author: MAASSEN, Justice.

text:
    Terri REYNOLDS-ROGERS, Appellant, v. State of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, Appellee.
    Supreme Court No. S-16409
    Supreme Court of Alaska.
    March 8, 2019 Rehearing Denied March 27, 2019
    Terri S. Reynolds-Rogers, pro se, Palmer, Appellant.
    Elizabeth M. Bakalar, Janell M. Hafner, Assistant Attorneys General, and Jahna Lindemuth, Attorney General, Juneau, for Appellee.
    Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.
   MAASSEN, Justice.

I. INTRODUCTION

A former employee of the Department of Health and Social Services (DHSS) brought a wrongful discharge suit against the State. At the time of her termination she had four union grievances pending against DHSS, and her union filed another based on the termination. The union settled all five grievances in exchange for a payment to the employee. She later sued DHSS for wrongful termination, alleging both breach of the covenant of good faith and fair dealing and several torts, including retaliatory discharge and failure to accommodate her disabilities. The superior court granted DHSS's motion for summary judgment and entered final judgment against the employee.

We conclude that the superior court was correct in deciding that the employee's claims were resolved by the settlement of her grievances, were barred by the statute of limitations, or were legally insufficient in light of the undisputed facts. We therefore affirm the superior court's judgment.

II. FACTS AND PROCEEDINGS

A. Facts

1. Work duties

Terri Reynolds-Rogers (Rogers ) began to work for DHSS as a Health Program Manager I in August 2006. She has a bachelor's degree in zoology and completed two years of medical school. Her job duties with DHSS involved implementing the Medicaid program: she began by screening paperwork from nursing homes and hospitals related to authorizations for long-term care and was later given duties related to the Medicaid Waiver program.

Rogers's immediate supervisor during most of her employment with DHSS was Rita Walker, whose supervisor was Leanna Hunter. At one point Walker's supervisor had been Odette Jamieson, who "remain[ed] in the chain of command to the end of [Rogers's] service" as Hunter's supervisor.

For the first few years Rogers's employment with DHSS was unremarkable, though she described some friction between herself and Walker. Her first performance evaluation, in June 2011, rated her overall performance as "mid acceptable." The evaluation set out goals for the following year, including weekly meetings with Walker, a "[d]ecrease [in] use of unscheduled leave," cross-training for other positions, showing "improvement in acceptance of supervision," and "[c]onsistently follow[ing] chain of command." Rogers strongly disagreed with the rating and asserts that she filed a lengthy rebuttal.

In the summer of 2011 DHSS began to change Rogers's work requirements. Some changes appear to be related to the goals in the June 2011 evaluation; these included expanding Rogers's duties to encompass training in the Medicaid Waiver review process. The parties disagreed about why Rogers's duties increased: Rogers asserted that it was retaliation by Walker, while DHSS contended that it was part of an effort to cross-train her and make better use of her education. Rogers points to a tasks spreadsheet that she and management developed, which in her opinion shows she was being asked to do more than eight hours of work in a seven-and-a-half-hour day.

The record reflects ongoing problems between Rogers and Walker relating to a variety of issues: unexplained absences, Rogers's use of her time while at work, the way she processed incomplete long-term care authorization requests, and her willingness to accept supervision and follow the chain of command.

2. Disability accommodations requests

In July 2011 Rogers requested an evaluation of her work station because of "increased neck and hand pain, ... with numbness, tingling and loss of strength in both hands." An outside company conducted an ergonomic evaluation of Rogers's work station and recommended modifications, some of which DHSS provided. Rogers was later in two car accidents, and her work station was again evaluated. One recommendation - now a point of contention - was an adjustable desk.

In May 2012, after suffering an attack of Ménière disease which she said was triggered by stress, Rogers filed a request for disability accommodation related to the disease. DHSS did not grant the exact accommodations she requested, but it did provide her with an electronic tablet to help with the hearing impairment that is sometimes a symptom of the disease.

Rogers also suffered from post-traumatic stress disorder (PTSD), though she did not disclose it to her employer until early 2013. According to Rogers, she had no reason to tell DHSS about the condition until problems arose with the rearrangement of her office furniture. She testified that when she returned to work after the Presidents Day holiday in February 2013, she found her desk rearranged so that her back was to the door; she said that working in this position would trigger her PTSD. She and a coworker "reoriented" the desk to face the door. According to Rogers, Walker was displeased and told her the desk had to be turned around. Rogers went to Jamieson, Walker's superior, and explained why she could not work with her back to the door; Rogers testified that Jamieson "allowed [her] to keep [her] desk properly oriented for [her] safety." But Rogers asked Jamieson not to discuss her PTSD diagnosis with others at DHSS.

Rogers had a disciplinary suspension in March 2013, and when she returned to work on April 1 her desk was again oriented with her back to the door. On the door was a notice forbidding the rearrangement of furniture; an email from Hunter explained that Rogers's "furniture configuration had taken up almost the entire office and the second employee [sharing the office] was confined to one corner of the room. Now the space is more appropriately split." When Rogers complained to Jamieson, Jamieson told her to "work with [her] supervisors on th[is] type[ ] of request[ ]." Hunter and Walker learned of Rogers's PTSD diagnosis at this point, and Rogers formally notified them of it on April 2, explaining that her "confidentiality [had] already been breached." She was given paperwork to begin an Americans with Disabilities Act (ADA) accommodations request, and DHSS offered to allow her to work in another office in the meantime. In an email to Walker, Rogers declined "the offer of an interim change in offices" because the desk in the other office was not adjustable but said she would move "if that is still your instruction." She submitted the ADA paperwork for an accommodation related to her PTSD, and on April 12 DHSS agreed to grant her accommodation request.

3. Discipline history

Rogers was the subject of progressive discipline a number of times. She was given a Letter of Expectation in March 2008 related to her use of work time, and in April 2009 she received a Letter of Warning about inappropriate communication with her supervisor. She filed a grievance through her union related to the Letter of Warning, contending that the underlying issue was simply "a communications problem" between her and Walker. The grievance was still unresolved when Rogers was fired in 2013.

In November 2011 Rogers was reprimanded in part because she "failed to follow specific instructions to not discuss" a disciplinary process "with anyone outside of [her] supervisory chain of command or union representation"; she had sent an email to the supervisor of another employee who had filed a complaint about her to document what she considered to be inappropriate behavior by that employee. Rogers was given another Letter of Warning in February 2012 because of her use of unscheduled leave and her failure to follow instructions, and she filed a grievance about this letter. In November 2012 and again in March 2013 she was suspended because of difficulties completing her work, the first time for 5 days and the second for 15 days. Again, she grieved the suspensions through her union.

During the second suspension, staff who were covering Rogers's work discovered a large number of incomplete long-term care authorization requests in her office that had not been reported to her supervisors. In a later interview Rogers acknowledged that "[t]here were 153 all together," and she explained she "could have finished them but [she] was not allowed to do the facilities' share of the work." She said that in the past she had "completed the facilities' share of the work if they were more than a couple weeks behind in getting payment" and that she "viewed it as part of [her] job - to get long-term care authorization completed whether or not the information was provided by the long-term care facility or whether [she] called them to get the correct information from them." This was contrary to established practice; Rogers had been instructed before that it was up to the providers to make necessary corrections to their paperwork.

Rogers was fired on April 12, 2013 - the same day DHSS granted her request for accommodation related to her PTSD - following a contentious investigatory interview. Through her union she filed a grievance contesting the termination. In June 2013 the union settled all of the grievances, including the other four that were pending at the time of her termination: the union withdrew the grievances in exchange for DHSS's agreement to pay Rogers $3,800 and remove a performance evaluation for 2011-12 from her records.

B. Proceedings

On April 5, 2013, a week before her termination, Rogers filed a complaint with the Alaska State Commission on Human Rights (ASCHR). Shortly afterwards she filed a complaint with the U.S. Equal Employment Opportunity Commission (EEOC), which investigated the complaint, concluded that it was unable to establish any violations of the relevant statutes, and in August 2014 gave Rogers a "Right to Sue" letter.

Rogers, through counsel, filed suit against DHSS, alleging several causes of action: breach of the implied covenant of good faith and fair dealing, failure to provide reasonable accommodations, wrongful termination, retaliation, and discrimination based on disability and age. DHSS answered and moved for summary judgment, which the superior court granted. The court observed that a wrongful termination claim required proof of either a breach of contract or a tort. It decided that Rogers's union settlement barred any claim for breach of the covenant of good faith and fair dealing. It decided that the statute of limitations had run on a claim for failure to reasonably accommodate any disabilities except PTSD, and that DHSS had reasonably accommodated that disability. The court decided that Rogers had established a prima facie case of disability discrimination, that DHSS had carried its burden of demonstrating that it had a legitimate reason for firing her, and that Rogers had failed to show that this reason was actually "an impermissible pretext." The court likewise decided that Rogers had established a prima facie case of retaliation but that DHSS had shown a legitimate reason for her termination which Rogers had not shown to be pretextual.

Rogers, now self-represented, appeals.

