Brandon et al v. Liddy et al
Filing
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ORDER denying 217 motion for judgment as a matter of law or alternatively for a new trial. See order for details. Signed by Senior Judge Frederick J Martone on 9/2/2014.(LMR)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Maria Brandon,
Plaintiff,
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vs.
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Tom Liddy, et al.,
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Defendants.
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No. CV-12-0788-PHX-FJM
ORDER
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Before the court is Defendants Maricopa County, Sandra Wilson, and Rocky
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Armfield’s motion for judgment as a matter of law, or in the alternative for a new trial (doc.
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217), Plaintiff Maria Brandon’s response (doc. 225), and Defendants’ reply (doc. 226). After
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a seven-day trial, the jury returned a verdict in favor of Brandon and against Maricopa
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County on Brandon’s claim under 42 U.S.C. § 1983 for violation of Brandon’s First
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Amendment rights and awarded nominal damages of $1.00. The jury also found in favor of
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Brandon and against Defendants Armfield and Wilson on Brandon’s state law claim of
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tortious interference with employment contract and awarded Brandon $638,147.94.
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Defendants have filed this motion for judgment as a matter of law challenging these verdicts.
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I.
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Defendants first argue that the jury’s verdict against Maricopa County on Brandon’s
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First Amendment claim conflicts with the verdict in favor of the County on Brandon’s
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wrongful termination claim, such that the verdicts must be vacated. According to Defendants
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the verdicts on the two claims are legally indistinguishable and thus no rational jury could
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find liability on one claim and not the other. Defendants’ efforts to characterize this as
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something other than an inconsistency argument are wholly unpersuasive.
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Where a verdict “contains two legal conclusions that are inconsistent with one
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another,” a party must object before the jury is discharged or risk waiving the objection.
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Kode v. Carlson, 596 F.3d 608, 611 (9th Cir. 2010); Zhang v. Am. Gem Seafoods, Inc., 339
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F.3d 1020, 1030-36 (9th Cir. 2003). After the verdicts were read in court, we asked the
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lawyers if they fully understood each of the verdicts. Tr. (doc. 195) at 22-23. We cautioned
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that we did not want to discharge the jury if there was going to be “any issue about what
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these verdicts mean.” Id. Both counsel responded they had no questions. Id. By failing to
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make an objection before the jury was discharged, Defendants have waived the argument that
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the general verdicts rendered by the jury are legally inconsistent. See Zhang, 339 F.3d at
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1030-36; Philippine Nat’l Oil Co. v. Garrett Corp., 724 F.2d 803, 806 (9th Cir. 1984).
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Even if waiver was not dispositive, we would nevertheless deny Defendants’ motion.
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Defendants challenge what they believe are legal inconsistencies in the jury’s conclusions
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on two or more general verdicts. Legal inconsistencies between general verdicts on different
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claims “are not an anomaly in the law” and are generally upheld. Zhang at 1035-36
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(collecting cases). Courts will recognize a jury’s right to such “an idiosyncratic position,
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provided the challenged verdict is based upon the evidence and the law.” Id. at 1036.
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The jury’s verdict finding that Maricopa County violated Brandon’s First Amendment
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rights when it terminated her for her statement to the Arizona Republic is supported by more
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than sufficient evidence. We will not speculate as to how the jury arrived at the verdicts.
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Had Defendants objected before the jury was discharged, we might have had the answer.
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Regardless of the jury’s rationale, however, because the challenged verdicts are supported
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by the evidence and the law, Defendants’ motion for judgment as a matter of law, or
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alternatively for a new trial on the basis of inconsistent verdicts is denied.
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II.
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Maricopa County next challenges the jury’s verdict in favor of Brandon on her § 1983
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claim that her First Amendment rights were violated when she was fired in retaliation for a
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statement she made to a reporter at the Arizona Republic. The statement involved a case that
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Brandon handled while working for the Maricopa County Attorney’s Office (“MCAO”).
