NOTICE AND AGENDA FOR
AZELA Membership/CLE MEETING
Friday, March 17, 2017, 12 Noon to 1:30pm
(includes .5 hour ethics credit)
(AZELA Board meeting follows at 1:35pm; the Board meeting agenda is provided infra)
Location: Jaburg & Wilk, P.C. Conference Room
20th Floor, at 3200 North Central Avenue in Phoenix. Free (validated) parking is available in the parking structure west of the office building. (Kraig Marton, Jeff Silence, and David Farren are our hosts.) There is no cost to attend.
Feel free to bring your lunch and beverage.
1.5 hour CLE certificates will be given to all in attendance
in person or telephonically (see pages 10-11 infra)
This Notice and Agenda prepared and written by Roger A. McKee firstname.lastname@example.org
Chair, AZELA CLE/Membership Meetings
To Attend Telephonically: Members who attend telephonically will be sent CLE certificates upon request to Roger McKee, email@example.com. To attend by phone, all you have to do is pick up your phone and follow these simple instructions.
- Dial (712) 432-1212
- Enter the meeting ID number: 574-193-032 (followed by the # key)
- Put your phones on mute unless you are speaking.
If you run into any problems, dial the Jaburg & Wilk office number (602) 248-1000 and ask for Jeff Silence or Ash (the Jaburg & Wilk I.T. person).
Recent significant cases
Sheehy v. Santa Clara Valley Transportation Authority, 2017 WL 782459 (3-1-17):
“The district court granted summary judgment to the VTA. It concluded that the VTA was not required to pay Sheehy for overtime because, while “authorized breaks over the course of the day are compensable[,]” the same is not true for “an unauthorized extension of a rest break” which is “not considered compensable as hours worked.” . . . The FLSA does not obligate an employer to compensate an employee for unauthorized rest breaks. See, e.g., U.S. Dep’t of Labor, Wage and Hour Division, Opinion Letter on Fair Labor Standards Act, 1996 WL 1005233, at *1 (Dec. 2, 1996) (“The FLSA does not require an employer to provide its employees with rest periods or breaks. If the employer decides to permit short breaks, however, the time is compensable hours worked.”
Reynaga v. Roseburg Forest Products, 847 F. 3d 678 (9th Cir., 2017): Father Efrain Reynaga and his son Richard Reynaga were the only Mexican-American millwrights employed at the defendant’s plant. The father ultimately filed 42 USC 1981 and Title VII claims for hostile environment, disparate treatment and retaliation based upon a series of events, many of which were hostile acts by a bigoted fellow millwright named Branaugh. The District Court granted summary judgment on all claims for the employer, but the Ninth Circuit reversed and sent all back for trial. Holdings include: (1) Multiple incidents of hostile environment were enough to be pervasive; (2) Multiple incidents of disparate treatment were sufficient for prove discrimination; (3) Employer could be vicariously liable for hostile conduct by peer Branaugh because there was evidence if failed to take appropriate remedial action after it learned of the father’s complaints; and (4) whether terminating him for walking off the job when he was assigned to work the same shift as Branaugh despite his prior complaints to management about Branaugh’s intimidation and harassment was excessive punishment and thus an act of retaliation.
Trenier v. HMS Host, Inc., 2017 WL 836591 (3-3-17): Summary judgment for employer on race discrimination reversed:
“DeRoux’s testimony that Krissman laughed when asked if Trenier was not hired as a manager because of his race, that Filart stated she was afraid that Trenier would not be hired on account of his race, and that Matthews indicated that “they didn’t want to put another black person in there” are all statements by Defendant’s employees within the scope of their employment. They are, therefore, admissible . . . . . Plaintiff proffered sufficient evidence of discriminatory motive, including DeRoux’s testimony, to withstand summary judgment. See Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998) (“The requisite degree of proof necessary to establish a prima facie case … on summary judgment is minimal and does not even need to rise to the level of a preponderance of the evidence.” (citation omitted)). And assuming Host has met its burden of showing a “nondiscriminatory reason[ ] for the allegedly discriminatory conduct,” see id., Trenier proffered sufficient evidence to create a genuine dispute of fact as to whether that reason was pretextual. For example, Matthews (one of Trenier’s interviewers) allegedly told DeRoux that she thought Trenier was not hired as a manager because of his race. Although Matthews denies saying this, the credibility of DeRoux’s testimony should not be decided during summary judgment. Cf. id. at 1222.”
