Craven v. Clay Springs-Pinedale Fire District

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Jason Craven, No. CV-20-08014-PCT-ROS 10 Plaintiff, ORDER 11 v. 12 Clay Springs-Pinedale Fire District, et al., 13 Defendants. [14] 15 In 2006, Plaintiff Jason Craven began working as a volunteer firefighter for 16 Defendant Clay Springs-Pinedale Fire District. In approximately 2010, Craven was 17 appointed “Wildland Coordinator” to lead the Fire District’s newly created “Wildland 18 Division.” While in that position Craven repeatedly complained to Defendant Robert 19 Garvin—the Fire Chief responsible for day-to-day management of the Fire District— 20 about the Wildland Division’s finances and pay practices. Craven also complained to 21 members of the five-member board responsible for the overall management of the Fire 22 District. 23 In 2019, the board voted unanimously to dissolve the Wildland Division, meaning 24 Craven lost his position as Wildland Coordinator. Craven subsequently filed this suit 25 against the Fire District, Chief Garvin, the fire board, and the five board members. 26 According to Craven, the Wildland Division was dissolved in retaliation for his speech. 27 Craven also alleges he was not paid for all the work he performed and that a statement by 28 Chief Garvin regarding Craven’s drinking habits was defamatory or cast him in a false 1 light. Defendants seek summary judgment on all claims. Because there are material 2 disputes of fact regarding most claims, the motion for summary judgment will, in large 3 part, be denied. 4 BACKGROUND 5 The parties have many factual disputes involving matters that do not impact 6 analysis of Defendants’ motion. However, the many inconsequential factual disputes, as 7 well as unexplained gaps in the record, make it difficult to recount a coherent version of 8 the background facts. The following represent the undisputed facts or, when disputed, 9 the version of events most favorable to Craven. 10 The Clay Springs-Pinedale Fire District provides fire protection and emergency 11 services around Pinedale, Arizona. The Fire District “is governed by a five-person 12 board.” (Doc. 72 at 2). That board is responsible for managing the Fire District, 13 including the appointment of a Fire Chief to handle the “day-to-day operations” of the 14 Fire District. (Doc. 72 at 2). At all relevant times, the five board members were 15 Defendants Bob Quackenbush, Mike Neill, David Flores, Joe Holyoak, and Sue Hileman. 16 The board held monthly meetings to vote on management issues, such as budget matters. 17 In 1987, Robert Garvin joined the Fire District as a volunteer firefighter. Garvin 18 was appointed “volunteer Fire Chief in 2002” and, in 2013, Garvin was appointed to the 19 “full-time, paid” position of Fire Chief. (Doc. 72 at 2). As Fire Chief, Garvin was 20 responsible for managing the Fire District and approximately 20 volunteer firefighters. 21 (Doc. 72-1 at 8). While the parties consistently refer to “volunteer firefighters,” that 22 description is somewhat misleading. The volunteer firefighters were not paid a full-time 23 wage but they were paid for attending trainings or when called out on medical or fire 24 calls. At the times relevant to this suit, volunteer firefighters were paid $10 for each 25 training they attended as well as $10 to $20 per call, depending on the individual 26 firefighter’s qualifications. (Doc. 72-1 at 18). 27 The present case involves the Fire District’s decision to get involved in fighting 28 “wildland fires.” This term refers to “fires that occur on state or federal government 1 property.” (Doc. 71 at 3). According to Defendants, fire districts often agree to help 2 fight wildland fires because fire districts “can charge the state or federal government a fee 3 for use of [the fire district’s] personnel and equipment.” (Doc. 71 at 3). In other words, 4 fighting wildland fires can be a source of additional revenue for a fire district. 5 In 2006, Craven started working for the Fire District as a volunteer firefighter. 6 Shortly after being hired, Craven approached Chief Garvin about starting a “Wildland 7 Division” to fight wildland fires. (Doc. 72-1 at 19-20). Chief Garvin did not take 8 immediate action but, in approximately 2010 or 2011, Craven was appointed “Wildland 9 Coordinator.” The parties do not indicate whether this appointment was made by Chief 10 Garvin or the board. But it appears that, at the time Craven was appointed, the board had 11 not yet formally established a Wildland Division. (Doc. 76-3 at 4). At some point, the 12 board formally created the division and Craven assumed responsibility for the division’s 13 activities. Craven apparently operated the Wildland Division with some autonomy and 14 he supervised several wildland firefighters. The parties have not explained the extent of 15 Craven’s responsibilities nor have they clearly explained how Craven was compensated. 16 It appears Craven was paid an hourly wage when performing some types of work as 17 Wildland Coordinator. While Craven managed the Wildland Division, some of the 18 division’s activities remained subject to Chief Garvin’s control. For example, Chief 19 Garvin decided when Craven and the Wildland Division’s other firefighters would be 20 sent out to fight particular fires. 