Bennett v. Pima Cnty. Cmty. Coll. Dist.

• Decision Date: 28 October 2016
• Docket Number: No. 2 CA-CV 2016-0019,2 CA-CV 2016-0019
• Parties: TERRI BENNETT, A SINGLE WOMAN, Plaintiff/Appellant, v. PIMA COUNTY COMMUNITY COLLEGE DISTRICT, A POLITICAL SUBDIVISION OF THE STATE OF ARIZONA; BOARD OF GOVERNORS OF PIMA COUNTY COMMUNITY COLLEGE DISTRICT, Defendants/Appellees.
• Court: Arizona Court of Appeals

TERRI BENNETT, A SINGLE WOMAN, Plaintiff/Appellant, v. PIMA COUNTY COMMUNITY COLLEGE DISTRICT,

A POLITICAL SUBDIVISION OF THE STATE OF ARIZONA; BOARD OF GOVERNORS

OF PIMA COUNTY COMMUNITY COLLEGE DISTRICT, Defendants/Appellees.

No. 2 CA-CV 2016-0019

ARIZONA COURT OF APPEALS DIVISION TWO

October 28, 2016

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

NOT FOR PUBLICATION

See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f).

Appeal from the Superior Court in Pima County

No. C20133885

The Honorable Richard S. Fields, Judge

AFFIRMED

COUNSEL

Munger Chadwick, P.L.C., Tucson

By John F. Munger, Andrew H. Barbour, and Adriane J. Hofmeyr

Counsel for Plaintiff/Appellant

Jones, Skelton & Hochuli, P.L.C., Phoenix

By Georgia A. Staton, Eileen Dennis GilBride, and

Elizabeth A. Gilbert

Counsel for Defendants/Appellees

MEMORANDUM DECISION

Presiding Judge Howard authored the decision of the Court, in which Judge Espinosa and Judge Staring concurred.

HOWARD, Presiding Judge:

¶1 Terri Bennett appeals from the judgment entered against her in this action after the trial court granted partial summary judgment and judgment as a matter of law (JMOL) on some claims and denied declaratory and injunctive relief, and a jury rendered verdicts as to others. She contends the court erred by dismissing or granting judgment on certain claims, making evidentiary rulings, and giving certain jury instructions. She also asserts that one of the jury's verdicts was not supported by the evidence. Because we find no error, we affirm.

Factual and Procedural Background

¶2 In reviewing a grant of summary judgment or JMOL, we review the facts in the light most favorable to the non-moving party. Rice v. Brakel, 233 Ariz. 140, ¶ 2, 310 P.2d 16, 18 (App. 2013); see also Warner v. Sw. Desert Images, LLC, 218 Ariz. 121, ¶ 25, 180 P.3d 986, 996 (App. 2008). But in reviewing a jury's verdict, we view the facts in the light most favorable to upholding the verdict. S Dev. Co. v. Pima Capital Mgmt. Co., 201 Ariz. 10, ¶ 3, 31 P.3d 123, 126 (App. 2001). When this distinction is material to our view of the facts for a particular issue, we will so state.

¶3 Bennett began nursing classes at Pima Community College (PCC) in 2013. Shortly after beginning the program, she began complaining to PCC instructors about "disruptions" in the classroom, specifically the use of Spanish in class by a particularstudent, M.E. Other students would occasionally speak Spanish in class as well, but Bennett testified at trial that they did so only in response to M.E.

¶4 On April 4, Bennett again complained to her instructor, Elizabeth Coleman, and a meeting was arranged with the Director of Nursing at PCC, David Kutzler, about M.E.'s use of Spanish in classes. When Bennett and Kutzler met to discuss the issue, the conversation became confrontational, and the meeting ended.

¶5 In an attempt to address concerns that arose during that meeting, Bennett met with and otherwise communicated with various members of the PCC staff on several different occasions to discuss her complaint that Spanish was being spoken in class and other, more general complaints. Witnesses at trial described Bennett as contentious and argumentative during these meetings.¹

¶6 PCC suspended Bennett on April 22. She was given written notice of her suspension and escorted off campus by police. In that notice, Ann Parker, the Vice President of Student Development at the Desert Vista Campus of PCC, advised Bennett she had been suspended, pending a meeting with Parker, because Bennett presented "an unreasonable risk of danger to [her]self or others or . . . [her] presence on [PCC] property pose[d] a significant risk of disruption of educational activities."

¶7 On April 24, Bennett met with Parker to discuss the suspension. In a memo titled "Review Decision" sent to Bennett after the meeting, Parker stated that Bennett had "disrupt[ed] class by arguing with the instructor over a test answer," "complain[ed] to several staff members about students speaking Spanish in and out ofthe classroom," and "display[ed] intimidating behavior to students, staff and faculty." Parker noted that this behavior violated two sections of the Student Code of Conduct, one that prohibited students from disrupting any educational activity, and another that prohibited them from engaging in harassing conduct. Confirming the initial suspension, Parker further suspended Bennett until the end of 2013.

