[00:00:01] Speaker 04:
The last case that, well, we have two more cases.

[00:00:05] Speaker 04:
The case before us now will be 25-4059 Garvey versus Ogden Clinic Professional Corporation.

[00:00:14] Speaker 04:
Counsel for Appellant, if you'd make your appearance and proceed, please.

[00:00:20] Speaker 00:
Thank you, Your Honor.

[00:00:21] Speaker 00:
May it please the Court, Steven H. Bergman on behalf of the Appellant, Dr. Sheila Garvey.

[00:00:28] Speaker 00:
We come to this court on a ruling on summary judgment, and the issues in this case deal with the failure of the district court to adhere to the standards that this court has set when ruling on a summary judgment motion.

[00:00:41] Speaker 00:
Specifically, we have issues of improper factual findings by the district court along with resolving factual issues and not making all inferences in favor of the non-moving party, in this case, Dr. Garvey.

[00:00:57] Speaker 00:
The first and biggest flaw was with the district court's conclusion that defendant Ogden Clinic had a legitimate reason for terminating Dr. Garvey, and that being that she would be unable to meet the call requirements under her employment agreement because of the other defendant, Ogden Regional Medical Center, demanding that Dr. Garvey be removed from the trauma surgery rotation.

[00:01:25] Speaker 00:
The problem is, at the time of the termination, Dr. Garvey had never missed a single call.

[00:01:31] Speaker 00:
It was an expected breach that our clinic was relying upon, not an actual breach.

[00:01:38] Speaker 00:
And for an anticipatory breach, there has to be a manifestation of intent to breach by the party.

[00:01:44] Speaker 00:
In this case, there was not.

[00:01:45] Speaker 00:
Dr. Garvey did not manifest any intent to breach the contract.

[00:01:49] Speaker 00:
The only manifestation of intent had been by Ogden Regional Medical Center, which was not a party to the contract.

[00:01:57] Speaker 00:
At the time that Ogden Clinic terminated Dr. Garvey, it was certainly possible that she might not be able to meet the call rotation going forward, but that was not guaranteed.

[00:02:06] Speaker 00:
It was not certain.

[00:02:08] Speaker 04:
Why was it not certain?

[00:02:09] Speaker 04:
The hospital said that they wouldn't take her.

[00:02:11] Speaker 04:
And so why would it not be certain that she couldn't do it?

[00:02:13] Speaker 00:
because, well, for a number of reasons.

[00:02:15] Speaker 00:
First, less than a week after the hospital said, we don't want her on the call rotation, the hospital then concluded, informed Dr. Garvey she had successfully completed her performance improvement plan, allowing her to maintain her privileges at the hospital, and thus that raises the prospect that the hospital would change its mind and allow her to continue to be on the trauma surgery rotation.

[00:02:38] Speaker 00:
Additionally,

[00:02:40] Speaker 00:
In the past, when a surgeon had not been able to meet a call when it was that surgeon's turn, other surgeons had covered for that surgeon, including Dr. Garvey covering for several surgeons, younger male surgeons and a younger female surgeon who had been on military leave and or pregnancy leave.

[00:02:56] Speaker 04:
Well, those are acts of grace.

[00:02:57] Speaker 04:
I mean, that doesn't mean anybody had to do that.

[00:03:00] Speaker 04:
And in fact, they indicated they wouldn't do it, right?

[00:03:03] Speaker 00:
That was a disputed fact.

[00:03:04] Speaker 00:
That was not a fact in the record that the other surgeons were unwilling to do that in the interim.

[00:03:10] Speaker 04:
As I said, that's not... I didn't see anything regarding that.

[00:03:14] Speaker 04:
You can point me to it if I'm wrong in the employment agreement about people

[00:03:18] Speaker 04:
having to fill in for somebody.

[00:03:19] Speaker 00:
No, they do not.

[00:03:20] Speaker 00:
But that had in fact been the practice for more than 20 years when Dr. Garth overheard employment with the clinic.

[00:03:27] Speaker 00:
That had been the practice of the trauma surgeons.

[00:03:29] Speaker 04:
And you pointed out what happened a week after.

[00:03:31] Speaker 04:
Why isn't the issue, for purposes of a breach of contract, that moment in time when the Ogden Clinic acted?

