Gee v. Phoenix ( 2016 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
ANGELA GEE,
Petitioner/Appellant,
v.
CITY OF PHOENIX; CITY OF PHOENIX CIVIL SERVICE
BOARD; BRUCE MEYERSON; CRAIG STEBLAY;
ROBERT LORD, Respondents/Appellees.
No. 1 CA-CV 15-0618
FILED 11-3-2016
Appeal from the Superior Court in Maricopa County
No. LC 2015-000107-001
The Honorable Karen A. Mullins, Judge
AFFIRMED
COUNSEL
Kirtley Wells Law Office, Phoenix
By Patricia A. Kirtley
Counsel for Petitioner/Appellant
Phoenix City Attorney’s Office, Phoenix
By Heidi E. Gilbert
Counsel for Respondent/Appellee, City of Phoenix
Gammage & Burnham, P.L.C., Phoenix
By Richard K. Mahrle
Respondents/Appellees, Phoenix Civil Service Board, Bruce E. Meyerson,
Craig Steblay, Robert J. Lord
MEMORANDUM DECISION
Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Peter B. Swann joined.
O R O Z C O, Judge:
¶1 Angela Gee appeals from the superior court’s order declining
to accept jurisdiction of her special action petition. For the following
reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 In October 2013, Gee and her then employer, the City of
Phoenix (City), entered into a “Last Chance Employment Agreement”
(LCEA). Therein, Gee acknowledged violating several personnel rules that
could have resulted in termination. In resolution of those violations, the
LCEA provided for “reduced discipline” encompassing the “violations
occurring between August 19, 2013 and October 15, 2013.” In lieu of
termination, Gee agreed to: “fully comply with and follow” all City
Personnel Rules, “waive her right to a Civil Service Board and appeal,” and
“any other remedy” arising from the disciplinary action or circumstances
surrounding it. Gee also confirmed her understanding that failure to
improve her record of unscheduled absences could result in termination.
In consideration of this resolution, Gee agreed to a forty-hour suspension.
The terms of LCEA were to remain in effect until October 2018.
¶3 Gee’s suspension began October 22, 2013. Her notice of
suspension provided that she must “comply with the Department’s leave
management guidelines.” Therein, Gee was instructed that she must not
accrue “any unscheduled non-FMLA absences between October 19, 2013
and August 26, 2014,” to be considered compliant with the LCEA.
2
GEE v. PHOENIX et al.
Decision of the Court
¶4 In September 2014, the City informed Gee that termination
had been recommended following “an administrative investigation
surrounding [her] unauthorized absence from work [and] failure to follow
[C]ity policies.” The City terminated Gee in September 2014 for violating
the City’s attendance policy and City Personnel Rule 21b3.1 Gee appealed
the decision, and a hearing officer took testimony from both Gee and the
City in January 2015.
¶5 After reviewing the City’s policies and the LCEA, the hearing
officer found that since Gee entered into the LCEA she “accumulated an
unscheduled absence in the form of 2 tardies,” “two unscheduled absences
. . . in June,” “an unscheduled absence for an early departure from work in
July, and she accumulated an unscheduled absence from August 28 until
September 4, 2014, for an additional five (5) unscheduled absences within
the rolling 12-month period.”
¶6 The hearing officer further determined disciplinary action
was warranted based on his findings that Gee violated Rules 21b3 and
21b18.2 In his report, the hearing officer also rejected Gee’s argument the
City’s calculation of her absences “should be disregarded.” The hearing
officer concluded that “[n]o competent evidence exists in the record . . . on
which to conclude that any of [Gee]’s unscheduled absences . . . should be
disregarded or minimized in determining [Gee]’s compliance with the
management leave guidelines.” However, the hearing officer did not make
any specific finding regarding Gee’s compliance with the City’s attendance
policy. The report recommended that the City of Phoenix Civil Service
Board (Board) sustain Gee’s dismissal.
1 City Personnel Rule 21b3 authorizes the City’s Civil Service Board
(Board) to “uphold the action of the appointing authority in disciplining an
employee” when the “employee has violated any lawful or official
regulation or order, or failed to obey any lawful and reasonable direction
given him by his supervisor, when such violation or failure to obey
amounts to insubordination or serious breach of discipline which may
reasonably be expected to result in lower morale in the organization, or to
result in loss, inconvenience, or injury to the City or the public” as grounds
for upholding employee discipline.
2 City Personnel Rule 21b18 authorizes the Board to uphold discipline
when “the employee has been guilty of any other conduct of equal gravity
to the reasons enumerated in 21b1 through 21b17.”
3
GEE v. PHOENIX et al.
Decision of the Court
¶7 Gee’s appeal proceeded to the Board. After reviewing the
recommendations of the hearing officer and considering arguments from
Gee’s counsel, the Board sustained Gee’s dismissal. The Board found that,
in addition to violating City Personnel Rules 21b3 and 21b18, Gee also
violated Rule 21b8.3
¶8 Gee then filed a complaint for special action in superior court,
requesting that “the decision of the [Board] be reversed.” In response, the
City filed a Motion to Decline Jurisdiction, arguing special action
jurisdiction was not appropriate because Gee failed to present any basis
entitling her to such relief. The superior court agreed and Gee timely
appealed. We have jurisdiction pursuant to Article 6, Section 9, of the
Arizona Constitution, Arizona Revised Statutes (A.R.S.) section
12-120.21.A.4 (West 2016),4 and Arizona Rule of Procedure for Special
Actions 8.(a).
