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CMS caption for Superior Court

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									 1
     Mary Judge Ryan
 2   RYAN TURCHIK P.C.
     300 North Main Avenue
 3   Suite 106
     Tucson, AZ 85701
 4   Telephone: (520) 882-7070
     Fax: (520) 882-7091
 5   State Bar Computer No. 011692

 6   Attorneys for: Plaintiffs

 7
                     N THE SUPERIOR COURT OF THE STATE OF ARIZONA
 8
                                 IN AND FOR THE COUNTY OF PIMA
 9

10   Clare White, Lynn Stephen Bell, husband and
     wife;
11
                                 Plaintiffs,                         Case No: C20056487
12
     vs.
13

     Tucson Unified School District #1, a political         OPPOSITION TO DEFENDANTS’
14
     subdivision of the State of Arizona, Roger F.        MOTION FOR SUMMARY JUDGMENT
15   Pfeuffer, Superintendent of Tucson Unified
     School District, Bobby Johnson; Sabrina Cruz;
16   Alyson Nielson, Susan Wybraniec; in their                          (Judge Bernini)
     official and individual capacities
17

                                 Defendants.
18

19

20          Plaintiffs, by and through their undersigned counsel, pursuant to Rule 56 Arizona Rules

21   of Civil Procedure, file their Opposition to Defendants‟ Motion for Summary Judgment. This

22   Opposition is supported by the separate Statement of Facts filed this date and the attached
23
     Memorandum of Points and Authorities.
24
            Respectfully submitted this date ___18th____of July, 2007.
25

26

     Ryan Turchik P.C.                                1
     300 North Main Suite 106
     Tucson, Arizona 85701
     520-882-7070
 1

                                    Memorandum of Points and Authorities
 2

 3
               Summary Judgment is not appropriate in this case. Defendants assert conclusory
 4
     arguments. As outlined below, Plaintiffs raise genuine issues of material fact on all claims
 5
     defeating Defendants‟ motion. Plaintiffs‟ Statement of Facts also includes specific facts
 6
     contradicting Defendants‟ statements.
 7
               Defendants present this case as routine procedure at TUSD. In fact these defendants lied
 8
     to Ms. White, they harassed her, they conspired to, in their words, “evaluate her out”. They
 9
     intentionally subjected her to such stress that she and her husband required medical care. Ms.
10
     White took Family Medical Leave (FMLA) because of the stress.
11
               Summary judgment is appropriate only when one inference can be drawn from the
12
     undisputed facts, and those facts show that the moving party is entitled to judgment as a matter of
13
     law. Pritchard v. Arizona, 163 Ariz. 427, 433, 788 P.2d 1178, 1184 (1990). All inferences must
14
     be construed in favor of the non-moving party. Orme School v. Reeves, 166 Ariz. 301, 309-10,
15
     802 P.2d 1000, 1008-09 (1990), Mohave Elec. Coop. v. Byers, 189 Ariz. 292, 302-303 (Ariz. Ct.
16
     App. 1997), Wells Fargo Bank v. Arizona Laborers Local No. 395 Pension Trust Fund, 201 Ariz.
17
     474,482 P13, 38 P.3d 12, 20 P13 (2002).
18
               If there is even the slightest doubt or uncertainty in respect to any issue of material fact,
19
     the request for summary judgment should be denied. Overson v. Cowley, 136 Ariz. 60, 63, 664
20
     P.2d 210, 213 (App.1982). Moreover, if the state of mind or intent of one of the parties is a
21
     material issue, summary judgment is improper. Mid-Century Ins. Co. v. Duzykowski, 131 Ariz.
22
     428, 429, 641 P.2d 1272, 1273 (1982).
23
               Defendants do not meet the standard required for summary judgment on any of the
24
     claims.
25

26

     Ryan Turchik PC                                      2
     300 N. Main Ave., #106
     Tucson, AZ 85701
     (520) 882-7070
 1   Summary of Material Facts Precluding Summary Judgment

 2           From August 15 to September 3, 2004, Ms. White was in her classroom at Brichta for a

 3   total of fifteen (15) days. During that time the abuse and humiliation by the principal forced Ms.

