Papias v. Parker

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOSHUA PAPIAS,
Plaintiff/Appellee,

v.

PARKER FASTENERS LLC,
Defendant/Appellee.

No. 1 CA-CV 22-0775
FILED 10-17-2023

Appeal from the Superior Court in Maricopa County
No. CV2021-018939
The Honorable Jay Adleman, Judge

VACATED AND REMANDED

COUNSEL

Weiler Law PLLC, Phoenix
By James Weiler
Counsel for Plaintiff/Appellant

Radix Law, Scottsdale
John J. Balitis
Counsel for Defendant/Appellee
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MEMORANDUM DECISION

Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Andrew M. Jacobs and Chief Judge David B. Gass joined.

B R O W N, Judge:

¶1 Joshua Papias (“Papias”) appeals the superior court’s order
granting summary judgment on his claim that Parker Fasteners, LLC
(“Parker”) violated Arizona’s Fair Wages and Healthy Family Act (“Act”),
A.R.S. § 23-371 et seq., by firing him in retaliation for his attempt to use
earned paid sick time (“sick time”). Because material issues of fact exist
that preclude summary judgment, we vacate the order and remand for
further proceedings.

BACKGROUND

¶2 Parker is an Arizona company with more than fifteen
employees. On May 28, 2019, Papias was hired to work as a “Headerman”
at Parker’s manufacturing facility. Parker gave Papias its employee
handbook, which states that full-time, regular employees “accrue sick
[time] from the date of hire, for a total of 5 days per year.” 1 According to
Parker, the “year” begins on the employee’s hiring date. The handbook also
states that sick time may be used for the employee’s personal illness or to
care for immediate family members. But sick time cannot be used before it
is accrued, and medical documentation is required if an employee takes sick
time for more than three consecutive working days. If sick time “is
exhausted, any available vacation hours will be used in its place.” Vacation
time can only be used after accrual, which does not begin until one year
from an employee’s first day of full-time employment.

¶3 Parker uses the “Paychex” payroll system, which
presumptively allows employees to access their paystubs, tax documents,

1 The handbook uses the phrase “sick leave,” but the Act describes it
as “sick time.” Under A.R.S. § 23-372(a), “[e]mployees of an employer with
15 or more employees shall accrue a minimum of one hour of earned paid
sick time for every 30 hours worked,” up to 40 hours unless the employer
elects to exceed that limit.

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health and benefits information, and available paid time off. Employees
can request time off through Paychex.

¶4 Parker’s employment practices deviated from its handbook
policies in several instances. During Papias’ first year of employment, he
“used” 40 hours of sick time between July 1, 2019, and December 22, 2019.
Despite being classified as “sick time,” many if not all the hours Papias took
off from work were for absences unrelated to any sickness. For example,
Papias requested time off for family gatherings, travel, and personal
appointments. Although the record does not show that Papias asked to be
paid for such absences, Parker paid him for the absences by classifying the
hours taken as sick time, which was reflected in his paystubs. During the
first year, Parker also advanced, or frontloaded, 48 hours of paid vacation
time to Papias despite its policy that accrual of paid vacation time does not
begin until after one year of employment.

¶5 Papias’ second year began on May 28, 2020. He again
requested time off repeatedly without indicating he was asking for sick
time or to be paid for his absences. Parker continued to allow Papias to take
time when he requested it for personal reasons but nonetheless classified
the hours as “sick time” to pay him full paychecks. According to Parker’s
accounting department employee, Papias used 48 hours of sick time for his
absences between August 24, 2020, and December 29, 2020. And because
Parker had frontloaded Papias 40 hours of paid vacation time during his
first year of his employment, Papias had no available paid vacation time
available to use in his second year of work unless Parker decided to advance
it to him like it did during his first year of employment.

¶6 On Monday, March 1, 2021, Papias did not report to work. He
had previously told his supervisor he would be out of town and he
understood his leave for that day would be unpaid. On Tuesday, March 2
(5:02 a.m.), Papias texted his supervisor, stating: “I woke up with a sore
throat . . . [Do] [y]ou want me to just wear a mask.” His supervisor replied,
“I would but it’s up to you.” Papias then texted his line lead stating he
would be staying home because he woke up with a sore throat. Papias
sought medical treatment that day and was “diagnosed with an acute upper
respiratory infection.” He tested negative for COVID-19. Later that
evening, Papias texted his supervisor and line lead that he would not be at
work the next day, March 3, because his nose was congested, his head hurt,
and he had body aches. On the evening of March 3, Papias texted that he
would not be at work the next day because he had a headache and body
aches. The next morning (Thursday, March 4), Papias’ supervisor told him
that he needed to provide Parker with (1) a doctor’s note “when you com[e]

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[in] on Monday,“ and (2) a COVID-19 test result “before you come back to
work.”