Brandon v. Maricopa County, 2017 WL 710474 (2-23-17) (Larry J. Cohen for Plaintiff, Kimberly Demarchi and Michele Iafrate for Defendants): Maria Brandon was a Deputy County Attorney assigned to defend the county in civil cases. She had been assigned to defend the MCSO on some jail brutality cases which had resulted in some high-profile large settlements. She was contacted by an Arizona Republic reporter who had heard that she had written a confidential memo that had been leaked in which she said the County was making large payouts so that certain County employees could avoid being deposed. When called by the reporter she refused to comment on her memo, but said when asked why the County was making the settlement payouts she said: “I don’t know why they did what they did, and I’m sure they had their reasons.” County officials saw the newspaper article and asked the County Attorney to remove her from defending the County in civil cases, and the County Attorney then fired her. She filed (inter alia) claims for 42 USC 1983 (retaliation for exercise of free speech) and intentional interference with contractual relations against individual defendants, and won a jury verdict for $1 on her first claim and $638,147.94 on her second (tort) claim, plus attorneys’ fees of $302,175.28 for her 1983 claim. On appeal, the Ninth Circuit reversed and remanded for entry of judgment for the Defendants because (1) on her 1983 claim, she was speaking in her official capacity (not as a private citizen as required by Garcetti v. Ceballos), and (2) the interference by the individual defendants was not “improper”. (reviewed by Emily Tournabene)
Overstreet v. Shamrock Foods Company, 2017 WL 655795 (2-17-17) (NLRB counsel for Plaintiff, Marc Antonetti for Defendant): NLRB obtained temporary injunction against employer from District Court (Hon. Diane Humetewa) pursuant to NLRA, 29 USC 160(j). Affirmed by 9th Circuit, holding (1) that District Courts should be liberal in granting the NLRB injunctive relief because it represents the public interest, and (2) a private settlement of the underlying dispute by the employer and employee does not divest the NLRB of jurisdiction to proceed on an unfair labor practice charge against the employer.
Red v. Kraft Foods Inc., 2017 WL 782494 (3-1-17): 9th Circuit on attorneys’ fees awards lodestars in Los Angeles:
- The district court did not err in applying blended hourly rates of $550 for partners and senior associates, $352 for junior associates, and $211.66 for law clerks and paralegals. “There is no requirement that the reasonable market rate mirror the actual rate billed.” Syers Props. III, Inc. v. Rankin, 226 Cal.App.4th 691, 172 Cal.Rptr.3d 456, 463 (2014). The blended rates used were reasonable averages consistent with the prevailing market rates charged in similar cases within the Central District of California. See, e.g., POM Wonderful, LLC v. Purely Juice, Inc., No. CV 07-2633 CAS JWJx, 2008 WL 4351842, at *4 (C.D. Cal. Sept. 22, 2008).
Syed v. M-I, LLC, 846 F. 3d 1034, 1037 (2017):
“The modern information age has shined a spotlight on information privacy, and on the widespread use of consumer credit reports to collect information in violation of consumers’ privacy rights. This case presents a question of first impression in the federal courts of appeals: whether a prospective employer may satisfy the Fair Credit Reporting Act’s (“FCRA”) disclosure requirements by providing a job applicant with a disclosure that “a consumer report may be obtained for employment purposes” which simultaneously serves as a liability waiver for the prospective employer and others.1 See 15 U.S.C. § 1681b(b)(2)(A). We hold that a prospective employer violates Section 1681b(b)(2)(A) when it procures a job applicant’s consumer report after including a liability waiver in the same document as the statutorily mandated disclosure. We also hold that, in light of the clear statutory language that the disclosure document must consist “solely” of the disclosure, a prospective employer’s violation of the FCRA is “willful” when the employer includes terms in addition to the disclosure, such as the liability waiver here, before procuring a consumer report or causing one to be procured.”