III. STANDARDS OF REVIEW

"We review a grant of summary judgment de novo," "affirming if the record presents no genuine issue of material fact and if the movant is entitled to judgment as a matter of law."

IV. DISCUSSION

A. The Superior Court Did Not Err In Granting Summary Judgment On Rogers's Claim For Violation Of The Covenant Of Good Faith And Fair Dealing.

The superior court based its denial of Rogers's claim for breach of the covenant of good faith and fair dealing on her union's settlement of the five grievances in exchange for a monetary payment to Rogers. The court reasoned that breach of the covenant is a contract-based claim; that the contract at issue was "the Collective Bargaining Agreement between the State and the Alaska State Employees Association"; and that claims based on the covenant therefore had to be pursued by the contractual grievance policy, which had finally resolved them by settlement.

We see no error in this analysis. A cause of action based on the covenant of good faith and fair dealing is a contract claim. An employee represented by a union who wishes to bring an employment-related contract claim against the employer must first exhaust the administrative remedies available through the union or show good cause why exhaustion should be excused. Rogers and her union settled her grievances, and there were therefore no further administrative remedies to exhaust. But her acceptance of the settlement bars litigation of the settled contract disputes.

Rogers argues, however, that the settlement agreement resolving her grievances should be rescinded for several reasons, including fraud, "misunderstanding," breach of fiduciary duty by her union, lack of consideration, and unconscionability. She appears to argue that the union representative misled her about what she would be giving up by agreeing to the settlement (fraud or misrepresentation) or that she misunderstood what the union representative was telling her (unilateral mistake). In other words, she argues that the fatal flaws in the settlement agreement were due not to DHSS but to her union representation. Her claim could be characterized as a "hybrid claim," involving not only a claim against the employer for breach of the collective bargaining agreement but also one against the union for breach of its duty of fair representation.

But Rogers did not argue in the superior court that the settlement agreement was invalid and should be set aside; her only argument about the grievance process concerned whether she was required to exhaust her remedies. A claim for breach of the duty of fair representation generally raises issues of fact about the union's conduct, none of which were litigated in the trial court in this case.

In the absence of any argument why the settlement agreement should be set aside, the superior court did not err when it relied on the settlement to bar her contractual claim for breach of the covenant of good faith and fair dealing.

B. The Superior Court Correctly Decided That The Statute Of Limitations Barred All But One Of Rogers's Disability Discrimination Claims.

The superior court decided that the statute of limitations barred disability discrimination claims related to DHSS's actions prior to October 2012. It relied on a regulation requiring that a complaint alleging a discriminatory act be filed with the Alaska State Commission on Human Rights within 180 days of the act, concluding that "[a]ny acts occurring more than 180 days before the ASCHR complaint [were] ... untimely." Because Rogers made her complaint to the Commission on April 5, 2013, the court concluded that causes of action based on "any acts occurring before October 7, 2012 [were] ... untimely filed." It concluded that causes of action related to acts prior to October 23, 2012 - two years before she filed her complaint in superior court - were barred in any event because of the two-year statute of limitations on tort actions. Under this ruling, the only allegedly discriminatory acts not barred by the statute of limitations were those related to Rogers's PTSD.

Rogers contends on appeal that the statute of limitations on all her claims should have been equitably tolled because she was pursuing her union grievances. Again, however, she did not make this argument in the superior court, as DHSS points out. While we can in limited circumstances consider issues raised for the first time on appeal, those circumstances are not met here because equitable tolling requires consideration of prejudice to the defendant, which is ultimately a factual issue. The superior court made no findings about prejudice. Because Rogers did not raise equitable tolling in the superior court, that argument has been waived, and she offers no other argument of error on this point. We therefore conclude that the superior court was correct in deciding that the statute of limitations barred Rogers's disability discrimination claims other than the one related to her PTSD.

C. The Superior Court Did Not Err In Granting Summary Judgment To DHSS On The Claim For Failure To Accommodate Rogers's PTSD.

Rogers argues that DHSS failed to accommodate her PTSD - and in fact purposely acted to trigger it - by twice rearranging her office furniture so that her back was to the door. DHSS counters that once it became aware of Rogers's need for accommodation related to this condition it promptly engaged in an interactive process with her, thus fulfilling its obligations under the ADA.

"Federal courts have held that the ADA requires an employer to 'engage with the employee in an "interactive process" to determine the appropriate accommodation under the circumstances' once it is aware of the employee's disability." It is undisputed that Rogers had not told any of her superiors that she suffered from PTSD before February 2013, when she told Jamieson that she had to work facing the door and explained why. Jamieson allowed this accommodation once Rogers and a coworker had moved the desk to where Rogers wanted it. It thus appears that DHSS immediately accommodated the disability as soon as Rogers made Jamieson aware of it. But Rogers concedes that she kept her PTSD diagnosis from Walker, her immediate supervisor; she testified at her deposition that she asked Jamieson not to "spread this around" to others at DHSS because it was "private."

Rogers claims that Walker acted intentionally to trigger her PTSD when in April 2013 Walker again oriented the desk so that Rogers's back was to the door, but she offers no evidence that Walker was aware of the PTSD diagnosis at that time. The notes from Rogers's interview with the EEOC indicate that when Rogers returned in April to find the desk oriented so she would have to work with her back to the door, she sent an email to another supervisor informing her of the PTSD and seeking permission to leave for the day because of the stress involved. According to Rogers, the PTSD diagnosis was disclosed to Hunter and Walker at that time. No evidence contradicts Rogers's own assertion that Walker learned of her PTSD only after the desk was reoriented the second time, and this time line is consistent with emails from Rogers and DHSS staff as well as Hunter's deposition testimony.

DHSS did not immediately agree to reorient the desk in April, but after Hunter and Walker were made aware of the diagnosis DHSS began the interactive process required by federal law. DHSS gave ADA forms to Rogers and in an email dated April 12 agreed to accommodate her. In short, DHSS agreed to the accommodation Rogers demanded less than two weeks after she advised her direct supervisors of her disability and need for accommodation.

Federal courts have decided that similar time lapses in accommodating ADA requests are reasonable as a matter of law. For example, in Kintz v. United Parcel Service, Inc. , the court decided that a "delay of a mere 15 days is not unreasonable under the ADA." Another federal court decided that a 17-day delay was insufficient as a matter of law to support a failure to accommodate claim.

Because DHSS engaged in the interactive process required by the ADA once it was informed of Rogers's PTSD and her need for accommodation, and because it promptly granted her accommodation, summary judgment for DHSS was proper on the claim for failure to accommodate her PTSD.

D. The Superior Court Did Not Err In Granting Summary Judgment On The Disability Discrimination Claim.

To establish a prima facie case for a disability discrimination claim under AS 18.80.220, a plaintiff must show the following:

(1) that he or she is an individual who has a disability within the meaning of the statute; (2) that he or she could perform the essential functions of the position he or she holds (with or without reasonable accommodation); and (3) that he or she has suffered an otherwise adverse employment decision because of the disability.[ ]

This test is derived from the burden-shifting analysis adopted by the U.S. Supreme Court in employment discrimination cases brought under Title VII of the Civil Rights Act of 1964. If the employee can establish a prima facie case, "the burden shifts to the employer to articulate legitimate, nondiscriminatory reasons for the employment action." If the employer meets this burden, the employee must then show "that discriminatory reasons more likely motivated the employer." "Because a complainant can show pretext either directly or indirectly, a variety of factors can evidence a pretextual justification."

Here the superior court determined on summary judgment that Rogers had met her initial burden of demonstrating a genuine issue of material fact as to all three elements. On appeal DHSS challenges this determination, arguing that no facts support a finding that Rogers could perform the essential functions of her position and that the trial court put too much weight on the temporal proximity between Rogers's request for accommodation of her PTSD and her firing.

The superior court did not have before it on summary judgment any evidence regarding the essential functions of Rogers's position; neither Rogers's initial job description nor the revised job description was included in the record. Given the dearth of information about the specific functions of Rogers's job, the superior court did not err in finding that Rogers's "mid acceptable" performance evaluation in 2011 adequately supported a prima facie case that she was able to perform the essential functions of her position.

Nor did the court err by using temporal proximity to establish the third prong. Rogers suffered at least two adverse employment actions in close proximity to her attempts to rearrange her office: the February repositioning of the desk was one of the issues in a February investigatory interview that resulted in the 15-day suspension in March, and she was fired within two weeks of her return to the office on April 1 and her request at that time for accommodation of her PTSD.

But we also agree with the superior court that DHSS met its burden of demonstrating the absence of any genuine issue of material fact as to whether it had legitimate reasons for firing Rogers. One legitimate reason was the discovery of many pending requests for long-term care authorizations in various stages of the approval process that Rogers had apparently not disclosed to her supervisors. The record supports other reasons as well: Rogers appears to have disregarded instructions about processing incomplete applications; she went outside her chain of command despite admonitions not to do so; and she disregarded directives not to discuss certain personnel issues with others.

