Noriega v. Arizona, State of et al

Filing 59

ORDER - IT IS THEREFORE ORDERED granting in part and denying in part Plaintiff Donna Noriega's Motion for Partial Summary Judgment (Doc. 42 ). Plaintiff is entitled to summary judgment as to Counts 2 and 3, but not Count 1. The Court will set a pre-trial status conference by separate Order. IT IS FURTHER ORDERED denying Defendants State of Arizona, Cara Christ, and Unknown Christ's Cross-Motion for Summary Judgment (Doc. 44 ). (See document for further details). Signed by Judge John J Tuchi on 6/16/17.(SLQ)

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NOT FOR PUBLICATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Donna Noriega,

No. CV-16-01015-PHX-JJT
Plaintiff,

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v.

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ORDER

Arizona, State of, et al.,

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Defendants.

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At issue are Plaintiff Donna Noriega’s Motion for Partial Summary Judgment

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(Doc. 42, Pl.’s MPSJ), to which Defendants State of Arizona, Cara Christ, and Unknown

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Christ filed a Response (Doc. 46, Defs.’ Resp.), and in support of which Plaintiff filed a

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Reply (Doc. 58, Pl.’s Reply); and Defendants’ Cross-Motion for Summary Judgment

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(Doc. 44, Defs.’ MSJ), to which Plaintiff filed a Response (Doc. 48, Pl.’s Resp.), and in

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support of which Defendants filed a Reply (Doc. 57, Defs.’ Reply). The Court elects to

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resolve the parties’ cross motions without oral argument. See LRCiv 7.2(f).

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I.

BACKGROUND

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Beginning in 2004, Plaintiff was employed by Arizona State Hospital (“ASH”)—a

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State run facility and division of the Arizona Department of Health Services (“ADHS”)—

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as an allied health administrator. Over the course of the following 11 years, Plaintiff held

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various titles with increasing levels of responsibility, including Chief Operations Officer.

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Eventually,

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Officer/Superintendent and occupied that position during the relevant time period.

in

September

2013,

Plaintiff

was

appointed

Chief

Executive

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Defendant Dr. Cara Christ has worked for ADHS since 2008 and is a licensed

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physician specializing in obstetrics and gynecology. Dr. Christ held several executive

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level positions within ADHS, including Chief Medical Officer for Public Health and

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Assistant Director of Licensing Services. On May 13, 2015, while Interim Director Corey

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Nelson was on leave, Dr. Christ was appointed Acting ADHS Director.

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The parties allege and dispute a vast amount of facts regarding ASH’s operations

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during Plaintiff’s tenure as COO and CEO/Superintendent, Plaintiff’s oversight

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responsibilities, and ASH’s compliance with the requirements of various regulatory

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agencies, including the Centers for Medicare and Medicaid Services. The parties also

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detail specific incidents and investigations, local news reports and inquiries stemming

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from those incidents, and the possibility of a catastrophic loss of funding due to each.

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While these facts—which are categorically in dispute—may be relevant to Plaintiff’s

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termination, and thus the factual merits of her wrongful termination claim in a vacuum,

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they are not dispositive in deciding the current Motions, and a complete recitation of the

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allegations would be of no benefit.1 It is sufficient to acknowledge the internal and

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external turmoil that enveloped ASH at the time of Plaintiff’s termination and that the

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parties disagree as to cause, fault, and ultimate responsibility.

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Purportedly in the wake of the foregoing investigations and tumult, Dr. Christ

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placed Plaintiff on administrative leave on May 13, 2015, while ADHS examined reports

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of negligence and malfeasance at ASH. During the proceeding weeks, neither Dr. Christ

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nor any other ASH representative or investigator contacted Plaintiff regarding the

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allegations against her. On May 29, 2015, Dr. Christ informed Plaintiff via telephone that

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she could resign or would be terminated. The same day, Plaintiff received a termination

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letter stating that her “services were no longer needed” and that “as an uncovered

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employee” she did not have the “right to grieve this action or the right to appeal this

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action to either the Law Enforcement Merit System Council or the State Personnel

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The Court also acknowledges Plaintiff’s arguments regarding the admissibility of
Defendants’ evidence, which are equally irrelevant to the resolution of these Motions.
(See Pl.’s Resp. at 3-4; Docs. 50-54.)
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Board.” Thus, Defendants did not offer Plaintiff any pre-termination notice or

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opportunity to be heard, nor did they provide a post-termination hearing. Defendants

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never explicitly informed Plaintiff of the charges against her, nor did they tell her she was

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being terminated for cause.