U.S. District Court for Arizona
Isom v. JDA Software Incorporated, 2016 WL 8115691, case # 2:12 2649 PHX JAT (12-21-16) (Dan Bonnett for Plaintiff, Laura Robertson for Defendant): Post -verdict order denying Employer’s motion for new trial on FMLA claim, and granting Plaintiff liquidated damages, attorneys’ fees, and taxable costs: Isom was a sales account manager for JDS Software. She took FMLA maternity leave. Upon her return, she was re-assigned to a different set of accounts which were far less lucrative, and as a result she lost, inter alia, one large commission that she would have earned if a particular account had not been transferred from her. The jury returned a verdict for compensable damages of $114.618. Judge Teilborg made useful comments in granting (1) liquidated (double) damages, (2) attorneys’ fees, and (3) taxable costs. (reviewed by Dan Bonnett)
Zaki v. Banner Pediatric Specialists, L.L.C., 2017 WL 105991, case # 2:16 CV 1920 PHX DLR (Richard K. Walker for Plaintiff, Lindsay Jo Fiore for Defendant): Bad Lawyering case. Plaintiff Emad Zaki is a physician specializing in pediatric nephrology. In 2010, Banner hired Zaki to provide pediatric nephrology care and on-call coverage pursuant to a Physician Employment Agreement (PEA). On June 3, 2014, Zaki took leave from Banner to care for his father in Egypt. While there, Zaki suffered a serious brain injury in a car accident. Due to his injury, Zaki was unable to obtain medical clearance to resume work at Banner. On December 29, 2014, Banner sent Zaki an email informing him that he would be terminated without cause, effective March 29, 2015. Zaki filed claims in the Maricopa County Superior Court but then voluntarily dismissed them prior to resolution, and filed a new action in the USDC, setting forth multiple claims of breach of employment contract, FMLA violation, and ADA violation. Almost all claims were dismissed because of applicable statutes of limitations. (1) Plaintiff argued incorrectly that state law tolling statute, ARS 12-504 applied but he had never sought leave to re-file after voluntary dismissal in the MCSC. (2) Plaintiff argued incorrectly that there had been a tolling agreement with opposing counsel, but the express terms of the agreement were inapplicable to the statutes of limitations applicable to his various claims. (3) Biggest mistake is that Plaintiff (with serious brain injury) failed to argue the AZ tolling statute [ARS 12-502 for plaintiffs who are incapacitated (‘unsound mind”)] which could have tolled all applicable statutes of limitations
Ramirez v. Mitel (Delaware) Incorporated, 2017 WL 770010, case #2:16 CV 29 PHX DCG (2-28-16) (Plaintiff pro per, Adam Merrill for Defendants):
“[I]n some cases, causation can be inferred from timing alone where an adverse employment action follows on the heels of protected activity.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002). The Ninth Circuit has “made clear that a specified time period cannot be a mechanically applied criterion, and ha[s] cautioned against analyzing temporal proximity without regard to its factual setting.” Fazeli v. Bank of Am., NA, 525 F. App’x 570, 571 (9th Cir. 2013) (citations and internal quotation marks omitted). Nonetheless, courts generally have “required temporal proximity of less than three months between the protected activity and the adverse employment action for the employee to establish causation based on timing alone.” Mahoe v. Operating Eng’rs Local Union No. 3, No. CIV. 13-00186 HG-BMK, 2014 WL 6685812, at *8 (D. Haw. Nov. 25, 2014) (collecting cases).
Esposito v Maricopa County Community College District, 2016 WL 7373339, case # 2:15 CV 767 PHX NVW (12-20-16) (Stephen Montoya for Plaintiffs, Richard Cohen for Defendant): Two counselling dept. faculty members sued for age discrimination and race discrimination. Defendant moved for summary judgment. Holdings included:
(1) The following was sufficient to prove age discrimination:
Plaintiffs assert that Defendant discriminated against them with respect to conditions of employment because of their age. Pan, Mabry, and Holmes told Plaintiffs and others that the administration did not like the way the Counseling Department was operating and did not want to hire any new counselors until the current counselors retired. They repeatedly asked Plaintiffs and others about their ages and plans for retirement. Pan told Plaintiffs and others he needed to “fire burn” the “old trees” to make room for “new growth.” As a result, as counselors retired and were not replaced, Plaintiffs and the remaining counselors were responsible for servicing an increasing number of students and were criticized when they were not available to do so. Further, they were criticized for not teaching enough classes, not serving on enough faculty committees, and not being in their offices more. Esposito was required to move her office to a less desirable location that made it more difficult for her to perform her job duties as effectively. These conditions caused Plaintiffs stress, anxiety, and health problems and led to Hardin resigning from her department chair position.
