Arizona Civil Rights Division, Dept. of Law v. Olson

• Decision Date: 28 January 1982
• Docket Number: CA-CIV,No. 1,1
• Citation: 132 Ariz. 20,643 P.2d 723
• Parties: , 32 Fair Empl.Prac.Cas. (BNA) 186, 30 Empl. Prac. Dec. P 33,244 ARIZONA CIVIL RIGHTS DIVISION, DEPARTMENT OF LAW, State of Arizona, Plaintiff-Appellant, v. John OLSON, Brad Stewart and Bruce Evans, in their capacity as the Yavapai County Board of Supervisors, Robert Scott, former Sheriff of Yavapai County, H."Curley" Moore, Sheriff of Yavapai County, and Yavapai County, a County of the State of Arizona, Defendants-Appellees. 4697.
• Court: Arizona Court of Appeals

Page 723

643 P.2d 723

132 Ariz. 20, 32 Fair Empl.Prac.Cas. (BNA) 186,

30 Empl. Prac. Dec. P 33,244

ARIZONA CIVIL RIGHTS DIVISION, DEPARTMENT OF LAW, State of Arizona, Plaintiff-Appellant, v. John OLSON, Brad Stewart and Bruce Evans, in their capacity as the Yavapai County Board of Supervisors, Robert Scott, former Sheriff of Yavapai County, H."Curley" Moore, Sheriff of Yavapai County, and Yavapai County, a County of the State of Arizona, Defendants-Appellees.

No. 1 CA-CIV 4697.

Court of Appeals of Arizona, Division 1, Department A.

Jan. 28, 1982.

Rehearing Denied March 12, 1982.

Review Denied April 6, 1982.

Robert K. Corbin, Atty. Gen. by Arthur G. Garcia, former Executive Director, Philip A. Austin, Executive Director, Arizona Civil Rights Div., Therese L. Martin, Charles M. Santaguida, Asst. Attys. Gen., Phoenix, for plaintiff-appellant

Stan A. Lehman, Prescott, for defendants-appellees.

OPINION

CONTRERAS, Judge.

At issue is whether the trial court erred in dismissing appellant's employment discrimination complaint for failure of the underlying charge to state a claim. We find that the charge does state a claim under the Arizona Civil Rights Act, A.R.S. §§ 41-1401 et seq., and therefore reverse.

FACTUAL BACKGROUND

On April 29, 1976, Gertrude Alexander, an employee of the Yavapai County Sheriff's Office, filed a charge with the Arizona Civil Rights Division (Division) stating, in pertinent part:

I feel that I have been discriminated against because of my sex (female) in the terms and conditions of my employment in that I am not paid the same amount as male employees who perform the same type of work that I do.

The Division determined that it had jurisdiction to process the charge, notified appellees of the charge, and conducted an investigation.

On April 15, 1977, the Division issued a document designated Findings of Fact which contained a determination of reasonable cause to believe discriminatory practices had occurred. A copy of this document was mailed to appellees, together with a proposed conciliation agreement. Appellees did not respond and, on April 28, 1977, the Division filed its complaint in superior court.

On February 22, 1978, the Division mailed appellees a copy of a proposed consent decree. This was not accepted by appellees. However, on June 20, 1978, appellees mailed a counterproposal in the form of an amended consent decree to the Division. The counterproposal was rejected by the Division and it then filed a Notice of Failure of Negotiations.

On July 26, 1978, appellees filed a Motion to Dismiss and/or Motion to Strike. After oral argument, the trial court dismissed the complaint by minute entry dated September 18, 1978. The Division filed a Motion for New Trial/Motion for Rehearing, on which oral argument was again heard. On December 18, 1978, the trial court entered final judgment dismissing the action with prejudice. This appeal follows.

GROUNDS FOR DISMISSAL

Appellees moved to dismiss the complaint on four grounds, which, along with appellees' supporting contentions, will first be profiled and then discussed in order.

1. The complaint fails to state a claim upon which relief can be granted in that the subject matter of the complaint does not come within the purview of the Civil Rights Act.

Appellees contended that the complaint alleged no more than that the position of matron/clerk which the charging party held was "misclassified" within the county employment system, and that the complaint alleged no discrimination under the Act.

2. The action is barred by the express language contained in A.R.S. § 41-1481.

Appellees contended that the statute immunizing the state from suit likewise immunized political subdivisions of the state, including Yavapai County and its Sheriff's Office.

3. A.R.S. § 41-1401 et seq., commonly known as the Arizona Civil Rights Act of 1974, is in violation of the Fourteenth Amendment of the Constitution of the United States, denying Defendants' right to due process of law.

