2016 UT App 35

THE UTAH COURT OF APPEALS

LUCINDA D. REYNOLDS,

Appellant,

v.

GENTRY FINANCE CORPORATION AND ROYAL MANAGEMENT,

Appellees.

Opinion

No. 20140574-CA

Filed February 19, 2016

Fifth District Court, St. George Department

The Honorable Eric A. Ludlow

No. 110501046

William F. Rummler and Christopher A. Lund, 

Attorneys for Appellant

Steven R. Bangerter and Daniel P. Wilde, Attorneys

for Appellee Gentry Finance Corporation

JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which 

JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN

concurred.

VOROS, Judge:

¶1 After being reassured repeatedly and prominently in 

writing that her employer would take no adverse action against 

any employee for bringing a complaint to the home office—and 

in fact that the employer viewed not reporting violations of 

company policy as misconduct—appellant Lucinda D. Reynolds

reported that her immediate supervisor had directed her to act in 

violation of company policy and applicable law. She was fired 

two weeks later. The district court ruled on summary judgment 

that the discharge violated no law because Reynolds was an atwill employee. Reynolds appeals from that order. We affirm in 
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20140574-CA 2 2016 UT App 35

part and reverse in part and remand for further proceedings 

consistent with this opinion.

BACKGROUND1

¶2 Reynolds began working for Gentry Finance Corporation

and Royal Management (collectively Gentry) in June 2009. She

received two employee manuals intended to provide employees 

with an ‚understanding of our personnel policies‛ as part of her 

orientation.

¶3 The manuals required managers to report wrongdoing.

The manuals stated in ‚numerous places‛ that ‚managers are 

told to report wrongdoing . . . and are repeatedly assured that 

‘NO EMPLOYEE WILL BE TERMINATED OR HAVE ANY 

ADVERSE ACTION TAKEN AGAINST THEM FOR BRINGING 

A COMPLAINT TO THE ATTENTION OF THE HOME 

OFFICE.’‛ (Capitalization, boldface, and italics in original.) Such

assurances appear throughout the manuals, often bolded, 

italicized, and set apart in text boxes; written in all capital letters;

punctuated with exclamation points; and prominently displayed 

at the top of a page or on a separate page entirely. The manuals

also state that not reporting wrongdoing constitutes ‚violating 

Company Policy.‛ But page 5 of the Gentry manual also includes

a disclaimer, buried in the body of the manual’s text, stating that 

‚[this handbook] is not an employment contract and is not 

intended to create contractual obligations of any kind. Neither 

the employee nor the company is bound to continue the 

employment relationship if either chooses, at its will, to end the 

relationship at any time.‛

 

1. In reviewing a district court’s grant of summary judgment, we 

view ‚the facts and all reasonable inferences drawn therefrom in 

the light most favorable to the nonmoving party‛ and recite the 

facts accordingly. Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600 

(citation and internal quotation marks omitted).
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20140574-CA 3 2016 UT App 35

¶4 In February 2010, Gentry promoted Reynolds to manager 

of its St. George office. That same month she signed an 

employment agreement, containing an integration clause, stating 

that she was ‚deemed to be an employee at will.‛ This 

agreement contained no mention of a duty to report wrongdoing.

¶5 From the time she was hired until December 17, 2010, 

Reynolds received at least 17 performance evaluations 

containing a mix of positive and negative appraisals of her job 

performance. In early January 2011, Reynolds’s supervisor 

prepared a memo detailing a lack of year-over-year loan growth 

in Reynolds’s office and describing her slow-file (delinquent 

loan) rate as ‚too high for the lack of growth the office has had.‛

This memo also stated that Reynolds displayed ‚a negative

attitude‛ when discussing these issues. Shortly thereafter her

supervisor directed Reynolds to call former borrowers, including 

those whose accounts had been closed for more than 14 months. 

Reynolds refused, on the ground that the calls would violate

Gentry’s policy. According to Reynolds, her supervisor also

instructed her to call former borrowers whose accounts had been 

closed for more than 18 months. Reynolds again refused, this 

time on the ground that the calls would violate state and federal

law.