Because DHSS met its burden of showing it had legitimate reasons for firing Rogers, the burden shifted to her to show that these reasons were pretextual. Federal courts have held that "the plaintiff must produce 'specific, substantial evidence of pretext,' " or, put another way, "must tender a genuine issue of material fact as to pretext in order to avoid summary judgment." The superior court decided that DHSS was entitled to summary judgment because Rogers provided no evidence she was terminated because of her disability. Although Rogers made many allegations that Walker and others in DHSS acted deliberately to fire her or to overwhelm her with work, she offered no specific evidence that her firing was motivated by her PTSD and request for accommodation of that disability. We agree with the superior court that Rogers failed to present evidence sufficient to show a genuine issue of material fact as to whether DHSS's reasons for firing her were pretextual.

E. The Superior Court Did Not Err In Granting Summary Judgment To DHSS On The Retaliatory Discharge Claim.

The final question on appeal is whether the superior court erred in granting summary judgment to DHSS on Rogers's retaliation claim. The analysis for a claim of retaliation is similar to that used in a discrimination claim:

To establish a prima facie case of discriminatory retaliation, a complainant must establish that (1) the complainant engaged in a protected activity (e.g., opposed a discriminatory practice); (2) the complainant suffered an adverse employment action; and (3) there was a causal link between the protected activity and the employer's action.[ ]

"Causation may be inferred from the proximity in time between the protected action and the allegedly retaliatory action." The superior court found that Rogers met her burden of showing a prima facie case. The court decided that her union grievances and discrimination complaint to ASCHR were protected activities and that she suffered the adverse employment action of being fired. It then decided that she had satisfied the final element - the causal link - because of temporal proximity.

DHSS challenges this threshold determination, arguing that there is no evidence to support a causal link between the protected activity and the employer's actions. It contends that the timing of the ADA accommodation and Rogers's firing was "pure coincidence" and cannot serve as a basis for meeting the third element.

We again agree with the superior court that Rogers made a prima facie case of retaliation. She was disciplined shortly after she repositioned her desk in mid-February, despite explaining that Jamieson had authorized it. She had multiple union grievances pending at the time of her dismissal, including one related to the February 2013 discipline, and she was fired shortly after she filed the request for accommodation of her PTSD.

Once the plaintiff claiming retaliatory discharge has established a prima facie case, "the burden in a pretext case shifts to the employer to show a legitimate, non-retaliatory reason for the discharge." As set out above, DHSS was able to demonstrate the absence of a genuine issue of material fact as to whether it had legitimate reasons for firing Rogers. The burden then shifted to Rogers "to show that discriminatory reasons more likely motivated the employer." She argued in the superior court that she met the burden through temporal proximity and through evidence that her supervisors were aware of the grievances. However, she was "required ... to offer something more than 'unsupported assumptions and speculation' " in order to create a genuine issue of material fact.

On appeal Rogers offers little in the way of evidence to support her contentions. For example, she asserts that Walker purposely triggered her PTSD by repositioning her desk during her suspension, but Rogers's own statements indicated that Walker found out about the PTSD diagnosis only after Rogers returned to work. No fact that Rogers points to substantiates her claim that DHSS retaliated against her for making the ADA request related to her PTSD or for grieving her concerns through the union process.

Because DHSS showed it had a legitimate reason for terminating Rogers's employment and Rogers failed to provide evidence sufficient to create a genuine issue of material fact as to whether that reason was pretextual, the superior court did not err in granting DHSS summary judgment on the retaliatory discharge claim.

V. CONCLUSION

We AFFIRM the superior court's judgment.

      The appellant identifies herself as "Rogers" in her brief, and we follow her convention.

      The Medicaid Waiver program "provide[s] disabled Alaskans with in-home care services as an alternative to institutionalization." Radebaugh v. State, Dep't of Health & Soc. Servs., Div. of Senior & Disabilities Servs. , 397 P.3d 285, 287 (Alaska 2017).

      Rogers later conceded that she did not have an age-related discrimination claim.

      Mitchell v. Teck Cominco Alaska Inc. , 193 P.3d 751, 757 (Alaska 2008).

      Hagen v. Strobel , 353 P.3d 799, 802 (Alaska 2015).

      See Holland v. Union Oil Co. of Cal. , 993 P.2d 1026, 1032 (Alaska 1999) ("This court has 'recognized a covenant of good faith and fair dealing in all at-will employment contracts.' " (quoting Luedtke v. Nabors Alaska Drilling, Inc. , 834 P.2d 1220, 1223 (Alaska 1992) )).

      See Wilson v. Municipality of Anchorage , 977 P.2d 713, 724 (Alaska 1999).

      See Plumber v. Univ. of Alaska Anchorage , 936 P.2d 163, 168 (Alaska 1997) (holding that settlement of one claim barred employee from "relitigating to obtain a better settlement").

      See Bernard v. Alaska Airlines, Inc. , 367 P.3d 1156, 1159 n.5 (Alaska 2016).

      See Cameron v. Chang-Craft , 251 P.3d 1008, 1018 (Alaska 2011) ("A union breaches its duty of fair representation 'only when [the union's] conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.' " (alteration in original) (quoting Schaub v. K & L Distribs., Inc. , 115 P.3d 555, 562 (Alaska 2005) )), disavowed in part on other grounds by Christensen v. Alaska Sales & Serv., Inc. , 335 P.3d 514, 520 n.49 (Alaska 2014) ; Rollins v. Cmty. Hosp. of San Bernardino , 839 F.3d 1181, 1186-88 (9th Cir. 2016) (holding there were jury questions about whether union acted arbitrarily and "in a perfunctory manner" when handling plaintiff's grievance); Addington v. US Airline Pilots Ass'n , 791 F.3d 967, 982 (9th Cir. 2015) ("Whether a union's conduct amounted to a breach of its duty of fair representation presents a mixed question of law and fact ....").

      Ivy v. Calais Co. , 397 P.3d 267, 275 (Alaska 2017) ("An argument is ordinarily not preserved for appeal if it was not raised below, or if it was only raised after the party filed a motion for reconsideration.").

      6 Alaska Administrative Code (AAC) 30.230 (2014).

      See Radebaugh v. State, Dep't of Health & Soc. Servs., Div. of Senior & Disabilities Servs. , 397 P.3d 285, 292 (Alaska 2017) (setting out circumstances when issue not raised below may be considered on appeal).

      See Irby v. Fairbanks Gold Mining, Inc. , 203 P.3d 1138, 1142-43 (Alaska 2009) (setting out test for equitable tolling and applying it when raised on appeal for the first time because factfinder had considered prejudice in context of another equitable argument).

      See, e.g. , Wagner v. Stuckagain Heights , 926 P.2d 456, 459 (Alaska 1996) (holding that argument not presented in superior court is waived).

      Smith v. Anchorage Sch. Dist. , 240 P.3d 834, 843 (Alaska 2010) (quoting EEOC v. Sears, Roebuck & Co. , 417 F.3d 789, 805 (7th Cir. 2005) ).

      766 F.Supp.2d 1245, 1257 (M.D. Ala. 2011).

      Marks v. Wash. Wholesale Liquor Co. , 253 F.Supp.3d 312, 326 (D.D.C. 2017) ; see also Keen v. Teva Sales & Mktg., Inc. , 303 F.Supp.3d 690, 730 (N.D. Ill. 2018) (granting summary judgment to employer that returned plaintiff to work with accommodations two weeks later than plaintiff requested).

      Smith , 240 P.3d at 843 (quoting Moody-Herrera v. State, Dep't of Nat. Res. , 967 P.2d 79, 88 (Alaska 1998) ).

      Haroldsen v. Omni Enters., Inc. , 901 P.2d 426, 430 (Alaska 1995) (citing Alaska State Comm'n for Human Rights v. Yellow Cab , 611 P.2d 487, 490 (Alaska 1980) ).

      Raad v. Alaska State Comm'n for Human Rights , 86 P.3d 899, 905 (Alaska 2004).

      Id.

      Id.

      A federal regulation defines "essential functions" to mean "the fundamental job duties of the employment position the individual with a disability holds or desires" but "does not include the marginal functions of the position." 29 C.F.R. § 1630.2(n)(1) (2018).

      See VECO, Inc. v. Rosebrock , 970 P.2d 906, 919 (Alaska 1999) ("Causation sufficient to establish a prima facie case of unlawful retaliation may be inferred from the proximity in time between the protected action and the allegedly retaliatory discharge." (quoting Miller v. Fairchild Indus., Inc. , 797 F.2d 727, 731 (9th Cir. 1986) )). The analysis of a disability discrimination claim is similar to that for an unlawful retaliation claim. See id. at 918.

      Wallis v. J.R. Simplot Co. , 26 F.3d 885, 890 (9th Cir. 1994) (quoting Steckl v. Motorola, Inc. , 703 F.2d 392, 393 (9th Cir. 1983) ).

      In her reply brief Rogers cites documents and depositions that were not filed with the superior court and thus are not part of the record on appeal. See Alaska R. App. P. 210(a) (limiting record on appeal to "original papers and exhibits filed in the trial court " (emphasis added)).

      Raad , 86 P.3d at 905.

      Id.

      Mahan v. Arctic Catering, Inc. , 133 P.3d 655, 660 (Alaska 2006).

