               This opinion is subject to revision before final
                      publication in the Pacific Reporter
                                2018 UT 1


                                  IN THE
     SUPREME COURT OF THE STATE OF UTAH

             JUDITH PINBOROUGH ZIMMERMAN, PH.D,
                           Plaintiff,
                                       v.
        UNIVERSITY OF UTAH and DR. WILLIAM MCMAHON,
                         Defendants.

                           No. 20160572
                       Filed January 23, 2018

                   On Certification from the
       United States District Court for the District of Utah
                 The Honorable Jill N. Parrish
                   Case No. 2:13-cv-1131-JNP


                               Attorneys:
       April L. Hollingsworth, Salt Lake City, for plaintiff
Sean D. Reyes, Att’y Gen., Tyler R. Green, Solic. Gen., Stanford E.
Purser, Deputy Solic. Gen., Peggy E. Stone, Asst. Solic. Gen., Salt
                    Lake City, for defendants


ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in
which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, PRESIDING JUDGE
                ORME, and JUDGE BROWN joined.
  Having recused himself, JUSTICE PEARCE does not participate
herein; COURT OF APPEALS PRESIDING JUDGE GREGORY K. ORME sat.
Due to her retirement, JUSTICE DURHAM did not participate herein;
         DISTRICT COURT JUDGE JENNIFER A. BROWN sat.
                ZIMMERMAN v. UNIVERSITY OF UTAH
                       Opinion of the Court

JUSTICE PETERSEN became a member of the Court on November 17,
 2017, after oral argument in this matter, and accordingly did not
                            participate.


 ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
  ¶1 This case comes to us on certification from the United
States District Court for the District of Utah. UTAH R. APP. P. 41.
The certified questions are as follows:
       1. Is the Free Speech Clause of the Utah Constitution self-
       executing?
       2. If question 1 is answered in the affirmative, what are the
       elements of a claim brought under the clause?
       3. Does an employee who receives notice that his or her
       employment will be terminated effective on a future date
       suffer an adverse employment action for purposes of the
       Utah Protection of Public Employees Act when he or she
       receives the notice, when the employment is actually
       terminated, or both?
These are important questions. The first two, in particular, are
matters of first impression of great significance. Clearly that is
why Judge Parrish certified these matters for our decision, and
why we accepted the certification.
  ¶2 Our authority to answer certified questions, however, is a
matter of discretion. UTAH CONST. art. VIII, § 3; UTAH R. APP. P. 41.
The power to elect to decide a certified question encompasses the
power to decline to resolve it conclusively in appropriate
circumstances. And on reflection we see reasons not to render a
conclusive answer to the first two questions certified in this case.
Because these questions are not adequately briefed by the parties
we decline to resolve them here. Instead we answer only the third
question, which is squarely presented and amply addressed in the
parties’ briefs.
  ¶3 On the third question, we hold that a notice of termination
may be an adverse employment action independent of an actual
termination under the Utah Protection of Public Employees Act
(UPPEA). We also set forth an analytical framework for assessing
whether such employment actions are independent of each other



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under the UPPEA, while leaving the application of this standard
for the United States District Court in the first instance.
                                  I
  ¶4 Dr. Judith Zimmerman filed a federal lawsuit against Dr.
William McMahon and the University of Utah (University),
asserting claims (among others) arising under the Utah
Constitution and the UPPEA, Utah Code section 67-21-3. We state
the facts of relevance to her claims as described by the United
States District Court in the order of certification.
  ¶5 Dr. Zimmerman is a speech-language pathologist. She
entered into a contract with the University in 2008. Pursuant to
the contract, Dr. Zimmerman was appointed as a research
assistant professor for a “renewable one-year term.” The contract
stated that her appointment “will subsequently be renewed each
year thereafter, contingent on [her] progress and the availability
of funds, for successive terms of one (1) year unless either [she] or
the University gives written notice to the other of its intent not to
renew [her] appointment.” Dr. Zimmerman’s employment
contract was subsequently renewed until her termination in June
of 2013.
  ¶6 Dr. Zimmerman’s research focused on autism in Utah. She
worked under a grant from the Centers for Disease Control and
Prevention (CDC). Dr. Zimmerman and her team collected data
about pre-identified students from schools and medical facilities,
including private health and educational information. Their data
collection was subject to HIPPA and FERPA regulations, as well
as protocols established by the CDC. In addition, the University
required the research to be approved by the Institutional Review
Board, and individual researchers were also required to seek
approval from the Utah Department of Health to use health data
in a research study.
  ¶7 In 2012, Dr. Zimmerman concluded that a University
employee had copied confidential data in violation of governing
laws and regulations. In August, she reported her concerns
regarding research misconduct and privacy violations to the
University. She alleged that the data was shared with individual
researchers, including Dr. McMahon, in violation of




