Lorence v. Mayo Clinic

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JULIA LORENCE, Plaintiff/Appellant,

v.

MAYO CLINIC, et al., Defendants/Appellees.

No. 1 CA-CV 23-0207
FILED 2-29-2024

Appeal from the Superior Court in Maricopa County
No. CV2022-004085
The Honorable Katherine Cooper, Judge

AFFIRMED

COUNSEL

The Marhoffer Law Firm, Scottsdale
By David Marhoffer
Counsel for Plaintiff/Appellant

Snell & Wilmer L.L.P, Phoenix
By John F. Lomax, Colin Ahler, Caitlin E. White
Counsel for Defendants/Appellees Mayo Clinic, et al.

Arizona State University – General Counsel, Tempe
By Kylie Crawford TenBrook, Kwan Piensook
Counsel for Defendants/Appellees

LORENCE v. MAYO CLINIC, et al.
Decision of the Court

MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which Vice
Chief Judge Randall M. Howe joined. Judge Daniel J. Kiley concurred in
part and dissented in part.

P E R K I N S, Judge:

¶1 Julia Lorence appeals from the dismissal of her lawsuit
against the Arizona Board of Regents (the “Board”), Arizona State
University (“ASU”), and the Mayo Clinic and certain of its employees
(collectively, the “Mayo Defendants”). Lorence raised claims of
discrimination and other employment related violations. The superior
court determined that she failed to state any claims upon which it could
grant relief. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 On appeal from a motion to dismiss, we “must assume the
truth of all well-pleaded factual allegations and indulge all reasonable
inferences from those facts, but mere conclusory statements are
insufficient.” Coleman v. City of Mesa, 230 Ariz. 352, 356, ¶ 9 (2012).

¶3 Lorence is a native German and former ASU student. She
suffered a stroke in 2013 resulting in speech and language impediments.
She enrolled for undergraduate studies at ASU in 2016 and graduated in
May 2019. From January 2017 until May 2019, Lorence was an intern at the
Mathematical Neuro Oncology Laboratory (the “Laboratory”) at the Mayo
Clinic Arizona (“Mayo Clinic”).

¶4 Dr. Kristin Swanson is a professor at ASU and member of the
Laboratory. Before Lorence presented her honors thesis at a conference
during her internship, she was at Swanson’s house where an intoxicated
Swanson demanded that she dance to music. At the conference, Swanson
and Yvette Lassiter Morris, another laboratory employee, pressured
Lorence to join them in drinking alcohol and going to a night club to see
drag and strip shows.

¶5 In June 2019, Lorence began full-time employment at the
Laboratory. Several of the employees were Swanson’s friends or their
family members, including Lorence’s supervisor Lassiter Morris, Andrea

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Hawkins Daarud, Lisa Paulson, and Paulson’s son, who was an intern.
When Lorence raised concerns that minority summer interns were required
to perform more work than Swanson’s friends and their family members,
Lassiter Morris yelled at Lorence and Paulson became upset with her.

¶6 ASU investigated the mistreatment of undergraduates at the
Laboratory. Lorence was interviewed about the working conditions there
and provided a confidential statement to ASU officials conducting the
investigation. Defendants later learned of the substance of Lorence’s
statement, and made derogatory comments to her. Gustavo de Leon,
another Laboratory employee, intentionally mispronounced her first name,
calling her “Hoolia Goolia.” De Leon also prevented her from making
presentations and denied her opportunities to receive commendations,
while permitting male team members to make and receive the same. When
Lorence complained about de Leon’s conduct to Swanson and Lassiter
Morris, they ignored her complaints. In 2020, Lorence never received her
annual performance review while both de Leon and another male colleague
received theirs.

¶7 In June 2020, Lorence filed a formal complaint with the
human resources department of the Mayo Clinic, alleging that Swanson,
Lassiter Morris, de Leon, and other employees harassed her based on her
national origin, sex, and disabilities. In August 2020, the human resources
department placed Lorence on administrative leave pending investigation
of her complaints. Lorence raised concerns that the department’s
investigator had a “pre-existing relationship” with Swanson, and that the
investigator’s daughter was a visiting student of the lab in summer 2018.

¶8 In May 2020, before filing her complaint, Lorence wrote and
submitted a grant application to the National Institutes of Health (the
“NIH”). In September 2020 the NIH awarded the grant to “Mayo Clinic
Arizona,” but Lorence could not participate in the work related to the grant
because she was on administrative leave.

¶9 In October 2020, the human resources department informed
Lorence the internal investigation revealed no discrimination. Lorence
returned to work at the Laboratory the following month and began grant
work. Swanson informed Lorence that continued reference to the
allegations the investigation did not substantiate would be grounds for
termination. And during a meeting, Swanson made a “threatening joke”
about being able to fire Lorence at any time.