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Although Dr. Christ ostensibly believed that Plaintiff was an at-will employee who

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could be freely fired under A.R.S. § 41-742(A)(2)(b), human resources representatives

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eventually informed her that Plaintiff could only be dismissed for cause under A.R.S

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§ 36-205.2 Dr. Christ acknowledged a mistake was made but took no action because she

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thought that Plaintiff did not know of the statute or the rights and recourse it afforded her,

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and regardless, they had good cause to terminate Plaintiff.

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On November 5, 2015, Plaintiff’s counsel sent Defendants a “Notice of Claim

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Pursuant to A.R.S. § 12-821.01,” informing them of the purported improper termination

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and Plaintiff’s intent to file suit in Maricopa County Superior Court alleging claims

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arising out of 42 U.S.C. § 1983 et seq., and A.R.S. §§ 23-1501 and 36-205. Plaintiff’s

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Notice stated that Defendants identified no cause for her termination and offered to settle

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the claims for $570,960. Plaintiff did not request explanation of the charges against her,

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an opportunity to be heard or appeal, or reinstatement.

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Plaintiff then filed her Complaint in Maricopa County Superior Court on

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March 22, 2016, alleging Wrongful Termination (Count 1), Due Process Violations

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(Count 2), and seeking Declaratory and Equitable Relief for violation of 42 U.S.C.

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§ 1983 (Count 3). (Doc. 1 Ex. A.) On April 12, 2016, Defendants removed the action to

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this Court pursuant to 28 U.S.C. § 1441(a). (Doc. 1.)

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II.

LEGAL STANDARD

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Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is

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appropriate when: (1) the movant shows that there is no genuine dispute as to any

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Despite the opinion of their human resources department, for the majority of this
litigation Defendants have maintained that A.R.S. § 41-742 should trump § 36-205—
meaning Plaintiff is not entitled to any process—and that this belief served constituted
Defendants’ rationale as expressed in Plaintiff’s termination letter. (See, e.g., Doc. 8.)
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material fact; and (2) after viewing the evidence most favorably to the non-moving party,

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the movant is entitled to prevail as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v.

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Catrett, 477 U.S. 317, 322–23 (1986); Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285,

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1288–89 (9th Cir. 1987). Under this standard, “[o]nly disputes over facts that might affect

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the outcome of the suit under governing [substantive] law will properly preclude the

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entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

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A “genuine issue” of material fact arises only “if the evidence is such that a reasonable

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jury could return a verdict for the non-moving party.” Id.

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In considering a motion for summary judgment, the court must regard as true the

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non-moving party’s evidence if it is supported by affidavits or other evidentiary material.

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Celotex, 477 U.S. at 324; Eisenberg, 815 F.2d at 1289. “Summary judgment must be

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entered ‘against a party who fails to make a showing sufficient to establish the existence

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of an element essential to that party’s case, and on which that party will bear the burden

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of proof at trial.’” United States v. Carter, 906 F.2d 1375, 1376 (9th Cir. 1990) (quoting

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Celotex, 477 U.S. at 322).

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III.

ANALYSIS

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Plaintiff moves for summary judgment on each remaining count of her Complaint.

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Plaintiff contends that: (1) she was wrongfully terminated without cause and in violation

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of statute; (2) her termination was carried out without due process; and (3) she is entitled

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to a declaratory judgment and reinstatement due to the preceding. Defendants respond

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that (1) Plaintiff’s only remedy for her termination was administrative and by failing to

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avail herself of that remedy, she waived it; (2) Plaintiff also waived her due process rights

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by failing to demand their vindication; and (3) in waiving those rights, Plaintiff lost any

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entitlement to declaratory or equitable relief.

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A.

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Plaintiff moves for summary judgment on her wrongful termination claim on the

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grounds that she was terminated (1) without cause in violation of A.R.S. § 36-205, and

Wrongful Termination (Count 1)

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(2) in violation of public policy when Defendants failed to afford her pre-and-post-

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termination due process. (Pl.’s MPSJ at 5-6.)

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Wrongful termination claims are governed by the Arizona Employment Protection

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Act (“EPA”), A.R.S. § 23-1501. Under A.R.S. § 23-1501(A)(3)(b), an employee has a

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claim against an employer for termination if the “employer has terminated the

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employment relationship . . . in violation of a statute of this state.” Under A.R.S. § 36-

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205(C), the “superintendent shall be removed only for cause.”

