NOT FOR PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

MEMORANDUM DECISION

OROZCO, Judge.

¶1 Dr. Henry Ekweani (Henry) and Ijeamaka Ekweani (the Ekweanis) appeal the superior court's grant of summary judgment to Matheson and Matheson, P.L.C., and David and Michelle Matheson (the Mathesons) on the Ekweanis' claims of professional negligence and legal malpractice. For the following reasons, we reverse the superior court's grant of summary judgment and remand to the superior court for further proceedings consistent with this decision.

FACTS AND PROCEDURAL HISTORY

¶2 Henry is an economist, who worked for a large corporate employer as its senior econometrician using economic modeling to support internal business partners' risk management and product development. The employer terminated Henry in May 2007.

¶3 In March 2008, the Ekweanis hired the Mathesons to prosecute Henry's employment discrimination lawsuit against his former employer. A month later, the Mathesons filed a lawsuit on behalf of the Ekweanis in federal court (the underlying case), claiming failure to promote, disparate treatment, and retaliation, due to Henry's race. In February 2010, the federal court granted the employer's motion for summary judgment on the Ekweanis' retaliation and disparate treatment claims, but denied summary judgment on their failure-to-promote claim. The Ekweanis' failure-to-promote claim, however, was later dismissed on statute of limitations grounds.

¶4 The Ekweanis filed a legal malpractice lawsuit and complained the federal court dismissed their case because in the response to the employer's motion for summary judgment the Mathesons (1) failed to include available, admissible, relevant evidence of pretext; (2) deliberately chose to save critical evidence for trial, and (3) incorrectly admitted to false assertions by the employer.

¶5 To fulfill the requirements of Arizona Revised Statutes (A.R.S.) section 12-2602 (West 2016)1 pertaining to professional malpractice lawsuits, the Ekweanis produced an amended expert witness affidavit (Affidavit), providing a preliminary opinion formulated by retired Arizona Supreme Court Justice Thomas A. Zlaket (Zlaket). In addition to providing an Affidavit, Zlaket testified that Matheson "most likely breached" the standard of care of an ordinary, reasonable, and prudent lawyer by failing "to discover, marshal and use all reasonably available relevant evidence and legal authority to controvert the assertions of a dispositive motion, particularly one for summary judgment." Zlaket also concluded, upon review of the record compiled in the underlying case, that the Mathesons' failures "materially caused" the federal court's grant of summary judgment in favor of Henry's employer. Zlaket further testified that, but for the failure to include or develop materials or testimony described in his Affidavit, "it [was] 51 percent probable that had they been included a reasonable judge would have found it a fact issue" moving the underlying case to trial on the merits.

¶6 The Mathesons filed a motion for summary judgment which was granted. The Ekweanis timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. sections 12-120.21.A.1 and -2101.A.1.

DISCUSSION

¶7 "[S]ummary judgment in favor of either party is appropriate only `if the facts produced in support of the [other party's] claim or defense have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense.'" Andrews v. Blake, 205 Ariz. 236, 240, ¶ 13 (2003) (quoting Orme Sch. v. Reeves, 166 Ariz. 301, 309 (1990); see also Ariz. R. Civ. P. 56(c). "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of the judge, whether he is ruling on a motion for summary judgment or for directed verdict. The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Orme Sch., 166 Ariz. at 309-10 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).

¶8 On appeal from a summary judgment, we view the facts in the light most favorable to the party against whom judgment was granted, Riley, Hoggatt & Suagee, P.C. v. English, 177 Ariz. 10, 12-13 (1993), and "determine de novo whether there are any genuine issues of material fact and whether the court erred in applying the law," L. Harvey Concrete, Inc. v. Agro Constr. & Supply Co., 189 Ariz. 178, 180 (App. 1997). We will affirm the superior court's grant of summary judgment if it is correct for any reason and the decision is supported by any evidence in the record. See City of Tempe v. Outdoor Sys., Inc., 201 Ariz. 106, 111, ¶ 14 (App. 2001).