      Raad , 86 P.3d at 905.

      Mahan , 133 P.3d at 661 (quoting French v. Jadon, Inc. , 911 P.2d 20, 25 (Alaska 1996) ).


source: Caselaw Access Project

author: Judge MANNHEIMER.

license: Public Domain

text:
    Harold SAKAR, Appellant, v. STATE of Alaska, Appellee.
    Court of Appeals No. A-11603
    Court of Appeals of Alaska.
    September 7, 2018
    Kelly Taylor, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.
    Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge.

      Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).

   Judge MANNHEIMER.

In 1999, Harold Sakar was brought to trial on charges of kidnapping and two counts of first-degree sexual assault. He was defended by attorney Scott Sidell, who was the contract attorney for the Office of Public Advocacy in the Bethel area.

Sakar was found guilty, and in June 2000 he was sentenced for these crimes. Sidell told Sakar that he would file an appeal, but (unbeknownst to Sakar) Sidell failed to do so.

Sidell had apparently been suffering from depression. In early 2003 (about two and a half years after Sakar's sentencing), Sidell and discipline counsel for the Alaska Bar Association entered into a stipulation that Sidell would be placed on inactive status because of disability, retroactive to January 1, 1998. In March 2003, the Alaska Supreme Court approved this resolution of Sidell's bar status.

Also in 2003, Sakar learned that Sidell had not filed the promised appeal of his convictions. Sakar filed an application for post-conviction relief, alleging ineffective assistance of counsel. The superior court ultimately ruled that Sidell had been ineffective when he failed to appeal Sakar's convictions, and that Sakar was now entitled to file a belated direct appeal.

In this belated appeal, Sakar argues that the supreme court's order retroactively placing Sidell on disability status as of January 1, 1998 entitles him to an automatic reversal of his conviction, even though Sakar has not shown that Sidell's performance in his case was deficient in any identifiable way.

Sakar acknowledges that this Court previously rejected this same argument (raised by a different client of Sidell) in Nook v. State . However, Sakar contends that Nook was wrongly decided. Alternatively, he argues that his case is distinguishable from Nook .

For the reasons explained in this decision, we conclude that Sakar has failed to show either that Nook was originally erroneous or that Sakar's case is distinguishable from Nook .

Sakar raises one more claim on appeal: he asserts that the superior court enhanced his sentence in violation of his Sixth Amendment right to jury trial as construed in Blakely v. Washington . We reject this claim because Sakar's conviction was entered approximately four years before Blakely was decided, and because the Alaska Supreme Court has held that Blakely is not retroactive.

Why we re-affirm our decision in Nook, and why we reject Sakar's argument that his case is distinguishable from Nook

In Nook v. State , we rejected the argument that Sidell's retroactive disability status entitled all defendants who were represented by Sidell after January 1, 1998 to claim automatic reversals of their convictions. Our opinion in Nook sets out the reasons why a rule of automatic reversal was both unmerited and contrary to the Alaska Supreme Court's intent when it approved the disability stipulation between Sidell and the Bar Association.

Sakar argues that our decision in Nook was originally erroneous, and that we should now overrule Nook . We have considered Sakar's arguments, and we remain convinced that Nook is good law.

Sakar argues in the alternative that the Nook decision has been undermined by the testimony given by several witnesses at the evidentiary hearing in Sakar's post-conviction relief action-witnesses who were critical of Sidell's general performance during his tenure as an OPA contract attorney.

But the testimony of these witnesses does not undermine the conclusion that we reached in Nook -the conclusion that, regardless of what might be said about Sidell's performance in general, any individual defendant who asserts a claim of ineffective assistance of counsel against Sidell must show (1) that Sidell's performance in their specific case fell below the minimum standard of competence that we expect of criminal defense attorneys, and (2) that there is a reasonable possibility that this incompetent performance affected the outcome of the defendant's trial.

At oral argument in this case, Sakar's appellate attorney conceded that the record of Sakar's trial does not reveal any obvious attorney error. We therefore reject Sakar's claim that he is entitled to reversal of his convictions simply because he was represented by Sidell.

In his brief to this Court, Sakar raises one more claim: he contends that Sidell was incompetent for failing to file a pre-trial motion under a local Bethel court rule that allowed expansion of the geographic jury selection area up the Kuskokwim River to the Athabascan villages situated upriver from Bethel, if one of those Athabascan villages is the site of the crime.

This issue was not raised in the trial court, and the current record contains no inquiry or findings regarding the reasons why Sidell did not pursue the suggested motion. Accordingly, this claim cannot be raised on direct appeal. Rather, it must be raised in a petition for post-conviction relief.

Because Sakar's case became final for purposes of retroactivity analysis years before Blakely was decided, Blakely's holding does not apply to Sakar's case

In June 2004, almost four years after the superior court entered judgement against Sakar, the United States Supreme Court decided Blakely v. Washington . Blakely announced a new interpretation of the Sixth Amendment right to jury trial-enlarging that right so that it applies to certain sentencing proceedings. Under Blakely , if the State proposes an aggravating factor that will expand the court's sentencing authority beyond the maximum sentence that would otherwise apply, and if that aggravating factor rests on facts other than the defendant's prior convictions, the defendant is entitled to have a jury decide the aggravating factor, and the defendant is entitled to demand that the government prove the aggravator beyond a reasonable doubt.

However, this rule applies only to cases that were tried after Blakely was announced or that were pending on direct review at the time Blakely was announced.

Sakar was sentenced in August 2000, well before the Blakely decision was announced. However, Sakar argues that, because he was granted the right to pursue the present late appeal, his conviction retroactively became (and currently remains) non-final-thus entitling him to the benefit of the holding in Blakely .

There are few cases that address this issue, but those cases reject Sakar's position. For instance, in Gutermuth v. State , the Indiana Supreme Court ruled that a defendant who was allowed to file a late appeal was nevertheless subject to the law that would have governed the defendant's appeal if it had been timely filed. The Indiana Supreme Court reasoned:

Belated appeals are filed by defendants who have been diligent in requesting permission to file belated notices of appeal and have no fault in failing to file a timely notice of appeal. If they have been found faultless and diligent, they should not be penalized for filing a belated appeal. But they also should not be rewarded for their delay.

The Sixth Circuit reached the same conclusion in Wheeler v. Jones . The defendant in Wheeler filed a federal petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, arguing (among other things) that the jury instructions at his trial in state court contained an improper presumption that violated his right to due process under Sandstrom v. Montana .

Wheeler was convicted before Sandstrom was decided, and Wheeler did not originally appeal his conviction-thus allowing the conviction to become final. But after Sandstrom was decided, the Michigan Supreme Court granted Wheeler leave to file a late appeal (an appeal that was ultimately denied in state court).

In his federal habeas petition, Wheeler made the same argument that Sakar makes here: the claim that, because he was granted the right to pursue a late appeal, his conviction should no longer be considered final, and thus he should be able to claim the benefit of any intervening developments in the law.

The Sixth Circuit rejected this argument, holding that even though Wheeler's right of appeal was revived as a result of his successful collateral attack on his conviction, Wheeler's revived appeal was not the exact equivalent of a timely direct appeal, at least for retroactivity purposes. Instead, the court held that Wheeler's revived appeal should be viewed (for retroactivity purposes) as a continuation of his collateral attack on his judgement. Thus, despite Wheeler's new opportunity to pursue an appeal, Wheeler's criminal judgement still became final (and remained final) for retroactivity purposes when Wheeler's original time for filing an appeal expired.

The court noted that if Wheeler's position were adopted, "state court judgments would never attain finality because they would always be subject to reconsideration on a motion for a delayed appeal."

Sakar does not cite any contrary authority. Instead, he argues that the relevant question is whether, if Sidell had filed the appeal he promised, Sakar's appellate attorney might have been alerted to a potential Blakely claim at some point before Sakar's hypothetical appeal was resolved .

Sakar notes that Blakely 's precursor, Apprendi v. New Jersey , was decided on June 26, 2000, shortly before the superior court distributed Sakar's judgement. Sakar argues that, if Sidell had filed an appeal, Sakar's appellate counsel might have read Apprendi while the appeal was pending, and might have realized that the holding in Apprendi could potentially be expanded to give defendants the right to jury trial on aggravating factors-as the Supreme Court held four years later in Blakely .

Sakar further speculates that, if a timely appeal had been filed in his case, there is even a possibility that this appeal would still have been pending four years later when Blakely was decided. Sakar suggests that it might have taken this Court two or three years to decide his appeal, and then the Alaska Supreme Court might have taken another several months to decide his petition for hearing. Sakar also points out that either this Court or the supreme court might have remanded his case to the superior court for further proceedings-thus keeping his conviction from becoming final for an even greater amount of time.

Finally, Sakar suggests that his appellate counsel might have been following developments in the criminal law, that his counsel might have learned when the petition for certiorari in Blakely was first filed (in May 2003), and that his counsel might have then asked this Court or the Alaska Supreme Court to stay his case pending the United States Supreme Court's resolution of Blakely .