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Here, it is wholly unclear whether Plaintiff was terminated for cause. While

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Defendants present facts detailing several incidents and investigations—as well as the

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grave consequences that could have resulted from them—which may have provided

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ample cause, Plaintiff disputes nearly all of those facts. (Compare Defendants’ Statement

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of Facts (“DSOF”) ¶¶ 51-54, 56-61, 65, 68-69 with Plaintiff’s Controverting Statement of

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Facts (“PSOF”) ¶¶ 51-54, 56-61, 65, 68-69, 94-141.) Moreover, Defendants never

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explicitly stated they were terminating Plaintiff for cause—either informally or in

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Plaintiff’s termination letter—nor did they describe the charges set forth here

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contemporaneously with Plaintiff’s dismissal. Thus, the Court cannot grant summary

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judgment to either party as to Count 1 on the grounds that Plaintiff was terminated with

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or without cause.

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However, in their Response and offensive Motion, Defendants claim that Count 1

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fails as a matter of law because Plaintiff’s exclusive remedy for any wrongful termination

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is administrative. (Defs.’ Resp. at 4-6; Defs.’ MSJ at 11-12.) In support, Defendants cite

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A.R.S. § 23-1501(3)(b), which states “[i]f the statute provides a remedy to an employee

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for a violation of the statute, the remedies provided to an employee are the exclusive

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remedies for the violation . . .” Defendants contend that A.R.S. §§ 41-782 and 783—

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which authorize covered state employees to appeal dismissals from covered state service

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to the Arizona Personnel Board within 10 days of agency action—provide that statutory

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remedy exclusively and mandatorily. For the following reasons, the Court disagrees.

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First, it is unclear that Defendants’ stated statutes indeed provide remedies for

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violation of A.R.S § 36-205(C), much less exclusive ones. A.R.S. §§ 41-782 and 783

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exist under a different title, in a different section, and do not explicitly set forth that they

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are remedies for violation of § 36-205, which does not itself set forth independent

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remedies. While ASH and ADHS may generally employ those procedures when

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terminating employees, the plain language of the statutes do not demand that result. Nor

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do Defendants provide any precedent holding that those statutes apply to analogous

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situations or that they have been found to apply directly to § 36-205. Instead, the EPA

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provides that if the statute does not afford a remedy to an employee for a violation, the

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employee shall have the right to bring a tort claim for wrongful termination. A.R.S. § 23-

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1501(3)(b). The Court will not find as a matter of law that Defendants’ statutory citations

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provide exclusive remedies—or any remedy at all—for termination in violation of § 36-

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205. See Walters v. Maricopa Cnty., 990 P.2d 677 (Ariz. Ct. App. 1999) (holding that

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administrative remedies in the context of A.R.S. § 38-532 are permissive, allowing

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terminated employee to file an action in superior court without exhausting such

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remedies). Similarly, Defendants’ argument that Plaintiff waived her wrongful

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termination claim by failing to exhaust those administrative remedies is equally without

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merit. Plaintiff appropriately sent a Notice of Claim and filed this wrongful discharge

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action, which is a suitable method of exercising her rights.

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Second, failure to exhaust administrative remedies is an affirmative defense

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subject to waiver. See, e.g., O’Sullivan v. AMN Servs., No. C-12-02125 JCS, 2012 WL

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2912061, at *3 (N.D. Cal. July 16, 2012). While the Ninth Circuit has held in non-

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analogous cases that a party may raise an affirmative defense for the first time at the

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summary judgment phase, the ability to do so is foreclosed if it will result in prejudice to

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the opponent. See Panaro v. City of N. Las Vegas, 432 F.3d 949, 951 (9th Cir. 2005)

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(allowing defendants to raise exhaustion defense at summary judgment phase, in part,

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because a Supreme Court opinion was released between pleadings and summary

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judgment making the affirmative defense available). Here, Plaintiff alleges such prejudice

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and the Court agrees. (See Pl.’s Reply at 6.) Neither Defendants’ Motion to Dismiss

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(Doc. 8), nor their Answer (Doc. 18), argued that Plaintiff was required to exhaust her

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administrative remedies or otherwise indicate such a defense. Plaintiff had no notice that

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Defendants intended to respond in that manner and conducted discovery in accordance

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with Defendants’ static position. Further, no intervening change in law or fact made

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Defendants’ argument available to them at this late stage in litigation. Courts in other

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contexts have consistently held that parties waive the affirmative defense of exhaustion

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when failing to raise it at an appropriate point in litigation resulting in prejudice, and the

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Court will do so here. See Ross v. Arpaio, No. CV054177PHXMHM, 2008 WL 4277666,

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at *1 (D. Ariz. Sept. 16, 2008).

