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September, 2010 December 2010 SNAPSHOT A Monthly Legal Update for Governmental Agencies Erin E. Byrnes 602.792.5713 firstname.lastname@example.org SEASONS GREETINGS! As we head into the holidays, we wish you a happy and peaceful season. We hope you all Ms. Byrnes has been get the time off we’re sure you deserve. In the new year, we look forward to bringing you practicing for 11 years continuing updates, and we continue to encourage you to send us your thoughts and and has specialized in defending government comments on how to improve SNAPSHOT. entities in civil rights and employment litigation since 2002. SB1070 Update This work has included defending On November 1, 2010, the Ninth Circuit Court of Appeals heard oral argument in the United States’ Title VII, ADA, ADEA, case against Arizona and Governor Brewer challenging the viability of SB 1070. The Court gave and FLSA lawsuits, as each side 45 minutes to argue, given the significance of the case and the high level of public interest well as § 1983 lawsuits. in the matter. As of this edition of SNAPSHOT, a decision has not been issued. Meanwhile, the United States Supreme Court is set to hear argument regarding the constitutionality of Arizona’s She also has special expertise in Indian law employer sanctions law on December 8, 2010. A decision in that case, while not expected until this matters. summer, is likely to have an effect on the eventual final outcome in the SB 1070 litigation. Ms. Byrnes is admitted in Arizona, Oklahoma, federal district court, Case Law Update and eight tribal courts in Arizona. Arizona Court of Appeals Notice of Claim Thompson v. Pima County, ___ P.3d ___, 2010 notice of claim until the accident WL 4705162 (November 16, 2010) reconstructionist’s report was done because only then did they have “sufficient facts” to Lisa S. Wahlin On October 3, 2006, Taylor Thompson was support their notice of claim. The Thompsons 602.792.5707 driving on a County-maintained road in Tucson, email@example.com argued that their claim did not accrue until such when she veered off the pavement and into the time as they had “facts sufficient” to prepare dirt. Taylor overcorrected as she brought her their notice of claim. The court rejected this vehicle back into the road and then felt her Ms. Wahlin spent 16 idea, noting that “accrual” and “facts sufficient” years in government vehicle fly to the left. The car flipped, rolling are two different concepts, the Court then stated practice as a several times before hitting a cactus and coming prosecutor and civil that accrual is not dependent on a plaintiff’s to a stop. Taylor was taken to the hospital where litigator before ability to articulate the facts sufficient to compile moving to private she met with a deputy sheriff who told her and her a notice of claim pursuant to § 12-821.01(A). practice in 2007. mother that the condition of the road may have Her expertise is in contributed to the accident. The next day, In determining the date of accrual, the court wrongful death and Taylor’s father and their lawyer visited the scene examined the elements of the Thompsons’ personal injury, as well as government where they observed two large potholes. The two negligence claim. Because only causation was liability defense, measured the potholes and took note of their at issue, the only question was when the including civil rights “severity.” The Thompsons then hired an Thompsons knew the cause, source, or defense, police liability, and accident reconstructionist who, in a report instrumentality that they believed contributed to jail/corrections completed on February 7, 2007, concluded that or caused Taylor’s accident. The court pointed defense. the roadway condition caused the accident. to what the Thompsons knew before February She is admitted to 1, 2007 to determine their claim was barred. By The Thompsons served a notice of claim on the practice in Arizona, this date, the Thompsons knew the details of the U.S. District County on July 30, 2007, and filed a lawsuit on Taylor’s accident, had the police report in which Court of Arizona, and January 4, 2008. Pima County filed a motion for the Ninth Circuit Taylor stated she’d driven over two potholes, summary judgment, arguing the Thompsons’ Court of Appeals. and they had met with a deputy sheriff who told notice of claim and lawsuit were both untimely. Mrs. Thompson that he believed the potholes The trial court granted summary judgment to the had contributed to the accident. Further, due to Thompsons. the sheriff’s remarks, Mr. Thompson and the The court of appeals affirmed summary judgment family’s lawyer visited the scene and took and, in so doing, rejected the Thompsons’ measurements of the potholes. Graif Barrett & Matura, P.C. 1850 North Central Avenue contention that they could not have served their Suite 500 Phoenix, Arizona 85004 SNAPSHOT is for informational use only. The information in this newsletter should not be relied upon as specific legal advice. For legal advice on a 602.792.5719 specific issue or matter, please consult an attorney who is knowledgeable and experienced in that area. For more information regarding information provided in this issue, please contact Lisa Wahlin at 602.792.5707 or Erin Byrnes at 602.792.5713. Page 2 SNAPSHOT A Monthly Legal Update for Governmental Agencies Arizona Court of Appeals (Cont.) While the court acknowledged that ordinarily accrual a trial court finds there is no material issue of fact can it is a question of fact for the jury, in this case the appropriately dispose of such an issue on summary information the Thompsons possessed, when judgment. Where receipt of