PAPPE v. ADES/APACHE COUNTY BOARD

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz.R.Sup.Ct. 111(c); ARCAP 28(c); Ariz.R.Crim.P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE COURTNEY D. PAPPE, ) ) Appellant, ) ) v. ) ) ARIZONA DEPARTMENT OF ECONOMIC ) SECURITY, an Agency, ) ) and ) ) APACHE COUNTY BOARD OF SUPERVISORS, ) ) Appellees. ) ) DIVISION ONE FILED: 11/29/2012 RUTH A. WILLINGHAM, CLERK BY: sls 1 CA-UB 11-0160 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the A.D.E.S. Appeals Board Cause No. U-1162297-BR AFFIRMED Southern Arizona Legal Aid, Inc. by Brooks Joseph Chapin Attorneys for Appellant Lakeside Apache County Attorney s Office St. Johns by Joseph Young, Deputy County Attorney Attorneys for Appellee Apache County Board of Supervisors and Thomas C. Horne, Arizona Attorney General Phoenix by Carol A. Salvati, Assistant Attorney General Attorneys for Appellee Arizona Department of Economic Security H O W E, Judge ¶1 Courtney Pappe appeals the denial of her claim for unemployment benefits after the Arizona Department of Economic Security ( ADES ) Unemployment Insurance Appeal Board determined that she left work voluntarily without good cause. We affirm for the following reasons. FACTS AND PROCEDURAL HISTORY ¶2 Pappe worked as a victim s advocate County Attorney s Office ( County Attorney ). at the Apache Two years later, the County Attorney offered her a position as a Legal Secretary I, a promotion and a pay raise. Pappe accepted the offer. Shortly began thereafter, however, she having a nervous breakdown. ¶3 On Thursday, August 20, 2009, Pappe was allowed to leave work early to see a doctor for her emotional problems. When Pappe did not show up to work the next day, her manager called and asked if someone had taken her to the doctor. Pappe believed this was the final straw in a pattern of discrimination against her. Instead of returning to work that day, Pappe came to the office to pick up a few personal items from her desk. Without talking to anyone, she went to the Chief of Staff and handed him the following letter ( August 21 letter ): 2 Dear Sirs/Madams: This notice is to inform you that working conditions exist that are so objectively difficult and unpleasant that I feel compelled to resign. There has been a continuous pattern of discriminatory harassment directed towards me and others. I have been subjected to conditions that I reasonably believe to be intolerable and constitute a condition of constructive discharge. Because Pappe had never filed any complaints or raised any grievances, the County Attorney accepted Pappe s letter as a notice of immediate resignation. ¶4 pick When Pappe returned to the office after the weekend to up her canceled. remaining stating: She belongings, the handed her Attorney County access a key had second been letter This morning my access key was non-functional. Please clarify your intentions regarding my employment status. ¶5 That same day, the County Attorney issued a memorandum regarding Pappe s resignation. The memo explained that Pappe s access privileges had been revoked because her employment ended when she submitted the August 21 letter of resignation, which the County reiterated Attorney that the had no County authority Attorney to reject. was unaware The memo of any discriminatory harassment or difficult and unpleasant working conditions that Pappe had mentioned in her August 21 letter. 3 Three days later, the County Attorney issued a second memorandum evaluating Pappe s Arizona Revised 2012). 1 The claim Statutes memo for constructive ( A.R.S. ) concluded that discharge section Pappe 23-1502 had no under (Westlaw claim for constructive discharge because she had not provided prior notice before resigning, nor could she show any outrageous conduct that would waive the notice requirement. The County Attorney sent Pappe a copy of both memos. ¶6 An ineligible Appeals for Board deputy unemployment left employment. determined benefits that because she Pappe was voluntarily Pappe challenged that determination, arguing that she had been constructively discharged pursuant to § 231502(F). At identified the a hearing before discriminatory the Appeals conduct that Tribunal, compelled Pappe her to resign: (1) changing her job duties; (2) removing her from her cubicle; (3) banning her boyfriend from the office; and (4) asking her if she went to see a doctor when she missed work. The Appeals Tribunal without good cause. found that Pappe had voluntarily quit The Appeals Board affirmed in a majority decision, finding that Pappe quit her job impulsively for her own personal, non-compelling reasons, and . . . did not establish that she had no reasonable alternative but to quit her 1 We cite the current version of applicable statutes when no revision material to this decision has occurred. 