(2) The Court denied summary judgment based upon the Ellerth-Faragher defense. The MCCCD did have an established policy for reporting workplace discrimination that required persons to report such discrimination to superiors. One of the two Plaintiffs spoke to Reverend Oscar Tillman of the NAACP about discriminatory comments that had been made. Tillman spoke to the Chancellor of the Maricopa County Community College District, who referred him to someone in the legal department who said Hardin could call him. The Court said:
“It is undisputed that Defendant had policies and procedures in place to prevent and correct workplace harassment, and Plaintiffs did not use the internal complaint process to address their race and/or age-based concerns. However, the allegedly harassing behavior was reported to Defendant through Reverend Tillman. He was asked to advise Hardin to contact district authorities. She did not. This is a close question. But the Court cannot say on this sparse record that the Faragher/Ellerth defense has been proved.”
Valtierra v. Medtronic Inc., 2017 WL 467977, case # 2:15 865 PHX SMM (2-3-17) (Jessica Miller and David Zoldan for Plaintiff, Barry Uhrman and Shawn Oller for Defendant): Is “morbid obesity” a disability under the ADA? After reviewing conflicting authorities on this point including the EEOC Guidance, Judge McNamee determines that morbid obesity is not a disability under the ADA unless there is an underlying physiological disorder causing the morbid obesity.
EEOC v. ValleyLife, 2017 WL 227878, case # 2:15 340 PHX GMS (1-19-17) (Mary Jo O’Neill and William Hobson for EEOC, Thom Cope for Defendant): ADA case, with cross-motions for summary judgment denied. The EEOC sued ValleyLife (a company which provides services to disabled persons) on behalf of four disabled employees who were terminated when they could not perform all of their respective job duties without accommodation. The Court denied the employers motion after finding that there was evidence that it had not engaged in an interactive process with the employees to try to find reasonable accommodations for each. The Court stated that an employer’s obligation to engage in the interactive process is “triggered by” (1) an express request for an accommodation, or (2) the employer’s “recognition of the need for such an accommodation”. The Court also denied the employer’s motion for summary judgment on punitive damages because there was enough evidence presented for a trier-of-fact to award such damages under the Kolstad standard. The Court denied the EEOC’s motion as to liability on its ADA claims of failure to accommodate, co-mingling of employee medical records, and having an inflexible leave policy, because there were factual disputes as to these three sets of claims. (reviewed by Bill Hobson).
Doe v. Swift Transportation Co., Inc., 2017 WL 67521, case # 2:10 899 PHX JWS (Dan Bonnett for Plaintiffs, Calif. Counsel for Defendant): Swift is a motor carrier that is engaged in the interstate transportation of freight. Plaintiffs are truck drivers who each entered into a contractor operating agreement with Swift (the “Contractor Agreement(s)”). Under each Contractor Agreement, the respective Plaintiff agreed to furnish “Equipment” and labor necessary for the transportation of freight, which would be furnished by Swift. The “Equipment” is a truck specifically identified in “Schedule A” of each Contractor Agreement with a unit number, year, make, and serial number. The issue before the court is whether Plaintiffs’ Contractor Agreements are exempt from arbitration under § 1 of the Federal Arbitration Act (FAA) and § 12-1517 of the Arizona Arbitration Act (AAA). Section 1 of the FAA provides that the FAA does not apply to “contracts of employment” of transportation workers. Section 12–1517 of the AAA “exempts all employer and employee employment agreements from the provisions of [the Act].” When Defendants originally moved to compel arbitration, Plaintiffs opposed the motion arguing that because they were employees of Swift they were therefore exempt from arbitration under the FAA and the AAA. The Court reviewed the factual record and applied the law applicable to determining employee v. independent contractor status (set forth in footnote 30), and held that the truck drivers were “employees” and thus exempt from the coverage of both the FAA and the AAA, and Swift’s motion to compel arbitration was denied.
