Free Other Notice - District Court of Arizona - Arizona

1 Jay A. Zweig (011153) Melissa R. Berren (020993) 2 GALLAGHER & KENNEDY, P.A. 2575 E. Camelback Road, Suite 1100 Phoenix, Arizona 85016-9225 3 (602) 530-8407 4 Attorneys for Defendants 5 Richard J. Harris, Esq. Richard J. Harris Law Offices, P.C. 6 4445 E. Holmes Avenue, Suite 106 Mesa, Arizona 85206-3398 Attorney for Plaintiff 7 8
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UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Matthew Shaffer, Plaintiff, vs. No. CIV-03-2344-PHX-FJM JOINT STIPULATED FORM OF VERDICT

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State of Arizona Citizens Clean Election 14 Commission; Colleen Connor and Chad Jacobs, husband and wife; and Jessica 15 Funkhouser and Lindy Funkhouser, husband and wife; John Does I-X; Jane 16 Does I-X, 17 18 19 20 21 22
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Defendants. Pursuant to the Scheduling Order entered on April 23, 2004, plaintiff Matthew Shaffer and defendants State of Arizona Citizens Clean Election Commission ("CCEC") and Colleen Connor submit the following Joint Stipulated Form of Verdict:

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RESPECTFULLY SUBMITTED this 26th day of August, 2005. RICHARD J. HARRIS LAW OFFICES, P.C. By: s/Richard J. Harris____________ Richard J. Harris, Esq. 4445 E. Holmes Avenue, Suite 106 Mesa, Arizona 85206-3398 Attorney for Plaintiff

GALLAGHER & KENNEDY, P.A. By: s/Jay A. Zweig______________ Jay A. Zweig Melissa R. Berren 2575 E. Camelback Road, Suite 1100 Phoenix, Arizona 85016-9225 Attorneys for Defendants

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Do you, the jury, find the following by a preponderance of the evidence: 1. COUNT 21: WRONGFUL TERMINATION FOR REPORTING VIOLATION OF LAW2 (a). Did Mr. Shaffer prove by a preponderance of the evidence that he reasonably believed that the CCEC or an employee of the CCEC had violated, was violating, or was going to violate the Arizona Constitution or an Arizona statute? Answer (yes or no): ___________________________

NOTE: If you answered "yes" to Question No. 1(a), then go to Question No. 1(b). If you answered "no" to Question No. 1(a), then go directly to Question No. 2 on Page ____ of this form, and do not answer Questions 1(b) through 1(d). (b). DEFENDANTS' PROPOSED 1(b): If you answered yes to question 1(a), did Mr. Shaffer prove by a preponderance of the evidence that Mr. Shaffer disclosed his belief to the CCEC, to a representative of the CCEC who Mr. Shaffer reasonably believed was in a managerial position and had the authority to investigate the information and take action to prevent further violations, or to an employee or agency of a public body or political subdivision that had the authority to investigate or otherwise act on the information? Defendants' position: The law requires that plaintiff not only prove that he disclosed his belief, but also that he disclosed it to the appropriate person. A.R.S. § 23-1501(3)(C)(ii). The whole point of the whistleblower statute is to encourage exposure of illegal conduct. Wagner v. City of Globe, 150 Ariz. 82, 88, 722 P.2d 250, 256 (1986). The statute also requires that the reporting be "reasonable." As a matter of law, it is not reasonable to limit one's reporting of supposedly illegal conduct to the claimed wrongdoer. This point is illustrated well by Faust v. Ryder Commercial Leasing & Servs., 954 S.W.2d 383 (Mo. App. 1997). There, as here, the plaintiff employee asserted a whistleblower claim based on the fact that he supposedly reported what he believed was his supervisor's illegal conduct to the supervisor himself. The The parties have agreed to list the count numbers on this pretrial motion, however request that the Count numbers be deleted prior to being presented to the jury.
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Count One was deliberately omitted from this form.
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court framed the issue as whether reporting of wrongdoing or misconduct "to the wrongdoer, who is also the reporter's supervisor," would support a claim of retaliatory discharge. It held that it would not. PLAINTIFF'S PROPOSED 1(b): If you answered "yes" to question 1(a), did Mr. Shaffer prove by a preponderance of the evidence that Mr. Shaffer disclosed his belief to Colleen Connor? Plaintiff's position: Shaffer's claim is dependant upon him proving his allegation that he reported to Connor. It is undisputed that Connor is the employer's representative. The Court ruled that "the statute explicitly allows for wrongful discharge claims in the instances when the employee has `blown the whistle' directly to the employer or the employer's representative." (Order p. 10:12-14). Moreover the Court ruled that "there is an issue of material fact on whether plaintiff reported the impropriety to Connor. (Order p. 11:5-6). Much confusion is thus avoided by Plaintiff's simplified, proposed 1(b). Answer (yes or no): ___________________________

