Worldwide Jet v. Christian

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

WORLDWIDE JET CHARTER, INC., Plaintiff/Appellee,

v.

TIMOTHY R. CHRISTIAN, Defendant/Appellant.

No. 1 CA-CV 22-0158
FILED 3-9-2023

Appeal from the Superior Court in Maricopa County
No. CV2019-096623
The Honorable Stephen M. Hopkins, Judge Retired
The Honorable Tracey Westerhausen, Judge

AFFIRMED

COUNSEL

Denton Peterson Dunn, PLLC, Mesa
By Brad A. Denton, Larry A. Dunn
Counsel for Plaintiff/Appellee

Vasin & Rocco, PLLC, Mesa
By Mitchell A. Vasin
Counsel for Defendant/Appellant

OPINION

Judge Cynthia J. Bailey delivered the opinion of the Court, in which
Presiding Judge Samuel A. Thumma and Vice Chief Judge David B. Gass
joined.
 WORLDWIDE JET v. CHRISTIAN
Opinion of the Court

B A I L E Y, Judge:

¶1 Timothy R. Christian appeals the superior court’s summary
judgment for Worldwide Jet Charter, Inc. (“Worldwide”) on Worldwide’s
claim for breach of contract and Christian’s counterclaim for breach of the
implied covenant of good faith and fair dealing. Christian argues the court
erred in concluding his counterclaim was superseded by the Arizona
Employment Protection Act (“AEPA”), see Ariz. Rev. Stat. (“A.R.S.”) §§ 23-
1501, -1502, and that he failed to satisfy the statutory preconditions to assert
constructive discharge under the AEPA. Because Christian has shown no
error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Worldwide provides charter jet services and offered to hire
Christian as a pilot. In October 2018, the parties signed a Conditional Offer
of Employment (“Offer”) that incorporated two attached exhibits: a
Promissory Note (“Note”) and a Training Reimbursement Agreement
(“TRA”).1

¶3 As outlined in the Offer, Christian’s employment was
contingent upon his completing required flight training. Although
Christian was financially responsible for his flight training costs, the Offer
stated that Worldwide would advance the training costs consistent with the
terms in the Note and TRA. The Offer and Note provided for payments
over approximately two years, but Worldwide agreed to credit Christian
with these payments if he remained employed with Worldwide. If
Christian’s employment ended sooner than two years, however, he would
become responsible for any balance due on the Note. And, if Christian did
not successfully complete the training or terminated his employment with
Worldwide within three months after completing the training, he was
responsible for the entire training cost.

¶4 Christian accepted the Offer and signed an employment
contract (“Contract”) that included the terms in the Offer. Christian
completed flight training in December 2018 and resigned from Worldwide
less than two months later. Worldwide sent Christian a demand letter for

1 In a recent opinion involving Worldwide and other defendants
subject to the same or substantially similar documents, this court has held
that the Offer incorporates the Note and TRA, constituting one employment
agreement. Worldwide Jet Charter, Inc. v. Toulatos, 85 Ariz. Cases Digest 7,
523 P.3d 398, 402–03, ¶ 14 (App. 2022). We agree with that conclusion.

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Opinion of the Court

training cost reimbursement. Christian did not repay the training costs,
responding that he had been wrongfully constructively discharged and
damaged by Worldwide, which had “forced him to fly a Gulfstream G4
notwithstanding its unairworthy status.”

¶5 Worldwide sued Christian, alleging breach of contract, breach
of the implied covenant of good faith and fair dealing, and unjust
enrichment based on Christian’s failure to repay the training costs.
Christian pled no clear affirmative defense, but counterclaimed, asserting
Worldwide breached the implied covenant of good faith and fair dealing
by requiring him to fly an unsafe aircraft and therefore had “compelled”
him to terminate his employment.2 See Ariz. R. Civ. P. 8(d). He further
asserted the training he received was so he could fly the Gulfstream G4, and
the G4 rating had no value to him outside of his contract with Worldwide.

¶6 Worldwide moved for summary judgment on its breach of
contract claim and Christian’s counterclaim. Worldwide argued the court
should dismiss the counterclaim and grant summary judgment in its favor
because (1) the counterclaim was really a common law claim for
constructive discharge that was superseded by § 23-1502 of the AEPA, (2)
even if Christian had properly asserted a constructive discharge claim
under A.R.S. § 23-1502, he failed to satisfy the statutory preconditions to
assert constructive discharge, (3) even if Christian properly asserted a
common law contract claim, it failed because the undisputed facts showed
the plane was certified as airworthy, and (4) Christian had breached his
contract with Worldwide. After responsive briefing, the superior court
held oral argument and took the matter under advisement.