21 Over the years, tensions arose between Chief Garvin and Craven regarding the 22 management and use of the Wildland Division. According to Chief Garvin, Craven “was 23 always complaining.” (Doc. 72-1 at 35). Many of the complaints centered around what 24 Craven viewed as ongoing “mismanagement of Wildland monies.” For the most part, it 25 appears the alleged “mismanagement” involved internal accounting decisions. (Doc. 75 26 at 3). That is, it was Craven’s position that all the income and expenses attributable to 27 the Wildland Division should be viewed entirely separately from the Fire District’s other 28 income and expenses. (Doc. 72-1 at 38). For example, Craven did not believe the cost of 1 a “water tender truck” purchased by the Fire District should be attributed to the Wildland 2 Division because that truck was used almost exclusively for non-Wildland Division work. 3 (Doc. 76 at 20). Craven does not identify any law, regulation, or policy requiring such 4 separate accounting practices. It is undisputed Craven’s repeated complaints led Chief 5 Garvin to discuss some of his complaints with the board, such as whether the Wildland 6 Division should have a separate bank account. Chief Garvin and the board concluded a 7 separate account was unnecessary. (Doc. 72-1 at 40). 8 Beyond alleged financial “mismanagement,” Craven alleges he repeatedly 9 complained to Chief Garvin that the Fire District had failed to pay wildland firefighters 10 for attending trainings and performing work. Craven claims to have told Garvin “he was 11 violating state and federal labor laws by not paying him and his crew” all they were 12 owed. (Doc. 72-24 at 3). One particular incident involving only Craven occurred in 13 2018. That year the Fire District decided to buy a new fire engine for the Wildland 14 Division but the engine was in Illinois. The Fire District paid Craven’s airfare to fly to 15 Illinois. Craven would then drive the engine back to Arizona. According to Chief 16 Garvin, Craven “wanted to see his daughter somewhere between Illinois and Arizona.” 17 Thus, Chief Garvin and Craven allegedly agreed Craven would not be paid for the time 18 he spent driving the truck back if he stopped to see his daughter on the way to Arizona. 19 (Doc. 72-1 at 34). Another Fire District employee testified Garvin and Craven both told 20 her Craven “was never supposed to have any kind of payment for driving the truck back” 21 to Arizona.” (Doc. 72-3 at 11). Craven claims there was never such an agreement and he 22 should have been paid for the time spent driving back to Arizona. Craven states he 23 “confronted Chief [Garvin] about” getting paid for the driving time but Chief Garvin 24 merely stated “he would talk to the board.” (Doc. 76-3 at 22). Craven was never paid for 25 that travel time. (Doc. 76-3 at 22). 26 From approximately 2010 through 2019, the Wildland Division’s activities 27 generated significant income for the Fire District. According to Defendants, however, 28 that income created financial difficulties because the Fire District incurred significant 1 costs fighting wildland fires and reimbursements of those costs often took several 2 months. “This resulted in large monthly swings in the [Fire] District’s income and 3 expenses.” (Doc. 72 at 4). For example, in September 2018, the Fire District incurred 4 over $35,000 in expenses due to the Wildland Division. (Doc. 72-12 at 9, 14). Those 5 expenses were not immediately reimbursed. Craven admits “there were occasions where 6 it may take months for the Department to be reimbursed” for the Wildland Division’s 7 activities. (Doc. 76 at 7). But he seems to believe that delay was unimportant because he 8 stresses reimbursement was always received, even if it was months later. Chief Garvin 9 took a different view. According to Chief Garvin, the delay between incurring costs and 10 obtaining reimbursements meant the Fire District “couldn’t keep up with the money.” 11 Thus, Chief Garvin claimed the Wildland Division was causing the Fire District to “run 12 out of money.” (Doc. 72-1 at 54). 13 At some unidentified point in time, Craven began complaining to board member 14 Mike Neill about limitations on his activities as Wildland Coordinator. According to 15 Neill, Craven “was upset because the chief wouldn’t let him go out [and fight fires], but 16 we didn’t have the money to go out.” (Doc. 72-5 at 18). In other words, Craven was 17 frustrated that Chief Garvin was restricting the activities of the Wildland Division but 18 Chief Garvin, and at least one board member, believed those restrictions were financially 19 necessary. 20 In January 2019, the Fire District held a meeting attended by as many as thirty 21 firefighters, including Craven. During the meeting, Chief Garvin addressed the group 22 and described the Fire District’s drug and alcohol policy. In doing so, Chief Garvin 23 stated that if a firefighter had been drinking, he should not show up for work. Chief 24 Garvin then stated Craven “won’t come out at night because he’s got to suck on his 25 bottle, but he’s good help the next day.” (Doc. 76-3 at 14). Craven immediately 26 responded “They’re cans.” Craven subsequently explained the statement by Chief Garvin 27 left him “embarrassed and everything else.” (Doc. 76-3 at 15). One of the other 28 attendees at the meeting believed Chief Garvin’s statement “belittled and deformed [sic] 1 [Craven’s] character.” (Doc. 76-20 at 15). 2 In early 2019, the board provided notice the March 2019 board meeting would 3 address “Wildland” and “Budget.” (Doc. 72-13 at 2). Board member Mike Neill 4 explained at his deposition the board’s intention was to “discuss the finances and whether 5 or not we should continue a wildland division.” (Doc. 72-5 at 18). Shortly before the 6 meeting, Craven allegedly called Neill. According to Neill, Craven “sounded 7 intoxicated, his words were slurring.” (Doc. 72-5 at 15). Craven told Neill that Chief 8 Garvin “was embezzling.” (Doc. 72-5 at 15). Craven then attempted to backtrack and 9 claimed he was not accusing Chief Garvin of embezzling. Instead, Craven was “just 10 saying money’s missing.” (Doc. 72-5 at 17). 11 At the March 21 board meeting, Neill told the other board members about 12 Craven’s statements regarding embezzlement or missing money. (Doc. 72-5 at 17; 72-14 13 at 2). After some discussion, board member Sue Hileman “made a motion to dissolve the 14 wildland division.” (Doc. 72-14 at 2). That motion passed unanimously. There was an 15 audio recording of the board’s discussion regarding the Wildland Division, but that 16 recording was subsequently destroyed. 