2017 UT App 105

THE UTAH COURT OF APPEALS

CANDIDA S. BAHNMAIER,

Appellant,

v.

NORTHERN UTAH HEALTHCARE CORPORATION AND 

RENEL RYTTING,

Appellees.

Opinion

No. 20160102-CA

Filed June 29, 2017

Third District Court, West Jordan Department

The Honorable James D. Gardner

No. 140401429

April L. Hollingsworth, Attorney for Appellant

Michael Patrick O’Brien, Mark D. Tolman, and Paul 

R. Smith, Attorneys for Appellees

JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGES

MICHELE M. CHRISTIANSEN and KATE A. TOOMEY concurred.

ROTH, Judge:

¶1 Candida S. Bahnmaier appeals the district court’s grant of 

summary judgment in favor of Northern Utah Healthcare 

Corporation (dba St. Mark’s Hospital) and Renel Rytting. We 

affirm.
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BACKGROUND1

¶2 Bahnmaier was employed by St. Mark’s Hospital (the 

Hospital) as a surgical technician on the Hospital’s 

cardiovascular heart surgery team. The initial employment 

application Bahnmaier signed in 2005 included the following 

acknowledgment: “I UNDERSTAND AND AGREE THAT ANY 

EMPLOYEE HANDBOOK WHICH I MAY RECEIVE WILL 

NOT CONSTITUTE AN EMPLOYMENT CONTRACT, BUT 

WILL BE MERELY A GRATUITOUS STATEMENT OF

FACILITY POLICIES.” (Emphasis in original.) While Bahnmaier 

was working for the Hospital, the Hospital adopted a for-cause 

employment model, which permitted an employee to be 

terminated only for cause. Bahnmaier subsequently signed two 

separate employment agreements—a retention bonus agreement 

in 2007 and an employee agreement when she joined the 

Hospital’s heart surgery team in 2008—each of which provided, 

It is understood that all employment, including 

EMPLOYEE’S employment, with HOSPITAL is for 

an indefinite term and is terminable for cause. 

Cause is defined as a reason for disciplinary action 

that is not arbitrary, capricious, or illegal that is 

based on facts the Hospital reasonably believes to 

be true. Nothing in this Agreement will be 

construed to obligate HOSPITAL to employ 

EMPLOYEE for any particular time or under any 

particular terms or conditions of employment.

¶3 The Hospital has a Substance Use Policy, which prohibits 

employees from “[r]eporting to work, or being at work, while 

under the influence of or while impaired by alcohol.” The policy 

 

1. “Because this matter was decided on summary judgment, we 

recite the facts and inferences in the light most favorable to the 

nonmoving party.” Mountain West Surgical Center, LLC v. Hospital 

Corp. of Utah, 2007 UT 92, ¶ 2, 173 P.3d 1276.
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20160102-CA 3 2017 UT App 105

requires “leadership” to “conduct an investigation” “[u]pon 

notification that any person has a reasonable suspicion that an 

employee . . . is violating, or has violated” the Substance Use 

Policy and to “take whatever action necessary to protect patients 

and employees.” The Hospital’s Code of Conduct provides that 

“[r]eporting to work under the influence of . . . alcohol . . . may 

result in immediate termination” and that the Hospital “may use 

drug testing as a means of enforcing” the Substance Use Policy.

¶4 On May 12, 2011, Bahnmaier was issued a written 

warning for showing up to work under the influence of alcohol. 

The warning indicated that “[f]urther events will result in 

additional disciplinary action up to and including termination.” 

Bahnmaier signed the written warning and did not challenge it

or comment on its allegations at that time.

¶5 Less than a year later, on March 29, 2012, Bahnmaier 

covered an on-call shift for a co-worker. She was called in for an 

emergency open-heart surgery and reported for work at 

approximately 7:00 p.m. Suspecting that Bahnmaier was under 

the influence of alcohol, Bahnmaier’s supervisor, Rytting, sent 

her home and reported the incident to the Executive Director of 

Surgical Services, Corbie Petersen.