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Maricopa County argues that there was insufficient evidence produced at trial from which
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the jury could conclude that Brandon acted in her capacity as a private citizen, rather than
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a public employee, when she spoke to the press.
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“Speech by citizens on matters of public concern lies at the heart of the First
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Amendment.” Lane v. Franks, 134 S. Ct. 2369, 2377 (2014). Accordingly, “citizens do not
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surrender their First Amendment rights by accepting public appointment.” Id. at 2374. Nor
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does speech made at work or concerning work lose its First Amendment protection. Garcetti
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v. Ceballos, 547 U.S. 410, 420-21, 126 S. Ct. 1951, 1959 (2006). “[W]hen public employees
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make statements pursuant to their official duties, the employees are not speaking as citizens
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for First Amendment purposes, and the Constitution does not insulate their communications
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from employer discipline.” Id. at 421, 126 S. Ct. at 1960. Conversely, a public employee
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speaks as a private citizen with protected speech “if the speaker had no official duty to make
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the questioned statements, or if the speech was not the product of performing the tasks the
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employee was paid to perform.” Posey v. Lake Pend Oreille Sch. Dist., 546 F.3d 1121, 1127
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n.2 (9th Cir. 2008) (citations omitted). The key inquiry in determining whether speech is
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public or private is whether the speech was made pursuant to the employee’s official duties.
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Garcetti, 547 U.S. at 421, 126 S. Ct. at 1959-60.
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Whether a public employee is speaking as a private citizen or public employee is a
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mixed question of law and fact. Posey, 546 F.3d at 1129. “[T]he question of the scope and
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content of a plaintiff’s job responsibilities is a question of fact,” and “the ultimate
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constitutional significance of the facts as found is a question of law.” Eng v. Cooley, 552
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F.3d 1062, 1071 (9th Cir. 2009) (quoting Posey, 546 F.3d at 1129-30).
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In arguing that Brandon spoke to the press as a public employee whose speech is not
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protected by the First Amendment, Defendants rely on evidence that Brandon spoke to an
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Arizona Republic reporter (1) about a case she handled in her capacity as deputy county
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attorney, (2) the resulting newspaper article identified her by her official job title and
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described her official involvement in the case, and (3) the speech took place in Brandon’s
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office, on her office phone, during business hours. Defendants urge that these facts require
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a finding as a matter of law that Brandon acted in her official capacity when she spoke to the
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press. This argument misses the mark.
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The Supreme Court has made clear “the mere fact that a citizen’s speech concerns
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information acquired by virtue of his public employment does not transform that speech into
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employee–rather than citizen–speech.” Lane, 134 S. Ct. at 2379. Indeed, the Court has
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recognized that speech by public employees on matters related to their employment “holds
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special value precisely because those employees gain knowledge of matters of public concern
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through their employment.” Id. (citing Pickering v. Bd. of Educ., 391 U.S. 563, 572, 88 S.
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Ct. 1731, 1736 (1968)). “[I]t is essential that [public employees] be able to speak out freely
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on such questions without fear of retaliatory dismissal.” Pickering, 391 U.S. at 572, 88 S.
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Ct. at 1736.
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The evidence presented at trial established that Brandon’s official job duties did not
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include speaking to the press. William Montgomery, Maricopa County Attorney and
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Brandon’s supervisor, testified that Brandon was not speaking on behalf of the MCAO when
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she spoke to the reporter. Montgomery testified that there was “nothing to indicate she was
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doing anything other than speaking as a citizen.” Tr. (doc. 206) at 59. Mark Faull, Chief
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Deputy Maricopa County Attorney, testified that when speaking to the press, deputy county
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attorneys are speaking on behalf of themselves unless they have cleared their statements with
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the County Attorney. Tr. (doc. 208) at 185.
