Derek D. Fraser v. State of Arizona

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

DEREK D. FRASER,
Plaintiff/Appellant,

v.

STATE OF ARIZONA, A GOVERNMENTAL ENTITY; DIRECTOR JEFFREY GLOVER,
AN INDIVIDUAL IN HIS OFFICIAL CAPACITY; DANIEL LUGO, AN INDIVIDUAL
ACTING UNDER THE COLOR OF LAW; BRIAN GREEN, AN INDIVIDUAL ACTING
UNDER THE COLOR OF LAW; VERN HAVENS, AN INDIVIDUAL ACTING UNDER THE
COLOR OF LAW; KENNETH HUNTER, AN INDIVIDUAL ACTING UNDER THE COLOR
OF LAW; JACK JOHNSON, AN INDIVIDUAL ACTING UNDER THE COLOR OF LAW;
AND HESTON SILBERT, AN INDIVIDUAL IN HIS OFFICIAL CAPACITY AND AN
INDIVIDUAL ACTING UNDER THE COLOR OF LAW,
Defendants/Appellees.

No. 2 CA-CV 2025-0116
Filed November 21, 2025

Appeal from the Superior Court in Maricopa County
No. CV2024016314
The Honorable Melissa Julian, Judge

AFFIRMED IN PART; REVERSED IN PART

COUNSEL

Law Offices of Kimberly A. Eckert, Tempe
By Kimberly A. Eckert
Counsel for Plaintiff/Appellant

Kristin K. Mayes, Arizona Attorney General
By Ann Hobart and Angela Schultz, Assistant Attorneys General, Phoenix
Counsel for Defendants/Appellees
 FRASER v. STATE
Opinion of the Court

OPINION

Judge Sklar authored the opinion of the Court, in which Vice Chief Judge
Eppich and Judge O’Neil concurred.

S K L A R, Judge:

This case requires us to address the scope of a party’s
obligation to appeal adverse administrative decisions to the superior court.
The issue arises out of the Department of Public Safety’s termination of
Derek Fraser’s employment as a detective, which was upheld by the Law
Enforcement Merit Systems Council. Fraser did not appeal the LEMSC
order to the superior court, but instead filed a collateral action that alleged
wrongful termination and a claim under 42 U.S.C. § 1983. The court
dismissed those claims because Fraser had not appealed the LEMSC order.

We conclude that the superior court erred in doing so. The
failure to appeal an administrative decision precludes a collateral action
only where the collateral action raises claims that the administrative body
had authority to decide. Here, the LEMSC’s authority was limited to
determining whether Fraser’s termination was supported by “just cause”
as defined by the Peace Officers Bill of Rights. Fraser’s
wrongful-termination and Section 1983 claims concern different issues. We
therefore reverse the dismissal of those claims.

We also conclude, however, that the superior court correctly
dismissed two other claims raised by Fraser, namely those for defamation
and intentional infliction of emotional distress. Fraser’s complaint does not
allege sufficient facts to support those claims. We thus affirm their
dismissal.

BACKGROUND

In reviewing a ruling granting a motion to dismiss, we
assume the truth of the complaint’s well-pled factual allegations. Cullen v.
Auto-Owners Ins. Co., 218 Ariz. 417, ¶ 7 (2008). Fraser was a DPS detective
who was terminated in October 2022 after two incidents involving his K-9.
As authorized by statute, Fraser appealed to the LEMSC. See A.R.S.
§ 41-1830.16(B). In June 2023, the LEMSC affirmed his termination, finding
that it was supported by “just cause” under A.R.S. §§ 41-1830.12(D)(1) and
41-1830.16(C)(1).

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Instead of appealing the LEMSC order, Fraser filed a separate
action in superior court. He alleged that his termination was retaliatory and
that policy and procedure violations had occurred during the disciplinary
process, in violation of his due-process rights and the Peace Officers Bill of
Rights, A.R.S. §§ 38-1101 to 38-1120. He also alleged that he had been
defamed by the state’s false reporting of the matter to the Maricopa County
Attorney’s Office and the Arizona Peace Officer Standards and Training
Board, and that the state’s allegedly extreme and outrageous conduct had
caused him anxiety, sleep issues, and stress.

