Opinion
1 CA-CV 22-0079
08-31-2023
JACK SEBALLOS, Plaintiff/Appellant, v. FREEPORT-MCMORAN, INC., et al., Defendants/Appellees.
Montoya, Lucero & Pastor, P.A., Phoenix By Stephen G. Montoya Counsel for Plaintiff/Appellant Fennemore Craig, P.C., Phoenix By Jessica L. Post, Travis A. Pacheco Counsel for Defendants/Appellees
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CV2019-006503 The Honorable Sally Schneider Duncan, Judge (Retired)
Montoya, Lucero & Pastor, P.A., Phoenix By Stephen G. Montoya Counsel for Plaintiff/Appellant
Fennemore Craig, P.C., Phoenix By Jessica L. Post, Travis A. Pacheco Counsel for Defendants/Appellees
Judge Michael J. Brown delivered the decision of the Court, in which Presiding Judge Jennifer M. Perkins and Judge James B. Morse Jr. joined.
MEMORANDUM DECISION
BROWN, JUDGE
¶1 Jack Seballos ("Seballos") appeals the superior court's grant of summary judgment on his employment retaliation claim. For the following reasons, we affirm in part, vacate in part, and remand for further proceedings.
BACKGROUND
¶2 Freeport-McMoRan Inc., along with Freeport-McMoRan Copper &Gold Energy Services, LLC, own and operate a copper mine in the company town of Morenci, Arizona. The Morenci Water and Electric Company ("MWE") provides water and electrical services to residents of Morenci and the nearby town of Clifton. We refer to the two Freeport entities and MWE collectively as Defendants.
¶3 Defendants hired Seballos as a line electrician in May 2015.
The parties dispute whether Seballos was employed by a Freeport entity or MWE, but Defendants have "agreed not to challenge" whether these entities are "actually joint employers" for purposes of this litigation.
After seven months, Seballos was promoted to an electrical supervisor position by his upper management, Ruel Rogers ("Rogers") and Roy Archer ("Archer"). Rogers and Archer had asked Seballos to apply for the position, noting that he had the "intestinal fortitude to take on all the different personalities" and that they were dissatisfied with the electrical crew's work performance and productivity. They instructed him to be authoritative with the crew and increase the crew's productivity. Seballos struggled, however, to supervise two of the crew members because they did not like the changes he implemented in response to Rogers' and Archer's instructions. But Seballos still received positive performance evaluations for his work with the electrical crew during his time as a supervisor.
¶4 Several weeks after Seballos received an overall positive evaluation in February 2018 for the prior year's work, a co-worker complained about Seballos, alleging he treated other employees poorly and focused on production over safety. Defendants investigated the complaint and conducted interviews with several MWE employees, which led to Seballos's termination in April 2018. The stated reasons for termination included being disrespectful to employees he directly supervised, retaliating against an employee who reported concerns about Seballos to human resources, and putting production over safety.
¶5 Seballos sued Defendants in April 2019. After Defendants moved to dismiss, Seballos filed an amended complaint. Asserting retaliatory termination under the Arizona Employment Protection Act ("AEPA"), Seballos alleged that while he worked as a MWE supervisor, he complained to upper management about dangerous conditions caused by the company's practices and was later terminated for these disclosures. Seballos requested compensatory and punitive damages for the alleged retaliation.
¶6 Defendants moved for summary judgment, arguing Seballos could not establish a prima facie case of retaliatory discharge because he did not engage in protected activity under the AEPA. They also requested summary judgment on Seballos's claim for punitive damages. Seballos countered that the AEPA does not require an employee to disclose a specific constitutional or statutory violation, and his complaints sufficiently informed Defendants he was reporting violations of Arizona law.
¶7 The superior court granted Defendants' motion, explaining that even assuming Seballos's disclosures to Defendants qualified as a "protected activity" under the AEPA, he did not prove causation. The court also reasoned that Defendants proffered a non-retaliatory reason for his termination from employment, and Seballos could not prove pretext. The court did not address punitive damages, but implicitly denied the request by granting Defendants' motion for summary judgment on all claims. After the court entered a final judgment, Seballos timely appealed. We have jurisdiction under A.R.S. § 12-120.21(A)(1).