NOTE: If you answered "yes" to Question No. 1(b), then go to Question No. 1(c). If you answered "no" to Question No. 1(b), then go directly to Question No. 2 on Page ____ of this form, and do not answer Questions 1(c) through 1(d). (c). If you answered "yes" to Question No. 1(b), did Mr. Shaffer prove by a preponderance of the evidence that Mr. Shaffer's employment with the CCEC was terminated as a result of his disclosure? Answer (yes or no): ___________________________

NOTE: If you answered "yes" to Question No. 1(c), then go to Question No. 1(d). If you answered "no" to Question No. 1(c), then go directly to Question No. 2 on Page ____ of this form, and do not answer Question No. 1(d). (d). If you answered "yes" to Question Nos. 1(a), 1(b) and 1(c), what is the amount of Mr. Shaffer's damages as a result of the CCEC's wrongful termination of his employment? Answer: __________________________

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2.

COUNT 3: DEFAMATION

(a). Did Mr. Shaffer prove by a preponderance of the evidence that Colleen Connor made one or more false statements concerning Mr. Shaffer that tended to bring Mr. Shaffer into disrepute, contempt or ridicule, or that impeached Mr. Shaffer's honesty, integrity, virtue or reputation? Answer (yes or no): ___________________________

NOTE: If you answered "yes" to Question No. 2(a), then go to Question No. 2(b). If you answered "no" to Question No. 2(a), then go directly to Question No. 3 on Page ____ of this form, and do not answer Question Nos. 2(b) through 2(c). (b). If you answered "yes" to Question No. 2(b), did plaintiff establish either that Connor (1) acted outside of the outer perimeter of her required or discretionary functions, or (2) that Colleen Connor acted with "actual malice" in that she either knew her statements regarding Mr. Shaffer were false or acted in reckless disregard of the truth? Answer (yes or no): ___________________________

NOTE: If you answered "yes" to Question No. 2(b), then go to Question No. 2(c). If you answered "no" to Question No. 2(b), then go directly to Question No. 3 on Page ____ of this form, and do not answer Question No. 2(c). (c). DEFENDANTS' PROPOSED 2(c): If you answered "yes" to Question Nos. 2(a) and 2(b), what is the amount of Mr. Shaffer's damages as a result of defamation? PLAINTIFF'S PROPOSED 2(c): If you answered yes to Question Nos. 2(a) and 2(b), what is the amount of Mr. Shaffer's damages including any presumed damages as a result of defamation? Plaintiff's position: the jury will be instructed that it may presume damages in this case (under certain circumstances). This verdict question could be confusing because a juror might think that damages other than presumed must be proven in order to enter an award for Shaffer. Answer: _____________________________

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3.

COUNT 5: LIBERTY INTEREST3

DEFENDANTS' PROPOSED 3(a). (If the Court accepts defendants' proposed 3(a), the letters for the following verdict questions should each be advanced one letter, so what is now marked (a*) would become (b) and so forth): Did Mr. Shaffer demonstrate that he had a reasonable expectation that he would continue to be employed by the CCEC? Defendants' position: To maintain a constitutional due process claim arising out of the termination of his employment, the law requires a public employee to "first demonstrate that he has a reasonable expectation arising out of a statute, rule, or contract, that he will continue to be employed." Wojcik v. Mass. State Lottery Comm'n, 300 F.3d 92, 101 (1st Cir. 2002). Brady v. Gebbie, 859 F.2d 1543 (9th Cir. 1988), as cited by the Court in its Order, provides that "[a] nontenured government employment has a liberty interest and is entitled to a name-clearing hearing if the employer creates and disseminates false and defamatory information about the employee in connection with his termination." Order, p. 3, ll. 13-14 (citations omitted). Accordingly, after hearing evidence about the alleged dissemination of false information, the jury is the body to properly determine whether plaintiff has a liberty interest. Plaintiff's position: This instruction misstates the law. Even at-will state employees with no expectation of continued employment have a liberty interest. The court already ruled on this: "`A nontenured government employee has a liberty interest . . .'" Order p. 3:13-14 (citing Brady v. Gebbie, 859 F.2d 1543 (9th Cir. 1988)). The jury could answer this question in the negative and still find for Shaffer. Answer (yes or no): ___________________________

(a*). Did Mr. Shaffer demonstrate that Colleen Connor made one or more statements about Mr. Shaffer in connection with his termination that might have seriously damaged Mr. Shaffer's standing and associations in the community and placed his good name, reputation, honor or integrity at stake? Answer (yes or no): ___________________________

