                               IN THE
            ARIZONA COURT OF APPEALS
                            DIVISION ONE


 DEBORAH HARPER; TRACEY EVERITT; MICHELLE PARKER; JANA
      LEINEWEBER; and JANET SABOL, Plaintiffs/Appellants,

                                   v.

               STATE OF ARIZONA, Defendant/Appellee.

                         No. 1 CA-CV 15-0519
                           FILED 12-27-2016


          Appeal from the Superior Court in Maricopa County
                         No. CV2015-002273
             The Honorable Robert H. Oberbillig, Judge

                             AFFIRMED


                              COUNSEL

Arizona Attorney General’s Office, Phoenix
By Ann Hobart
Counsel for Defendant/Appellee


Broening Oberg Woods & Wilson PC, Phoenix
By Terrence P. Woods and Brian Holohan
Counsel for Plaintiffs/Appellants
                         HARPER, et al. v. STATE
                          Opinion of the Court



                                OPINION

Presiding Judge Andrew W. Gould delivered the opinion of the Court, in
which Judge Peter B. Swann and Judge Patricia A. Orozco joined.


G O U L D, Judge:

¶1             Deborah Harper, Tracey Everitt, Michelle Parker, Jana
Leineweber, and Janet Sabol (“Plaintiffs”) appeal the superior court’s order
dismissing their wrongful termination claims against the State. Because
Plaintiffs failed to state a cognizable claim for wrongful termination, we
affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2            Plaintiffs were employees of Child Protective Services
(“CPS”), a department of the Division of Children, Youth and Families of
the Arizona Department of Economic Security. At the time of their
termination, Plaintiffs held the following postions: Harper was employed
as a program administrator, Everitt was a program manager, Parker served
as policy program manager, and Leineweber and Sabol worked as assistant
program managers.

¶3           In 2011, CPS had a backlog of “unassigned” reports involving
child abuse and neglect. CPS assembled a team that included Plaintiffs to
review and dispose of the backlog.

¶4           CPS directed Plaintiffs to develop a protocol to dispose of
unassigned reports. This protocol included designating some of the reports
as “NI,” or not investigated. Once a report was designated “NI,” it was
considered resolved. According to Plaintiffs, they were directed to use the
“NI” designation by their superiors.

¶5            When the public learned that CPS was using the “NI”
designation to dispose of child abuse/neglect reports, there was a firestorm
of bad press and negative public backlash. The Department of Public Safety
investigated the use of the “NI” designation and issued a report. Then, in
April 2014, Plaintiffs were terminated by the then-Director of the Division
of Child Safety and Family.




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                           HARPER, et al. v. STATE
                            Opinion of the Court

¶6             Plaintiffs filed this complaint for wrongful termination. The
State filed a motion to dismiss the complaint, arguing that Plaintiffs had
failed to allege a viable wrongful termination claim. The superior court
granted the State’s motion, and Plaintiffs appealed.

                                DISCUSSION

I.     Standard of Review

¶7             Plaintiffs claim the superior court erroneously dismissed their
complaint under Arizona Rule of Civil Procedure 12(b)(6). We review the
legal issues raised de novo and take as true all well-pleaded facts alleged in
the complaint. Galati v. America West Airlines, Inc., 205 Ariz. 290, 292, ¶ 4
(App. 2003); see also Logan v. Forever Living Products Int’l, Inc., 203 Ariz. 191,
192, ¶ 2 (2002) (stating that 12(b)(6) motion to dismiss attacks the legal
sufficiency of the complaint).

II.    Plaintiff’s Statutory Claims

¶8            In Arizona, employment relationships are “at-will.” At-will
employment means that the employer-employee relationship can be
terminated “at the pleasure of either party, whether with or without cause.”
Wagenseller v. Scottsdale Mem’l Hosp., 147 Ariz. 370, 381 (1985). However, an
at-will employee may not to be fired for “bad cause.“ Id., at 381. Our
supreme court has defined bad cause as a termination violating “public
policy” as “articulated by constitutional, statutory, or decisional law.” Id.