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¶10 Lorence did not receive a performance review from
November 2020 to January 2021 despite multiple requests for one. And
Lorence could no longer meet with physicians one-on-one to discuss her
research. At the same time, Lorence had to attend multiple meetings per
week whereas her male colleagues did not have to attend frequent
meetings.

¶11 In December 2020, Lorence applied to other departments at
the Mayo Clinic but the human resources department rejected her
applications. In October 2021, Swanson used figures from Lorence’s thesis,
but failed to cite or credit Lorence. In March 2022, a clinic Lorence had co-
founded as an undergraduate opened without crediting her as a co-founder
or inviting her to its opening ceremony.

¶12 On January 17, 2021, Lorence resigned her position. Three
months later, on April 2, 2021, Lorence filed a charge of employment
discrimination with the Arizona Attorney General’s Office, Civil Rights
Division, alleging discrimination based on sex, national origin, and
whistleblowing. Almost a year thereafter, on March 23, 2022, Lorence filed
a second amended charge of discrimination to include discrimination based
on disabilities.

¶13 A week later, on March 31, 2022, Lorence filed her complaint
in this matter. She asked the court for injunctive relief requiring the Board
and ASU to develop anti-retaliation policies for witnesses participating in
investigations. Lorence also sought to enjoin Defendants from retaliating
against her, including interfering or blacklisting her from employment and
medical school admission. Lorence asked the court to enjoin Swanson from
withholding a letter of recommendation Swanson had previously drafted
for Lorence. Lorence also sought declaratory judgment specifying the
parties’ rights and obligations related to the NIH grant, use of Lorence’s
research by Swanson, and Swanson’s letter of recommendation.

¶14 Lorence raised additional claims against the Mayo
Defendants alleging: (1) sex, national origin, and disability discrimination
in violation of the Arizona Civil Rights Act; (2) constructive discharge in
violation of the Arizona Employment Protection Act; (3) blacklisting in
violation of A.R.S. § 23-1361; and (4) intentional infliction of emotional
distress. Lorence did not bring a claim alleging that Defendants retaliated
against her because of protected conduct.

¶15 The superior court dismissed each count for failure to state a
claim, dismissed ASU as a non-jural entity, and dismissed claims against

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Paulson and Hawkins Daarud for lack of personal jurisdiction. Lorence
timely appealed, and we have jurisdiction. A.R.S. § 12-2101(A)(1).

DISCUSSION

¶16 “We review de novo an order granting a motion to dismiss
for failure to state a claim.” Abbott v. Banner Health Network, 239 Ariz. 409,
412, ¶ 7 (2016). “Dismissal is appropriate under [Arizona Rule of Civil
Procedure (“Rule”)] 12(b)(6) only if as a matter of law plaintiffs would not
be entitled to relief under any interpretation of the facts susceptible of
proof.” Coleman, 230 Ariz. at 356, ¶ 8 (cleaned up). “[W]e may affirm the
court’s dismissal order on any basis supported by the record.” R.O.I. Props.
LLC v. Ford, 246 Ariz. 231, 235, ¶ 13 (App. 2019).

I. Declaratory Relief

¶17 Lorence sought a declaration of the “rights and obligations”
of the parties with respect to Swanson’s letter of recommendation and to
credit for Swanson’s use of Lorence’s research.

¶18 The Declaratory Judgments Act is “an instrument of
preventive justice that allows a court to determine a person’s rights, status
or other legal relations.” Canyon del Rio Invs., L.L.C. v. City of Flagstaff, 227
Ariz. 336, 340, ¶ 18 (App. 2011) (cleaned up). To obtain declaratory relief,
the plaintiff must assert a “legal, protectible interest” in the rights being
determined. Riley v. Cochise Cnty., 10 Ariz. App. 55, 59 (1969); Original
Apartment Movers, Inc. v. Waddell, 179 Ariz. 419, 420 (App. 1993); see also
A.R.S. § 12-1831. To have a legal interest in the letter and the credit, Lorence
“must present a state of facts showing [she] has a present legal right against
the defendant with respect to which [she] may be entitled as a general rule
to some consequential relief.” Riley, 10 Ariz. App. at 59. But Lorence’s
conclusory allegations that she has a legal right to Swanson’s letter of
recommendation or to credit for Swanson’s use of her research are legally
insufficient. See Coleman, 230 Ariz. at 356, ¶ 9 (“mere conclusory statements
are insufficient”).

¶19 Lorence also requested declaratory relief against the Mayo
Defendants with respect to the NIH’s grant, asserting that being placed on
administrative leave prevented her from completing work related to the
grant. Lorence appears to argue that she has an interest in the grant because
she applied for it. But Lorence did not allege that she is the grantor or
grantee, nor did she allege any other basis for the court to conclude she has
a legal right to or interest in the grant funds or to performing grant-related
work. Indeed, the NIH explicitly awarded the grant to “MAYO CLINIC

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ARIZONA.” The court properly dismissed Lorence’s claim for declaratory
relief.