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               ZIMMERMAN v. UNIVERSITY OF UTAH
                      Opinion of the Court

confidentiality and privacy agreements and potentially in
violation of federal privacy laws. Dr. Zimmerman also reported to
the University’s legal department that she believed University
employees were “double-dipping” because time spent on research
for one group was being charged as time to another group of
researchers.
  ¶8 On December 12, 2012, Dr. McMahon delivered a letter to
Dr. Zimmerman notifying her that her contract would not be
renewed. Her employment with the University ended on June 30,
2013. Dr. Zimmerman served a Notice of Claim on October 25,
2013, and filed this action on December 27, 2013.
  ¶9 Dr. Zimmerman brought claims against the University and
Dr. McMahon for, among other things, infringement of her free
speech rights under the Utah Constitution and under the UPPEA.
The University moved for summary judgment. First, it asserted
that Dr. Zimmerman had no private right of action under the free
speech clause of the Utah Constitution, which the University
viewed as not self-executing. Second, it contended that the
UPPEA claim was time-barred—asserting that Dr. Zimmerman
suffered an adverse employment action upon receiving notice that
her contract would not be renewed, and noting that she had not
asserted her claim within 180 days of that action as required by
section 67-21-4 of the Utah Code.
  ¶10 The United States District Court determined that the
University’s motion implicated important, unresolved questions
of state law. And it accordingly certified these questions for our
review.
                                II
  ¶11 The federal court’s certification order identified three
questions of state law. The first two are of relevance to Dr.
Zimmerman’s free speech claim under the Utah Constitution.
They ask us to decide whether the Utah free speech clause is “self-
executing” and, if so, to identify the elements of a free speech
claim under the Utah Constitution. The third question is of
relevance to Dr. Zimmerman’s UPPEA claim. It asks us to identify
the “adverse employment action” triggering the 180-day filing
requirement under the UPPEA.




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                       Opinion of the Court

  ¶12 These are important questions of first-impression—
questions on which this court should and will one day have the
final say. For that reason we can certainly understand the U.S.
District Court’s decision to certify these issues for our review.
That said, the briefing and procedural posture of this case make it
difficult for us to render a confident answer to the first two
questions presented. And for reasons explained below we decline
to exercise our discretion to resolve these questions on the briefing
that is now before us. Instead we answer only the third question,
reserving the first two for another day.
                                 A
  ¶13 “The posture of a matter certified to us by a federal court is
unusual.” Fundamentalist Church of Jesus Christ of Latter-Day Saints
v. Horne, 2012 UT 66, ¶ 7, 289 P.3d 502. In deciding certified
questions we are not reviewing a decision of a lower court.
Typically we are addressing abstract questions of law, albeit “in a
context and manner useful to the resolution of a pending federal
case.” Id. ¶ 8.
  ¶14 If this case were before us on appeal we would have the
benefit of a lower court’s disposition of Dr. Zimmerman’s claims.
We would also be presented with the legal standards adopted by
the trial court and the application of those standards to the
evidence in the record. In a case involving both statutory and
constitutional claims, moreover, we might well have a basis for
deciding the case on purely statutory grounds while avoiding the
constitutional question.
  ¶15 None of this is available to us here. We have no articulation
of the constitutional standard deemed appropriate for disposition
of the case by a trial court. And we have no application of that
standard to the evidence presented by the parties below. Without
such application, moreover, we are not in a position to avoid the
constitutional question presented by resolving the case on purely
statutory grounds.1


