Peterson v. Surprise – 2/6/2018
Arizona Court of Appeals Division One holds that an employee who fails to exhaust administrative remedies under the Arizona Civil Rights Act for a claim of wrongful discharge may not sue for retaliatory discharge under Arizona’s Employment Protection Act.
An employee sued her employer alleging that her retaliatory constructive discharge was based on sex discrimination. She alleged that she was sexually harassed in the workplace and that her employer retaliated against her for reporting the harassment, which ultimately caused her to resign. A jury awarded damages, and the employer appealed. In its appeal, the employer argued that the employee had failed to exhaust her administrative remedies prior to bringing her claim.
An employee may sue an employer for wrongful discharge on the basis of sex under the Arizona Civil Rights Act. The Civil Rights Act, however, requires an employee to file the claim with the Arizona Civil Rights Division within 180 days of an alleged constructive discharge. If the employee fails to exhaust administrative remedies, the employee loses the right to sue under the Civil Rights Act. A separate statute, the Arizona Employment Protection Act, also provides a cause of action if an employee is terminated in retaliation for reporting a violation of law, including a violation of the Arizona Civil Rights Act. See A.R.S. § 23-1501(A)(3)(b)(i). The Employment Protection Act also states, however, that if the underlying law provides its own remedies for a violation of the statute, then those remedies are the employee’s exclusive remedies. A.R.S. § 23-1501(A)(3)(b). Here, the employee’s claim under either Act was essentially the same: she was constructively discharged in retaliation for reporting to her employer that she was being harassed. Thus, because the employee had a remedy under the Civil Rights Act, that was her exclusive remedy and the administrative exhaustion requirements in the Civil Rights Act applied to her claim.
Judge Johnsen authored the unanimous opinion, in which Judges Brown and Campbell joined.