Zisumbo v. Ogden Regional Medical Center

2015 UT App 240
THE UTAH COURT OF APPEALS
R AYMOND L. Z ISUMBO,
Appellant,
v.
O GDEN R EGIONAL M EDICAL C ENTER , C HRIS BISSENDEN ,
A NTHONY R ODEBUSH , AND JUDD T AYLOR ,
Appellees.
Opinion
No. 20140614-CA
Filed September 17, 2015
Second District Court, Ogden Department
The Honorable Ernest W. Jones
No. 130900392
April L. Hollingsworth, Attorney for Appellant
Michael Patrick O’Brien, Mark D. Tolman, and Jesse
M. Oakeson, Attorneys for Appellees
JUDGE J. F REDERIC VOROS JR . authored this Opinion, in which
JUDGES M ICHELE M. C HRISTIANSEN and K ATE A. TOOMEY
concurred.
VOROS, Judge:
¶1 	This appeal requires us to determine whether a plaintiff
alleging a variety of tort and contract claims adequately pleaded
causation. We conclude that the amended complaint satisfied
our liberal pleading rules and so reverse the district court’s order
dismissing the amended complaint.

Zisumbo v. Ogden Regional Medical Center
20140614-CA 	2 	2015 UT App 240
BACKGROUND1
¶2 	Raymond L. Zisumbo worked as a computer tomography
(CT) technician for Ogden Regional Medical Center for five
years. 	In 	September 	2009, 	Zisumbo 	filed 	discrimination
complaints against his supervisor, Anthony Rodebush, with
Ogden 	Regional’s 	parent 	corporation, 	Hospital 	Corporation
America 	(HCA), 	and 	with 	the 	Utah 	Labor 	Commission. 	In
October 	2009, 	Ogden 	Regional 	terminated 	Zisumbo’s
employment.2
¶3 	Ogden Regional maintains a database in which it codes
the reason for an employee’s termination. The code assigned to a
terminated employee indicates that employee’s eligibility for
rehire. 	Other 	HCA 	medical 	facilities, 	including 	St. 	Mark’s
Hospital, 	also 	use 	this 	database 	to 	make 	hiring 	decisions.
Sometime 	after 	Ogden 	Regional 	terminated 	Zisumbo’s
employment in 2009, Ogden Regional coded Zisumbo as “‘Invol
Term—Miscond’ . . . believing that it made him eligible for
rehire.” In March 2011, Ogden Regional “learned this [belief]
was 	incorrect” 	and 	that 	the 	assigned 	code 	made 	Zisumbo
ineligible 	for 	rehire 	at 	all 	HCA 	medical 	facilities. 	Ogden
Regional told Zisumbo it had changed the code to “Invol Term—
1. “On appeal from a motion to dismiss, we review the facts only
as they are alleged in the complaint.” State v. Apotex Corp., 2012
UT 36, ¶ 3, 282 P.3d 66 (citation and internal quotation marks
omitted).
2. In May 2010, Zisumbo filed a lawsuit in federal court against
appellees Ogden Regional, Rodebush, Chris Bissenden, and Judd
Taylor under Title VII of the Civil Rights Act of 1964, claiming
employment discrimination and retaliation. A jury trial was held
in 	2013. 	The 	jury 	found 	that 	Ogden 	Regional 	had 	not
discriminated against Zisumbo, but had retaliated against him.

Zisumbo v. Ogden Regional Medical Center
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Behavior,” a code indicating the terminated employee is eligible
for rehire.
¶4 	Since Zisumbo’s termination, “he has been unable to
secure 	employment 	in 	his 	field, 	despite 	his 	five 	years 	of
experience at [Ogden Regional], 10 years of CT experience, and a
degree in CT.” He applied for jobs at St. Mark’s Hospital and
other HCA facilities located in Utah, but received no response to
his applications. He also applied for jobs at non-HCA facilities,
but did not receive interviews for those positions. People at
facilities 	where 	Zisumbo 	applied 	for 	positions 	informed
Zisumbo that “something” was blocking his applications:
[Zisumbo] 	spoke 	with 	individuals 	at 	facilities
where he applied for jobs whom he knew and who
were interested in hiring him, who informed him
that his application had not been forwarded to
them for consideration for available positions for
which 	he 	had 	applied. 	In 	other 	words, 	they
informed him that something was preventing his
application from making it past the facility’s initial
screening.
¶5 	Based on the foregoing allegations, Zisumbo sued Ogden
Regional. Ogden Regional moved to dismiss for failure to state a
claim. 	Zisumbo 	opposed 	the 	motion 	and 	filed 	a 	proposed
amended complaint. The district court dismissed Zisumbo’s
claims of negligence, defamation, intentional interference with
economic relations, and breach of the duty of good faith and fair
dealing. The court ruled that Zisumbo’s claims were “barred
because he has failed to plead facts in either his Complaint or
Amended 	Complaint 	demonstrating 	that 	[Ogden 	Regional]

