                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                                 TOBY HARRIS,
                                Plaintiff/Appellant,

                                         v.

              GODADDY.COM, INC., an Arizona corporation,
                        Defendant/Appellee.

                              No. 1 CA-CV 14-0151
                                FILED 1-22-2015

            Appeal from the Superior Court in Maricopa County
                           No. CV2010-016149
                The Honorable Randall H. Warner, Judge

                                   AFFIRMED


                                    COUNSEL

Toby Allen Harris, Phoenix
Plaintiff/Appellant in Propria Persona

BurnsBarton LLP, Phoenix
By David T. Barton, C. Christine Burns, Benjamin J. Naylor
Counsel for Defendant/Appellee
                      HARRIS v. GODADDY.COM
                        Decision of the Court



                      MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Patricia A. Orozco joined.


B R O W N, Judge:

¶1         Toby Harris, a former employee of defendant GoDaddy.Com,
Inc. (“GoDaddy”), appeals the superior court’s decision granting
GoDaddy’s motion for summary judgment on Harris’s claims related to his
employment termination. Finding no error, we affirm.

                             BACKGROUND

¶2           GoDaddy hired Harris in November 2009 as a sales and
support representative. In February 2010, GoDaddy dismissed Harris for
security breaches that violated GoDaddy’s policies. One of the breaches
occurred when Harris transmitted to his personal e-mail account a “CRM
screenshot” depicting confidential information regarding Harris’s sales
over a ten-day period.

¶3             Harris and other plaintiffs filed a putative class action in
superior court, alleging (in one federal law claim and various Arizona law
claims) GoDaddy failed to compensate them for overtime work and pay
bonuses, and as to Harris, wrongfully terminated him. GoDaddy removed
the case to federal district court. Although plaintiffs amended the
complaint twice, the district court subsequently dismissed all claims except
Harris’s claims under Arizona law alleging a violation of the Minimum
Wage Act and retaliatory discharge. See Ariz. Rev. Stat. (“A.R.S.”) §§ 23-
362 to -365, -1501. Because the federal law claim had been finally resolved,
the district court then remanded the case back to superior court.

¶4          Following remand, GoDaddy successfully moved for
summary judgment, and Harris filed a post-judgment motion to alter and
modify the judgment, which the superior court denied. Harris timely
appealed.

                              DISCUSSION

¶5           Summary judgment is appropriate when “there is no genuine
dispute as to any material fact and the moving party is entitled to a


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                         Decision of the Court

judgment as a matter of law.” Ariz. R. Civ. P. 56(a). A plaintiff bears the
burden of showing available, competent evidence that would justify a trial
once the defendant establishes it is entitled to summary judgment. Ulibarri
v. Gerstenberger, 178 Ariz. 151, 156, 871 P.2d 698, 703 (App. 1993). We review
de novo the grant of a motion for summary judgment. Tierra Ranchos
Homeowners Ass’n v. Kitchukov, 216 Ariz. 195, 199, ¶ 15, 165 P.3d 173, 177
(App. 2007).

       A.     Minimum Wage Act Claim

¶6            Arizona’s Minimum Wage Act (“Act”) requires employers to
pay employees a certain hourly wage. A.R.S. § 23-363. The Act also
requires employers to maintain payroll records reflecting daily hours
worked and wages paid to all employees for a period of four years. A.R.S.
§ 23-364(D). Employers must permit an employee to inspect and copy his
or her records. Id.

¶7            Employers are prohibited from discharging an employee who
asserts a claim or right under the Act. A.R.S. § 23-364(B). If an employer
discharges an employee within ninety days of the employee asserting a
claim under the Act, a presumption arises that the discharge was
retaliatory. Id. The employer may rebut the presumption with clear and
convincing evidence that the discharge occurred for other permissible
reasons. Id.

¶8           Harris argues the CRM screenshot is a payroll record, and he
was terminated for possessing it, in violation of the Act. Thus, Harris
contends the superior court should have presumed GoDaddy retaliated
against him because GoDaddy dismissed him six days after he asserted his
rights under the Act. According to Harris, GoDaddy’s reason for
terminating his employment was pretextual.