II. The Arizona Civil Rights Act

¶20 A plaintiff asserting a violation of the Arizona Civil Rights
Act must first file a charge with the Arizona Civil Rights Division within
180 days after the alleged unlawful employment practice occurred. A.R.S. §
41-1481(A). An employee who fails to timely file a charge “loses her right
to sue.” Peterson v. City of Surprise, 244 Ariz. 247, 251, ¶ 13 (App. 2018).

¶21 Lorence filed her first charge alleging sex and national origin
discrimination on April 2, 2021, and her second charge alleging disability
discrimination on March 23, 2022. The first charge described conduct from
June 2020 until January 2021 while she was employed at the Laboratory.
The second charge described conduct from June 2020 until April 2021.
Lorence did not allege a claim for retaliatory termination of employment,
available under Arizona’s Employment Protection Act, in her complaint.
See A.R.S. § 23-1501(A)(3)(b)(i), (c)(ii). And that statute “does not permit her
to refashion her discrimination claim into a retaliation claim.” Peterson, 244
Ariz. at 252, ¶ 17 (App. 2018).

A. Lorence’s disability charge

¶22 The superior court properly dismissed the disability
discrimination claim as untimely because none of the alleged conduct
occurred within 180 days of March 23, 2022, when Lorence filed her
disability charge. Lorence contends that her disability claim related back to
the filing date of her first charge on April 2, 2021, because the Arizona
Administrative Code allowed her to amend the first charge. That Code
permits a charge to be amended: “1. To cure technical defects or omissions,
including but not limited to, failure to swear to the charge, or 2. To clarify
and amplify allegations.” A.A.C. R10-3-203(B) (amendment provision). By
its plain language, the amendment provision contemplates errors in the
form of the charge, not substantive omissions such as an entirely new
theory of liability. Likewise, “clarify” and “amplify” apply to minor
changes or additions to the alleged facts substantiating a charge and not the
addition of a new theory of liability. Compare A.A.C. R10-3-203(B), with 29
C.F.R. § 1601.12(b); see Fairchild v. Forma Sci., Inc., 147 F.3d 567, 574–75 (7th
Cir. 1998) (holding “amplify and clarify” amendment language in federal
discrimination regulation does not encompass new theory of liability). The
amendment provision does not save Lorence’s untimely disability
discrimination claim, which the superior court correctly dismissed.

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B. Lorence’s sex and national origin discrimination charge

¶23 The superior court also properly dismissed Lorence’s sex and
national origin discrimination claim for failure to allege discriminatory
employment acts within the 180-day window. Because Lorence filed her
first charge on April 2, 2021, she could allege discrimination only for the
period beginning on October 4, 2020. See Cruz v. City of Tucson, 243 Ariz. 69,
74, ¶ 20 (App. 2017) (plaintiff could sue only for acts occurring within the
180-day filing window in the notice of claim statute).

¶24 Lorence argues that all the allegations identified in her
complaint as occurring after October 4, 2020, showed sex and national
origin discrimination. In her opening brief, Lorence specifically highlights
four alleged acts of sex and national origin discrimination: first,
Defendants’ inadequate investigation of her discrimination claims,
“utilizing an investigator with a clear conflict of interest”; second,
Swanson’s threat to fire her if she continued to raise her discrimination
claims that the internal investigation had discredited; third, the Mayo
Defendants’ failure to provide her with a performance review, which she
notes in her appellate briefing is a “prerequisite to increases in
compensation”; and fourth, requirements for her to attend multiple
meetings per week when male co-workers did not have to attend “frequent
meetings.”

¶25 But none of these actions violated the Arizona Civil Rights
Act. The Act prohibits employment discrimination (1) “with respect to the
individual’s compensation, terms, conditions or privileges of employment”
and (2) “limit[ing], segregate[ing] or classify[ing] employees . . . in any way
that would deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect the individual’s status as an
employee.” A.R.S. § 41-1463(B)(1)–(2). Because our Civil Rights Act is
modeled after federal employment discrimination laws, “Title VII case law
is persuasive in interpreting the Arizona statute.” Timmons v. City of Tucson,
171 Ariz. 350, 354 (App. 1991).

¶26 Under federal law, to state a claim for discriminatory
disparate treatment under Title VII, the plaintiff must plausibly allege that:
“(1) [she] is a member of a protected class; (2) [she] was qualified for [her]
position; (3) [she] experienced an adverse employment action; and (4)
similarly situated individuals outside [her] protected class were treated
more favorably, or other circumstances surrounding the adverse
employment action give rise to an inference of discrimination.” Albro v.

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Spencer, 854 Fed. App’x 169, 169–70 (9th Cir. 2021) (quoting Peterson v.
Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004)).

