2024 UT App 56

THE UTAH COURT OF APPEALS

AARON SAMPSON,

Appellant,

v.

HB BOYS, LC,

Appellee.

Opinion

No. 20221003-CA

Filed April 18, 2024

Third District Court, Salt Lake Department

The Honorable Robert P. Faust

No. 210900310

Gregory W. Stevens, Attorney for Appellant

Robert L. Janicki, Michael L. Ford, and Thomas M. 

Alldridge, Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which 

JUDGES RYAN D. TENNEY and JOHN D. LUTHY concurred.

MORTENSEN, Judge:

¶1 A couple of interactions soured the relationship between 

the shift supervisor at a Burger King and a customer, Aaron

Sampson, who in addition to requesting a new burger or a refund, 

filmed his interactions with the shift supervisor(Shift Supervisor). 

Running out of patience during a second interaction, the soon-tobe-fired Shift Supervisor assailed Sampson with racist slights and 

solicited a nearby acquaintance to assault him. Sampson

subsequently sued the franchise owner, HB Boys, LC (HBB),

under the Utah Civil Rights Act (UCRA)—specifically under the 

private right of action provision. HBB moved for summary 

judgment, claiming the common law doctrines of respondeat 

superior and agency did not apply in these circumstances and 

therefore it could not be held liable under the UCRA. The district 
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court agreed and granted the motion. Sampson appeals, and we 

reverse.

BACKGROUND1

¶2 In February 2019, Sampson was assaulted at a Burger King 

owned by HBB. To understand this incident, we must first go back 

to another incident that took place about two weeks prior when

Sampson received an undercooked cheeseburger at the same 

Burger King. After Sampson took several bites of his burger, he 

realized that it was not cooked through and approached the front 

counter to ask for a new one or a refund. The employee left the 

front counter to take the issue to Shift Supervisor at the back of 

the restaurant. Sampson overheard Shift Supervisor in a raised 

voice respond, “He can’t have another burger,” and, “If he wants 

a burger, I’ll cook him a burger.” Concerned there would be a 

problem, Sampson pulled out his phone to record as Shift 

Supervisor made her way to the counter. Shift Supervisor asked 

him what he wanted, and Sampson said that he would like a 

refund. Shift Supervisor told him, “You can’t be eating the stuff 

and then expect to get a refund.” Sampson explained that he 

didn’t eat the burger because the meat was red and once again 

stated that he would like a refund. Shift Supervisor again told him 

he could not have one, so Sampson asked for her name, which she 

refused to give him. Sampson then asked for a phone number to 

file a complaint, and Shift Supervisor pushed a receipt with the 

number into his chest, while also trying to grab his phone. Shift 

1. We recite the facts of the case and draw all reasonable inferences

in the light most favorable to Sampson as the nonmoving party. 

Ockey v. Club Jam, 2014 UT App 126, ¶ 2 n.2, 328 P.3d 880 (“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.” (cleaned up)).
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Supervisor threatened to call the police, at which point Sampson 

left the restaurant.

¶3 Sampson considered filing a complaint with both the 

police and HBB, but before he could do so, a second incident 

occurred.

¶4 Two weeks after the first encounter at Burger King, 

Sampson and his cousin (Cousin) returned to the same restaurant 

to get food before the Super Bowl. Sampson waited in the car 

while Cousin ran in to grab the food. After waiting about ten 

minutes for Cousin to return, Sampson went into the restaurant 

to see what was taking so long.

¶5 When Cousin had attempted to order, Shift Supervisor had 

confronted him about filming her “again.” Cousin explained that 

she must have him confused with someone else. As their 

conversation went on, a large man came to the counter and 

confronted Cousin in a “threatening manner.” Cousin continued 

to tell the pair that they had the wrong person and he just wanted 

to order his food. Shift Supervisor eventually took his order, and 

Cousin stepped to the side to wait for what seemed to him like an 

intentionally longer than usual amount of time. It was at this point 

that Sampson entered the restaurant.