¶9            The record, however, fails to support Harris’s arguments.
Harris failed to provide any evidence that GoDaddy prohibited him from
inspecting and copying any of his payroll records. In fact, Harris did not
make this allegation in the original complaint, the first amended complaint
or the second amended complaint.1 Thus, on these undisputed facts,
summary judgment in GoDaddy’s favor was proper.



1       Harris first raised this allegation in his statement of controverting
facts in response to GoDaddy’s motion for summary judgment.



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                          Decision of the Court

¶10             Moreover, GoDaddy rebutted the presumption of retaliation
by clear and convincing evidence that Harris was terminated not for
inspecting or copying the CRM screenshot, but for—in part—his “taking
[it] out of the company[]” in violation of GoDaddy’s security policy. Harris
conceded that this was the reason given for his termination. And although
Harris contends the “security breach” basis for his dismissal was a
“pretext,” he never asserted that the security breaches were an improper
basis for his termination. Nor did Harris offer any evidence to support his
assertion that he “was fired for having a copy of the [document].” See State
v. Mecham, 173 Ariz. 474, 478, 844 P.2d 641, 645 (App. 1992) (noting a party
cannot solely rely “on unsupported contentions that a dispute exists to
create a factual issue that would defeat summary judgment”).

¶11            Harris also argues GoDaddy presented no evidence of the
written policy that he was terminated for violating. This argument is
unavailing. First, Harris points to no authority prohibiting employers from
discharging employees for violating unwritten policies. Second, GoDaddy
submitted evidence showing Harris was aware of, and agreed to adhere to,
written security policies. GoDaddy also provided evidence that it notified
Harris in writing of his violations of those policies. Harris admitted that he
“was required to follow strict security protocols detailed in GoDaddy’s
‘Vault’ articles, and he signed several polices [sic] agreeing not to disclose
any confidential information during or after his employment.” For these
reasons, the superior court did not err in granting GoDaddy’s motion for
summary judgment on Harris’s claim under the Act.2



2      Without citing to the record or any supporting authority, Harris
makes general assertions regarding “breach of confidentiality” and “a bulk
of” whistleblower cases. Harris also refers to a news article that was
released after the superior court’s ruling. Whatever arguments Harris
attempts to raise along these lines, we do not address them. An appellant
must present significant arguments, set forth his or her position on the
issues raised, and include citations to relevant authorities, statutes, and
portions of the record. See ARCAP 13(a)(6), (b)(1). The failure to do so may
constitute, as it does here, an abandonment and a waiver of that issue. State
v. Moody, 208 Ariz. 424, 452 n.9, ¶ 101, 94 P.3d 1119, 1147 n.9 (2004); see also
Cullum v. Cullum, 215 Ariz. 352, 355 n.5, ¶ 14, 160 P.3d 231, 234 n.5 (App.
2007) (holding that appellate courts “will not consider argument posited
without authority”).




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                        HARRIS v. GODADDY.COM
                          Decision of the Court

       B.      Employment Protection Act Claim

¶12           Arizona’s Employment Protection Act (“AEPA”) provides a
discharged employee with a cause of action against his or her employer for
terminating the employee in retaliation for the employee’s reasonable
disclosure of the employer’s violation of state law. A.R.S. § 23-
1501(A)(3)(c); see also Galati v. Am. W. Airlines, Inc., 205 Ariz. 290, 292, ¶ 5,
69 P.3d 1011, 1013 (App. 2003). Harris argues he sufficiently pled
GoDaddy’s purported violation of state law in his response to the motion
for summary judgment. We disagree.