The state moved to dismiss Fraser’s complaint, and the
superior court granted the motion. This appeal followed.

FAILURE TO SEEK JUDICIAL REVIEW OF LEMSC ORDER

In its ruling on the state’s motion to dismiss, the superior
court dismissed Fraser’s wrongful-termination and Section 1983 claims on
the ground that he did not “seek timely judicial review of the Council’s
order,” barring further litigation of the issues. We typically review the
grant of a motion to dismiss for an abuse of discretion, but we review issues
of statutory interpretation de novo. T.P. Racing, L.L.L.P v. Ariz. Dep’t of
Racing, 223 Ariz. 257, ¶ 8 (App. 2009).

I. Issue preclusion generally requires parties to seek judicial review
of administrative decisions

Generally, when a party fails to appeal a final administrative
decision, the decision is final and preclusive. Guertin v. Pinal County, 178
Ariz. 610, 612 (App. 1994). Arizona’s Administrative Review Act reflects
this requirement, providing: “Unless review is sought of an administrative
decision . . . the parties to the proceeding before the administrative agency
shall be barred from obtaining judicial review of the decision.” A.R.S.
§ 12-902(B). When a party fails to seek judicial review, the opposing party
may assert issue preclusion as an affirmative defense in a collateral
proceeding. See Legacy Found. Action Fund v. Citizens Clean Elections
Comm’n, 254 Ariz. 485, ¶ 24 (2023).

By contrast, when the substance of a claim is outside the
administrative agency’s scope of review, a collateral action is permitted.
Guertin, 178 Ariz. at 612; see Fleming v. Pima County, 141 Ariz. 149, 151 (1984)
(plaintiff permitted to file bad faith discharge claim that raised question
“outside the province” of county merit commission’s review). This rule
follows from the fact that administrative agencies have “no common law or

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Opinion of the Court

inherent powers.” Kendall v. Malcolm, 98 Ariz. 329, 334 (1965).
Consequently, an agency “can only apply those doctrines . . . it is
authorized to resolve.” McMichael-Gombar v. Phx. Civ. Serv. Bd., 256 Ariz.
343, ¶ 22 (2023).

The limitation on collateral actions is premised on collateral
estoppel, also known as issue preclusion. See Howell v. Hodap, 221 Ariz. 543,
n.7 (App. 2009) (issue preclusion synonymous with collateral estoppel). To
establish issue preclusion, a party must satisfy four elements: (1) the issue
was the same in both proceedings; (2) the issue was “actually litigated and
determined in a valid and final judgment”; (3) the opposing party had a
“full and fair opportunity to litigate the issue”; and (4) the issue was
“essential to the judgment.” Legacy Found. Action Fund, 254 Ariz. 485, ¶ 24.
The “full and fair opportunity to litigate the issue” element cannot be
satisfied if the administrative agency lacks authority to consider an issue.
See Falcone Bros. & Assocs., Inc. v. City of Tucson, 240 Ariz. 482, ¶ 34 (App.
2016).

II. Scope of the LEMSC’s authority

Here, the administrative agency at issue is the LEMSC. Thus,
the LEMSC’s scope of authority determines whether Fraser may bring his
wrongful-termination and Section 1983 claims in this collateral action. That
authority derives from Section 41-1830.16(C), which empowers the LEMSC
to “determine whether the employing agency has proven by a
preponderance of the evidence that the employing agency had just cause to
discipline the employee.”