¶27 Lorence sufficiently pled that she is a member of a protected
class, and Defendants do not argue that she was unqualified for her
position. But Lorence insufficiently pled either that the alleged
discriminatory acts rise to the level of an adverse employment action or
circumstances that give rise to an inference of discrimination. Under both
the Act and Title VII, an adverse employment action constitutes a
significant change in an “employee’s status” when it results in “hiring,
firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in benefits.”
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998).

¶28 Taking Lorence’s alleged specific instances of discriminatory
treatment each in turn demonstrates she has failed to sufficiently allege a
violation of the Act. First, dissatisfaction with the Mayo Clinic’s
investigation does not rise to an adverse employment action because it is
not a term, condition, or privilege of employment to which she is entitled.
See Noakes v. Dep’t of Homeland Sec., No. CV 22-213, 2022 WL 11435959, at
*11 (E.D. La. Oct. 18, 2022) (“declining to pursue disciplinary action against
[plaintiff’s] coworkers is not an adverse employment action”); Zwick v.
Univ. of S. Fla. Bd. of Trs., 505 F. Supp. 3d 1317, 1335 n.16 (M.D. Fla. 2020)
(“dissatisfaction with an investigation [does not] constitute an adverse
employment decision”).

¶29 Second, “numerous courts have concluded that verbal
reprimands and threats of termination do not constitute adverse
employment actions” in the context of Title VII discrimination claims.
Medearis v. CVS Pharmacy, 92 F. Supp. 3d 1294, 1312 (N.D. Ga. 2015), aff’d
sub nom. Medearis v. CVS Pharmacy, Inc., 646 Fed. App’x 891 (11th Cir. 2016)
(cleaned up). Lorence did not allege that the threat here resulted in any
employment action being taken against her. The threat alone is insufficient.

¶30 Third, Lorence’s assertion that she did not receive a
performance review, by itself, does not state a claim for relief. See Watkins
v. Harvey, No. JFM-06-2728, 2007 WL 1861024, at *1 (D. Md. June 19, 2007)
(“[T]he failure to provide a performance evaluation does not itself
constitute an adverse employment action.”). Nowhere in her complaint did
Lorence allege that a performance review is a prerequisite to increases in
compensation, or that her employment terms entitled her to such reviews
upon request or within specified time frames.

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¶31 And fourth, being required to attend more meetings than
male co-workers, even if true, does not rise to the level of actionable
conduct. See Prince-Garrison v. Maryland Dep’t of Health & Mental Hygiene,
317 Fed. App’x 351, 353 (4th Cir. 2009) (“meetings with supervisors . . . do
not constitute adverse employment actions”).

¶32 Even if any these actions rose to the level of an adverse
employment action, however, Lorence failed to plead a nexus between the
actions and her protected status giving rise to an inference of discriminatory
treatment. See Raytheon Co. v. Hernandez, 540 U.S. 44, 52 (2003) (“Liability in
a disparate-treatment case depends on whether the protected trait actually
motivated the employer’s decision.”) (cleaned up); Noakes, 2022 WL
11435959, at *12 (plaintiff must demonstrate a “nexus between the conduct
and any racially discriminatory motive”). Except for Lorence’s claim that
she was required to attend meetings that her male colleagues were excused
from, none of the conduct she complained of involved facially disparate
treatment between her and “similarly situated individuals outside [her]
protected class.” Peterson, 358 F.3d at 603. Although Lorence claimed
Defendants’ treatment of her was generally discriminatory, a facially
neutral act by itself does not demonstrate animus. See Noakes, 2022 WL
11435959, at *12.

¶33 The partial dissent contends Lorence sufficiently pled that
Defendants’ failure to provide her with Swanson’s letter of
recommendation constituted a violation of the Arizona Civil Rights Act.
Assuming, without deciding, that this allegation was timely and that
withholding a letter of recommendation may be an actionable adverse
employment action, Lorence did not allege circumstances leading to a
reasonable inference of discriminatory motive for withholding the letter. To
the contrary, she explicitly characterized Defendants’ motive as retaliation
when she asked the court to enjoin Swanson “from retaliating against her
by withholding her letter of recommendation.” And Lorence did not argue
on appeal that withholding the letter constituted a basis for her
discrimination claim. Rather, she expressly linked the letter only to her
injunctive and declaratory relief claims.

¶34 The failure to allege a connection between a discriminatory
motive and the adverse action at issue is, by definition, the failure to state a
claim for which relief may be granted. The dissent disregards plaintiff’s
contrary characterization of motive and finds a sufficiently pled claim by
piecing together (1) general allegations that discrimination occurred, (2) an
allegation that Defendants withheld the letter, and (3) boilerplate
“incorporates by reference” language. Such herculean efforts to save

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Lorence’s complaint go beyond this court’s proper role. See Campbell v. City
of San Antonio, 43 F.3d 973, 975 (5th Cir. 1995) (“Dismissal is proper if the
complaint lacks an allegation regarding a required element necessary to
obtain relief. The court is not required to conjure up unpled allegations or
construe elaborately arcane scripts to save a complaint.”) (cleaned up).