¶13            As an initial matter, the disclosure of a possible violation of
state law must occur before the employee’s discharge in order for the
discharge to be retaliatory. See A.R.S. § 23-1501(A)(3)(c)(ii).3 Here, nothing
in the record indicates Harris notified GoDaddy of a possible violation of
state law prior to his termination. Instead, Harris’s controverting statement
of facts reflects he disclosed a potential violation of “Federal Law Statutes
for discretionary bonuses.” AEPA is expressly limited to disclosures of
state law violations; a purported violation of federal law is insufficient.
A.R.S. § 23-1501(A)(3)(c)(i-x); see Galati, 205 Ariz. at 294, ¶ 15, 69 P.3d at 1015
(“After a review of the clear and unequivocal language of A.R.S. § 23–1501


3      This statutory provision provides, in relevant part:

       An employee has a claim against an employer for termination
       of employment . . . if [t]he employer has terminated the
       employment relationship of an employee in retaliation for . . .
       [t]he disclosure by the employee in a reasonable manner that
       the employee has information or a reasonable belief that the
       employer, or an employee of the employer, has violated, is
       violating or will violate the Constitution of Arizona or the
       statutes of this state to either the employer or a representative
       of the employer who the employee reasonably believes is in a
       managerial or supervisory position and has the authority to
       investigate the information provided by the employee and to
       take action to prevent further violations of the Constitution of
       Arizona or statutes of this state or an employee of a public
       body or political subdivision of this state or any agency of a
       public body or political subdivision.

A.R.S. § 23-1501(A)(3)(c)(ii).




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                       HARRIS v. GODADDY.COM
                         Decision of the Court

. . . , we do not find that a statutory public policy exception exists for
whistleblowing associated with federal regulations.”).       Finally, the
evidence submitted establishes that Harris was discharged for one reason
that was non-retaliatory—his violations of GoDaddy’s security policies.
Thus, the superior court properly ruled in favor of GoDaddy on Harris’s
AEPA claim.

       C.     Prior Agreement Regarding “No Disciplinary Action”

¶14           Finally, Harris contends summary judgment in GoDaddy’s
favor was improper because the parties had agreed before Harris was
terminated that Harris would not be subject to discipline. In support of this
argument, Harris relies on a copy of an e-mail he attached to his
controverting statement of facts and his post-judgment motions,4 the latter
being when Harris admits he “then raised the issue of the pre-existing
contract[.]” The referenced e-mail was sent from GoDaddy’s employee
relations manager to Harris and stated that an impending meeting between
the two “is not an investigative meeting, where there could be possible
disciplinary action, [but] is regarding policy interpretation[.]” Harris
contends the trial court erred in “not applying the terms of the agreement[.]”
Harris also suggests that GoDaddy breached the “agreement” because he
“was terminated [as a] direct result of attending the meeting in which both
parties previously agreed to ‘no disciplinary action.’”

¶15             This argument fails. Harris did not include a breach of
contract claim in the second amended complaint (or in the previous
versions thereof), and claims made for the first time in a motion for new
trial are generally waived. See Conant v. Whitney, 190 Ariz. 290, 293, 947
P.2d 864, 867 (App. 1997) (concluding that appellant waived issue by first
raising it in a motion for new trial).

¶16           Even assuming that Harris timely raised this claim, the record
fails to show GoDaddy breached the agreement by disciplining him
because he attended the meeting at issue. The termination letter establishes
that Harris presented a copy of the CRM screenshot at the meeting, and, at
a subsequent meeting, Harris admitted e-mailing the screenshot to himself
at an external e-mail address. Further investigation by GoDaddy revealed
two more instances in which Harris improperly e-mailed items outside the
company in violation of various GoDaddy policies, and Harris was


4     One of the motions was filed after the court granted GoDaddy’s
motion for summary judgment but before entry of final judgment.



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                       HARRIS v. GODADDY.COM
                         Decision of the Court

thereafter terminated. Thus, the evidence does not establish that Harris’s
discharge resulted from his mere attendance at the meeting. Harris has
failed to meet his burden of showing the existence of a material dispute of
fact that GoDaddy breached the “agreement” to refrain from imposing
discipline as a result of Harris’s meeting with the employee relations
manager. See Chartone, Inc. v. Bernini, 207 Ariz. 162, 170, ¶ 30, 83 P.3d 1103,
1111 (App. 2004) (noting, “in an action based on breach of contract, the
plaintiff has the burden of proving the existence of a contract, breach of the
contract, and resulting damages”).

                              CONCLUSION

¶17        The superior court’s order granting GoDaddy’s motion for
summary judgment is affirmed.




                                  :ama




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