¶6 Shift Supervisor recognized Sampson and asked if he was 

there to record her again. Sampson said he didn’t know what she 

was talking about. Shift Supervisor responded by directing a 

racial epithet at Sampson and calling him a “fool” before 

returning to the drive-through area. Sampson again began 

recording the incident. He asked Shift Supervisor, “Why are you 

calling me out a name like that? Why are you calling me out a 

name in front of these customers?” Shift Supervisor called him a 

fool again, and Sampson again asked why she was calling him 

names. Shift Supervisor then turned to him and said, “Don’t have 

my brother beat you up.” Sampson dismissed the comment and 

began to leave with Cousin. As they made their way to the exit, 
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the same large man from before, a friend of Shift Supervisor and 

the “brother” she had referred to (Friend), began exchanging 

words with Sampson. Friend told Sampson to get his “black ass 

out of [t]here,” to which Sampson responded “fuck you” as he

continued leaving the restaurant. Shift Supervisor then told 

Friend more than once to “take care of him.” Following Shift 

Supervisor’s request, Friend assaulted Sampson inside the 

restaurant and continued to beat him outside in the parking lot. 

Sampson called the police, who cited Friend for assault.

¶7 The day after the assault, Sampson called HBB’s district 

manager, informing him of the incident. The district manager 

conducted a brief investigation before terminating Shift 

Supervisor two days later.

¶8 At the time of both incidents, Shift Supervisor was the shift 

supervisor and neither the manager nor the assistant manager 

was present. In the HBB policy manual, the role of a shift 

supervisor is as follows:

The Shift Supervisor (SS) supports the Restaurant 

Manager in ensuring delivery on the Guest 

Experience through managing the daily operations 

of a shift in a single restaurant. The SS helps manage 

financial controls, operations, people development, 

customer service and compliance during shift for 

desired restaurant outcomes (i.e. increased sales, 

profitability and employee retention). Within the 

scope of the Shift Supervisor role, the SS has 

accountability for restaurant operations in the 

absence of the Assistant Manager and Restaurant 

Manager.

¶9 Prior to starting her employment, Shift Supervisorreceived 

training on HBB’s policies and signed an acknowledgment that 

she both understood and would abide by them. The policies 

included the following language:
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4.1.1 It is the Company’s policy to respect the rights 

of all individuals regardless of the individual’s race, 

color, sex, age, religion, national origin or disability. 

The Company expects its employees to respect the 

dignity and equality of all people. 

. . . .

4.2.1 . . . The Company is also committed to 

providing its guests with an enjoyable setting that is 

free from offensive, abusive or unwelcome conduct 

that might interfere with their dining experience. 

Accordingly, employees are prohibited from 

engaging in conduct which creates an intimidating, 

hostile or offensive environment, including . . . racial 

harassment[] or other types of harassment.

. . . .

4.2.3 Racial harassment involves the use of 

derogatory, unwelcome or offensive raciallyoriented jokes, comments or conduct . . . .

Following her promotion to shift supervisor, Shift Supervisor

signed an acknowledgment that she had participated in a training 

reviewing the policies.

¶10 In January 2021, Sampson filed this lawsuit, alleging 

that HBB was liable for Shift Supervisor’s behavior under 

the UCRA. See Utah Code §§ 13-7-1 to -4. Sampson also 

alleged that HBB was vicariously liable for Shift Supervisor’s 

behavior under the common law doctrine of respondeat superior.2

2. Sampson’s amended complaint also included claims against 

HBB for negligent employment and negligent infliction of 

emotional distress, which Sampson agreed should be dismissed

(continued...)
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HBB filed a motion for summary judgment, arguing that 

Sampson could prove neither that HBB discriminated against 

him nor that HBB was vicariously liable for Shift Supervisor’s 

acts. The district court granted HBB’s motion for summary 

judgment.

¶11 The court based its dismissal of Sampson’s claim of 

discrimination under the UCRA on a determination that there 

was no genuine issue of material fact that (1) HBB had nondiscrimination policies in place and did not tolerate the violation 

of those policies; (2) Shift Supervisor completed all required 

training and signed the acknowledgment that she understood and 

would abide by those policies; (3) Sampson pointed to no actual 

authority that HBB gave to Shift Supervisor to act in the manner 

that she did; and (4) there could be no implied authority where 

the alleged conduct was “explicitly prohibited.” Thus, the district 

court determined that common law principles applied to the 

UCRA and concluded that Sampson’s claim failed under general 

agency principles.

