Galati v. America West Airlines, Inc.

69 P.3d 1011

205 Ariz. 290

Charles GALATI, Plaintiff-Appellant, v. AMERICA WEST AIRLINES, INC., an Arizona corporation, Defendant-Appellee.

No. -0170.

Court of Appeals of Arizona, Division 1, Department D.

June 3, 2003.

Frances G. Fanning, Tempe, for Plaintiff-Appellant.

Brown & Bain, P.A., by Daniel C. Barr and Jill J. Chasson, Phoenix, for Defendant-Appellee.

OPINION

THOMPSON, Judge.

¶ 1 Charles Galati (Galati) appeals the trial court's dismissal of his wrongful termination claim against America West Airlines, Inc. (AWA). Finding that Galati did not state a viable claim for wrongful termination, we affirm.

BACKGROUND

¶ 2 Galati was employed by AWA as a flight attendant until he was discharged in January 1999. Galati filed suit against AWA asserting he was wrongfully terminated for being a whistleblower. Specifically, he claims AWA fired him because in November 1998 he complained about being scheduled to work without the required Federal Aviation Administration (FAA) rest breaks¹ and because he reported to the FAA that an AWA pilot removed a "MEL sticker," signaling a defect, without authority.

¶ 3 AWA filed an Arizona Rule of Civil Procedure 12(b)(6) motion to dismiss the complaint, stating that Galati had not pled a violation of Arizona statutory or constitutional law as required by Arizona's Employment Protection Act (AEPA), Arizona Revised Statutes (A.R.S.) sections 23-1501, -1502 (Supp.2001). The trial court dismissed the case, finding that Galati's action did not comply with A.R.S. § 23-1501 in that he alleged that he was terminated for bringing to light violations of federal regulations. Galati timely appealed.

DISCUSSION

¶ 4 Galati raises three issues:

1. Whether the Arizona Legislature in enacting the AEPA intended to exclude federal regulations from the definition of "public policy;"

2. If the legislature did intend to exclude federal regulations from the definition of public policy, whether that exclusion contravenes the Arizona Constitution; and

3. Whether the Airline Deregulation Act (ADA), 49 U.S.C. § 41713 et seq. preempts a state cause of action for wrongful discharge in violation of public policy.

We review the legal issues raised by Galati de novo and take as true all facts alleged in his complaint. See Johnson v. McDonald, 197 Ariz. 155, 157, ¶ 2, 3 P.3d 1075, 1077 (App.1999).

A. Are Federal Regulations Excluded Under the AEPA's Definition of Public Policy?

¶ 5 In 1996, the Arizona Legislature enacted the AEPA in response to Wagenseller v. Scottsdale Memorial Hospital, 147 Ariz. 370, 710 P.2d 1025 (1985).² See Employment Protection Act Ch. 140, § 1, para. A, 1996 Ariz. Sess. Laws 683, 684. The AEPA spells out the public policy of this state³ and enumerates the four circumstances under which an employee may bring a wrongful termination action in Arizona. See A.R.S. § 23-1501. One such circumstance is when an employer violates "a statute of this state" or "the public policy set forth in or arising out of the statute." A.R.S. § 23-1501(3)(b). Another is when the employer terminates an employee in retaliation for refusing to violate Arizona law or for reporting violations of Arizona law to the employer's management or other investigative authority. A.R.S. § 23-1501(3)(c)(i), (ii).

¶ 6 Galati presents two arguments in support of his assertion that his claim for wrongful discharge is cognizable. First, under the AEPA, he asserts that firing a whistleblower who has reported violations of federal law constitutes a retaliatory termination against Arizona's public policy. Thus, he asserts that A.R.S. §§ 23-1501(3)(c)(i)(covering retaliatory firings for an employee's refusal to violate Arizona law) and(c)(ii)(covering retaliatory firings for an employee's disclosure of violations of Arizona law) apply in this case. Next, Galati asserts that his cause of action also "finds its roots in the common law." AWA asserts that the AEPA is limited to violations of Arizona law and abrogates claims of wrongful discharge based on common law.

¶ 7 In his statutory argument, Galati contends that the Arizona Legislature must have intended that Arizona public policy incorporate federal law, although he admits that the face of the AEPA appears to contemplate only the body of law promulgated under state legislative authority. The question is whether violations of federal regulations are necessarily violations of Arizona public policy under the AEPA.