¶6 Rytting related the following information to Petersen: 

When Bahnmaier came in to work, her “eyes looked glazed and 

dilated and she had dark makeup smeared under her eyes,” 

“[h]er speech was slurred, her eyes darted and she was 

staggering.” This led Rytting to believe that Bahnmaier “was 

under the influence of some substance.” Soon after, another 

surgical technician approached Rytting and told her he also 

believed Bahnmaier was under the influence. Rytting called 

Bahnmaier into her office and confronted Bahnmaier with her 

suspicions. According to Rytting, Bahnmaier initially denied 

being under the influence and insisted that she was safe to work. 

However, when Rytting gave her the option of taking a drug test 

or going home, Bahnmaier told Rytting, “I won’t pass the test, I 

know I won’t” and went home.
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¶7 The next day, on March 30, while Bahnmaier was 

working a shift at Timpanogos Hospital—an affiliated hospital 

that sometimes traded nursing shifts with the Hospital—the 

Hospital’s human resources director contacted the human 

resources director at Timpanogos Hospital, Kelly Brimhall, and 

requested that he arrange a drug test for Bahnmaier. The drug 

test came back negative.

¶8 Brimhall, however, related to Petersen the following 

conversation he had with Bahnmaier while he waited with her 

for the drug screening company to arrive for the test:

[Bahnmaier] indicated that she was not originally 

on-call the previous night, Thursday, but a coworker called her and asked that she take his/her 

call for the evening. She agreed, but admitted that 

by then, she was drunk. During the same evening, 

she admitted to being called in for a case and 

showing up drunk to the case and having her 

supervisor realize that she was drunk and sent her 

home for the evening without allowing her [to] 

work.

Relying on the reports of Rytting and Brimhall, and “[i]n light of

the prior Written Warning [she] had given to [Bahnmaier],” 

Petersen “decided to terminate [Bahnmaier’s] employment with 

[the] Hospital . . . effective April 10, 2012.”

¶9 Bahnmaier filed suit against the Hospital and Rytting on 

February 6, 2014. The complaint asserted breach of contract and 

breach of the duty of good faith and fair dealing against the 

Hospital, defamation against Rytting, and negligence and 

interference with economic relations against both defendants.

¶10 In Bahnmaier’s deposition, she denied having been 

intoxicated and denied that she admitted to Rytting either that 

she was intoxicated or that she would fail a drug test. However, 

she also stated that she did not recall the details of her 
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20160102-CA 5 2017 UT App 105

conversation with Rytting and admitted that she may have made 

a “smart aleck” comment that could have given Rytting the 

impression that she did not believe she would pass a drug test.

¶11 The Hospital and Rytting filed a motion for summary 

judgment. The district court ruled that Bahnmaier’s negligence 

claim was “barred by the economic loss rule because she ha[d]

not alleged a duty independent of any alleged contractual 

obligation.” Alternatively, the court held that no trier of fact 

could “reasonably find that Defendants breached any possible 

duty to Bahnmaier that may have arisen from the Hospital’s 

Substance Use Policy and its ‘for cause’ employment termination 

policy.” The court further determined that “no trier of fact could 

reasonably conclude that Rytting knowingly or recklessly made 

a false statement about” Bahnmaier and ruled that Bahnmaier’s 

defamation claim was therefore untenable. Because Bahnmaier 

conceded that her interference with economic relations claim 

was based on the same facts as her defamation claim, the court 

also granted summary judgment on that claim. The court 

determined that Bahnmaier’s good faith and fair dealing claim 

was identical to her contract claim because she alleged only a 

breach of express and implied contract terms.2 The court ruled 

that Bahnmaier’s breach of contract claim failed because 

Bahnmaier had “not raised a genuine dispute of material fact 

about whether” Petersen had a reasonable belief that there was

good cause to terminate Bahnmaier. The court further 

 

2. Bahnmaier made no attempt to challenge the district court’s 

reasoning for rejecting her good faith and fair dealing claim in 

her opening brief, and so we do not address the court’s ruling in 

that regard. See Allen v. Friel, 2008 UT 56, ¶ 7, 194 P.3d 903 (“If an 

appellant fails to allege specific errors of the lower court, the 

appellate court will not seek out errors in the lower court’s 

decision.”); Eddy v. Albertson’s, Inc., 2001 UT 88, ¶ 21, 34 P.3d 781 

(“It is well established that we will not consider matters raised 

for the first time in the reply brief.” (citation and internal 

quotation marks omitted)).
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20160102-CA 6 2017 UT App 105

determined that Bahnmaier could not base a breach of contract 

claim on the Substance Use Policy because the Hospital had 

effectively disclaimed contractual liability for that policy and, 

alternatively, because the Hospital had not violated the policy. 