DISCUSSION
¶8 We review de novo the grant of summary judgment. Cohen v. Maricopa Cnty., 228 Ariz. 53, 55, ¶ 12 (App. 2011). Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Ariz. R. Civ. P. 56(a). We view the evidence in the light most favorable to the party opposing summary judgment, construing all reasonable inferences in his favor. Cohen, 228 Ariz. at 55, ¶ 12. We will affirm the superior court's decision if it is correct for any reason supported by the record. City of Phoenix v. Geyler, 144 Ariz. 323, 330 (1985).
I. Seballos's Disclosures
¶9 The AEPA authorizes a cause of action against an employer if the employee was terminated in retaliation for:
The disclosure by the employee in a reasonable manner that the employee has information or a reasonable belief that the employer, or an employee of the employer, has violated, is violating or will violate the Constitution of Arizona or the statutes of this state to either the employer or a representative of the employer who the employee reasonably believes is in a managerial or supervisory position and has the authority to investigate the information provided by the employee and to take action to prevent further violations of the Constitution of Arizona or statutes of this state....A.R.S. § 23-1501(A)(3)(c)(ii) (emphasis added). "Statutory interpretation requires us to determine the meaning of the words the legislature chose to use." S. Ariz. Home Builders Ass'n. v. Town of Marana, 254 Ariz. 281, 286, ¶ 31 (2023). "We do so neither narrowly nor liberally, but rather according to the plain meaning of the words in their broader statutory context, unless the legislature directs us to do otherwise." Id.
¶10 To prove retaliation under § 23-1501(A)(3)(c)(ii), a plaintiff must show he has disclosed, based on information or a reasonable belief, that the employer has, is, or will violate the Arizona Constitution or an Arizona statute. "The language chosen by our legislature is unequivocal." Galati v. Am. W. Airlines, Inc., 205 Ariz. 290, 293, ¶ 9 (App. 2003). The plaintiff must also prove the disclosure was made in a reasonable manner. A.R.S. § 23-1501(A)(3)(c)(ii). Thus, to withstand summary judgment for at least one of his disclosures, Seballos had to show that a genuine dispute of material fact exists as to each statutory component. Ariz. R. Civ. P. 56(a).
¶11 Seballos argues he was terminated for complaining about the following conditions, which he reasonably believed were violations of "Arizona law": (1) Defendants' disposal of power poles into a landfill, (2) the lack of berms or other containment fixtures on Defendants' electrical transformers, (3) problems with Defendants' electrical grid, and (4) Defendants' provision of unsafe drinking water to Morenci and Clifton residents. We consider each of Seballos's disclosures to determine whether he provided evidence showing that he disclosed any violations of an Arizona constitutional or statutory provision. See A.R.S. § 23- 1501(A)(3)(c)(ii).
A. Disposal of Power Poles
¶12 In late 2016, Seballos learned that old power poles-which Defendants had always taken to a site in the mine dumping area-"were now starting" to be taken to the Greenlee County landfill. He asked the director of environmental safety: "Why are we doing that? I thought these poles were going and staying on site, because these are old poles." Seballos then said that because there was tar, oil, and creosote on the poles, he did not "feel comfortable taking them to the landfill." In response, the director said, "Well, we can have them tested." A third party, with Seballos observing, conducted the testing. When the third party drilled into the center of the pole, Seballos asked him to drill on the sides of the pole "where it's saturating on the ground where we pull the pole." But the third party explained, "That's not the way we do the test. We're seeing if it . . . saturates . . . into the pole." Seballos explained that he asked the director "to check and see if it was legal for us to dispose of these poles in the landfill, but "they never got back to me."