Sakar's arguments hinge on speculation and hypothetical possibilities. Having considered those arguments, we agree with the decisions reached in Gutermuth and Wheeler : Even when a defendant pursues post-conviction relief and obtains the right to file a late appeal, the defendant's conviction should still be considered "final" for retroactivity purposes when the defendant's original time for filing an appeal expired.

Thus, if a later appellate decision effects a change in the law, and if that change is only applicable to cases that were on direct appeal when that decision was issued, the pertinent question is whether the defendant's original time for filing an appeal had expired when the new decision was issued. This rule of retroactivity is not altered by the fact that the defendant later pursues a collateral attack and is granted the remedy of pursuing a late appeal.

Accordingly, we conclude that Sakar is not entitled to retroactive application of Blakely .

Conclusion

We AFFIRM the judgement of the superior court.

      See Nook v. State , 251 P.3d 358, 359 (Alaska App. 2011).

      251 P.3d 358 (Alaska App. 2011).

      542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

      State v. Smart , 202 P.3d 1130, 1135 (Alaska 2009).

      Nook , 251 P.3d at 362.

      Ibid.

      Ibid.

      See Burton v. State , 180 P.3d 964, 968-69 (Alaska App. 2008) ; Sharp v. State , 837 P.2d 718, 722 (Alaska App. 1992) ; Barry v. State , 675 P.2d 1292, 1295-96 (Alaska App. 1984).

      542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

      Blakely , 542 U.S. at 303-04, 124 S.Ct. at 2537-38.

      State v. Smart , 202 P.3d 1130, 1147 (Alaska 2009) ; Haag v. State , 117 P.3d 775, 783 (Alaska App. 2005).

      868 N.E.2d 427 (Ind. 2007).

      Gutermuth , 868 N.E.2d at 433.

      Id. , 868 N.E.2d at 434 (citations omitted).

      226 F.3d 656 (6th Cir. 2000).

      Sandstrom v. Montana , 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).

      Wheeler , 226 F.3d at 658.

      Id. at 659.

      Id. at 659-660.

      Ibid .

      Id. at 660.

      530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).


author: JUSTICE LOPEZ, opinion of the Court:

text:
    STATE of Arizona, Appellee, v. Chalice Renee ZEITNER, Appellant.
    No. CR-18-0076-PR
    Supreme Court of Arizona.
    Filed March 18, 2019
    Mark Brnovich, Arizona Attorney General, Dominic Draye, Solicitor General, Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section, Michael T. O'Toole (argued), Assistant Attorney General, Phoenix, Attorneys for State of Arizona
    James J. Haas, Maricopa County Public Defender, Mikel Steinfeld (argued), Deputy Public Defender, Phoenix, Attorneys for Chalice Renee Zeitner
    Randy McDonald, Perkins Coie, LLP, Phoenix, Attorneys for Amicus Curiae Arizona Attorneys for Criminal Justice
    JUSTICE LOPEZ authored the opinion of the Court, in which CHIEF JUSTICE BALES, VICE CHIEF JUSTICE BRUTINEL, and JUSTICES PELANDER (Retired), TIMMER, and BOLICK, and JUDGE BREARCLIFFE joined.

      Justice Andrew W. Gould has recused himself from this case. Pursuant to article 6, section 3 of the Arizona Constitution, the Honorable Sean E. Brearcliffe, Judge of the Arizona Court of Appeals, Division Two, was designated to sit in this matter.

   JUSTICE LOPEZ, opinion of the Court:

¶1 The issue in this case is whether the Arizona Health Care Cost Containment System ("AHCCCS") statutory scheme, A.R.S. §§ 36-2901 to -2999.57, abrogates, or creates an exception to, Arizona's statutory physician-patient privilege, A.R.S. § 13-4062(4), in cases of suspected AHCCCS fraud. We hold that it does in two ways. First, the Arizona legislature's grant of broad authority to AHCCCS to investigate suspected fraud necessarily implies an exception to the privilege for internal AHCCCS investigations and proceedings. And, second, the AHCCCS statutes implicitly abrogate the privilege in the criminal investigation and prosecution of suspected AHCCCS fraud because the disclosure requirements in the AHCCCS statutes and the legislature's clear intent to support criminal prosecution of AHCCCS fraud preclude harmonizing the physician-patient privilege with the AHCCCS statutes.

I.

¶2 Chalice Zeitner visited a Phoenix obstetrician for an abortion in early March 2010, claiming she had discovered she was pregnant after recently undergoing extensive radiation and chemotherapy treatments for cancer. The obstetrician referred her to a specialist, whom Zeitner told she had been diagnosed with a malignant uterine tumor and was undergoing chemotherapy. In late March 2010, Zeitner successfully applied for AHCCCS benefits, stating on her application that she had a serious chronic illness and her pregnancy was high-risk and life-threatening.

¶3 On March 31, the obstetrician received an email seemingly following up on a procedure the obstetrician had proposed to Zeitner. The email, signed by "Al Zeitner," emphasized the urgency of the procedure, claiming Zeitner would resume cancer treatments on April 9 and needed to have her tumor removed within four weeks. A few days later, Zeitner provided the obstetrician a letter purportedly written by a doctor at the out-of-state hospital Zeitner claimed had treated her for cancer. The letter recommended that Zeitner "receive an urgent [abortion] ... to relieve third term life-threatening certainties to the patient." The obstetrician, relying on this information, concluded that an abortion was necessary to protect Zeitner's health. Based on his opinion, AHCCCS authorized payment for the procedure, and the obstetrician performed the abortion on April 9.

¶4 While performing a caesarean section on Zeitner for another pregnancy nearly a year later, the obstetrician found no physical evidence to support Zeitner's previous claims of uterine cancer. Upon further investigation, he discovered the letter delivered by Zeitner in early April was not authored by the doctor whose name appeared on the letter. The obstetrician reported his suspicions about Zeitner to her health plan, which forwarded the matter to AHCCCS for investigation.

¶5 A grand jury eventually indicted Zeitner on eleven counts, including charges for defrauding AHCCCS, which generally does not cover abortions except when necessary to save a woman's life or to protect a woman's health. See A.R.S. § 35-196.02(A)-(B). The State alleged that Zeitner lied about having cancer so her abortion would fall within the exception to that rule. The State also alleged Zeitner committed identity theft and forgery by impersonating a doctor recommending that she receive her abortion. Zeitner pleaded not guilty to every charge and moved to preclude all information her physicians obtained from her, including records of her communications with the physicians and their examinations of her, arguing they were protected under Arizona's physician-patient privilege. The State opposed the motions, arguing the privilege was abrogated by statute, and the trial court denied the motions before trial. After an eleven-day trial, in which the court admitted Zeitner's medical records and allowed her physicians to testify, the jury convicted Zeitner on all charges.

¶6 Zeitner's sole argument on appeal was that the superior court erred by admitting her medical records and allowing her physicians to testify against her. The court of appeals affirmed, holding that the AHCCCS statutes abrogated "the [physician-patient] privilege ... in cases of suspected AHCCCS fraud."

State v. Zeitner , 244 Ariz. 217, 219 ¶ 1, 224 ¶ 28, 418 P.3d 990, 992, 997 (App. 2018). The court reasoned that while no common-law exception to the physician-patient privilege applies in Arizona, the legislature has created exceptions to the privilege. Id. at 222 ¶ 22, 418 P.3d at 995. The court noted that the AHCCCS statutes require health-care providers to report suspected fraud to AHCCCS, A.R.S. § 36-2918.01(A), and to turn over patient records to fraud investigators, A.R.S. § 36-2903(I). Id. at 222-23 ¶ 23, 418 P.3d at 995-96. Therefore, the court concluded, the AHCCCS statutes "abrogate the privilege by implication when fraud is suspected by imposing disclosure obligations on physicians that are entirely inconsistent with the privilege." Id. at 223 ¶ 24, 418 P.3d at 996.

¶7 We granted review because whether the AHCCCS statutory scheme abrogates Arizona's physician-patient privilege presents an issue of statewide importance. We have jurisdiction under article 6, section 5(3) of the Arizona Constitution.

II.

¶8 We review issues of statutory interpretation de novo. In re Estate of Wyatt , 235 Ariz. 138, 139 ¶ 5, 329 P.3d 1040, 1041 (2014). We likewise review de novo whether and to what extent a privilege applies. Twin City Fire Ins. Co. v. Burke , 204 Ariz. 251, 253-54 ¶ 10, 63 P.3d 282, 284-85 (2003).

¶9 In 1965, Congress established the federal Medicaid program to provide medical care to qualified low-income individuals. See 42 U.S.C. §§ 1396 to 1396w-5. States may voluntarily participate in the program and acquire federal funding by developing a medical-assistance plan, but state plans must satisfy the requirements established by the federal statutory scheme and accompanying administrative regulations. See id. § 1396a; 42 C.F.R. §§ 431.1 to 431.1010. A state's failure to comply with an approved Medicaid plan may result in a loss of federal funding. See 45 C.F.R. § 201.6(a). Arizona's AHCCCS program administers this state's Medicaid plan. See Sw. Fiduciary, Inc. v. Ariz. Health Care Cost Containment Sys. Admin. , 226 Ariz. 404, 406 ¶ 8, 249 P.3d 1104, 1106 (App. 2011).