¶7 The court later granted Worldwide’s motion. The court
determined that Christian’s counterclaim was superseded by the AEPA and
failed under A.R.S. § 23-1502 and, alternatively, that Christian had failed to
present admissible evidence raising issues of material fact regarding the
Gulfstream G4’s airworthiness and whether Worldwide threatened to fire
anyone who refused to fly even if the plane was unsafe. After denying
Christian’s motion for reconsideration, the court issued a final judgment in
favor of Worldwide. See Ariz. R. Civ. P. 54(c).

2 The counterclaim alleged that Worldwide knowingly breached an
implied obligation to provide airworthy aircraft to fly and that breach
compelled Christian to either quit or engage in illegal conduct (flying an
unairworthy aircraft) that risked an end to his flying career, was contrary
to public policy, and constituted “a tortious, bad-faith breach of contract.”

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 WORLDWIDE JET v. CHRISTIAN
Opinion of the Court

¶8 We have jurisdiction over Christian’s timely appeal. See
A.R.S. § 12-2101(A)(1).

DISCUSSION

¶9 Christian argues the superior court erred in granting
summary judgment for Worldwide.

I. Standard of Review

¶10 We review de novo the superior court’s grant of summary
judgment, construing the facts and reasonable inferences in the light most
favorable to Christian, the opposing party. Andrews v. Blake, 205 Ariz. 236,
240, ¶ 12 (2003); Wells Fargo Bank v. Ariz. Laborers, Teamsters & Cement
Masons Local No. 395 Pension Tr. Fund, 201 Ariz. 474, 482, ¶ 13 (2002). We
also review de novo other questions of law, including the interpretation of
statutes and contracts. See Premier Physicians Grp., PLLC v. Navarro, 240
Ariz. 193, 194, ¶ 6 (2016); Grosvenor Holdings, L.C. v. Figueroa, 222 Ariz. 588,
593, ¶ 9 (App. 2009). We review for abuse of discretion the superior court’s
denial of a motion for reconsideration. Powers v. Guar. RV, Inc., 229 Ariz.
555, 561, ¶ 24 (App. 2012) (citation omitted).

¶11 Summary judgment is appropriate when “the moving party
shows that there is no genuine dispute as to any material fact and the
moving party is entitled to judgment as a matter of law.” Ariz. R. Civ. P.
56(a); accord Orme Sch. v. Reeves, 166 Ariz. 301, 305 (1990). It is inappropriate
“if the court must evaluate the credibility of witnesses with different
versions of material facts, weigh the quality of evidence, or choose among
competing inferences.” Purdy as Tr. ex rel. Survivors of Jones v. Metcalf ex rel.
Pima Cnty., 252 Ariz. 270, 274, ¶ 14 (App. 2021) (citing Orme Sch., 166 Ariz.
at 311).

II. Worldwide’s Breach of Contract Claim

¶12 On the record presented, it is undisputed that Christian
agreed to the employment terms with Worldwide and executed the
Contract. Under the Contract, Worldwide advanced more than $40,000 for
Christian’s training with the understanding that if he stopped working for
Worldwide within three months of his effective hire/start date, he would
be required to repay the full amount. Because Christian does not dispute
the enforceability of the Contract, that he resigned less than two months
after his start date, or the amount Worldwide claimed he owed, the superior
court did not err in granting summary judgment to Worldwide on its
breach of contract claim if Christian’s counterclaim fails.

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 WORLDWIDE JET v. CHRISTIAN
Opinion of the Court

III. Christian’s Counterclaim

A. Christian’s Common Law Counterclaim is Superseded by
A.R.S. § 23-1502(A).

¶13 In Arizona, the AEPA governs the severability of
employment relationships. See White v. AKDHC, LLC, 664 F. Supp. 2d 1054,
1061 (D. Ariz. 2009) (citing Cronin v. Sheldon, 195 Ariz. 531 (1999); Taylor v.
Graham Cnty. Chamber of Com., 201 Ariz. 184 (App. 2001)). By the AEPA’s
plain language, A.R.S. § 23-1501 addresses employees’ claims against an
employer when the employer terminates the employment relationship, and
§ 23-1502 addresses employees’ claims against an employer when
constructive discharge occurs—i.e., when the employee is allegedly
compelled to terminate the employment relationship.

