Udd v. City of Phoenix

          ORDER

          Dominic W. Lanza United States District Judge

         INTRODUCTION

         Pending before the Court is the partial motion to dismiss filed by the City of Phoenix and Mary Roberts (together, “Defendants”). (Doc. 11.)^[1] Roberts has moved to dismiss Plaintiffs' state-law claims against her for insufficient compliance with Arizona's notice of claim statute, A.R.S. § 12-821.01(A), and both Defendants have moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss the claims for abuse of process and intentional infliction of emotional distress. For the reasons below, the Court will grant the partial motion to dismiss in its entirety.

         BACKGROUND

         This case was removed to the federal court on May 29, 2018. (Doc. 1.) Plaintiffs Darren Udd (“Darren”) and Amy Udd (“Amy”) (together, “Plaintiffs”) filed their first amended complaint on June 11, 2018. (Doc. 9.) The facts as alleged by Plaintiffs are as follows:

         I. Facts Related to Underlying Claims

         Darren is a peace officer certified by the Arizona Peace Officer Standards and Training Board (“AZPOST”) who retired in December 2017 after working for approximately 24 years in the Phoenix Police Department (the “Department”), most recently as a homicide detective. (Id. ¶ 24.) Amy is Darren's spouse and a civilian employee of the Department. (Id. ¶ 54.) Roberts is an Assistant Chief for the Department. (Id. ¶ 4.)

         During the relevant time period, Darren worked significant hours from home or otherwise outside the office and outside normal business hours, often working more than his regularly scheduled eight-hour shift. (Id. ¶¶ 28-29, 35.) Darren, like many other police detectives, did not record all the hours he worked. (Id. ¶ 31.) The Homicide Unit of the Department has historically recognized the non-standard work hours of its detectives and instituted a de facto department policy known as “flex time” that is not documented in the employee manual. (Id. ¶ 32.)

         On December 20, 2016, Darren was directed to report to the office of his supervisor, where he was advised that Roberts personally directed that he not be assigned to work on any new cases. (Id. ¶ 39.) The Department claimed that it had received an anonymous report questioning his work hours, which caused the Department to open an investigation in October 2016 and conduct an audit of his magnetic entry card for headquarters and his radio transmissions and computer logs. (Id. ¶¶ 40-41.)

         Plaintiffs allege that this audit had several significant limitations, which resulted in underreporting of the hours Darren worked. (Id. ¶ 43.) For example, it primarily calculated the hours Darren worked based on Darren's use of his magnetic entry card, assuming that the first use was his start of the work day and second use was his leaving work, which was not always accurate. (Id. ¶ 44.) Plaintiffs allege that the Department was aware of these limitations and the resulting underreporting. (Id. ¶¶ 43-45.) At one point, the audit showed that Darren was deficient by 1, 054.5 hours from between October 2015 and October 2016, valued at $36, 717.69. (Id. ¶ 47.)

         In or around October 2016, after being provided the audit and investigation information, Roberts directed that Darren be criminally investigated for theft of time. (Id. ¶¶ 48, 63.) Darren's supervisor, Sergeant Lumley, was not interviewed until January 26, 2017. (Id. ¶ 63.) In this interview, Lumley provided extensive exculpatory evidence. (Id. ¶ 64.) A search warrant was obtained for Darren's personal cell phone records in connection with this investigation, and the records were obtained on February 17, 2017. (Id. ¶¶ 50, 68.) Darren was not interviewed before the investigation was opened and his interview did not occur until April 19, 2017. (Id. ¶¶ 59, 69.)

         Reports that originated in Roberts's office circulated throughout the department that Darren was under investigation for “theft.” (Id. ¶ 52.) Amy was informed by her supervisor of the investigation, which caused her stress and anxiety. (Id. ¶¶ 54-55.)

         By April 2017, the amount of unaccounted for time had been reduced to 221 hours, valued at $7, 695.22. (Id. ¶ 71.) Darren was never arrested during or after the investigation. (Id. ¶ 60.) But an incident report indicated that he was an arrested suspect. (Id. ¶ 61.) The incident report also recommended that Darren be charged with a class 3 felony for theft of hours. (Id. ¶ 76.)