   1 See W. v. Thomson Newspapers, 872 P.2d 999, 1005 (Utah 1994)
(“[C]ourts should avoid reaching constitutional issues if the case




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                ZIMMERMAN v. UNIVERSITY OF UTAH
                       Opinion of the Court

  ¶16 These obstacles alone are not insurmountable. In an
appropriate case, we could answer constitutional questions on
certification from a federal court. But we have determined that
this is not an appropriate case. We reach that conclusion because
the above-noted problems are exacerbated here by the limited
nature of the briefing presented by the parties.
  ¶17 The question of the basis for and elements of a free speech
claim under the Utah Constitution is a sensitive one. To decide
whether Dr. Zimmerman has a private right to sue for damages
under the Utah free speech clause we would first have to decide
that this provision is self-executing. Spackman ex rel. Spackman v.
Bd. of Educ. of the Box Elder Cty. Sch. Dist., 2000 UT 87, ¶¶ 7–9, 16
P.3d 533. “A constitutional provision is self-executing if it
articulates a rule sufficient to give effect to the underlying rights
and duties intended by the framers” of our constitution. Bott v.
DeLand, 922 P.2d 732, 737 (Utah 1996) (citation omitted), abrogated
on other grounds by Spackman, 2000 UT 87. “In other words, courts
may give effect to a provision without implementing legislation”
if we find a basis for concluding that “the framers intended the
provision to have immediate effect and if ‘no ancillary legislation
is necessary to the enjoyment of a right given, or the enforcement
of a duty imposed.’” Id. (citation omitted). “Conversely,
constitutional provisions are not self-executing if they merely
indicate a general principle or line of policy without supplying the
means of putting them into effect.” Id. (citation omitted).
  ¶18 This threshold inquiry, as noted, turns in large part on an
originalist inquiry. To conclude that a constitutional provision is
self-executing we would need to discern the original meaning or
intent of the constitutional provision in question—whether the
“framers intended the provision to have immediate effect”
without implementing legislation or whether instead its terms
would be understood as a “general principle or line of policy”
requiring a legislative act to “put[] [it] into effect.” Id. (citation
omitted).


can be decided on other grounds[,] . . . including common law or
statutory grounds.” (citations omitted)).




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                        Opinion of the Court

  ¶19 Yet the parties have unfortunately offered little insight into
these questions. Their briefing is largely superficial on this
threshold question. Instead of delving into the original meaning of
the constitutional text the parties mostly point us to analogous
case law in Utah and in other jurisdictions on arguably parallel
constitutional provisions. Decisions from sister states may be
helpful as far as they go. If a decision from another court on a
state constitutional question includes analysis that persuades us
as to the correct interpretation of our constitution, we may
certainly look to such decisions. But sister state decisions are by
no means binding on us. And the threshold question presented
here calls out for careful analysis of the precise terms of the Utah
Constitution and its original meaning to aid in our determination
of whether the “framers intended the provision to have
immediate effect” without implementing legislation. Id. The
absence of adversary briefing on this question reinforces our
reluctance to venture into this constitutional territory.2
  ¶20 Our reluctance is heightened, moreover, by the absence of
adversary briefing on a second-level inquiry called for under our
cases. Before we could determine that Dr. Zimmerman had a
private right of action to sue for damages under the Utah free
speech clause we would have to decide not only that this
provision is self-executing but also that a “common law” standard
for a constitutional claim for money damages is satisfied.
Spackman, 2000 UT 87, ¶¶ 20, 26. That standard would require


   2   Despite its contrary argument to the district court, the
University conceded before us that article I, section 15 of the Utah
Constitution is self-executing. And that concession left Dr.
Zimmerman with little incentive to address this issue at any
length. For that reason the limited briefing before us is
understandable. But it leaves us wanting for more guidance
before we resolve a question of this significance. See City & Cty. of
S.F., Cal. v. Sheehan, 135 S. Ct. 1765, 1773 (2015) (dismissing writ of
certiorari as improvidently granted where adverse party
abandoned the position it took in the lower court; noting that the
question presented “would benefit from briefing and an
adversary presentation”).