¶14 The AEPA does not affect all state common-law claims that
might arise in the workplace. See Cronin, 195 Ariz. at 538, ¶ 35; Taylor, 201
Ariz. at 187, ¶ 8. But wrongful termination and constructive discharge
claims are governed exclusively by the AEPA. See A.R.S. §§ 23-1501(A)(3)
(“An employee has a claim against an employer for termination of
employment only if one or more of the following circumstances have
occurred . . . .”), -1502(A) (“In any action under the statutes of this state or
under common law, constructive discharge may only be established by
[A.R.S. § 23-1502(A)(1)-(2)].”), (F); White, 664 F. Supp. 2d at 1061 (“[T]he
[A]EPA not only applies to White’s breach of contract claim, but governs it
exclusively.”); cf. Taylor, 201 Ariz. at 191, ¶ 25 (“[T]he [A]EPA’s primary
purpose [i]s to circumscribe, not broaden, wrongful termination claims
based on alleged violations of public policy.”); see also Cronin, 195 Ariz. at
535, ¶ 15 (upholding the constitutionality of challenged provisions of the
AEPA).3

¶15 Here, the superior court properly relied on Christian’s
opposition to Worldwide’s summary judgment motion, characterizing his
counterclaim as a claim for constructive discharge, in concluding the
counterclaim is superseded and governed exclusively by A.R.S. § 23-
1502(A). Christian argues his counterclaim should be construed more
broadly and is based on bad faith “conduct other than termination” of his
employment relationship with Worldwide. Even if Christian did not waive
this permutation of his argument by not raising it in the superior court, see

3 In this appeal, the parties do not present, and we do not reach, any
constitutional issues that might arise when a statute alters common law
claims.

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 WORLDWIDE JET v. CHRISTIAN
Opinion of the Court

BMO Harris Bank N.A. v. Espiau, 251 Ariz. 588, 594, ¶ 25 (App. 2021), we find
it unavailing, see Cook v. Scottsdale Ins. Co., No. CV11-0938-PHX-DGC, 2012
WL 6089039, at *9 (D. Ariz. Dec. 6, 2012) (“This Court previously has held
that an Arizona plaintiff does not have a common law claim for wrongful
termination if the claim is based on the same conduct as the AEPA claim.”
(citing Revit v. First Advantage Tax Consulting Serv., LLC, No. CV10–1653–
PHX–DGC, 2012 WL 1230841, at *8 (D. Ariz. Apr. 12, 2012))); see also White,
664 F. Supp. 2d at 1061 (similar).

¶16 In Revit, the federal district court explained the rationale for
the limitations the AEPA placed on independent common law claims:

The Arizona Supreme Court recognized in Wagenseller v.
Scottsdale Memorial Hospital, 147 Ariz. 370, 710 P.2d 1025 (Ariz.
1985), that an employer may be held liable for civil damages
if the employer discharges an employee for a reason that is
against the public policy of Arizona. “[T]he AEPA was
enacted in direct response to Wagenseller and with the intent
of limiting the availability of wrongful termination for the
violation of public policy.” Galati [v. Am. W. Airlines, Inc., 205
Ariz. 290, 293, ¶ 12 (App. 2003)]. Whatever categories of
wrongful termination might survive under Wagenseller after
enactment of the AEPA—an issue that has not been decided
by Arizona courts—this Court cannot conclude that they
include actions for the same conduct covered by the AEPA.
To so hold would mean that any strictures placed by the
AEPA on claims arising from particular conduct could simply
be disregarded by repackaging the claims under Wagenseller.
Such an interpretation would have absolutely no limiting
effect on Wagenseller, and therefore would be clearly contrary
to the intent of the AEPA.

No. CV10–1653–PHX–DGC, at *8.

¶17 Christian’s counterclaim is, in substance, a constructive
discharge claim governed by the AEPA, see A.R.S. § 23-1502(A), and he does
not assert a common law claim based on any conduct independent from the
AEPA. Moreover, A.R.S § 23-1502(A) expressly provides that constructive
discharge claims—including those made “under common law”—must be
brought under the AEPA. Christian points to no applicable Arizona
statutory or public policy exception that could make his counterclaim
independent from his AEPA claim.