I. Expert Affidavit Created a Dispute of Material Fact Precluding Summary Judgment in the Legal Malpractice Case

¶9 In a legal malpractice action, "a plaintiff . . . must show the following basic elements: duty, breach of duty [by deviating from the professional standard of care], causation, and damages." Phillips v. Clancy, 152 Ariz. 415, 418 (App. 1986). To prove causation, "[a] necessary part of the legal malpractice plaintiff's burden of proof of proximate cause is to establish that `but for the attorney's negligence, [the plaintiff] would have been successful in the prosecution or defense of the original suit.'" Glaze v. Larsen, 207 Ariz. 26, 29, ¶ 12 (2004) (quoting Phillips, 152 Ariz. at 418).

¶10 A standard of care expert opinion "is generally used to establish the standard of care by which the professional actions of an attorney are measured and to determine whether the attorney deviated from the proper standard." Baird v. Pace, 156 Ariz. 418, 420 (App. 1987); see Riedisser v. Nelson, 111 Ariz. 542, 544 (1975) (providing that expert testimony is required in professional negligence cases, "unless the negligence is so grossly apparent that a lay[person] would have no difficulty in recognizing it"). Further, a standard of care expert affidavit "is adequate as prima facie evidence of that standard and also adequate to create a fact question as to whether [an attorney] deviated from it." Collins v. Miller & Miller, Ltd., 189 Ariz. 387, 394 (App. 1996) (emphasis added).

¶11 The Ekweanis contend that (1) expert testimony is required to describe the appropriate standard of care and to opine whether the attorney's conduct fell below the standard of care; and (2) the Affidavit was sufficient to create a genuine issue of material fact, precluding summary judgment.

¶12 The Mathesons argue that the Ekweanis (1) failed to present sufficient evidence in a response to their motion for summary judgment to create an issue of material fact; (2) must show they would have prevailed in the original action; (3) presented an expert witness affidavit which was inadmissible on a legal issue presented to the superior court; and (4) presented an expert witness affidavit which lacked foundation.

¶13 The Ekweanis produced Zlaket's Affidavit and deposition testimony as evidence of the applicable standard of care for the Mathesons and the Mathesons' failure to meet it. See Collins, 189 Ariz. at 394. In Zlaket's opinion, a reasonably competent and diligent lawyer would have produced all available relevant evidence to defeat the Henry's employer's motion for summary judgment. Zlaket opined that the Mathesons' failures fell below the applicable standard of care. In his Affidavit, Zlaket concluded the Mathesons' failures in the underlying case "materially caused or contributed to the court's decision to grant [the summary judgment]." Moreover, Zlaket testified in a deposition that but for the failure to include or develop materials or testimony described in his Affidavit, "it [was] 51 percent probable that had they been included a reasonable judge would have found it a fact issue," precluding summary judgment. Zlaket's Affidavit was admissible on the issues of standard of care, breach, and causation because Zlaket is an attorney licensed in Arizona and no one argued that he was not qualified to provide such an opinion, see A.R.S. § 12-2602.B.1-4. See also Baird, 156 Ariz. at 420.

¶14 However, the Mathesons argue that Zlaket's expert opinion lacked foundation because it relied on hearsay and future testimony, and not evidence in the record. Zlaket's Affidavit includes examples of evidence the Mathesons failed to submit and/or develop in the underlying case as the "factual basis for each claim" of malpractice, A.R.S. § 12-2602.B.2, and of the "acts, errors, or omissions" Zlaket considered to be a violation of the standard of care, A.R.S. § 12-2602.B.3. Zlaket's Affidavit, thus, provided specific examples of facts, which, if provided in the underlying case, would have, more likely than not, created a genuine issue of material fact precluding summary judgment in the underlying case, rendering the Ekweanis the "prevailing party" in that stage of litigation. Infra ¶18. See Glaze, 207 Ariz. at 29, ¶ 12.

¶15 We conclude that Zlaket's Affidavit created a genuine issue of material fact regarding the Mathesons' adherence to the applicable standard of care sufficient to preclude summary judgment in the legal malpractice case. See Orme Sch., 166 Ariz. at 305. We recognize that a legally-adequate preliminary expert affidavit does not guarantee that a malpractice plaintiff will always survive summary judgment. But here, nothing in the record in the malpractice case undercut the basic premise of the affidavit-that there was evidence available to defendants that they failed to present to forestall summary judgment in the underlying case. Though the parties can legitimately dispute the efficacy of that evidence in the underlying case, that is a matter for trial. Here, the record reveals that the preliminary expert affidavit was grounded in fact and plaintiffs therefore created a genuine dispute of material fact.