Appellees contended that they were denied an impartial administrative hearing before the Division, and that the Division acted as both prosecutor and judge in determining that there was reasonable cause to believe that discrimination had occurred.

4. The complaint should be dismissed for failure of the Civil Rights Division to negotiate in good faith.

Appellees contended that the actions of the Division between the time of its determination of reasonable cause and the time the complaint was filed did not constitute good faith negotiation.

The trial court, in dismissing the complaint, accepted appellees' first ground and did not consider the other three. The minute entry of September 18, 1978, provides, in pertinent part:

Gertrude Alexander's complaint is that the County had "misclassified" the position of Matron/Clerk and that its duties and prerequisites placed it in a different Range and Step. This is NOT a complaint of sex discrimination as envisioned by the Arizona Statutes Sec. 41-1461 et seq. Plaintiff filed the within action pursuant to those statutes and plaintiff has no other basis for proceedings.

IT IS THEREFORE ORDERED granting defendant's Motion to Dismiss and dismissing the within cause with prejudice.

Because of the foregoing decision, the other grounds raised by defendant are not ruled upon.

The judgment and order of December 18, 1978, specified no grounds for dismissal, and presumably adopted the same reasoning as set forth in the foregoing quoted minute entry.

SCOPE OF REVIEW

The Division's response to the motion to dismiss was supplemented with eleven exhibits, including copies of the charge, the Division's findings of fact, proposed conciliation and consent decrees, newspaper articles, and affidavits. The trial court, therefore, and pursuant to Rule 12(b), Arizona Rules of Civil Procedure, properly treated the motion as one for summary judgment.

Regardless of who may have the burden of proof at trial, a party moving for summary judgment has the burden of establishing that no genuine issue of material fact exists and that, based on the undisputed facts, the movant is entitled to judgment as a matter of law. Chanay v. Chittenden, 115 Ariz. 32, 563 P.2d 287 (1977); City of Phoenix v. Space Data Corp., 111 Ariz. 528, 534 P.2d 428 (1975).

If there is the slightest doubt as to whether there is an issue of fact in ruling on a motion for summary judgment, that doubt should be resolved in favor of a trial on the merits. Jabczenski v. Southern Pacific Memorial Hospitals, Inc., 119 Ariz. 15, 579 P.2d 53 (App.1978). The party opposing summary judgment has the duty to bring to the attention of the trial court those portions of the record or controverting affidavits which will support his position that a disputed issue of material fact exists. Bible v. First National Bank of Rawlins, 21 Ariz.App. 54, 515 P.2d 351 (1973).

ALEXANDER'S COMPLAINT (CHARGE)

In order to better understand rulings by the trial court and this court, it is necessary to clarify terminology used. The document by which an individual complains in writing to the Division of an alleged unlawful employment practice (also termed a discrimination practice) is termed a "Charge," and is referred to as such in this decision. A.R.S. §§ 41-1471 and -1481. The term "complaint" refers to the formal complaint which the Division filed in superior court against appellees. We note that some confusion has been generated because the printed form adopted by the Division for filing a "Charge of Discrimination" is labeled a "Complaint of Discrimination."

Appellees' motion to dismiss was granted on the stated ground that Gertrude Alexander's charge ¹ did not allege sex discrimination under the Arizona Civil Rights Act. Consequently, the trial court reasoned, the Division had no jurisdiction to investigate her charge or to file a complaint against appellees. We disagree. ²

That the trial court did not believe that Alexander's charge alleged sex discrimination is evident from the language of the minute entry dismissing the Division's complaint, and from the following comment during oral argument on the motion to dismiss:

THE COURT: ... the Complaint (Charge) was not discrimination based on sex. It was discrimination based on pay. She didn't say that, "They aren't hiring women. I was turned down because I was a woman."

She says, "I'm not getting paid as much as men who do the same thing."

And the next thing, we have the County in on not hiring women, which is a non-sequitur if I have ever heard one.

The trial court apparently conceded that discrimination in hiring, on the basis of sex, would be "sex discrimination" and not just "hiring discrimination," but found that discrimination in pay, on the basis of sex, was not "sex discrimination" but just "pay discrimination." We fail to see the logic of that distinction, and, more pointedly, we find that such an employment practice is prohibited by statute. A.R.S. § 41-1463(B) provides:

§ 41-1463 ...

B. It is an unlawful employment practice for an employer:

1. To fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment because of such individual's race, color, religion, sex or national origin.

2. To limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex or national origin.

(emphasis supplied). Alexander's charge with the Division clearly alleged discrimination "with respect to ... compensation ... because of ... sex." Sex was alleged as the basis or criterion for discrimination, and compensation as the medium or instrument of discrimination. Alexander's charge therefore alleged an unlawful employment practice...