¶12 The court also dismissed Sampson’s claim that HBB was 

vicariously liable for Shift Supervisor’s actions as a matter of law 

because it determined that “no reasonable jury could conclude 

that [Shift Supervisor’s] authority to control the restaurant 

involved the authority to call a guest racially derogatory names 

and then have a third-party assault that guest.” The court 

concluded, “This conduct is clearly not of the general kind she 

was employed to perform and cannot be viewed as motivated at 

all to serve [HBB]’s interests.”

¶13 Sampson now appeals.

at the summary judgment hearing. Therefore, these claims are not 

a part of this appeal.
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ISSUES AND STANDARD OF REVIEW

¶14 Sampson argues that the district court erred in granting 

HBB’s summary judgment motion for two reasons. First, 

Sampson contends that the district court incorrectly interpreted 

the UCRA to apply common law agency principles in finding that 

Shift Supervisor had no implied authority to act as she did on 

behalf of HBB—and that if a common law principle is required by 

the UCRA, the appropriate doctrine is respondeat superior. 

Second, Sampson argues that the court erred in finding that HBB 

was not vicariously liable under the doctrine of respondeat 

superior as Shift Supervisor’s conduct was outside the scope of 

her employment. “We review the district court’s decision to grant 

or deny summary judgment for correctness, viewing the facts and 

all reasonable inferences drawn therefrom in the light most 

favorable to the nonmoving party.” Nelson v. Target Corp., 2014 UT 

App 205, ¶ 11, 334 P.3d 1010 (cleaned up).

ANALYSIS

I. Applying the UCRA

¶15 Section 13-7-3 of the UCRA states, 

All persons within the jurisdiction of this state are 

free and equal and are entitled to full and equal 

accommodations, advantages, facilities, privileges, 

goods and services in all business establishments 

and in all places of public accommodation, and by 

all enterprises regulated by the state of every kind 

whatsoever, without discrimination on the basis of 

race, color, sex, pregnancy, religion, ancestry or 

national origin. 

Utah Code § 13-7-3. The UCRA then creates the following public 

rights:
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Any business establishment or place of public 

accommodation or enterprise regulated by the state 

in which a violation of the rights provided in 

[s]ection 13-7-3 of this chapter occurs is a public 

nuisance. The operator of any such business 

establishment or place of public accommodation or 

enterprise regulated by the state is guilty of 

maintaining a public nuisance and may be enjoined 

as hereinafter provided.

Id. § 13-7-4. The UCRA also expressly provides for a private right 

of action:

Any person who is denied the rights provided for in 

[s]ection 13-7-3 shall have a civil action for damages 

and any other remedy available in law or equity 

against any person who denies him the rights 

provided for in [s]ection 13-7-3 or who aids, incites 

or conspires to bring about such denial.

Id. § 13-7-4(3). Finally, the UCRA defines a person as “an 

individual, partnership, association, organization, corporation, 

labor union, legal representative, trustee, trustee in bankruptcy, 

receiver, and other organized groups of persons.” Id. § 13-7-2.

¶16 In its grant of summary judgment for HBB, the district 

court determined that the private cause of action section, see id. 

§ 13-7-4(3), implicitly incorporates common law principles—

specifically general agency principles—in order for an individual, 

like Sampson, to be able to satisfy the elements of a cause of action 

against a covered business establishment. But the court concluded 

that the undisputed facts showed that Sampson could not meet 

the requirements of common law agency principles as a matter of 

law. While we agree that common law principles apply here, we

disagree with the district court on both the proper analysis to

reach that conclusion and which common law principles apply.
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And we hold that genuine issues of material fact should have 

precluded a grant of summary judgment. 