4 job. One Board member dissented, finding that Pappe had not voluntarily resigned because: (a) Pappe testified that she did not intend to resign; (b) she returned to the workplace the following Monday; (c) the employer had disabled her access key; and (d) she asked the County Attorney to clarify its intentions about her employment. ¶7 We accepted Pappe s timely application for appeal. A.R.S. § 41-1993(B). DISCUSSION ¶8 that Pappe argues that (1) § 23-1502 precluded a finding Pappe voluntarily resigned; (2) her letter met the requirements of constructive discharge under § 23-1502; (3) the Appeals Board erred in relying on Bowman v. Ariz. Dep t of Econ. Sec., 182 Ariz. 543, 544, 898 P.2d 492, 494 (App. 1995) to determine whether she had good cause to resign; and (4) the County Attorney deprived her of due process by accepting her resignation instead of addressing her grievances. The fundamental argument underlying all of these arguments and the argument raised on appeal is that the Appeals Board erred in finding that Pappe voluntarily quit without good cause because she had raised a claim of constructive discharge under § 23-1502. ¶9 court When reviewing a decision of the Appeals Board, this determines whether it properly 5 applied the law to the facts before it. Bowman, 182 Ariz. at 545, 898 P.2d at 494. Our review is limited to the basis of the Board s decision, and its findings of fact are binding unless capricious or an abuse of discretion. omitted). they Id. are arbitrary, (internal citation We will affirm if any reasonable interpretation of the record supports the Appeals Board s decision. Id. On this record, we find no error. ¶10 Under employee may the sue Arizona the Employment employer for Protection constructive Act, an discharge if objectively difficult or unpleasant working conditions or the employer s resign. 2 outrageous conduct A.R.S. § 23-1502.2 compelled the employee to The constructive discharge statute, The relevant portion of § 23-1502 reads: A. In any action under the statutes of this state or under common law, constructive discharge may only be established by either of the following: 1. Evidence of objectively difficult or unpleasant working conditions to the extent that a reasonable employee would feel compelled to resign, if the employer has been given at least fifteen days notice by the employee that the employee intends to resign because of these conditions and the employer fails to respond to the employee s concerns. 2. Evidence of outrageous conduct by the employer . . . including . . . a continuous pattern of discriminatory harassment by the employer . . . or other similar kinds of conduct, if the conduct would cause a 6 however, creates only a cause of action against the employer for damages. The term constructive discharge is not mentioned in Title 6 of the Arizona Administrative Code ( A.A.C. ), which governs claims for unemployment benefits. 545, 898 P.2d at 494. claim that Bowman, 182 Ariz. at Accordingly, a constructive discharge objectively difficult or unpleasant working conditions or an employer s outrageous conduct has compelled a worker to resign must be recast in terms of Title 6. Id. Under Title 6, a constructive discharge claim is the equivalent of claiming that the worker had good cause to quit due to dissatisfactory or intolerable work conditions. ¶11 finding In Bowman, the claimant challenged the Appeals Board s that she was disqualified for because she had voluntarily resigned. unemployment benefits The claimant argued that she had not resigned, but had been constructively discharged under A.R.S. § 25-1502 because of sexual harassment. Treating her constructive she discharge reasonable resign. argument employee to as feel a claim compelled that had to As preconditions to bringing a constructive-discharge claim, the employee must (1) give written notice that a working condition exists that the employee believes is objectively so difficult or unpleasant that the employee feels compelled to resign or intends to resign ; (2) allow the employer fifteen calendar days to respond in writing; and (3) read and consider the employer s response. A.R.S. § 23-1502(B)(1)-(3). These requirements are waived if, however, the employer s conduct was so outrageous that a reasonable employee would feel compelled to resign. A.R.S. § 23-1502(F). 