¶9             Approximately ten years after Wagenseller was decided, the
legislature passed the Employment Protection Act (“EPA”). Arizona
Revised Statutes (“A.R.S.”) § 23-1501 (West 2016). The EPA provides that
employment relationships are severable “at will” unless specifically
contracted otherwise, and sets out the limited circumstances in which an
employee can bring a wrongful termination action in Arizona. A.R.S. § 23-
1501(A); Galati, 205 Ariz. at 292, ¶ 5; see also Johnson v. Hispanic Broadcasters
of Tucson, Inc., 196 Ariz. 597, 599, ¶ 4 (App. 2000) (stating that the
legislature’s intent in enacting the EPA was to limit the circumstances in
which a terminated employee can sue).

¶10            Like Wagenseller, the EPA recognizes a claim for wrongful
termination when “the discharge violate[s] a statute of this state” or violates
public policy as “set forth in or arising out of [a] statute.” See A.R.S. § 23-
1501(A)(3)(b); see also Taylor v. Graham Cty. Chamber of Commerce, 201 Ariz.
184, 188, ¶ 11 (App. 2001). Under the EPA, it is not necessary that an actual
violation of a statute occur; a discharge for refusing to violate a statute or


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                          HARPER, et al. v. STATE
                           Opinion of the Court

the relevant public policy underlying a statute may also give rise to a
wrongful termination claim. Logan, 203 Ariz. at 194, ¶ 15; see also Galati, 205
Ariz. at 292, ¶ 5 (stating that wrongful termination claim exists when
employee is discharged “for refusing to violate Arizona law or for reporting
violations of Arizona law”).

¶11            Plaintiffs argue they were discharged in violation of public
policy as set forth in A.R.S. § 41-742(B)(4) (West 2016). This statute lists one
of the general “principles” underlying the Arizona State Personnel System:
public employees who are adequately performing their jobs should be
retained. Based on this statute, Plaintiffs assert it was against public policy
to terminate them because they were competently performing their jobs.

¶12           At bottom, Plaintiffs argue the protections afforded to
“covered” employees should be extended to them. Under Arizona’s State
Personnel System, an employer must establish specific grounds, or “cause,”
to terminate a “covered” employee. See A.R.S. §§ 41-745, -773, -781, -782.
This protection applies to all “covered” employees who are competently
performing their job duties.

¶13           However, Plaintiffs are not covered employees. Plaintiffs
never alleged, nor have they argued in their briefs, they were covered
employees. To the contrary, Plaintiffs were employed as supervisors, and
therefore designated as “uncovered” employees under the State Personnel
System.    See A.R.S. § 41-742(A)(2)(b) (stating that supervisors are
“uncovered” employees); A.R.S. § 41-741(19) (defining supervisory
employees).1    Thus, as uncovered employees, Plaintiffs are at-will
employees, and do not enjoy the protections provided to covered
employees under the State Personnel System.

¶14           A.R.S. § 41-742(B)(4) does not confer any additional rights on
Plaintiffs. Indeed, A.R.S. § 41-742(G) expressly states that the provisions
contained in “this article . . . do not confer any rights in excess of, or in
addition to, those previously authorized to any state employee.” See also




1       The State Personnel System’s definitions concerning covered and
uncovered employees apply to Plaintiffs’ wrongful termination claims.
Taylor, 201 Ariz. at 188, ¶ 13. The EPA directs that “[a]ll definitions and
restrictions contained in the [underlying] statute also apply to any civil
action based on a violation of the public policy arising out of the statute.”
A.R.S. § 23-1501(A)(3)(b).


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                          HARPER, et al. v. STATE
                           Opinion of the Court

A.R.S. § 41-742(H) (stating that “[t]his article does not create or confer any
contractual employment right for any employee”).

¶15            Accordingly, there was no violation of A.R.S. § 41-742 or its
public policy in Plaintiffs’ discharges, and Plaintiffs have no claim under
the EPA based on § 41-742. See Taylor, 201 Ariz. at 188-89, ¶¶ 14-16 (holding
that because plaintiff had no actionable, direct claim under the Arizona
Civil Rights Act, she could not base her claim for wrongful termination on
a violation of the Act).