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No evidence was presented at trial demonstrating that speaking to the press was part
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of Brandon’s official duties. Accordingly, the jury reasonably concluded that Brandon was
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speaking as a private citizen and not as part of her official duties when she made her
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statement to the press.
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We acknowledge the County ‘s interest in “promoting efficiency and integrity in the
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discharge of official duties” and “maintain[ing] proper discipline in the public service,”
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including the authority to discipline its employees for improper or harmful comments to the
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press. Connick v. Myers, 461 U.S. 138, 150-51, 103 S. Ct. 1684, 1692 (1983) (quotations
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omitted). However, Defendants have made no effort to show that the County’s interest in
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maintaining proper discipline outweighed Brandon’s right to speak.
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Defendants presented no evidence that Brandon’s statement to the press violated her
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employer’s rule or policy, or that the statement was false, harmful, confidential, or
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privileged. See Lane, 134 S. Ct. at 2381. Nor do Defendants contend that Brandon’s speech
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somehow disrupted the workplace or interfered with her duties. Under these circumstances,
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we conclude that Brandon’s speech was entitled to First Amendment protection. Defendants’
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motion for judgment as a matter of law on Brandon’s First Amendment claim is denied.
For example,
III.
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Defendants next present several challenges to the jury’s verdict finding in favor of
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Brandon and against Sandra Wilson and Rocky Armfield on Brandon’s state law claim for
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tortious interference with employment contract and the award of $638,147.94 in damages.
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A.
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Defendants argue that they are entitled to judgment as a matter of law because a
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person acting on behalf of an employer is acting as the employer and cannot interfere with
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its own contract. We have rejected this argument multiple times throughout this case.
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To prevail on a claim for tortious interference with contract, a plaintiff must show (1)
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a valid contractual relationship between plaintiff and a third party, (2) the defendant’s
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knowledge of the contract, (3) intentional interference by defendant that caused the third
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party to breach the contract, (4) defendant’s conduct was improper, and (5) damages. See
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Wagenseller v. Scottsdale Mem’l Hosp., 147 Ariz. 370, 386, 710 P.2d 1025, 1041 (1985)
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(superseded by statute on other grounds). Only the first factor is at issue in the present
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motion.
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It is undisputed that the employment contract was between Maria Brandon and
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Maricopa County Attorney William Montgomery, an elected public official with duties
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prescribed under A.R.S. § 11-532. As County Attorney, Montgomery has the authority to
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appoint the staff necessary to conduct the affairs of his office. A.R.S. § 11-409. Brandon
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was appointed pursuant to this authority. Defendants’ broad characterization of Brandon’s
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employer as “Maricopa County” inaccurately describes the parties to Brandon’s employment
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contract.
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In contrast, Defendant Sandra Wilson was the Deputy County Manager whose
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responsibilities included oversight of Risk Management, and Rocky Armfield was the
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Director of Risk Management. Both Wilson and Armfield conceded that they had no
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supervisory authority over Brandon or any Maricopa County attorney, and that it would be
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inappropriate for them to interfere with Brandon’s employment relationship with the MCAO.
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Tr. (doc. 207) at 17 (Wilson); Tr. (doc. 207) at 75 (Armfield). While the Board of
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Supervisors has authority to fix salaries and consent to appointments within the MCAO,
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A.R.S. § 11-409, neither the Board, nor Risk Management was a party to the employment
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contract or could dictate the assignment of Risk Management cases. Tr. (doc. 206) at 36-37.
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Thus, the third-party prong of Wagenseller is satisfied.
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Defendants cite to numerous cases where courts have rejected tortious interference
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with employment contract claims asserted against an employee’s supervisor. See, e.g., Mintz
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v. Bell Atl. Sys. Leasing Int’l, Inc., 183 Ariz. 550 (Ct. App. 1995); Spratt v. Northern Auto.