¶35 The superior court did not err by dismissing Lorence’s
Arizona Civil Rights Act claim.

III. Arizona Employment Protection Act

¶36 Lorence claimed that Defendants’ conduct resulting in her
resignation amounted to constructive discharge under A.R.S. § 23-1502. The
relevant statute of limitations period for such statutory claims is one year.
A.R.S. § 12-541(5); Worldwide Jet Charter, Inc. v. Christian, 255 Ariz. 67, 71, ¶
14 (App. 2023) (“[C]onstructive discharge claims are governed exclusively
by the [Arizona Employment Protection Act].”). Lorence alleged she was
constructively discharged on January 17, 2021, when she tendered her
notice of intent to resign. But Lorence did not file her complaint until March
31, 2022, two months after the expiration of the one-year limitations period.
The superior court did not err in dismissing her constructive discharge
claim for being untimely.

IV. Blacklisting

¶37 The Mayo Defendants argue that Lorence has waived her
blacklisting claim because in her opening brief she did not challenge the
superior court’s ruling that she failed to allege essential elements of
blacklisting under A.R.S. § 23-1361(A). Lorence contends her detailed
discussion of Arizona’s notice pleading standard in her opening brief was
sufficient to defeat waiver. But the superior court dismissed her blacklisting
claim for failure to state a claim because she did not allege all the elements
in A.R.S. § 23-1361 and not because Lorence failed to comply with notice
pleading standards. And Lorence cannot, as she attempts to do, for the first
time in her reply brief challenge the court’s conclusion that she did not state
a claim for blacklisting. Dawson v. Withycombe, 216 Ariz. 84, 111, ¶ 91 (App.
2007). She has waived her opportunity to challenge the superior court’s
dismissal of her blacklisting claim under Rule 12(b)(6).

V. Intentional Infliction of Emotional Distress

¶38 To state a claim for intentional infliction of emotional distress,
a plaintiff must allege that the defendant intentionally or recklessly caused
“severe emotional distress by extreme and outrageous conduct.” Watkins v.

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Arpaio, 239 Ariz. 168, 170–71, ¶ 8 (App. 2016). Extreme and outrageous
conduct must be “so outrageous in character, and so extreme in degree, as
to go beyond all possible bounds of decency, and to be regarded as
atrocious and utterly intolerable in a civilized community.” Johnson v.
McDonald, 197 Ariz. 155, 160, ¶ 23 (App. 1999) (cleaned up). “It does not
include mere insults, indignities, threats, annoyances, petty oppressions, or
other trivialities.” Christakis v. Deitsch, 250 Ariz. 246, 250, ¶ 10 (App. 2020)
(cleaned up). “It is for the court to determine, in the first instance, whether
the defendant’s conduct may reasonably be regarded as so extreme and
outrageous as to permit recovery.” Lucchesi v. Frederic N. Stimmel, M.D., Ltd.,
149 Ariz. 76, 79 (1986) (citing Restatement (Second) Torts § 46). “[A] relevant
factor in determining outrageousness is defendant’s knowledge that
plaintiff is particularly susceptible to emotional distress.” Mintz v. Bell Atl.
Sys. Leasing Int’l, Inc., 183 Ariz. 550, 554 (App. 1995).

¶39 Lorence contends the conduct she identified in her complaint
is sufficiently outrageous given the “wide variety of cases in which
‘extreme’ and ‘outrageous’ conduct [has been] found.” Lorence alleged in
her complaint that, because of her background and disabilities, she had a
peculiar susceptibility to such emotional distress. The conduct Lorence
identified involves rude and insulting incidents when the Mayo Defendants
intentionally mispronounced her name, yelled at her, and pressured her to
dance, drink, and attend a drag show at a night club. But “insults,
indignities, [and] threats,” while reprehensible, are not “extreme and
outrageous” conduct. See Christakis, 250 Ariz. at 250, ¶ 10. And although
Lorence argues that she was particularly susceptible to emotional distress
due to her stroke, the only long-term disabilities she alleged were speech
and language impediments. Her conclusory statements that such
restrictions rendered her particularly sensitive to rude and insulting
conduct are legally insufficient. See Coleman, 230 Ariz. at 356, ¶ 9. The
superior court correctly dismissed Lorence’s intentional infliction of
emotional distress claim.

VI. The Continuing Torts Doctrine and Discovery Rule

¶40 Lorence argues that the “continuing torts” doctrine or the
“discovery rule” save her otherwise untimely claims. Some courts outside
of Arizona have held that “a tort claim based on a series of closely related
wrongful acts may be treated as alleging a continuing wrong that accrues
for limitations purposes not at the inception of the wrongdoing but upon
its termination.” Watkins, 239 Ariz. at 171, ¶ 9. Arizona has not explicitly
adopted this doctrine, and, in any event, it generally applies to hostile work
environment claims because “[t]heir very nature involves repeated

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conduct.” See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002).
Lorence did not bring a hostile work environment claim, which is “different
in kind from discrete acts.” Id. Instead, Lorence brought causes of action
tied to specific events. Indeed, the facts she alleged, e.g., being required to
dance or reprimanded for participating in an investigation, are discrete
incidents that occurred over the course of a two-year period. Assuming the
doctrine applies in Arizona, it does not apply here.