17 Shortly after the meeting, Chief Garvin sent Craven a letter. That letter explained 18 the board had dissolved the Wildland Division based, in part, on “the conflicts between 19 staff, the Chief, and Board members.” (Doc. 76-17 at 2). The letter also stated “[t]he 20 amount of expenses incurred to create and maintain the Wildland Department, along with 21 the length of time that is required to be refunded by the state is creating a strain on the 22 entire Fire District.” (Doc. 76-17 at 2). Thus, Craven was removed as Wildland 23 Coordinator but he remained a volunteer firefighter. 24 In December 2019, Craven filed the present suit alleging ten claims against the fire 25 board, the five members of the board, the Clay Springs-Pinedale Fire District, and Chief 26 Garvin. Craven’s ten claims are: 27 1. Retaliatory discharge under the Arizona Employment Protection Act; 28 2. First Amendment retaliation; 1 3. Failure to pay minimum wages under the Fair Labor Standards Act 2 (“FLSA”); 3 4. FLSA retaliation; 4 5. Failure to pay wages under Arizona law; 5 6. Failure to pay minimum wage and unlawful retaliation under Arizona 6 Minimum Wage Act; 7 7. Intentional interference with employment relationship under Arizona law; 8 8. Defamation under Arizona law; 9 9. False light under Arizona law; and 10 10. Retaliation in violation of Arizona’s law allowing “public safety 11 employees” to provide information to the board governing a fire district. 12 It appears claims one through six, as well as ten, are brought against all Defendants. 13 Claims seven, eight, and nine appear to be brought solely against Chief Garvin. 14 ANALYSIS 15 Craven’s many claims appear to be overlapping and duplicative. In resolving 16 Defendants’ motion, the Court will follow the parties’ briefing in grouping together 17 similar claims. 18 I. Failure to Pay Wages 19 Craven brings a variety of claims based on the Fire District allegedly not paying 20 him for all work he performed. While there are slight differences between these various 21 claims, for present purposes the Court will analyze the unpaid wages claims under the 22 standard applicable to a claim brought under the FLSA.1 23 For his FLSA claim, the burden is initially on Craven to show “he performed work 24 for which he was improperly compensated.” McLaughlin v. Ho Fat Seto, 850 F.2d 586 , [25] 1 Craven asserts claims for unpaid wages under the FLSA and two Arizona statutes. The 26 first Arizona statute is A.R.S. § 23-355(A) which allows a claim when an employer fails “to pay wages due” and the employee seeks to recover “an amount that is treble the 27 amount of the unpaid wages. See also Wood v. Nw. Hosp., LLC, 473 P.3d 729 , 737 (Ariz. Ct. App. 2020). The second Arizona statute is A.R.S. § 23-363(A) which allows a claim 28 when an employer fails to pay the minimum wage identified in the statute. The parties do not identify any way the analysis of the FLSA and these state-law claims should differ. 1 589 (9th Cir. 1988). Craven must produce “some evidence to show the amount and 2 extent of [the unpaid] work as a matter of just and reasonable inference.” Id. This does 3 not require Craven “prove the precise extent of uncompensated work.” Id. It is enough 4 to provide general statements. Id. Once Craven does so, “the burden shifts to the [Fire 5 District] to come forward with evidence of the precise amount of work performed or 6 evidence to negate the reasonableness of the inference to be drawn from [Craven’s] 7 evidence.” Id. 8 According to Defendants, “Craven has not produced any evidence that he 9 completed [unpaid] work or that he ever sought any reimbursement for [the unpaid] 10 work.” (Doc. 71 at 11). But the summary judgment record proves otherwise. In a 11 discovery response, Craven identified “approximately 190 hours” of unpaid work he 12 allegedly performed. (Doc. 72-22 at 17). Those 190 hours include the “36 hours 13 traveling to Illinois to pick up [the fire engine] and driving it back to Arizona.” (Doc. 7214 22 at 18). Regarding those 36 hours, it is undisputed Craven drove the engine to Arizona. 15 It is also undisputed Craven was not paid for those 36 hours. Thus, at the very least, 16 there is a dispute of fact regarding Craven’s entitlement to compensation for those 36 17 hours. 18 Beyond the 36 hours, Craven also states he provided “timecards” to Chief Garvin 19 regarding time Craven spent on work activities, such as attending trainings. (Doc. 76-4 at 20 2). Chief Garvin allegedly told Craven “the Board would not pay for this time.” (Doc. 21 76-4 at 2). The parties have not provided copies of those timecards nor have Defendants 22 provided any explanation why, if the timecards were provided, Craven was not paid. 23 Accordingly, based on the present record, there are disputes of fact regarding Craven’s 24 FLSA and state-law claims for unpaid wages and the claims must proceed to trial. 25 Beyond contesting their liability for unpaid wages, Defendants argue that even if 26 some wages were not paid, they cannot be liable for “liquidated or treble damages.” 27 (Doc. 71 at 12). Under the FLSA and Arizona law, Defendants may be liable for 28 liquidated or treble damages if Craven’s wages were “willfully” withheld or if there was 1 no good faith dispute the wages were due. Defendants claim they paid all wages owed 2 but even if they did not, there is “[a]t most, a good faith dispute” whether Craven is 3 entitled to additional wages. (Doc. 71 at 12). The present record is not sufficiently 4 developed to grant summary judgment in favor of Defendants. Again, Craven alleges he 5 turned in “timecards,” but the Fire District refused to pay for the work reflected on those 6 timecards. Knowingly refusing to pay for work reflected on timecards may be sufficient 7 to establish Defendants acted with “reckless disregard” such that they can be liable for 8 increased damages under the FLSA and Arizona law. See Haro v. City of Los Angeles, [9] 745 F.3d 1249, 1258 (9th Cir. 2014) (liquidated damages under FLSA require knowledge 10 or “reckless disregard”). 