Moorehead v. Hi-Health Supermart Corporation, 2017 WL 131564, case # 2:14 CV 2542 PHX JJT (1-13-17) (Stephen Montoya for Plaintiff, Brandon Nagy for Defendant): Court grants employer’s motion for summary judgment on ADEA claim where employee was terminated despite this evidence:
“Plaintiff also states that “around the time that [she] celebrated her sixtieth birthday in July 2011, Mr. Chopra (supervisor) started to make derogatory comments based upon her age and linked her age with what he (falsely) claimed to be poor job performance.” (Am. Compl. ¶ 35.) Plaintiff alleges Mr. Chopra said:
- “I know you’re older, but you need to come into the 21st Century”;
- “I know you’ve been around a long time and you’re older than the other buyers, but you still should be able to come up with some new ideas”;
- “I know you’re older than the other buyers, but that shouldn’t stop you from being innovative and creative”;
- “Other people in the company as well as myself look around and wonder whether or not you can keep up with the other younger buyers”; and,
- “I know you’re over 60 now but, you still need to keep up with the other younger buyers, if not, this job might not be for you.”
Arizona Appellate Courts
RAMc Note: The following two AZ Court of Appeals decision should be read and discussed together, and illustrate how important it is to know what judicial review is (and is not) available to public employees who have exhausted their administrative remedies in employment cases. The two following cases are both (in my opinion) examples of “bad lawyering”:
Gradis v. Banner Health, 2017 WL 773522, Ariz. Ct. Apps case # 1 CA-CV 16-0056 (2-28-17) (Taylor Young for Plaintiff, Stephanie Quincy for Defendant) (Bad Lawyering case): Gradis was injured on the job in April 2012. and filed a workers comp claim against Banner Health, her employer who was self-insured for workers comp. Before her injury, she had filed an employment discrimination claim against Banner Health which she settled in October, 2012, while her workers comp claim was still pending before the ICA. Her settlement agreement for her discrimination claim included broad releases of any and all claims known or unknown to her at the time. She later sued Banner Health for bad faith in responding to her workers comp claim. Both the Superior Court and the Court of Appeals held that the broad terms of the settlement agreement precluded such claims, distinguishing the Franks case, stating that the bad faith claim was covered by the release she had signed even though this claim technically did not arise from her employment relationship. (reviewed by Denise Blommel)
Coombs v. Maricopa County Special Health Care District, 2016 WL 7210049, AZ. Ct. of Apps. Case # 1 CA-CV 15-0276 (12-13-16): (Thomas Shaw for Plaintiff, Martin Demos and Anne Tiffen for Defendant): Coombs was employed by the Maricopa County Special Health Care District, a public entity which owns and operates MIHS. MIHS established a Merit System for its “covered employees”, which included Coombs. The Merit System provided that a covered employee who is terminated for cause could appeal the termination to the District CEO, who would assign the appeal to a hearing officer who would conduct an evidentiary hearing, and then make findings of fact and conclusions of law, and then transmit the record to the CEO for a final decision. Neither the Merit System nor the enabling statutes for the District provided for any appeal procedure or review of terminations beyond the CEO. Coombs was fired, and she followed the Merit System appeal procedure. The hearing officer recommended termination, and the CEO affirmed. She then appealed her termination to the MCSC pursuant to ARS 12-902(A), the Administrative Review Act (“ARA”). The MCSC dismissed for lack of jurisdiction because the ARA coverage did not include the Maricopa County Special Health Care District, and the Court of Appeals affirmed, finding that the Courts lacked jurisdiction under the ARA.
The Court of Appeals noted that the MCSC may have had jurisdiction had the action been brought as a “special action”, but Coombs had failed to do so. The Court went on to state that, even if the ARA action had been treated as a special action, it may not have satisfied the requirements for special action jurisdiction in which the plaintiff must allege facts which would prove that the governmental entity action/decision (termination of employment in this case) was “was arbitrary and capricious or an abuse of discretion”. Rules of Procedure for Special Actions, Rule 3(c). Coombs argued that her formal written objections to the hearing officer’s report set forth sufficient facts to entitle her to special action relief, but the Court pointed out that her objections were not part of the record on appeal and therefore could not be considered.
