The Arizona Court of Appeals recently reversed a jury’s award of $375,000 in damages to a former police officer for the City of Surprise. In Peterson v. City of Surprise, No. 1 CA-CV 16-0415 (Feb. 6, 2018), the court held that the employee, who claimed she was constructively discharged in retaliation for reporting sexual harassment, was precluded from bringing the case in court because she had failed to file a charge of discrimination within 180 days after she left her employment. As the court stated, the employee specifically “crafted her claim against the City to allege not constructive discharge caused by ‘firsthand’ discrimination, but constructive discharge caused by illegal retaliation under the [Arizona Employment Protection Act].” A claim of illegal retaliation is one that contends that the employer’s actions were wrongful in response to a report of discrimination, not wrongful because of the discrimination itself. The court held that there was no difference between the claim of retaliation and the harassment claims for purposes of the filing deadline.The court also confirmed that there is no stand-alone claim for “constructive discharge” under Arizona law. Instead, while an employee may claim constructive discharge when working conditions are so objectively difficult or unpleasant that a reasonable employee would feel compelled to resign, the employee who contends she was constructively discharged must also prove some other wrongful conduct by the employer.

Although neither point of law is particularly remarkable, the decision is an important reminder for employers to timely assert all available defenses. The EEOC’s recent release of enforcement data for fiscal year 2017 confirmed that retaliation is the most frequently filed claim, making up almost 50% of charges at that agency. The City of Surprise did so in this case, and avoided a verdict of $375,000, plus the award of attorneys’ fees the trial court awarded to the former officer in the amount of $50,000.

Key Takeaways

  1. Conduct prompt and thorough investigations in response to all charges of discrimination.
  2. Seek guidance from legal counsel before submitting a responsive position statement to federal, state, or local human rights agencies. Procedural defenses, such as the untimely filing of a charge of discrimination, can have powerful substantive implications and can be inadvertently waived if they are not asserted at the administrative stage of litigation.