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Third, Defendants are estopped from taking a position contrary to both their pre-

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and-post litigation contentions. See City of Tucson v. Clear Channel Outdoor, Inc., 181

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P.3d 219, 238 (Ariz. Ct. App. 2008) (the elements of equitable estoppel are that (1) the

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estopped party commits acts inconsistent with a position it later adopts; (2) reliance; and

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(3) injury resulting from the repudiation of that prior position). Defendants were

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unequivocal in their letter of termination that Plaintiff did not have the right to grieve or

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appeal her termination. Through the course of this litigation, Defendants have—until

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recently—maintained that stance, asserting that Plaintiff was an at-will employee with no

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appellate rights. Plaintiff has relied on those contentions to her detriment and opposed

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them at each turn. To allow Defendants to first assert that Plaintiff could not appeal the

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decision—even if Plaintiff had actual knowledge that she was entitled to so appeal—and

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then prevail in court on the grounds that she failed to utilize the precise mechanism

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Defendants maintained she was not entitled to, would be unequitable.

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Because a genuine dispute of material fact exists as to the reason for Plaintiff’s

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dismissal—which, by statute can only be done for cause—the Court cannot grant

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summary judgment to either party as to Plaintiff’s wrongful termination claim. Indeed, in

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most employment cases where each party presents supported facts as to their version of

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events, “it is for the trier of fact to decide which story is to believed.” Guerrero v. Beverly

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Hills Hotel, No. CV 92-5503 KN, 1994 WL 383228, at *1 (C.D. Cal. Feb. 10, 1994)

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(noting that once an employer articulates a reason for its actions, and plaintiff refutes, a

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genuine factual issue regarding that motive exists).

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As to the second basis for Plaintiff’s wrongful discharge claim—that she was

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terminated in violation of the public policy implicit in A.R.S. § 36-205 when she denied

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her procedural due process rights—Plaintiff did not plead this theory in her Complaint.

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(See Doc. 1-1 ¶¶ 25-28.) Moreover, Plaintiff provides no controlling precedent holding

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that a denial of procedural due process constitutes a violation of public policy under

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A.R.S. § 36-205, thus allowing for a wrongful termination claim on those grounds.

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Plaintiff thus may not proceed on this theory of wrongful termination under A.R.S. § 23-

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1501(A)(3)(b).

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B.

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Plaintiff moves for summary judgment on Count 2 of her Complaint on the

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grounds that Defendants admit failing to provide her any pre-or-post-termination due

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process. (Pl.’s MPSJ at 7-8; Pl.’s Resp. at 8-9.) Defendants do not refute most of

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Plaintiff’s allegations but similarly move for summary judgment, arguing that Plaintiff

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waived any due process claims by failing to demand either notice or an opportunity to be

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heard, despite having actual knowledge that she was entitled to each. (Defs.’ MSJ at 10-

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11.)

Due Process (Count 2)

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To state a violation of procedural due process under 42 U.S.C. § 1983, Plaintiff

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must show: (1) a property interest in continued employment, (2) a deprivation of that

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interest, and that her government employer either (3) did not notify her of the charges

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against her, or (4) did not give her an opportunity to respond before her interest was

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deprived. See Cleveland Bd. of Educ. v. Loudermill, 47 U.S. 532, 547 (1985). Post-

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termination due process generally requires an impartial opportunity to present and

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confront evidence. See, e.g., Garzon v. City of Bullhead, No. CV-10-8151-PHX-GMS,

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2011 WL 3471215, at *2 (D. Ariz. Aug. 8, 2011).

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Defendants do not contest any of the four factors necessary to Plaintiff’s pre-

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termination due process claim and no longer contest that Plaintiff had a property interest

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in her continued employment. (See Defs.’ MSJ at 10-11.) Before Defendants could

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deprive her of that interest, Plaintiff was entitled to prior notice of the reasons for her

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discharge and a hearing regarding the nature of the case. Loudermill, 470 U.S. at 542.

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Defendants acknowledge that they did not notify Plaintiff of the charges or give her an

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opportunity to respond either before or after she was deprived of that interest. Defendants

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also admit—as the Court has previously stated—that Dr. Christ was required to

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understand and comply with the laws that apply to her agency. In sum, there is no dispute

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of fact that Plaintiff was not offered the requisite due process, including notice of the

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charges and evidence against her, an opportunity to confront such evidence or witnesses,

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a chance to be heard or present evidence, or to have her case resolved by an impartial

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decision-maker. However, a question remains as to whether Plaintiff waived those rights.