¶6 Reynolds reported this incident to an executive at Gentry

on January 12, 2011. The executive confirmed to Reynolds’s

supervisor that company policy prohibited contact with former 

borrowers after 14 months, but also instructed Reynolds to be 

‚more subtle in the way she relates disagreement with directives 

to her supervisor.‛ One week later, Gentry suspended Reynolds 

pending an investigation of her account activity by her 

supervisor. Her supervisor’s investigation reported ‚slow file is 

high,‛ ‚no growth,‛ ‚poor collection practices,‛ and ‚overall 

attitude is poor‛ as reasons justifying termination. Gentry 

terminated Reynolds’s employment on January 25, 2011, less 

than two weeks after she reported her supervisor.
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20140574-CA 4 2016 UT App 35

ISSUES AND STANDARD OF REVIEW

¶7 Reynolds contends that the district court erred as a matter 

of law in granting summary judgment against her. First, she

contends that her termination breached the employee manuals, 

which created an implied-in-fact contract that modified her atwill employment status. Second, she contends that her 

termination violates clear and substantial public policy. Finally, 

she contends that genuine issues of fact preclude summary 

judgment.

¶8 ‚The court shall grant summary judgment if the moving 

party shows that there is no genuine dispute as to any material 

fact and the moving party is entitled to judgment as a matter of 

law.‛ Utah R. Civ. P. 56(a). ‚Since the trial court has no 

comparative advantage over the appellate court in resolving 

these questions, the appellate court reviews a summary 

judgment for correctness, giving no deference to the trial court’s 

decision.‛ Bahr v. Imus, 2011 UT 19, ¶ 15, 250 P.3d 56. We view 

‚the facts and all reasonable inferences drawn therefrom in the 

light most favorable to the nonmoving party.‛ Orvis v. Johnson, 

2008 UT 2, ¶ 6, 177 P.3d 600 (citation and internal quotation 

marks omitted). However, ‚the mere existence of genuine issues 

of fact . . . does not preclude the entry of summary judgment if 

those issues are immaterial to the resolution of the case.‛ Doyle v. 

Lehi City, 2012 UT App 342, ¶ 19, 291 P.3d 853 (omission in 

original) (citation and internal quotation marks omitted).

ANALYSIS

I. Implied-in-Fact Contract

¶9 Reynolds contends that the employee manuals created an 

implied-in-fact contract that modified her at-will employment 

status.
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20140574-CA 5 2016 UT App 35

¶10 An employee manual may create a unilateral contract.

Johnson v. Morton Thiokol, Inc., 818 P.2d 997, 1001 (Utah 1991). 

‚Under a unilateral contract analysis, an employer’s promise of 

employment under certain terms and for an indefinite period 

constitutes both the terms of the employment contract and the 

employer’s consideration for the employment contract.‛ Id. at 

1001–02. ‚The employee’s performance of service pursuant to 

the employer’s offer constitutes both the employee’s acceptance 

of the offer and the employee’s consideration for the contract.‛ Id.

at 1002. ‚The employee’s retention of employment constitutes 

acceptance of the offer of a unilateral contract; by continuing to 

stay on the job, although free to leave, the employment supplies 

the necessary consideration for the offer.‛ Id. (citation and 

internal quotation marks omitted).

¶11 ‚At-will employment is a bundle of different privileges, 

any or all of which an employer can surrender through an oral 

agreement.‛ Sanderson v. First Sec. Leasing Co., 844 P.2d 303, 307 

(Utah 1992). The modification need not be oral. But the employer 

must communicate a manifestation of intent to the employee 

that is sufficiently definite that the ‚employee can reasonably 

believe that the employer is making an offer of employment 

other than employment at will.‛ Johnson, 818 P.2d at 1002. ‚*I+t is 

not clear what type of evidence is sufficient to raise a triable 

issue concerning the intentions of the parties and therefore the 

existence of an implied-in-fact contract term.‛ Id. But an 

employee handbook distributed to an at-will employee may 

modify the at-will employment relationship. Id. at 1003. 