11 II. Retaliation Claims 12 Craven is pursuing numerous claims involving alleged retaliation for his speech. 13 Craven alleges retaliation theories under the Arizona Employment Protection Act, the 14 First Amendment, an Arizona law regarding public safety employees, the FLSA, and the 15 Arizona Minimum Wage Act. Again, the parties have not clearly identified the exact 16 speech at issue, which individual or entity heard that speech, and the precise acts the 17 hearers took that allegedly constituted retaliation. Instead, the parties have analyzed 18 these claims on a very general level, apparently under the assumption that all Defendants 19 are potentially liable under all the various retaliation theories. By way of illustration, 20 Craven seems to believe board member Joe Holyoak retaliated against him. But Craven 21 nowhere identifies the protected speech heard by Joe Holyoak nor does Craven point to 22 the exact actions Joe Holyoak took in retaliation for that speech.2 As a result, in brief, the 23 analysis of Craven’s retaliation claims must be conducted at an inappropriately high level 24 of generality. But because on summary judgment all reasonable inferences are taken in 25 favor of the plaintiff, summary judgment cannot be granted. At trial, Craven will be 26 2 Assuming Craven is relying solely on Holyoak’s vote to dissolve the Wildland Division, the parties have not addressed whether the board members are entitled to legislative 27 immunity for that vote. See, e.g., Bechard v. Rappold, 287 F.3d 827, 829 (9th Cir. 2002) (“Although the decision to eliminate a position for budgetary reasons is clearly 28 legislative, the decision to demote and to discharge a specific individual is an administrative act that is not clothed in legislative immunity.”). 1 required to establish liability on a statement-by-statement, defendant-by-defendant, and 2 action-by-action basis. 3 A. Arizona Employment Protection Act 4 As relevant here, the Arizona Employment Protection Act (“AEPA”) states “[a]n 5 employee has a claim against an employer for termination of employment only if . . . 6 [t]he employer has terminated the employment relationship of an employee in retaliation 7 for” the employee disclosing he has “information or a reasonable belief” that his 8 employer violated the laws of Arizona. A.R.S. § 23-1501(A)(3); Galati v. Am. W. 9 Airlines, Inc., 69 P.3d 1011, 1013 (Ariz. Ct. App. 2003) (recognizing AEPA provides 10 claim “when the employer terminates an employee in retaliation . . . for reporting 11 violations of Arizona law to the employer’s management”). 12 Craven alleges he complained of violations of Arizona law to Chief Garvin and 13 the board. After doing so, Craven says he was retaliated against, apparently by the board 14 voting to dissolve the Wildland Division. That vote resulted in Craven losing his position 15 as Wildland Coordinator. Defendants seek summary judgment arguing there are no facts 16 establishing Craven suffered a sufficient “termination of employment” to trigger liability 17 under the AEPA. According to Defendants, Craven was employed as a volunteer 18 firefighter before being appointed Wildland Coordinator and he remained a volunteer 19 firefighter after he was terminated from the position of Wildland Coordinator. Thus, 20 Defendants argue Craven did not experience a “termination of employment” as that term 21 is used in the AEPA. 22 The parties have failed to cite any Arizona authority addressing when, if ever, a 23 demotion can qualify as a “termination of employment” under the AEPA. But the 24 approach to the AEPA adopted by Arizona courts points away from such a reading. As 25 explained by the Arizona Court of Appeals, the AEPA was passed to “limit[] the 26 situations in which an employee may bring a wrongful termination suit.” Hart v. Seven 27 Resorts Inc., 947 P.2d 846 , 850 n.7 (Ariz. Ct. App. 1997). And the AEPA “addresses 28 claims for ‘termination of employment’ but not other wrongful employment acts or 1 omissions.” Taylor v. Graham Cty. Chamber of Com., 33 P.3d 518, 521 (Ariz. Ct. App. 2 2001). 3 Given the statement that the AEPA was meant to address terminations of 4 employment but not “other wrongful employment acts or omissions,” a demotion is not 5 sufficient to trigger liability under the AEPA.3 Cf. Taylor v. Graham Cty. Chamber of 6 Com., 33 P.3d 518, 525 (Ariz. Ct. App. 2001) (noting the AEPA’s “primary purpose was 7 to circumscribe, not broaden, wrongful termination claims based on alleged violations of 8 public policy”). Defendants are therefore entitled to summary judgment on Craven’s 9 AEPA claim. 10 B. First Amendment and Public Safety Employee Protections 11 Craven claims the loss of his position as Wildland Coordinator was unlawful 12 retaliation in violation of the First Amendment and A.R.S. § 23-1411(A). That Arizona 13 statute provides a “public safety employee” is entitled “to present proposals and 14 testimony to the governing body of any . . . fire district and their representatives” and an 15 employee “shall not be discharged, disciplined or discriminated against because of the 16 exercise of these rights.” A.R.S. § 23-1411(A). The parties agree the retaliation analysis 17 is the same under the First Amendment and § 23-1411. The Court will assume the same.4 18 The Ninth Circuit has established a “sequential five-step series of questions” for 19 courts to use when analyzing a public employee’s First Amendment retaliation claim. 