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                ZIMMERMAN v. UNIVERSITY OF UTAH
                       Opinion of the Court

proof of three elements: (a) that the violation of the Free Speech
Clause is “flagrant” in the sense that it infringes “clearly
established” constitutional rights, id. ¶ 23; (b) that “existing
remedies” do not redress Dr. Zimmerman’s injuries, id. ¶ 24; and
(c) that “equitable relief, such as an injunction, was and is wholly
inadequate to protect the plaintiff’s rights or redress . . . her
injuries,” id. ¶ 25.
  ¶21 Dr. Zimmerman does not address these issues in her
briefing to this court. She presents no analysis of any of these
common law elements under Spackman. Her position instead is
rooted in a basic syllogism: It is wrongful for an employer to
terminate a worker for exercising her free speech rights, and a
constitutional free speech claim should accordingly consist of the
elements of a “wrongful termination” claim under our case law.
  ¶22 The University’s briefing delves into a bit more depth. The
University doesn’t just identify a common law claim that it seeks
to have us clothe in constitutional garb. It identifies a body of
federal free speech case law—under Connick v. Myers, 461 U.S. 138
(1983), and Pickering v. Board of Education of Township High School
District 205, Will County, Illinois, 391 U.S. 563 (1968)—that it wants
us to import into state free speech law. But the University makes
no attempt to connect this case law with the text or original
meaning of the Utah Constitution. It just cites the federal cases
and encourages us to make them a part of Utah constitutional law.
And that is insufficient.3
  ¶23 We are reluctant to tread into these important
constitutional waters without more in depth adversary briefing.


   3  Met v. State, 2016 UT 51, ¶ 44, 388 P.3d 447 (“As we have
explained, cursory references to the state constitution within
arguments otherwise dedicated to a federal constitutional claim
are inadequate. When parties fail to direct their argument to the
state constitutional issue, our ability to formulate an independent
body of state constitutional law is compromised. Inadequate
briefing denies our fledgling state constitutional analysis the full
benefit of the interested parties’ thoughts on these important
issues.” (citations omitted) (internal quotation marks omitted)).




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Dr. Zimmerman’s invitation to import wrongful termination law
into the Utah free speech clause is insufficient. Spackman requires
analysis, at a minimum, of whether “existing remedies” are
sufficient to protect Dr. Zimmerman’s interests. 2000 UT 87, ¶ 24.
And Dr. Zimmerman’s briefing essentially just identifies an
existing remedy—a claim for wrongful termination—as her
proposed basis for establishing a constitutional claim for money
damages.
  ¶24 The University’s approach comes closer to providing the
material we would need to assess the viability of a constitutional
free speech claim for damages and to identify its elements. But
even the University’s approach falls short. The University is
asking us to import an established body of federal case law into
the Utah Constitution. And it does so without any independent
analysis of the distinctive text and original meaning of the Utah
free speech clause. That is also insufficient.
  ¶25 To establish the elements of a Utah free speech claim we
would need to start, at a minimum, with a careful analysis of the
text of the Utah Constitution, as understood when it was adopted
in the late nineteenth century.4 This has been our primary mode of




   4 See Am. Bush v. City of S. Salt Lake, 2006 UT 40, ¶ 66, 140 P.3d
1235 (Parrish, J., majority opinion) (interpreting Utah free speech
clause not in terms of policy arguments or modern preferences
but in light of originalist inquiry; explaining that “[i]t is not our
place” to “substitut[e] our own value judgment for that of the
people of Utah when they drafted and ratified the constitution”);
id. ¶¶ 79, 82 (Durrant, J., concurring) (noting that it is “enticing to
adopt an interpretive technique whereby we, as judges, look to
our own attitudes and views to discern the contours of the
protective boundary erected by our state constitution,” and
explaining that this “is more akin to dictating than judging”);
Neese v. Utah Bd. of Pardons & Parole, 2017 UT 89, ¶ 67, __ P.3d __
(“[T]his court should look to the original meaning of the Utah
Constitution when properly confronted with constitutional
issues.”).