¶8 In July, Bennett sued PCC, alleging claims for violations of article XXVIII of the Arizona Constitution and violations of her state and federal right to free speech, "unlawful suspension," defamation, false light, "discrimination," "retaliation," "harassment," breach of contract, breach of the duty of good faith and fair dealing, intentional infliction of emotional distress, and declaratory and injunctive relief.² Bennett filed two partial motions for summary judgment and PCC filed a motion for summary judgment. In March, the trial court denied PCC's motion for summary judgment on Bennett's claim under article XXVIII, as well as those based on the violation of her right to free speech, retaliation, and breach of contract and duty of good faith. The court denied Bennett's motions for partial summary judgment on her article XXVIII claims and on her unlawful suspension claims related to A.R.S. § 13-2911. The court granted summary judgment in favor of PCC on the discrimination claim, noted the harassment claim had been withdrawn, and limited the claims of defamation and false light to a specific set of statements. This ruling was followed by various motions, including eight motions in limine, and a nine-day jury trial.

¶9 During trial, the court granted JMOL in favor of PCC on Bennett's claim of unlawful suspension, and what remained of her claims of defamation and false light. The jury found in favor of PCC on Bennett's contract claims,³ and rendered an advisory verdict for PCC on the article XXVIII and free speech claims. Bennett filed amotion for new trial, which the court denied. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 12-2101(A)(1), and 12-2102.

Article XXVIII

¶10 Bennett first argues the trial court erred by granting PCC's motion for summary judgment on her discrimination claim based on article XXVIII, § 3(B) of the Arizona Constitution which she claims "expressly outlaws discrimination against English speakers." She claims PCC discriminated against her "when it refused to instruct Spanish Speakers in her class to discuss substantive matters in English" and when it "evicted her from campus as soon as she complained about Spanish." PCC responds that summary judgment was proper because the record was "devoid of evidence that PCC did anything to [Bennett] 'because she used or attempted to use English.'"

¶11 Rule 56(a), Ariz. R. Civ. P., states that a trial 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 judgment as a matter of law." "Where no evidence exists to support an essential element of a claim, summary judgment is appropriate." Rice, 233 Ariz. 140, ¶ 6, 310 P.2d at 19. "We view the facts and inferences to be drawn from those facts in the light most favorable to the" non-moving party, and our review of summary judgment is de novo. Id. ¶¶ 2, 6. "We will affirm the trial court's grant of summary judgment if it is correct for any reason." Grubb v. Do It Best Corp., 230 Ariz. 1, ¶ 3, 279 P.3d 626, 627 (App. 2012).

¶12 "When interpreting the scope and meaning of a constitutional provision, we are guided by fundamental principles of constitutional construction. Our primary purpose is to effectuate the intent of those who framed the provision and, in the case of an amendment, the intent of the electorate that adopted it." Jett v. City of Tucson, 180 Ariz. 115, 119, 882 P.2d 426, 430 (1994). The first step in our analysis is to turn to the plain language of the provision. Id. When the language of the provision is "clear and unambiguous, we generally must follow the text of the provision as written." Id. "No extrinsic matter" may be considered "to support a construction that would vary" from the plain language. Id.¶13 Section 3(B) states, "A person shall not be discriminated against or penalized in any way because the person uses or attempts to use English in public or private communication." Arizona appellate courts have not previously construed this version of article XXVIII.⁴ Because the electorate did not define "discriminated" or "penalized," we presume it intended these words to be given their normal, accepted meaning. See McGuire v. Lee, 239 Ariz. 384, ¶ 10, 372 P.3d 328, 331 (App. 2016) (plain language is "best indicator of . . . the intent of the electorate in amending the constitution" and should be employed "unless the statute provides a specific definition for its terms"). Black's Law Dictionary defines "discrimination," as is pertinent here, both as "[t]he effect of a law or established practice that confers privileges on a certain class or that denies privileges to a certain class," and as "[d]ifferential treatment; esp., a failure to treat all persons equally when no reasonable distinction can be found between those favored and those not favored." Discrimination, Black's Law Dictionary (10th ed. 2014). "Penalize" means "[t]o impose a penalty; to punish" or "[t]o treat unfairly." Penalize, Black's Law Dictionary (10th ed. 2014).

¶14 Bennett did not provide any evidence in response to PCC's motion for summary judgment that PCC had discriminated against her by treating her differently or penalizing her because she spoke English. We reject Bennett's unsupported assertion that the constitution requires that PCC must compel all students to speak only English in class. See Ariz. Const. art. XXVIII, §§ 1, 3(B), 4. Moreover, Bennett was not suspended because she...