‚*E+mployee manuals and bulletins containing policies for 

employee termination are legitimate sources for determining the 

apparent intentions of the parties and for fixing the terms of the 

employment relationship.‛ Id. at 1002. However, a manual that

‚contains clear and conspicuous language disclaiming any 

contractual liability and stating *the employer’s+ intent to 

maintain an at-will relationship with its employees‛ will not 

raise a triable issue. Id. at 1003.
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20140574-CA 6 2016 UT App 35

¶12 This is so because ‚Utah law allows employers to disclaim 

any contractual relationship that might otherwise arise from 

employee manuals.‛ Tomlinson v. NCR Corp., 2014 UT 55, ¶ 25, 

345 P.3d 523. Thus, ‚when an employee handbook contains a 

clear and conspicuous disclaimer of contractual liability, any 

other agreement terms must be construed in the light of the 

disclaimer.‛ Hodgson v. Bunzl Utah, Inc., 844 P.2d 331, 334 (Utah 

1992). ‚The prominence of the text, the placement of the 

disclaimer, and the language of the disclaimer are all relevant 

factors in determining whether a disclaimer is clear and 

conspicuous.‛ Tomlinson, 2014 UT 55, ¶ 26. For example, in 

Tomlinson, a disclaimer ‚conspicuously located at the top of the 

relevant policy‛ and ‚prominently bolded and set apart by a text 

box‛ was ‚sufficiently prominent to put employees on notice of 

its terms.‛ Id. ¶ 28.

¶13 Here, both Reynolds’s employment agreement and 

Gentry’s employee manuals describe her employment as at-will. 

Altogether the portions of the employee manuals included in the 

record contain four references to at-will employment. One of 

these references also contains a disclaimer of contractual liability.

The disclaimer reads, ‚[This] is not an employment contract and 

is not intended to create contractual obligations of any kind. 

Neither the employee nor the company is bound to continue the 

employment relationship if either chooses, at its will, to end the 

relationship at any time.‛ The text of this disclaimer closely 

tracks the text of the disclaimer in Johnson, which our supreme 

court held was sufficiently clear to convey the intent of Johnson’s 

employer to maintain an at-will relationship. Johnson, 818 P.2d at

1003.

¶14 However, the disclaimer here is far from being ‚clear and 

conspicuous.‛ In Tomlinson, a disclaimer ‚conspicuously located 

at the top of the relevant policy and . . . prominently bolded and 

set apart by a text box‛ was deemed ‚sufficiently prominent to 

place a reasonable employee on notice.‛ Tomlinson, 2014 UT 55, 

¶ 28. Gentry’s disclaimer, by contrast, is not placed at the top of 
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20140574-CA 7 2016 UT App 35

the relevant policy, not prominent, not bolded, and not set apart 

by a text box. It is, in a word, inconspicuous.

¶15 Far more conspicuous are the manuals’ repeated 

assurances that no employee ‚will be terminated for submitting 

a complaint or grievance.‛ These statements, which occur no 

fewer than ten times in the manuals provided to Reynolds, are 

frequently bolded, italicized, set apart in text boxes, written in all 

capital letters, and punctuated with exclamation points. Some of 

these assurances occupy an entire page or appear at the top or 

bottom of the page, distinctly apart from the rest of the text.

¶16 We conclude that the employment manuals create a 

triable issue as to whether Gentry intended to be contractually 

bound by its repeated statements that no employee would be 

terminated for submitting a complaint or grievance. Indeed, 

these statements overshadow the four references to at-will 

employment in the company manuals in frequency, prominence,

and placement.2

¶17 But that conclusion does not end the inquiry. The district 

court ruled that under the parol evidence rule the integration 

clause in Reynolds’s employment agreement rendered her

‚attempt to find a contract in the employee handbook . . .

unavailing.‛ Whether the disclaimer found in the employment 

manuals qualifies as an implied-in-fact unilateral contract will 

not matter if the parol evidence rule excludes the employee 

manuals from the analysis.