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                ZIMMERMAN v. UNIVERSITY OF UTAH
                        Opinion of the Court

constitutional interpretation since the founding of the state.5 And
although we may look to case law from sister states or from the
federal realm to inform our thinking, such cases are merely
secondary. They may be helpful insofar as they persuade us as to
the correct understanding of the Utah Constitution at the time of
its adoption. But they are by no means controlling. State v.
Tiedemann, 2007 UT 49, ¶ 33, 162 P.3d 1106 (“This court . . . has the
authority and obligation to interpret Utah’s constitutional
guarantees, . . . and we owe federal law no more deference in that
regard than we do sister state interpretation of identical state
language.” (citations omitted)).
  ¶26 For that reason the University’s approach is also
inadequate to inform our determination of the elements of a Utah
free speech claim. Thus, we are left without a basis in the parties’
briefing for resolving the first two questions certified for our
review. And we accordingly decline to offer an answer.
  ¶27 We are reluctant to take this course. We appreciate the
significance of the free speech questions certified by the federal
court. And our acceptance of the certification would ordinarily


   5    See Jeremy M. Christiansen, Some Thoughts on Utah
Originalism: A Response, 2014 UTAH L. REV. ONLAW 1, 5–6 & nn.26–
36, 9–10 & nn.59–64 (citing and discussing this court’s approach to
constitutional interpretation over time, and concluding that the
prevailing approach has largely been originalist (citing Richardson
v. Treasure Hill Mining Co., 65 P. 74, 81 (Utah 1901)) (interpreting
article XII, section 18 by examining “[the framers’] discussions
upon this subject[] [i]n the official report of the proceedings of the
constitutional convention”) (second and third alterations in
original)); Ritchie v. Richards, 47 P. 670, 679 (Utah 1896) (per Batch,
J.) (interpreting the secret ballot provision of article IV, section 8
and choosing the meaning of “secret” that was “in harmony with
public thought and expression respecting the ballot systems at the
time of and before the holding of the constitutional convention”);
State v. Elliott, 44 P. 248, 251 (Utah 1896) (discerning the intent “of
the framers of our fundamental law” in determining the scope of
the “writ of quo warranto” in article VIII, section 4).




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                       Opinion of the Court

put us on a path to providing an answer. Our jurisdiction in
answering certified questions, however, is elective. The decision
to accept such questions is a matter of our discretion. See UTAH R.
APP. P. 41(e) (recognizing our authority to “enter an order either
accepting or rejecting the question[s] certified” by a federal court).
And that discretion necessarily encompasses the authority to
decline to provide a conclusive answer after reviewing the parties’
briefing.
  ¶28 We therefore decline to give a conclusive answer to the
question whether the Utah free speech clause is self-executing or
to prescribe the elements of a free speech claim in the
circumstances of this case. The answer to these questions may yet
prove crucial to the disposition of this case. But the parties have
not given us the kind of adversary briefing that we would need to
resolve these important issues with confidence, and we therefore
decline to do so.
                                  B
  ¶29 The third question certified by Judge Parrish is more amply
addressed by the parties in their briefing. This question concerns
the identification of the event that triggers the 180-day filing
requirement under the UPPEA. The governing provision requires
that “an employee who alleges a violation” of the UPPEA file a
claim “within 180 days after the occurrence of the alleged
violation” of the statute. UTAH CODE § 67-21-4(1)(a). In this case,
the alleged violation is an “adverse [employment] action”
undertaken because an employee has “communicate[d] in good
faith . . . a violation or suspected violation of a law, rule, or
regulation.” Id. § 67-21-3(1)(a).
  ¶30 The certified question asks whether “an employee who
receives notice that his or her employment will be terminated
effective on a future date suffer[s] an adverse employment action
for purposes of the Utah Protection of Public Employees Act when
he or she receives notice, when the employment is actually
terminated, or both[.]” Order Certifying Question to the Utah
Supreme Court at 1, Zimmerman v. Univ. of Utah, No. 2:13-cv-1131
(D. Utah July 1, 2016). Our answer, which we explain further
below, is that either or both of these actions conceivably could be