 4   White to take Family Medical Leave from September 27, 2004 to January 3, 2005. Plaintiff then

 5   returned to the classroom for a total of seventeen (17) days during which time the abuse,

 6   humiliation and intimidation continued.

 7           On August 11, 2004 Ms. White began her teaching at Brichta. (SOF ¶ 10). She was an

 8   experienced primary teacher. (SOF ¶2, 6, 7). Immediately the principal, Ms. Cruz, lied to her and

 9   moved her from her 2nd grade class to the 5th grade. (SOF ¶10, 11, 12) The principal placed an

10   untenured, new teacher in the 2nd grade. (SOF ¶12). Cruz was in Ms. White‟s class constantly

11   from August 16 to September 3, 2004 (SOF ¶17). Cruz told Ms. White a student had withdrawn

12   from her class because of Ms. White. (SOF ¶17) This was a lie. (SOF ¶17). On September 1,

13   2004 Ms. White told Cruz, that she was suffering such stress that she needed time off. (SOF ¶

14   13). On September 3, 2004 Principal Cruz called Ms. White into a meeting. At this meeting Cruz

15   humiliated, berated and intimidated Ms. White. (SOF ¶16). Ms. White requested a transfer.

16   (SOF¶ 15). Her doctor stated she was experiencing such stress that she needed a transfer.

17   (SOF¶14). TUSD refused to hear this request.

18           Ms. White was on Family Medical Leave from September 27, 2004 to January 3, 2005. In

19   December TUSD intentionally planned actions to “evaluate out” Ms. White (SOF ¶20, 21, 22).

20   Ms. White was released by her doctor, to return to work on January 3, 2005 without restrictions.

21   (SOF ¶23). As soon as she returned to the classroom on January 3, 2005 the heightened scrutiny

22   and “evaluation out” began. Principal Cruz was in Ms. White‟s class room repeatedly. (SOF ¶28,

23   30, 32, 33). Principal Cruz issued Ms. White a letter of direction on January 4, 2004, Ms.

24   White‟s second day back after FMLA. (SOF ¶29). The principal insisted on an immediate

25   performance evaluation despite the fact that Ms. White had not been in the classroom. (SOF

26   ¶37). Her students had been told she would not be coming back. (SOF ¶26). Parents were told

     Ryan Turchik PC                                  3
     300 N. Main Ave., #106
     Tucson, AZ 85701
     (520) 882-7070
 1   she would not be coming back. (SOF ¶27). Cruz conducted an observation of Ms. White‟s

 2   classroom on January 10, 2005 (SOF ¶30), issued FOUR (4) Letters raising concerns to Ms.

 3   White on January 5, 2005, January 7, 2005, January 10, 2005, January 11, 2005 (SOF ¶31). Cruz

 4   conducted another observation of Ms. White‟s classroom on January 18, 2005 (SOF ¶32),

 5   another on January 25, 2005 (SOF ¶33) and issued FIVE (5) Letters of Direction to Ms. White

 6   on January 18, 2005 (SOF ¶34).

 7           A parent meeting was held without Ms. White to collect complaints against her. (SOF

 8   ¶39). On January 27, 2005, Ms. White was instructed to not come to school and to be at her

 9   home available during work hours . (SOF ¶42, 44, 45, 46). On March 18, 2005 she was ordered

10   to attend a fitness for duty examination even though she had been released to return to work

11   without restrictions on January 3, 2005. (SOF ¶47, 23). The TUSD doctor after his examination

12   released Ms. White to return to work and stated it was not safe for her to return to work with

13   Cruz. (SOF ¶53, 54)

14           Ms. White has suffered severe emotional distress, she suffers from hopelessness, panic

15   attacks, vision problems, sleep disorders as well as other problems as a result of the treatment she

16   received at TUSD. (SOF ¶57, 58).

17           Mr. Bell has suffered the loss of her wife‟s companionship and love as a result of the acts

18   of these defendants. (SOF ¶ 68).

19   Plaintiffs Have Met All the Requirements of ARS §12-820.01.

20           Defendants inaccurately argue that ARS§12-820.01 precludes presentation of any facts

21   relating to Plaintiffs‟ state law claims, that occurred before February 16, 2005. This statute

22   requires that a plaintiff present the public entity with a notice of claim “…within one hundred

23   eighty days after the cause of action accrues.” Plaintiffs finally submitted a notice of claim that

24   includes intentional infliction of emotional distress, tortious interference with contract, breach of

25   contract and negligent supervision. ARS §12-820.01 does not act as a bar to any predicate facts

26   that support the cause of actions. This is implicit in a recent Court of Appeals case Manu Dube v.