¶7 On Monday, March 8, Papias returned to work and had a
meeting with his supervisor and Parker’s human resources (“HR”) director.
The supervisor expressed skepticism that Papias had been ill, informed him
that his absences had placed “a lot of stress” on the supervisor the previous
week, and stated that because Parker no longer needed Papias, his
employment was terminated.

¶8 Papias sued Parker for unlawful termination under the Act,
alleging Parker: (1) retaliated because he tried to use sick time; (2) failed to
provide him with notice of the amount of sick time available to him, the
amount taken by him to date in the year, the amount of pay he had received
as sick time; and (3) violated the notice requirements of A.R.S.
§ 23-375(A). Papias sought damages in an amount to be proven at trial.

¶9 Parker moved for summary judgment. It argued that Papias’
retaliation claim under A.R.S. § 23-374(B) failed as a matter of law because:
(1) he had no sick time available to use when he did not appear for his shifts
in March 2021; (2) he did not request to use sick time for those absences;
and (3) regardless, he was terminated for “performance issues.” As to the
allegations that it violated the notice requirements of A.R.S. § 23-375(A) and
(C), Parker argued the statute does not create a private right of action for
employees to enforce the provisions and recover penalties. Even so, Parker
argued it complied with the statutory requirements in subsection (A) by
prominently displaying a poster of Arizona state labor laws at its facility,
and it complied with subsection (C) because all employee sick time
information was available via Paychex.

¶10 Papias countered that genuine issues of material fact existed
on all three claims. He disputed Parker’s claim that he had no available sick
time left to use in March 2021. For example, Papias argued Parker
unlawfully applied his accrued sick time to absences that it knew were
unrelated to any of the reasons for which using sick time is permissible
under the Act, and it did so without him requesting to use sick time.
Although Papias agreed he was paid for such hours, he argued that but for
Parker applying sick time to his non-sickness related absences, he would
have had sick time available to use in March. Papias also argued Parker
violated the Act by terminating him for requesting sick time in March 2021.
Papias asserted that the court should presume his termination was in
retaliation for his assertion of rights, and Parker had not produced clear and
convincing evidence it terminated him for productivity issues.

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¶11 As to the § 23-375(C) notice provisions, Papias argued the
required data was not “recorded in, or on an attachment to” his regular
paycheck. Papias disputed that Parker complied with the statutory
requirements because he did not have access to view the amount of accrued
sick time available to him on Paychex and such data was not recorded on
his paystubs. He argued the information reflected in Parker’s exhibits was
not previously available to him, and moreover, the data reflected on the
paystubs and Paychex screenshot appeared to be contradictory.

¶12 Following oral argument, the superior court granted Parker’s
motion for summary judgment. The court found there was no evidence of
unlawful retaliation, “largely due to the fact that [Papias] did not have any
accrued sick leave at the time of his termination.” The court was not
persuaded by Papias’ theory of unlawful application of sick time, because
it found Parker paid him for sick time in the required amount, Papias was
aware that Parker applied sick time to his absences, and this information
about his pay was digitally available to him at all relevant times. The court
also found that the “undisputed record” demonstrated Parker complied
with the notice requirements under § 23-375 (A) and (C) because Parker
provided Papias with the required data through Paychex. The court
declined to decide whether the Act creates a private right of action for
employees asserting violations of § 23-375. Papias timely appealed, and we
have jurisdiction under A.R.S. § 12-2101(A).

DISCUSSION

¶13 Papias argues the court erred in granting summary judgment
because the facts upon which it relied are disputed, and even if they were
undisputed, it would “not prevent a jury from concluding that [Parker]
violated the Act.” Summary judgment is appropriate when no genuine
issues of material fact exist, and the moving party is entitled to judgment as
a matter of law. Ariz. R. Civ. P. 56(a). A “genuine” issue of fact is one that
a reasonable trier of fact could decide in favor of the party adverse to
judgment on the available evidentiary record. Martin v. Schroeder, 209 Ariz.
531, 534, ¶ 12 (App. 2005). We review the superior court’s ruling de novo,
“viewing the evidence and reasonable inferences in the light most favorable
to the party opposing the motion.” Andrews v. Blake, 205 Ariz. 236, 240,
¶ 12 (2003).