Under the version of Section 41-1830.16(C) applicable to
Fraser’s case, if the LEMSC finds that there is “just cause” for discipline, its
only authority is to uphold the disciplinary action of the employing agency.
Baeuerlen v. Ariz. State Parks & Trails Dep’t, 253 Ariz. 1, ¶ 13 (App. 2022). The
statute has since been amended to allow the LEMSC to recommend
modifying disciplinary action if “other facts or circumstances offered”
demonstrate that modification is appropriate. See 2024 Ariz. Sess. Laws, ch.
69, § 1. But we apply the version in effect when the LEMSC resolved
Fraser’s appeal. 2015 Ariz. Sess. Laws, ch. 213, § 3.

The relevant definition of “just cause” comes from the Peace
Officers Bill of Rights. § 41-1830.16(H)(5). Under POBOR, “just cause”
requires all of the following:

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(a) The employer informed the law
enforcement officer of the possible
disciplinary action resulting from the
officer’s conduct through agency manuals,
employee handbooks, the employer’s rules
and regulations or other communications to
the officer or the conduct was such that the
officer should have reasonably known
disciplinary action could occur.

(b) The disciplinary action is reasonably related
to the standards of conduct for a
professional law enforcement officer, the
mission of the agency, the orderly, efficient
or safe operation of the agency or the
officer’s fitness for duty.

(c) The discipline is supported by a
preponderance of evidence that the conduct
occurred.

(d) The discipline is not excessive and is
reasonably related to the seriousness of the
offense and the officer’s service record.

§ 38-1101(7). It follows that, to the extent Fraser’s collateral action raises
issues outside this definition, it is not precluded by his decision not to
appeal the LEMSC’s order. See Fleming, 125 Ariz. at 524.

III. Whether Fraser’s wrongful-termination and Section 1983 claims
were outside the LEMSC’s scope of authority, and thus properly
raised in this collateral case

In reviewing Fraser’s allegations, we assume the truth of all
the complaint’s well-pled facts and resolve reasonable inferences in Fraser’s
favor. See Coleman v. City of Mesa, 230 Ariz. 352, ¶ 9 (2012). However,
because issue preclusion is an affirmative defense, we may affirm the
dismissal only if the facts establishing that defense appear in the complaint.
Shepherd v. Costco Wholesale Corp., 250 Ariz. 511, ¶ 16 (2021).

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A. The superior court erred in dismissing Fraser’s
wrongful-termination claim

Fraser argues that the superior court erred in dismissing his
wrongful-termination claim because the LEMSC may not determine
whether the proceedings violated his statutory rights. Fraser’s
wrongful-termination claim arises from three sets of factual allegations:
(1) the state retaliated against him; (2) the termination process violated
unspecified policies and procedures; and (3) the termination violated his
rights under the POBOR.

1. From the available record, the LEMSC did not
address Fraser’s retaliation claim and lacked
authority to do so

With respect to retaliation, the Employment Protection Act
authorizes a wrongful-termination claim if the employee has been
terminated in retaliation for “[t]he disclosure . . . that the employee has
information or a reasonable belief that the employer, or an employee of the
employer, has violated, is violating or will violate the Constitution of
Arizona or the statutes of this state . . . .” A.R.S. § 23-1501(A)(3)(c)(ii).
Fraser appears to allege that he was terminated to “cover up the obvious
deficiencies” in DPS’s K-9 unit, poor training, and to “quash a program that
was unwanted” in the department.

The state argues that the LEMSC “factually rejected” this
claim, and that its findings support that Fraser was fired for his own
misconduct, not for reporting another employee’s illegal activity. The state
attached the LEMSC’s findings to its motion to dismiss, and we consider
them here because they are public records that do not require conversion of
the motion to dismiss into a motion for summary judgment. See
Mirchandani v. BMO Harris Bank, N.A., 235 Ariz. 68, ¶ 7 (App. 2014).

Those findings, however, belie the state’s argument. They do
not reflect that the LEMSC considered Fraser’s retaliation allegations. Thus,
at least based on the record available at the motion-to-dismiss stage, we
cannot conclude that the retaliation issue was actually litigated and
determined, as required for issue preclusion. See Legacy Found. Action Fund,
254 Ariz. 485, ¶ 24.