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Corp., 958 F. Supp. 456 (D. Ariz. 1996); Villodas v. HealthSouth Corp., 338 F. Supp. 2d
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1096 (D. Ariz. 2004). The courts reasoned that the supervisor is acting on behalf of the
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employer, and thus there is no third-party. These cases are inapplicable here, however,
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because neither Wilson nor Armfield was Brandon’s supervisor. When Wilson and Armfield
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demanded that Brandon be removed from Risk Management cases, they were not acting on
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behalf of Brandon’s employer–the Maricopa County Attorney. Instead, the evidence
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produced at trial showed that Wilson and Armfield had no authority over the terms and
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conditions of Brandon’s employment, including her work assignments.
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The jury could have reasonably concluded that Wilson and Armfield tortiously
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interfered with Brandon’s employment contract with the Maricopa County Attorney when
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they improperly and outside the scope of their authority, demanded that Brandon be removed
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from all Risk Management cases, resulting in a 95% reduction in her workload, and
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ultimately her termination. Defendants’ motion for judgment as a matter of law on the claim
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of tortious interference with employment contract is denied.
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B.
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Defendants also challenge the jury’s damages award of $638,147.94 against Wilson
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and Armfield on the tortious interference claim. They first argue that there is insufficient
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evidence of a causal connection between Wilson and Armfield’s wrongful
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conduct—demanding that Brandon’s cases be reassigned—and the damage award associated
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with her termination—lost wages and benefits. We disagree.
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There was ample evidence at trial of the role that Wilson and Armfield played in
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transferring Risk Management cases away from Maria Brandon. Tr. (doc. 204) at 191. The
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jury could have reasonably concluded that Wilson and Armfield’s efforts to remove Brandon
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from Risk Management cases all but eliminated her workload and undermined her reputation
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and standing in the Maricopa County Attorney’s Office, ultimately leading to her discharge.
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There is more than sufficient evidence of a causal connection between Wilson and
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Armfield’s wrongful conduct and Brandon’s damages.
C.
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Defendants also challenge the damages award as not supported by the evidence. They
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believe that the only evidence of damages presented at trial related to Brandon’s salary and
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benefits amounting to no more than $400,000. Defendants argue that the jury’s award of
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“nearly twice that amount” is excessive and not supported by the evidence. Again we
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disagree.
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The jury returned a general verdict identifying a total damage award without any
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specification as to how that award was determined. On its face, a damage award of over
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$600,000, calculated to the penny, indicates that the jury carefully considered the award.
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Brandon sought damages not only for lost wages and benefits, but also past and
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present damages for mental, physical and emotional pain, damage to her reputation, social
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and business standing, and the value of lost employment opportunities. Tr. (doc. 204) at 191-
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94; Tr. (doc. 205) at 37; Tr. (doc. 210) at 78-79. “Once the right to damages is established,
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uncertainty as to the amount of damages does not preclude recovery.”
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Physiotherapy Assocs., 215 Ariz. 154, 162, 158 P.3d 877, 885 (Ct. App. 2007). Brandon
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testified about the emotional and economic consequences she suffered as a result of her
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termination at the age of 62 after 33 years of employment with the County. The jury could
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have reasonably concluded that an additional award of $240,000 fairly compensated Brandon
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for these imprecise, but not speculative, injuries.
Felder v.
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Finally, we reject Defendants’ argument that because the client has a fundamental
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right to select its lawyer, public policy and professional ethics dictate that Wilson and
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Armfield cannot be liable for insisting that Brandon not work on Risk Management cases.
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But Risk Management is not the “client” for purposes of this analysis. Instead, the evidence
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showed that only Bill Montgomery had the right to assign Risk Management cases to deputy
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county attorneys. Wilson and Armfield had no authority to select the lawyers or affect the
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assignment of cases.
IV.
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IT IS ORDERED DENYING Defendants’ motion for judgment as a matter of law
or alternatively for a new trial (doc. 217).
DATED this 2nd day of September, 2014.
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