Chavez v. State

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

THOMAS M. CHAVEZ,
Plaintiff/Appellant,

v.

STATE OF ARIZONA, et al.,
Defendants/Appellees.

No. 1 CA-CV 22-0194
FILED 12-20-2022

Appeal from the Superior Court in Maricopa County
No. CV2021-012141
The Honorable Joseph P. Mikitish, Judge

AFFIRMED

COUNSEL

Thomas M. Chavez, Phoenix
Plaintiff/Appellant

Arizona Attorney General's Office, Phoenix
By Ann R. Hobart
Counsel for Defendants/Appellees
 CHAVEZ v. STATE, et al.
Decision of the Court

MEMORANDUM DECISION

Judge James B. Morse Jr. delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Michael J. Brown joined.

M O R S E, Judge:

¶1 Thomas Chavez ("Chavez") appeals from the superior court's
judgment dismissing his claims. For the reasons below, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 In Spring 2020, the Arizona Department of Economic Security
("DES") investigated an unspecified sexual-harassment allegation against
Chavez, a DES employee. In May 2020, DES issued Chavez a letter of
reprimand, but the investigation continued. Shortly after the reprimand,
DES suspended Chavez. During Chavez's suspension, a DES employee
(the "complainant") filed a formal sexual-harassment complaint against
Chavez, based on the events that incited DES's investigation.

¶3 In August 2020, a DES investigator interviewed the
complainant. A month after this interview, DES suspended Chavez again.
Two weeks later, two witnesses corroborated the complainant's allegations.
After receiving these witness statements, DES investigators interviewed
Chavez. On October 22, 2022, at least five months after the investigation
started, DES terminated Chavez's employment.

¶4 After his dismissal, Chavez demanded that DES produce the
records related to its investigation and his termination. Less than a month
later, DES produced documents, including redacted witness statements.

¶5 On May 17, 2021, Chavez served a notice of claim on the State
of Arizona and eight individual DES employees. This notice included a
"Prayer for Relief" that demanded: (1) reinstatement of his employment; (2)
removal of all adverse documentation from his employment file; (3)
reimbursement of lost wages and benefits; and (4) general damages of
$299,999.99.

¶6 On June 1, 2021, the Arizona Attorney General's Office
disclosed DES's investigation records, including unredacted witness
statements. Based on this disclosure, Chavez amended his notice of claim,

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Decision of the Court

adding five paragraphs related to the two witnesses that substantiated the
complainant's allegations. Chavez did not amend his demands.

¶7 On August 2, 2021, Chavez sued the State of Arizona, the
employment law section of the Arizona Attorney General's Office, and 12
individual DES employees (collectively, the "State").

¶8 Within days of filing the complaint, Chavez challenged the
assigned judge. Chavez argued bias based on the judge's past employment
with the Arizona Attorney General's Office. The presiding judge denied
Chavez's motion.

¶9 The State moved to dismiss the complaint, arguing that
Chavez did not comply with the statutory notice-of-claim requirements.
See A.R.S. § 12-821.01. The superior court granted the motion. Chavez
timely appealed. We have jurisdiction under A.R.S. § 12-1201(A)(1).

DISCUSSION

¶10 On appeal, Chavez argues that the superior court erred in (1)
denying his motion for change of judge; and (2) finding that he did not
comply with the notice of claim statute.