Because issue preclusion also depends on a full and fair
opportunity to litigate the issues, we also consider whether the LEMSC had
authority to consider such allegations. For guidance, we look to our

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supreme court’s recent decision in McMichael-Gombar v. Phoenix Civil Service
Board, 256 Ariz. 343 (2023). There, an officer had been suspended for
posting social media content that violated city policy, and she filed a
collateral action to set aside the suspension on the basis that the policy was
unconstitutional. Id. ¶ 1. In evaluating whether the collateral action was
permissible, the court looked to the authority of the relevant administrative
agency—the Phoenix Civil Service Board. The court concluded that the
board could apply constitutional principles to “discard[] an interpretation”
of the policy “that would violate an employee’s rights.” Id. ¶ 22. But it
concluded that the board lacked authority to determine whether the policy
itself was unconstitutional. Id. This is because the board’s power was
limited to authority “specifically reserved” to it in the city charter, which
did not include deciding the constitutionality of city policies. Id. ¶¶ 17-18.

As applied here, McMichael-Gombar demonstrates that the
LEMSC could have considered evidence of retaliation in connection with
an argument that there was no “just cause,” although the record at this stage
does not suggest that it did so. But, just as the Phoenix Civil Service Board
lacked authority to resolve the constitutional challenge at issue there, the
LEMSC lacked authority to resolve the freestanding retaliation claim
alleged by Fraser’s collateral action.

Nor has the state explained whether the LEMSC’s “just cause”
determination might preclude Fraser from proving a claim for retaliation,
an issue that appears unclear from our published case law. Cf. Najar v. State, 198 Ariz. 345, ¶ 8 (App. 2000) (allowing plaintiff alleging retaliation under
A.R.S. § 41-1464 to demonstrate that “legitimate nonretaliatory reason” for
termination was pretextual); Czarny v. Hyatt Residential Marketing Corp.,
2018 WL 1190051, ¶ 13 (Ariz. App. Mar. 8, 2018) (applying same standard
to retaliation claim under Section 23-1501). Thus, given the standards
applicable at the motion-to-dismiss stage, we conclude that Fraser did not
have a full and fair opportunity to litigate that claim before the LEMSC. We
likewise cannot conclude that any retaliation issues were essential to the
LEMSC’s order, which as noted, is another element of issue preclusion.

Finally, the state cites the Employment Protection Act itself as
precluding Fraser’s action. Under Section 23-1501(A)(3)(b), if an employee
is terminated in violation of a statute and that statute provides a remedy for
its violation, no other remedy is available. In the state’s view, the LEMSC’s
enabling statutes provided Fraser with a remedy for his alleged wrongful
termination: seeking judicial review of its order. See § 41-1830.16(F) (“Any
party may appeal the decision of the law enforcement merit system

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council . . . .”). We disagree because, as explained, the LEMSC lacked the
authority to review Fraser’s retaliation allegations in the first place.

2. From the available record, the LEMSC lacks
authority to consider Fraser’s allegations
concerning due process, as well as policy and
procedure violations

Fraser also alleges that the state committed policy and
procedure violations throughout the disciplinary process and that the
administrative process violated his due-process rights. His allegations are
vague and do not precisely identify the alleged violations. But the state did
not challenge the allegations’ sufficiency in its motion to dismiss, nor did it
meaningfully raise the issue on appeal. As such, we decline to determine
their sufficiency here. See Harris v. Cochise Health Sys., 215 Ariz. 344, ¶ 17
(App. 2007) (“[A]n appellate court will not consider issues not raised in the
trial court.” (quoting Hawkins v. Allstate Ins. Co., 152 Ariz. 490, 503 (1987))).
We instead confine our analysis to whether Fraser’s allegations, as pled, fall
within the LEMSC’s jurisdiction.