¶17 In considering whether common law principles apply in 

this statutory context, we first analyze whether common law 

principles are expressly incorporated. M.J. v. Wisan, 2016 UT 13, 

¶¶ 45–48, 371 P.3d 21. Next, we determine whether common law 

principles are statutorily preempted. Bishop v. GenTec Inc., 2002 

UT 36, ¶ 10, 48 P.3d 218. Finally, we review whether the 

application of common law principles is consistent with the 

statute at issue. Id.

¶18 We first address express incorporation. In M.J., our 

supreme court faced a similar question when determining 

whether, under the Utah Uniform Trust Code, a trust could be 

held vicariously liable for a trustee’s acts under the doctrine of 

respondeat superior. 2016 UT 13, ¶¶ 45–48. The statute provided 

that “a trust is liable for the trustee’s acts performed in the course

of administering the trust.” Id. ¶ 47 (cleaned up). Neither Utah 

statute nor caselaw defined this standard, and the court found 

caselaw from other jurisdictions too limited to be helpful. Id. Yet 

the court determined that the “terms of the statute, in context, 

[were] quite clear” because the phrase “[i]n the course of” referred 

to “the traditional formulation of the standard for vicarious 

liability under” respondeat superior. Id. ¶ 48. Accordingly, the 

court interpreted the statute as “incorporating the established” 

common law “standard of respondeat superior liability.” Id.

(cleaned up). Here, however, no similar language exists in the 

UCRA. And the parties do not point us to any other language 

from which we could conclude that common law principles were 

considered. Therefore, as far as we can determine, common law 

principles are not expressly incorporated into the UCRA.

¶19 Next, we consider whether common law principles are

statutorily preempted. In Bishop, our supreme court addressed 

“the interaction between [Utah’s Liability Reform Act] and the 
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common law doctrine of respondeat superior.” 2002 UT 36, ¶ 9. 

The court noted that Utah had adopted the common law so long 

as it did not conflict with the United States or Utah Constitutions, 

federal or Utah statutes, “or Utah public policy.” Id.; see also Utah 

Code § 68-3-1. Thus, our supreme court in Bishop had to determine 

whether the statute preempted the common law. 2002 UT 36, ¶ 9. 

The court’s analysis asked (1) whether the statutory language 

explicitly preempted the common law, which language “more 

often . . . does not appear, or does not directly answer the 

question,” and (2) whether the “statute’s structure and purpose, 

or nonspecific statutory language, nonetheless reveal[ed] a clear, 

but implicit, [preemptive] intent.” Id. (cleaned up). With no 

explicit preemptive language, the court nonetheless determined 

that the statute implicitly preempted the common law doctrine of 

respondeat superior. Id. ¶ 10. The court found implied legislative 

intent from the legislature’s objectives in enacting the statute and 

the fact that if respondeat superior applied, certain sections of the 

statute “would be without meaning or function.” Id. ¶ 11.

¶20 Here, the UCRA neither expressly nor implicitly preempts 

application of the common law. Indeed, the parties do not point 

to any language that can be construed as preempting the common 

law. Moreover, the parties do not identify any tension between 

any provisions of the UCRA and the common law. Accordingly, 

we conclude that the UCRA itself does not preempt the 

application of the common law. 

¶21 Finally, we consider whether the application of common 

law principles is otherwise consistent with the statute. Two points 

buttress a conclusion that common law principles are consistent 

with the UCRA. First, the language employed by the UCRA 

supports the conclusion that common law principles should 

apply. It is clear from the UCRA that a private right of action is to 

be available and that the UCRA as a whole, including the private 

right of action, is to be construed “liberally” in the interest of 

justice. See Utah Code §§ 13-7-1, -4(3). The UCRA provides that a 
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person may make a claim for discrimination against “any person

who denies him the rights provided for in [s]ection 13-7-3 or who 

aids, incites or conspires to bring about such denial.” Id. § 13-7-

4(3) (emphasis added). The UCRA includes a business entity, such 

as HBB, in its definition of “person.” Id. § 13-7-2(2). It is selfevident that while a business entity like HBB meets the statutory 

definition of person, a business entity can only act through others,

i.e., its employees. Thus, defining a business entity as a person 

subject to liability under the UCRA’s private right of action 

assumes a legal mechanism whereby an entity can be liable for its 

employee’s actions, which in turn implicates vicarious liability. 