[00:03:42] Speaker 04:
And by that, I mean when the hospital told them they would not continue on with their agreement with Ogden Clinic if they had Dr. Garvey there, it seems, why isn't that pretty crystal clear that Ogden Clinic needed to do something?

[00:04:00] Speaker 00:
Well, Ogden Clinic may have needed to act, but terminating Dr. Garvey on the grounds of an alleged breach that had not happened yet is not the basis they could have done it on.

[00:04:09] Speaker 00:
They could have taken a number of other steps.

[00:04:11] Speaker 00:
They did not.

[00:04:12] Speaker 00:
They couldn't.

[00:04:13] Speaker 04:
They didn't, but did they have to, is the point, right, under the contract?

[00:04:17] Speaker 00:
Well, actually, they did.

[00:04:18] Speaker 00:
They couldn't terminate her for a breach that had not occurred yet.

[00:04:22] Speaker 00:
As of the date of termination, she had not breached.

[00:04:25] Speaker 00:
In fact, she was still taking trauma surgeries at the hospital and was going to continue doing so through the end of February.

[00:04:33] Speaker 00:
And as I said, there was a possibility of the hospital changing its mind.

[00:04:38] Speaker 00:
There was also the issue of,

[00:04:40] Speaker 00:
Ogden Clinic could have assigned her to a different hospital and switched another surgeon to cover the clinic at Ogden Regional Medical Center.

[00:04:47] Speaker 00:
That's something they explored.

[00:04:50] Speaker 00:
Dr. Garvey also had a private surgery practice which she had been pursuing as well that could have continued to allow her to practice that.

[00:04:59] Speaker 00:
And so the notion that there was a breach at the time of termination is simply wrong.

[00:05:04] Speaker 04:
Weren't there a number of reasons that the hospital listed, I'm sorry, Ogden Clinic listed in their termination letter in addition to breach of a material term?

[00:05:14] Speaker 00:
I believe breach of material term is the only issue that they're relying upon.

[00:05:17] Speaker 00:
There were no other grounds.

[00:05:21] Speaker 00:
And, you know, if the clinic wanted to, they could have simply said, you know, we're exercising our right to terminate the contract on 90 days notice.

[00:05:28] Speaker 00:
They didn't.

[00:05:30] Speaker 00:
I know that's an argument the clinic has made.

[00:05:32] Speaker 00:
The district court noted that as well.

[00:05:34] Speaker 00:
The only grounds they gave was her failure to meet the trauma surgery call.

[00:05:39] Speaker 00:
As I said, as of February 18th, she had not breached that provision.

[00:05:43] Speaker 00:
While it was certainly possible and maybe even likely it could be breached in the future, it had not been at that time.

[00:05:50] Speaker 00:
As I said, for an anticipatory breach, there has to be a manifestation of intent by the other party to the contract.

[00:05:56] Speaker 00:
Dr. Garby had not done that.

[00:05:58] Speaker 00:
The grounds for finding a breach simply aren't there.

[00:06:02] Speaker 04:
Manifestation of intent in the sense that I don't want to honor my call obligations?

[00:06:09] Speaker 00:
Or, you know, it would be, for example, in this instance, if Dr. Herbst said, I'm not going to work at Ogden Regional Medical Center anymore.

[00:06:16] Speaker 00:
that would be a manifestation of intent.

[00:06:18] Speaker 00:
She did not say that.

[00:06:19] Speaker 04:
Well, it wasn't up to her.

[00:06:21] Speaker 04:
The intent that was manifested was the intent of the hospital.

[00:06:24] Speaker 00:
But the hospital was not a party to the contract, and therefore could not manifest intent on behalf of Dr. Garvey.

[00:06:30] Speaker 00:
Only Dr. Garvey could manifest intent on behalf of herself.

[00:06:34] Speaker 00:
And so because of that, it was inappropriate for the clinic to terminate her on that basis.

[00:06:42] Speaker 00:
Additionally, that failure, because there was not a valid basis to terminate her,

[00:06:47] Speaker 00:
That also goes to the age and gender discrimination claims, because the sole supposedly non-discriminatory basis that the clinic terminated Dr. Garvey was this alleged failure to meet the call rotation, which at that time had not happened.

[00:07:06] Speaker 04:
Well, let's assume for the moment that they were wrong on that.

[00:07:09] Speaker 04:
In other words, they, consistent with your point, that that was a breach.