¶13 In his amended complaint, Seballos alleged that because these power poles had been treated with toxic chemicals, they constituted "hazardous waste" under A.R.S. § 49-921(5) and thus could only be disposed of at a hazardous waste facility under A.R.S. § 49-925. Defendants argue that Seballos did not engage in protected activity because he never reported to his supervisors that "MWE was violating Arizona law." Seballos counters that the AEPA protects all employees, "not just employees who are able to cite specific provisions of the Arizona Constitution or a particular state statute or regulation." He contends that the statute contemplates protection for an employee who witnesses a violation and reports it. Otherwise, the AEPA would only protect people familiar with the law.
¶14 Seballos is correct that nothing in § 23-1501(A)(3)(c)(ii) requires an employee to identify to an employer a specific constitutional provision or statute at the time of the disclosure. But the information an employee discloses must convey to the employer conduct that violates a state constitutional or statutory law in enough detail to alert the employer of the perceived statutory or constitutional violation. See id. And at the time of disclosure, the employee must have information or a reasonable belief that law was violated. See id. These requirements ensure that the employer will then have the opportunity "to investigate the information provided by the employee and to take action to prevent further violations . . . ." A.R.S. § 23-1501(A)(3)(c)(ii); see Czarny v. Hyatt Residential Mktg. Corp., No. 1 CA-CV 16-0577, 2018 WL 1190051, at *4, ¶ 22 (Ariz. App. Mar. 8, 2018) (mem. decision) (finding that a plaintiff's "statement that he preferred making sales as a 'clean deal' . . . did not specify or imply a statutory or constitutional violation . . . that would give rise to a claim of retaliation under § 23-1501(A)(3)(c)(ii)").
¶15 Seballos's concern about Defendants' disposal of retired electrical poles in the landfill does not create triable issues of fact on whether he met § 23-1501(A)(3)(c)(ii)'s requirements because he failed to disclose any unlawful conduct. He did not specify or imply a violation of an Arizona constitutional or statutory provision, nor could Defendants reasonably infer such a violation based on his general questions and statements about whether it was appropriate to take the poles to the landfill. See Czarny, at *4, ¶ 22. Seballos's statement that he "did not feel comfortable" about the disposal does not show he was disclosing a statutory or constitutional violation. Nor does questioning the testing process or asking his supervisor to "check and see" if taking the poles to the landfill was legal. Cf. Khalaf v. Ford Motor Co., 973 F.3d 469, 489 (6th Cir. 2020) (holding that a plaintiff must take an "overt stand against suspected illegal discriminatory activity" to demonstrate a qualifying "protected activity" under Title VII's retaliation provision, rather than simply a "vague charge of discrimination").
¶16 Although Seballos probed the third-party's testing method and testified that no one informed him of the test results, he does not argue that he asked for the test results, which presumably would have dispelled or confirmed his suspicions about taking the poles to the landfill. Nor does Seballos dispute Defendants' evidence that the "retired poles are tested for contaminants to assure compliance with all regulatory standards before being disposed of at the . . . landfill." The questions and statements Seballos made about taking the electric poles to the landfill for disposal do not constitute a disclosure under § 23-1501(A)(3)(c)(ii) sufficient to create a genuine dispute of material fact on the first prong of a retaliation claim. See A.R.S. § 23-1501(A)(3)(c)(ii) (employee must disclose in a reasonable manner the perceived violation to allow the employer to investigate and take corrective action); Murar v. AutoNation Inc., CV-19-05793-PHX-MTL, 2021 WL 3912849, at *6 (D. Ariz. 2021) ("It is not enough for an employee to report general concerns over the employer's actions.... Instead, an employee must call out the action's illegality.").
B. Transformers
¶17 In mid-2017, Seballos expressed concern that oil from Defendants' transformers could leak into the ground and pollute the groundwater because the transformers did not have berms to catch any oil spillage. He testified in his deposition that the lack of berms violated the Occupational Safety and Health Administration ("OSHA") standards.
¶18 Arizona has incorporated OSHA by reference. See A.R.S. § 23-401 et seq. But Seballos has not identified any specific provision under OSHA that regulates leaking oil from transformers. He has therefore waived and abandoned any claim that Defendants retaliated against him relating to leaking transformers. See Trantor v. Fredrikson, 179 Ariz. 299, 300-01 (1994) (noting that a party waives any argument not properly presented in the trial court); State v. Carver, 160 Ariz. 167, 175 (1989) ("Failure to argue a claim usually constitutes abandonment and waiver of that claim.").