         The investigation was referred to the Maricopa County Attorney's Office (“MCAO”) for possible indictment and prosecution. (Id. ¶ 80.) The MCAO declined to prosecute. (Id. ¶ 82.) The MCAO has declined to prosecute many sworn officers and civilian employees who have been referred for prosecution by the Department. (Id. ¶ 83.) On information and belief, the MCAO has advised the investigatory units of the Department, including the Professional Standard Bureau and the Office of the Phoenix Chief of Police, to cease referring investigations for non-criminal activity. (Id. ¶ 97.)

         Plaintiffs allege that several employees of the Department over the age of 40 have been subjected to a series of internal investigations and other unwarranted adverse employment actions, causing some of them to take early retirement and leave the Department. (Id. ¶¶ 90-91.) Plaintiffs further allege that male employees have been subject to investigations and adverse employment actions that female employees have not. (Id. ¶¶ 94, 96.)

         During the investigation, Roberts made comments about Darren that attacked his reputation and falsely claimed that he would be prosecuted. (Id. ¶ 98.)

         On May 16, 2017, Darren learned that Roberts had opened a separate criminal investigation into Amy for using Darren's garage key card at Department headquarters. (Id. ¶ 100.) Darren had allowed Amy to use his parking spot so she would not have to walk alone through downtown Phoenix at night. (Id.) Darren and Amy were both referred to the Phoenix City Prosecutor's Office for one count of theft. (Id. ¶ 110.) The case was referred to the Glendale City Prosecutor due to a perceived conflict of interest, and the Glendale City Prosecutor declined to prosecute either Darren or Amy. (Id. ¶¶ 111, 113.) An incident report indicates that both Darren and Amy were categorized as arrested suspects even though neither was ever arrested in connection with this matter. (Id. ¶¶ 112, 114.)

         Due to stress and health concerns, Darren took FMLA leave around late May 2017. (Id. ¶ 101.) He remained on this leave until his previously scheduled vacation leave began on July 11, 2017. (Id.)

         When Darren returned to work on August 7, 2017, he was ordered to immediately surrender his badge and gun, assigned to work from home, and placed on paid administrative leave. (Id. ¶ 102.) On September 6, 2017, Darren requested that he be returned to his former duties; in response, he was told that he was being transferred to callback duty. (Id. ¶¶ 104-105.) Callback was a desk job that involved returning calls to members of the public, which Darren considered to be a highly demeaning punishment. (Id. ¶¶ 108-109.)

         Darren provided the City of Phoenix, in its capacity as his employer, with a Notice of Constructive Discharge. (Id. ¶ 126.) The City of Phoenix has not provided a written response to the Notice. (Id. ¶ 127.)

         Darren took early retirement in December 2017. (Id. ¶ 128.) The City of Phoenix and the Department did not provide him with a designation that he had taken an honorable retirement. (Id. ¶ 130.)

         After Darren took his early retirement, the City of Phoenix and the Department filed paperwork with AZPOST alleging misconduct in an effort to have Darren's peace officer certification removed. (Id. ¶ 131.) On May 2, 2018, Darren received a letter from AZPOST stating that a review of the criminal and administrative investigations had found nothing to support the violation of any AZPOST rule, that his case had been administratively closed without any Board action, and that he had no further issue pending with AZPOST. (Id. ¶ 132.)

         Plaintiffs allege that, as a result of Defendants' conduct, Darren suffered physical and mental harm including emotional distress, pain and suffering, mental anguish, humiliation, stress, and stress-induced medical issues. (Id. ¶ 134.) They also allege that he suffered public ridicule, contempt, disrepute, harm to reputation, attacks on his integrity, lost wages and benefits, economic and other financial losses, lost earnings capacity, and other damages. (Id. ¶ 135.)

         Plaintiffs further allege that, as a result of Defendants' conduct, Amy suffered severe and debilitating emotional distress, humiliation, degradation, harm to her good name and reputation, harm to her marital community, great anxiety, fear of unjust prosecution, and significant harm to her employability in her chosen field of psychology. (Id. ¶ 138.)

         II. Notice of Claim Service

         On August 14, 2017, Darren served notices of claim on the City of Phoenix and Roberts. (Id. ¶ 140; Doc. 9-1 [Exs. 1-2].) A process server served the notice of claim on the City of Phoenix through hand delivery on Norris Cunningham, who indicated he was Special Deputy City Clerk, at the Phoenix City Clerk's office. (Doc. 9 ¶ 143.) A process server served the notice of claim on Roberts through hand ...