THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

(Not for Publication — Rule 28, Arizona Rules of Civil Appellate Procedure)

MEMORANDUM DECISION

NORRIS, Judge.

¶1 This appeal arises out of efforts made by Appellee, the Roosevelt Elementary School District ("District"), to accept Appellant Cathleen Olson's "resignation" as its Grants Management and Budget Compliance Supervisor.1 In granting summary judgment in the District's favor, the superior court accepted its arguments Olson had resigned and the District had accepted her "resignation," and as relevant here, rejected Olson's open meeting law and breach of contract claims. Based on our review of the record, the superior court properly dismissed Olson's open meeting law claim, but should not have dismissed her breach of contract claim because issues of material fact regarding her alleged "resignation" precluded summary judgment. Thus, we affirm in part, reverse in part, and remand with instructions.

FACTS AND PROCEDURAL BACKGROUND

¶2 Upset over a matter involving another District employee, on July 17, 2008, Olsen sent an e-mail ("July e-mail") to the District's superintendent, Mark Dowling, Ph.D., which stated in part: "Please consider this my letter of resignation." According to Olson's deposition testimony, shortly after sending the July e-mail, her supervisor, Sonny Ashegbeyeri, Ph.D., told her she could not resign and "refus[ed] to accept [her] resignation." After further discussion, Olson told Dr. Ashegbeyeri she "would return to [work]" after taking a scheduled vacation and would then discuss with him the situation involving the other employee. After she returned to work, however, she was unable to speak with Dr. Ashegbeyeri because he had become gravely ill and subsequently went into a coma before passing away. Olson, however, continued working for the District for two additional months, until September 22, 2008.

¶3 On that day, Mary Beyda, the Interim Associate Superintendent, and Mark Widmann, the Executive Director of Human Resources, informed Olson the District had placed her on administrative leave, pending an investigation into her handling of audit questions raised by the Arizona Department of Education ("ADE") concerning the District's spending of federal grant money. The next day, the Board met in a regular session and accepted Olson's "resignation" — as allegedly tendered in the July e-mail.

DISCUSSION2

¶4 On appeal, Olson first argues the District violated the open meeting law because it did not post a public notice reflecting it would discuss Olson's "resignation." Ariz. Rev. Stat. ("A.R.S.") § 38-431.01 (2011) ("[a]ll legal action of public bodies shall occur during a public meeting"); A.R.S. § 38-431.02 (2011) ("[p]ublic notice of all meetings of public bodies shall be given"; "meetings shall not be held without at least twenty-four hours' notice"). We disagree.

¶5 The Board posted notice of a meeting scheduled on September 23, 2008, but the posted agenda did not list Olson's resignation. The Board amended the agenda to list Olson's resignation, however, and re-posted it 24 hours before the meeting, thus complying with the notice requirements of the open meeting law. A.R.S. §§ 38-431.01 to -.02. The District did not, therefore, as a matter of law, violate the open meeting law.

¶6 Further, under the open meeting law, Olson was not, as a matter of law, entitled to personal notice of the Board meeting, as she suggests on appeal. Nothing in the open meeting law requires personal notice of a public board meeting. A.R.S. § 38-431.01(A) ("[a]ll meetings of any public body shall be public meetings and all persons so desiring shall be permitted to attend and listen to the deliberations and proceedings") (emphasis added). Although a board must give personal notice to an affected employee when it intends to discuss employment matters in an executive session, that section is inapplicable here because the Board did not consider Olson's "resignation" in an executive session, and indeed, did not even meet in an executive session on September 23. A.R.S. § 38-431.03(A)(1) (2011) (board may hold executive session to discuss employment issues, but affected employee "may demand that the discussion .. . occur at a public meeting"; "public body shall provide" the affected employee "written notice of the executive session").

¶7 Although the superior court properly granted summary judgment for the District on Olson's open meeting claim, it should not have done so on her breach of contract claim. Factual issues regarding her alleged "resignation" precluded summary judgment.

¶8 As discussed, Olson testified Dr. Ashegbeyeri "refus[ed] to accept [her] resignation." Based on this evidence, a reasonable jury could conclude Olson had attempted to tender her resignation, but had essentially withdrawn it when Dr. Ashegbeyeri refused to accept it. Comerica Bank v. Mahmoodi, 224 Ariz. 289, 292, ¶ 19, 229 P.3d 1031, 1034 (App. 2010) (court must view evidence in light most favorable to non-moving party and draw all reasonable inferences in its favor); Nat'l Bank of Ariz. v. Thruston, 218 Ariz. 112, 115, ¶ 15, 180 P.3d 977, 980 (App. 2008) (for summary judgment, movant has burden to persuade court there is no material fact for a reasonable fact finder to find) (citation omitted).

¶9 The District alternatively argues that even if summary judgment was improper on the resignation issue, it nevertheless was entitled to summary judgment as a matter of law because after it accepted her "resignation" it discovered evidence of performance failures that would have caused it to terminate her employment. O'Day v. McDonnell Douglas Helicopter Co., 191 Ariz. 535, 539, ¶ 17, 959 P.2d 792, 796 (1998) ("after-acquired evidence of employee misconduct is a defense to a breach of contract action . . . if the employer can demonstrate that it would have fired the employee had it known of the misconduct").

¶10 According to the District, this after-acquired evidence consisted of, first, her "failure to properly respond to ADE" ("alleged ADE failure") and, second, other performance failures that included improper budgeting and reporting failures ("other alleged performance failures"). The District described these performance failures in the following terms, according to the almost identical affidavits of Mary Beyda and Dr. Mark Dowling:

Neither the alleged ADE failure nor the alleged performance failures, however, entitled the District to summary judgment based on the after-acquired evidence defense.

¶11 First, under this defense, the after-acquired evidence must constitute employee misconduct. Id. at 538-39, ¶¶ 13-15, 959 P.2d at 795-96. Here, Beyda and Dr. Dowling did not allege Olson's alleged performance failures constituted employee misconduct. Second, the District may have known of Olson's alleged ADE failure before it accepted her "resignation" because it had placed her on administrative leave for that same "failure." See supra ¶ 3; O'Day, 191 Ariz. at 539, ¶ 16, 959 P.2d at 796 ("if the employee can demonstrate that the employer knew of the misconduct and chose to ignore it, then he will defeat the employer's attempted use of the after-acquired evidence and defense of legal excuse").

¶12 Third, the record does not reflect when — before or after it accepted her "resignation" — the District discovered Olson's other alleged performance failures. As discussed, if it knew of these alleged performance failures and chose to ignore them before it accepted Olson's "resignation," then it may not rely on these alleged failures as a defense to Olson's breach of contract claim. Accordingly, we reject the District's alternative argument it was entitled to summary judgment based on the after-acquired evidence defense. On remand, the District may raise this defense as appropriate in defending against Olson's breach of contract claim.

CONCLUSION

¶13 For the foregoing reasons, we affirm the superior court's grant of summary judgment to the District on Olson's open meeting law claim, but reverse and remand on Olson's breach of contract claim. On remand, Olson may pursue that and only that claim. As the prevailing party on appeal, we award Olson her costs on appeal pursuant to A.R.S. § 12-341 (2003), contingent upon her compliance with Rule 21 of the Arizona Rules of Civil Appellate Procedure. Both parties have requested attorneys' fees on appeal under A.R.S. § 12-341.01 (Supp. 2012). Because neither party has prevailed on the merits of the contract claim, we deny their requests without prejudice. The superior court may reconsider their competing requests for fees on appeal after determining a prevailing party.3

MICHAEL J. BROWN, Judge, JOHN C. GEMMILL, Judge, concurring.