The district court therefore granted the defendants’ motion for 

summary judgment on all claims. Bahnmaier appeals.

ISSUE AND STANDARD OF REVIEW

¶12 Bahnmaier challenges the district court’s summary 

judgment ruling in favor of the Hospital and Rytting. “We 

review a district court’s decision to grant summary judgment for 

correctness, giving no deference to the district court. Our review 

is limited to determining whether the district court correctly 

applied the summary judgment standard in light of the 

undisputed material facts.” Raab v. Utah Ry. Co., 2009 UT 61, 

¶ 10, 221 P.3d 219.

ANALYSIS

I. Breach of Contract

¶13 Bahnmaier first asserts that the district court erred in 

determining as a matter of law that the Hospital did not violate 

either an implied contract based on its Substance Use Policy or

its express employment contract with Bahnmaier.

¶14 Bahnmaier argues that the Substance Use Policy 

constituted an implied contract and that the Hospital’s decision 

to terminate her employment without conducting a drug test 

violated that contract. Although employee manuals or 

statements of policy may be sufficient to create an implied 

contract, “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. “[A] clear and conspicuous disclaimer, as a matter 

of law, prevents employee manuals or other like material from 
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being considered as implied-in-fact contract terms.” Id. (citation 

and internal quotation marks omitted). We agree with the 

district court that the Hospital effectively disclaimed any 

contractual liability for its Substance Use Policy and that, even if 

it did not, the Hospital’s actions cannot be construed to have 

violated that policy.

¶15 Bahnmaier signed an employment application in 2005 

which contained an acknowledgment stating, “I UNDERSTAND 

AND AGREE THAT ANY EMPLOYEE HANDBOOK WHICH I 

MAY RECEIVE WILL NOT CONSTITUTE AN EMPLOYMENT 

CONTRACT, BUT WILL BE MERELY A GRATUITOUS 

STATEMENT OF FACILITY POLICIES.” (Emphasis in original.) 

This clear and conspicuous disclaimer, as a matter of law, 

precluded the Substance Use Policy from being construed as an 

implied contract. See id. Nothing in the subsequent employment 

contracts Bahnmaier signed abrogated this disclaimer. In fact, 

those agreements reaffirmed that the Hospital was not required 

to employ her “under any particular terms or conditions of 

employment.”

¶16 In any event, there was nothing in the plain language of 

the Substance Use Policy that mandated a drug test when an 

employee was suspected of a violation or that precluded 

termination in the absence of a drug test. See Peterson & Simpson 

v. IHC Health Services Inc., 2009 UT 54, ¶ 13, 217 P.3d 716 (“[W]e 

determine what the parties have agreed upon by looking first to 

the plain language within the four corners of the document.”). 

The policy provided that “[u]pon notification that any person 

has a reasonable suspicion that an employee . . . has violated[]

this policy, the leadership of the Facility shall conduct an 

investigation,” and the Code of Conduct stated that the Hospital 

“may use drug testing as a means of enforcing” the Substance 

Use Policy. (Emphasis added.) Although the Substance Use 

Policy required employees to submit to testing “upon reasonable 

suspicion,” there was nothing requiring the Hospital itself to 

conduct a test as part of an investigation. And the Code of 

Conduct’s use of the word “may” meant that “drug testing” was 
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20160102-CA 8 2017 UT App 105

at the employer’s option. Holmes Dev., LLC v. Cook, 2002 UT 38, 

¶ 25, 48 P.3d 895 (“The plain, ordinary, and accepted meaning of 

the word ‘may’ is ‘“permissive” or “discretionary,”’ generally 

indicating that an individual is either ‘permitted’ or ‘[h]as a 

possibility’ to do something.” (alteration in original) (quoting 

May, Black’s Law Dictionary 993 (7th ed. 1999))). Thus, even if 

the Substance Use Policy could be construed as an implied 

contract, it does not support Bahnmaier’s argument that the 

Hospital violated the policy when Rytting failed to have 

Bahnmaier submit to a drug test.