Viewed through this lens, Fraser’s allegations are sufficient.
The definition of “just cause” contained above includes some procedural
requirements. Specifically, the employer must provide the employee
proper notice of possible disciplinary action through agency manuals,
employee handbooks, and other communications. § 38-1101(7)(a). But
Fraser’s allegations appear to be targeted at the processes employed after
the disciplinary proceedings began. The state has pointed to no authority
suggesting that the LEMSC has authority to address these procedural
issues. Nor have we identified any. As a result, we conclude that Fraser’s
allegations are outside the scope of the LEMSC’s review.

3. From the available record, the LEMSC lacks
authority to consider the POBOR violations
alleged by Fraser

Fraser argues that his termination also violated the POBOR,
because his discipline for “incompetence” was not initiated with proper
notice. See §§ 38-1101 to 38-1120 (POBOR statutes). The LEMSC’s order
makes clear that Fraser was not disciplined for incompetence, as DPS had
withdrawn it as one of the grounds for his termination. But again, the state
did not argue for dismissal of the wrongful-termination claim on this
ground. We therefore do not consider the issue. See Harris, 215 Ariz. 344,

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¶ 17. We must instead confine our analysis to whether Fraser’s collateral
action was barred. See id.

In arguing that it was not, Fraser asserts that the superior
court “ignored the protections of the POBOR statutes.” We understand this
argument as suggesting that the incompetence allegation violated POBOR
notice provisions outside the definition of “just cause.” Fraser does not
identify those procedures, but the state did not move to dismiss for failure
to do so, which prevents us from considering the issue. And POBOR does
contain notice requirements beyond the definition of “just cause.” For
example, before an employer may interview an officer in a disciplinary
investigation, Section 38-1104(A)(2) requires the employer to provide a
“written notice informing the law enforcement officer of the alleged facts
that are the basis of the investigation,” as well other issues. See also
§ 38-1104(D) (employer must provide information requested by officer
concerning similar discipline of other officers).

The state counters that the LEMSC necessarily reviewed
DPS’s compliance with the POBOR because there is an interplay between
POBOR and the statute providing the LEMSC with the authority at issue.
But that position oversimplifies the issue. Section 41-1830.16(H)(5), the
LEMSC, statute, does incorporate the POBOR’s definition of “just cause.”
But that is the only relevant cross-reference between the two statutory
schemes. See §§ 41-1830.11 to 41-1830.16. Otherwise, nothing in either
statutory scheme allows the LEMSC to review an agency’s compliance with
the POBOR, including the notice requirements of Section 38-1104. See City
of Sierra Vista v. Sierra Vista Wards Sys. Voting Project, 229 Ariz. 519, ¶ 19
(App. 2012) (“[C]ourts will not enlarge, stretch, expand, or extend a statute
to matters not falling within its express provisions.” (quoting In re Martin
M., 223 Ariz. 244, ¶ 7 (App. 2009))).

Here, Fraser’s allegation that he did not receive proper notice
of the incompetence charge appears to go beyond the notice requirements
embedded in “just cause.” See § 38-1101(7)(a). These requirements focus
on ensuring that officers are aware of the type of conduct that can lead to
disciplinary action. But they do not address the types of notice needed to
initiate such action following an alleged violation. Rather, as we have
explained, that requirement is contained in Section 38-1104. Because
determining whether the state violated this provision is beyond the scope
of the LEMSC’s authority, the superior court erred in dismissing Fraser’s
claim.

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B. The superior court erred in dismissing Fraser’s Section
1983 claim

Fraser next argues that the superior court erred in dismissing
his Section 1983 claim, which alleged that the state had violated Fraser’s
equal-protection and due-process rights by depriving him of the POBOR’s
protections. In dismissing this claim, the court relied on Gilbert v. Board of
Medical Examiners, 155 Ariz. 169, 176 (App. 1987). In that case, this court
concluded that preclusion based on the failure to seek judicial review of an
administrative order applies “even to alleged constitutional errors.” Id.
(quoting Hurst v. Bisbee Unified Sch. Dist., 125 Ariz. 72, 75 (App. 1979)).