     Ryan Turchik PC                                   4
     300 N. Main Ave., #106
     Tucson, AZ 85701
     (520) 882-7070
 1   Peter Likins And Jane Doe Likins, 2007 Ariz. App. LEXIS 118 (Ariz. Ct. App. 2007) (discussing

 2   defamation claims and the notice of claims statute).

 3           Defendants‟ argument would essentially preclude any facts relating to a cause of action

 4   that occurred before the 180 days. Following their logic, in a wrongful death case, if a plaintiff

 5   dies on January 1 and the notice of claim is served 180 days later, all facts that occurred before

 6   the death would be precluded. That is not the meaning of the claims statute. The Plaintiff filed a

 7   timely Notice of Claim which was denied by these Defendants.

 8           ARS §12-820.01 requires that Plaintiff file a notice of claim within a specific time, it is

 9   not a limit on the predicate facts that support and form the cause of action.

10   Plaintiff’s Intentional Infliction of Emotional Distress Claim Survives

11           Defendants summarize the abuse by TUSD at ¶49 of their SOF. (Attached to Plaintiff‟s

12   SOF at Ex. # 11). Defendants do not factually controvert these statements. Defendants‟

13   argument turns on the inference drawn from the facts and/or the intent and state of mind of the

14   actors. When such issues are raised in a matter, summary judgment must then be denied. All

15   inferences must be construed in favor of the Plaintiffs and the intent and state of mind is for a

16   jury to decide.

17           The facts listed in Defendants‟ SOF ¶ 49 alone support Plaintiffs‟ claim (SOF Ex# 11).

18   Plaintiff sets forth in this motion and the Statement of Facts filed hereto additional facts that

19   support this cause of action. Defendants incorrectly assert that acts that occurred before February

20   16, 2005 are not to be considered. All these facts are relevant and admissible, as outlined above

21   the 180 day requirement in ARS§12-820.01 does not bar such consideration.

22           To recover for intentional infliction of emotional distress in Arizona, a plaintiff must

23   show that the defendant's conduct was extreme and outrageous, causing plaintiff severe

24   emotional distress; physical injury need not occur. Duke v. Cochise County, 189 Ariz. 35, 938

25   P.2d 84, 87 (Ariz. App. 1996). A defendant must either intend to cause emotional distress or

26   recklessly disregard the near certainty that such distress will result from his conduct. Johnson v.

     Ryan Turchik PC                                   5
     300 N. Main Ave., #106
     Tucson, AZ 85701
     (520) 882-7070
 1   McDonald, 197 Ariz. 155, 3 P.3d 1075, 1080 (Ariz. App. 1999).

 2           In Lucchesi v. Frederic N. Stimmell, M.D., Ltd., 149 Ariz. 76, 79 (Ariz. 1986), the case

 3   relied on by Defendants, the Arizona Supreme Court overturned a grant of summary judgment

 4   against the plaintiff on an intentional infliction of emotional distress claim. The Court stated that

 5   because the terms "outrageous conduct" and "severe emotional distress" are not readily capable

 6   of precise legal definition, a case-by-case analysis is required. Midas Muffler Shop v. Ellison, 133

 7   Ariz. 194, 197, 650 P.2d 496, 499 (App.1982). Arizona Courts consider (1) the position

 8   occupied by the defendant (comment e); see also Humphers v. First Interstate Bank, 68 Or. App.

 9   573, 684 P.2d 581 (1984) (tortious purpose element of tort of outrageous conduct found in

10   breach of physician-patient relationship); and (2) defendant's knowledge that the plaintiff is

11   peculiarly susceptible to emotional distress by reason of some physical or mental condition

12   (comment f); see also Richardson v. Pridmore, 97 Cal.App.2d 124, 217 P.2d 113 (1950)

13   (plaintiff, after suffering a miscarriage, entitled to recover for emotional distress caused by

14   outrageous and intentional conduct of landlord). Lucchesi v. Frederic N. Stimmell, M.D., Ltd.,

15   149 Ariz. 76, 79 (Ariz. 1986).