C. Dilapidated Electrical Grid
¶19 During his employment, Seballos repeatedly complained about Defendants' electrical grid. For example, after becoming a supervisor, he informed Rogers that the distribution system was dilapidated and failing. Seballos told his supervisors they were violating the National Electric Safety Code ("NESC").
¶20 The NESC establishes national guidelines for the electric industry. See Yampa Valley Elec. Ass'n, Inc. v. Telecky, 862 P.2d 252, 254 n.1 (Colo. 1993). The Arizona Corporation Commission has adopted the NESC through its regulations. See Mason v. Ariz. Pub. Serv. Co., 127 Ariz. 546, 549 (App. 1980) (stating the Arizona Public Service Company must comply with the NESC "by regulation of the Corporation Commission"); Salt River Valley Water Users' Ass'n v. Compton, 39 Ariz. 491, 496 (1932) (noting that the Corporation Commission "has adopted . . . the National Electric Safety Code, published by the Federal Bureau of Standards"). Thus, even though Seballos apparently made complaints about Defendants' electrical grid throughout his employment, his disclosures on that topic do not fall under § 23-1501(A)(3)(c)(ii)'s scope because he has neither alleged nor established that he disclosed an Arizona constitutional or statutory violation.
D. Unsafe Drinking Water
¶21 In 2017, Seballos expressed his concerns about unsafe drinking water to Defendants twice following waterline breaks. The first time, Seballos was concerned that the drinking water in Morenci was brown. He asked Archer whether they should distribute bottled water to the Morenci residents. When Archer told him not to worry because Defendants were "still in compliance," Seballos responded: "Would you drink that water? I'm not going to drink that. Why would you expect people to drink that water, or how could you be in compliance?"
¶22 About three months later, Seballos was worried about the drinking water in Clifton because it was cloudy. Defendants' water supervisor also expressed concern and showed Seballos and Archer a bottle of white water, which "looked like lotion." When Seballos again recommended distributing water to residents, Archer was upset and told him to "stick . . . to electric. You don't know the water side." Seballos responded, "That looks like just pure chlorine.... You can't expect the people to drink that."
¶23 Defendants argue that Seballos's statements are too vague to qualify as protected activity. They contend he did not have a reasonable, good-faith belief Defendants were violating state law because their water is regularly tested, and Seballos was simply offering his uninformed opinion.
¶24 Whether Seballos's disclosure violated a statutory provision under the AEPA, however, is a closer question. Defendants argue that Seballos did not reasonably communicate he believed they had violated Arizona statutory law. But in his response to Defendants' motion for summary judgment and on appeal, Seballos argues Defendants were violating Title 18, Chapter 4, of the Arizona Administrative Code ("A.A.C."), which incorporates the standards of the federal Safe Drinking Water Act. See 42 U.S.C. § 300f to -j-27. It would have been better if Seballos had asserted the violation of a specific Arizona statute, but Defendants have waived any challenge to Seballos's reliance on the A.A.C. because they do not address it on appeal. See Schabel v. Deer Valley Unified Sch. Dist. No. 97, 186 Ariz. 161, 167 (App. 1996) ("Issues not clearly raised and argued in a party's appellate brief are waived.").
¶25 Even without waiver, Seballos's reference to Title 18, Chapter 4 of the A.A.C. raises a triable issue of fact on whether he had "information or a reasonable belief" of a statutory violation because it is enforceable by statute and incorporates related statutes. See, e.g., A.R.S. § 49-202(A) (designating the department of environmental quality as the state agency "for all purposes of . . . the safe drinking water act" and authorizing the department to "take all actions necessary to administer and enforce" the federal act); A.A.C. R18-4-201 ("A water supplier who constructs, operates, or maintains a public water system contrary to the provisions of this Chapter . . . is subject to the actions provided in A.R.S. §§ 49-142 and 49-354."); A.A.C. R18-4-101 ("This Chapter is created under the authority of A.R.S. Title 49, Chapter 2, Article 9 ....").