[00:07:14] Speaker 04:
Why does that go towards the discrimination claims?

[00:07:17] Speaker 04:
Because the discrimination law, as I understand it, doesn't turn on whether the employer was right or wrong.

[00:07:24] Speaker 04:
It turns on whether the employer actually discriminated against the individual, right?

[00:07:29] Speaker 00:
Correct.

[00:07:29] Speaker 00:
And even the district court noted that Dr. Garvey had made a prima facie case of discrimination based on both her age and her gender, and that the reason that she found in favor of Ogden Clinic was because they had demonstrated a non-discriminatory reason for her termination, i.e.

[00:07:49] Speaker 00:
this alleged failure to meet the call schedule that had not yet occurred.

[00:07:53] Speaker 04:
Well, even if that failure to meet the call schedule was misguided, the question is whether it's a facially legitimate reason to terminate somebody.

[00:08:03] Speaker 04:
And in the contract, that's what it says, right?

[00:08:07] Speaker 00:
It does say in the contract, but because they were exercising the contract inappropriately, that cannot be their nondiscriminatory reason for terminating.

[00:08:15] Speaker 02:
What other evidence of pretext is there, then?

[00:08:17] Speaker 00:
Well, as the record would demonstrate, there had been a change in the management at both Ogden Clinic and the hospital.

[00:08:27] Speaker 00:
And the new managers of both facilities did not like Dr. Garvey.

[00:08:32] Speaker 00:
And so the fact is, she was a woman over the age of 50 at the time of her termination.

[00:08:39] Speaker 00:
She was, obviously, I keep saying she was female.

[00:08:42] Speaker 00:
So that's another grounds for

[00:08:44] Speaker 00:
gender discrimination.

[00:08:46] Speaker 01:
Not liking her is not...

[00:08:49] Speaker 01:
discrimination.

[00:08:50] Speaker 01:
So what is the evidence of actual pretext that the reason was because of her age or her sex?

[00:09:01] Speaker 00:
Well, because the only reason they gave was her alleged inability to meet calls, which in the past when younger male or younger female surgeons couldn't meet their calls, they allowed other surgeons to cover for them.

[00:09:14] Speaker 01:
Sure, but those were both the two examples that at least were given were both

[00:09:19] Speaker 01:
Temporary.

[00:09:20] Speaker 01:
This was a permanent situation.

[00:09:21] Speaker 01:
The hospital wasn't taking her back.

[00:09:24] Speaker 01:
This was a permanent decision by the hospital.

[00:09:26] Speaker 01:
She will not be part of our call rotation.

[00:09:30] Speaker 01:
And that's not a comparator, as the district court said, in terms of discrimination.

[00:09:34] Speaker 00:
Except that, as we pointed out in our papers,

[00:09:37] Speaker 00:
She could have been transferred to a different hospital for the trauma surgery and had another surgeon take over the calls at Ogden Regional Medical Center.

[00:09:43] Speaker 01:
That doesn't make it, again, that's not evidence of pretext.

[00:09:46] Speaker 01:
Speculating about what could have happened with her doesn't make it pretextual.

[00:09:51] Speaker 00:
Right, but because the only reason they gave was invalid, that is at least evidence that it's a pretextual reason.

[00:09:59] Speaker 01:
Why was it invalid?

[00:10:00] Speaker 00:
because she had not yet, in fact, breached her employment agreement.

[00:10:05] Speaker 00:
And that was the only reason that Ogden Clinic gave for that.

[00:10:08] Speaker 00:
And so that does support grounds that it was a pretextual reason.

[00:10:13] Speaker 04:
And what's your best case for that?

[00:10:15] Speaker 04:
That's not my understanding of the law.

[00:10:17] Speaker 04:
I mean, the fact that somebody gives a reason that is invalid, in other words, it turns out not to be correct.

[00:10:25] Speaker 04:
The law is that an employer can be right or wrong or otherwise, but the point is, did they discriminate?

[00:10:31] Speaker 04:
And so the fact that an employer thinks you're a bad employee, for example, this employee is not up to snuff.

[00:10:39] Speaker 04:
Well, if the objective factors indicate that you had a plausible argument, you are up to snuff, that doesn't mean that they discriminated against you.

[00:10:48] Speaker 04:
And that's not evidence of pretext standing alone, is it?

[00:10:51] Speaker 04:
And if you think that is, please give me your best case to tell me it is.

