Osorio v. Ross

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

MARCO OSORIO, individually, and the Arizona
Conference of Police and Sheriffs, Plaintiffs/Appellants,

v.

WENDY ROSS, in her official capacity as Director of Human Resources
and Risk Management of the Yavapai County Sheriff’s Office and Scott
Mascher, in his official capacity as the Sheriff of Yavapai County,
Defendants/Appellees.

No. 1 CA-CV 20-0543
FILED 7-8-2021

Appeal from the Superior Court in Yavapai County
No. V1300CV201980190
The Honorable Thomas K. Kelly, Judge Pro Tempore

AFFIRMED IN PART, VACATED IN PART, REMANDED

COUNSEL

Steven J. Serbalik, Scottsdale
Counsel for Plaintiffs/Appellants

Jones Skelton & Hochuli PLC, Phoenix
By Michele Molinario, Ravi V. Patel, Joseph E. Leverence, Justin M.
Ackerman
Counsel for Defendants/Appellees
 OSORIO, et al. v. ROSS, et al.
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MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge David B. Gass and Judge David D. Weinzweig joined.

B R O W N, Judge:

¶1 Plaintiffs Marco Osorio (“Osorio”) and the Arizona
Conference of Police and Sheriffs (“AZCOPS”) appeal the superior court’s
judgment on the pleadings dismissing their complaint for declaratory and
injunctive relief arising from Osorio’s employment termination. We affirm
in part, vacate in part, and remand for further proceedings.

BACKGROUND

¶2 “In reviewing a judgment on the pleadings, we treat the
allegations of the complaint as true, but conclusions of law are not
admitted.” Giles v. Hill Lewis Marce, 195 Ariz. 358, 359, ¶ 2 (App. 1999).

¶3 Osorio worked as a deputy sheriff for the Yavapai County
Sheriff’s Office (“YCSO”). After a work-related injury, YCSO placed Osorio
on light duty. Around the same time, Osorio requested time off from work,
which Lt. Boelts approved. While Osorio was still on light duty, Lt. Raiss
asked for verification of Osorio’s medical appointments, the location of his
physical therapist’s office, and private medical information. During one of
Osorio’s physical therapy appointments, he saw Lt. Raiss parked outside of
the office. On other occasions, Lt. Raiss was parked outside “Osorio’s house
to determine whether [he] was actually injured.”

¶4 Osorio complained to YCSO Human Resources, stating “he
felt uncomfortable with Lt. Raiss parking outside of his appointments and
his house.” Lt. Raiss then asked to meet with Osorio, who replied he was
not comfortable meeting without a union representative present. Lt. Raiss
then told Capt. Martin that Osorio was being insubordinate, so Capt.
Martin instructed “Osorio to log into his work computer, resign, and go
home.” When Osorio refused to resign, Capt. Martin told him he was being
terminated. After meeting with a YCSO Human Resources officer, Osorio
was told he was not terminated, but had to meet with Capt. Martin the next
day. Capt. Martin gave Osorio a notice stating he was being placed on
administrative leave and was under investigation for insubordination.

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¶5 Because Osorio did not receive any communication that his
previously-approved leave time was canceled, he went on vacation for
several weeks as planned. During that time, the investigator assigned to
Osorio’s case contacted Osorio about setting up a meeting. Osorio
responded that he could meet when he returned from his scheduled time
off. Soon after, Yavapai County Sheriff Scott Mascher gave Osorio a notice
of termination.

¶6 Osorio went to the YCSO Human Resources office to discuss
the notice of termination, but because no one was available at the time, he
followed up with an email expressing his intent to appeal the termination.
His email was forwarded to Wendy Ross, the Yavapai County Director of
Human Resources. Ross responded to Osorio, stating he had voluntarily
resigned and would not be able to appeal because he had abandoned his
job.

¶7 Plaintiffs sued Ross and Sheriff Mascher (collectively
“Defendants”), alleging Defendants “refuse to reinstate” Osorio “or allow
him to appeal his termination.” Plaintiffs asked the court to declare that
Osorio “did not abandon his job” and that Defendants must “obey the
YCSO policies and procedures and the Arizona Peace Officer Bill of Rights”
(“POBR”). In their answer, Defendants admitted Osorio “was not entitled
to appeal his voluntary termination due to job abandonment.” Defendants
then moved for judgment on the pleadings under Arizona Rule of Civil
Procedure (“Rule”) 12(c). After oral argument, the court granted the
motion. As to AZCOPS, the court found that the organization did not show
a particularized injury sufficient to establish standing. As to Osorio, the
court found his claim was barred by A.R.S. § 23-1501 and that he did not
state a claim for declaratory or injunctive relief. Plaintiffs timely appealed.