II. De Novo Review of Summary Judgment in the Underlying Case

¶16 In granting summary judgment in favor of the Mathesons, the superior court "considered whether the exhibits would have changed the ruling" and decided it would not have. We review de novo the superior court's legal conclusion that "a reasonable judge would have granted the summary judgment [in the underlying case] notwithstanding the omission of other evidence." See L. Harvey Concrete, Inc., 189 Ariz. at 180 (reviewing de novo the existence of a genuine issue of material fact). We do not consider the content of the preliminary expert affidavit in reviewing the granting of summary judgment in the underlying case; we only considered the affidavit to determine whether a genuine issue of material fact exists in the malpractice case. See Hafner v. Beck, 185 Ariz. 389, 393 (App. 1995) (expert opinions cannot determine issues of law).

¶17 The Mathesons argue that they submitted "the best evidence available" to defeat the employer's motion for summary judgment. After the Ekweanis lost on summary judgment, the Mathesons submitted additional evidence attached to a motion for reconsideration. The federal district court, however, did not consider the additional evidence and denied the motion for reconsideration. The U.S. Court of Appeals for the Ninth Circuit subsequently held that the Ekweanis "failed to show manifest error, new facts, or legal authority that could not have been brought to the District Court's attention earlier with reasonable diligence, as required for reconsideration." Ekweani v. Ameriprise Fin., Inc., 444 Fed. Appx. 968 (9th Cir. 2011).

¶18 The Ekweanis argue that in the underlying case, the Mathesons failed to present evidence of pretext and engagement in protected activity, which would have defeated the employer's motion for summary judgment, namely: (1) a comparison of three drafts of a performance warning letter given to Henry on December 8, 2006, which suggest violation of company policy; (2) a sworn testimony from June 2009 of Amy Roeloff, a director of human resources of the employer, that only four employees from Henry's division of approximately fifty employees were ever given a written warning-one female and three black males, including Henry, two of whom were subsequently terminated, one subsequently resigned, and the female continued her employment; (3) a declaration of David Suarez, a co-worker who evaluated Henry as high performing in the year 2005; (4) testimony of Cornell Ray, a black male and Henry's former co-worker, who offered to testify about his inability to receive promotions due to his race and subsequent termination; (5) statements by Weining Mao, Henry's co-worker, praising Henry's presentation; and (6) Henry's sworn declaration.

¶19 "[E]valuating motions for summary judgment in the context of employment discrimination" requires "zealously guarding an employee's right to a full trial, since discrimination claims are frequently difficult to prove without a full airing of the evidence and an opportunity to evaluate the credibility of the witnesses." McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1112 (9th Cir. 2004). "As a result, when a court too readily grants summary judgment, it runs the risk of providing a protective shield for discriminatory behavior that our society has determined must be extirpated." Id. The Arizona Supreme Court further enunciated that "[m]ost Arizona cases have advocated a rather stringent standard for granting summary judgment . . . that summary judgment . . . is not a substitute for a trial and litigants are entitled to the right of trial where there is the slightest doubt as to the facts." Orme Sch., 166 Ariz. at 305 (internal citations and quotations omitted) (emphasis added).

¶20 "The requisite degree of proof necessary to establish a prima facie case for Title VII . . . on summary judgment is minimal and does not even need to rise to the level of a preponderance of the evidence." Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994). Then, burden shifts to the employer "to articulate nondiscriminatory reasons for the allegedly discriminatory conduct." Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). If the employer articulates a facially non-discriminatory reason for its conduct, the burden then shifts back to the plaintiff "to show that the employer's reason was a pretext for discrimination." Id. A plaintiff can demonstrate pretext "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).

A. Disparate Treatment

¶21 Under Title VII of the Civil Rights Act of 1964, as amended, "an individual suffers disparate treatment when he or she is singled out and treated less favorably than others similarly situated on account of race." McGinest, 360 F.3d at 1121 (internal quotation and citation omitted). A plaintiff bears the burden of proving the employer's intent to discriminate, but intent may be inferred from circumstantial evidence. Id. at 1122. "Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence." Id. (quoting Desert Palace Inc. v. Costa, 529 U.S. 90, 100 (2003) (citation omitted)). Federal courts have held that "very little [] evidence is necessary to raise a genuine issue of fact regarding an employer's motive; any indication of discriminatory motive . . . may suffice to raise a question that can only be resolved by a fact-finder." Id. at 1124 (alteration in original) (quoting Schnidrig v. Columbia Machine, Inc., 80 F.3d 1406, 1409 (9th Cir. 1996).