A. Retaliation

¶14 Papias argues the court erred by concluding there was no
evidence his termination was an adverse action of retaliation. Under the

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Act, an employer cannot retaliate against an employee for requesting,
using, or attempting to use sick time. A.R.S. § 23-374(B) (employer cannot
“engage in retaliation or discriminate against an employee” for exercising
the “rights protected under this article”); see also A.R.S. § 23-374(A) (“It shall
be unlawful for an employer or any other person to interfere with, restrain,
or deny the exercise of, or the attempt to exercise, any right protected under
this article.”). As stated in the poster “prominently displayed” in the
breakroom of Parker’s manufacturing facility:

Employers are prohibited from discriminating against or
subjecting any person to retaliation for: (1) asserting any claim
or right under the Act, including requesting or using earned
paid sick time; (2) assisting any person in doing so; or (3)
informing any person of their rights under the Act. See
[A.R.S.] § 23-373 for more information.

¶15 An employee “injured by a violation” of the statute may bring
an action against their employer. A.R.S. § 23-364(E), (H). Retaliation
includes “any threat, discharge, suspension, demotion, reduction of hours,
or any other adverse action against an employee for the exercise of any right
guaranteed.” A.R.S. § 23-364(B). If an employer takes adverse action, such
as termination, against an employee within 90 days of a request to use or
the use of sick time, it “shall raise a presumption that such action was
retaliation.” Id.; Jett v. Cnty. of Maricopa, CV-19-02735-PHX-DLR, 2022 WL
345004, at *4 (D. Ariz. Feb. 4, 2022). The presumption “may be rebutted by
clear and convincing evidence that such action was taken for other
permissible reasons.” A.R.S. § 23-364(B).

¶16 Papias contends the superior court’s ruling is improperly
based on disputed facts, or the facts are such that a reasonable jury could
still determine, that Parker retaliated against him. Papias argues he
engaged in protected activity by requesting or attempting to request to use
sick time when he notified Parker of his need to be absent from work due
to illness. He asserts the Act protects employees from retaliation regardless
of whether they have sick time available when they need to be absent from
work for an illness. Parker counters that the court properly rejected the
retaliation claim because Papias did not have sick time available to use for
his March 2021 absences. Parker points out that Papias “admits” and his
“payroll records show” that he had already used his sick time for the year.
For several reasons, we conclude the court erred in granting summary
judgment.

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¶17 First, it is undisputed Papias was absent from work on
December 29, 2020, and Parker classified his absence as sick time, which
means Papias “used” 7.5 hours of sick time that day.2 Parker fired Papias
on March 8, 2021, within 90 days of when he used paid sick time. Thus, the
record plainly shows that Parker took adverse action against Papias within
90 days of his “use” of sick time. See A.R.S. §§ 23-364(B), –374(B). A
presumption therefore exists, as a matter of law, that Parker’s action was
retaliatory under the Act. Although Papias raised the 90-day presumption
by relying on § 23-374(B), he did not specifically tie it to the sick time usage
on December 29, 2020. Though he arguably waived that argument, we must
view the evidence in the light most favorable to Papias, and it is undisputed
that Papias “used” sick time in late December 2020. Thus, the 90-day
presumption applies.

¶18 Yet even if Papias waived the 90-day “use” presumption,
disputed factual issues exist on whether the presumption nonetheless
applies because he was terminated for requesting to use sick time or other
available leave time, or that such time could be made available when he
informed Parker he would not be able to work for three days in March 2021
due to illness. This is so because Parker admits it front-loaded paid sick
and vacation time to its employees despite the policies set forth in its
handbook. For Papias, Parker advanced him the maximum 40 hours of paid
vacation time his first year of employment, in direct conflict with its
vacation policy. And during Papias’ second year of employment, Parker
paid him for 48 hours of sick time, 8 more than the maximum specified in
the handbook. A jury could reasonably conclude that Papias’ attempt to
use sick time was justified, given Parker’s practice of front-loading vacation
time and sick time.

¶19 Moreover, the superior court erred by concluding that Parker
gave proper notice to Papias of his accrued, used, and available sick time,
because at the very least, genuine factual disputes exist as to whether
Parker’s conflicting information inhibited proper notice. Under A.R.S.
§ 23-375(C), the amount of sick time available, taken to date in the year, and
sick pay received, must be “recorded in, or on an attachment to, the
employee’s regular paycheck.” An “‘employee’s regular paycheck’ means

2 The fact that these hours were used and paid in excess of the 40-hour
minimum is immaterial. See Martin v. Arise Inc., CV-21-08244-PCT-DJH,
2023 WL 4237332, at *10 (D. Ariz. June 28, 2023). When an employer
provides more sick time hours than statutorily required by the Act, it is still
obligated to comply with the rights outlined in the Act on the use of sick
time. See A.R.S. § 23-378(A), (B).

