmart Stores Inc., 2015 UT 83,
¶¶ 12–15, 359 P.3d 614 (discussing the common law claim of
wrongful termination in violation of public policy).
    ¶23 The district court did not account for subsection 110 in its
order. And that is a problem. The point of the exercise Retherford
mandates is to see if we can infer the Legislature‘s intent concerning
preemption from the way it crafts the regulatory scheme. It is very
difficult to infer such an intent in the face of language suggesting
that the Legislature did not intend UOSHA to affect any other legal
requirements.
    ¶24 Albertson‘s argues that section 110 should be understood as
applying only to ―the then-existing elaborate body of statutory and
common law relating to the rights of employees, employers, and
third parties, for injuries, diseases, or death of employees.‖ Albertson‘s
finds support for that reading in section 110‘s heading entitled
―Requirements of other laws not limited or repealed—Worker‘s
compensation or rights under other laws with respect to
employment injuries not affected.‖ We normally do not look to a
statute‘s headings to find the law‘s substantive terms. But we ―have
noted that when we need help understanding an ambiguous
provision, titles are ‗persuasive and can aid in ascertaining [the
statute‘s] correct interpretation and application.‘‖ Jensen v.
Intermountain Healthcare, Inc., 2018 UT 27, ¶ 29, 424 P.3d 885


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                        GRAHAM v. ALBERTSON‘S
                          Opinion of the Court
(alteration in original) (citation omitted); see also State v. Gallegos,
2007 UT 81, ¶ 16, 171 P.3d 426.
    ¶25 Albertson‘s does not aver that section 110 is ambiguous and
that we should therefore look to the heading for guidance. But even
if section 110 were ambiguous, the heading does not prove
Albertson‘s point. Only part of the heading speaks to workers‘
compensation and other laws concerning employee injuries. The first
part of the heading states, ―Requirements of other laws not limited
or repealed.‖ § 34A-6-110. This mirrors the substance of section 110.
Subsection 110(1) contains the general statement that nothing in the
chapter limits or repeals any existing legal requirements. And
subsection 110(2) contains the more specific reference to workers‘
compensation and related laws.
    ¶26 Albertson‘s does not address the meaning of subsection
110(1). And the interpretation Albertson‘s proffers renders
subsection 110(1) superfluous because if subsection 110(1) refers only
to laws regarding employment injuries, it is wholly duplicative of
subsection 110(2). We strive to avoid superfluousness when we
interpret statutory language. See Turner v. Staker & Parson Cos., 2012
UT 30, ¶ 12, 284 P.3d 600 (―Wherever possible, we give effect to
every word of a statute, avoiding ‗[a]ny interpretation which renders
parts or words in a statute inoperative or superfluous.‘‖ (alteration
in original) (quoting State v. Arave, 2011 UT 84, ¶ 28, 268 P.3d 163));
see also United States v. Jicarilla Apache Nation, 564 U.S. 162, 185 (2011)
(―As our cases have noted in the past, we are hesitant to adopt an
interpretation of a congressional enactment which renders
superfluous another portion of that same law.‖ (citation omitted)
(internal quotation marks omitted)).
    ¶27 Simply stated, subsection 110(1), while not an exclusive
remedy provision, undermines our ability to conclude that UOSHA‘s
structure and purpose give rise to an inference that the Legislature
intended UOSHA to preempt common law remedies.
    ¶28 We reverse the district court‘s grant of Albertson‘s motion
for partial summary judgment.
                            CONCLUSION
    ¶29 The district court correctly applied the test adopted in
Retherford to analyze whether UOSHA preempts Graham‘s wrongful
termination claim. However, it erred when it concluded Graham‘s
claims were preempted. UOSHA contains no exclusive remedy
provision. And section 34A-6-110(1)‘s instruction that UOSHA does
not limit or repeal other legal obligations prevents us from
concluding that UOSHA‘s structure and purpose demonstrate a
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                     Opinion of the Court
legislative intent to preempt common law causes of action. We
reverse the district court and remand for further proceedings.




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