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               ZIMMERMAN v. UNIVERSITY OF UTAH
                      Opinion of the Court

an “adverse employment action” triggering the 180-day clock—
and that the precise answer depends on whether and to what
extent the employee is seeking damages arising out of one or the
other of these actions (or both). To the extent an employee is
seeking damages that arise from a notice of termination, a claim
for those damages would be foreclosed by the failure to file within
180 days of the notice. To the extent an employee is seeking
damages arising from the actual termination, on the other hand, a
claim for those damages would not be foreclosed unless the
employee fails to file a claim within 180 days of the actual
termination.
  ¶31 This framework is dictated by the plain language and
structure of the UPPEA. The statute says that an adverse
employment action occurs when an employer “discharge[s],
threaten[s], or discriminate[s] against an employee in a manner
that affects the employee’s employment, including compensation,
terms, conditions, location, rights, immunities, promotions, or
privileges.” UTAH CODE § 67-21-2(2). That means that both a threat
of termination and an actual termination could trigger a claim
under the UPPEA.
  ¶32 Thus, we think the University has a point in asserting that
Dr. Zimmerman had a claim that accrued upon her receipt of its
notice of termination of her contract. When that happened (in
December 2012) Dr. Zimmerman allegedly suffered an actionable
adverse employment action. And to the extent she seeks damages
in the underlying federal proceeding for injuries suffered as a
result of the December 2012 notice of termination her claim would
be time-barred under the UPPEA.
  ¶33 That may not be the end of the matter, however. Dr.
Zimmerman also seems to have identified a separate adverse
employment action that occurred in June 2013—when her
employment was actually terminated. Dr. Zimmerman apparently
alleges that this was a separate, actionable employment action.
And because she filed her UPPEA claim within 180 days of that
action, it would appear that she may be entitled to recover
damages she can show to be causally connected to that separate
action.




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  ¶34 The determination of whether a plaintiff’s cause of action is
time-barred requires precision in identifying “precisely the
‘unlawful employment practice’ of which [s]he complains.” Del.
State Coll. v. Ricks, 449 U.S. 250, 257 (1980) (articulating a parallel
standard of proof under Title VII and 42 U.S.C. § 1981). We are
not asked here to decide conclusively whether or to what extent
Dr. Zimmerman’s UPPEA claim is time-barred. But we are asked
to clarify the legal framework that will govern that determination.
And we conclude that the UPPEA does not exclude the possibility
of the actual termination of Dr. Zimmerman’s employment as a
separate adverse employment action. Indeed the statutory
definition of “adverse action” seems clearly to suggest that actual
termination could sustain the assertion of a separate, independent
claim.
  ¶35 Whether it does qualify will depend on the evidence
presented in the federal district court. Under the UPPEA it is Dr.
Zimmerman’s burden not just to identify an adverse employment
action but also to establish that any such action adversely affected
her “employment, including compensation, terms, conditions,
location, rights, immunities, promotions, or privileges.” UTAH
CODE § 67-21-2(2). This question of causation will be a crucial
determinant of the timeliness of Dr. Zimmerman’s UPPEA claim.
To the extent her damages are causally connected to the notice of
termination they would be time-barred; but to the extent they are
causally connected to the actual termination of her employment
they would not be time-barred.6
 ¶36 We are not asked to sort out this causation question here.
We leave that matter to the federal district court in subsequent
proceedings.



   6 See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113–14
(2002) (“Each incident of discrimination and each retaliatory
adverse employment decision constitutes a separate actionable
‘unlawful employment practice,’” and “discrete discriminatory
acts are not actionable if time barred, even when they are related
to acts alleged in timely filed charges.”).




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