DISCUSSION

¶8 “A motion for judgment on the pleadings . . . tests the
sufficiency of the complaint, and judgment should be entered for the
defendant if the complaint fails to state a claim for relief.” Giles, 195 Ariz.
at 359, ¶ 2. We assess the sufficiency of plaintiff’s claim under Rule 8(a),
which requires a pleading to contain a “short and plain statement of the
claim showing that the pleader is entitled to relief.” Cullen v. Auto-Owners
Ins. Co., 218 Ariz. 417, 419, ¶ 6 (2008). “Arizona follows a notice pleading
standard, the purpose of which is to ‘give the opponent fair notice of the
nature and basis of the claim and indicate generally the type of litigation
involved.’” Id. (citation omitted). We review de novo the superior court’s

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legal determinations and will affirm if correct for any reason. Muscat by
Berman v. Creative Innervisions LLC, 244 Ariz. 194, 197, ¶ 7 (App. 2017).

A. AZCOPS

¶9 Plaintiffs argue the superior court erred in finding AZCOPS
did not have standing to bring this claim. They contend the superior court
failed to view the complaint as a whole and infer that Osorio is an AZCOPS
member. Even assuming he is a member, mere membership is not sufficient
to establish that AZCOPS has individual or organizational standing. See
Klein v. Ronstadt, 149 Ariz. 123, 124 (App. 1986) (To establish individual
standing, claimant must demonstrate “a sufficient, concrete interest at stake
so that a court may answer the questions presented in relation to those
interests.”); see also Home Builders Ass’n of Cent. Ariz. v. Kard, 219 Ariz. 374,
377, ¶ 10 (App. 2008) (to prove organizational standing, a party must show
the organization “has a legitimate interest in an actual controversy
involving its members”). As Plaintiffs made no such allegations, we affirm
the superior court’s ruling as to AZCOPS.

B. Exhaustion of Administrative Remedies

¶10 Defendants argue Osorio failed to allege he exhausted his
administrative remedies. Generally, if a party can seek recourse from an
administrative agency, the party must follow the statutory procedures.
Hamilton v. State, 186 Ariz. 590, 593 (App. 1996) (citation omitted). If the
party fails to utilize all administrative remedies, the superior court lacks
jurisdiction to consider the claim. Id. The exhaustion doctrine is not
applied, however, when “invoking the available administrative procedures
would be futile or useless.” See Zeigler v. Kirschner, 162 Ariz. 77, 85–86 (App.
1989); see also Ariz. Ass’n of Providers for Persons with Disabilities v. State, 223
Ariz. 6, 14, ¶ 21 (App. 2009). Here, the superior court declined to address
whether Osorio exhausted his remedies, finding the inquiry was not
relevant to the issues before the court.

¶11 Yavapai County has a County Merit System Commission
(“Commission”), under which county employees may appeal adverse
employment actions, including terminations. See Yavapai County Human
Resources Policies and Procedures (“Yavapai Policy”) § 3.09(I)(A).1 A

1 See A.R.S. §§ 11-351 through 11-356 (establishing a county’s
authority to create an administrative commission to hear employment
appeals). Because the Yavapai Policy is a public record, it is not outside the

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county employee desiring to appeal a disciplinary action must file a written
notice of appeal with the county’s “Human Resources Director.” Yavapai
Policy § 3.09(III)(A)(1)–(2). This notice must include the basis of the appeal,
a summary of the relevant facts, the precise relief sought, and the
complainant’s contact information. Id. The Human Resources Director will
determine whether the employee has a right to appeal and if so, then will
coordinate a Commission hearing. Id.

¶12 Generally, a merit system commission does not have
jurisdiction to hear appeals from voluntary resignations. Ariz. Dep’t. of
Econ. Sec. v. Redlon, 215 Ariz. 13, 16, ¶ 7 (App. 2007). However, it does have
“discretion to determine whether an employee’s separation from
employment was the result of a resignation or a dismissal, and thus has the
power to determine its own jurisdiction.” Id. at 17, ¶ 7. Defendants argue
that unlike the plaintiff in Redlon, Osorio failed to allege he actually tried to
appeal his termination or otherwise seek review by the Commission.
Defendants assert Osorio’s email to YCSO human resources—the one
forwarded to Ross—does not follow the formal requirements for an appeal
under the Yavapai Policy. In Defendants’ view, Ross’s response to the
email only reflected her informal opinion that Osorio would be unable to
appeal his termination and was not an actual denial.