20 Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009). The five questions are: 21 (1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public 22 employee; (3) whether the plaintiff’s protected speech was a substantial or motivating factor in the adverse employment 23 action; (4) whether the state had an adequate justification for treating the employee differently from other members of the 24 general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech. [25] 3 The AEPA authorizes relief where an employee has not been formally terminated but 26 his employer has subjected him to sufficiently onerous conditions such that the employee should be viewed as constructively discharged. A.R.S. § 23-1502. Craven does not 27 argue his demotion should be viewed as a constructive discharge. 4 “Arizona courts have not specified a standard for evaluating claims under A.R.S. § 2328 1411(A),” but the Ninth Circuit has applied the “First Amendment retaliation test.” Candelaria v. City of Tolleson, Arizona, 721 F. App’x 588 , 591 (9th Cir. 2017). [1] Id. The plaintiff bears the burden on the first three questions but, if he carries that 2 burden, “the burden shifts to the defendant on the last two questions.” Greisen v. 3 Hanken, 925 F.3d 1097, 1108 (9th Cir. 2019). 4 In seeking summary judgment, Defendants challenge only two steps of the 5 sequence. First, Defendants argue Craven’s speech was not on a matter of “public 6 concern.” Second, Defendant argue “Craven’s conduct was not a but-for cause of the 7 [Fire] District’s decision to dissolve the Wildland Division.” (Doc. 71 at 7). Craven 8 responds to the first argument but does not respond to the second. 9 “Speech involves matters of public concern when it can be fairly considered as 10 relating to any matter of political, social, or other concern to the community, or when it is 11 a subject of legitimate news interest; that is, a subject of general interest and of value and 12 concern to the public.” Lane v. Franks, 573 U.S. 228 , 241 (2014). The public concern 13 “inquiry turns on the content, form, and context of the speech.” Id. Thus, a plaintiff must 14 provide “sufficient information about the content, form and context of speech” to allow a 15 court “to determine whether it was on a matter of public concern.” Greisen v. Hanken, [16] 925 F.3d 1097, 1110 (9th Cir. 2019). But this does not mean a plaintiff is required to 17 produce “transcriptions of the conversations.” Id. Rather, a plaintiff need only provide 18 “a general timeline” along with the general content of the relevant communications. Id. 19 It is well-established that “[s]peech about inefficiency in managing and operating 20 government entities is [speech about] a matter of inherent public concern.” Moonin v. 21 Tice, 868 F.3d 853, 864 (9th Cir. 2017). A recent case similar to the present one 22 addressed this point at length. In that case a police officer became suspicious a city 23 manager “was hiding something” regarding the city’s budget. Greisen v. Hanken, 925 24 F.3d 1097, 1105 (9th Cir. 2019). Those suspicions prompted the officer to ask questions 25 “about the city’s budgeting practices.” Id. The officer was later terminated and he 26 brought a retaliation claim against the city manager. The Ninth Circuit concluded it had 27 been “clearly established” for over twenty years that a public employee’s complaints 28 regarding “the misuse of public funds is a matter of public concern.” Id. at 1111 . See 1 also Moser v. Las Vegas Metro. Police Dep’t, 984 F.3d 900 , 906 (9th Cir. 2021) (“At the 2 apex of the First Amendment rests speech addressing problems at the government agency 3 where the employee works.”). 4 Here, Defendants argue Craven did not complain about matters of public concern. 5 According to Defendants, Craven only complained “about his personal disputes with, and 6 grievances against, Chief Garvin, his management style, and his decision making.” (Doc. 7 71 at 6-7). But the record, viewed in the light most favorable to Craven, establishes 8 Craven repeatedly complained about perceived financial mismanagement of the Fire 9 District and the Wildland Division. (Doc. 76-1 at 38). In particular, Craven complained 10 to board member Neill “that Chief was embezzling,” or as Craven later attempted to 11 reformulate his position, he believed “there’s money missing.” (Doc. 76-2 at 23-24). A 12 public employee’s complaints of embezzlement or “money missing” qualify as speech on 13 matters of public concern. Defendants are not entitled to summary judgment based on 14 the content of Craven’s speech. 15 The only other basis on which Defendants seek summary judgment regarding the 16 claims under the First Amendment and A.R.S. § 23-1411(A) is that Craven’s speech was 17 not “a but-for cause” of the board’s decision to dissolve the Wildland Division. (Doc. 71 18 at 7). In the context of a public employee’s retaliation claim, the burden regarding this 19 issue is on the employer. Thus, this element can be viewed as an “affirmative defense.” 20 Ostad v. Oregon Health Scis. Univ., 327 F.3d 876 , 885 (9th Cir. 2003). If an employer 21 wishes to invoke this affirmative defense, it must show “the employee’s protected speech 22 was not a but-for cause of the adverse employment action.” Eng v. Cooley, 552 F.3d 23 1062, 1072 (9th Cir. 2009). That is, the employer must show it “would have made the 24 same employment decisions even absent the questioned speech.” Id. 25 In opposing summary judgment, Craven does not address this argument. Rather, 26 Craven repeatedly argues he has sufficient evidence to establish dissolution of the 27 Wildland Division “was motivated by . . . Plaintiff’s good faith concerns of gross 28 financial mismanagement and actual and possible violations of law.” (Doc. 75 at 8). But 1 even accepting that is true, the issue of “but-for” causation remains. Put in terms of the 2 five steps, Craven has focused his argument entirely on the third step, i.e. whether his 3 “protected speech was a substantial or motivating factor in the adverse employment 4 action.” Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009). But Defendants’ summary 5 judgment argument is based on the fifth step, i.e. whether the Fire District board would 6 have dissolved the Wildland Division “even absent the protected speech.” Id. 7 Determining whether Defendants would have made the same decision “even 8 absent the protected speech” is “purely a question of fact” but summary judgment can be 9 granted when a plaintiff fails to “dispute” the issue. Karl v. City of Mountlake Terrace, [10] 678 F.3d 1062, 1072 (9th Cir. 2012). Given Craven’s failure to address the issue directly 11 in his summary judgment opposition, summary judgment could be granted. But the 12 Court is permitted to consider the entire record and there are aspects of that record 13 Craven cites in other contexts showing there are disputes of fact regarding the reason the 14 board dissolved the Wildland Division. 15 It is undisputed the Wildland Division’s activities were creating accounting issues 16 for the Fire District. Craven admits “there were occasions where it may take months for 17 the [Fire District] to be reimbursed.” (Doc. 76 at 7). And he further admits “[t]his 18 resulted in large monthly swings in the [Fire] District’s income and expenses.” (Doc. 76 19 at 7). In addition, Starla Kizzar, the “Clerk and Office Manager” for the Fire District, did 20 not believe the Wildland Division was financially sound. (Doc. 75 at 4). Kizzar created 21 a document outlining the Fire District’s “profit and loss” and the impact the Wildland 22 Division was having. In Kizzar’s opinion, “wildland was not a fiscally sound operation 23 for such a small department that has a limited fund.” (Doc. 72-3 at 8). Kizzar shared that 24 information with Chief Garvin and the board.5 (Doc. 72-3 at 8). 25 This evidence establishes the board might have had a legitimate financial reason 26 5 In his “Additional Undisputed Material Facts,” Craven states Kizzar’s document “was inaccurate and significantly under-reported the profits made by the Wildland Division by 27 almost $120,000.” (Doc. 76 at 19). In support of this statement, Craven cites to the depositions of Chief Garvin, Neill, and Kizzar. The referenced deposition excerpts, 28 however, contain no statements establishing Kizzar’s document was off by approximately $120,000. 1 for dissolving the Wildland Division. But there is other evidence showing that financial 2 reason may not have been sufficient on its own. Shortly after the board’s decision to 3 dissolve the Wildland Division, another firefighter recorded a conversation with Chief 4 Garvin. During that conversation, Chief Garvin explained the decision to dissolve the 5 Wildland Division: “A lot of it was [Craven’s] attitude. I mean, he’s threatening the 6 Board members, threatening me a lot.” Chief Garvin then stated, “I can’t make the 7 budget work.” (Doc. 76-22 at 4). But Chief Garvin also claimed the decision to dissolve 8 the division “really, basically, came down to [Craven’s] threats . . . Moneywise, it wasn’t 9 that big a difference.” (Doc. 76-22 at 6). When asked if the Wildland Division would 10 ever come back, Chief Garvin stated “[a]s soon as you get me a red card – or an engine 11 card,” meaning as soon as there was another individual with the qualifications to run the 12 Wildland Division, the Fire District would reestablish it. (Doc. 76-22 at 7). Finally, 13 Chief Garvin told the firefighter “the Board didn’t fire you for moneywise. . . . and they 14 didn’t fire [Craven], they just dissolved the Wildland . . . Because of the turmoil 15 [Craven’s] caused them.” (Doc. 76-22 at 8). 16 Based on these statements, there is a genuine dispute of material fact whether the 17 Wildland Division would have been dissolved even if Craven had not engaged in 18 protected speech regarding budget issues. Therefore, the First Amendment and A.R.S. 19 § 23-1411(A) claims must proceed to trial.6 20 C. FLSA and Arizona law 21 Craven alleges the Wildland Division was dissolved because of his complaints to 22 Chief Garvin regarding alleged violations of federal and state wage laws. In particular, 23 Craven alleges he complained to Chief Garvin about these issues “merely days” before 24 the board dissolved the Wildland Division. (Doc. 75 at 14). As set forth above regarding 25 Craven’s other retaliation claims, there is genuine uncertainty regarding why the board 26 voted to dissolve the Wildland Division. Whether the board was motivated by alleged 27 6 Craven argues the destruction of the audio recording of the board meeting was spoliation of evidence such that he is entitled to a presumption the recording would have 28 been favorable to his claims. (Doc. 75 at 9). The remedy for the destruction of the recording, if any, can be resolved in pretrial filings. 1 financial stress caused by the Wildland Division or Craven’s many “complaints” 2 regarding wage issues must be resolved at trial.7 3 III. Intentional Interference with Employment 4 Craven alleges a claim against Chief Garvin for intentional interference with his 5 employment contract. Chief Garvin seeks summary judgment on this claim, arguing 6 “[o]nly a third party to a contract or employment relationship may be liable for tortious 7 interference.” (Doc. 71 at 13). Craven responds that Arizona law allows for a supervisor 8 to be liable for “tortious interference” if the supervisor “intentionally and improperly 9 interfered.” (Doc. 75 at 15). It is not clear what Craven is trying to argue as intentional 10 and improper interference are simply some of the basic elements required for this claim. 11 But regardless of Craven’s position, Arizona law is straightforward. 12 “[W]hen an individual supervisor/defendant was acting within the scope of 13 authority as a management representative, he or she was, in effect, the employer, and 14 could not interfere with his or her own contract.” Higgins v. Assmann Elecs., Inc., 173 15 P.3d 453 , 457 (Ariz. Ct. App. 2007). Here, Chief Garvin was acting in the scope of his 16 authority in reporting to the board. Therefore, Chief Garvin cannot be liable for 17 interfering with Craven’s employment contract. Chief Garvin is entitled to summary 18 judgment on this claim. 