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a regular payroll record that is readily available to employees and contains
information required under A.R.S. § 23-374(C), including physical or
electronic paychecks or paystubs.” A.A.C. § R20-5-1202.

¶20 Papias disputes that he had access to Paychex, “which is a
necessary prerequisite to providing notice to employees.” He claims he was
unable to access Paychex during his first year of employment and he was
therefore limited to the information shown on his paystubs. It was not until
February 2021 that Papias accessed Paychex because his supervisor
instructed him that Parker wanted employees to begin using the system to
schedule time off.

¶21 Next, Papias disputes that the information reflected in the
Paychex screenshot was the same information available to him while he
was an employee. Rather, the information shown was from a view of “the
payroll administrator’s available information.” And regardless of his
access to Paychex, Papias argues the screenshot (which Parker claims shows
the amount of sick time available and taken) reflects “inaccurate data.”
Papias also argues his paystubs reported conflicting information and
prevented him from having proper notice about his sick time. He notes that
the paystubs reported the amount for sick time used “year-to-date,” leading
him to believe that accrual restarted every calendar year. Thus, he asserts,
the paystubs did not serve as an accurate record for him to determine how
much sick time he had remaining.

¶22 Reviewing the record in the light most favorable to Papias, a
genuine factual dispute exists as to whether he had reasonable access to
Paychex, or whether Paychex contains the information required by law. We
agree the online portal Paychex uses to post the data constitutes a “regular
payroll record,” but Parker’s undated screenshot at best suggests conflicts
as to what specific data was accessible to Papias while he was employed.
See Finton v. Cleveland Indians Baseball Co. LLC, 2021,
CV-19-02319-PHX-MTL, WL 661975, at *11–12 (D. Ariz. Feb. 19, 2021)
(denying summary judgment because although employer’s online payroll
system was “simple and easy to use,” there was no undisputed evidence it
contained the information required by the Act). For example, the
screenshot shows Papias had accrued only 40 hours of sick time and used
56 hours of sick time, with a zero balance, and reflects projected balances
through February 11, 2022. Regardless of whether the report is from Papias’
first or second year of employment, it does not align with the amount of
sick time Papias reportedly took during either year—40 and 48 respectively.
Based on the evidence provided, Paychex did not accurately inform Papias
of his used sick time.

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¶23 For similar reasons, disputed evidence exists on whether
Papias’ paystubs provided him with the notice required under § 23-374(C).
Arguably, the hours that Parker classified as sick time pay during a
particular pay period were properly recorded in his paystubs. But the
amount of sick time available and taken to date during the current
anniversary year of his employment is not unambiguously recorded in his
paystubs. For example, it is not immediately apparent what “YTD
HOURS” represents, because each paystub reports different hours, and
those reported hours do not seem to correspond with the hours Papias
allegedly took during the related employment year. The paystub covering
the pay period from December 27, 2020, to January 2, 2021, lists 17.50 “Sick”
hours for that pay period, but then states the same amount for YTD hours.
However, by January 2, 2021, Papias had already used 40.50 “Sick” hours
(according to a paystub for the pay period ending December 12, 2020).
Based on the record before us, a genuine dispute of material fact exists on
whether the paystubs accurately informed Papias of his sick time available
and taken, as Arizona law requires.3

¶24 Finally, we reject Parker’s suggestion that Papias did not
“request” to use sick time in March, but instead merely informed his
supervisors via text message he would not be coming to work because he
was ill. The Act states that an employee’s request to use sick time “may be
made orally, in writing, by electronic means or by any other means
acceptable to the employer.” A.R.S. § 23-373(B). Although the handbook
does not specify the “acceptable means” by which an employee must
request to use paid sick time, Parker asserts that “a notification that you are
ill and cannot attend work” is not an acceptable request. But Parker agrees
that while Papias had been employed, it was acceptable for him to notify
his supervisor via text message about a request for time off from work.
Thus, Parker apparently believed that Papias’ earlier texts, which merely
asked for time off, were sufficient to invoke usage of sick time. It is
therefore unreasonable to conclude that when Papias told Parker he was
sick the message could be rejected as too informal. See A.R.S. § 23-374(A)
(“It shall be unlawful for an employer or any other person to interfere with,
restrain, or deny the exercise of, or the attempt to exercise, any right protected

3 Arizona state courts have not addressed whether the Act’s notice
requirements create a private right of action for an employee to recover civil
damages. See Vega v. All My Sons Bus. Dev. LLC, 583 F. Supp. 3d 1244,
1257–1260 (D. Ariz. 2022) (finding that no private right of action exists). But
we need not decide that issue because whether Parker fully complied with
its statutory notice obligations is relevant in evaluating Papias’ retaliation
claim under the Act.

