Armstrong v. Huachuca City, Town of et al

Filing 18

ORDER ADOPTING 16 Report and Recommendations, DENYING Motion to Dismiss (Doc. 5), GRANTING Motion to Strike (Doc. 10), GRANTING Motion to Amend (Doc. 13). Plantiff to file Amended Complaint within ten (10) days of this Order. This matter is referred back to Magistrate Judge Bernardo P. Velasco forfurther pretrial proceedings and report and recommendation. Signed by Judge Cindy K Jorgenson on 9/11/12. (SMBE)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9
RONALD ARMSTRONG,
10
Plaintiff,
11
vs.
12
13
14

TOWN OF HUACHUCA CITY,
BYRON ROBERTSON,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

No. CIV 11-790-TUC-CKJ (BPV)
ORDER

15
16

On August 7, 2012, Magistrate Judge Bernardo P. Velasco issued a Report and

17

Recommendation (Doc. 16) in which he recommended Defendants’ Motion to Dismiss (Doc.

18

5) be denied, Defendants’ Motion to Strike (Doc. 10) be granted, and Plaintiff’s Motion to

19

Amend (Doc. 13) be granted. The magistrate judge advised the parties that written

20

objections to the Report and Recommendation were to be filed within fourteen (14) days of

21

service of a copy of the Report and Recommendation pursuant to 28 U.S.C. § 636(b) and that

22

responses were to be filed within fourteen (14) of service of any objections. Defendants have

23

filed an objection; Plaintiff has not filed a response.

24
25

Defendants have requested the Court to schedule this matter for oral argument. The
Court declines to schedule this matter for oral argument. See generally LRCiv. 7.2(f).

26
27
28

Notice of Claim - Sum Certain
The magistrate judge determined that the Notice of Claim submitted by Plaintiff

1

Ronald Armstrong (“Armstrong”) adequately set forth a sum certain as required by A.R.S.

2

§ 12-821.01(A) and recommended the Motion to Dismiss be denied on this basis.

3

Defendants argue that the magistrate judge’s recommendation inserts a “reasonableness” or

4

“substantial compliance” standard into the statute’s requirement that a claimant include a

5

specific amount for which the claim can be settled. Deer Valley Unif. Sch. Dist. No. 97 v.

6

Houser, 214 Ariz. 293, 152 P.3d 490 (2007). Indeed, the Deer Valley Court stated:

7
8
9
10

The notice of claim statute is clear and unequivocal: The statute instructs that a claim
“shall also contain a specific amount for which the claim can be settled and the facts
supporting that amount.” A.R.S. § 12–821.01.A (emphasis added). This language
unmistakably instructs claimants to include a particular and certain amount of money
that, if agreed to by the government entity, will settle the claim.
214 Ariz. at 296, 152 P.3d at 493.

11

In Deer Valley, the plaintiff had defined her economic damages as “‘approximately

12

$35,000 per year or more going forward over the next 18 years.’” Id., emphasis in original.

13

The plaintiff also referred to a raise of $6,000 and noted that “she anticipated ‘similar

14

appropriate pay increases' over the next eighteen years.” Id. Further, the plaintiff stated that

15

“her damages for emotional distress and harm to her reputation are ‘no less than’ $300,000

16

and $200,000, respectively.” Id. The Court determined that “[t]hese statements simply do

17

not define a specific amount that [plaintiff] would have accepted to resolve her dispute” Id.

18

Therefore, “[i]n light of this substantial variation in potential value and the absence of any

19

clear aggregate claim amount in her letter, the amounts identified in [plaintiff's] letter cannot

20

be considered ‘specific.’” Id. at 494.

21

Unlike in Deer Valley, Armstrong’s Notice of Claim does not include the repeated use

22

of qualifying language. Armstrong’s demand is a clear aggregate sum that, if agreed to by

23

Defendants, would settle all of Armstrong’s claims. In a similar case, another district court

24

stated: “Nevertheless, [Defendant] goes out of its way to interpret the settlement amount

25

ambiguously, arguing that Plaintiffs’ reference to attorneys’ fees takes away the specificity

26

of any demand.” Auble v. Maricopa County, No. CV 08-1822-PHX-MHM, 2009 WL

27

3188378 * 3 (D.Ariz. 2009). However, in Auble, the plaintiffs had made clear that their

28

-2-

1

demand was separate from court-awarded fees and costs. Id. While there is no comparable

2

statement in this case, the Court does not find the statement to be ambiguous. Rather, the

3

Notice of Claim stated the date of Armstrong’s employment termination and Arizona law

4

specifically provides a prejudgment interest rate. A.R.S. § 44-1201.