NOTE: If you answered "yes" to Question No. 3(a*), then go to Question No. 3(b*). If you answered "no" to Question No. 3(a*), then go directly to Question Count Four was deliberately omitted from this form.
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No. 4 on Page ____ of this form, and do not answer Question Nos. 3(b*) through 3(e*). (b*). Did. Mr. Shaffer demonstrate that the statement(s) made by Colleen Connor created a false and defamatory impression about Shaffer? Answer (yes or no): ___________________________

NOTE: If you answered "yes" to Question No. 3(b*), then go to Question No. 3(c*). If you answered "no" to Question No. 3(b*), then go directly to Question No. 4 on Page ____ of this form, and do not answer Question Nos. 3(c*) through 3(e*). (c*). Did Mr. Shaffer prove by a preponderance of the evidence that the statement(s) were made in connection with his termination? Answer (yes or no): ___________________________

NOTE: If you answered "yes" to Question No. 3(c*), then go to Question No. 3(d*). If you answered "no" to Question No. 3(c*), then go directly to Question No. 4 on Page ____ of this form, and do not answer Question Nos. 3(d*) through 3(e*). (d*). DEFENDANTS' PROPOSED 3(d*): Did Mr. Shaffer prove by a preponderance of the evidence that the CCEC failed to comply with Mr. Shaffer's request for an adequate name-clearing hearing? Defendants' position: Of the five elements that a plaintiff must establish to prove deprivation of a liberty interest without due process, one is that "the government must have failed to comply with the employee's request for an adequate name-clearing opportunity." Wojcik v. Mass. State Lottery Comm'n, 300 F.3d 92, 101 (1st Cir. 2002) (emphasis added). PLAINTIFF'S PROPOSED 3(d*): Did Mr. Shaffer prove by a preponderance of the evidence that he was not given notice or a meaningful name-clearing hearing? Plaintiff's position: The standard in the 9th Circuit is that the employer has the duty to provide notice and a meaningful opportunity to be heard. Brady, 859 F.2d

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at 1554. The court has already ruled that the question in this case is "whether plaintiff had a meaningful opportunity for a name-clearing hearing." Order p. 4:17-19. Answer (yes or no): ___________________________

NOTE: If you answered "yes" to Question No. 3(d*), then go to Question No. 3(e*). If you answered "no" to Question No. 3(d*), then go directly to Question No. 4 on Page ____ of this form, and do not answer Question No. 3(e*). (e*). DEFENDANTS' PROPOSED 3(e*): If you answered yes to Question Nos. 3(a*), 3(b*), 3(c*), and 3(d*), what is the amount of Mr. Shaffer's damages as a result of being deprived of his liberty interest? Defendants' position: Nominal damages are not available in every case. The court must determine whether nominal damages are permitted. See, e.g., Chew v. Gates, 27 F.3d 1432, 1437 (9th Cir. 1994) (Section 1983 action), cert. denied, 513 U.S. 1148 (1995); Parton v. GTE North, Inc., 971 F.2d 150, 154 (8th Cir. 1992) (Title VII action). In this case, plaintiff is seeking compensatory damages. Nominal damages are inappropriate. PLAINTIFF'S PROPOSED 3(e*): If you answered yes to Question Nos. 3(a*), 3(b*), 3(c*), and 3(d*), what is the amount of Mr. Shaffer's damages including any nominal and punitive damages as a result of being deprived of his liberty interest? Plaintiff's position: Shaffer's damages which result from being deprived of his liberty interest are not the only damages to which he is entitled. Even if the jury were to find no actual damages it would still be required to enter an award of nominal damages for violation of Shaffer's federal rights. George v. City of Long Beach, 973 F.2d 706 (9th Cir.1992); Floyd v. Laws, 929 F.2d 1390 (9th Cir.1991). Moreover, punitive damages are available in a 1983 action even though such damages do not compensate Shaffer for his damages as a result of the liberty interest deprivation. Answer: _____________________________

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4.