19 IV. Defamation and False Light 20 In seeking summary judgment Chief Garvin identified five statements that Craven 21 previously identified as the basis for his defamation and false light claims. (Doc. 76 at 22 15-16). Craven’s opposition to the motion for summary judgment addresses only one of 23 the statements.8 Therefore, the Court will treat the other four statements as abandoned 24 and analyze the only statement Craven squarely addresses in his summary judgment [25] 7 In the context of FLSA retaliation, the “dual motive” test still applies. Knickerbocker v. 26 City of Stockton, 81 F.3d 907, 911 (9th Cir. 1996). Under that test, Craven must show his FLSA-protected complaints were a “substantial factor” in the decision to dissolve the 27 Wildland Division and Defendants may then avoid liability by showing the same decision would have been reached even if “the proper reason alone had existed.” Id. 28 8 Craven mentions some of the other statements but does not present any arguments regarding those statements. (Doc. 75 at 15-16). 1 opposition. 2 In January 2019, Chief Garvin stated Craven “won’t come out at night because 3 he’s got to suck on his bottle, but he’s good help the next day.” (Doc. 76-3 at 14). Chief 4 Garvin argues the content of this statement is not sufficient to support liability under a 5 defamation claim. Chief Garvin further claims the number of individuals present at the 6 time cannot support liability under a false light claim. Neither argument is convincing. 7 To establish liability on his defamation claim, Craven must point to evidence that 8 Chief Garvin published a false communication that brought Craven “into disrepute, 9 contempt, or ridicule,” or that impeached Craven’s “honesty, integrity, virtue, or 10 reputation.” Godbehere v. Phoenix Newspapers, Inc., 783 P.2d 781, 787 (Ariz. 1989). 11 Chief Garvin argues the statement about Craven needing to “suck on his bottle” was 12 “intended and interpreted as a figurative or hyperbolic joke, not a factual accusation 13 against Craven.” (Doc. 71 at 15). 14 “Whether a statement is capable of defamatory meaning is a question of law for 15 the court, but whether the meaning conveyed was defamatory is a question for the jury.” 16 Dube v. Likins, 167 P.3d 93, 106 (Ariz. Ct. App. 2007). In deciding whether “a statement 17 is even capable of a defamatory meaning,” the Court must evaluate “all the 18 circumstances.” Id. Thus, the Court must determine whether Chief Garvin’s statement 19 was “one that stated or implied an assertion of objective fact from the point of view of the 20 reasonable person hearing it at the time and under the circumstances under which it was 21 made.” Yetman v. Eng., 811 P.2d 323, 328 (Ariz. 1991). 22 A reasonable person hearing Chief Garvin’s statement might interpret the 23 statement as stating or implying “an assertion of objective fact,” i.e. that Craven could 24 not work at night because “he’s got to” drink alcohol. Whether Craven’s consumption of 25 alcohol did, in fact, prevent him from working presents an issue of objective fact. At the 26 very least, as explained by the Arizona Supreme Court, in “cases involving assertions to 27 which reasonable people might clearly give conflicting interpretations . . . the question 28 must be left to the jury.” Id. at 331 . 1 As for Chief Garvin’s position that the statement was not capable of defamatory 2 meaning because it did not bring Craven “into disrepute, contempt or ridicule,” the 3 statement is at least capable of doing so. Asserting that Craven was unable to function at 4 night because of his need to drink alcohol could subject Craven to ridicule or bring his 5 character into disrepute. See, e.g., Dube v. Likins, 167 P.3d 93, 106 (Ariz. Ct. App. 2007) 6 (statements that student had “committed an ‘indiscretion’ or ‘transgressions,’” were 7 “capable of defamatory meaning”). The defamation claim must proceed to trial. 8 Craven has a separate claim for “false light invasion of privacy” based on the same 9 “suck on his bottle” statement. False light “is recognized in Arizona as a tort separate 10 from defamation.” Desert Palm Surgical Grp., P.L.C. v. Petta, 343 P.3d 438, 450 (Ariz. 11 Ct. App. 2015). But the distinction between false light and defamation is “subtle.” Id. 12 “In most cases, the false light theory will add little if anything beyond the relief a 13 defamation or emotional distress claim will provide.” Godbehere v. Phoenix 14 Newspapers, Inc., 783 P.2d 781, 788 (Ariz. 1989). However, a false light claim can be 15 viewed as slightly broader than a defamation claim in that a false light claim may be 16 based on “the publication of true information” if that publication “creates a false 17 implication about the individual.” Id. Moreover, “Arizona law allows false light 18 plaintiffs to recover damages for injuries that are distinct from the injuries” redressable 19 by “a parallel defamation claim.” Ultimate Creations, Inc. v. McMahon, 515 F. Supp. 2d 20 1060, 1068 (D. Ariz. 2007). 21 For his false light claim, Craven must show Chief Garvin gave “publicity” to a 22 statement “with knowledge of falsity or reckless disregard for the truth” that placed 23 Craven in a false light, and “the false light in which [Craven] was placed would be highly 24 offensive to a reasonable person in [Craven’s] position.” Desert Palm Surgical Grp., 25 P.L.C. v. Petta, 343 P.3d 438, 450 (Ariz. Ct. App. 2015). Of particular importance, the 26 “publicity” requirement for a false light claim is different than the “publication” 27 requirement for a defamation claim. While “publication” for a defamation claim 28 “includes any communication by the defendant to a third person,” the “publicity” 1 necessary for a false light claim is more demanding. Hart v. Seven Resorts Inc., 947 P.2d 2 846, 854 (Ariz. Ct. App. 1997). To meet the false light “publicity” requirement, the 3 communication must have been made “to the public at large, or to so many persons that 4 the matter must be regarded substantially certain to become one of public knowledge.” [5] Id. Thus, it is not enough to make a statement “to a single person or even to a small 6 group of persons.” Id. Instead, the statement must have been made “in a newspaper or 7 magazine, even of small circulation” or “in an address to a large audience.” Id. 8 The sole basis on which Chief Garvin seeks summary judgment regarding 9 Craven’s false light claim is the alleged failure to meet the “publicity” requirement. 