5

“The Court can find nothing confusing about [Plaintiff’s] settlement demand and must

6

therefore conclude that any ambiguity complained of by [Defendants] is of their own

7

creation. [Plaintiff’s] notices of claim satisfy the [sum certain] notice of claim requirement

8

under A.R.S. § 12–821.01A.” Auble, at * 4.

9
10

Notice of Claim - Basis of Claim

11

The magistrate judge determined that Armstrong’s Notice of Claim adequately stated

12

sufficient facts regarding the events and action to understand the basis of the claims, i.e., to

13

allow Defendants to adequately investigate and assess the claims. Defendants assert that,

14

“the notice of claim statute requires sufficient facts to understand the basis – the facts and the

15

basis are not the same thing. A claimant must include enough facts so that a public entity can

16

objectively identify what type of claim they are facing.” Objections, p. 5.

17

The Notice must “contain a specific amount for which the claim can be settled and the

18

facts supporting that amount.” A.R.S. § 12-821.01.A. Presenting “‘facts supporting that

19

amount’ requires that claimants explain the amounts identified in the claim by providing the

20

government entity with a factual foundation to permit the entity to evaluate the amount

21

claim.” Deer Valley, 214 Ariz. at 296, 152 P.3d at 493. This “requirement ensures that

22

claimants will not demand unfounded amounts that constitute ‘quick unrealistic exaggerated

23

demands.” Id., quoting Hollingsworth v. City of Phoenix, 164 Ariz. 462, 466, 793 P.2d 1129,

24

1133 (App. 1990).

25

The Supreme Court of Arizona has stated:

26

The approach that best furthers legislative intent is to allow a claimant to decide what
facts support the amount claimed and to disclose those facts as part of the notice of
claim. As the State points out, only the claimant knows which facts he regards as

27
28

-3-

1
2
3
4
5

supporting the amount claimed. Accordingly, the statutory requirement that the claim
include the facts supporting the amount claimed must refer to the view of the
claimant, rather than to that of the public entity. We hold, therefore, that a claimant
complies with the supporting-facts requirement of § 12–821.01.A by providing the
factual foundation that the claimant regards as adequate to permit the public entity to
evaluate the specific amount claimed. This standard does not require a claimant to
provide an exhaustive list of facts; as long as a claimant provides facts to support the
amount claimed, he has complied with the supporting-facts requirement of the statute,
and courts should not scrutinize the claimant's description of facts to determine the
“sufficiency” of the factual disclosure.

6
Backus v. State, 220 Ariz. 101, 106-7, 203 P.3d 499, 504-5 (2009). Armstrong’s Notice of
7
Claim provides “facts to support the amount claimed[.]” Id. The Notice of Claim states facts
8
regarding Armstrong’s former employment as a city clerk, age discrimination, a hostile work
9
environment, and retaliation and asserts that Armstrong was wrongfully terminated from his
10
employment. In other words, Armstrong stated in his Notice of Claim that he was employed
11
by the Town of Huachuca City and, as he was no longer employed by the town of Huachuca
12
City, he demanded $300,000 in lost wages. Clearly, Armstrong “provided those facts [he]
13
regarded as supporting the specific amounts [he] claimed. Accordingly, [the] notice of claim
14

letter[] compl[ies] with A.R.S. § 12–821.01.A.” Id. at 107, 203 P.3d at 505.1

15
16
Armstrong as Policymaker
17
Defendants have argued that dismissal of the age discrimination and retaliation claims
18
is appropriate because Armstrong was a policymaker rather than an employee for purposes
19
of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq., (“ADEA”)
20
and 42 U.S.C. 2000(e), et. seq., and the Arizona Civil Rights Act, A.R.S. § 41-1481, et. seq,
21
(“ACRA”). The magistrate judge stated:
22
23
24

The Court finds that the issue of whether or not Plaintiff was a policymaker in his
capacity as town clerk remains an issue of fact in this matter. The Defendants claim
that Plaintiff’s position as town clerk rendered him a policymaker, and the Plaintiff
contends that his responsibilities did not amount to a role as a policymaker. Whether
an employee is a policymaker is a legal question that rests on factual findings, making

25
26

1

27

The Backus Court pointed out that “a public entity can request more facts if needed
to evaluate a claim.” 220 Ariz. at 107, 203 P.3d at 505.

28

-4-

1
2
3
4
5

this an improper question for a motion to dismiss in the face of obvious disputed
factual assertions. The relevant issues in this determination are questions of fact, and
the Court finds that necessary factual information is not currently found in the record.
The Court finds that Plaintiff’s complaint is sufficient to withstand a motion to
dismiss at this time, but that the Defendants may well be able to demonstrate in a
motion for summary judgment that Plaintiff’s responsibilities and duties rendered him
a policymaker for purposes of exempting him from filing claims under the ADEA and
ACRA. Accordingly, the Court leaves the question of whether Plaintiff is excluded
from ADEA and ACRA as a policymaker to be determined on a motion for summary
judgment.