 

2. The evidence that Gentry intended to be bound by these 

statements is so persuasive that even counsel for Gentry 

acknowledged in oral argument that these statements qualified

Reynolds’s at-will employment status. However, he quickly 

added that it did not matter, because ‚[Reynolds] was not fired 

for that reason.‛
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20140574-CA 8 2016 UT App 35

¶18 Our supreme court has explained that, under the parol 

evidence rule, ‚when parties have reduced to writing what 

appears to be a complete and certain agreement, it will be 

conclusively presumed, in the absence of fraud, that the writing 

contains the whole of the agreement between the parties.‛ 

Tangren Family Trust v. Tangren, 2008 UT 20, ¶ 12, 182 P.3d 326 

(citation and internal quotation marks omitted). However, the

rule ‚has a very narrow application.‛ Union Bank v. Swenson, 707 

P.2d 663, 665 (Utah 1985). It will ‚exclude evidence of 

contemporaneous conversations, representations, or statements 

offered for the purpose of varying or adding to the terms of an 

integrated contract‛ in the absence of fraud or other invalidating 

causes. Tangren, 2008 UT 20, ¶ 11 (citation, emphasis, and 

internal quotation marks omitted). But it does not foreclose 

future amendments or modifications to an integrated agreement. 

‚The parol evidence rule only purports to foreclose events which 

precede or accompany a written or oral integration, not those 

which come later . . . .‛ Wilson v. Gardner, 348 P.2d 931, 933 (Utah 

1960). Thus, ‚*t+he parol evidence rule precludes extrinsic 

evidence of prior or contemporaneous agreements that 

contradict, vary, or add to an integrated writing—it does not 

relate to future agreements and does not bar extrinsic evidence 

that proves that the parties subsequently modified their 

integrated writing.‛ In re Insurance Installment Fee Cases, 150 Cal. 

Rptr. 3d 618, 632 (Ct. App. 2012) (alteration in original) (citation, 

emphasis, and internal quotation marks omitted).

¶19 Reynolds’s employment agreement unambiguously states 

that she may be fired ‚at any time and without cause, notice or 

excuse for any reason.‛ And it contains an integration clause.

Because the agreement is integrated and unambiguous, the court 

could not admit parol evidence to vary or contradict its terms.

See Tangren, 2008 UT 20, ¶ 11. But we do not understand 

Reynolds to be relying on the employee manuals for that 

purpose—or at least not for that purpose alone. Our supreme 

court held in Johnson that ‚subsequent expressed or implied 
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20140574-CA 9 2016 UT App 35

agreements [may modify] the at-will employment relationship.‛ 

Johnson v. Morton Thiokol, Inc., 818 P.2d 997, 1004 (Utah 1991). 

¶20 We understand Reynolds to be offering the employee 

manuals at least in part for this purpose—to show that the 

parties subsequently modified the at-will nature of Reynolds’s 

employment agreement. True, Reynolds received the manuals

before signing the employment agreement. But thereafter Gentry 

continued to promulgate the manuals and Reynolds continued

to work, each thereby re-entering the unilateral contract; 

accordingly, their ‚conduct . . . [met] the standards of a 

unilateral offer and acceptance.‛ Hodgson v. Bunzl Utah, Inc., 844 

P.2d 331, 334 (Utah 1992) (citing Johnson, 818 P.2d at 1002).3

¶21 Our supreme court has held that an employee manual 

may modify a prior employee contract. In Ryan v. Dan’s Food 

Stores, Inc., 972 P.2d 395 (Utah 1998), the court held that even 

where ‚an express or implied contract‛ governs an employment 

relationship, ‚if an employee has knowledge of a distributed 

handbook that changes a condition of the employee’s 

employment, and the employee remains in the company’s 

employ, the modified conditions become part of the employee’s 

employment contract.‛ Id. at 401 (quoting Trembly v. Mrs. Fields 

Cookies, 884 P.2d 1306, 1312 (Utah Ct. App. 1994)). Although in 

that case the rule supported the employer’s attempt to bind the 

employee to the terms of the employee manual, the rule by its 

nature equally supports an employee’s attempt to bind the 

employer to the terms of the employee manual.