¶10 Federal law, both by statute and regulation, requires state Medicaid plans to include specific procedures to ensure disclosure of patient records during fraud investigations. Pursuant to 42 U.S.C. § 1396a(27), a state plan must provide for agreements with service providers to keep records of services provided and to furnish those records to the state Medicaid agency upon request. Although a state plan must provide safeguards "that restrict the use or disclosure of information concerning applicants and beneficiaries" to specific purposes, 42 C.F.R. § 431.301, those purposes include "[c]onducting or assisting an investigation, prosecution, or civil or criminal proceeding related to the administration of the plan," 42 C.F.R. § 431.302(d).

¶11 Federal law also requires state Medicaid agencies to support independent prosecutorial entities in their investigation and prosecution of fraud. Under 42 U.S.C. § 1396a(61), states must operate fraud control units, independent of their Medicaid agencies, to prosecute fraud. See also 42 U.S.C. § 1396b(q) (establishing the requirements and duties of states' fraud control units regarding fraud prosecutions). Furthermore, state Medicaid agencies must conduct internal investigations of any report of fraud, 42 C.F.R. § 455.14, and must refer suspected provider or beneficiary fraud to the state's fraud control unit or "appropriate law enforcement agency," respectively, 42 C.F.R. § 455.15. A state's fraud control unit must have "[a]ccess to ... any records or information kept by the agency or its contractors ... [or] by providers to which the agency is authorized access." 42 C.F.R. § 455.21(a)(2)(i), (iii). It must also "make available to [f]ederal investigators or prosecutors all information in its possession concerning fraud in the provision or administration of medical assistance under the [s]tate plan." 42 C.F.R. § 1007.11(e).

¶12 As evinced by these federal laws, the disclosure of patient information relevant to a law enforcement investigation and prosecution of fraud against a state's Medicaid agency is closely tied to the administration of a state's plan. See generally In re Grand Jury Investigation , 441 A.2d 525, 531 (R.I. 1982)

("The federal policy requiring disclosure of patient records for fraud investigations is very necessary to the continued viability of the Medicaid program.").

¶13 Arizona statutes and AHCCCS rules have implemented the same investigation and disclosure requirements mandated by federal law. Section 36-2903(H)"require[s] as a condition of a contract with any contractor that all records relating to contract compliance are available for inspection by [AHCCCS]." AHCCCS must "prescribe by rule the types of information that are confidential and circumstances under which such information may be used or released, including requirements for physician-patient confidentiality." § 36-2903(I). In compliance with this provision, AHCCCS provides that it "may release safeguarded information without the [beneficiary's] written or verbal consent, for the purpose of conducting or assisting an investigation, prosecution, or criminal or civil proceeding related to the administration of the AHCCCS program." Ariz. Admin. Code R9-22-512(A)(2).

¶14 Internally, AHCCCS must investigate every report of suspected fraud, § 36-2918.01(A), and it has broad authority to subpoena any witness or record necessary to support that investigation, A.R.S. § 36-2918(G). If the results of the investigation cause the AHCCCS director or the director's designee to believe that fraud has occurred, AHCCCS must refer the matter to the attorney general. § 36-2918.01(A).

¶15 Within the Attorney General's Office, Arizona has established the Medicaid Fraud Control Unit ("MFCU"), which is responsible for investigating and criminally prosecuting Medicaid provider fraud. See Dep't of Health and Human Servs., Office of Inspector Gen., OEI-07-15-00280, Arizona State Medicaid Fraud Control Unit: 2015 Onsite Review 1, 3-4 (2015) ("2015 Onsight Review "). If the MFCU requests a beneficiary's medical record during its investigation of suspected fraud, AHCCCS must release the record without the beneficiary's consent, "[n]otwithstanding any law to the contrary." § 36-2903(I).

¶16 Zeitner argues that the sole purpose of any release or disclosure to the attorney general is intended to further "an internal process for evaluating claims of fraud so that administrative [rather than criminal] measures can be taken." We disagree. Instead, we are persuaded by the court of appeals' conclusion that the legislature intended claims of fraud to be referred from AHCCCS to the attorney general for independent investigation and criminal prosecution. See Zeitner , 244 Ariz. at 223 ¶ 25, 418 P.3d at 996. The legislature has granted AHCCCS broad independent authority to pursue administrative and civil penalties against beneficiaries and providers engaged in fraud against AHCCCS without the attorney general's involvement. See A.R.S. §§ 36-2905.04(D), (G) and -2918(B)-(C), (F). More importantly, AHCCCS must provide medical records to the MFCU without a beneficiary's consent in cases of suspected fraud, § 36-2903(I), and the MFCU prosecutes only criminal Medicaid fraud cases, not civil cases, see 2015 Onsite Review 4. Although Arizona's MFCU prosecutes only provider fraud, the AHCCCS statutes provide that, "[i]n addition to the requirements in state law, the [M]edicaid fraud and abuse controls that are enacted under federal law apply to all persons eligible for the system." § 36-2905.04(C) (emphasis added). Thus, any disclosure requirements contemplated by the federal Medicaid scheme to control fraud, including those involving beneficiaries, are expressly adopted by the state Medicaid scheme.

¶17 For these reasons, we conclude that both the federal and state Medicaid schemes contemplate and require the disclosure of confidential patient information to assist in the criminal prosecution of providers and beneficiaries who engage in fraud against the Medicaid system. We next examine whether, despite these federal and state statutory and regulatory disclosure mandates, the physician-patient privilege prohibits such disclosure of confidential patient information.

III.

¶18 Arizona's physician-patient privilege statute, applicable in criminal cases, prohibits the examination of "[a] physician or surgeon, without consent of the physician's or surgeon's patient, as to any information acquired in attending the patient which was necessary to enable the physician or surgeon to prescribe or act for the patient." § 13-4062(4). We have held that the privilege protects "[a]ll information obtained by the physician, whether from examination, testing, or direct communication," State v. Mincey , 141 Ariz. 425, 439, 687 P.2d 1180, 1194 (1984), and, although framed as a testimonial privilege, the privilege also protects patient medical records, see Tucson Med. Ctr., Inc. v. Misevch , 113 Ariz. 34, 37, 545 P.2d 958, 961 (1976) (citing Tucson Med. Ctr. Inc. v. Rowles , 21 Ariz. App. 424, 520 P.2d 518 (1974) ).

¶19 "The primary purpose of the physician[-]patient privilege is to protect communications made by a patient to his or her physician for the purpose of treatment." Mincey , 141 Ariz. at 439, 687 P.2d at 1194 (citing State v. Santeyan , 136 Ariz. 108, 110, 664 P.2d 652, 654 (1983) ). The privilege is also intended "to [e]nsure that [a] patient will receive the best medical treatment by encouraging full and frank disclosure of medical history and symptoms by a patient to his doctor." Lewin v. Jackson , 108 Ariz. 27, 31, 492 P.2d 406, 410 (1972). That purpose is served by "protect[ing] information obtained in the physician-patient relationship from disclosure to third parties." Samaritan Health Servs. v. City of Glendale , 148 Ariz. 394, 397, 714 P.2d 887, 890 (App. 1986).

¶20 But the physician-patient privilege is not absolute, and the legislature has imposed limitations when "the public good requires [the privilege to] give way to serve a greater good." See Martin v. Reinstein , 195 Ariz. 293, 320 ¶ 96, 987 P.2d 779, 806 (App. 1999) ; see also State v. Wilson , 200 Ariz. 390, 394-95 ¶ 11, 26 P.3d 1161, 1165-66 (App. 2001). In many instances, the legislature has created express exceptions to the privilege within the language of the applicable statutes. See, e.g. , A.R.S. § 46-453(A) ("[T]he physician-patient privilege ... shall not pertain in any civil or criminal litigation in which a vulnerable adult's exploitation, abuse or neglect is an issue ...."); A.R.S. § 23-908(D) ("[I]nformation obtained by any physician or surgeon examining or treating an injured person shall not be considered a privileged communication ....").

¶21 In other instances, the legislature has created exceptions by merely mandating disclosure of information otherwise protected by the physician-patient privilege. See, e.g. , A.R.S. § 13-3806(A) (requiring physicians to disclose to law enforcement wounds which may have resulted from illegal activity); A.R.S. § 36-621 (requiring physicians to disclose to the health department evidence of contagious or infectious diseases). Collectively, "[t]hese [exceptions] indicate that the legislature has found certain societal interests sufficiently important to override the state's general interest in protecting confidential patient information from disclosure to third parties." Samaritan , 148 Ariz. at 397, 714 P.2d at 890 ; see also Johnson v. O'Connor , 235 Ariz. 85, 92 ¶ 29, 327 P.3d 218, 225 (App. 2014) ("The public policy of apprehending and prosecuting criminals often trumps the policy of the privilege.") (citing A.R.S. §§ 13-3620(A) and -3620(K)(1)); State ex rel. Udall v. Superior Court , 183 Ariz. 462, 463, 466, 904 P.2d 1286, 1287, 1289 (App. 1995) (holding that the physician-patient privilege did not shield the medical records of a mother charged with murdering her infant); Benton v. Superior Court , 182 Ariz. 466, 468, 897 P.2d 1352, 1354 (App. 1994) ("[T]he public's interest in protecting victims outweighs the privacy interest reflected in the physician-patient privilege.").