10 According to Chief Garvin, the “bottle” statement was not “communicated to the public 11 at large.” (Doc. 71 at 16). There is, however, a dispute of fact regarding whether this 12 requirement is met. The statement was made at a meeting attended by possibly as many 13 as thirty individuals. Unfortunately, the parties have not cited any authority addressing 14 the line between a “small group” and a “large audience.” But viewed in the light most 15 favorable to Craven, thirty individuals could qualify as a “large audience.” Therefore, 16 there is a dispute of fact regarding the publicity element and the false light claim must 17 proceed to trial. 18 V. Summary 19 All claims must proceed to trial with the exception of the claim under the AEPA 20 and the claim for intentional interference with employment relationship. Based on 21 Craven’s briefing, however, the only statement at issue for the defamation and false light 22 claims is Chief Garvin’s “bottle” statement. 23 Accordingly, 24 IT IS ORDERED the Motion for Summary Judgment (Doc. 71) is GRANTED 25 IN PART and DENIED IN PART. 26 IT IS FURTHER ORDERED all Motions in Limine are due November 26, 27 2021. Responses are due ten days afterward. No replies are permitted unless ordered by 28 the Court. Prior to filing any Motion in Limine, the parties must confer and discuss the 1 contents of each planned motion. No Motion in Limine should be filed if the other party 2 does not oppose the relief requested. 3 IT IS FURTHER ORDERED the Joint Proposed Pretrial Order is due 4 November 19, 2021. 5 IT IS FURTHER ORDERED the parties shall review the Court’s standard Juror 6 Questionnaire (available on the Court’s website) and submit NO MORE THAN FIVE 7 PROPOSED QUESTIONS EACH to be added to the standard Juror Questionnaire with 8 the Court’s approval no later than November 5, 2021. Each proposed question shall 9 stand alone and shall not contain sub-parts. 10 IT IS FURTHER ORDERED the parties shall submit a Joint Statement of the 11 Case, of no more than a few short sentences for the Juror Questionnaire, no later than 12 November 5, 2021. 13 IT IS FURTHER ORDERED the parties shall submit a second Joint Statement 14 of the Case, of no more than two short paragraphs to be read to the jury, no later than 15 November 19, 2021. 16 IT IS FURTHER ORDERED no later than November 19, 2021, the parties shall 17 file and submit via email (silver_chambers@azd.uscourts.gov) in Word format proposed 18 Jury Instructions in compliance with the procedures available on the Court’s website, 19 including but not limited to: 1) a joint set of proposed jury instructions where the parties’ 20 instructions agree; 2) a separate set of instructions (one for each party) where the parties 21 do not agree; and 3) legal authority supporting all proposed instructions whether the 22 parties agree or not. Where the parties do not agree, the opposing party shall clearly state 23 its objection to the proposed instruction and the proposing party shall clearly state its 24 response. 25 IT IS FURTHER ORDERED the parties will jointly file a proposed form of 26 verdict, or if the parties do not agree, they may separately file proposed forms of verdict 27 no later than November 19, 2021. 28 … 1 IT IS FURTHER ORDERED no later than November 19, 2021, the parties shall 2 deliver to chambers excerpts of the deposition testimony they propose to present at trial, 3 in compliance with the procedures available on the Court’s website (found in Deposition 4 Designation Procedure for Judge Silver), including but not limited to: Plaintiffs 5 highlighting in yellow the portions they wish to offer and Defendants highlighting in blue 6 those portions they wish to offer. If either party objects to the proposed testimony, a 7 specific and concise objection (e.g., “Relevance, Rule 402”) shall be placed in the margin 8 adjacent to the proposed testimony. 9 IT IS FURTHER ORDERED a final pretrial conference is set for January 11, 10 2022, at 2:00 p.m., at which time the Court will review Juror Questionnaires. The 11 parties shall meet and confer prior to this date regarding the Juror Questionnaires and 12 email to the Courtroom Deputy no later than noon on January 6, 2022, a list of any 13 jurors they agree should be stricken for cause, along with any objections to jurors they do 14 not agree should be stricken for cause. The parties shall not file this list. The Court 15 will rule on any disputed jurors at the final pretrial conference. 16 The parties will be supplied a disk containing the questionnaires 17 approximately one week prior to the final pretrial conference. Counsel shall bring a 18 copy of the questionnaires to the conference for review. Counsel are required to 19 return the disk to the Courtroom Deputy and destroy all copies of the 20 questionnaires no later than the last day of trial. 21 IT IS FURTHER ORDERED trial to a jury is set for January 25, 2022 at 9:00 22 a.m. Estimated length of trial is four days. 23 … 24 … 25 … 26 … 27 … 28 … 1 IT IS FURTHER ORDERED the parties shall comply with the Exhibit 2|| Procedures found on the Court’s website at www.azd.uscourts.gov / Judges’ Information / Orders, Forms & Procedures for Hon. Roslyn O. Silver. 4 Dated this 19th day of August, 2021. 5 fo . 7 Honorable slyn ©. Silver g Senior United States District Judge [28] -22-