7 good cause to quit due to dissatisfactory or intolerable work conditions, we stated that a worker must first show under A.A.C. §§ R6-3-50210 and R6-3-50515 that she took reasonable steps to preserve the employee-employer relationship and not impulsively unless this is impossible or impractical. quit 546, 898 P.2d at 495. Id. at Comparing the claimant s actions with the degree of tolerance [a] normal worker would be expected to exercise before leaving, we held that the claimant acted impulsively by resigning the day after she first informed her employer about the harassment. Id. at 547, 898 P.2d at 496 (citing A.A.C. § R6-3-50515(A)(2)). We affirmed, finding that the claimant voluntarily resigned without good cause. ¶12 Despite Pappe s attempt to distinguish Id. Bowman, we agree with the Appeals Board that Bowman governs our analysis. Recast in Title 6 terms, Pappe argues that she did not quit voluntarily conditions but that compelled dissatisfactory her resignation. or intolerable Reasonable working evidence, however, supports the Board s finding that she resigned without good cause when she submitted the August 21 letter. ¶13 Pappe testified that the phone call from her manager was the final straw that compelled her to resign. The August 21 letter also unconditionally states that she was compelled to resign. Her testimony that she intended to invoke paragraph F of the constructive discharge statute also demonstrates that she 8 resigned because it waives prior notice and permits immediate resignation conduct. based on outrageousness sufficient Because the evidence of an supports employer s the Board s findings, we reject Pappe s contention that the majority ignored contrary evidence simply because differently than the dissent. it weighed the evidence See Prebula v. Ariz. Dep t of Econ. Sec., 138 Ariz. 26, 30, 672 P.2d 978, 982 (App. 1983) ( This court does not sit as a trier of fact and will affirm the Appeals Board s decision if it is supported by any reasonable interpretation of the record. ). ¶14 The record further shows that Pappe made no effort to preserve her resigning. prior relationship with the County Attorney before Pappe s supervisors all testified that she voiced no complaints or grievances about her working conditions. Pappe herself testified that she made no effort to adjust her grievances before submitting the August 21 letter. Pappe also refused to engage in a dialogue about her grievances when her supervisors attempted to ask her what was wrong at the time she handed them the letter. ¶15 Nor conditions. did Pappe Pappe s job demonstrate duties changed intolerable not because working she was being harassed, but because she accepted a promotion with a pay raise. away Pappe was moved from her cubicle to another one ten feet not because she was being 9 discriminated against, but because her cubicle other cubicles. and now requested was needed in another building to match While Pappe complains that her then boyfriend husband had protection been from banned him from because the he office, was she stalking had her. Regarding the phone call that Pappe identified as the final act of harassment that compelled her to resign, the manager explained that she had called to ask whether Pappe went to see a doctor because she was concerned that Pappe had been crying the day before and had left work early to see a doctor. The manager also the wanted to know when Pappe was returning to office because she wanted to decorate Pappe s cubicle for her birthday. We thus find no error. ¶16 We briefly address Pappe s remaining assignment of error, that the County Attorney violated her due process rights under A.R.S. § 23-1502 by accepting her resignation instead of attempting to investigate and adjust her grievances. As noted above, however, § 23-1502 creates a cause of action against an employer for damages arising from wrongful termination. The notice provisions of § 23-1502 are preconditions to bringing a lawsuit and appear to benefit the employer. To the extent, if any, the notice provisions may be construed as conferring due process rights in favor of the employee, Pappe improperly raises such claims against her employer in this appeal. received a fair opportunity to 10 be heard Because Pappe regarding her disqualification from unemployment benefits, we find no due process violation under Title 6. CONCLUSION ¶17 For these reasons, we find no error and affirm. ____\s\_________________________ RANDALL M. HOWE, Judge CONCURRING: __\s\________________________________ MAURICE PORTLEY, Presiding Judge _\s\_________________________________ PATRICIA A. OROZCO, Judge 11

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