[00:10:55] Speaker 00:
So the fact that they terminated her is not obviously evidence or pretext, but the fact that she, as the district court noted, she was over 50, she's female, and that was... So every employee who's over 50 and female who gets fired can claim that they've been discriminated against?

[00:11:15] Speaker 00:
They have at least a, they've at least met the thresholds for making that argument.

[00:11:21] Speaker 00:
There has to be other reasons.

[00:11:22] Speaker 00:
And here it was that when other surgeons were, you know, comparable situations where they could not meet a call that were younger or male, they were afforded opportunities to have people cover for them.

[00:11:33] Speaker 00:
She was not afforded that opportunity.

[00:11:35] Speaker 00:
So it's the inconsistent application of their policies that is grounds for the discrimination.

[00:11:41] Speaker 01:
I would like to turn quickly to... Going back to your issue, you said that this would essentially have been an anticipatory breach, but as I recall, the district court specifically found that within the contract's requirement,

[00:11:57] Speaker 01:
that she meet the call requirements or the call performance standards, I'm sorry, meet the performance standards and the call schedule requirements, that that implied or inferred the ability to meet those requirements.

[00:12:12] Speaker 01:
And when the hospital terminated her, she no longer had the ability to perform under the contract.

[00:12:19] Speaker 01:
So that's not an anticipatory breach if the contract

[00:12:24] Speaker 01:
Requires that she had the ability to meet the requirements which she no longer had right.

[00:12:29] Speaker 01:
I believe that the problem the breach has occurred Well, I think that the proper interpretation the contract is that as her turns on the rotation come up She meets them and she had done that every single time so you have to address the district court's conclusion Which is that requires her to have the ability to move as well and to not have the ability is a breach of contract

[00:12:49] Speaker 00:
Well, except that as of the date of termination, she still did have the ability to meet her calls.

[00:12:57] Speaker 01:
No, she didn't, because the hospital had said, no, you're not going to be here anymore.

[00:13:03] Speaker 01:
Whether she wants to be or not, the hospital has said, you can't be here, which they can do.

[00:13:09] Speaker 01:
And she said, I mean, what she wants is not really relevant at that point.

[00:13:13] Speaker 00:
To that point, Your Honor,

[00:13:15] Speaker 00:
As of the date of termination, she actually still had the ability to meet the calls through the end of February, number one.

[00:13:21] Speaker 00:
Number two, the hospital actually didn't have the right to demand she be removed from the rotation.

[00:13:25] Speaker 00:
That was the province of the clinic itself.

[00:13:29] Speaker 00:
The hospital did not have any rights under the contract with the clinic to do that.

[00:13:34] Speaker 00:
I did want to reserve one minute, so I'm going to stop right here.

[00:13:39] Speaker 00:
Unless there's any other questions.

[00:13:41] Speaker 00:
Thank you.

[00:13:42] Speaker 03:
May it please the court, Scott Hagan representing Ogden Clinic.

[00:13:46] Speaker 03:
Council and I have agreed that we'll split the time evenly.

[00:13:49] Speaker 03:
So I'll step down after about seven minutes.

[00:13:52] Speaker 03:
I want to first address the point that Your Honor raised about the language of the contract and the district court's decision.

[00:14:01] Speaker 03:
The problem here, the fundamental problem at the beginning of this breach of contract claim is the assumption that the contract

[00:14:12] Speaker 03:
required her just to show up, just to be available for call.

[00:14:18] Speaker 03:
And it didn't have anything to do with the actual scheduling of her for call.

[00:14:23] Speaker 03:
And Your Honor is exactly right.

[00:14:24] Speaker 03:
The contract language that the district court relied on just contradicts that interpretation of the contract.

[00:14:31] Speaker 03:
The contract language says employee shall meet the performance standards and clinic and call schedule requirements of his or her specialties as set forth.

[00:14:42] Speaker 03:
by employer.

[00:14:43] Speaker 03:
So her duty was to be able to be scheduled.

[00:14:47] Speaker 03:
And she didn't do that.

[00:14:48] Speaker 03:
She couldn't do that.

[00:14:49] Speaker 03:
And as was discussed earlier, the hospital made its wishes very clear.

[00:14:59] Speaker 03:
Ogden Clinic was simply responding to that.