¶22 Although we acknowledge that abrogation by implication "is generally disfavored," we have concluded that "it is required when conflicting statutes cannot be harmonized to give each effect and meaning." Cave Creek Unified School Dist. v. Ducey , 233 Ariz. 1, 7 ¶ 24, 308 P.3d 1152, 1158 (2013) (citing UNUM Life Ins. Co. of Am. v. Craig , 200 Ariz. 327, 333 ¶¶ 28-29, 26 P.3d 510, 516 (2001) ; Ariz. State Tax Comm'n v. Reiser , 109 Ariz. 473, 479, 512 P.2d 16, 22 (1973) ). Here, even absent an express exception, the statutory scheme reflects the legislature's intent to exempt AHCCCS from the comprehensive constraints imposed by the physician-patient privilege. Based on its purpose and scope, the privilege would generally prohibit the type of disclosures required by the AHCCCS statutes (i.e., disclosure of confidential patient information to a third party).

Nevertheless, physicians providing AHCCCS services must report "any cases of suspected fraud," and AHCCCS must investigate these reports. § 36-2918.01(A). In conducting its investigations, AHCCCS may subpoena and "examine any person under oath" and "compel the production of any record ... necessary to support an investigation." § 36-2918(G). We cannot infer that the legislature, in granting such broad investigatory authority, intended the privilege to stand as a bulwark against AHCCCS fraud investigations. Accordingly, considering the nature of legislative exceptions to the privilege and the purposes those exceptions serve-the prosecution of crime or the protection of a "greater good"-we conclude that the provisions expressly granting AHCCCS the authority to compel disclosure of patient information to investigate reports of fraud- §§ 36-2903 and -2918(G)-create an exception to the privilege for internal AHCCCS investigations and proceedings.

¶23 We likewise conclude that the MFCU possesses authority to compel disclosure of patient information to investigate and prosecute fraud. It is illogical to believe that the legislature intended AHCCCS to withhold information relevant to a criminal investigation and prosecution of fraud after expressly mandating that all matters of suspected fraud be referred to the attorney general. See § 36-2918.01(A). The critical issue in a Medicaid beneficiary fraud case is whether the beneficiary lied to her physician to obtain AHCCCS coverage. This is particularly true, as here, where the beneficiary's fraud is designed to obtain AHCCCS coverage for services not generally covered by the program. We fail to see how the attorney general can fulfill his duty-and the legislature's intent-to prosecute beneficiary fraud, or how a jury can determine whether the beneficiary committed fraud against AHCCCS, without having access to the beneficiary's and physician's relevant communications. It is the very information contained within these communications that forms the foundation of the fraud charges. Because the physician-patient privilege would prohibit the same disclosures that the AHCCCS statutes require, we conclude that the privilege cannot be harmonized with the AHCCCS statutes "to give each effect and meaning." See Cave Creek , 233 Ariz. at 7 ¶ 24, 308 P.3d at 1158. Accordingly, we also hold that the AHCCCS statutes implicitly abrogate the privilege in the attorney general's investigation and prosecution of suspected AHCCCS fraud.

¶24 Zeitner contends that, even if the statutory scheme abrogates the physician-patient privilege as to AHCCCS, patient information disclosed to the attorney general (through the MFCU) remains subject to its protections. We are unpersuaded. In addition to lacking statutory support, this contention does nothing to advance the purpose of the privilege. After AHCCCS begins its internal investigation of fraud, the protective curtain of confidentiality-intended to promote full and frank disclosures between a patient and her physician-is already stripped away. And even if such an interpretation did somehow advance the privilege's purpose, the state and public's legitimate and substantial interests in deterring and prosecuting fraud and preserving the state's federal Medicaid funding carry the day over the patient's residual privacy interests. See generally Benton , 182 Ariz. at 468, 897 P.2d at 1354 (holding that in instances where a victim invokes the privilege to protect her abuser, "the public's interest in protecting victims outweighs the privacy interest reflected in the physician-patient privilege").

¶25 Zeitner next argues that § 36-2903(I) distinguishes between the "use" and "release" of privileged information and only provides for the "release" of such information, thereby prohibiting the attorney general from introducing the privileged information at trial. We disagree. The basic statutory premise of Zeitner's argument is flawed. Section 36-2903(I), which contains the distinguishing language between use and release, requires the AHCCCS director to create rules governing the use or release of confidential information, which unquestionably includes information generally protected by the physician-patient privilege. These rules, however, govern only the actions of the agency and those who contract to provide services for the agency. See Ariz. Admin. Code R9-22-512(A) (limiting the release of safeguarded information by "[t]he Administration, contractors, providers, and noncontracting providers"). Consequently, after AHCCCS refers a matter to the attorney general for prosecution of beneficiary fraud, the agency's rules no longer apply, and the distinction between use and release is immaterial.

¶26 Furthermore, interpreting the AHCCCS statutory scheme as precluding the use of the very information that the statutes require to be released to support the investigation and prosecution of fraud would generate an absurd result. See, e.g. , State ex rel. Montgomery v. Harris , 237 Ariz. 98, 101 ¶ 13, 346 P.3d 984, 987 (2014) (noting that "[s]tatutes should be construed sensibly to avoid reaching an absurd conclusion"). Zeitner's position is untenable because it would defeat the purpose of those statutes and regulations which contemplate disclosure and prosecution-to deter and punish AHCCCS fraud by providers and beneficiaries.

¶27 Zeitner further argues that, even if the privilege is abrogated, it is only abrogated to the extent expressly contemplated by the AHCCCS statutes-the release or disclosure of patient medical records, not physician testimony. This argument, too, is unavailing. We agree with the court of appeals that "[i]t would serve little purpose, and would make little sense, for a patient to retain the power to prevent her physician from testifying when the physician can be legally compelled to release the patient's medical records." Zeitner , 244 Ariz. at 224 ¶ 26, 418 P.3d at 996-97. Arizona courts have expanded the physician-patient privilege beyond its original testimonial protections to include patients' medical records because "the privilege ... would be rendered meaningless if it were destroyed the moment that a physician transcribed communications from a patient or knowledge he has obtained from his examination of a patient into hospital records." Rowles , 21 Ariz. App. at 427, 520 P.2d 518. Applying that same reasoning in reverse, protecting the physician's testimony after compelling disclosure of a patient's medical records would not advance the privilege-the curtain of confidentiality has already been pulled aside. Thus, the only purpose served by restricting disclosure to medical records would be to impede the attorney general in his investigation and prosecution of AHCCCS fraud, a result wholly inconsistent with the AHCCCS statutory fraud control scheme.

IV.

¶28 The comprehensive fraud control measures embodied in the federal and state Medicaid schemes, including sweeping patient record disclosure requirements, make clear that the physician-patient privilege must yield to the State's interest in combatting fraud where providers and beneficiaries are suspected of AHCCCS fraud. The legislature's express provisions in the AHCCCS statutes granting AHCCCS broad authority to investigate matters of suspected fraud- §§ 36-2903 and -2918(G)-necessarily imply an exception to the privilege for AHCCCS investigations and proceedings. These same provisions also exhibit an intent to provide law enforcement access to patient information when investigating and prosecuting AHCCCS fraud, thereby implicitly abrogating the privilege in the attorney general's investigation and prosecution of suspected provider and beneficiary AHCCCS fraud.

¶29 Accordingly, we affirm the court of appeals' opinion and affirm Zeitner's convictions and resulting sentences.


author: CAMPBELL, Judge:

text:
    ROHAN MANAGEMENT, INC., an Arizona Corporation; Rohan Management, Inc. Defined Pension Plan; Rohan Management, Inc. 401 (K) Plan; Pishit Patel and Jinty Peng, Husband and Wife, Petitioners, v. The Honorable Lee JANTZEN, Judge of the Superior Court of the State of Arizona, IN AND FOR the COUNTY OF MOHAVE, Respondent Judge,
    Nilay S. Patel, an Individual; Mayank S. Patel, an Individual, Real Parties in Interest.
    No. 1 CA-SA 18-0231
    Court of Appeals of Arizona, Division 1.
    FILED January 22, 2019
    Quarles & Brady LLP, Phoenix, By John A. Harris, Brian Sirower, Michael S. Catlett, Benjamin C. Nielsen, Counsel for Petitioners
    Clark Hill PLC, Scottsdale, By Darrell E. Davis, Sean M. Carroll, Ryan J. Lorenz, Counsel for Real Parties in Interest
    Presiding Judge Jennifer B. Campbell delivered the opinion of the Court, in which Judge Paul J. McMurdie and Judge Kent E. Cattani joined.
   CAMPBELL, Judge:

¶1 The question addressed in this special action is whether Arizona Revised Statutes ("A.R.S.") section 29-785(A) mandates that an action for the involuntary judicial dissolution of a limited liability company be brought in the county in which the LLC's known place of business is located. We accept special-action jurisdiction and grant relief, holding that the statute does not limit venue to the county which contains an LLC's known place of business.