COUNT SIX: FIRST AMENDMENT

(a). Did Mr. Shaffer prove by a preponderance of the evidence that Mr. Shaffer's speech played a substantial or motivating role in the termination of his employment? Answer (yes or no): ___________________________

NOTE: If you answered "yes" to Question No. 4(a), then go to Question No. 4(b). If you answered "no" to Question No. 4(a), then go directly to Question No. 5 on Page ____ of this form, and do not answer Question No. 4(b). (b). DEFENDANTS' PROPOSED 4(b): If you answered yes to Question No. 4(a), what is the amount of Mr. Shaffer's damages as a result of being deprived of his right to free speech or being retaliated against for exercising his free speech? Defendants' position: Nominal damages are not available in every case. The court must determine whether nominal damages are permitted. See, e.g., Chew v. Gates, 27 F.3d 1432, 1437 (9th Cir. 1994) (Section 1983 action), cert. denied, 513 U.S. 1148 (1995); Parton v. GTE North, Inc., 971 F.2d 150, 154 (8th Cir. 1992) (Title VII action). In this case, plaintiff is seeking compensatory damages. Nominal damages are inappropriate. PLAINTIFF'S PROPOSED 4(b): If you answered yes to Question No. 4(a), what is the amount of Mr. Shaffer's damages including any nominal and punitive damages as a result of being deprived of his right to free speech or being retaliated against for exercising his free speech? Plaintiff's position: Shaffer's damages which result from being deprived of his liberty interest are not the only damages to which he is entitled. Even if the jury were to find no actual damages it would still be required to enter an award of nominal damages for violation of Shaffer's federal rights. George v. City of Long Beach, 973 F.2d 706 (9th Cir.1992); Floyd v. Laws, 929 F.2d 1390 (9th Cir.1991).Moreover, punitive damages are available in a 1983 action even though such damages do not compensate Shaffer for his damages as a result of the liberty interest deprivation. Answer: _____________________________

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5. COUNT EIGHT: INTENTIONAL INTERFERENCE WITH CONTRACTUAL RELATIONS4 (a). DEFENDANTS' PROPOSED: 5(a): Did Mr. Shaffer prove by a preponderance of the evidence that as an at-will employee he had a valid contractual relationship or business expectancy with the CCEC? Defendants' position: The Ninth Circuit has recently recognized that, where "a state employee serves at will, he or she has no reasonable expectation of continued employment...." Dyack v. Commonwealth of the N. Mariana Islands, 317 F.3d 1030, 1033 (9th Cir. 2003). Plaintiff's position: Plaintiff proposes that 5(a) not be given because the Arizona Employment Protection Act states that "The employment relationship is contractual in nature." A.R.S. § 23-1501(1). This, therefore is not a question of fact, but rather a question of law. The only fact question is whether Shaffer was employed with the CCEC ­ a fact which is not in dispute. Answer (yes or no): ___________________________

NOTE: If you answered "yes" to Question No. 5(a), then go to Question No. 5(b). If you answered "no" to Question No. 5(a), then go directly to the signature lines on Page ____ of this form, and do not answer Question Nos. 5(b) through 5(d). (b). If you answered yes to Question No. 5(a), did Mr. Shaffer prove by a preponderance of the evidence that Colleen Connor knew of Mr. Shaffer's valid contractual relationship or business expectancy with the CCEC? Answer (yes or no): ___________________________

NOTE: If you answered "yes" to Question No. 5(b), then go to Question No. 5(c). If you answered "no" to Question No. 5(b), then go directly to the signature lines on Page ____ of this form, and do not answer Question Nos. 5(c) through 5(d). (c). If you answered yes to Question No. 5(b), did Mr. Shaffer prove by a preponderance of the evidence that Colleen Connor acted improperly in

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Count Seven was deliberately omitted from this form.
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intentionally causing a breach or termination of Mr. Shaffer's employment relationship? Answer (yes or no): ___________________________

NOTE: If you answered "yes" to Question No. 5(c), then go to Question No. 5(d). If you answered "no" to Question No. 5(c), then go directly to the signature lines on Page ____ of this form, and do not answer Question Nos. 5(d) through 5(d). (d). If you answered yes to Question Nos. 5(a), 5(b) and 5(c), what is the amount of Mr. Shaffer's damages as a result of Colleen Connor intentionally interfering with Mr. Shaffer's contractual relationship with the CCEC? Answer: 6. PLAINTIFF'S PROPOSED 6: What is the total dollar amount of your award for Mr. Shaffer on all claims? Defendants' position: Requiring the jury to add the total dollar amount of any damages awards may lead only to confusion and error. Plaintiff's position: Failure to include a total could result in a double award of damages if the jury finds that the damage from one claim is identical to the damage from another. However, if the jury finds, for example that the emotional distress from defamation is different from the emotional distress from wrongful termination, Shaffer would be entitled to both amounts. The only way to know and avoid a mistake is for the jury to communicate what its intentions were for the total award. Answer: _________________________________ _________________________________

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We, the Jury, duly empanelled and sworn in the above-entitled action, upon our oaths, do find as set forth above.

(1) (2) (3) (4) (5) (6) (7) (8)

Printed Name Printed Name Printed Name Printed Name Printed Name Printed Name Printed Name Printed Name

Signature Signature Signature Signature Signature Signature Signature Signature FOREPERSON

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