Chen v. Maricopa Cnty.

Angellee Chen, a single woman, Plaintiff,

v. Maricopa County, a political sub-divisionof the State of Arizona; and Mark Fischione (individually) Defendant.

No. 12-CV-00814-PHX-GMS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Dated: March 14, 2013

ORDER

Pending before the Court is Defendants' Motion to Dismiss. (Doc. 28.) For the reasons set forth below, Defendants' Motion is granted in part and denied in part.

FACTUAL BACKGROUND

This case arises out of an employment relationship between Plaintiff Dr. Angellee Chen and the Maricopa County's Office of the Medical Examiner (the "OME"). Chen worked as a forensic pathologist for the OME from July 2007 until her employment was terminated in June 2011. (Doc. 24 ¶ 5.) In October 2009, Chen met with the OME's director, David Boyer, and Human Resources Administrator, Espy Gamez, regarding concerns she had about the OME and her supervisor and Chief Medical Examiner, Dr. Mark Fischione. (Id. ¶ 11.) She complained that OME medical examiners had to manage a heavy caseload because of recent reductions in force. (Id. ¶ 15.) Regarding Fischione, she expressed concern that he allegedly worked on significantly fewer cases for the OME because he was providing interim pathology services for the Yavapai County OME and had multiple private projects. (Id.) The Maricopa OME had approved Fischione's workfor the Yavapai OME. (Id. ¶ 9.) Chen also complained that Fischione treated male pathologists more favorably. (Id. ¶ 13.) She complained that Fischione had targeted another female pathologist, Dr. Ann Bucholtz, for termination in part because of her gender and that he took male pathologists to sporting events to the exclusion of the female pathologists. (Id.)

On January 7, 2010, Boyer addressed Chen's concerns at a medical examiner team meeting, allegedly stating that pathologists were allowed to work for other counties if they were current with their Maricopa OME cases and that any discriminatory activity in the OME was unintentional. (Id. ¶ 18.) Chen discussed the meeting with her colleague Dr. Diane Karluk and both expressed dissatisfaction at how Chen's concerns were handled. (Id. ¶¶ 19-20.) On February 3, 2010, Fischione summoned Chen to a meeting which included Boyer and Gamez. At the meeting, Fischione gave Chen a "Final Written Warning" (the "Warning") which he described as the equivalent of a suspension without pay. (Id. ¶ 22.) Chen allegedly had not been disciplined before and Fischione had not addressed his concerns with Chen prior to the Warning. (Id.)

Over the next year, Chen made several complaints regarding Fischione, Boyer and the OME. On May 11, 2010, Chen complained to Alex Jamison, the Maricopa County Ombudsman, regarding Fischione's Yavapai contract and the Warning he had given her. (Id. ¶ 26.) On August 8, 2010, Chen allegedly left a message on Maricopa County's anonymous hotline regarding her concerns about Fischione's Yavapai contract and his discriminatory conduct towards females and minorities. (Id. ¶ 28.) On January 26, 2011, Chen complained to Erin Erskine of the Human Resources Department ("HR") that the Warning was given in retaliation for her discrimination complaint. (Id. ¶ 30.) Finally on May 10, 2011, Chen filled out Maricopa County's annual Employee Satisfaction Survey in which she complained about the alleged mismanagement of the OME, citing a discriminatory environment towards females and minorities, Fischione's conflicts of interest with outside projects, and the lack of responsiveness to her complaints by Boyer and other supervisors. (Id. ¶ 32.)

In April 2011, Dr. Jeffrey Nine applied for the Yavapai OME medical examiner position. (Id. ¶ 34.) Fischione served on the evaluation committee for that position while providing interim services until it was filled, a fact which was known to the OME. (Id. ¶¶ 7, 9, 10.) On June 7, 2011, Fischione signed a renewal contract to provide services through 2012, which was soon to be considered by the Yavapai County Board of Supervisors. (Id. ¶¶ 36-37.) He allegedly commented to Karluk that Nine would likely be offered the position to begin in January 2012, vitiating the need for his interim services. (Id. ¶ 35.)

On June 20, 2011, Chen was summoned to Boyer's office and Fischione gave her notice of her termination for "insubordination." (Id. ¶¶ 38-40.) In the following days, Fischione allegedly told Karluk that Chen's termination was related to "business" but told others that Chen was terminated because she was "trouble" and he was unhappy about Chen's complaints regarding him, Boyer and the OME. (Id. ¶¶ 41-43.)

