Opinion
1 CA-CV 22-0581
05-30-2023
ANNA SCOTT, Plaintiff/Appellant, v. STATE OF ARIZONA, Defendant/Appellee.
The Law Offices of David R. Jordan PC, Gallup, New Mexico By David R. Jordan Counsel for Plaintiff/Appellant Arizona Attorney General's Office, Phoenix By N. Todd McKay Counsel for Defendant/Appellee
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CV2018-011007 The Honorable Joan M. Sinclair, Judge
The Law Offices of David R. Jordan PC, Gallup, New Mexico By David R. Jordan Counsel for Plaintiff/Appellant
Arizona Attorney General's Office, Phoenix By N. Todd McKay Counsel for Defendant/Appellee
Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in which Judge Angela K. Paton and Judge D. Steven Williams joined.
MEMORANDUM DECISION
Jennifer M. Perkins Judge
¶1 Anna Scott appeals the superior court's grant of summary judgment in favor of the State. Because Scott has shown no error, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 We view the facts in the light most favorable to Scott, drawing all justifiable inferences in her favor. Modular Mining Sys., Inc. v. Jigsaw Techs., Inc., 221 Ariz. 515, 517, ¶ 2 (App. 2009).
¶3 Scott worked as a customer service representative for the Department of Transportation ("Department") until March 2018, when she was fired. During her employment, the Department suspended Scott without pay on four occasions: a 16-hour suspension in May 2000 for making false statements on attendance reports; a 40-hour suspension in October 2005 (amended January 2006) for discourteous treatment, sharing confidential information, and using state property for non-work related purposes; a 24-hour suspension in January 2010 for improperly modifying her personal driving record; and a 40-hour suspension in January 2017 for negative workplace behavior.
¶4 In May 2017, Scott's supervisor, Cynthia Bigthumb, and the regional manager, Debra Reyff, filed a discipline report and requested Scott's dismissal. The Department denied their request and instead placed Scott on a 60-day performance improvement plan ("PIP"), subject to the following term: "If you successfully complete this PIP and your performance becomes unacceptable at any time within the next 12 months, appropriate disciplinary action will be taken, up to and including dismissal from state service." Employee relations officer Daniel Worthington reported that Scott successfully completed the PIP from June to August 2017 but "resorted back into old habits" shortly thereafter.
¶5 In December 2017, Scott's coworker, Rhonda Lynch, told Scott that Bigthumb was authorizing Lynch to conduct improper transactions for Bigthumb's family members. Scott immediately filed an incident report with the Department's Office of Inspector General Professional Standards Unit ("OIG"). She alleged that Bigthumb's transactions were done "without acquiring sufficient documentation from the customer as per stated in MVD Policy and Procedures and ADOT MVD Code of Standards."
¶6 In January 2018, Reyff sent a compilation of negative incident reports concerning Scott's behavior to Worthington. She emphasized that Scott had already been on suspension and a PIP in the past year and asked for the appropriate reprimand. Worthington responded that, given the "numerous chances" the Department gave Scott to improve, it "may be appropriate to move toward separation." Reyff and Bigthumb then resubmitted their dismissal request, which the Department approved. Scott received official notice of her termination on March 12, 2018.
¶7 As the Human Resources Department was processing Scott's termination, the OIG had opened a formal investigation into Bigthumb's transactions. The OIG's final report revealed that Bigthumb violated the Department's policies. Bigthumb received official notice of her termination on December 28, 2018, effective January 3, 2019.
¶8 Scott filed a complaint against the Department in August 2018, claiming wrongful termination under the Arizona Employment Protection Act ("AEPA"). She filed an amended complaint against the State in March 2019, alleging that she was fired in retaliation for filing the report against Bigthumb.
¶9 The State moved to dismiss Scott's complaint, arguing Scott failed to allege any facts sufficient to support a retaliatory termination claim under the AEPA. Specifically, the State argued that Scott's incident report alleged only that Bigthumb violated the Department's policies, not the Arizona Constitution or state statutes. See A.R.S. § 23-1501(A)(3)(c)(ii) (an employee has a claim for wrongful termination under the AEPA only if the employee is terminated in retaliation for her disclosure that the employer "has violated, is violating or will violate the Constitution of Arizona or the statutes of this state"). In its August 2019 minute entry, the court found that Scott stated a claim for relief and denied the State's motion to dismiss. But after the parties failed to file a joint scheduling report, the court dismissed Scott's claims without prejudice in April 2021.
¶10 The following month, Scott moved for a new trial, which the court construed as a motion to reinstate the case. It then ordered the parties to file a joint scheduling report by July. Following receipt of the parties' report, the court set a dispositive motions deadline and date for trial setting conference.