16           "The extreme and outrageous character of the conduct may arise from the actor's

17   knowledge that the other is peculiarly susceptible to emotional distress, by reason of some

18   physical or mental condition or peculiarity. The conduct may become heartless, flagrant, and

19   outrageous when the actor proceeds in the face of such knowledge, where it would not be so if he

20   did not know." RESTATEMENT (2D) OF TORTS § 46, cmt. f. Accord, Lucchesi v. Stimmell, 149

21   Ariz. 76, 79, 716 P.2d 1013 (1986). Restatement Section 46, specifically states that otherwise

22   non-tortious conduct can become outrageous and tortious if the defendants know of the plaintiff's

23   vulnerability due to emotional distress or mental or physical condition. Principal Cruz was

24   informed by Ms. White of her difficulty in dealing with the stress. (SOF ¶13), Ms. White‟s

25   doctor also informed TUSD. (SOF ¶14).

26           Defendants cite Mintz v. Bell Atlantic 183 Ariz. 550, 905 P.2d 559 (Ariz. App. 1995). The

     Ryan Turchik PC                                   6
     300 N. Main Ave., #106
     Tucson, AZ 85701
     (520) 882-7070
 1   Arizona Courts have distinguished Mintz in cases of discrimination see Darden v. Apollo Group,

 2   Inc., 2006 U.S. Dist. LEXIS 9320, 11-12 (D. Ariz. 2006), Forsman v. Chi. Title Ins. Co., 2006

 3   U.S. Dist. LEXIS 2379, 7-9 (D. Ariz. 2006), Coffin v. Safeway, 323 F. Supp. 2d 997, 1005-06 (D.

 4   Ariz. 2004)

 5           In Darden the Court held that Plaintiff had sufficiently alleged a claim for intentional

 6   infliction of emotional distress stating:
                         This case is also distinct from Mintz. Plaintiff has alleged a pattern of
 7               discrimination over the course of two years, which allegedly includes
                 monitoring Plaintiffs telephone calls, subjecting her to frequent meetings with
 8
                 her manager, reprimanding her for infractions that were overlooked when
 9               committed by white employees, differential treatment in Plaintiffs use of the
                 leave policy, and allegedly culminating in failing to promote Plaintiff on the
10               basis of her race and age.

11   Darden v. Apollo Group, Inc., 2006 U.S. Dist. LEXIS 9320, 11-12 (D. Ariz. 2006)
12           The District Court in Forsman (supra) referring to the fact that Mintz was decided ten
13   years ago and that Ford v. Revlon, 153 Ariz. 38, (Ariz., 1987) was decided 20 years ago stated
14   that “a society's sense of outrage evolves with time, and therefore, while a court's presumption
15   regarding the values of a community that existed ten or twenty years ago may be persuasive, it
16   certainly is not dispositive.” Forsman v. Chi. Title Ins. Co., 2006 U.S. Dist. LEXIS 2379, 7-9 (D.
17   Ariz. 2006),
18        Defendants also cite Cox v. Keystone Carbon Co., 861 F.2d 390 (3d Cir. 1988). In Cox, the
19   court stated outrageous conduct is found in the employment context where an employer engaged
20   in both harassment and retaliatory behavior against an employee.
21        This claim properly arises against the supervisor as well as the employer. In Coffin v.
22   Safeway, Inc., 323 F. Supp. 2d 997 (D. Ariz. 2004) the claim of intentional infliction of
23   emotional distress was upheld against the supervisor.
24           The acts of these defendants, all in positions of power over Ms. White, were outrageous.
25   Defendants knew of Ms. White‟s vulnerability. She had informed Defendant Cruz of her need for
26   leave to deal with the stress, her doctor had informed TUSD that Ms. White needed a transfer

     Ryan Turchik PC                                   7
     300 N. Main Ave., #106
     Tucson, AZ 85701
     (520) 882-7070
 1   and leave because of the stress (SOF ¶14). Ms. White had gone on FMLA for stress and

 2   depression.