6
Report and Recommendation, pp. 12-13. Defendants assert, however, that Armstrong’s job
7
and responsibilities are not in dispute.
8
Although Armstrong’s job and responsibilities may not be in dispute, they are not
9
alleged in the Complaint. However, they are set forth in Article 3-2-1 of the Town Code,
10
which has been provided by Defendants. Motion to Dismiss, Ex. 2. Furthermore, Armstrong
11
has not objected to consideration of the Town Code and, indeed, argues that the Town Code
12
supports his position. The Court finds it appropriate to take judicial notice of the Town
13
Code. See e.g., Toney v. Burris, 829 F.2d 622 (7th Cir. 1987).
14
The Ninth Circuit has stated:
15

19

In Fazio, we set forth “[s]ome factors to be considered when determining whether a
job is a policymaking position,” including “vague or broad responsibilities, relative
pay, technical competence, power to control others, authority to speak in the name of
policymakers, public perception, influence on programs, contact with elected officials,
and responsiveness to partisan politics and political leaders.” 125 F.3d at 1334 n. 5.
These factors are intended to guide the “policymaker” analysis, but not supplant what
we have called “the essential inquiry” — whether “party affiliation is an appropriate
requirement for the effective performance of the public office involved.” Id. at 1331.

20

Hunt v. County of Orange, 672 F.3d 606, 613 (9th Cir. 2012), quoting Fazio v. City and

21

County of San Francisco, 125 F.3d 1328 (9th Cir.1997). Indeed, while the factors are

22

relevant in determining whether a person is a policymaker, the factors are to be considered

23

in light of the underlying purpose of the policymaker exception: “the question is whether the

24

hiring authority can demonstrate that party affiliation is an appropriate requirement for the

25

effective performance of the public office involved.” Hunt, 672 F.3d at 611-12, quoting

26

Branti v. Finkel, 445 U.S. 507, 518, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980).

16
17
18

27
28

In this case, Armstrong had specific duties provided for in the Town Code; however,
-5-

1

they were vague and broad in that they were at the direction of the town council. See Town

2

Code, § 3-2-1, Doc. 5-1. Indeed, even though Armstrong had the authority to control others,

3

Town Code, § 3-2-1(G), such authority was as directed by the town council. Similarly,

4

although the defense argues that Armstrong’s presentation of the budget supports a

5

conclusion that he was a policymaker, the Town Code appears to state that budgetary

6

decisions were made by the town council. Town Code, § 3-2-1(F). Additionally, it appears

7

that Armstrong had extensive contact with elected officials. However, neither the Town

8

Code nor the allegations in the Complaint establish the other factors. Moreover, although

9

the issues presented indicate that a recall election may have played some role in

10

circumstances, see Doc. 1, p. 22 of 34, neither the Town Code nor the allegations in the

11

Complaint indicate whether party affiliation is an appropriate requirement for the effective

12

performance of the Town Clerk. The Court agrees with the magistrate judge that resolution

13

of this issue in determining whether Armstrong’s Complaint adequately states a claim upon

14

which relief may be granted is not appropriate. The Court will deny the Motion to Dismiss.

15
16

Conclusion

17

After an independent review, the Court finds denial of the Motion to Dismiss, as set

18

forth by the magistrate judge, to be appropriate. Further, the Court has reviewed the analysis

19

and recommendations of the magistrate judge as to Defendants’ Motion to Strike (Doc. 10)

20

and Armstrong’s Motion to Amend and finds it appropriate to adopt these recommendations.

21

Accordingly, IT IS ORDERED:

22

1.

The Report and Recommendation (Doc. 16) is ADOPTED.

23

2.

Defendants’ Motion to Dismiss (Doc. 5) is DENIED.

24

3.

Defendants’ Motion to Strike (Doc. 10) is GRANTED.

25

4.

Plaintiff’s Motion to Amend (Doc. 13) is GRANTED.

Plaintiff shall

26

electronically file the Amended Complaint within ten (10) days of this Order. See Electronic

27

Case Filing Administrative Policies and Procedures Manual, § II.H.

28

-6-

1

5.

This matter is referred back to Magistrate Judge Bernardo P. Velasco for

2

further pretrial proceedings and report and recommendation in accordance with the

3

provisions of 28 U. S. C. § 636(b)(1) and L.R.Civ. 72.1 and 72.2.

4

DATED this 11th day of September, 2012.

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-7-