Higgins v. Assmann Electronics, Inc.

• Decision Date: 13 December 2007
• Docket Number: No. 1 CA-CV 06-0332.,No. 1 CA-CV 06-0266.,1 CA-CV 06-0266.,1 CA-CV 06-0332.
• Citation: 173 P.3d 453,217 Ariz. 289
• Parties: Kristina HIGGINS, a single woman, Plaintiff/Appellee, v. ASSMANN ELECTRONICS, INC., an Arizona corporation, Defendant/Appellant. Kristina Higgins, a single woman, Plaintiff/Appellee, v. Assmann Electronics, Inc., an Arizona corporation; Hans Ulrich Meyer, Defendants/Appellants.
• Court: Arizona Court of Appeals

173 P.3d 453

217 Ariz. 289

Kristina HIGGINS, a single woman, Plaintiff/Appellee, v. ASSMANN ELECTRONICS, INC., an Arizona corporation, Defendant/Appellant.

Kristina Higgins, a single woman, Plaintiff/Appellee, v. Assmann Electronics, Inc., an Arizona corporation; Hans Ulrich Meyer, Defendants/Appellants.

No. 1 CA-CV 06-0266.

No. 1 CA-CV 06-0332.

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

December 13, 2007.

Law Offices of Sidney T. Marable, PLC By Sidney T. Marable, Jerome L. Froimson, Phoenix, Attorneys for Plaintiff-Appellee.

Gammage & Burnham, PLLC By Richard K. Mahrle, Michella Abner, Phoenix, Attorneys for Defendant-Appellant Assmann.

Francis G. Fanning, Tempe, Attorney for Defendant-Appellant Meyer.

OPINION

THOMPSON, Judge.

¶ 1 Assmann Electronics, Inc. (Assmann) and Hans Ulrich Meyer (Meyer) appeal from a jury verdict in favor of Kristina Higgins (Higgins) on her claims for assault against Meyer and wrongful termination against both Assmann and Meyer. For the reasons stated below, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 Meyer was vice president and chief executive officer of Assmann, a German company. Meyer was Assmann's highest ranking officer in the United States. He was also Higgins's supervisor. Meyer and Higgins had a consensual sexual relationship that had terminated by the time of the relevant events. On Labor Day, September 1, 2003, Meyer attempted to contact Higgins at her home. Getting no response, he went to her apartment and knocked on the door. No one answered, so he entered uninvited and discovered Higgins and her male companion dressed only in bath towels. Meyer became enraged and attacked Higgins's companion. He also assaulted Higgins. Meyer threw Higgins out the front door where her towel came off and she hit a wall. Meyer then punched Higgins. During this assault, Meyer told Higgins she was fired.

¶ 3 Higgins called the police. Meyer attempted to call Higgins after the assault, but the police answered her phone and spoke with Meyer. The following day Higgins's company cell phone was disconnected. Higgins did not return to work, but on September 3rd she went to the office with a police escort to collect her personal belongings.

¶ 4 On September 4th, Duane Skinner (Skinner), Assmann's chief financial officer and attorney, wrote Higgins asking to meet with her. On September 8th, Higgins called Skinner asking for her last paycheck and her passport. Skinner returned these items accompanied with a letter that did not state that it was her last paycheck. Skinner ultimately wrote Higgins on September 26th, informing her that her employment was terminated and that her work visa had therefore expired.

¶ 5 Higgins filed a complaint against Meyer and Assmann alleging several claims.¹ The parties went to trial on an assault claim against Meyer and wrongful termination claim against Meyer and Assmann. The jury returned a verdict in favor of Higgins on both counts, awarding her $300,000 for the assault and $300,000 against Meyer and $400,000 against Assmann on the wrongful termination claim.

¶ 6 Meyer and Assmann filed motions for new trial regarding the wrongful termination verdict. The trial court ruled that the liability for wrongful termination was joint and several, and vacated the $400,000 verdict against Assmann, holding the defendants jointly and severally liable for $300,000. Both defendants timely appealed.

DISCUSSION

¶ 7 Both defendants challenge the judgment on Higgins's wrongful termination claim. Meyer asserts that as a supervisor and not Higgins's employer, he cannot be personally liable for wrongful termination as a matter of law, and he objects to the admission of evidence of a prior altercation with co-workers. Assmann argues that the jury instruction for wrongful termination was erroneous because it included physical and emotional damages that were not caused by the wrongful termination, that the jury's award was excessive, and that it cannot be vicariously liable because Meyer's conduct was outside the course and scope of his employment. We review questions of law de novo. See Brink Elec. Constr. Co. v. Ariz. Dep't of Revenue, 184 Ariz. 354, 358, 909 P.2d 421, 425 (App.1995).

