Professional Documents
Culture Documents
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
MEMORANDUM DECISION
Presiding Judge Patricia A. Orozco delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Maurice Portley joined.
O R O Z C O, Judge:
1
Appellants the State of Arizona and the Arizona Game and
Fish Department (AzG&F or the Department) (collectively the State) appeal
from the superior courts ruling that a disciplinary action against Appellee
Shawn Wagner, a wildlife manager and law enforcement officer employed
by the Department, violated Arizona Revised Statutes (A.R.S) section 38532.A. (West 2015),1 Arizonas whistleblower statute. For the following
reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
2
Shortly before sunset in September 2010, Wagner shot an elk
with an arrow while bow hunting. He and Kenny Clay III, who was also a
wildlife manager with the Department, tracked the elk until darkness
required them to terminate the search. Because Wagner had to leave the
hunt, Clay III and Kenny Clay Jr., a retired wildlife manager, agreed that
they would continue to look for the elk the following day, and that if they
found it, they would put Wagners tag on it.2 All present at the hunt
believed that if they found the elk, it would be dead and that Wagner would
have made the fatal shot. The next morning, Clay III, Clay Jr. and James
Weeks found the elk still alive but standing in a pool of blood. Clay III shot
the elk and because they all agreed that Wagner had inflicted the mortal
wound, Clay Jr. attached Wagners tag to the elk, Clay III signed the tag,
and Clay Jr. transported the elk for processing.
2.
Mismanagement a gross waste of monies or an
abuse of authority.
13
The State argues that Wagners September 29 memorandum
did not constitute a disclosure of information of a matter of public
concern under the statute. Unlawful conduct by a government employee,
illegal activity in a government agency, the failure of a government agency
to perform its responsibilities, or conduct that is a breach of the public trust
constitute matters of public concern protected under the statute. See
Connick v. Myers, 461 U.S. 138, 148 (1983); Thomas v. City of Beaverton, 379
F.3d 802, 809 (9th Cir. 2004). Individual personnel disputes irrelevant to the
publics evaluation of a government agencys office are generally not of
public concern. Desrochers v. City of San Bernardino, 572 F.3d 703, 710 (9th
Cir. 2009). Whether an employees speech addresses a matter of public
concern must be determined by the content, form, and context of a given
statement, as revealed by the whole record. Connick, 461 U.S. at 147-48.
We look at the plain language of the statement. Desrochers, 572 F.3d at 711.
Whether a disclosure involves a matter of public concern is a question of
law based on the facts of the individual case. Connick, 461 U.S. at 148 n.7;
Roe v. City & Cnty. of San Francisco, 109 F.3d 578, 584 (9th Cir. 1997).
18
The superior court considered the statute and Department
regulations under which Wagner was disciplined and, based on the
testimony before the court, concluded that Wagner was not guilty of the
violations. The State argues that the superior court exceeded its jurisdiction
by reviewing the substantive basis of Wagners suspension.
Wagner
argues that the court could properly consider whether a valid nonretaliatory basis existed for the discipline and that, in any event, the courts
ruling on Wagners whistleblower claim was not based on the correctness
of the discipline. We independently review the superior courts subject
matter jurisdiction as an issue of law. Glover v. Glover, 231 Ariz. 1, 6, 18,
289 P.3d 12, 17 (App. 2012).
19
When Wagner filed his complaint in superior court, a
disciplined employee could appeal a suspension by the personnel board to
superior court only for a suspension that exceeded forty hours. A.R.S. 41785.A. (2011).5 Wagner was suspended for sixteen hours. The court
therefore lacked jurisdiction to consider an appeal of Wagners suspension.
20
The matter before the trial court, however, was not an appeal
of Wagners suspension, but an appeal of the denial of his whistleblower
complaint. When considering whether a disciplinary action is retaliatory,
the court inquires into whether the employers proffered reason for the
discipline was a pretext. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054,
1062 (9th Cir. 2002). Whether the reason is a pretext is based not on whether
the reason is actually incorrect or false, but whether the employer honestly
believed its reasons and acted on them in good faith at the time the
discipline was imposed, even if those reasons ultimately proved to be
incorrect or baseless. Young v. Dillon Cos., Inc., 468 F.3d 1243, 1250 (10th Cir.
2006); Villiarimo, 281 F.3d at 1063. A plaintiff can show that the belief was
Did the Superior Court Properly Find that Wagners Discipline Was
Caused by His Memorandum?
23
Causation is generally a fact question for the fact finder.
Barrett v. Harris, 207 Ariz. 374, 378, 12, 86 P.3d 954, 948 (App. 2004). In
8
29
An employee against whom a prohibited personnel practice
is committed may recover attorney fees, costs, back pay, full reinstatement
and general and special damages for any reprisal resulting from the
prohibited personnel practice. A.R.S. 38-532.D. General damages are
defined as damages that necessarily and by implication of law result from
the act or default complained of. Palmer v. Kelly, 54 Ariz. 466, 468, 97 P.2d
209, 209-10 (1939). Such damages may not be determined by a fixed
calculation, but may be left to the reason and discretion of the fact finder.
Id.; Selaster v. Simmons, 39 Ariz. 432, 441, 7 P.2d 258, 261 (1932);. We review
a courts decision on damages for abuse of discretion. Gonzales v. Ariz. Pub.
Serv. Co., 161 Ariz. 84, 90, 775 P.2d 1148, 1154 (App. 1989). We uphold the
11
12
34
Wagner seeks an award of attorney fees on appeal pursuant
to A.R.S. 38-532.D. We grant his request for a reasonable amount of
attorney fees upon compliance with Rule 21 of the Arizona Rules of Civil
Appellate Procedure.
CONCLUSION
35
affirmed.
:ama
13