 

3. The agreement also states, ‚No change or modification hereof 

shall be valid or shall be binding unless the same is in writing 

and signed by the party intended to be bound.‛ However, ‚a 

written contract may be orally modified notwithstanding a 

clause in the contract stipulating that any modification must be 

in writing.‛ R.T. Nielson Co. v. Cook, 2002 UT 11, ¶ 13 n.4, 40 P.3d 

1119.
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20140574-CA 10 2016 UT App 35

¶22 Accordingly, we reverse the district court’s ruling that the 

employment agreement foreclosed Reynolds’s reliance on the 

employee manuals. Under Ryan, the employee manuals may 

well have modified the conditions of Reynolds’s employment. 

And, as explained above, the manuals’ terms present a triable 

issue of fact as to whether their disclaimers were sufficiently 

clear and conspicuous to negate other terms of the manuals that 

purport to qualify Reynolds’s at-will status.

¶23 However, ‚we stress the narrowness of the implied-infact contract term that *Reynolds’s+ allegations would support.‛ 

See Sanderson v. First Sec. Leasing Co., 844 P.2d 303, 307 (Utah 

1992). Gentry promised merely that it would not fire Reynolds

for the reasons stated in the employee manuals—reporting 

misconduct—but it retained its ‚at-will prerogative to fire 

[Reynolds] at any time for any other reason.‛ See id.

II. Violation of Clear and Substantial Public Policy

¶24 Reynolds also contends on appeal that regardless of the 

at-will nature of her employment, her termination violated clear 

and substantial public policy. This is so, she argues, because she 

was fired in retaliation for refusing to violate state and federal 

do-not-call laws and for reporting to management that her 

supervisor ordered her to break company policy and applicable

law.

¶25 Generally an employer may terminate an at-will 

employee for any reason other than those prohibited by law. Ray 

v. Wal-Mart Stores, Inc., 2015 UT 83, ¶ 12, 359 P.3d 614. However, 

‚[a]n at-will employee whose employment has been terminated 

in violation of a clear and substantial public policy may sue for 

wrongful termination.‛ Id. This exception applies only when 

‚‘the public interest is so strong and the policy so clear and 

weighty that we should place the policy beyond the reach’ of 

any at-will employment contract.‛ Id. (quoting Touchard v. La-ZBoy Inc., 2006 UT 71, ¶ 13, 148 P.3d 945).
Reynolds v. Gentry Finance Corporation

20140574-CA 11 2016 UT App 35

¶26 Our supreme court has identified four categories of public 

policy that may provide a basis for a wrongful termination claim; 

these include refusing to violate the law and reporting criminal 

activity to a public authority:

(i) refusing to commit an illegal or wrongful act, 

such as refusing to violate the antitrust laws; (ii) 

performing a public obligation, such as 

accepting jury duty; (iii) exercising a legal right 

or privilege, such as filing a workers’

compensation claim; or (iv) reporting to a 

public authority criminal activity of the 

employer.

Id. ¶ 13 (citation, emphasis, and internal quotation marks

omitted).

¶27 The supreme court has clarified that the Utah Code and 

the Utah Constitution may be used as authoritative sources to 

identify whether an issue is reflected in the clear and substantial 

public policy of Utah. Id. ¶¶ 28–29. Furthermore, ‚*p+ersons who 

are terminated from their employment because they refuse to 

engage in illegal activities that implicated clear and substantial 

Utah public policy considerations should be protected regardless 

of whether the applicable law is that of Utah, the federal 

government, or another state.‛ Rackley v. Fairview Care Centers, 

Inc., 2001 UT 32, ¶ 44, 23 P.3d 1022 (citation and internal

quotation marks omitted). But even ‚if a public policy is 

reflected in the Utah Constitution, the Utah Code, and our 

common law decisions, it is not clear and substantial unless it is 

of overarching importance to the public, as opposed to the 

parties only.‛ Ray, 2015 UT 83, ¶ 39 (citation and internal 

quotation marks omitted).