¶17 Bahnmaier next argues that her termination violated the 

“for cause” provisions of her employment contract. Bahnmaier’s 

employment agreement provided that she could be terminated 

only “for cause” and defined “cause” as “a reason for 

disciplinary action that is not arbitrary, capricious, or illegal that 

is based on facts the Hospital reasonably believes to be true.” 

Bahnmaier asserts that there is a dispute of fact regarding 

whether Petersen—the director who ultimately terminated 

Bahnmaier’s employment—reasonably believed that Bahnmaier 

had violated the Substance Use Policy, because no drug test was 

conducted on the night of the alleged violation and because 

Petersen’s investigation did not involve speaking to Bahnmaier 

or any co-workers who saw her that night. However, it is 

undisputed that Petersen received independent reports from 

Rytting and Brimhall indicating that Bahnmaier had admitted to 

them that she was intoxicated at the time of her shift. It is also 

undisputed that less than a year before this incident, Petersen 

had disciplined Bahnmaier regarding another violation of the 

Substance Use Policy. Further, as discussed above, the Hospital 

had no obligation to conduct a drug test as part of its 

investigation. While a positive drug test or additional 

investigation may have bolstered Petersen’s belief that 

Bahnmaier had violated the policy on the night in question, the

information Petersen received from two independent sources 

that Bahnmaier herself had admitted to being under the 

influence was sufficient on its own to support a reasonable belief

in that regard. Thus, we agree with the district court that “a trier 
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of fact could not reasonably conclude that Petersen did not 

reasonably believe that Bahnmaier had violated the Substance 

Use Policy.”

¶18 Further, we agree with the district court that “a trier of 

fact could not reasonably conclude that Petersen’s decision to 

terminate Bahnmaier’s employment for that reason was 

arbitrary.” The only evidence Bahnmaier presented to 

demonstrate the arbitrariness of her termination under these 

circumstances was personnel records that she claims indicate 

other similarly situated employees were treated more leniently.

3

But the records do not support Bahnmaier’s argument. 

¶19 In the first example case, the employee was suspended, 

not terminated, because her job performance had deteriorated. 

She was ordered to take a drug test, but the record does not 

indicate the results of that test. Moreover, the record does not 

show any evidence of substance abuse apart from her abrupt 

changes in behavior, which could have been caused by 

something other than drug use. Conversely, in Bahnmaier’s case, 

two separate individuals reported that Bahnmaier had admitted 

to being under the influence while at work. There is also nothing 

in the record to indicate that the employee had been disciplined 

previously, as Bahnmaier had. Thus, Bahnmaier’s situation was 

not comparable to that of the employee in the first example. In 

another example case, an employee, whose termination was 

based on improper handling of narcotics, had received a 

previous warning for failing to properly chart and dispose of 

medications. The Hospital handled that situation the same way 

it handled Bahnmaier’s—it gave the employee a warning for her 

first violation of the Substance Use Policy and terminated her 

when it received reports of a subsequent violation. 

 

3. The Hospital asserts that these records should be disregarded 

because they were unauthenticated. For purposes of our 

decision, we assume that the records were properly before the 

court.
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¶20 Thus, the records Bahnmaier relies on do not support her 

claim that the Hospital’s decision to terminate her was arbitrary.

Moreover, Bahnmaier worked on a heart surgery team, and a 

decision to terminate an employee for actions that could impair 

her skills and judgment under such circumstances, especially in 

light of the prior warning, was not arbitrary.

¶21 For these reasons, we conclude that the district court did 

not err by granting summary judgment in favor of the Hospital 

on Bahnmaier’s implied and express contract claims.