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 WORLDWIDE JET v. CHRISTIAN
Opinion of the Court

B. Christian Has Waived Any Argument That His
Counterclaim Should Be Considered Under A.R.S. § 23-
1501(A)(3)(a).

¶18 Christian next argues his counterclaim should be considered
a “valid and recognized contract cause of action” under A.R.S. § 23-
1501(A)(3)(a). Christian admittedly did not plead a claim under § 23-
1501(A)(3)(a). Accordingly, he has waived this argument. See, e.g., Odom v.
Farmers Ins. Co. of Ariz., 216 Ariz. 530, 535, ¶ 18 (App. 2007). Section 23-
1501(A)(3)(a) does not apply here, and Christian has no cause of action
under that statute.

¶19 Worldwide also notes that Christian did not specifically cite
§ 23-1502 when pleading his counterclaim, and it argues he may be deemed
to have waived any argument based on that statute as well. The superior
court found no waiver, however, and addressed his counterclaim under
§ 23-1502. So do we.

C. Christian’s Counterclaim Fails Under A.R.S. § 23-
1502(A)(1) Because He Did Not Satisfy the Precondition
Requirements Under A.R.S. § 23-1502(B).

¶20 Under A.R.S. § 23-1502(A), constructive discharge may only
be established by showing (1) objectively difficult or unpleasant working
conditions or (2) the employer’s outrageous conduct, either of which would
cause a reasonable employee to feel compelled to resign. As a precondition
for an employee to bring a constructive discharge claim under subsection
(A)(1), an employee must take the following actions before resigning:

1. Notify an appropriate representative of the employer, in
writing, that a working condition exists that the employee
believes is objectively so difficult or unpleasant that the
employee feels compelled to resign or intends to resign.

2. Allow the employer fifteen calendar days to respond in
writing to the matters presented in the employee’s written
communication under paragraph 1 of this subsection.

3. Read and consider the employer’s response to the
employee’s written communication under paragraph 1 of this
subsection.

A.R.S. § 23-1502(B).

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 WORLDWIDE JET v. CHRISTIAN
Opinion of the Court

¶21 Christian did not provide the written notice required by
A.R.S. § 23-1502(B). On appeal, he has not asserted that Worldwide waived
the precondition requirement by failing to comply with the employer’s
notice requirement of A.R.S. § 23-1502(E). And the undisputed record is to
the contrary. Worldwide provided evidence that it posted the required
§ 23-1502(E) notice, and it attached three declarations stating that Christian
did not provide notice to Worldwide under § 23-1502(B). Christian’s own
declaration was silent on the topic. Accordingly, Christian did not satisfy
the precondition requirements for a claim under A.R.S. § 23-1502(A)(1).

D. Christian’s Counterclaim Also Fails Under A.R.S. § 23-
1502(A)(2) and (F).

¶22 Christian argues that he should be excused from compliance
with the preconditions of § 23-1502(B) because Worldwide’s conduct was
so egregious—forcing pilots to break the law or be fired—that the claim
falls under A.R.S. § 23-1502(A)(2) and (F). Under A.R.S. § 23-1502(F),

an employee may bring a constructive discharge claim
without prior written notice in the event of outrageous
conduct by the employer or by a managing agent of the
employer including sexual assault, threats of violence
directed at the employee, a continuous pattern of
discriminatory harassment by the employer or by a managing
agent of the employer or other conduct if the conduct would
cause a reasonable employee to feel compelled to resign.

¶23 The superior court concluded that Christian’s counterclaim
“does not fit within that statute,” and we agree. Christian focused his
counterclaim on Worldwide’s alleged failure to provide an airworthy
aircraft, but Christian’s declaration does not contradict the undisputed facts
that show Worldwide responded to the report regarding the G4’s standby
altitude indicator by complying with all federal regulations governing such
situations. On this record, Christian did not show Worldwide engaged in
outrageous conduct as a matter of law, and the superior court did not err in
granting summary judgment as to Christian’s counterclaim.4

IV. Attorneys’ Fees and Costs on Appeal

¶24 Both sides request attorneys’ fees on appeal. Because
Worldwide is the prevailing party, we award attorneys’ fees to Worldwide

4 Given our resolution of the previous issues, we need not address the
additional issues raised by the parties.

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 WORLDWIDE JET v. CHRISTIAN
Opinion of the Court

consistent with the parties’ agreement and A.R.S. § 12-341.01 and taxable
costs under A.R.S. § 12-342 upon compliance with Rule 21, ARCAP.

CONCLUSION

¶25 We affirm.

AMY M. WOOD • Clerk of the Court
FILED: AA

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