Applying the doctrine of respondeat superior allows us to apply 

the UCRA to a business entity as it requires and enables us to 

carry out the legislative intent and purpose of the UCRA, which 

is “to assure all citizens full and equal availability of all goods, 

services and facilities offered by business establishments and 

places of public accommodation . . . without discrimination 

because of race.” Id. § 13-7-1.3

3. While the district court correctly determined that common law 

principles apply here, its application was incorrect. The court 

found that Sampson could not satisfy the elements of a 

discrimination claim under the UCRA because he “point[ed] to no 

actual authority [HBB] gave to [Shift Supervisor] to conduct 

herself in the manner alleged.” Actual authority is an agency 

doctrine that “relates to a principal’s manifestations to the agent.” 

Burdick v. Horner Townsend & Kent, Inc., 2015 UT 8, ¶ 21, 345 P.3d 

531. Actual authority can be either express or implied. Drew v. 

Pacific Life Ins. Co., 2021 UT 55, ¶ 54, 496 P.3d 201. “Express 

authority exists whenever the principal directly states that its 

agent has the authority to perform a particular act on the 

principal’s behalf. Implied authority includes acts which are 

incidental to, or are necessary, usual, and proper to accomplish or 

perform, the main authority expressly delegated to the agent.” Id.

(continued...)
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¶22 Second, applying common law principles, particularly the 

doctrine of respondeat superior, to the UCRA is consistent with 

federal cases that have applied respondeat superior to analogous 

federal public accommodation and civil rights statutes to hold 

private employers vicariously liable for the acts of their 

employees. See, e.g., General Bldg. Contractors Ass’n v. Pennsylvania, 

458 U.S. 375, 403–04 (1982) (O’Connor, J., concurring)

(emphasizing that “nothing in the Court’s opinion prevents the 

respondents from litigating the question of the employers’

liability under [42 U.S.C. § 1981] by attempting to prove the 

traditional elements of respondeat superior” because the Court

determined only that the petitioners could not be held vicariously 

liable due to a failure of the trial court to make findings that 

support the application of the doctrine (cleaned up)); Arguello v. 

Conoco, Inc., 207 F.3d 803, 810–12 (5th Cir. 2000) (discussing

general agency principles in the context of a section 1981 claim

and reversing summary judgment on scope of employment); 

Miller v. Bank of Am., 600 F.2d 211, 213 (9th Cir. 1979) (applying

respondeat superior to section 1981 and section 2000 claims); 

McKinnon v. YUM! Brands, Inc., No. 1:15-cv-00286, 2017 WL 

3659166, at *6–7 (D. Idaho Aug. 24, 2017) (applying respondeat 

superior to section 1981 and section 2000 claims).4

(cleaned up). Here, neither express nor implied authority exists as 

HBB had clear policies, which Shift Supervisor was trained on

multiple times, against discrimination and mistreatment of its 

customers. Therefore, we agree with Sampson that the correct 

doctrine to apply here is respondeat superior.

4. HBB concedes that federal “cases recognize vicarious liability 

under 42 U.S.C. § 1981.” However, HBB attempts to distinguish 

the cases by arguing that the decisions are based on the language 

of federal statutes, which “do not have any controlling authority 

over a claim under the [UCRA].” HBB is, of course, correct that 

(continued...)
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federal cases do not having binding authority in construing a 