¶41 “Under the ‘discovery rule,’ a plaintiff’s cause of action does
not accrue until the plaintiff knows or, in the exercise of reasonable
diligence, should know the facts underlying the cause.” Gust, Rosenfeld &
Henderson v. Prudential Ins. Co. of America, 182 Ariz. 586, 588 (1995). “[T]he
important inquiry in applying the discovery rule is whether the plaintiff’s
injury or the conduct causing the injury is difficult for plaintiff to detect.”
Id. at 590. But “[t]he burden of establishing that the discovery rule applies
to delay the statute of limitations rest[s] on plaintiff.” Logerquist v. Danforth, 188 Ariz. 16, 19 (App. 1996). Lorence argues that because of her stroke and
speech and language impediments, “her injuries and their causative agents
may not have been obvious to her.” But Lorence filed a complaint with the
Human Resources Department on June 10, 2020, demonstrating she was
aware of Defendants’ allegedly wrongful acts at that time. The discovery
rule does not apply.

VII. Injunctive Relief

¶42 Lorence sought an injunction to: (1) require ASU and the
Board “to develop new policies and procedures and/or enforce existing
policies and procedures that protect witnesses such as [Plaintiff] from
retaliation for participating in investigations”; (2) enjoin all Defendants
from retaliating against her, including “shunning” her from professional
networking opportunities, and “blacklisting” her from employment and
medical school applications; and (3) enjoin Swanson from withholding a
letter of recommendation.

¶43 To obtain injunctive relief, the plaintiff must demonstrate that
the defendant’s conduct has violated her rights in some way. See Fann v.
State, 251 Ariz. 425, 432, ¶ 16 (2021) (a plaintiff must demonstrate
“irreparable injury” to obtain a preliminary injunction); Baldwin v. Ariz.
Flame Rest., Inc., 82 Ariz. 385, 396 (1957) (an injunction must be tailored “to
meet specific purposes which are established by the facts as violative of
existing law”); Pure Wafer Inc. v. City of Prescott, 275 F. Supp. 3d 1173, 1175
(D. Ariz. 2017) (“[B]efore a court may grant permanent injunctive relief,” a
plaintiff must show, inter alia, that she “suffer[ed] irreparable injury” for

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which “an equitable remedy is warranted.”). To survive a motion to
dismiss, a plaintiff must state a “claim upon which relief can be granted.”
Ariz. R. Civ. P. 12(b)(6). As demonstrated above, Lorence failed to
sufficiently allege that Defendants’ conduct was contrary to law or her legal
rights. The superior court properly dismissed her claim for injunctive relief.

VIII. Leave to Amend the Complaint

¶44 Lorence argues the superior court erred by not allowing her
to amend her complaint before dismissal. After service of a Rule 12(b)
motion to dismiss, the plaintiff may amend her complaint only with leave
of court. Ariz. R. Civ. P. 15(a)(2). In general, “the non-moving party should
be given an opportunity to amend the complaint if such an amendment
cures its defects,” before the superior court grants a Rule 12(b)(6) motion to
dismiss. Wigglesworth v. Mauldin, 195 Ariz. 432, 439, ¶ 26 (App. 1999). But
the superior court need not provide an opportunity to amend when the
plaintiff fails to request one. See id. at 439, ¶ 27 (rejecting plaintiff-
appellant’s argument that the superior court erred by dismissing his
complaint without first providing him leave to amend in part because he
never sought leave to amend the complaint); Carranza v. Madrigal, 237 Ariz.
512, 515, ¶ 12 (2015) (same). Lorence never requested leave to amend. The
superior court thus did not err when it did not sua sponte give her an
opportunity to do so.

IX. Other Matters

¶45 Lorence also argues that the court improperly dismissed ASU
as a non-jural entity and Paulson and Hawkins Daarud for lack of personal
jurisdiction. Because we affirm the dismissal of all claims as to all
defendants, we do not reach these arguments.

CONCLUSION

¶46 We affirm the superior court’s dismissal of Lorence’s
complaint.