II. Negligence

¶22 Bahnmaier next challenges the district court’s ruling that 

her negligence claims against the Hospital and Rytting were 

barred by the economic loss rule. She argues both that the 

economic loss rule does not apply to employment cases and that 

her claim that she suffered emotional distress removes her case 

from the purview of that rule.

¶23 However, we do not need to address the district court’s 

analysis of the economic loss rule because we affirm on the 

court’s alternative ground for rejecting Bahnmaier’s negligence 

claims—that she has failed to demonstrate an issue of fact 

regarding whether either Rytting or the Hospital breached a 

duty to her. Bahnmaier has not alleged that the defendants

breached any duties to her independent of those raised in her 

breach of contract action. Bahnmaier asserted that the Hospital 

breached its duty by failing to adhere to its Substance Use Policy 

and by terminating her employment without cause and that 

Rytting’s breach also involved failure to adhere to the Substance 

Use Policy. As discussed in the previous section, the Substance 

Use Policy did not require drug testing to confirm an employee’s 

substance abuse, and Bahnmaier’s employment was terminated 

for cause based on Petersen’s reasonable belief that Bahnmaier 

had violated the Substance Use Policy. Thus, Bahnmaier cannot 

establish that either the Hospital or Rytting breached any duty to 

her. Accordingly, the district court did not err in granting 
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summary judgment in favor of the defendants on Bahnmaier’s 

negligence claims.

III. Defamation and Interference with Economic Relations

¶24 Bahnmaier challenges the district court’s ruling on her 

defamation and interference with economic relations claims. The 

parties agree that Rytting’s statements to Petersen were subject 

to a qualified privilege. See Brehany v. Nordstrom, Inc., 812 P.2d 

49, 58 (Utah 1991) (“[A] qualified privilege protects an 

employer’s communication to employees and to other interested 

parties concerning the reasons for an employee’s discharge.”). 

This qualified privilege effectively precludes Bahnmaier from 

recovering damages for defamatory statements unless she can 

show an abuse of the privilege by demonstrating that Rytting

“(1) made a defamatory statement knowing it to be false or 

(2) acted in reckless disregard as to its falsity.” See Ferguson v. 

Williams & Hunt, Inc., 2009 UT 49, ¶¶ 27–28, 221 P.3d 205.

¶25 Bahnmaier asserts that her deposition testimony that she 

did not tell Rytting she would not pass a drug test raises a 

question of fact as to whether Rytting either knew that her 

statement to Petersen was false or acted in reckless disregard of 

its falsity. However, Bahnmaier’s denial was fatally equivocal; 

she admitted that she did not actually recall the details of her 

conversation with Rytting and that she could have made a 

“smart aleck” comment that could have given Rytting the 

impression that she would not pass a drug test. We agree with 

the district court that no reasonable trier of fact could have 

concluded that Rytting knew her statement to Petersen was false 

or acted with reckless disregard as to its falsity when Bahnmaier 

herself admitted that she could have given Rytting the 

impression that she did not believe she would pass a drug test. 

Thus, the district court did not err in granting summary 

judgment on this claim.

¶26 Finally, because Bahnmaier concedes that the success of 

her interference with economic relations claim hinges on the 
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success of her defamation claim, we affirm the district court’s 

summary judgment ruling on the interference claim as well.

CONCLUSION

¶27 We conclude that the Hospital’s Substance Use Policy did 

not constitute an implied contract requiring the Hospital to 

conduct a drug test upon reasonable suspicion of an employee’s 

intoxication and that Bahnmaier failed to raise a genuine issue of 

fact as to whether the Hospital violated its “for cause” 

employment contract with Bahnmaier. Thus, the district court 

did not err in granting summary judgment in favor of the 

defendants on Bahnmaier’s contract and negligence claims. 

Further, because Bahnmaier failed to raise a genuine issue of fact 

as to whether Rytting’s statements to Petersen were knowingly 

false or made with reckless disregard as to their falsity, the 

district court did not err in granting summary judgment to the 

defendants on Bahnmaier’s defamation and interference with 

economic relations claims. Accordingly, we affirm the district 

court’s ruling.