§ 6.1.6.3 Arizona Statutes. The EPA codifies the right of employees to bring common-law tort claims for wrongful discharge where they have been terminated in violation of a state statute (provided the statute contains no remedy of its own)135 or for refusing to violate a state statute.136 Wagenseller, and, before it, Vermillion, involved criminal statutes (indecent exposure and theft, respectively). The seminal public policy exception case,137 Petermann v. International Brotherhood of Teamsters, Local 396,138 involved an employee allegedly terminated for refusing to commit perjury.139
Other cases cited in Wagenseller involved statutes pertaining to price-fixing,140 state food and drug laws,141 a license to perform medical procedures,142 state-mandated pollution control reports,143 and consumer protection laws.144 In Wozniak v. City of Scottsdale,145 an Arizona federal district court judge indicated that a public policy tort claim could be premised upon an Arizona statute "criminalizing the intentional interception of wire, oral or electronic communications without the consent of the communicating parties."146
However, at least with respect to terminations that violate a state statute, the EPA specifically provides that "[a]ll definitions and restrictions contained in the statute also apply to any civil action based on a violation of the public policy arising out of the statute."147 This provision arguably invalidates the portion of Kelley v. City of Mesa148 that appeared to permit terminated employees to pursue common law wrongful discharge claims premised upon the disability discrimination prohibitions of the ACRA149 even though they might not fall within the ACRA's definition of a disabled individual.150
In Taylor v. Graham County Chamber of Commerce,151 the Arizona Court of Appeals interpreted the EPA to prohibit a terminated employee from asserting a tort claim for wrongful discharge premised upon the public policy expressed in the ACRA, which broadly prohibits discrimination in employment.152 As established in state court decisions such as Broomfield v. Lundell,153 and federal decisions such as Bernstein v. Aetna Casualty Co.154 and Spratt v. Northern Automotive Corp.,155 the ACRA was, prior to the enactment of the EPA, one of the statutes upon which a wrongful discharge tort claim could be premised.156
However, the Arizona legislature enacted the EPA in response to what the act's preamble characterized as unwarranted judicial expansion of the wrongful discharge tort157 and the courts' perceived usurpation of the legislature's primary role in declaring the state's public policy.158 Among other things, the EPA arguably limited the statutory public policies on which a common law wrongful discharge claim can be based to those expressed in state statutes containing no remedial provisions of their own.159 In this regard, the EPA states: "If the statute provides a remedy to an employee for a violation of the statute, the remedies provided to an employee for a violation of the statute are the exclusive remedies for the violation of the statute or the public policy set forth in or arising out of the statute."160
The EPA specifically identified the ACRA as a statute that does contain its own remedy,161 and thus cannot provide the basis for a wrongful discharge tort claim.162 Conversely, there are any number of Arizona statutes containing no express remedial provisions,163 an employer's violation of which still conceivably could give rise to a claim for wrongful discharge in violation of public policy.164
The EPA is actually unclear as to whether it has displaced common law claims for wrongful discharge in violation of public policy, or simply limited the remedies available for such a violation.165 In Logan v. Forever Living Products International, Inc.,166 the Arizona Supreme Court found it unnecessary to decide whether a common law cause of action for wrongful discharge in violation of public policy can still be asserted independent of the EPA.167 In Galati v. Arizona West Airlines, Inc.168 the Arizona Court of Appeals subsequently observed that "[w]hether a common law tort for wrongful termination still exists after the [EPA] is an open and much debated question in Arizona law."169 In Lombardi Copper Canyon Academy,170 an Arizona federal district court judge relied on Logan and Galati in suggesting, without deciding, that a "common law tort for wrongful termination claim is not foreclosed as a matter of law merely based upon the enactment of the [EPA]."171
In McBurnie v. City of Prescott,172 by contrast, the Ninth Circuit cited the EPA in holding that "Arizona no longer recognizes a common law tort of wrongful discharge."173 In Thorp v. Home Health Agency,174 an Arizona federal district court judge relied on the analysis in Cronin in likewise holding that the EPA provides "the exclusive remedy for employment terminations that violate public policy statutes."175
The EPA has proven to be a controversial statute,176 and has generated considerable litigation over, among other things, the legislature's constitutional authority to limit the judicially-recognized public policy exception to the employment-at-will doctrine.177 Although the EPA withstood constitutional challenges in Cronin178 and Zenaty-Paulson,179 the Taylor case involved a provision of the EPA that has been widely debated,180 but had not previously been interpreted or applied in any reported judicial decision.181
The specific issue in Taylor was whether a terminated employee who was not entitled to invoke the statutory remedy contained in the ACRA could nevertheless assert a wrongful discharge claim premised upon the public policy reflected in that statute.182 The plaintiff in Taylor could not assert a claim directly under the ACRA because her employer had fewer than 15 total employees,183 and (with one exception, sexual harassment, that was not applicable in that case) such small employers are not subject to the employment discrimination prohibitions contained in the ACRA.184 The plaintiff claimed that precisely because she lacked a remedy under the ACRA, she should be entitled to assert a common law tort claim premised upon the public policy reflected in the statute.185
In effect, the plaintiff argued that the EPA should be interpreted to permit common law tort claims premised upon the public policy reflected in the ACRA whenever a terminated employee is without recourse under the latter statute.186 She contended that a contrary result in her case would be unacceptable as a matter of policy because it would permit small employers to discriminate against their employees with impunity.187
Although courts in other states have occasionally been receptive to similar arguments,188 the Taylor court rejected the plaintiff's contention,189 noting that the legislature made a conscious decision to exempt small employers from most of the ACRA's employment discrimination prohibitions.190 By enacting the EPA, the legislature also made it clear that the public policy expressed in the ACRA is restricted by the express terms of the ACRA itself.191 Because those restrictions include the general exemption for small employers,192 permitting the plaintiff in Taylor to proceed under a common law theory would defeat the legislative intent underlying these statutes.193 The Taylor court concluded its analysis by stating: "Although one might question the wisdom of some of the legislative determinations that underlie the EPA, we cannot second-guess or overturn what appear to be clear, deliberate legislative choices."194
--------
Notes:
[135] A.R.S. § 23-1501(A)(3)(b). Among the statutes that will not support tort recoveries under a theory of wrongful discharge in violation of public policy under the terms of the EPA are the Arizona Civil Rights Act, the state...