¶13 In his complaint, Osorio alleged:

Ms. Ross responded to Plaintiff Osorio stating that he had
voluntarily resigned from his position by abandoning his job
and being away for more than three consecutive days while
under investigation . . . . Because Plaintiff Osorio allegedly
abandoned his job, Plaintiff Osorio was denied his right to
appeal his termination.

....

Plaintiff Osorio attempted to resolve this issue through
informal conversation, but Defendants refuse to reinstate
Plaintiff Osorio or allow him to appeal his termination.

Defendants argue Osorio’s allegations—that they denied and continue to
deny him his right to appeal—are legal conclusions we must disregard. We
disagree. A complaint is only required to “give the opponent fair notice of

pleadings and may be properly considered in addressing the motion for
judgment on the pleadings. Cf. Coleman v. City of Mesa, 230 Ariz. 352, 356,
¶ 9 (2012).

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the nature and basis of the claim and indicate generally the type of litigation
involved.” Cullen, 218 Ariz. at 419, ¶ 6. Osorio’s assertions are at least
mixed allegations of fact and law. Moreover, in their answer Defendants
expressly denied that Osorio “was on approved vacation or that he had the
right to appeal his resignation.” Because Defendants made clear they
would deny any appeal Osorio would file, submitting a formal notice of
appeal would have been futile. See Zeigler, 162 Ariz. at 85–86. Thus, we
reject Defendants’ argument that the superior court lacks jurisdiction over
Osorio’s claims.

C. Declaratory Relief

¶14 The superior court held that Osorio did not state a claim for
relief on which declaratory relief could be granted. The specific
“declaratory” relief Osorio sought in his complaint was an order that
“Plaintiff Osorio did not abandon his job and at no point voluntarily
resigned, thereby reinstating him as a Deputy for the Yavapai County
Sheriff’s Office.” The court reasoned the relief requested falls outside the
scope of the Arizona’s Uniform Declaratory Judgments Act (“AUDJA”).
Osorio contends it is within the court’s authority to declare Osorio
reinstated, or at least to determine whether he is entitled to an appeal before
the commission.

¶15 Under the AUDJA, a person “whose rights, status or other
legal relations are affected by a statute, municipal ordinance, contract or
franchise, may have determined any question of construction or validity . . .
and obtain a declaration of rights, status, or other legal relations
thereunder.” A.R.S. § 12-1832. An employment relationship is contractual
in nature. A.R.S. § 23-1501(A)(1). To be entitled to declaratory judgment,
“the complaint must set forth sufficient facts to establish that there is a
justiciable controversy.” Planned Parenthood Ctr. of Tucson, Inc. v. Marks, 17
Ariz. App. 308, 310 (1972). Declaratory relief “simply declares the rights of
the parties or expresses the opinion of the court on a question of law,
without ordering anything to be done.” Black v. Siler, 96 Ariz. 102, 105
(1964). Such relief “does not seek execution or performance from the
defendant or opposing party.” Id. Because Osorio’s request for
reinstatement would require performance by the Defendants, we agree
with the superior court that it falls outside the scope of the AUDJA.

¶16 However, Osorio’s request for declaratory relief relating to
his right to appeal, though lacking clarity, sufficiently alleged he was
denied the right to appeal his termination. Defendants counter that he was
not denied the right to appeal because he never actually pursued it, and

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Ross merely expressed an informal opinion that Osorio would be unable to
appeal his termination. Defendants’ position, however, conflicts with the
following portion of their answer to the complaint:

[Defendants] admit that Ms. Ross responded to Plaintiff
Osorio stating that he had voluntarily resigned from his
position by abandoning his job and being away for more than
three days while under investigation. Defendants deny that
Plaintiff Osorio was on approved vacation or that he had a right
to appeal his resignation.

....

Defendants admit only that Plaintiff was not entitled to appeal his
voluntary termination due to job abandonment.