Gee v. City of Phoenix, 2016 WL 6518493, Ariz. Ct. Apps. Case # 1 CA CV 15-618 (11-3-16) (Patricia Kirtley for Plaintiff, Heidi Gilbert for City): Gee, a City of Phoenix employee, admitted violating work rules, and entered into a LCEA (last clear chance agreement) and was given a 40-hour suspension, and warned that further rule violations could result in termination. Thereafter, the City determined that she had violated certain work rules and she was terminated. Pursuant to City ordinances, she appealed her termination to the Civil Service Board, whose hearing officer conducted a due process evidentiary hearing and determined that Gee had violated certain work rules and that the termination should be upheld. The Civil Service Commission examined the record and upheld the termination. No further review was provided, so Gee filed a complaint for special action relief in the MCSC pursuant to the Rules of Procedure for Special Actions. The MCSC (Judge Karen Mullins) declined to accept jurisdiction of the complaint, thus dismissing the petition without proceeding to a determination of the merits of the termination decision. The Court of Appeals affirmed the Superior Court refusal, first stating:
¶ 9 “The decision to accept or reject special action jurisdiction is highly discretionary.” Am. Fam. Mut. Ins. Co. v. Grant, 222 Ariz. 507, 511, ¶ 9 (App. 2009). We review a superior court’s declination of special action jurisdiction for an abuse of that discretion. Files v. Bernal, 200 Ariz. 64, 65, ¶ 2 (App. 2001). A court abuses its discretion when “the record fails to provide substantial support for its decision or the court commits an error of law in reaching the decision.” Id. A denial of special action relief “will be upheld for any valid reason disclosed by the record.” State ex rel. Dean v. City Ct. of City of Tucson, 123 Ariz. 189, 192 (App. 1979). When the superior court declines jurisdiction of a special action without addressing the merits, we likewise do not reach the merits on appeal. State v. Johnson, 184 Ariz. 521, 523 (App. 1994). Rather, “the sole issue before us [is] whether that court abused its discretion when it declined to accept jurisdiction.” Id. (citation omitted); see also Stapert v. Ariz. Bd. of Psychologist Exam’rs, 210 Ariz. 177, 182, ¶ 22 (App. 2005). The burden of proving whether special action jurisdiction is warranted lies with the party requesting relief. See Bd. of Cty. Supervisors, Santa Cruz Cty. v. Rio Rico Volunteer Fire Dist., 119 Ariz. 361, 364 (App. 1978).
The Court of Appeals held that the Superior Court did not abuse its discretion in declining the accept jurisdiction because the complaint, while alleging mistakes or errors in the termination process, did not allege facts which would meet the requirement for special action relief which is to prove that the governmental entity action was “was arbitrary and capricious or an abuse of discretion”. Rules of Procedure for Special Actions, Rule 3(c). RAMc note: Misapplication of the law or mistake of law constitutes an abuse of discretion. Tobin v. Rea, 231 Ariz.189, 194, ¶ 14 (2013).
Harper v. State of Arizona, 2016 WL 7438534, AZ Ct. of Apps. Case # 1 CA-CV 15-0519 (12-27-16) (Terrence Woods for Plaintiffs, AAG Ann Hobart for State): Five supervisors at ADES CPS were fired in a very high profile case:
“¶ 3 In 2011, CPS had a backlog of “unassigned” reports involving child abuse and neglect. CPS assembled a team that included Plaintiffs to review and dispose of the backlog.
¶ 4 CPS directed Plaintiffs to develop a protocol to dispose of unassigned reports. This protocol included designating some of the reports as “NI,” or not investigated. Once a report was designated “NI,” it was considered resolved. According to Plaintiffs, they were directed to use the “NI” designation by their superiors.
¶ 5 When the public learned that CPS was using the “NI” designation to dispose of child abuse/neglect reports, there was a firestorm of bad press and negative public backlash. The Department of Public Safety investigated the use of the “NI” designation and issued a report. Then, in April 2014, Plaintiffs were terminated by the then-Director of the Division of Child Safety and Family.
¶ 6 Plaintiffs filed this complaint for wrongful termination. The State filed a motion to dismiss the complaint, arguing that Plaintiffs had failed to allege a viable wrongful termination claim. The superior court granted the State’s motion, and Plaintiffs appealed.”
The Court of Appeals affirmed the dismissal of the Plaintiffs’ claims, holding:
(1) ARS 41–742(B)(4) does not provide a “public policy” basis under the EPA which would make the terminations actionable under the EPA. This statute lists one of the general “principles” underlying the Arizona State Personnel System: public employees who are adequately performing their jobs should be retained. Based on this statute, Plaintiffs argued unsuccessfully it was against public policy to terminate them because they were competently performing their jobs.
(2) Supervisors are not covered by the State Employee Merit System, citing ARS 41-742(A)(2)(b) and 41-741(19).