 3        These Defendants engaged in both harassment and retaliatory behavior. Defendants
 4   do not dispute the facts listed they simply argue the acts are not outrageous enough. The
 5   courts disagree and instruct us that the position of the parties and the vulnerability of the
 6   plaintiff must be considered. Summary judgment for the defendants is not appropriate,
 7   genuine issues of material fact exist. This matter is for the jury to decide.

 8   Plaintiffs’ Breach of Contract Claim Survives.

 9           Ms. White is a tenured teacher. (SOF ¶2). TUSD has entered into a contract with its

10   employees. TUSD has breached that agreement by not following it and by using it in an abusive

11   manner to get rid of Ms. White. The Consensus Agreement entered into by TUSD has a

12   grievance process that Plaintiff followed. She filed three separate grievances. TUSD admits that

13   to this day they have not made a decision on any of those grievances. (SOF ¶55).

14           The Consensus Agreement also gives Plaintiff White rights based on her tenured teacher

15   status and her seniority (SOF ¶5). Defendants placed a new teacher in Ms. White‟s 2nd grade

16   assignment and moved Ms. White to a 5th grade. (SOF ¶12).

17           Defendants‟ worked to “evaluate out” Ms. White in violation of the consensus agreement.

18   (SOF ¶20, 21, 22, 25-39).

19           Defendants have failed to support summary judgment on this claim.

20   Plaintiff Has a Valid Negligent Supervision Claim

21           Negligent-supervision claims are based in the common law, premised on an employer„s

22   duty to control employees and prevent them from intentionally or negligently inflicting personal

23   injury. Humana Hosp. v. Superior Court, 154 Ariz. 396, 399, 742 P.2d 1382, 1385 (App.1987)

24   Hosp. v. Superior Court, 154 Ariz. 396, 399, 742 P.2d 1382, 1385 (App.1987), Hazine v.

25   Montgomery Elevator Co., 176 Ariz. 340, 344 (Ariz. 1993) Boswell v. Phoenix Newspapers, 152

26   Ariz. 9, 730 P.2d 186 (1986), cert. denied, 481 U.S. 1029, 107 S.Ct. 1954, 95 L.Ed.2d 527

     Ryan Turchik PC                                 8
     300 N. Main Ave., #106
     Tucson, AZ 85701
     (520) 882-7070
 1   (1987).

 2             In 1999 the Arizona Supreme Court clarified that employees continue to have common

 3   law claims against their employers.
                     Importantly, the EPA does not preclude recovery of compensatory
 4           damages under federal law within parameters authorized by Title VII of the Civil
             Rights Act of 1964, 42 U.S.C. § 2000 (1995), as amended, n3 (Title VII), nor does
 5
             it preclude wrongfully terminated employees from pursuing collateral common
 6           law tort claims related to discharge from employment, including intentional
             infliction of emotional distress, see Ford v. Revlon, Inc., 153 Ariz. 38, 734 P.2d
 7           580 (1987), negligent infliction of emotional distress, see Irvin Investors, Inc. v.
             Superior Court, 166 Ariz. 113, 800 P.2d 979 (App. 1990), interference with
 8           contractual relations, see Barrow v. Arizona Bd. of Regents, 158 Ariz. 71, 761
             P.2d 145 (App. 1988), or defamation, see Boswell, 152 Ariz. 9, 730 P.2d 186.
 9
             Nor does today's decision affect such common law causes of action as assault
10           and battery, fraud, and other protected claims. Significantly, in the case at bar,
             the legislature, having created a right unprotected at common law, retains much
11           greater liberty in defining the remedy to vindicate that right.

12   Cronin v. Sheldon, 195 Ariz. 531, 541 (1999).
13             To establish an employer‟s liability for negligent supervision, training or retention, a
14   plaintiff must prove that the employer: (1) knew or should have known that one its employees
15   was behaving in a dangerous or otherwise incompetent manner, and (2) that the employer
16   nevertheless retained or failed to adequately train or supervise the employee. Daisley v. Riggs
17   Bank. N.A., 2005 U.S. Dist. LEXIS 10232 (D.C. May 31, 2005); Mardis v. Robbins Tire &
18   Rubber Co., 669 So. 2d 885, 889 (Ala. 1995).
19             Defendants argue that Arizona does not recognize a cause of action for negligent
20   employment actions relying on Mack v. McDonnell Douglas 179 Ariz. 627, 880 P.3d 1173 (App.
21   1994). Mack has no application to Ms. White‟s case. Mack raised a claim for “negligence in
22   implementing management decisions” , the court found that no such duty existed in common
23   law, Mack was an at-will employee., Ms. White has a contract of employment.
24             The claim of negligent supervision within a contractual employment relationship is
25   recognized in common law.
26             These defendants knowingly and intentionally ignored the incompetence and abusiveness