¶11 The State moved for summary judgment, arguing that Scott failed to establish a prima facie case of retaliation under the AEPA because her report did not disclose a belief of a violation of Arizona law. The State also argued the Department offered a legitimate, non-retaliatory reason for Scott's termination-her negative workplace behavior and poor work performance. Finally, the State argued that Scott failed to create a genuine issue of material fact that the State's reason for termination was pretextual.
¶12 The superior court concluded that although Scott's incident report does not refer to any violation of Arizona law, "[t]here is a public policy interest in protecting state employees against retaliation in reporting violations of departmental policies related to the improper processing of official documents." It found that Scott's reference to the Department's policy, procedures, and code of standards was sufficient to establish a prima facie case under the AEPA. The court also found there was a temporal proximity of 42 days between Scott's report and her termination, thereby establishing causality.
¶13 The court then found that the State's proffered reason for Scott's termination-her history of poor work-related behavior-was a legitimate, non-retaliatory reason for termination. Finally, the court concluded that Scott failed to show that the State's reason was pretextual.
¶14 The court granted the State's motion for summary judgment and dismissed Scott's case the following month. Scott timely appealed, and we have jurisdiction. A.R.S. §§ 12-120.21(A)(1), 12-2101(A)(1).
DISCUSSION
¶15 We review the superior court's grant of summary judgment de novo. Jackson v. Eagle KMC L.L.C., 245 Ariz. 544, 545, ¶ 7 (2019). "The court shall grant summary judgment if the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to a judgment as a matter of law." Ariz. R. Civ. P. 56(a). In opposing a motion for summary judgment, the non-moving party must "set forth specific facts showing a genuine issue for trial." Ariz. R. Civ. P. 56(e). An "opposing party may not rely merely on allegations or denials of its own pleading." Id.
¶16 To prove a claim under the AEPA, Scott must demonstrate that the Department terminated her employment in retaliation for "[t]he disclosure by [Scott] in a reasonable manner that [Scott had] information or a reasonable belief that the employer, or an employee of the employer, has violated, is violating or will violate . . . the statutes of this state." A.R.S. § 23-1501(A)(3)(c)(ii). This requires proof of three elements: (1) Scott had information or a reasonable belief that Bigthumb was violating Arizona law; (2) Scott disclosed the alleged violations to the Department or one of its investigators; and (3) Scott was terminated due to the first and second elements. See Rev. Ariz. Jury Instr. ("RAJI") (Civil) Employment Law 7 (5th ed. 2017).
¶17 Once Scott established her prima facie case, the burden shifted to the State to demonstrate a legitimate reason for her termination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973); see also Czarny v. Hyatt Residential Mktg. Corp., 1 CA-CV 16-0577, 2018 WL 1190051, at *2, ¶¶ 12-13 (Ariz. App. Mar. 8, 2018) (mem. decision) (extending the McDonnell Douglas burden shifting framework to AEPA claims). After the State provided a legitimate reason for her termination, the burden shifted back to Scott to establish that the State's reason was pretextual. Czarny, 1 CA-CV 16-0577, at *2, ¶ 12.
¶18 The only issue Scott raises on appeal is whether the court erred in ruling that there was no genuine issue of material fact as to whether the State's reasons for termination were pretextual. The State contends that Scott failed to establish her prima facie case, asserting the court erred in ruling that she met her first burden; Scott did not submit a reply. We conclude that Scott failed to show the State's reason for termination was pretextual and affirm on that basis.
¶19 Scott argues that pretext can be established if a retaliatory reason more likely motivated the employer. But the record contains no evidence that her report had any impact on the Department's termination decision. In fact, the record shows the Department was grateful to Scott for bringing Bigthumb's wrongful transactions to light. Following Scott's report, the OIG opened a formal investigation-resulting in a 120-page report with 60 exhibits-and ultimately terminated Bigthumb. One investigator told Scott: "[t]his really turned into a huge investigation and I am glad you brought it forward."
¶20 Scott had a history of unpaid suspensions due to improper workplace behavior. Reyff and Bigthumb requested Scott's termination in May 2017, long before Scott filed her report against Bigthumb in December. And when placed on the PIP, Scott had been warned that she may be dismissed if her performance became unacceptable.
¶21 Scott's remaining arguments concern her disputes with the State's characterization of her workplace behavior. She argues the State depicts her as a bad employee, despite having what she describes as "very positive meetings" throughout her PIP. But the record shows that despite successfully completing her PIP, several human resource officers agreed Scott failed to improve. Scott's evidence of pretext must be "specific" and "substantial" to create a triable issue. See Wallis v. J.R. Simplot Co., 26 F.3d 885, 890 (9th Cir. 1994). Scott's disagreement with the State's allegations is not sufficient to create a genuine issue of material fact. Because no genuine issue of material fact exists, summary judgment in the State's favor is proper. See Orme Sch. v. Reeves, 166 Ariz. 301, 305 (1990); Ariz. R. Civ. P. 56(e).
CONCLUSION
¶22 We affirm the court's award of summary judgment in favor of the State.