¶26 Viewing the record and reasonable inferences therefrom in favor of Seballos, for purposes of overcoming summary judgment he has satisfied § 23-1501(A)(3)(c)(ii)'s requirement that the employee disclose a statutory or constitutional violation. See Orme Sch. v. Reeves, 166 Ariz. 301, 309-10 (1990) (noting that in considering motions for summary judgment, any justifiable inference must be drawn in the non-movant's favor).
II. Causation
¶27 Under § 23-1501(A)(3)(c)(ii), a plaintiff must also prove he was terminated because of his disclosure of an Arizona statutory or constitutional violation. See Baron v. HonorHealth, No. 1 CA-CV 19-0391, 2020 WL 5638539, at *2, ¶ 12 (Ariz. App. Sept. 20, 2022) (mem. decision).
¶28 Defendants argue Seballos failed to prove he was fired due to his disclosures because those who made the termination decision were unaware of Seballos's complaints. Defendants also argue the termination recommendation came from the human resources manager rather than Archer. Defendants further contend their uncontradicted evidence shows none of the people involved in the termination decision discussed Seballos's alleged complaints at any time when deciding how to proceed with the disciplinary action against him.
¶29 But those facts do not mean Defendants are entitled to judgment as a matter of law on causation. Seballos testified in his deposition that he complained to Archer twice about Defendants' distribution of unsafe water. Archer was directly involved in the decision to terminate Seballos; in fact, Defendants acknowledge he authored Seballos's termination letter and Archer was part of the team who informed Seballos of the termination decision. Thus, no matter who initiated his termination, Seballos has presented sufficient evidence to create genuine issues of material facts on whether he was terminated because of his disclosures about the drinking water quality.
¶30 Defendants also contend that to the extent Archer was aware of Seballos's water-related complaints, they were so remote in time that causation cannot be inferred. To support this argument, Defendants cite cases holding that temporal proximity is not enough to establish causation. See, e.g., Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002); Kipp v. Mo. Highway &Transp. Comm'n, 280 F.3d 893, 897 (8th Cir. 2002); Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997). But unlike Seballos, the plaintiffs in those cases tried to establish causation solely based on when they were fired. See id. Seballos is not asserting that causation is established because he was fired shortly after his complaints, so these cases do not help Defendants' position. Even so, under these circumstances no bright-line rule governs remoteness; it is a question for the trier of fact.
¶31 Defendants argue Seballos cannot prevail on his claim because he has admitted the "real" reason for his termination was his recommendation that two employees be terminated for hitting a gas line while digging. Thus, Defendants contend "the fact [that] even Seballos claims his termination was motivated by something other than protected activity . . . means he cannot prevail on his claim." For support, Defendants rely on Czarny, which held that an employee must show retaliation was "a substantial (even if not the sole) motivating factor." 2018 WL 1190051, at *3, ¶ 17. But the deposition testimony Defendants rely on for this assertion reveals that Seballos believed this was part of the reason he was terminated, not that it was the "real" reason. Because retaliation need not be the sole motivating factor, Seballos's belief that this incident also played a role does not defeat his claim that he was terminated in retaliation. See id.
III. Legitimate Non-Discriminatory Reason and Pretext
¶32 In Czarny, this court applied the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), burden-shifting framework to claims under the AEPA. 2018 WL 1190051, at *2, ¶ 13. Under this framework, once a plaintiff proves his prima facie case, the burden shifts to the employer to demonstrate a legitimate reason for the plaintiff's termination. See id. at *2, ¶ 12. If the employer does so, the burden shifts back to the plaintiff to show the employer's proffered reason is pretextual. See id. Although this framework is not found in § 23-1501(A)(3)(c)(ii), because the parties both assert the framework applies, we will address it.
¶33 Defendants provided a legitimate reason for Seballos's termination because their decision to fire him was based on an employee's complaint about Seballos and Defendants' subsequent investigation. See Czarny, 2018 WL 1190051, at *2, ¶ 12. The burden then shifts to Seballos to show the reason was pretextual.