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LORENCE v. MAYO CLINIC, et al.
Kiley, J., concurring in part and dissenting in part

K I L E Y, Judge, concurring in part and dissenting in part:

¶47 This Court has long held that it “will not affirm” a dismissal
for failure to state a claim “unless satisfied that as a matter of law [the
plaintiff] would not be entitled to relief under any interpretation of the facts
susceptible of proof.” Belen Loan Invs., LLC v. Bradley, 231 Ariz. 448, 453, ¶ 7
(App. 2012) (cleaned up). In my view, Julia Lorence’s complaint, though not
a model of clarity, can fairly be read to allege that she was denied a letter of
recommendation for discriminatory reasons. Because I am not
“satisfied . . . as a matter of law” that this allegation, if proven, would not
entitle Lorence “to relief under any interpretation of the facts susceptible of
proof,” see id., I would reverse the dismissal of Lorence’s claim under the
Arizona Civil Rights Act, A.R.S. §§ 41-1401 to -1493.02 (the “ACRA”), to the
extent her ACRA claim rests on this allegation. In all other respects, I join
in the majority’s decision.

¶48 Lorence’s complaint alleges that her supervisor at the Mayo
Clinic, Kristin Swanson, along with certain other defendants (collectively,
the “Mayo Defendants”), violated the ACRA by “discriminat[ing] against”
her “on the basis of her sex” and “her national origin,” “direct[ly] and
proximate[ly] caus[ing]” her to “sustain[] damages.”1 She supports her
ACRA claim by alleging specific acts of discrimination, including, for
example, that she was not invited to join her male colleagues in presenting
her team’s work product and that Swanson took no corrective action after
Lorence complained that co-workers ridiculed her accent and the
pronunciation of her name.

¶49 Paragraph 195 of Lorence’s complaint, which appears in the
section labeled “Second Cause of Action (Declaratory Judgment),” reads as
follows:

Also, as stated above, an actual controversy has arisen and
now exists between [Lorence] and [Swanson] regarding the
letter of recommendation, which [Lorence] has continuously
requested.

While Paragraph 195 does not expressly state that Swanson refused to give
Lorence a recommendation letter, instead merely alleging the existence of a
“controversy” over the recommendation letter Lorence “requested,”

1 Lorence also alleges discrimination on the basis of her disability, but, as

the majority correctly notes, this allegation is time-barred. See supra ¶ 22.

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LORENCE v. MAYO CLINIC, et al.
Kiley, J., concurring in part and dissenting in part
Swanson’s unwillingness to provide the requested letter can reasonably be
inferred, and we must give Lorence the benefit of all reasonable inferences
from her factual allegations. See Cullen v. Auto-Owners Ins. Co., 218 Ariz. 417,
419, ¶ 7 (2008).

¶50 Although Paragraph 195 does not appear in the complaint’s
“factual allegations” section (where it logically belongs), we must consider
all of the allegations of the complaint as a whole. See Albers v. Edelson Tech.
Partners L.P., 201 Ariz. 47, 51-52, ¶¶ 14-16 (App. 2001) (reversing dismissal
of securities fraud claim set forth in the complaint’s fifth claim for relief and
reasoning that although, “standing alone, the allegations of count five do
not state a valid securities fraud claim,” the missing elements were alleged
elsewhere in the complaint, and “[w]e are required to view the complaint
as a whole to determine whether a claim for fraud has been stated”). I
believe that, viewed as a whole and indulging all reasonable inferences in
Lorence’s favor, her complaint adequately alleges that the Mayo
Defendants violated the ACRA by discriminating against her based on her
sex and national origin, including by refusing to give her a letter of
recommendation.

¶51 I disagree with the majority’s statement that Lorence has not
argued on appeal that withholding the letter constituted a basis for her
discrimination claim. See supra ¶ 33. In her briefing, Lorence asserted in
general terms that the factual allegations of her complaint, viewed as a
whole, support her various causes of action and that her complaint “alleged
enough facts to show that she was entitled to relief on the legal theories that
she alleged.” Although Lorence made no attempt to match each specific
factual allegation of her complaint with each claim the allegation allegedly
supports, she was not required to do so. I find nothing in Lorence’s briefing
that would support a determination that she failed to properly present or
preserve for appeal the argument that the Mayo Defendants violated the
ACRA by refusing to give her a letter of recommendation for
discriminatory reasons.

¶52 The majority holds that, in any event, Lorence would be
entitled to no relief on her ACRA claim arising out of the Mayo Defendants’
failure to provide her with a letter of recommendation because she
purportedly failed to plead that discrimination was the motive for their
failure to provide the letter. Again, I disagree. After setting forth a variety
of factual allegations of the Mayo Defendants’ purportedly wrongful
actions (including the allegations of Paragraph 195), the complaint alleges
that the Mayo Defendants violated the ACRA by “discriminat[ing] against”
Lorence on grounds of sex and national origin “[a]s described above.” The
phrase “[a]s described above” is all-encompassing, and I see no justification

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LORENCE v. MAYO CLINIC, et al.
Kiley, J., concurring in part and dissenting in part
for excluding Lorence’s allegations regarding the recommendation letter
from its scope.