¶28 Reynolds alleges that Gentry discharged her for refusing 

to violate the law, for reporting her immediate supervisor’s 

demand that she violate the law to upper management, or both. 

The supreme court has held the public policy exception to apply 
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20140574-CA 12 2016 UT App 35

where an employee was discharged for making an internal 

report about a bank’s noncompliance with state reporting 

requirements, see id. ¶ 56 (citing Heslop v. Bank of Utah, 839 P.2d 

828 (Utah 1992)), and where an employee was discharged for 

refusing to falsify tax documents, see id. ¶ 55 (citing Peterson v. 

Browning, 832 P.2d 1280 (Utah 1992)).

¶29 ‚But having a legal right or privilege alone does not mean 

that a terminated employee will necessarily have a valid claim 

for wrongful termination.‛ Id. ¶ 14. To determine whether the 

legal principle at issue reflects the type of clear and substantial 

Utah public policy that qualifies as an exception to the at-will 

rule, our courts consider three factors: ‚(1) whether the policy at 

issue is reflected in authoritative sources of state public policy, (2) 

whether the policy affects the public generally as opposed to the 

private interests of the employee and the employer, and (3) 

whether countervailing policies outweigh the policy at issue.‛ Id. 

(citations omitted).

¶30 Here, Reynolds identifies the state and federal statutes 

and the federal regulations that she refused to violate, which 

prohibit certain telemarketing calls. But her briefing on appeal 

does not demonstrate that those provisions embody the clear 

and substantial public policy of the State of Utah. She asserts 

merely that these laws ‚were created to protect the public from 

telemarketing abuse.‛ While undoubtedly true, this single 

assertion, without elaboration or analysis, does not establish that 

protecting the public from unwanted telemarketing calls is of 

‚overarching importance to the public.‛ Ray v. Wal-Mart Stores, 

Inc., 2015 UT 83, ¶ 39, 359 P.3d 614. Accordingly Reynolds has 

not discharged her appellate burden to demonstrate district 

court error. See Simmons Media Group, LLC v. Waykar, LLC, 2014 

UT App 145, ¶ 37, 335 P.3d 885 (describing the level of argument 

required to prevail on appeal).

¶31 In sum, Reynolds has not shown that discharging an 

employee for refusing to violate state and federal telemarketing 

statutes and regulations contravenes the clear and substantial 
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20140574-CA 13 2016 UT App 35

public policy of the State of Utah. Accordingly, we affirm the 

order of the district court dismissing her cause of action insofar 

as it rests on public policy grounds.

III. Genuine Issues of Material Fact

¶32 Finally, Reynolds contends that genuine issues of material 

fact preclude summary judgment. ‚We review a district court’s 

decision granting summary judgment for correctness, viewing 

‘the facts and all reasonable inferences drawn therefrom in the 

light most favorable to the nonmoving party.’‛ Mind & Motion 

Utah Invs., LLC v. Celtic Bank Corp., 2016 UT 6, ¶ 15 (quoting 

Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600).

¶33 A court ‚shall grant summary judgment if the moving 

party shows that there is no genuine dispute as to any material 

fact and the moving party is entitled to judgment as a matter of 

law.‛ Utah R. Civ. P. 56(a). A genuine dispute need not be 

shown by direct evidence; ‚inferences drawn from 

circumstantial evidence . . . may create a genuine issue of 

material fact.‛ USA Power, LLC v. PacifiCorp, 2010 UT 31, ¶ 65, 

235 P.3d 749. ‚Even absent a ‘complete conflict as to certain 

facts,’ a dispute of ‘the understanding, intention, and 

consequences of those facts’ may defeat summary judgment.‛ Id.