Zisumbo v. Ogden Regional Medical Center
20140614-CA 	4 	2015 UT App 240
caused him any harm, among other reasons.”3 In response to
Zisumbo’s oral motion to further amend the complaint, the court
concluded that Zisumbo had “failed to plead facts supporting
these claims after a full and fair opportunity to do so.” Zisumbo
timely appeals.
ISSUE AND STANDARD OF REVIEW
¶6 	Zisumbo 	contends 	that 	the 	district 	court 	erred 	in
dismissing 	his 	claims 	against 	Ogden 	Regional, 	Bissenden,
Rodebush, and Taylor for failure to state a claim under rule
12(b)(6) of the Utah Rules of Civil Procedure. “A district court’s
grant of a motion to dismiss based upon the allegations in the
plaintiff’s complaint[] presents a question of law that we review
for correctness.” America West Bank Members, LC v. State, 2014 UT
49, ¶ 7, 342 P.3d 224 (alteration in original) (citation and internal
quotation marks omitted).
¶7 	This court will “affirm a district court’s dismissal of an
action under rule 12(b)(6) of the Utah Rules of Civil Procedure
only when the plaintiff has not alleged, or cannot prove, facts
sufficient for relief.” Gildea v. Wells Fargo Bank, NA, 2015 UT 11,
¶ 3, 347 P.3d 387. Accordingly, we “take the facts alleged” in
Zisumbo’s complaint and “view them in the light most favorable
to his claims.” Id.
3. Although Zisumbo argues on appeal that the district court did
not afford him the opportunity to amend his complaint, the
court 	and 	Ogden 	Regional 	both 	considered 	his 	proposed
amended complaint and treated it as if it had been filed. Because
the district court effectively received the amended complaint, we
consider it on appeal.

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ANALYSIS
¶8 	Zisumbo contends that he alleged facts in his complaint
and amended complaint sufficient to allege causation under
Utah’s liberal pleading standard.4
¶9 	“Rule 12(b)(6) reflects Utah’s adoption of notice pleading
and, therefore, relies on rule 8 of the Utah Rules of Civil
Procedure.” Mack v. Utah State Dep’t of Commerce, 2009 UT 47,
¶ 17, 221 P.3d 194. Rule 8 requires a pleading to set forth “a short
and plain . . . statement of the claim showing that the party is
entitled to relief.” Utah R. Civ. P. 8(a). “The claim need not be
specific, 	rather, 	‘under 	Utah’s 	liberal 	notice 	pleading
requirements, 	all 	that 	is 	required 	is 	that 	the 	pleadings 	be
sufficient to give fair notice of the nature and basis of the claim
asserted 	and 	a 	general 	indication 	of 	the 	type 	of 	litigation
involved.’” Busche v. Salt Lake County, 2001 UT App 111, ¶ 6, 26
P.3d 862 (quoting Fishbaugh v. Utah Power & Light, 969 P.2d 403,
406 (Utah 1998)). “Furthermore, if there is any doubt about
whether a claim should be dismissed for lack of factual basis, the
issue 	should 	be 	resolved 	in 	favor 	of 	giving 	the 	party 	an
opportunity to present its proof.” Ho v. Jim’s Enters., Inc., 2001
UT 63, ¶ 6, 29 P.3d 633 (citation and internal quotation marks
omitted); see also America West Bank Members, 2014 UT 49, ¶ 13
(“A dismissal is a severe measure and should be granted by the
trial court only if it is clear that a party is not entitled to relief
under any state of facts which could be proved in support of its
claim.” (citation and internal quotation marks omitted)).
4. The district court dismissed Zisumbo’s complaint on the
ground that he failed to adequately allege that Ogden Regional
had caused him harm, “among other reasons.” Because the
district court did not specify those “other reasons,” we treat the
dismissal as having been based solely on a failure to adequately
plead causation.

Zisumbo v. Ogden Regional Medical Center
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¶10 	Ogden Regional contends that Zisumbo “has not pleaded
that [Ogden Regional’s] internal HR code actually caused him
harm (e.g., by alleging that a prospective employer accessed
[Odgen Regional’s] database or otherwise became aware that
[Ogden Regional] had coded him ineligible for rehire and chose
not to hire Zisumbo as a result).”
¶11 	True, Zisumbo’s complaint lacks precision. But “[e]ven if
a complaint is vague, inartfully drafted, a bare-bones outline, or
not a model of specificity, the complaint may still be adequate so
long as it can reasonably be read as supporting a claim for relief,
giving the defendant[s] notice of that claim.” Casaday v. Allstate
Ins. Co., 2010 UT App 82, ¶ 16, 232 P.3d 1075 (citations and
internal quotation marks omitted). Zisumbo’s complaint gave
Ogden Regional “fair notice of the nature and basis or grounds
of the claim[s] and a general indication of the type of litigation
involved.” Canfield v. Layton City, 2005 UT 60, ¶ 14, 122 P.3d 622.
¶12 	The amended complaint alleged that Ogden Regional had
for a specified period miscoded Zisumbo’s termination; that the
miscoding rendered him ineligible for rehire within the HCA
system; that he had sought employment at other HCA facilities;
that individuals at those facilities knew him and were interested
in hiring him; and that those individuals informed him in effect
that “something was preventing his application from making it
past 	the 	facility’s 	initial 	screening.” 	While 	the 	amended
complaint does not specify that the miscoding constituted the
“something” blocking Zisumbo’s employment applications, in
context we have no difficulty connecting those dots. In fact, in
the context of the amended complaint, any other inference
would require speculation. We thus conclude that the amended
complaint gave fair notice to Ogden Regional of Zisumbo’s claim
that Ogden Regional’s miscoding caused potential employers
not to hire him.

Zisumbo v. Ogden Regional Medical Center
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CONCLUSION
¶13 	The judgment of the district court is reversed and the case
remanded for further proceedings consistent with this opinion.5
5. On appeal, Ogden Regional advanced numerous alternative
grounds to affirm. “When reviewing a decision made on one
ground, we have the discretion to affirm the judgment on an
alternative ground if it is apparent in the record.” Madsen v.
Washington Mutual Bank FSB, 2008 UT 69, ¶ 26, 199 P.3d 898. We
decline to exercise that discretion here and do not consider any
alternative grounds. Nevertheless, Ogden Regional may renew
its motion to dismiss on these or other grounds in the district
court, where Zisumbo may correspondingly renew his motion to
amend.