¶53 The majority interprets the reference to retaliation in the
complaint’s claim for injunctive relief as some sort of admission by Lorence
that the Mayo Defendants have withheld the recommendation letter solely
for retaliatory reasons, rather than on account of her sex or national origin.2
I see no basis for interpreting Lorence’s claim for injunctive relief in a
manner that limits the scope of her discrimination claim. Lorence’s evident
concern, as expressed in her claim for injunctive relief, that the Mayo
Defendants may retaliate against her by refusing to provide a
recommendation letter in the future is not inconsistent with her allegation
that the Mayo Defendants discriminated against her by refusing to provide
a recommendation letter in the past. And even if the two claims were
inconsistent, Arizona’s rules of pleading allow plaintiffs to “plead [claims]
alternatively and inconsistently.” MacCollum v. Perkinson, 185 Ariz. 179, 189
(App. 1996). Read as a whole and with the requisite liberality to allow cases
“to be tried on the proofs rather than the pleadings,” see Belen Loan Invs.,
231 Ariz. at 455, ¶ 18 (cleaned up), Lorence’s complaint adequately pleads
that the Mayo Defendants violated the ACRA by discriminating against her
on account of her sex and national origin, including by failing to provide
her with a recommendation letter.

¶54 The superior court dismissed Lorence’s ACRA claim in its
entirety because the court found that Lorence’s complaint alleged no
actionable acts of discrimination that occurred within the statutory 180-day
period before Lorence filed her discrimination charge on April 2, 2021. See
A.R.S. § 41-1481(A). Lorence’s complaint does not indicate, however, when
Lorence made her unsuccessful request for a recommendation letter.
Therefore, to the extent Lorence’s ACRA claim is based on Swanson’s
refusal to provide the recommendation letter, the dismissal of the claim
cannot be affirmed on grounds of untimeliness. See Republic Nat’l Bank of
N.Y. v. Pima County, 200 Ariz. 199, 204, ¶ 20 (App. 2001) (noting that a court
cannot dismiss a claim on limitations grounds at the pleading stage unless
“it appears on the face of the complaint that the claim is barred”).

¶55 Because I am not “satisfied . . . as a matter of law” that Lorence
has not stated a claim arising out of the Mayo Defendants’ failure to provide
her with a recommendation letter, see Belen Loan Invs., 231 Ariz. at 453, ¶ 7

2 Paragraph 189 of the complaint asks the court “to enjoin [Swanson] from

retaliating against her by withholding her letter of recommendation, which
[Lorence] has continuously requested.”

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LORENCE v. MAYO CLINIC, et al.
Kiley, J., concurring in part and dissenting in part
(citation omitted), I would reverse the dismissal of her ACRA claim to the
extent it rests on that basis.

¶56 Whether Lorence could ultimately prevail on an ACRA claim
based on the Mayo Defendants’ failure to provide a recommendation letter
is, of course, a different matter. Courts in other jurisdictions have reached
differing conclusions about whether a discrimination claim arising out of
an employer’s failure to provide a recommendation letter is cognizable as a
matter of law. Compare Xuan Huynh v. U.S. Dep’t of Transp., 794 F.3d 952, 959
(8th Cir. 2015) (holding, in race discrimination case, that employer’s “denial
of a positive recommendation letter . . . did not rise to the level” of an
actionable adverse employment action) with Reed v. Unified Sch. Dist. No.
233, 299 F. Supp. 2d 1215, 1225-26 (D. Kan. 2004) (holding, in sex
discrimination case, that supervisor’s “refusal to provide [employee] with
a recommendation constitutes an adverse employment action”). Whether
Arizona would recognize such a claim is an open question. That question
cannot, however, be answered at this stage of the proceedings. A motion to
dismiss for failure to state a claim is generally not an appropriate vehicle
for determining whether a novel claim is cognizable as a matter of law. See
McGary v. City of Portland, 386 F.3d 1259, 1270 (9th Cir. 2004) (noting that
dismissals at the pleading stage “are especially disfavored . . . where the
complaint sets forth a novel legal theory that can best be assessed after
factual development”) (citation omitted); see also 5B Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 1357 (3d ed. 2023) (“The
district court should be especially reluctant to dismiss on the basis of the
pleadings when the asserted theory of liability is novel . . . since it is
important that new legal theories be explored and assayed in the light of
actual facts rather than a pleader’s suppositions.”). I see no reason to treat
this case as an exception to that general rule.

17

LORENCE v. MAYO CLINIC, et al.
Kiley, J., concurring in part and dissenting in part
¶57 Evidence that has not yet been developed—such as the
substance of Lorence’s communications with Swanson about the letter she
requested—may bear on the viability of Lorence’s claim that the Mayo
Defendants violated the ACRA by denying her the letter for discriminatory
reasons. Determining the viability of her claim would be premature until
the parties have the chance to develop potentially relevant evidence
through disclosure and discovery. Accordingly, I would reverse the
dismissal of this aspect of Lorence’s ACRA claim and remand for further
proceedings. In all other respects, I join in the majority’s decision.

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

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