Fraser argues that Gilbert is distinguishable because it “dealt
with challenges” that “would definitely be appealable,” while here,
constitutional violations were not at issue in the LEMSC’s “just cause”
determination. In response, the state argues that Fraser’s Section 1983 claim
is rooted in its alleged failure to comply with POBOR, and reiterates that
the LEMSC had the authority to determine this issue.

Again, we agree with Fraser. Gilbert quotes Hurst for the
proposition that preclusion applies to constitutional errors. 155 Ariz. at 176.
However, Hurst dealt with a statutory scheme that allowed an appellant to
appeal an administrative decision to the superior court on the grounds that
the order was “[b]ased on violation of any constitutional provision.” 125
Ariz. at 392-93; see also Moulton v. Napolitano, 205 Ariz. 506, ¶ 20 (App. 2003)
(revenue department has authority to apply constitutional doctrines when
legislature authorized it to consider “any legal theory, including a
constitutional one”).

Here, by contrast, we have explained that the LEMSC’s
authority does not extend beyond reviewing whether DPS complied with
procedural requirements contained in the definition of “just cause.” See
City of Sierra Vista, 229 Ariz. 519, ¶ 19. Because Fraser appears to allege due-
process and equal-protection claims that go beyond this definition, he is not
precluded from raising them. Our analysis is consistent with McMichael-
Gombar, which expressly contemplates a Section 1983 action when an
administrative agency lacks the authority to adjudicate constitutional
claims. See 256 Ariz. 343, ¶ 26.

Recent Ninth Circuit case law reaches the same conclusion.
See Jamgotchian v. Ferraro, 93 F.4th 1150, 1155 (9th Cir. 2024) (state agency
decision did not preclude Section 1983 lawsuit when agency lacked
jurisdiction to decide constitutional issues). We are not bound by the Ninth

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Circuit’s reasoning, but we “generally defer to federal courts’ interpretation
of federal law.” Cimarron Foothills Cmty. Ass’n v. Kippen, 206 Ariz. 455, ¶ 6
(App. 2003). To the extent it is relevant, this case law further reinforces that
Fraser’s Section 1983 claim was beyond the LEMSC’s authority. Thus, we
conclude that the superior court erred in dismissing Fraser’s Section 1983
claim.

CLAIMS FOR DEFAMATION AND
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Fraser also appeals the superior court’s dismissal of his two
other claims—defamation and intentional infliction of emotional distress—
for failure to state a claim. We review de novo the dismissal of a complaint
for failure to state a claim. Orca Commc’ns Unlimited, LLC v. Noder, 236 Ariz.
180, ¶ 6 (2014). And, as we have explained, “courts must assume the truth
of all well-pleaded factual allegations and indulge all reasonable inferences
from those facts.” Coleman, 230 Ariz. 353, ¶ 9.

Under Rule 12(b)(6) of the Arizona Rules of Civil Procedure,
dismissal of a complaint is appropriate when the plaintiff “would not be
entitled to relief under any interpretation of the facts susceptible of proof.”
Id. ¶ 8 (quoting Fid. Sec. Life Ins. Co. v. State Dep’t of Ins., 191 Ariz. 222, ¶ 4
(1998)). When adjudicating a Rule 12(b)(6) motion, courts look only at the
pleading and the “well-pled factual allegations” it contains. Cullen, 218
Ariz. 417, ¶ 7. Complaints that solely state legal conclusions, without any
factual allegations, do not satisfy the notice-pleading standard. Id.

I. Fraser has failed to state a claim for defamation

Fraser’s defamation claim arises out of his placement on the
“Brady List,” which is a list of law enforcement officers who have been
accused of professional misconduct. See Yahwheh v. City of Phoenix, 243 Ariz.
21, ¶ 2 (App. 2017); see generally Brady v. Maryland, 373 U.S. 83 (1963)
(prosecutors must disclose exculpatory evidence to criminal defendants);
Ariz. R. Crim. P. 15.1 (state’s disclosure obligations). However, Fraser does
not allege that his placement on the list was defamatory. He instead alleges
that the state defamed him by making “false claims” in connection with that
placement.