DISCUSSION
¶9 “The decision to accept or reject special action jurisdiction is
highly discretionary.” Am. Fam. Mut. Ins. Co. v. Grant, 222 Ariz. 507, 511,
¶ 9 (App. 2009). We review a superior court’s declination of special action
jurisdiction for an abuse of that discretion. Files v. Bernal, 200 Ariz. 64, 65,
¶ 2 (App. 2001). A court abuses its discretion when “the record fails to
provide substantial support for its decision or the court commits an error of
law in reaching the decision.” Id. A denial of special action relief “will be
upheld for any valid reason disclosed by the record.” State ex rel. Dean v.
City Ct. of City of Tucson, 123 Ariz. 189, 192 (App. 1979). When the superior
court declines jurisdiction of a special action without addressing the merits,
we likewise do not reach the merits on appeal. State v. Johnson, 184 Ariz.
521, 523 (App. 1994). Rather, “the sole issue before us [is] whether that court
abused its discretion when it declined to accept jurisdiction.” Id. (citation
omitted); see also Stapert v. Ariz. Bd. of Psychologist Exam’rs, 210 Ariz. 177,
182, ¶ 22 (App. 2005). The burden of proving whether special action
jurisdiction is warranted lies with the party requesting relief. See Bd. of Cty.
3 City Personnel Rule 21b8 permits the Board to uphold disciplinary
action when “the employee has been absent without leave, contrary to these
Rules, or has failed to report after leave of absence has expired, or after such
leave of absence has been disapproved or revoked and cancelled by the
appointing authority.”
4 We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.
4
GEE v. PHOENIX et al.
Decision of the Court
Supervisors, Santa Cruz Cty. v. Rio Rico Volunteer Fire Dist., 119 Ariz. 361, 364
(App. 1978).
¶10 Gee alleges the Board’s decision was “arbitrary, capricious
and contrary to law” and contends special action jurisdiction is appropriate
because the hearing officer and the Board “exceeded their jurisdiction,
made errors of law and abused their discretion.” Specifically, Gee argues
the superior court erred by failing to: properly interpret the terms of the
LCEA, determine whether the City violated its own policies in its
calculation of her absences, and determine whether the actions of the Board
were arbitrary and capricious because it improperly interpreted the terms
of the LCEA. Gee further contends there is no competent evidence
supporting the calculation of absences or failure to improve her attendance
record.
¶11 The City argues special action jurisdiction was not
appropriate because Gee’s termination was supported by the record and
she failed to show relief was necessary. We agree.
¶12 Our consideration and review of the record on appeal is
limited to whether there is “substantial support” for the superior court’s
denial of special action jurisdiction. Files, 200 Ariz. at 65-66, ¶ 2. Here, the
court declined jurisdiction “[f]or the reasons stated in [the City]’s Motion
[to Decline Jurisdiction] and Reply;” that Gee failed to show extraordinary
relief was appropriate and the record supported her termination. Gee
challenges the hearing officer and the Board’s calculation of her absences as
misinterpretation of the LCEA, essentially asking us to reconsider and
reweigh evidence, so as to reach a different conclusion in her favor. This is
a function we do not perform on appeal. See Culpepper v. State, 187 Ariz.
431, 436 (App. 1996) (“In reviewing factual determinations by an
administrative agency, this court does not reweigh the evidence or
substitute its judgment for that of the agency.”). Additionally, neither the
hearing officer nor the Board affirmatively determined whether Gee
violated the attendance policy. Instead, findings were made that Gee
violated City Personnel Rules 21b3, 21b8, and 21b18, and that the resulting
discipline imposed was authorized.
¶13 Gee also contends the LCEA’s resolution language, which
provides that it operates as a “full and complete resolution” of her
violations between August 19, 2013 and October 15, 2013, precludes
consideration of any attendance issues prior to October 15, 2013. However,
a calculation or consideration of Gee’s alleged absences, interpretation of
5
GEE v. PHOENIX et al.
Decision of the Court
the LCEA, and application of the City’s attendance policy is not necessary
to reach the hearing officer and the Board’s conclusions.
¶14 According to Rule 21b, “[f]ailure to meet such standards of
conduct and work performance for any of the following listed reasons . . . shall
be considered sufficient by the Board to uphold the action of the appointing
authority in disciplining an employee.” (Emphasis added.). Such conduct
includes:
failure to obey any lawful and reasonable direction given him
by his supervisor, when such violation or failure to obey
amounts to insubordination or serious breach of discipline
which may reasonably be expected to result in lower morale
in the organization, or to result in loss, inconvenience, or
injury to the City or the public.
City Personnel Rule 21b3.
¶15 The City’s leave policy provides that “[e]xcessive
unscheduled absences from work can be disruptive and place a burden on
co-workers and supervisors who must cover the absent employee.”
¶16 Through the LCEA, Gee agreed to “fully comply and follow
all City . . . [r]ules and policies, and follow all directives.” Gee’s suspension
notice provided explicit instructions not to accrue “any unscheduled
non-FMLA absences between October 19, 2013 and August 26, 2014” to
comply with leave guidelines. Gee admits to at least one unscheduled
absence between October 19, 2013 and August 15, 2014.
¶17 Evidence in the record supports the conclusion that Gee
violated City Personnel Rule 21b3, as found by both the hearing officer and
the Board. Because any finding under Rule 21b “shall be considered
sufficient . . . to uphold the action,” we need not discuss the finding that
Gee violated any other City Personnel Rule.5 Consequently, we cannot say
the superior court abused its discretion in declining special action review.
CONCLUSION
¶18 For the foregoing reasons, we affirm the superior court’s
denial of special action jurisdiction. Gee requests attorney fees and costs on
appeal; because she is not the prevailing party, we deny her request. As the
5 Both the hearing officer and the Board found Gee violated 21b3.
6
GEE v. PHOENIX et al.
Decision of the Court
prevailing party, the City is entitled to costs upon compliance with ARCAP
21.
AMY M. WOOD • Clerk of the Court
FILED: AA
7