     Ryan Turchik PC                                     9
     300 N. Main Ave., #106
     Tucson, AZ 85701
     (520) 882-7070
 1   of the principal. TUSD is bound by the knowledge acquired by, or notice given to, its agents or

 2   officers in the scope of their authority based on a conclusive presumption that the agent will

 3   communicate whatever knowledge or notice is received in necessary to the protect of the interests

 4   of the District. Fridena v. Evans, 127 Ariz. 516, 519, 622 P.2d 463 (Ariz. 1980)

 5           The Arizona Supreme Court in State v. Schallock, 189 Ariz. 250, 253 (Ariz. 1997) noted

 6   the jury verdict for Schallock and against APAAC on the negligent hiring, retention, and

 7   supervision claim in the amount of $ 908,446.50.

 8           Worker‟s Compensation is not the Plaintiff‟s exclusive remedy for intentional acts. Irvin

 9   Investors, Inc. v. Superior Court, 166 Ariz. 113, 800 P.2d 979 (App. 1999). An employee is not

10   covered under the act if the injuries were caused by an employer's or co-employee's willful

11   misconduct. A.R.S. § § 23-1022(A) and 23-906.

12           Summary judgment is not appropriate on this claim.

13   Defendants’ Actions Violate the Family Medical Leave Act Precluding Summary

14   Judgment.

15         Whether referred to as retaliation or interference, the acts of these defendants violate the

16   FMLA. Defendants do not dispute the allegations they simply incorrectly argue that these acts do

17   not violate the FMLA.

18
           Visiting a negative employment consequence on an employee who takes FMLA-protected
19
     leave gives rise to a claim for interference with the exercise of FMLA rights, a violation of 29
20
     U.S.C. § 2615(a)(1). When a Plaintiff has suffered a negative employment decision after taking
21
     FMLA leave, the courts construe plaintiff's "retaliation" claim as a claim for interference with
22
     FMLA rights, in violation of § 2615(a)(1). If the FMLA leave is "a negative factor" in the
23
     adverse employment decision it violates the FMLA. Bachelder v. America West Airlines, Inc.,
24
     259 F.3d 1112, at 1125 (9th Cir. 2001.
25
           Defendants violated the FMLA through the adverse consequences Ms. White suffered
26

     Ryan Turchik PC                                  10
     300 N. Main Ave., #106
     Tucson, AZ 85701
     (520) 882-7070
 1   upon her return from leave. The FMLA leave was clearly a negative factor in those

 2   consequences. Ms. White returned from FMLA leave on January 3, 2005. (SOF ¶24). She was

 3   released by her doctor without any restrictions. (SOF¶23). She was immediately subjected to

 4   performance evaluations, (SOF ¶28), she was placed on “home assignment” which is

 5   administrative leave with pay, (SOF ¶44), she was ordered to stay at home during work hours,

 6   (SOF ¶46), to submit daily lesson plans (SOF ¶46) and to inform TUSD if she would not be at

 7   home, (SOF ¶44). She was then ordered to undergo a fitness for duty exam. (SOF ¶47). All these

 8   actions are adverse employment actions that were at least based partly on her FMLA leave. The

 9   fitness for duty examination was premised on events that had occurred before her FMLA leave.

10   (SOF ¶51). TUSD refers to the reasons for her FMLA leave in the letter ordering her to undergo

11   the fitness for duty examination. (SOF ¶47, -52) this fact alone creates a genuine issue of fact

12   precluding summary judgment.

13         The FMLA does not authorize an employer to make its own determination of whether an

14   employee is fit to return to work following FMLA leave. Rather, an employer must rely on the

15   evaluation done by the employee's own clinician and return the employee to work without delay

16   upon receipt of medical certification. This certification may be a "simple statement of any

17   employee's ability to return to work," and need not contain the specific information about the

18   employee's condition. Albert v. Runyon, 6 F. Supp. 2d 57, 62 (D. Mass. 1998.)

