Taylor v. GRAHAM CTY. CHAMBER OF COMMERCE

• Decision Date: 18 October 2001
• Docket Number: No. 2 CA-CV 01-0032.,2 CA-CV 01-0032.
• Citation: 201 Ariz. 184,33 P.3d 518
• Parties: Linda TAYLOR, a married woman, Plaintiff/Appellant, v. GRAHAM COUNTY CHAMBER OF COMMERCE, Defendant/Appellee.
• Court: Arizona Court of Appeals

33 P.3d 518

201 Ariz. 184

Linda TAYLOR, a married woman, Plaintiff/Appellant, v. GRAHAM COUNTY CHAMBER OF COMMERCE, Defendant/Appellee.

No. -0032.

Court of Appeals of Arizona, Division 2, Department A.

October 18, 2001.

Salese & McCarthy, P.C., By Armand Salese and Ned Garn, Tucson, for Plaintiff/Appellant.

DeConcini, McDonald, Yetwin & Lacy, P.C., By Lisa Anne Smith, Tucson, for Defendant/Appellee.

OPINION

PELANDER, Judge.

¶ 1 This employment termination case presents issues concerning the interplay between the Employment Protection Act (EPA), A.R.S. §§ 23-1501 through 23-1502, and the Arizona Civil Rights Act (ACRA), A. R.S. §§ 41-1401 through 41-1493.02. Plaintiff/appellant Linda Taylor appeals from the trial court's entry of summary judgment in favor of her former employer, defendant/appellee Graham County Chamber of Commerce (GCCC) on both her tort and contract claims. Because that ruling was consistent with and mandated by the EPA, we affirm.

BACKGROUND

¶ 2 Viewed in the light most favorable to Taylor, Johnson v. Hispanic Broadcasters of Tucson, Inc., 196 Ariz. 597, ¶ 2, 2 P.3d 687, ¶ 2 (App.2000), the facts pertinent to this appeal are as follows. GCCC is an Arizona non-profit corporation with fewer than fifteen employees. Sheldon Miller, GCCC's executive director, hired Taylor as an administrative assistant after approval of GCCC's board of directors. Taylor, a woman in her early fifties, worked for GCCC in that capacity from August 1998 to April 1999.

¶ 3 It is undisputed that Taylor performed well on the job initially and received a raise after successfully completing a ninety-day probationary period. During that time frame, Taylor received a handwritten note from Miller expressing his pleasure with her work and her presence in the office, and Miller treated her in a very professional manner. That changed, however, when Miller began hiring younger, attractive women in December 1998. From that point forward, Miller treated the younger women more favorably than Taylor, became increasingly rude to her and more critical of her work, reprimanded her, and prepared memoranda to document alleged deficiencies in Taylor's job performance.

¶ 4 Miller fired Taylor on April 9, 1999. Although Miller informally discussed his plan to terminate Taylor with a few GCCC board members, he did not seek formal board approval. After Taylor had been fired, the GCCC board voted to approve the termination, without giving Taylor an opportunity to speak to the board. Additional facts pertinent to the specific issues Taylor raises are discussed below.

¶ 5 In her complaint, Taylor alleged two claims, the first expressly based on the EPA: (1) a tort claim for discriminatory treatment and wrongful termination based on her age and gender, in violation of the public policy expressed in ACRA's anti-discrimination provision, A.R.S. § 41-1463(B)(1); and (2) a contract claim based on various provisions in GCCC's personnel manual which, Taylor alleged, constituted a "contract of employment" that GCCC breached when it terminated her. GCCC moved for summary judgment on both claims, and the trial court ultimately granted that motion without comment. This appeal followed.

DISCUSSION

I. Wrongful Termination Claim

¶ 6 Taylor first contends the trial court erred in granting summary judgment on her wrongful termination tort claim. We review de novo that ruling and related issues of statutory interpretation. Johnson, 196 Ariz. 597, ¶ 2, 2 P.3d 687, ¶ 2; Bothell v. Two Point Acres, Inc., 192 Ariz. 313, ¶ 8, 965 P.2d 47, ¶ 8 (App.1998).

¶ 7 Because GCCC had fewer than fifteen employees, Taylor has no actionable, direct claim under ACRA. See A.R.S. §§ 41-1461(1), (2), 41-1463(B)(1). Therefore, she bases her wrongful termination claim solely on the EPA and ACRA's public policy, which generally prohibits employers subject to ACRA from discharging or otherwise discriminating against individuals, inter alia, because of their sex or age. § 41-1463(B)(1); see Spratt v. Northern Automotive Corp., 958 F.Supp. 456, 462 (D.Ariz.1996)

; Hawkins v. State Dep't of Econ. Sec., 183 Ariz. 100, 104, 900 P.2d 1236, 1240 (App.1995). As pertinent to Taylor's wrongful termination claim, the EPA provides in part:

3. An employee has a claim against an employer for termination of employment only if one or more of the following circumstances have occurred:

....