Utah statute, but those authorities are still persuasive. When 

addressing an issue that has not yet been decided by our courts, 

looking at the decisions of other jurisdictions informs our 

analytical process. For example, the United States Supreme 

Court’s inclination to apply respondeat superior to public 

accommodation statutes is particularly informative and 

persuasive here. See General Bldg. Contractors Ass’n v. Pennsylvania, 

458 U.S. 375, 403–04 (1982) (O’Connor, J., concurring).

HBB further argues that it is significant that some federal 

courts do not recognize the application of respondeat superior

under 42 U.S.C. § 1983. See Monell v. Department of Social Services, 

436 U.S. 658, 691–92 (1978) (denying the application of respondeat 

superior to public employers under section 1983); Tsao v. Desert 

Palace, Inc., 698 F.3d 1128, 1139 (9th Cir. 2012) (applying the 

decision in Monell to private employers). But we conclude that this

actually supports our determination that respondeat superior is 

the appropriate doctrine to apply to the UCRA. Claims under 

section 1983 involve an entirely different analysis—such as the 

“under color of any law” analysis, Monell, 436 U.S. at 691–92

(cleaned up)—from public accommodation statutes like section

1981, with a cause of action reading similarly to the UCRA’s. The 

United States Supreme Court itself alludes to the significance of 

this difference by at least indicating that it will apply respondeat 

superior to section 1981 claims, which are more similar to the 

UCRA, and not section 1983 claims. See General Bldg. Contractors 

Ass’n, 458 U.S. at 403–04 (O’Connor, J., concurring) (indicating, at 

least in Justice O’Connor’s concurrence, that the Court would 

apply respondeat superior to section 1981 claims); cf. Monell, 436 

U.S. at 691 (“In particular, we conclude that a municipality cannot 

be held liable solely because it employs a tortfeasor—or, in other 

words, a municipality cannot be held liable under section 1983 on 

a respondeat superior theory.”).
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¶23 For all these reasons, we conclude that common law 

principles, and particularly the doctrine of respondeat superior, 

apply in the context of UCRA cases.

II. Applying Respondeat Superior

¶24 Under the common law agency doctrine of respondeat 

superior, “an employer can be held vicariously liable for the torts 

of her employees.” Burton v. Chen, 2023 UT 14, ¶ 15, 532 P.3d 1005. 

Employers are “liable for an employee’s actions that occur within 

the scope of employment when performing work assigned by the 

employer or engaging in a course of conduct subject to the 

employer’s control.” Id. (cleaned up). Employee’s acts are within 

the scope of employment if “(1) the employee’s conduct is of the 

general kind the employee is employed to perform and (2) the 

employee’s acts were motivated, at least in part, by the purpose 

of serving the employer’s interest.” Aguila v. Planned Parenthood of 

Utah, 2023 UT App 49, ¶ 21, 530 P.3d 959 (cleaned up). This 

determination is a question of fact that “must be submitted to a 

jury whenever reasonable minds may differ as to whether the 

employee was at a certain time involved wholly or partly in the 

performance of his employer’s business or within the scope of 

employment.” Clover v. Snowbird Ski Resort, 808 P.2d 1037, 1040 

(Utah 1991) (cleaned up). We conclude that, here, reasonable 

minds could differ as to whether Shift Supervisor was acting 

within the scope of her employment, so the issue is not 

appropriate for summary judgment. 

¶25 Regarding the first factor, the “scope of authority refers to 

those acts which are so closely connected with what the servant is 

employed to do, and so fairly and reasonably incidental to it, that 

they may be regarded as methods, even though quite improper 

ones, of carrying out the objectives of the employment.” Wardley 

Better Homes & Gardens v. Cannon, 2002 UT 99, ¶ 26, 61 P.3d 1009 

(cleaned up). Here, as shift supervisor, Shift Supervisor was in 

charge of “tak[ing] care of the customers and mak[ing] sure 
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everything [was] running smooth with the shifts throughout,” 

was given “control over the restaurant” in the absence of the 

assistant manager or store manager, and managed “the daily 

operations of a shift,” including “people development, customer 

service and compliance.” Additionally, on more than one 

occasion, the restaurant had “people who [came] in there acting 

crazy, especially [during] night shifts.” Therefore, given the 

frequency of dealing with difficult customers, and given that Shift 

Supervisor was charged with making sure the shifts ran smoothly, 

reasonable minds might differ as to whether Shift Supervisor’s 

conduct while handling a customer like Sampson, as improper as 

it might have been, was “of the general kind the employee is 

employed to perform.” See Drew v. Pacific Life Ins. Co., 2021 UT 55, 

¶ 56, 496 P.3d 201 (cleaned up).