[00:15:02] Speaker 03:
Dr. Garvey was in breach of contract because she could not fulfill the call scheduling requirements

[00:15:10] Speaker 03:
of the contract.

[00:15:11] Speaker 03:
And there's never been any attempt by Dr. Garvey to explain how her interpretation of the contract is the correct one.

[00:15:21] Speaker 03:
Now turning to breach of the implied covenant of good faith and fair dealing, my understanding of plaintiff's claim on that is that she is claiming that Ogden Clinic had a duty to sort of advocate for her, to take her side in this issue with Ogden

[00:15:40] Speaker 03:
regional medical center, and also to consider other alternatives before terminating her employment.

[00:15:47] Speaker 03:
The problem is that flies in the face of Utah law and the language of the contract again.

[00:15:53] Speaker 03:
Utah law says that in terms of what's specifically required by a party through the covenant of good faith and fair deal, you start with the language of the contract and then look at the course of dealing between the parties.

[00:16:08] Speaker 03:
In this case, there was no evidence or argument presented to the district court explaining how a course of dealing affected that analysis and implied a duty in Ogden Clinic to advocate on Dr. Garvey's behalf.

[00:16:25] Speaker 03:
And if you look at the language of the contract, the contract basically, it's an employment contract.

[00:16:30] Speaker 03:
Ogden Clinic's duty is to pay Dr. Garvey.

[00:16:33] Speaker 03:
Dr. Garvey's duty is to provide medical care and also importantly,

[00:16:38] Speaker 03:
If you look at section 3.2 of the contract, that's page 54 of the record.

[00:16:46] Speaker 03:
It's headed employee qualifications.

[00:16:49] Speaker 03:
It says, as a material condition precedent to employees employment by employer, employee represents and warrants that he is or will be prior to the effective date of this agreement licensed to practice medicine within the state of Utah, has or will obtain prior to commencement of the employment

[00:17:05] Speaker 03:
contemplated here in staff membership and the privileges necessary to practice medicine at the facilities.

[00:17:11] Speaker 03:
The point is, Your Honor, is that the contract allocates the responsibility for maintaining privileges.

[00:17:18] Speaker 03:
Well, she didn't lose her privileges.

[00:17:19] Speaker 03:
She didn't lose her privileges.

[00:17:21] Speaker 03:
But the language of the contract, Your Honor, the structure of the contract, places all the responsibility for eligibility type issues on Dr. Garvey.

[00:17:31] Speaker 03:
It's her job.

[00:17:32] Speaker 03:
It certainly doesn't imply a duty on Ogden Clinic to advocate on her behalf either for licensure or credentialing or participation with insurance panels.

[00:17:44] Speaker 03:
That was her job.

[00:17:45] Speaker 03:
This is similar to that.

[00:17:47] Speaker 03:
It's a similar kind of situation where she was no longer eligible to take call at the hospital, and therefore it was her job, not Ogden Clinic's, under the contract to take care of that problem.

[00:18:01] Speaker 03:
She did not do so.

[00:18:02] Speaker 03:
Again, she was in breach of contract.

[00:18:05] Speaker 03:
And the covenant of good faith and fair dealing did not require Ogden Clinic to do anything about that.

[00:18:11] Speaker 03:
Finally, under Utah law, in the case of backbone worldwide versus life advantage, and that's a case that's cited on page 20 of our brief, the Utah Court of Appeals says, as long as the party has an express and objectively determined right to terminate,

[00:18:30] Speaker 03:
That party may exercise that right and its motives for doing so are irrelevant despite the existence of the implied covenant.

[00:18:37] Speaker 03:
In other words, it had the contractual right to terminate her employment.

[00:18:41] Speaker 03:
It did not have to consider other alternatives, as she argues, particularly in the light of an absence of contractual provisions that would imply that kind of right and the absence of a course of dealing.

[00:18:54] Speaker 03:
There's no evidence of a course of dealing that would suggest the clinic had that obligation.

[00:19:01] Speaker 01:
Could I ask you to turn to the discrimination claims?

[00:19:04] Speaker 03:
Yes.

[00:19:06] Speaker 01:
I don't believe this is raised, but I'm wondering about the facts that are in the record that would indicate that one of the reasons that she was terminated

[00:19:21] Speaker 01:
by the clinic is that part of her was, of course, the lost call.

[00:19:26] Speaker 01:
But there's also evidence in the record that part of the decision-making process was she's not an easy physician to get along with.