(Emphasis added.) The pleadings confirm a dispute exists on whether
Osorio was entitled to an appeal given Ross’s determination that Osorio
voluntarily abandoned his job. The superior court has the authority under
the AUDJA to resolve that narrow dispute in this case. See A.R.S. § 12-1832
(person whose rights are affected by a contract may seek a declaration of
such rights); see also A.R.S. § 12-1842 (explaining that the AUDJA “is
declared to be remedial; its purpose is to settle and to afford relief from
uncertainty and insecurity with respect to rights, status and other legal
relations; and is to be liberally construed and administered”). On remand,
the court shall conduct further proceedings as it deems appropriate to
resolve whether Osorio was entitled to appeal his termination. If Osorio is
successful, then the Commission decides whether his termination was
voluntary. See Redlon, 215 Ariz. at 16, ¶ 7.

D. Injunctive Relief

¶17 The superior court also found that Osorio did not state a claim
upon which injunctive relief could be granted. Osorio asserts the finding
was error because issuing a mandatory injunction falls within the court’s
authority and it is an appropriate remedy because Defendants blocked his
right to appeal. We review the superior court’s denial of an injunction for
abuse of discretion. Cochise Cnty. v. Faria, 221 Ariz. 619, 621, ¶ 6 (App. 2009).

¶18 Construing Osorio’s reinstatement claim as a request for
injunctive relief, we agree with the superior court that ordering such relief
would have been improper. As previously explained, the Commission, not
the court, should be the first to address whether Osorio was wrongfully
terminated. See supra, ¶ 16. Additionally, Osorio’s request that Defendants

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be ordered to, “at all times, obey the YCSO policies and procedure and the
[POBR],” amounts to little more than a broad demand to obey the law. See
NLRB v. Express Pub. Co., 312 U.S. 426, 435–36 (1941); West Valley View, Inc.
v. Maricopa Cnty. Sheriff’s Office, 216 Ariz. 225, 228, ¶ 11 (App. 2007)
(observing that “courts are generally hesitant to order a defendant to obey
a law in the future”).

¶19 If Osorio is successful on his claim for declaratory judgment
and Defendants continue to deny him access to an appeal, we express no
opinion as to whether Osorio may then be entitled to injunctive relief based
on his original complaint or whether he may properly seek other remedies
to compel processing of his appeal to the Commission. See, e.g., Stagecoach
Trails MHC, L.L.C. v. City of Benson, 231 Ariz. 366, 370, ¶ 19 (2013)
(explaining that “[a]n action is in the nature of mandamus if it seeks to
compel a public official to perform a non-discretionary duty imposed by
law”); Arizonans for Second Chances, Rehab., & Pub. Safety v. Hobbs, 249 Ariz.
396, 404, ¶ 16 (2020) (rules of special action provide means to request
mandamus relief); see also Ariz. R.P. Spec. Act. 1(a) (“Relief previously
obtained against a body, officer, or person by writs of certiorari, mandamus,
or prohibition in the trial or appellate courts shall be obtained in an action
under this Rule . . . .” (emphasis added)).

E. Statutory Considerations

¶20 Osorio argues the court erred in finding his claims are barred
by A.R.S. § 23-1501 and should have applied the POBR. We review the
superior court’s interpretation and application of statutes de novo. First
Fin. Bank, N.A. v. Claassen, 238 Ariz. 160, 162, ¶ 8 (App. 2015).

¶21 Section 23-1501(A)(3) outlines the grounds upon which an
employee may bring a wrongful termination claim and limits the
employee’s potential remedies under this theory. Given this case’s current
posture, those remedies are not pertinent; therefore, to the extent the court
found that § 23-1501 bars Osorio from seeking a declaratory judgment on
his right to appeal to the Commission, the court erred. We express no
opinion as to the merits of Osorio’s claim that he was wrongfully
terminated in violation of the POBR. If on remand the court finds that

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Osorio is entitled to pursue an appeal, the Commission should decide
issues involving the POBR.2

CONCLUSION

¶22 We remand for further proceedings consistent with this
decision.

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

2 In his reply brief, Osorio argues that “YCSO did not provide him
with information regarding his right to appeal.” Defendants filed a motion
to strike this argument, asserting that “this theory of liability was never
pled by Osorio in his Complaint, never raised by Osorio in any pleading
below, and never raised as an issue on appeal in his Opening Brief.”
Because we need not address this issue to resolve this appeal, we deny the
motion as moot.

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