¶16           Plaintiffs next claim their terminations violated the public
policy set forth in A.R.S. § 38-443 (West 2016). Under this statute, it is a
class 2 misdemeanor for a person holding a position of public trust or
employment to knowingly fail to perform a duty “which is required of him
by law.” Id. Here, Plaintiffs assert that because they were directed by their
superiors to use the “NI” designation, if they had disobeyed that direction,
they would have been guilty of violating A.R.S. § 38-443.

¶17            Plaintiffs’ argument fails. No law required CPS, Plaintiffs or
their supervisors to designate abuse and neglect reports as “NI.” As a
result, Plaintiffs would not have violated A.R.S. § 38-443 by refusing to
apply the “NI” designation, because the supervisor’s orders to use the “NI”
designation did not have the force of law.

III.   Plaintiffs’ Common Law Claims

¶18            Having found no statutory basis for their wrongful
termination claims, Plaintiffs urge us to look to the common law.
Specifically, Plaintiffs argue that we should recognize, as a matter of public
policy, that state at-will employees may not be terminated by a public
official for the purpose of providing the official political cover for a policy
or decision that results in bad press or negative public opinion.

¶19            To be clear, Plaintiffs are asking this court to set aside the
restrictions of the EPA and create, out of whole cloth, a new common law
right protecting at-will employees against such politically expedient
discharges. Plaintiffs cite no common law authority providing such a
protection to employees. Indeed, we have found no case in Arizona or any
other state providing such protection. Cf. Mack v McDonnell Douglas
Helicopter Co., 179 Ariz. 627, 630 (App. 1994) (refusing to find “an employer
has a non-contractual duty of fairness to an employee and that a breach of
such duty is actionable negligence”).




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                           HARPER, et al. v. STATE
                            Opinion of the Court

¶20            To pave the way for the creation of this new right, Plaintiffs
urge us to set aside the EPA as unconstitutional. Thus, Plaintiffs contend
that to the extent the EPA constrains us from taking this course, it violates
the separation of powers and the anti-abrogation clause. See Ariz. Const.,
art. 3 (three branches of government; separation of powers); Cronin v.
Sheldon, 195 Ariz. 531, 537-38, ¶¶ 26-32 (1999) (stating courts have the
constitutional authority to “develop, modify, or expand the common law”
as well as “participate in the development of public policy”); see also Ariz.
Const., art. 18, § 6 (anti-abrogation clause); Lerner v. DMB Realty, LLC, 234
Ariz. 397, 406, ¶ 36 (App. 2014) (stating that anti-abrogation clause prevents
abrogation of all common law actions for negligence, intentional torts, strict
liability, defamation, and other tort actions that trace their origins to the
common law at the time the Arizona Constitution was adopted).

¶21            We do not, however, reach the question of whether the
restrictions in the EPA are constitutional because even if the EPA had never
been passed, there is no cognizable basis for Plaintiffs’ novel claim. As we
have stated before, “[w]e address the constitutionality of a statute only
when circumstances require us to do so,” and we adhere to that principle
in this case. Lerner, 234 Ariz. at 401, ¶ 11; see Cronin, 195 Ariz. at 542, ¶ 54
(“[A] person who is not injured by an unconstitutional provision of a statute
may not raise an objection as to its constitutionality.”); see also United States
v. Locke, 471 U.S. 84, 92 (1985) (stating it is a “cardinal principle” that a court
will not pass on the constitutionality of a statute where “some other
nonconstitutional ground [is] fairly available by which the constitutional
question can be avoided”); Ashwander v. TVA, 297 U.S. 288, 345-48 (1936)
(Brandeis, J., concurring) (stating a court will not anticipate a question of
constitutional law in advance of the necessity of deciding it).




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                       HARPER, et al. v. STATE
                        Opinion of the Court

                            CONCLUSION

¶22         The superior court’s order dismissing Plaintiffs’ complaint is
affirmed.




                        AMY M. WOOD • Clerk of the Court
                        FILED: AA




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