[00:19:32] Speaker 01:
She's frustrating.

[00:19:34] Speaker 01:
She frustrates.

[00:19:35] Speaker 01:
She's blunt.

[00:19:36] Speaker 01:
She's not tactful in any way.

[00:19:38] Speaker 01:
Circumstance.

[00:19:39] Speaker 01:
And then there was, I'm not sure who's testifying here, but do we do something different here?

[00:19:43] Speaker 01:
And the answer was no.

[00:19:46] Speaker 01:
So wasn't performance and her subjective aspects of her performance also an issue with respect to her termination?

[00:19:57] Speaker 03:
The termination letter included reference to those issues that you just mentioned.

[00:20:04] Speaker 03:
Mr. Porter, Kevin Porter, the CEO who made the decision when he was deposed, he said the determining basis was the loss of the ability to take call.

[00:20:14] Speaker 01:
But part of the decision-making process, which they apparently told her about in the letter, was you've got some issues performance-wise.

[00:20:22] Speaker 03:
Yes.

[00:20:23] Speaker 01:
So that, I mean, why isn't that, and again, I don't believe this was argued, but why isn't that relevant, first of all, to whether they were obligated to investigate under the contract?

[00:20:35] Speaker 01:
And secondly, why isn't, you know, not listing all of the reasons, essentially, or not identifying all of the reasons,

[00:20:44] Speaker 01:
and especially not identifying a subjective reason versus an objective one, why isn't that evidence of pretext?

[00:20:49] Speaker 03:
Well, first of all, those reasons were specifically stated.

[00:20:54] Speaker 03:
So they were not hidden at the time of termination.

[00:20:57] Speaker 01:
They're just being ignored now when you talk about what the reason for her termination was.

[00:21:02] Speaker 01:
And I don't see how you can ignore those.

[00:21:05] Speaker 03:
Well, Mr. Porter testified in his deposition that the but for a reason, she would not have been terminated.

[00:21:11] Speaker 03:
Despite those other issues, she would not have been terminated but for the loss of the ability to participate in call.

[00:21:18] Speaker 03:
And I'll just say that Ogden Clinic didn't go down that road.

[00:21:23] Speaker 03:
And it simply had this issue where she was no longer eligible to take call.

[00:21:29] Speaker 03:
And so they terminated her for that principal reason.

[00:21:32] Speaker 03:
And if you look at page 32 of Dr. Garvey's principal brief, she essentially takes the litigation position that it was the loss of the ability to take call that was the but for cause of this termination.

[00:21:46] Speaker 03:
Obviously, that's not discrimination.

[00:21:49] Speaker 03:
Thank you, Your Honor.

[00:21:53] Speaker 02:
Good morning, Your Honors.

[00:21:54] Speaker 02:
Cory Talbot on behalf of Columbia Ogden Regional Medical Center.

[00:21:59] Speaker 02:
The hospital removed Dr. Garvey from its trauma surgery call rotation because her conduct was impacting patient care and because staff commented that her conduct was abrasive, rude, that they were terrified and felt like they were walking on eggshells around her.

[00:22:18] Speaker 02:
In response to that, Dr. Garvey has filed suit against the hospital.

[00:22:24] Speaker 02:
And her claims all arise out of some sort of a contractual relationship with the hospital.

[00:22:30] Speaker 02:
And the problem she has is there is no contractual relationship.

[00:22:33] Speaker 02:
She first relies on the professional services agreement between the hospital and Ogden Clinic.

[00:22:39] Speaker 02:
And her problem is it's just that.

[00:22:41] Speaker 02:
It's an agreement between those two companies.

[00:22:44] Speaker 02:
She's not a party to it.

[00:22:45] Speaker 02:
While she says the agreement is poorly drafted, even if that's the case, it's clear and it's unambiguous who the parties are to that agreement.

[00:22:54] Speaker 02:
It's the clinic and it's the hospital.

[00:22:56] Speaker 02:
They're identified at the outset of the agreement.

[00:22:59] Speaker 02:
They sign the agreement.

[00:23:00] Speaker 02:
There's no indication that anybody else is a party to it.

[00:23:03] Speaker 02:
And by its terms, it's integrated and contains the entire agreement of the party.