¶ 32 (quoting Sandberg v. Klein, 576 P.2d 1291, 1292 (Utah 1978)).

¶34 Reynolds argues that the parties disagree on whether 

Gentry instructed her ‚to call persons on the national do-not-call 

registry or those with accounts older than 18 months.‛ Gentry 

does not deny that a factual conflict exists on this point; it argues 

rather that the issue ‚is not critical.‛ It is not critical, Gentry 

reasons, because even if Gentry did instruct Reynolds to make 

impermissible calls, ‚there is no evidence or reasonable inference 

that this had any bearing on *Gentry’s+ reason for terminating 

*her+.‛ Gentry claims to have terminated her solely ‚because she 

failed to grow the office as expected.‛ Reynolds responds that 

the evidence supports a logical inference that Gentry’s stated 

reason for terminating her was pretextual.
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20140574-CA 14 2016 UT App 35

¶35 A triable issue of fact may arise where ‚pretext is one of 

the logical inferences arising from the facts‛ raised by the 

employee. See Uintah Basin Med. Ctr. v. Hardy, 2008 UT 15, ¶ 17, 

179 P.3d 786. Under related federal law, even if ‚an employer’s 

proffered legitimate reason for a termination is factually true—

for example, [the employee] did commit a safety violation—the 

reason may nevertheless be deemed pretextual if circumstances 

suggest that it does not adequately explain the employer’s 

actions—for example, if the employer was more lenient with 

similarly-situated employees who committed the same 

violation.‛ Smothers v. Solvay Chems., Inc., 740 F.3d 530, 547 (10th 

Cir. 2014).

¶36 Here, Reynolds points to evidence that Gentry’s stated 

reason for terminating her is pretextual. For example, Reynolds’s

scores on eight performance audits had ranged between 70 and 

85 (out of a total of 100). But after she refused to break the law 

and questioned company supervisors about the issue, her 

immediate supervisor suspended her and conducted another 

audit. Her score on that audit dropped to 30. Reynolds argues 

that her score fell dramatically in part because she was not 

working due to the suspension. Reynolds also cites evidence that 

her predecessor failed three audits before being terminated, 

whereas Reynolds failed only one. Reynolds also argues that the 

timing of her discharge—eight days after she refused to violate 

the law and reported the request to her supervisor’s superior—

‚is not a coincidence.‛ Gentry responds that this inference is 

‚pure speculation, conclusory argument, and unsubstantiated 

opinion.‛

¶37 In addition, Reynolds testified that her direct supervisor 

directed her to act in violation of law, stating that ‚sometimes, in 

order to keep your job, you have to be willing to break the 

rules.‛ Reynolds then contacted that supervisor’s superior. That 

superior later testified that if he were given the choice between 

obeying company policy and obeying a direct supervisor, he 

would obey the direct supervisor. And Reynolds testified that 

the superior told her, ‚Well, when your supervisor tells you to 
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20140574-CA 15 2016 UT App 35

do something, you need to do it.‛ When Reynolds took the issue 

to the supervisor’s superior, he stated, ‚Well, we all know that 

our job is on the line every day.‛

¶38 We agree with Gentry that Reynolds ‚cannot create a 

dispute on a material issue of fact or disputed inference by 

simply saying there is a dispute, or, based upon speculation, a 

subjective belief or opinion.‛ But Reynolds has done more than 

that here. Viewing the evidence in the light most favorable to 

her, as we must, we conclude that pretext is one of the logical 

inferences arising from the facts presented and thus that 

Reynolds has raised a genuine issue of material fact as to 

‚whether the business reasons offered by [Gentry] for 

[Reynolds’s+ termination were pretextual.‛ See Uintah Basin, 2008 

UT 15, ¶ 20.

CONCLUSION

¶39 Insofar as the summary judgment concludes that 

Reynolds has no colorable claim under the public policy 

exception to the at-will employment rule, it is affirmed. In all 

other respects, it is reversed. We accordingly remand the case for 

further proceedings consistent with this opinion.