19           In determining whether an action is an adverse employment action the District Court in

20   Arizona applies the Burlington Northern standard. Foraker v. Apollo Group, Inc., 2006 U.S.

21   Dist. LEXIS 85737, 4-5 (D. Ariz. 2006). The Supreme Court held in Burlington an adverse

22   employment action is one which well might have dissuaded a reasonable worker from engaging

23   in protected activity. Burlington Northern v. White, 126 S.Ct. 2405, 2415, 165 L. Ed. 2d 345

24   (2006) .This test is the same as that previously adopted by the Ninth Circuit in Ray v. Henderson,

25   217 F.3d 1234 (9th Cir. 2000). Although Burlington and Ray are Title VII cases, the court

26   applied this definition of an adverse employment action under the FMLA.

     Ryan Turchik PC                                  11
     300 N. Main Ave., #106
     Tucson, AZ 85701
     (520) 882-7070
 1           In Foraker the Court held that placing the employee on administrative leave with pay

 2   constitutes an adverse employment action. The Court stated:
             The Court concludes that a reasonable employee likely would find such an
 3           administrative leave to be "materially adverse" as required by Burlington. The
             elimination of all job responsibilities, all contact with co-workers, all experience
 4
             and education that would come from fulfilling one's job responsibilities, and all
 5           periodic performance reviews for an indefinite period of at least 12 months "well
             might have dissuaded a reasonable worker" from requesting FMLA leave.
 6           Burlington, 126 S.Ct. at 2415.

 7   Foraker v. Apollo Group, Inc., 2006 U.S. Dist. LEXIS 85737 (D. Ariz. 2006)

 8           Summary judgment must be denied on this claim.

 9   Defendants’ Fitness for Duty Examination Violates Ms. White’s 4th Amendment Rights .

10           In March 2005 TUSD ordered Ms. White to undergo a fitness for duty examination. (SOF

11   ¶47). This was after Ms. White was harassed and placed on home assignment on January 27,

12   2005.

13           Under the balancing test, the Court determines if a search is reasonable by weighing the

14   privacy interests of the individual against the government's interest in the search. Yin v.

15   California, 95 F.3d 864, 869 (9th Cir. 1996). Furthermore, "application of the balancing test

16   requires not only considering the degree of intrusiveness and the state's interests in requiring that

17   intrusion, but also 'the efficacy of this [the state's] means for meeting' its needs." Id. (quoting

18   Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 660, 132 L. Ed. 2d 564, 115 S. Ct. 2386 (1995))

19   515 U.S. 646, 660, 132 L. Ed. 2d 564, 115 S. Ct. 2386 (1995)). Norman-Bloodsaw v. Lawrence

20   Berkeley Lab., 135 F.3d 1260, 1269 (9th Cir. 1998)

21           In this case the reasons for the fitness for duty examination were pretextual. There is no

22   legitimate government interest under these facts . As outlined above and in the Statement of

23   Facts, Defendants deliberately and knowingly abused Ms. White aware of her vulnerability. Their

24   apparent goal was to evaluate her out which included creating such pressure and emotional

25   distress that their doctor would deem her unfit.

26           Ms. White was released by her doctor to return to work without any restrictions on

     Ryan Turchik PC                                    12
     300 N. Main Ave., #106
     Tucson, AZ 85701
     (520) 882-7070
 1   January 3, 2005. (SOF ¶23).

 2           There is no qualified immunity when the official knew or should have known that he was

 3   acting in violation of established law or acted in reckless disregard of whether his activities

 4   would deprive another person of their rights. Chamberlain v. Mathis, 151 Ariz. 551, 558 (Ariz.

 5   1986). Defendants knew, they were informed by letter before the examination took place and

 6   deliberately ignored the law. (SOF ¶ 52).

 7           Summary judgment is not appropriate on this claim.

 8   An Employer is Liable for Tortious Interference with an Employment Contract when

 9   His/Her Actions are Improper

10           Defendants argue they are employers and therefore cannot interfere with their own

11   contract. This is incorrect.

12           The Arizona Supreme Court has recognized that a supervisor can be liable for tortious

13   interference with an employment contract when his/her actions were improper. Spratt v.