(b) The employer has terminated the employment relationship of an employee in violation of a statute of this state. If the statute provides a remedy to an employee for a violation of the statute, the remedies provided to an employee for a violation of the statute are the exclusive remedies for the violation of the statute or the public policy set forth in or arising out of the statute, including the following:

(i) The civil rights act [ACRA] prescribed in title 41, chapter 9.

....

All definitions and restrictions contained in the statute also apply to any civil action based on a violation of the public policy arising out of the statute. If the statute does not provide a remedy to an employee for the violation of the statute, the employee shall have the right to bring a tort claim for wrongful termination in violation of the public policy set forth in the statute.

A.R.S. § 23-1501(3)(b).

¶ 8 Unlike ACRA, the EPA applies to all employers, not only those with fifteen or more employees, and addresses claims for "termination of employment" but not other wrongful employment acts or omissions. Compare § 23-1501(3) with § 41-1463(B). Taylor contends § 23-1501(3)(b) authorizes and supports her claim against GCCC for wrongful termination in violation of ACRA's public policy, even though she could not bring a direct ACRA action against GCCC. Her multiple arguments for that proposition are unpersuasive.

¶ 9 Based on the second and next to the last sentences of subparagraph (3)(b), Taylor concedes that if another "source" statute such as ACRA provides a remedy to an employee/claimant, "an action under that other statute is the exclusive remedy for a violation of the statute—or its public policy," and "the terms of the other statute control in such a non-EPA action." According to Taylor, however, the "residual provision" in the last sentence of subparagraph (3)(b) created a new EPA cause of action, whereby an employee who "otherwise lack[s] a remedy" under another "source" statute "can bring a wrongful termination action under EPA based on the violation of the public policy reflected by [that] other statute." Taylor further asserts that in that scenario, when the other statute affords no remedy to a particular employee/claimant, any "definitions and restrictions contained in the [other] statute" do not apply to that claimant's action under the EPA. § 23-1501(3)(b).

¶ 10 "In interpreting statutes, we attempt to ascertain and give effect to the legislature's intent." Johnson, 196 Ariz. 597, ¶ 4, 2 P.3d 687, ¶ 4. "We focus first on the statutory wording and, if it is ambiguous or inconclusive, we consider the statute's `context, subject matter, historical background, effects, consequences, spirit, and purpose."' Bothell, 192 Ariz. 313, ¶ 17, 965 P.2d 47, ¶ 17, quoting Mail Boxes, etc. v. Industrial Comm'n, 181 Ariz. 119, 122, 888 P.2d 777, 780 (1995)

.

¶ 11 The plain, unambiguous language of the statute defeats Taylor's argument. Viewed as a whole and applied as written, § 23-1501(3)(b) neither authorizes nor supports Taylor's wrongful termination claim. The EPA "limit[s] plaintiffs to three avenues of relief for claims asserted against employers on the theory of wrongful discharge," one of which is when "the discharge violated a statute of this state." Cronin v. Sheldon, 195 Ariz. 531, ¶ 17, 991 P.2d 231, ¶ 17 (1999). The only "source" statute underlying Taylor's wrongful termination claim is ACRA. Because GCCC did not "terminate[] the employment relationship of [Taylor] in violation of [that] statute," § 23-1501(3)(b), Taylor's reliance on ACRA as the sole basis for her EPA wrongful discharge claim is misplaced.

¶ 12 But even if the first sentence of § 23-1501(3)(b) does not preclude that claim, the balance of the subparagraph does. The so-called "residual provision" in the last sentence of subparagraph (3)(b), on which Taylor relies, authorizes "a tort claim for wrongful termination in violation of the public policy set forth in [another] statute" only if that other statute "does not provide a remedy to an employee for the violation of the [other] statute." § 23-1501(3)(b). ACRA, however, does provide a remedy for its violation. In other words, if an employer violates ACRA, that statute provides a remedy to an employee for the violation. As noted above, GCCC is not subject to and, therefore, did not violate ACRA. The EPA does not provide a back door method of suing GCCC in tort for wrongful termination in violation of ACRA or its public policy.¹

¶ 13 Moreover, § 23-1501(3)(b) provides that "[a]ll definitions and restrictions contained in the [other] statute also apply to any civil action based on a violation of the public policy arising out of the statute." (Emphasis added.) Taylor's wrongful termination claim is a "civil action." Thus, ACRA's definitions of "[e]mployee" and "[e]mployer" in A.R.S. § 41-1461(1) and (2) apply to this action. Accordingly, we agree with GCCC that the EPA bars Taylor's wrongful termination claim "based on the public policy of the ACRA for the same reason that her claim under the ACRA itself is barred."

¶ 14 That ACRA affords Taylor herself no remedy because of the number of employees GCCC had does not alter that conclusion. In support of her argument that the EPA authorizes her wrongful termination claim because she is personally without recourse under ACRA, Taylor points to the phrase "to an employee" in the second and last sentences of subparagraph (3)(b). But she overlooks language in those same sentences that requires a "violation" of the other "source" statute. As noted...