(3) ARS 38-443 (making it a crime for a person holding a position of public trust or employment to knowingly fail to perform a duty) did not provide a public policy violation because “No law required CPS, Plaintiffs or their supervisors to designate abuse and neglect reports as “NI.” As a result, Plaintiffs would not have violated A.R.S. § 38–443 by refusing to apply the “NI” designation, because the supervisor’s orders to use the “NI” designation did not have the force of law”.
(4) Court of Appeals would not recognize a common law wrongful termination outside the limits of the EPA for public employees who are fired by a public official for the purpose of providing the official political cover for a policy or decision that results in bad press or negative public opinion.
RAMc note: Had these CPS supervisors gone public or complained internally as whistleblowers rather than complying with the orders given they would have had claims under 42 USC 1983 for retaliation for having exercised their rights of free speech on a matter of public concern.
Useful cases from other jurisdictions
Guenther v. Griffin Construction Company, 846 F. 3d 979 (8th Cir., 2017): ADA claims survive the death of the Plaintiff: In 2012, construction company employee Semmie learned he had prostate cancer and took off about three weeks for treatment. He returned to work, but by the next year, he learned the cancer had spread throughout his body. Semmie told his employer he would need another three weeks of leave. Instead, the company fired him. Not only that, it cut off his health insurance coverage. Semmie filed an ADA disability discrimination complaint with the EEOC. Almost two years after his termination but before the EEOC issued a notice of right-to-sue(NRD), Semmie died. After the EEOC did issued the NRS, Semmie’s estate filed an ADA lawsuit. The employer moved to have the case dismissed under the Arkansas survival statute that said legal claims terminate on death if they have not yet been filed. The District Court dismissed, and the Estate appealed. The 8th Circuit (1) held that whether claims arising under federal statutes survived the death of the plaintiff was to be determined by federal law, not state law, and (2) considered the ADA’s legislative history, especially its broad remedial purpose to prevent discrimination against disabled Americans, and concluded that Congress intended for claims to survive even if victims of disability discrimination did not, and the estate’s ADA claims were reinstated. (reviewed by Suzanne Dohrer)
Hargett v. Florida Atlantic University Board of Trustees, 2016 WL 6634912 (S.D. Fla., 2016): Summary judgment granted for employer in ADA case because, inter alia:
A demand for a supervisor to adopt a less overbearing management style is generally held to be unreasonable. Schwarzkopf v. Brunswick Corp., 833 F. Supp. 2d 1106, 1122-23 (D. Minn. 2011) (request for supervisor and others to not yell at plaintiff not reasonable). . . . . Rodriguez v. John Muir Med. Ctr., Civ. No. 09-00731 CW, 2010 WL 3448567, at *12 (N.D. Cal. Aug. 31, 2010) (same); but see Johnson v. Billington, 404 F. Supp. 2d 157, 167-68 (D.D.C. 2005) (holding that harassment based on disability made request for transfer reasonable). Although “specific stressors … may in some cases be legitimate targets of accommodation,” an employee cannot immunize herself from stress and criticism in general. Gonzagowski v. Widnall, 115 F.3d 744, 747-48 (10th Cir. 1997). By the same reasoning, appeals to work in a more nurturing work environment, not directed at any particular person, are not sufficiently specific. Cannice v. Norwest Bank Iowa N.A., 189 F.3d 723, 728 (8th Cir. 1999) (“obligation to make reasonable accommodation [does not] extend[ ] to providing an aggravation-free environment”); Posteraro v. RBS Citizens, N.A., 159 F. Supp. 3d 277, 290 (D.N.H. 2016) (“a request for ‘peaceful calm environment’ is too vague to be considered a request under the ADA”).
(reviewed by Suzanne Dohrer)
Compare Clear-View Technologies, Inc. v. Rasnick, 2015 WL 2251005 (N.D. Cal., 2015). The court examined the duty to preserve standard and stated that it was an objective standard to be applied not when a party reasonably foresaw litigation but rather when a reasonable party in the same factual situation would have reasonably foreseen litigation,
Gladue v. Saint Francis Medical Center, 2015 WL 1359091 (E.D. Mo. 2015) Where a defendant employer, which neither knew of, nor anticipated, a pending lawsuit, deleted emails after terminating an employee, the court found defendant had no duty to preserve.