I. Change of Judge.

¶11 We "review for an abuse of discretion the denial of a motion
for change of judge based on a claim of judicial bias." Stagecoach Trails MHC,
L.L.C. v. City of Benson, 232 Ariz. 562, 568, ¶ 21 (App. 2013). We presume
that superior court judges are "free of bias and prejudice," but that
presumption may be rebutted by a preponderance of the evidence. State v.
Medina, 193 Ariz. 504, 510, ¶ 11 (1999) (quotation omitted). Contrary to
Chavez's argument, prior employment, standing alone, does not overcome
the presumption, unless the judge was personally "engaged as counsel in
the action prior to appointment as a judge." See A.R.S. § 12-409(B) (outlining
grounds for mandatory reassignment); see also United States v. Dorsey, 829
F.3d 831, 836 (7th Cir. 2016) (finding former employment with United States
Attorney's Office did not require the judge's recusal unless the judge had
been involved in the instant proceedings during his prior employment).
Because the assigned judge did not work on Chavez's case while he was
employed with the Attorney General's Office, Chavez did not rebut the
presumption and failed to carry his burden.

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 CHAVEZ v. STATE, et al.
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II. Notice of Claim.

¶12 We review de novo whether a notice of claim complies with
A.R.S. § 12-821.01. Jones v. Cochise County, 218 Ariz. 372, 375, ¶ 7 (App.
2008).

¶13 The superior court found that Chavez's notice of claim was
untimely and did not provide a specific demand amount. We only address
the specific-amount requirement. See Progressive Specialty Ins. Co. v. Farmers
Ins. Co. of Ariz., 143 Ariz. 547, 548 (App. 2014) (stating an appeals court
should not "decide issues unless it is required to do so in order to dispose
of the appeal under consideration").

¶14 A valid notice of claim must contain "a specific amount for
which the claim can be settled and the facts supporting that amount."
A.R.S. § 12-821.01(A); Deer Valley Unified Sch. Dist. No. 97 v. Houser, 214 Ariz.
293, 296, ¶ 9 (2007). The statute "unmistakably instructs claimants to
include a particular and certain amount of money that, if agreed to by the
government entity, will settle the claim." Deer Valley, 214 Ariz. at 296, ¶ 9.
Failure to provide this "specific amount" bars the claim. Id. at 296, 299, ¶¶
11, 22.

¶15 Chavez argues that his notice of claim contained a specific
demand in the amount of $299,999.99. But Chavez's notice of claim did not
provide that the government could settle the entire action for $299,999.99.

¶16 Chavez's settlement demand, titled as a "Prayer for Relief,"
outlined four demands: (1) reinstatement of his employment; (2) removal
of adverse documentation from his employee file; (3) reimbursement of lost
wages and benefits; and (4) general damages of $299,999.99. His first two
demands request injunctive relief. The second two demands request both
special damages, in the form of reimbursement for lost wages and benefits,
and general damages of $299,999.99. See Desert Palm Surgical Grp., P.L.C. v.
Petta, 236 Ariz. 568, 578, ¶ 23 n.13 (App. 2015) (describing the difference
between general and special damages). Chavez's notice of claim fails
because he never enumerated how much he sought in lost wages and
benefits or tied that number to a full settlement demand.

¶17 On appeal, Chavez argues the lost wages and benefits could
be either "in addition to," or "perhaps as components of," his notice's general
damages claim. But this argument acknowledges that the notice of claim
potentially included damages exceeding $299,999.99. Thus, the notice of
claim did not provide "a definite amount which [Chavez] is willing to
accept as full satisfaction of his claim[s]." Yollin v. City of Glendale, 219 Ariz.

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24, 29, ¶ 12 (App. 2008). Absent that certainty, the notice of claim was
deficient. Compare Deer Valley, 214 Ariz. at 296, ¶ 10 (stating that the
"repeated use of qualifying language makes it impossible to ascertain the
precise amount for which the [defendant] could have settled [the] claim")
with Donovan v. Yavapai Cnty. Cmty. Coll. Dist., 244 Ariz. 608, 609-10, ¶¶ 1, 3
(App. 2018) (holding plaintiff's statement that she would "accept the sum of
$450,000 as full and final settlement" was enough to satisfy A.R.S. § 12-
821.01's specific amount requirement).

CONCLUSION

¶18 The superior court correctly determined that A.R.S. § 12-
821.01(A) bars Chavez's claims. We affirm.

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

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