[00:23:08] Speaker 02:
There's no evidence that either party to the agreement intended for

[00:23:13] Speaker 02:
Dr. Garvey to be a party to the agreement, and there's no evidence either that Dr. Garvey intended or assented to be a party to that agreement.

[00:23:23] Speaker 02:
Dr. Garvey next argues that there's an implied in fact contract with her and the hospital.

[00:23:34] Speaker 02:
Her argument on this point is below what she said is that it's the relationship

[00:23:43] Speaker 02:
If the relationship and conduct between the hospital, Ogden Clinic, and Dr. Garvey do not create an actual contract, it should be deemed to create a contract implied in fact.

[00:23:52] Speaker 02:
And the district court rejected that.

[00:23:54] Speaker 02:
It went through the elements of an implied in fact contract under Utah law and found that they were not met in this case.

[00:24:00] Speaker 02:
And Dr. Garvey does not address those findings on this appeal.

[00:24:04] Speaker 02:
Instead, what she says on appeal is that it seems like the district court assumed that there was an implied in fact contract.

[00:24:12] Speaker 02:
based on the hospital's policies and then found that there hadn't been a breach.

[00:24:16] Speaker 02:
As I said, the hospital did address the implied-in-fact contract argument and rejected it.

[00:24:21] Speaker 02:
But setting that aside, on appeal, she says that the Zassambo case has already found that the hospital's policies created an implied-in-fact contract.

[00:24:35] Speaker 02:
And that's another case involving Ogden Regional Medical Center years ago

[00:24:40] Speaker 02:
prior to these current policies even being in effect.

[00:24:43] Speaker 02:
That's not what the Zasumbo case found.

[00:24:45] Speaker 02:
In that case, what had happened is the plaintiff had alleged that the hospital's code of conduct created an implied, in fact, contract.

[00:24:54] Speaker 02:
Then the plaintiff went on to allege that the hospital had breached not the code itself, but the implied covenant of good faith and fair dealing that arose from those policies.

[00:25:04] Speaker 02:
At summary judgment, though, the court said,

[00:25:05] Speaker 02:
Hold on, you're not arguing good faith and fair dealing.

[00:25:08] Speaker 02:
What you're actually saying is they breached the actual policies themselves.

[00:25:12] Speaker 02:
That's a breach of contract claim.

[00:25:14] Speaker 02:
You have an alleged breach of contract, so your case is out.

[00:25:17] Speaker 02:
Zesumbo never found that the code of conduct created an implied, in fact, contract.

[00:25:25] Speaker 02:
It simply noted that that's what plaintiff had alleged and ultimately ruled in favor of the hospital, finding that there was no breach of the implied covenant that would have arisen.

[00:25:35] Speaker 02:
out of such a contract.

[00:25:37] Speaker 02:
And so Zasembo doesn't get the plaintiff where she needs to go.

[00:25:42] Speaker 02:
I do just really quickly want to talk about a couple matters of timing.

[00:25:49] Speaker 02:
Dr. Garvey, in a couple places, points to what she calls the forever letter and says, look, the hospital asked me to complete this performance improvement plan.

[00:26:03] Speaker 02:
medical staff actually did.

[00:26:05] Speaker 02:
They asked her to fulfill that plan.

[00:26:08] Speaker 02:
She did.

[00:26:09] Speaker 02:
And she says that as a result of that, there was an implied contract that she would retain privileges at the hospital, which she retained.

[00:26:18] Speaker 02:
And she says also that the forever letter created a material issue of fact, because in that letter, the hospital said that there were no additional issues regarding her behavior.

[00:26:33] Speaker 02:
And there's a timing problem with that, and that is the forever letter was written by the hospital in October of 2020.

[00:26:39] Speaker 02:
Dr. Garvey completed the performance improvement plan over a month later in November.

[00:26:47] Speaker 02:
And the conduct that the hospital was concerned about and ultimately led the hospital to ask her to be removed from the call rotation occurred in December 2020.

[00:26:59] Speaker 02:
So that's two months after this forever letter was written.

[00:27:03] Speaker 02:
The council also mentioned the letter from the medical staff regarding... Let me make sure I understood the timing on that.

[00:27:09] Speaker 04:
You said that, okay, the conduct occurred two months after the forever letter, but at what point did they determine that they were going to... Well, when was the completion of the PIP?

[00:27:24] Speaker 02:
The PIP was completed November 30, 2020, about a month after the forever letter was written.