A. Supervisor's Liability for Wrongful Termination

¶ 8 Under the Arizona Employment Protection Act, A.R.S. § 23-1501(3)(c)(Supp.2006) (AEPA), an employee may bring a claim for wrongful termination if the employer terminated the employment relationship in violation of public policy. The term "employer" is not defined in the statute. Meyer argues that he was not Higgins's employer, so he is not personally liable for wrongful termination.²

¶ 9 Our wrongful termination caselaw does not discuss a supervisor's personal liability. See Cronin v. Sheldon, 195 Ariz. 531, 534, ¶ 9, 991 P.2d 231, 234 (1999); Wagenseller v. Scottsdale Mem. Hosp., 147 Ariz. 370, 388, 710 P.2d 1025, 1043 (1985). Cases addressing intentional interference with contract claims have held that when an individual supervisor/defendant was acting within the scope of authority as a management representative, he or she was, in effect, the employer, and could not interfere with his or her own contract. See Barrow v. Ariz. Bd. of Regents, 158 Ariz. 71, 78, 761 P.2d 145, 152 (App.1988); Lindsey v. Dempsey, 153 Ariz. 230, 233, 735 P.2d 840, 843 (App.1987). Higgins did not make a claim for intentional interference with contract. Contrary to Meyer's assertion, these cases do not hold that an employee cannot bring a wrongful termination claim against the individual supervisor who wrongfully terminated her.

¶ 10 Meyer relies on cases denying wrongful termination claims when plaintiffs were found to be independent contractors. See Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 321-22, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992) (holding that employees, not independent contractors, qualify for pension benefits); Shah v. Deaconess Hosp., 355 F.3d 496, 499 (6th Cir.2004). Meyer argues that these cases imply that a wrongful termination claim cannot be brought against a supervisor/employee. We do not find these cases analogous.

¶ 11 Meyer also cites federal cases that have interpreted other definitions of "employer" and that preclude federal claims against individual supervisors. See Miller v. Maxwell's Int'l, Inc., 991 F.2d 583, 584 (9th Cir.1993); Ransom v. Ariz. Bd. of Regents, 983 F.Supp. 895, 904 (D.Ariz.1997). The Arizona Civil Rights Act (ACRA) defines employer as a person who has fifteen or more employees and any agent of that person. A.R.S. § 41-1461(4)(a) (2004). The Ninth Circuit addressed a similar definition in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5 (1988), and the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621 to 634 (1988). See Miller, 991 F.2d at 587. In Miller, the plaintiff argued that her supervisors were individually liable for sex and age discrimination. Id. at 584. The supervisors/defendants argued that they were not personally liable and only the corporate employer could be found liable under Title VII and the ADEA. Id. at 587.

¶ 12 The definition of employer in Title VII and ADEA includes any agent of the employer. 42 U.S.C. § 2000e(b); 29 U.S.C. § 630(b). In Miller, the Ninth Circuit Court of Appeals noted that other jurisdictions have "reasoned that supervisory personnel and other agents of the employer are themselves employers for purposes of liability." 991 F.2d at 587 (citations omitted). However, the court held that it was bound by the decision in Padway v. Palches, 665 F.2d 965, 968 (9th Cir.1982), which held that individual defendants cannot be liable for damages under Title VII. Id. Citing Padway, the court reasoned that because Congress limited liability for small businesses under Title VII and ADEA, "it is inconceivable that Congress intended to allow civil liability to run against individual employees." Id. The court found that the language in ADEA was consistent with Title VII and, therefore, refused to extend liability to individual supervisors under ADEA. Id. at 587-88; see also Ransom, 983 F.Supp. at 904 (applying the rationale of Miller to preclude individual liability under ACRA). This case, however, does not involve ACRA. Moreover, AEPA does not contain limiting provisions similar to those in ACRA, ADEA or Title VII which are intended to protect small businesses. We also distinguish Miller and Ransom on that basis.

¶ 13 The jury found that Meyer committed the acts constituting the wrongful termination. Thus, both Meyer and Assmann were liable for Meyer's acts in violation of AEPA. See Logan v. Forever Living Prods. Int'l, Inc., 203 Ariz. 191, 52 P.3d 760 (2002) (action for wrongful termination under AEPA brought against corporation and its agents held viable where agents attempted to extort property from plaintiffs). Generally, any person is charged with responsibility for his own torts. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 46, at 324 (5th ed.1984). Corporate officers are liable to those harmed by such officers' tortious conduct on behalf of the company they ostensibly serve. Albers v. Edelson Tech. Partners L.P., 201 Ariz. 47, 52, ¶ 19, 31 P.3d 821, 826 (App.2001). The public policy of this state as vindicated in Wagenseller supports a determination that Meyer could be held liable in a case where the company has invested its supervisor with day-to-day control over the company, including the right to fire, and the supervisor has in fact exercised such control to harm another. We affirm the judgment against Meyer for wrongful termination.

B. Wrongful Termination Damages Instruction

¶ 14 Assmann argues that the wrongful termination damages instruction was erroneous because there was no evidence that Higgins suffered any physical harm or emotional distress as a result of the wrongful termination. Higgins argues that the instruction was a correct statement of the law and that the jury properly considered...