On July 4, 2011, Fischione allegedly told another examiner, Dr. Robert Lyon, that he had not informed Nine about the OME's new opening created by Chen's termination. (Id. ¶ 44.) But Fischione expressed hope that Nine would view the job posting and chose to work at the Maricopa OME over the Yavapai OME. (Id.) On March 28, 2012, Nine allegedly told Chen that Fischione had contacted him when he applied for the Yavapai OME position to recruit him for the Maricopa OME instead. (Id. ¶ 46.)

Chen filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on November 25, 2011.¹ (Doc. 31-1, Ex. A.) Chen filed a notice of claim for wrongful termination with the Maricopa County and Yavapai County Board of Supervisors, and with Fischione, Boyer, and the Manager of the Maricopa CountyOffice of Research and Reporting, Ken Andersen, on December 13, 2011. (Doc. 28-1, Ex. 2.) Chen received a notice of right to sue from the EEOC on January 18, 2012. (Doc. 24-2.)

Chen brought this suit on April 18, 2012 and filed her Second Amended Complaint on October 2, 2012, alleging the following counts against Defendants Maricopa County and Mark Fischione: (1) Title VII retaliation; (2) First Amendment retaliation; (3) Arizona Civil Rights Act ("ACRA") retaliation; (4) wrongful termination pursuant to A.R.S. § 23-1501(3)(b); (5) wrongful termination pursuant to A.R.S. § 23-1501(3)(c)(iii); (6) tortious interference with contract; and (7) wrongful denial of access to public records pursuant to A.R.S. § 39-121.02(A). On November 5, 2012, Defendants moved to dismiss Chen's Complaint.

DISCUSSION

I. LEGAL STANDARD

To survive dismissal for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint must contain more than "labels and conclusions" or a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). While "a complaint need not contain detailed factual allegations . . . it must plead 'enough facts to state a claim to relief that is plausible on its face.'" Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1022 (9th Cir. 2008) (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). The plausibility standard "asks for more than a sheer possibility that a defendant has acted unlawfully." Id. When a complaint does not "permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not shown—that the pleader is entitled to relief." Id. at 679 (internal quotation omitted).

When analyzing a complaint for failure to state a claim under Rule 12(b)(6), "[a]ll allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party." Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir. 1996). However, legal conclusions couched as factual allegations are not given a presumption of truthfulness, and "conclusory allegations of law and unwarranted inferences are not sufficient to defeat a motion to dismiss." Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998).

II. NOTICE OF CLAIM

Arizona law bars any claim against a public employee unless the claimant files a notice of claim with the public employee within 180 days of the incident from which the claim arose. A.R.S. § 12-821.01(A). A claimant may file the notice by delivering a copy of the claim to an individual personally or to an agent authorized to receive service of process, or by leaving copies at that individual's "usual place of abode." Ariz. R. Civ. P. 4.1(d). "Compliance with the notice provision of § 12-821.01(A) is a mandatory and essential prerequisite to such an action . . . ." Harris v. Cochise Health Sys., 215 Ariz. 344, 351, 160 P.3d 223, 230 (Ct. App. 2007) "Actual notice and substantial compliance do not excuse failure to comply with the statutory requirements of [the statute]." Falcon ex rel. Sandoval v. Maricopa County, 213 Ariz. 525, 527, 144 P.3d 1254, 1256 (Ct. App. 2006).

Before bringing state law claims against Fischione, Chen was required by statute to file a notice of claim within 180 days after her cause of action accrued. Chen was terminated on June 20, 2011. She makes no assertion that her state law claims accrued on any other date. On December 13, 2011, Chen routed a copy of the notice of claim to Fischione through the receptionist at the Maricopa OME, his place of employment. However, Defendants contend that Fischione was never personally served at his office or his home and "he did not authorize anyone to accept service of process for claims being asserted against him individually." (Doc. 28 at 3; Doc. 28-1, Ex. 1 ¶¶ 4, 5.) Chen does not allege the receptionist with whom she left the notice of claim was authorized to acceptservice for Fischione regarding personal legal matters. She alleges that it was an accepted practice at the Office to receive legal process through the receptionist. (Doc. 31-2, Ex. 3 ¶¶ 3-8.) But delivering the notice of claim in that manner did not satisfy the requirements of A.R.S. § 12-821.01(A). See ...