[00:27:30] Speaker 04:
Okay, and so it was completed also prior to their determination that the conduct was continuing on?

[00:27:37] Speaker 02:
Correct, yes.

[00:27:38] Speaker 04:
Let me just ask you, is it your understanding that they are appealing the discrimination claims against you too?

[00:27:46] Speaker 04:
The hospital?

[00:27:47] Speaker 04:
I mean, I had some ambiguity about that when I looked at the brief.

[00:27:51] Speaker 04:
And the brief, at least at the beginning in the table of contents, says that it's appealing against Ogden Hospital.

[00:27:57] Speaker 02:
Yeah, I thought that was the case.

[00:27:58] Speaker 02:
But I didn't see that in the actual substance of the brief either, Your Honor.

[00:28:01] Speaker 02:
Well, you didn't see what?

[00:28:03] Speaker 02:
That they were pursuing the discrimination claim against the hospital on appeal.

[00:28:06] Speaker 04:
OK.

[00:28:08] Speaker 02:
With that, thank you, Your Honor.

[00:28:09] Speaker 02:
We ask that you affirm the district court's summary judgment decision.

[00:28:19] Speaker 00:
I will try to be quick here, Your Honor.

[00:28:21] Speaker 04:
And if you'll start with that question, based upon looking at the table of contents in the brief, and I think the argument was in the substance of your discrimination claim, it does not appear to be directed at the hospital, but rather at Ogden Clinic.

[00:28:35] Speaker 00:
That was unfortunately a typo in the table of contents in the heading.

[00:28:39] Speaker 00:
If you look in the text of the brief itself, we do actually raise issues against Ogden Regional Medical Center as well as Ogden Clinic with respect to the discrimination claims.

[00:28:49] Speaker 00:
In your opening brief?

[00:28:50] Speaker 00:
In the opening brief.

[00:28:51] Speaker 00:
On page, I think, 15 or 16 of the opening brief and again in the 30 or 31 towards the end of the brief, we do actually specifically address Ogden Regional Medical Center on the discrimination claims as well as Ogden Clinic.

[00:29:04] Speaker 00:
As to the contractual point, Your Honor, Morris had raised, the contractual provision doesn't say that she can't meet the call requirements at Ogden Regional Medical Center.

[00:29:16] Speaker 00:
She says cannot meet the call requirements.

[00:29:17] Speaker 00:
And so the fact that she couldn't meet it at one hospital... It mentions schedule.

[00:29:21] Speaker 00:
It mentions a schedule.

[00:29:22] Speaker 00:
The fact she could not meet it at one specific hospital doesn't mean she could not meet it somewhere else.

[00:29:26] Speaker 00:
And so I believe that's an overreading of the

[00:29:30] Speaker 00:
provision to say that because she can't meet it at one hospital, she can't meet it at all hospitals.

[00:29:35] Speaker 00:
In terms, I am out of time.

[00:29:38] Speaker 00:
You can continue.

[00:29:39] Speaker 00:
Thank you, your honor.

[00:29:41] Speaker 00:
The clinic raised again the right to terminate.

[00:29:44] Speaker 00:
They didn't do so, so that's not an issue.

[00:29:47] Speaker 00:
With respect to Ogden Regional Medical Center, the reasons for the

[00:29:54] Speaker 00:
January 28th letter are factual disputes.

[00:29:57] Speaker 00:
There's no undisputed issues with those.

[00:29:59] Speaker 00:
And so that would be an improper basis for summary judgment.

[00:30:02] Speaker 00:
With respect to the contractual relationship, I think that Zombo did say that the Code of Conduct could create a contract and the Code of Conduct was incorporated into Dr. Garvey's, the policies that Dr. Garvey was operating under.

[00:30:13] Speaker 04:
And to give you a boundary, one minute, we're done.

[00:30:17] Speaker 00:
Okay, I had just one more point I was going to make.

[00:30:20] Speaker 00:
The other conduct that they raise after her completion of the PIP is not undisputed.

[00:30:26] Speaker 00:
It's a disputed fact that the district court should not have relied upon.

[00:30:30] Speaker 00:
Accordingly, for the reasons set forth here today and in the briefs, we submit that the district court's opinion should be reversed.

[00:30:37] Speaker 00:
Thank you very much.

[00:30:38] Speaker 04:
Thank you, counsel, for your arguments.