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under this article.”) (emphasis added). Material facts in the record reveal a
genuine dispute on whether Papias’ text messages to his supervisor in
March 2021 were requests to use sick time, or at a bare minimum, an
attempt to do so.

¶25 Given the factual disputes outlined above, the court erred in
granting summary judgment on Papias’ retaliation claim. Thus, we need
not attempt to resolve the parties’ disagreement on whether the Act allows
employers to classify non-sickness-related absences as sick time.

B. Rebuttal of Presumption

¶26 Because the superior court found no evidence of retaliation, it
did not consider whether Parker rebutted the presumption of retaliation
with “clear and convincing evidence” that its termination of Papias was for
“other permissible reasons.” A.R.S. § 23-364(B). Papias argues Parker failed
to produce sufficient evidence to overcome the presumption that his
termination was retaliatory. According to Parker, it met the rebuttal
presumption burden and Papias failed to counter its evidence once the
burden shifted back to him.

¶27 Clear and convincing evidence “reflects a heightened
standard of proof,” as it must indicate “that the thing to be proved is highly
probable or reasonably certain.” Kent K. v. Bobby M., 210 Ariz. 279, 284–85,
¶ 25 (2005) (citation omitted). Parker explains that it terminated Papias, in
part, because it “no longer needed [him.]” In support of its motion for
summary judgment, however, Parker asserted it terminated Papias because
of “productivity issues,” about which it began to have concerns in October
2020. But Parker’s only support for this assertion was a declaration by an
employee from its accounting department. Parker otherwise provided no
documentation supporting its claims that in October 2020 it “became
concerned about Papias’ production at work,” that Papias’ supervisor
“began addressing these concerns with Papias,” or that Parker “began
tracking Papias’ production more closely and [his supervisor] discussed
these issues regularly with him.” See Hoeveler v. Ariz. Assocs. in Dermatology
& Cosmetic Surgery LLC, 1 CA-CV 20-0120, 2021 WL 56402, at *3, ¶ 15 (Ariz.
App. Jan. 7, 2021) (mem. decision) (explaining that employer met its burden
of showing retaliation was for permissible reasons when it “offered emails,
contemporaneous documents and deposition testimony” as support); see
also Zavaleta v. OTB Acquisition LLC, CV 19-04729-PHX-JAT, 2021 WL
824419, at *6 (D. Ariz. Mar. 4, 2021).

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¶28 In his response opposing summary judgment, Papias avowed
his supervisor “never discussed any actual production issues with [him] in
October of 2020 or thereafter.” Further, he was “never informed by [Parker]
that they were more closely monitoring” his work than they were any other
employee’s work. And in support of his claims, Papias provided a copy of
his August 2020 performance review, where his supervisor indicated that
Papias’ work performance was “exceptional” and recommended a rate
increase, which Parker instituted by October.

¶29 Parker also asserts that Papias “conceded” that his absences
in March 2021 “put a lot of stress” on his supervisor. The record shows
otherwise. Although Papias acknowledged that the “stress” comment was
made at the March 8 termination meeting, he points out that at the start of
the meeting he gave the HR director the requested medical note from his
doctor, but the director said it was “meaningless” and the supervisor had
“already made a decision.” And his supervisor told Papias that Parker did
not believe he was actually sick, but instead, thought Papias “just didn’t
want to come to work.” According to Papias, no concerns about production
issues were raised at the meeting. And the record is silent on what “stress”
he had caused the supervisor to endure. The record reveals genuine factual
disputes as to whether Papias was fired for permissible reasons rather than
in retaliation. See Kuramoto v. Heart & Vascular Ctr. of Ariz. PC,
CV-20-00113-PHX-SMB, 2021 WL 2012668, at *5–6 (D. Ariz. May 20, 2021).
Thus, Parker has not shown, as a matter of law, that it rebutted the
presumption by clear and convincing evidence.

CONCLUSION

¶30 We vacate the court’s order granting summary judgment and
remand for further proceedings.

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

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