¶22 In their motion for reconsideration, the Ekweanis presented three drafts of a performance warning letter as evidence that Henry's employer may have violated its own policies by failing to give Henry a timely verbal warning. The two earlier drafts stated: "This letter is a follow up to our previous conversation on September 21, 2006, regarding your behavior and performance." After a human resources official questioned adherence to company policy, the warning letter was changed to read: "This letter is a follow up to our previous conversations regarding your performance/behavior, with the last conversation being on September 21, 2006." This evidence implies that employer's conduct may have been pretextual. See Porter v. Cal. Dep't of Corr., 383 F.3d 1018, 1026 (9th Cir. 2004) (opinion amended on other grounds, 419 F.3d 885 (9th Cir. 2005)) (holding that deviations from an employer's regular procedures established pretext).

¶23 The Ekweanis also offered the declaration of David Suarez, a co-worker who evaluated Henry's performance in 2005 and rated him in the "Distinguished Performance" on several of the leadership competencies and "Exceeded Expectations" under effective communication, in contrast to his employer's 2005 evaluation, where Henry was asked to improve his communication skills. A co-worker's assessment of another employee is probative of pretext. E.E.O.C. v. Boeing Co., 577 F.3d 1044, 1051 (9th Cir. 2009). At the time it ruled on the employer's motion for summary judgment, the federal court did not have an opportunity to evaluate Suarez's declaration, because it was not included in the response to the motion for summary judgment in the underlying case. Suarez's declaration controverts the employer's evaluations of Henry's work and communication skills and demonstrates a possible pretextual reason for employer's complaints about Henry's performance, sufficient to survive a motion for summary judgment.

¶24 Additionally, Amy Roelofs testified that only four employees from Henry's division of approximately fifty employees were given a written warning between the end of 2005 and mid-2009, including Henry. Three of these people were black males, all of whom either resigned or were terminated, and the last one was a female, who continued her employment. Because the Ekweanis presented sufficient evidence to allege pretext, the resulting factual dispute should be resolved by a jury. See McGinest, 360 F.3d at 1124.

B. Retaliation

¶25 A prima facie case of retaliation requires proof "that (1) [the plaintiff] was engaging in protected activity, (2) the employer subjected [the plaintiff] to an adverse employment decision, and (3) there was a causal link between the protected activity and the employer's action." Bergene v. Salt River Project Agric. Imp. and Power Dist., 272 F.3d 1136, 1141 (9th Cir. 2001). The Ekweanis contended Henry engaged in protected activity in July 2006, when he complained about "use of subjective and unfair factors in employment decisions" to his supervisor when he was not promoted due to his race. The federal court reasoned that "there is insufficient evidence from which a trier of fact could conclude that [the employer] was aware [Henry] was complaining of unlawful discrimination during the July 2006 meeting."

¶26 In their motion for reconsideration, the Ekweanis presented additional evidence not considered before entry of summary judgment by the federal court, including Henry's sworn declaration, asserting he was referring to race when he complained to his superior in July 2006, in a one-on-one conversation, that he was not promoted to position of a director due to subjective and unfair factors. This declaration, viewed in the light most favorable to the Ekweanis, presents evidence controverting his employer's assertion that it was not put on notice that Henry was complaining about unlawful discrimination in July 2006. See Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982) ("Essential to a causal link is evidence that the employer was aware that the plaintiff had engaged in the protected activity.") (citation omitted). Such evidence was sufficient to create a dispute of material fact in the legal malpractice case.

¶27 Because we concluded that sufficient facts exist to create a genuine issue of material fact, we reverse the superior court's grant of summary judgment in favor of the Mathesons.

CONCLUSION

¶28 For the foregoing reasons, we reverse the superior court's grant of summary judgment to the Mathesons and remand to the superior court for further proceedings consistent with this decision.