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But see Duck v. Jacobs, 739 F. Supp. 1545, 1550 (S.D. Ga. 1990) (“It is undisputed that

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[plaintiffs] received no hearing—formal or informal—prior to being discharged.

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Therefore, the Court need not assess the adequacy or timeliness of any post-termination

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procedures made available by the defendants.”).

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Due process rights, such as those Plaintiff seeks to vindicate, can be waived. See

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Bignall v. North Idaho College, 538 F.2d 243 (9th Cir. 1976). However, “[c]ourts indulge

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every presumption against the waiver of fundamental constitutional rights.” Pitts v. Bd. of

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Educ. of School Dist. 205, 869 F.2d 555, 557 (10th Cir. 1989) (citation and quotation

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omitted). Whether due process rights have been waived “depends upon the facts of a

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particular case,” and waiver is valid only “if it is done in an informed matter.” Id. A

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plaintiff waives due process rights by electing to forego a hearing only if the suggested

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hearing would have been adequate. Bignall, 538 F.2d at 247.

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Here, Defendants contend that although Plaintiff was not informed of the charges

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against her and was told that she could not grieve or appeal, her admitted awareness of

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her statutory rights and the administrative processes—coupled with her lack of demand to

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either—constitute waiver. (Defs.’ Resp. at 6-7; Defs.’ MSJ at 10-11.) Plaintiff responds

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that she did not elect to forego exercising her due process rights but was specifically

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deprived of that opportunity when she was informed in writing that she was entitled to

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none. (Pl.’s Resp. at 8.)

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Defendants argue that Plaintiff’s claims are analogous to those in Correa v.

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Nampa School Dist. No. 131, 645 F.2d 814, 816-17 (9th Cir. 1981). There, the district

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court held that the plaintiff waived her right to due process claims when she knowingly

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and voluntarily chose to forego administrative procedures by pursuing an action through

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the office of civil rights, rather than the processes found in the defendant’s policy manual.

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Id. at 816-17. The Ninth Circuit affirmed, noting that the plaintiff was aware of the

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existence of those procedures and requested a copy of the policy manual which detailed

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those processes, though she never received it. Id. Similarly, here, Plaintiff testified that

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she was intimately aware of the procedures she was entitled to, but did not request them.

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See McGraw v. Cnty. Of Riverside, 111 F.3d 138 (C.D. Cal. 1997) (“At his deposition,

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[plaintiff] acknowledged his awareness and understanding of these procedures. [Plaintiff]

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chose to forego them, instead retaining counsel who pursued [plaintiff’s] claims . . .” and

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“there is no evidence that the [] procedures were inadequate.”). On the other hand, unlike

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in Correa, Plaintiff was explicitly told that she had no due process rights, including the

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right to be heard or appeal. Further, Plaintiff can only waive her due process rights if “the

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suggested procedure would have been adequate.” Bignall, 538 F.2d at 247 (9th Cir.

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1976). Defendants did not suggest a hearing. Instead, they explicitly stated that Plaintiff

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was entitled to none. Thus, given the presumption against waiver, the Court finds that

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Plaintiff was unable to waive her due process rights as it cannot find a hearing adequate

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when none was offered or suggested. See id. (further noting that plaintiff was offered an

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adequate hearing); Anderson v. Peninsula Fire Dist., No. 213CV01736TLNCMK, 2016

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WL 1267838, at *6 (E.D. Cal. Mar. 31, 2016) (“whether that waiver is effective depends

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in part upon whether the hearing would have been adequate”) (citation omitted); Byers v.

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New Plymouth Sch. Dist. No. 372, No. 1:12-CV-00230-EJL, 2013 WL 5943938, at *10

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(D. Idaho Nov. 5, 2013) (“Where, as here, it is disputed whether a pre-termination

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hearing would have been constitutionally adequate, a plaintiff cannot be found to have

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waived his due process rights by failing to participate in the hearing.”). Therefore,

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Plaintiff is entitled to summary judgment as to Count 2.

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C.

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Plaintiff moves for summary judgment as to her declaratory and injunctive relief

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claim on the same grounds as Count 2—that her constitutionally protected property

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interest was deprived without due process. (Pl.’s MPSJ at 8.) Defendants similarly

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respond and argue that Plaintiff waived her due process rights and, in any event, that

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Declaratory and Injunctive Relief (Count 3)

process would be the appropriate remedy, not reinstatement. (Defs.’ Resp. at 10.)