¶26 Moreover, Shift Supervisor herself treated the February 

incident as one that was in the normal course of her employment. 

Once police arrived, she contacted her manager to let her know 

what had transpired, which was also what she did after the first 

incident with Sampson at the restaurant and was what she and all 

other shift supervisors did on a regular basis “if they need[ed]

something.”

¶27 With regard to whether an employee’s acts are at least in 

part motivated by serving the employer’s interests, “[t]he notion 

that an employee’s illegal conduct can never (i.e., as a matter of 

law) fall within the course and scope of employment is simply not

supported by our caselaw.” Aguila, 2023 UT App 49, ¶ 21. And 

“an employer is vicariously liable for an employee’s intentional 

tort if the employee’s purpose in performing the acts was either 

wholly or only in part to further the employer’s business, even if 

the employee was misguided in that respect.” Id. (cleaned up); see

id. ¶¶ 23–24 (finding reasonable minds can differ as to whether an 

employer was vicariously liable for an employee’s act of 

publicizing a patient’s private healthcare information); Clark v. 

Pangan, 2000 UT 37, ¶¶ 8, 19, 998 P.2d 268 (holding that “the 
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intentional tort of battery is not outside the scope of employment 

as a matter of law” and citing numerous cases to demonstrate that 

the court “has long recognized that an employer can be 

vicariously liable for the intentional tortious acts of employees 

under the theory of respondeat superior if those acts are 

conducted within the scope of employment”). 

¶28 As shift supervisor, Shift Supervisor was charged with 

managing the operation of the restaurant during the shift to 

achieve “desired restaurant outcomes (i.e. increased sales, 

profitability and employee retention).” Thus, reasonable minds 

also may differ as to whether her tortious actions, as misguided 

as they might have been, were at least motivated “in part” to 

benefit HBB. Certainly, maintaining a smoothly running shift 

without the disturbance of a problematic customer can yield 

“desired restaurant outcomes.” And whether HBB had antidiscrimination policies in place5 that were designed to preclude 

Shift Supervisor’s alleged discriminatory behavior is not, in and 

5. While the district court’s decision to grant summary judgment 

under both the UCRA and respondeat superior claims was greatly 

influenced by the fact that HBB had anti-discrimination policies 

in place, HBB itself did not rely on those policies in terminating 

Shift Supervisor’s employment. HBB terminated Shift Supervisor

due to her handling of the cheeseburger incident during 

Sampson’s first visit to the restaurant; indeed, HBB concluded 

Sampson should have received a hamburger cooked to his liking 

(i.e., having it his way). HBB did not reach a conclusion that Shift 

Supervisor’s behavior in conjunction with the assault on Sampson 

was “racially motivated,” and HBB did not conclude that Shift 

Supervisor violated company discrimination policies with regard 

to that incident. Thus, reasonable minds may differ as to how to 

weigh the fact that HBB’s anti-discrimination policies played no 

role in its decision to terminate Shift Supervisor, which in turn 

would affect the determination of whether Shift Supervisor was 

acting in the scope of her employment.
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of itself, determinative of whether Shift Supervisor was acting 

with a purpose of serving HBB’s interests. Phillips v. JCM Dev. 

Corp., 666 P.2d 876, 882 (Utah 1983) (holding that a broker could 

be subject to liability for a salesperson’s tortious acts despite being 

“in complete violation of [the broker’s] established policies and 

practices”).

¶29 Thus, applying the doctrine of respondeat superior to Utah 

Code section 13-7-4(3), we agree with Sampson that the existence 

of disputed material facts precludes summary judgment under 

the UCRA, and therefore the court’s grant of summary judgment 

under this common law cause of action was improper as well.

CONCLUSION

¶30 The doctrine of respondeat superior applies to the UCRA’s

private cause of action section. Applying respondeat superior to 

the facts of this case presents a dispute of material fact as to 

whether Shift Supervisor acted within the scope of her 

employment when interacting with Sampson. Therefore, we 

reverse the district court’s grant of summary judgment on 

Sampson’s claims.