Vollmar v. SPS Technologies, 2016 WL 7034696 (E.D. Pa., 2016):
“That a particular workplace is considered “blue collar”—whatever that is supposed to mean—does not absolve an employer of fostering a workplace hostile for female employees. The United States Court of Appeals for the Sixth Circuit observed:
We do not believe that a woman who chooses to work in the male-dominated trades relinquishes her right to be free from sexual harassment; indeed, we find this reasoning to be illogical, because it means that the more hostile the environment, and the more prevalent the sexism, the more difficult it is for a Title VII plaintiff to prove that sex-based conduct is sufficiently severe or pervasive to constitute a hostile work environment. Surely women working in the trades do not deserve less protection from the law than women working in a courthouse.
Conclusion of Membership Meeting
(Pick up your CLE certificate or send e-mail to
firstname.lastname@example.org to request it.)
2017 AZELA Calendar
All AZELA meetings and events listed are on Fridays. Jaburg & Wilk has generously let us use their conference room again in 2017 for our Membership/CLE meetings on the dates listed below:
June 14-16: State Bar Convention (La Paloma, Tucson)
June 21-14 NELA Convention (San Antonio)
(No meeting in July)
Time & Place of Monthly CLE Meetings: All meetings (except for the Annual Convention) start at 12 noon, at the Jaburg & Wilk conf. room.
CLE Credit Provided: All members in attendance will receive a CLE certificate for 1.5 hours of MCLE credit. If ethics subjects are covered, that time will be indicated on the CLE certificate.
NOTICE AND AGENDA FOR
AZELA BOARD MEETING, Friday, March 17, 2017, at 1:35 pm
(CLE meeting at noon; Board meeting begins immediately afterward)
Location: Jaburg & Wilk, P.C. Conference Room, 20th Floor, 3200 North Central Avenue in Phoenix. Free (validated) parking is available in the parking structure west of the office building. (Kraig Marton is our host.)
- Dial (712) 432-1212
- Enter the meeting ID number: 574-193-032 (followed by the # key)
- Put your phones on mute unless you are speaking.
- Calling of roll of Board members present (in person and on the phone).
- Review and approval of minutes of Board meeting on December 9, 2016. (Mishka Marshall/Suzanne Dohrer)
- Treasurer’s Report (Michelle Matheson). Financial report and discussion regarding status of IRS Form 990-N filing.
- Committee Reports
- Convention Planning Committee. (Sandy Forbes (Chair), Mishka Marshall, Michelle Matheson, Roger McKee, Tony Shaw, Suzanne Dohrer, Jeff Silence): Report on 2017 Annual Convention, impressions, and feedback. Discussion regarding same, requests to hand out promotional materials at convention, and related matters, and possible action.
- Website Committee. (Jarrett Haskovec (Chair), Mishka Marshall, Jeffrey Silence). Report on recent and planned updates to website and new password. Discussion and possible action.
- Unfinished Business
- AZELA D&O/event insurance coverage (Jarrett Haskovec). Discussion of areas for insurance coverage to be sought in any D&O or other liability coverage regarding AZELA activities, including CLE meetings and listserv defamation concerns. Discussion and possible action.
- [Tabled from prior meetings] Report on (1) status of applications for D&O insurance and general liability insurance for AZELA and any quotes received; and (2) what other affiliates do with respect to insurance.
- Request for Support from Arizona Healthy Working Families
Campaign (Yes on Prop 206 re: minimum wage increase and mandated sick leave)/Retention of Non-Profit Attorney for Advice Concerning Contributions and Endorsements. Discussion and possible action.
- [Tabled from prior meeting] Report by Roger McKee re: restrictions on contributions and endorsements for a 501(c)(6) organization
- New Business
- Composition and Work of Committees (Convention Planning, Legislative Affairs, Amicus, Website, Public Outreach, and Membership/Social). Discussion on committees, composition of same, any vacancies among chairs, and planning meetings and future activities for 2017 (e.g., social meeting/happy hour at/after AZ State Bar Convention). Discussion and possible action.
- NELA’s Request for Sponsorship for NELA’s 2017 Annual Gala Fundraiser (see attached email from Leah Hofkin dated March 2, 2017). Discussion and possible action.
- Future Agenda Items. Requests by Board Members and AZELA members for future items for consideration by the Board.
- Membership and Convention Pricing (see attached Board email exchange dated January 10, 2017). Discussion and possible action.
- Next Board Meeting Date: April 21, 2017.