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As stated, the Court finds that Plaintiff was denied procedural due process. The

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appropriate remedy for deprivation of a property interest without due process “is to order

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the process that was due and any attendant damages which directly resulted from the

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failure to give the proper procedure.” Brady v. Gebbie, 859 F.2d 1543, 1551 (9th Cir.

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1988); see also Burton v. Cascade Sch. Dist., 512 F.2d 850, 853 (9th Cir. 1975) (noting

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courts decide the appropriate remedy by a careful weighing of all the facts and

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circumstances); Levine v. City of Alameda, 525 F.3d 903, 906 (9th Cir. 2008) (affirming

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district court’s order remanding post-termination hearing to a “neutral third party” for a

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“full evidentiary hearing”); Levine v. City of Alameda, No. C 04-01780 CRB, 2006 WL

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83051 *7 (N.D. Cal. 2006) (Defendant “shall bear all costs for the neutral [third party].”).

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This is particularly true when no process was given and a question of fact remains as to

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whether Plaintiff’s substantive right—continued employment—was denied with or

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without cause.

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Plaintiff is entitled to a declaratory judgment to the effect that her constitutional

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procedural due process rights were violated by Defendants. Though the Court will not

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order Defendants to reinstate Plaintiff, Defendants will be required to grant Plaintiff a

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prompt hearing before the Arizona Personnel Board or another impartial body to comport

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with due process. If Defendants fail to do so, Plaintiff may then seek additional equitable

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relief from this Court.

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D.

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Defendants argue that Dr. Christ is entitled to qualified immunity from Plaintiff’s

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§ 1983 claim. (Defs.’ Resp. at 7-10.) Qualified immunity protects government officials

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from liability for civil damages “unless a plaintiff pleads facts showing (1) that the

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official violated a statutory or constitutional right, and (2) that the right was ‘clearly

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established’ at the time of the challenged conduct.” Wood v. Moss, 134 S. Ct. 2056, 2066-

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67 (2014) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). To be clearly

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established, “[t]he contours of the right must be sufficiently clear that a reasonable

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official would understand that what [the official] is doing violates that right. Anderson v.

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Creighton, 483 U.S. 635, 640 (1987). When provisions of a specific statute conflict with

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those of a general statute on the same subject, the specific statute controls and the more

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general statute applies to all matters not dealt with in the specific statute. Desert Waters,

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Inc. v. Superior Court, 370 P.2d 652, 657 (Ariz. 1962).

Qualified Immunity

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As the Court previously stated in deciding Defendants’ Motion to Dismiss,

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Dr. Christ is not entitled to qualified immunity. (See Doc. 17.) A.R.S. § 36-205(C) is

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relevant, particularized, and conspicuous in the conveyance of a right: it provides that the

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superintendent may only be fired for cause. Dr. Christ, as Acting Director, was charged

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with knowledge of this statute and admits to being informed of the rights it conveys, at

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least after the fact. Nonetheless, Dr. Christ did not provide the procedural process due or

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contemporaneously contend that Plaintiff was dismissed for cause. Dr. Christ, thus,

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violated Plaintiff’s clearly established statutory rights.

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IV.

CONCLUSION

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It is undisputed that Defendants failed to provide any of the process due to

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Plaintiff in terminating her—either before or after her dismissal. Although it is

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undisputed that Plaintiff knew the processes to which she was entitled, Defendants did

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not offer or suggest any process whatsoever or provide any notice. Thus, at the very least,

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the Court is unable to find that any process would have been constitutionally sufficient—

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a prerequisite for finding waiver of process. Consequently, Plaintiff is entitled to

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summary judgment as to Counts 2-3, declaratory relief, and the process due. However,

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questions of fact remain whether Plaintiff’s termination was for cause in violation of

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A.R.S. §§ 23-1501 and 36-205. Count 1 will thus proceed to trial, as will the damages

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issue on Count 2.

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IT IS THEREFORE ORDERED granting in part and denying in part Plaintiff

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Donna Noriega’s Motion for Partial Summary Judgment (Doc. 42). Plaintiff is entitled to

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summary judgment as to Counts 2 and 3, but not Count 1. The Court will set a pre-trial

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status conference by separate Order.
IT IS FURTHER ORDERED denying Defendants State of Arizona, Cara Christ,
and Unknown Christ’s Cross-Motion for Summary Judgment (Doc. 44).
Dated this 16th day of June, 2017.

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Honorable John J. Tuchi
United States District Judge

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