In defamation actions, plaintiffs must “clearly and specifically
allege the content and context of the challenged statements and why and
how they were defamatory.” BLK III, LLC v. Skelton, 252 Ariz. 583, ¶ 16
(App. 2022). Knowing the “precise language” of the alleged statements is

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crucial because a court must “analyze whether the statement is objectively
verifiable as true or false.” Id. ¶ 15.

We agree with the superior court that Fraser’s allegations did
not meet this standard. On appeal, Fraser argues that he should be entitled
to discovery to learn exactly what defamatory statements were made. But
as the state points out, Fraser cites no authority supporting the argument
that he may obtain discovery to learn whether he has a cause of action. Nor
are we aware of any. Without “clearly and specifically” alleging the content
of the statements made and why they were defamatory, Fraser fails to state
a claim upon which relief may be granted. See id. ¶ 16.

II. Fraser failed to state a claim for intentional infliction of
emotional distress

Fraser also argues the superior court erred in dismissing his
emotional-distress claim, which arises out of his allegation that “violations
of law and false claims made in the termination process” were outrageous
and caused him severe emotional distress. In an action for intentional
infliction of emotional distress, a plaintiff must allege: (1) the defendant
caused severe emotional distress; (2) by extreme and outrageous conduct;
(3) with intent to cause emotional distress or with reckless disregard that
such distress would result. Watkins v. Arpaio, 239 Ariz. 168, ¶ 8 (App. 2016).

A court must determine whether the defendant’s alleged
conduct was extreme and outrageous. Watts v. Golden Age Nursing Home,
127 Ariz. 255, 258 (1980). Extreme and outrageous conduct is defined as
conduct that “go[es] beyond all possible bounds of decency” and is
“regarded as atrocious, and utterly intolerable in a civilized community.”
Ford v. Revlon, Inc., 153 Ariz. 38, 43 (1987) (quoting Restatement (Second) of
Torts § 46 cmt. d (1965)). In the employment context, it is “extremely rare”
to find conduct sufficient to meet this standard. Mintz v. Bell Atl. Sys.
Leasing Intern, Inc., 183 Ariz. 550, 554 (App. 1995).

Fraser argues that the superior court erred by “acting as a trier
of fact” because, at this stage in litigation, he has not yet been able to offer
evidence. But Fraser misstates the law, as it was indeed the court’s role to
determine whether the facts he had alleged were extreme and outrageous.
See Watts, 127 Ariz. at 258.

Fraser further argues that “evidence of a concerted effort to
target” him is an allegation sufficient to find extreme and outrageous
conduct. However, as the state points out in response, Fraser’s failure to

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appeal the LEMSC’s order conclusively establishes “just cause” for his
termination. See Gilbert, 155 Ariz. at 176 (“No timely appeal having been
taken, the decision of the board is conclusively presumed to be just,
reasonable and lawful.” (quoting Hurst, 125 Ariz. at 75)). We cannot discern
how the state’s alleged conduct was extreme and outrageous when
established findings show “just cause” for Fraser’s termination.

ATTORNEY FEES

Fraser requests attorney fees and costs under A.R.S. § 12-341.
Because this is not an attorney-fees statute, we deny his request for such
fees. However, upon compliance with Rule 21 of the Arizona Rules of Civil
Appellate Procedure, we award him all taxable costs on appeal. See Henry
v. Cook, 189 Ariz. 42, 44 (App. 1996) (“[T]he party who obtains partial
success is entitled to recover all taxable costs.”).

DISPOSITION

For the foregoing reasons, we reverse the superior court’s
dismissal of Fraser’s wrongful-termination and Section 1983 claims. We
affirm its dismissal of his claims for defamation and intentional infliction of
emotional distress.

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