14   Northern Auto, 958 F. Supp. 456 (D. Ariz. 1996 Advnt v. Bohannon 2007 U.S. District LEXIS

15   47160 (D. Ariz. 2007). See Wagenseller v. Scottsdale Memorial Hospital, 147 Ariz. 370, 710

16   P.2d 1025 (Ariz. 1985) (superseded by statute on other grounds); see also Bernstein v. Aetna Life

17   & Casualty, 843 F.2d 359, 367 (9th Cir. 1987) (relying on Wagenseller and rejecting the claim

18   that a supervisor can never be liable for tortious interference with an employment contract).

19   Wilcox v. Corr. Corp. of Am., 2006 U.S. Dist. LEXIS 24599, 7-8 (D. Ariz. 2006)

20           Wagenseller v. Scottsdale Memorial Hosp., 147 Ariz. 370, 386-387 (Ariz. 1985) identified

21   the claim of tortious interference with contract within the employment relationship. The Court

22   relied on the existence of such claims in common law.

23           Defendants‟ reliance on the 1983 case, Payne v. Pennzoil, 138 Ariz. 52, 672 P.2d 1322

24   (App. 1983) is misplaced. In that case the plaintiff never produced any controverting affidavits on

25   the issue.

26           Ms. White has set forth in her Statement of Facts and outlined in detail in reference to the

     Ryan Turchik PC                                  13
     300 N. Main Ave., #106
     Tucson, AZ 85701
     (520) 882-7070
 1   specific claims the facts that prove this claim. The improper conduct of these Defendant meets

 2   the requirements of this claim.

 3           Summary judgment must be denied.

 4   The Loss of Consortium is Derived from the Tort Actions Outlined Above.

 5           As outlined above defendants have intentionally inflicted emotional distress on Ms.

 6   White, have tortiously interfered with her contract and have allowed Ms. Cruz to continue to

 7   work in TUSD and harass and abuse employees. These tort actions all give rise to Mr. Bell‟s

 8   claim for loss of consortium. The acts of TUSD resulted in severe emotional distress to Ms.

 9   White and to her husband Mr. Bell. Their marriage was affected. Consortium includes "love,

10   affection, protection, support, services, companionship, care, society, and in the marital

11   relationship, sexual relations." Frank v. Supr. Court, 150 Ariz. 228, 229 n.1, 722 P.2d 955, 956

12   n.1(1986). Mr. Bell was denied his wife‟s love, affection, support, companionship, care and

13   sexual relationship. (SOF ¶ 69). The purpose of a consortium claim is to compensate for the loss

14   of these elements, which can result from psychological injury as well as physical harm. The

15   courts have held that a marriage may be damaged by emotional trauma and that physical injury is

16   not required. Barnes v. Outlaw, 192 Ariz. 283 (Ariz. 1998)

17           Defendants do not dispute the facts supporting Mr. Bell‟s claim, they argue because the

18   other claims fail the loss of consortium claim must fail. As outlined above summary judgment is

19   not appropriate for any of Plaintiffs‟ claims.

20

21   Conclusion

22           As outlined in detail above and in the accompanying Statement of Facts Defendants have

23   no basis for summary judgment on any of Plaintiffs‟ claims.

24           Plaintiff requests that this Court deny Defendants‟ motion.

25

26   Respectfully submitted this __18th__ day of July, 2007.

     Ryan Turchik PC                                  14
     300 N. Main Ave., #106
     Tucson, AZ 85701
     (520) 882-7070
 1
                                                  By    _____________________________
 2
                                                        Ryan Turchik P.C.
                                                        Mary Judge Ryan
 3

 4

 5
     Copy of the foregoing filed with the court
 6   this __18th___day of July, 2007.
 7
     Copy of the foregoing hand delivered
 8   this __18th___day of July, 2007 to:

 9   Hon. Deborah Bernini
     110 West Congress
10   Tucson, AZ 85701
11
     Ms. Denise Bainton
12   DeConcini McDonald Yetwin & Lacy P.C.
     2525 E. Broadway Blvd. #200
13   Tucson, AZ 85716-5300
     Attorney for Defendants
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     Ryan Turchik PC                               15
     300 N. Main Ave., #106
     Tucson, AZ 85701
     (520) 882-7070

								
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