a notice of claim is genuinely considered in the aggregate, established as a matter disputed, a jury makes the factual determination. of law that they had the minimum requisite knowledge Ninth Circuit Court of Appeals for accrual on or before February 1, 2007. As such, the court held the notice of claim untimely. Fair Labor Standards Act Gordon v. City of Oakland, ___ F.3d ___, 2010 WL 4673695 Lee v. State of Arizona, ___ P.3d ___,2010 WL 4457213 (November 19, 2010) (November 9, 2010) This case challenged the City of Oakland’s police policy The court of appeals’ decision in this case is just the most requiring a police officer to repay a portion of their training recent in a string of decisions. The case arose out of a costs if he/she left the City’s employ before five years. The single-car accident that injured James Lee, the driver of the policy was the result of a collective bargaining agreement vehicle, and killed his wife. Mr. Lee filed a complaint entered into between the City’s Police Department and the against the State in August of 2005, which the State moved police union and required pro-rated repayment of the $8,000 to dismiss due to Mr. Lee’s failure to file a notice of claim. training cost by any officer leaving employment prior to five In his response to the motion, Mr. Lee submitted a copy of years of service with the City. Plaintiff Courtney Gordon left the notice of claim, along with a declaration that he had the Oakland P.D. after two years and sued to challenge the timely mailed the notice to the Attorney General’s Office. policy, after being asked to reimburse the City for $5,268.03, The trial court dismissed the case, and the court of appeals prorated training costs pursuant to the policy. Specifically, affirmed. But the Arizona Supreme Court reversed, finding Ms. Gordon alleged that the City’s policy violated the Fair that Mr. Lee’s presentation of the notice of claim and his Labor Standards Act (“FLSA”). Ms. Gordon’s claim was declaration attesting it had been mailed created a dismissed for failure to state a claim, but she was given leave rebuttable presumption that the notice had been received. to file an amended complaint. In short, the supreme court found that Mr. Lee had created Upon giving notice of her resignation, the City advised Ms. an issue of fact that precluded summary judgment. Gordon of the amount the City was entitled to recover. While The Supreme Court remanded to the trial court, but the City paid her for her time worked in her last two weeks – declined to rule on who should decide the issue of fact totaling $2,358.48 in gross pay – the City withheld paychecks regarding receipt of the notice of claim. On remand and for accrued unused vacation and compensatory time off as after discovery related to the issue, the trial court set an repayment of training costs. Ms. Gordon simply alleged a evidentiary hearing on the issue, holding that it had “broad violation of the FLSA, leaving the Court to ferret out what her discretion to resolve issues of fact pertaining to preliminary specific claim was. matters that do not go to the merits of the case.” Lee, 2010 The Ninth Circuit rejected the plaintiff’s proposed first WL 4457213, *2 (emphasis added). Following the hearing, amended complaint, noting it also failed to state a claim. the trial court found that the State never received a notice First, the Court noted that Ms. Gordon had not alleged that and therefore Mr. Lee’s claims was barred. she was paid below the federal minimum wage for any given Mr. Lee appealed and the court of appeals considered week. As such, the only way she could have a cognizable whether the trial court erred in determining it had the claim would be if she alleged the City violated the FLSA’s authority to decide whether the State had received the prohibition on “kick-back” payments. Specifically, 29 C.F.R. § notice of claim. The issue before the court was whether 535.51 provides that an employer cannot consider wages to compliance with the statutory notice of claim requirements have been paid to an employee unless they are “paid finally is a jurisdictional issue that does not go to the merits of the and unconditionally or ‘free and clear.’” Gordon, 2010 WL case and can therefore be decided by the court, or whether 4673695, *3. The regulation further provides that the FLSA is compliance is more akin to a procedural issue – such as an violated where an employer requires a kick-back of wages affirmative defense – and therefore subject to resolution by paid for the employer’s benefit. Id. a jury. Deciding the issue as a matter of first impression, the Court The Court of appeals first held that noncompliance with relied on the Seventh Circuit’s decision in Heder v. City of two notice of claim requirements is an affirmative defense, Rivers, 295 F.3d 777 (7th Cir. 2002). The Court held that so relying on City of Phoenix v. Fields, 219 Ariz. 568, 574, ¶ long as the City paid the departing officer at least the 27, 201 P.3d 529, 535 (2009). The court then Noted, statutory minimum wage, a public employer may have a generally, genuine material factual disputes involving policy requiring repayment of training costs and may affirmative defenses are matters for the jury; Only when collect such costs as any ordinary creditor would. SNAPSHOT is for informational use only. The information in this newsletter should not be relied upon as specific legal advice. For legal advice on a specific issue or matter, please consult an attorney who is knowledgeable and experienced in that area. For more information regarding information provided in this issue, please contact Lisa Wahlin at 602.792.5707 or Erin Byrnes at 602.792.5713.