BACKGROUND

¶2 This case arises from a conflict over various business and financial matters among a group of siblings and their families involving jointly owned and managed companies and properties. Pishit Patel ("Petitioner") filed suit against members of his family, including Nilay Patel and Mayank Patel ("Respondents"), and various other entities in the Maricopa County Superior Court. In his second amended complaint, Petitioner alleged, in relevant part, that Respondents misused operating funds from Sammy's Island, LLC-a business he formed to operate a mobile home and RV park. Petitioner's complaint asked the court to determine the ownership interests of Sammy's Island and to appoint a receiver, and included claims for an accounting, breach of contract, fraudulent nondisclosure, breach of fiduciary duty, civil conspiracy, conversion, civil racketeering, and unjust enrichment.

¶3 Respondents denied all of Petitioner's claims and filed counterclaims. They alleged that, together, they owned 50 percent of the membership interests in Sammy's Island, while Petitioner effectively owned the other 50 percent. Respondents' counterclaims included breach of contract, conversion, defamation, false light, breach of fiduciary duty, and breach of the duty of good faith and fair dealing.

¶4 The same day Respondents filed their answer and counterclaims in Maricopa County, they also filed a complaint against Petitioner in the Mohave County Superior Court. Their complaint included claims for breach of contract, accounting, conversion and aiding and abetting, injunctive and declaratory relief, and for the judicial dissolution of Sammy's Island under A.R.S. § 29-785, again alleging that Respondents together had a 50 percent ownership interest in Sammy's Island and that Petitioner's actions had made it impossible to continue operating the company.

¶5 Petitioner filed a motion for abatement in Mohave County, arguing that substantially identical claims were already pending in Maricopa County. In their response, Respondents argued that pursuant to A.R.S. § 29-785, Mohave County was the "exclusive" forum with "subject matter jurisdiction" to resolve the judicial dissolution and related claims. The Mohave County Superior Court denied Petitioner's motion for abatement, ruling that the statute does not allow for "concurrent jurisdiction [between counties] in the dissolution claim." Petitioner then filed a petition for special action with this court.

¶6 After the petition for special action, response, and reply were filed, Respondents filed a notice to supplement the record to inform this court they were voluntarily dismissing their counterclaims relating to Sammy's Island in the Maricopa County action. They argued this voluntary dismissal of certain claims meant there were "no longer any claims related to Sammy's Island ... remaining in the Maricopa County [a]ction," rendering moot the issue before us.

DISCUSSION

¶7 Petitioner argues the Mohave County Superior Court erred by ruling that A.R.S. § 29-785(A) does not allow for "concurrent jurisdiction in the judicial dissolution claim." The Mohave County Superior Court ruled that regardless of whether the Mohave claims were sufficiently identical to the Maricopa claims to warrant abatement, the statute does not permit the judicial dissolution claim to be raised anywhere else but Mohave County. We agree with Petitioner that the superior court erred.

¶8 Because the question raised by this special action-whether the statute mandates the exclusive forum in which an action for the involuntary judicial dissolution of an LLC may be raised-is a purely legal question and a matter of first impression, we accept special action jurisdiction. See Glenn H. v. Hoskins , 244 Ariz. 404, 407, ¶ 7, 419 P.3d 567, 570 (App. 2018) ("This Court has discretion to accept special action jurisdiction and appropriately exercises that discretion in cases 'involving a matter of first impression, statewide significance, or pure questions of law.' " (quoting State ex rel. Pennartz v. Olcavage , 200 Ariz. 582, 585, ¶ 8, 30 P.3d 649, 652 (App. 2001) ) ). We defer to findings of fact made by the superior court, W. Valley View, Inc. v. Maricopa Cty. Sheriff's Office , 216 Ariz. 225, 227, ¶ 7, 165 P.3d 203, 205 (App. 2007), but review pure questions of law-including statutory interpretation-de novo, Robson Ranch Mountains, LLC v. Pinal County , 203 Ariz. 120, 125, ¶ 13, 51 P.3d 342, 347 (App. 2002). We also review de novo mixed questions of fact and law. Id.

¶9 First, we address Respondents' contention that their notice to supplement the record before us renders this issue moot. See, e.g. , Lord v. City of Tucson , 10 Ariz. App. 54, 55, 455 P.2d 1004 (1969) ("A question is moot when any action the court may take will have no effect on the parties to the action."). The dismissal of Respondents' counterclaims concerning Sammy's Island in Maricopa County did nothing to alter the LLC's status as a party and as the subject of many of Petitioner's claims in the Maricopa County action. Therefore, whether Petitioner's Maricopa County claims and Respondents' Mohave County judicial-dissolution claims are substantially identical remains squarely at issue.

¶10 Next, we turn to the interpretation of A.R.S. § 29-785(A), which states: "On application by or for a member, the superior court in the county in which the known place of business of the limited liability company is located may decree dissolution of a limited liability company" if the court makes certain findings. The Mohave County Superior Court erred in ruling that this statute does not allow for "concurrent jurisdiction in the judicial dissolution claim." Instead, the statute merely provides a preferred venue for such claims.

¶11 Pursuant to Article 6, Section 13 of the Arizona Constitution, "the superior courts constitute a single court composed of all the judges in every county." Sil-Flo Corp. v. Bowen , 98 Ariz. 77, 82, 402 P.2d 22 (1965). The superior courts are a unified trial court of general jurisdiction, Marvin Johnson, P.C. v. Myers , 184 Ariz. 98, 102, 907 P.2d 67, 71 (1995), with jurisdiction conferred by the state constitution and statutes, Schoenberger v. Bd. of Adjustment of City of Phx. , 124 Ariz. 528, 530, 606 P.2d 18, 20 (1980) ; see also A.R.S. § 12-123(A) ("The superior court shall have original and concurrent jurisdiction as conferred by the constitution...."). "Jurisdiction is the power to decide a case on its merits whereas venue relates to the place where the suit may be heard." Sil-Flo Corp ., 98 Ariz. at 83, 402 P.2d 22. Venue, however, "is a privilege which permits one in whose favor it runs to have a case tried at a convenient place[;] it is personal and unless asserted may be waived." Id. "If an action is not brought in the proper county, the court shall nevertheless have jurisdiction and may hear and determine the action unless the defendant" requests a transfer to the proper county. A.R.S. § 12-404(A).

¶12 "To determine a statute's meaning, we look first to its text." State v. Burbey, 243 Ariz. 145, 147, ¶ 7, 403 P.3d 145, 147 (2017). "When the text is clear and unambiguous, we apply the plain meaning and our inquiry ends." Id. Conspicuously absent from A.R.S. § 29-785(A) is any language mandating that "only" or "exclusively" the superior court in the county in which the known place of business of the LLC is located may decree dissolution because that county alone has subject-matter jurisdiction. Rather, the statute prescribes the proper venue for the judicial dissolution of the LLC but does not foreclose raising such a claim elsewhere. See Mohave County v. James R. Brathovde Family Tr. , 187 Ariz. 318, 324, 928 P.2d 1247, 1253 (App. 1996) (holding that a statute providing for tax lien foreclosure actions to be brought in the county where real property is located merely reiterated proper venue and did not specify mandatory initial venue).

¶13 "Although convenience to the defendant is ... the first consideration in establishing venue, venue may be changed when necessary" to secure to parties fair and impartial trials of causes, to promote the convenience of witnesses and the ends of justice, or for other good and sufficient cause, to be determined by the court. Yarbrough v. Montoya-Paez , 214 Ariz. 1, 3, ¶ 4, 147 P.3d 755, 757 (App. 2006) ; A.R.S. § 12-406(B)(1)-(3). The Mohave County Superior Court therefore erred in ruling that it alone had the power to decide Respondents' action for the judicial dissolution of Sammy's Island, and in ruling that this was a reason to deny Petitioner's motion for abatement. Abatement is appropriate when "the pendency of a prior action between the same parties for the same cause in a state court of competent jurisdiction gives grounds for the abatement of a subsequent action either in the same court or in another court of the state having like jurisdiction." Allen v. Super. Ct. of Maricopa Cty. , 86 Ariz. 205, 209, 344 P.2d 163 (1959). "[T]he true test for determining whether parties and causes of action are the same for purposes of abatement, by reason of pendency of a prior action, ordinarily is, whether the two actions present a substantial identity as to parties, subject matter, issues involved, and relief demanded." Id.

¶14 In explaining its ruling on the Petitioner's motion for abatement, the Mohave County Superior Court found that "the parties are the same" in the Mohave and Maricopa County actions, but the record is unclear on whether the court found the remainder of the Allen test satisfied. Because we conclude that A.R.S. § 29-785(A) is a venue statute and does not create any bar to abatement, we remand for such a determination.

CONCLUSION

¶15 For the foregoing reasons, we vacate the Mohave County Superior Court's denial of Petitioner's motion for abatement and remand for a ruling in accordance with this opinion.