¶ 8 To determine whether the Arizona Legislature intended to include federal regulations in the public policy to be vindicated by the AEPA, we look first at the language of the statute itself. See Carden v. Golden Eagle Ins. Co., 190 Ariz. 295, 297, 947 P.2d 869, 871 (App.1997)(stating that the best way to give effect to the legislative intent is to follow the clear and unequivocal language of the statute) (citing Lowing v. Allstate Ins. Co., 176 Ariz. 101, 103, 859 P.2d 724, 726 (1993)). "[T]he best and most reliable index of a statute's meaning is its language and, when the language is clear and unequivocal, it is determinative of the statute's construction." Janson v. Christensen, 167 Ariz. 470, 471, 808 P.2d 1222, 1223 (1991). If the language is clear, we will follow the text as written, without employing other methods of statutory construction. State v. Riggs, 189 Ariz. 327, 333, 942 P.2d 1159, 1165 (1997).

¶ 9 The language chosen by our legislature is unequivocal. Section 23-1501(3)(b) provides a remedy if "[t]he employer has terminated the employment relationship of an employee in violation of a statute of this state." (Emphasis added). Section 23-1501(3)(c)(i) provides a remedy if the employee is terminated in retaliation for refusing to commit an act or omission "that would violate the Constitution of Arizona or the statutes of this state." (Emphasis added). Section 23-1501(3)(c)(ii) provides a remedy if the employee is terminated for disclosing to the employer, its representative, or an investigatory body a violation of "the Constitution of Arizona or the statutes of this state." (Emphasis added). No mention is made of any federal provision, statute or regulation. As Galati acknowledges, the language plainly appears to contemplate only transgressions of Arizona law as violative of Arizona public policy.

¶ 10 Due to the express and unequivocal language of the statute, we need not inquire further to divine the legislature's intent on this matter.⁴ See UNUM Life Ins. Co. of Am., v. Craig, 200 Ariz. 327, 329-30, ¶¶ 11-12, 26 P.3d 510, 512-13 (2001)("The primary aim of statutory construction is to find and give effect to legislative intent."). If the statute is clear we will "generally apply it without using other means of construction." Id. at 330, ¶ 12, 26 P.3d at 513. The statute reiterates that it is against violations of the Arizona Constitution and Arizona statutes that protection is provided.

¶ 11 In support of his claim that federal regulations should be included under the umbrella of public policy, Galati cites Wagenseller, 147 Ariz. 370, 710 P.2d 1025; Wagner v. City of Globe, 150 Ariz. 82, 722 P.2d 250 (1986); and Cummins v. Mold-in Graphic Systems, 200 Ariz. 335, 26 P.3d 518 (App. 2001), depublished, 201 Ariz. 474, 38 P.3d 12 (2002).

¶ 12 As mentioned previously, the AEPA was enacted in direct response to Wagenseller and with the intent of limiting the availability of wrongful termination for the violation of public policy.⁵ Nevertheless, Wagenseller was a case which would have been cognizable under the AEPA had it existed at that time. See Logan v. Forever Living Prods. Int'l., Inc., 203 Ariz. 191, n. 6, ¶ 16, 52 P.3d 760, n. 6 (2002).

¶ 13 Wagner was decided in 1986 and well before the enactment of the AEPA. In Wagner, the plaintiff alleged that he was discharged from his job as a policeman after he blew the whistle about a man illegally charged with violating a void statute on vagrancy and in violation of personnel regulations. 150 Ariz. at 84,722 P.2d at 252. It is clear that Wagner, like Wagenseller, would have been able to pursue both his claims under the current version of the AEPA and without relying on the common law.⁶

¶ 14 Cummins, like Wagner and Wagenseller, was a common law action not brought under the AEPA, and has been depublished by order of the Arizona Supreme Court. See Cummins, 201 Ariz. 474, 38 P.3d 12. Thus, Cummins has no precedential value on any issue, including our determination whether a violation of federal regulations could support a wrongful termination.

¶ 15 After a review of the clear and unequivocal language of A.R.S. § 23-1501 and the cases cited by Galati, we do not find that a statutory public policy exception exists for whistleblowing associated with federal regulations.

B. The Legislature Did Not Violate the Arizona Constitution By Excluding Federal Regulations From Public Policy Under the AEPA

¶ 16 Galati asserts that the Arizona Legislature cannot have excluded federal regulations from the AEPA without violating the supremacy and the separation of powers clauses of the Arizona Constitution.

¶ 17 Our supreme court addressed the constitutionality of the AEPA in Cronin v. Sheldon, 195 Ariz. 531, 991 P.2d 231 (1999)(holding that employees asserting wrongful termination claims against their employers for violating the Arizona Civil Rights Act (ACRA) were limited under the AEPA to the ACRA's statutory remedies). The court in Cronin found that the AEPA does not violate the equal privileges clause, the impairment of contract clause, the anti-abrogation clause, the non-limitation clause or the separation of powers clause.⁷ Cronin, therefore, resolves Galati's separation of powers argument whether the legislature could enact the AEPA and regulate remedies under it.

¶ 18 Whether a common law tort for wrongful termination still exists after the AEPA is an open and much debated question in Arizona law. We need not reach that question because of our determination of the preemption issue, to which...