¶34 Defendants argue Seballos has not met his burden of showing pretext because he failed to provide specific and substantial evidence refuting Defendants' legitimate reason for termination. According to Defendants, the record refutes Seballos's claims that he was never told he was being disrespectful to others or had communication problems, and the undisputed evidence shows Defendants discovered he put production over safety because of their investigation. Further, they argue Seballos's evidence is speculative and circumstantial, and he cannot rely on his termination alone to prove Defendants' retaliatory motive.
¶35 But whether Seballos was told he was being disrespectful and had communication problems should be resolved by a jury. Seballos provided evidence refuting Defendants' claims that he was disrespectful. For example, only two of the employees he supervised claimed they had issues with him. These are the same two employees Seballos had trouble supervising because of the problems Archer and Rogers warned him about, such as their unproductive workdays. The record also supports a reasonable inference of Defendants' improper motive by pointing out he was promoted to make an unproductive crew more efficient and fired when two of these same crew members complained about him.
¶36 Seballos also provided evidence showing Defendants' reasons for termination were pretextual by pointing to his positive performance evaluations. Although Defendants argue he was fired for being disrespectful, Seballos's 2017 evaluation was positive overall. For example, it stated that he "is starting to find a good balance between keeping [his crew] involved and motivated while giving them the credit they deserve[,]" and that he is "part of a team that works very well together." The evaluation also reflected that he takes safety seriously, given that he received the highest possible score in the "safety" category of the evaluation and "led [his] crew to their third consecutive six-month safety bonus."
¶37 Defendants also contend that Seballos's comparison to another supervisor who was treated more leniently is meritless. They argue that the circumstances of each investigation are unique, and this situation is not comparable because the other supervisor took accountability for his actions while Seballos did not. In Czarny, however, we explained that an employee did not controvert the employer's legitimate reason for terminating him, in part because "he did not show that [the employer] treated other similarly situated employees differently." 2018 WL 1190051, at *4, ¶ 23. Here, Seballos has provided evidence showing Defendants treated another supervisor differently, even though that supervisor had acted inappropriately. Although Seballos was terminated for his alleged conduct, he provided evidence showing another supervisor also interacted with his subordinates inappropriately but was only given a warning. Moreover, Seballos disagreed with the grounds for termination, asserting he was never informed he was being disrespectful until he was fired.
¶38 Construing the facts and reasonable inferences in the light most favorable to Seballos, genuine issues of material fact exist on whether Defendants' reasons for terminating Seballos were pretextual. See Cohen, 228 Ariz. at 55, ¶ 12.
IV. Punitive Damages
¶39 Seballos argues his claim for punitive damages must proceed to trial. He contends the facts show that Defendants falsely accused him of misconduct because they intended to ignore their public safety obligations, and his complaints about public endangerment impeded Defendants' "way of doing business."
¶40 " In appropriate circumstances, punitive damages may be recovered in an action for wrongful discharge in violation of public policy ...." Thompson v. Better-Bilt Aluminum Prods. Co., Inc., 171 Ariz. 550, 555-56 (1992). To obtain punitive damages, Seballos must prove that Defendants' "evil hand was guided by an evil mind." Rawlings v. Apodaca, 151 Ariz. 149, 162 (1986). An evil mind can be found where (1) "defendant intended to injure the plaintiff[,]" or (2) "although not intending to cause injury, defendant consciously pursued a course of conduct knowing that it created a substantial risk of significant harm to others." Id. "While the necessary 'evil mind' may be inferred, it is still this 'evil mind' in addition to outwardly aggravated, outrageous, malicious, or fraudulent conduct which is required for punitive damages." Thompson, 171 Ariz. at 556 (citation omitted).
¶41 When considering a motion for summary judgment on the issue of punitive damages, a judge should grant the motion "if no reasonable jury could find the requisite evil mind by clear and convincing evidence." Id. at 558. Because "the judge is not a fact finder, the evidence and all reasonable inferences that may be drawn from the evidence should be construed in a light most favorable to the non-moving party." Thompson, 171 Ariz. at 558.
¶42 The superior court granted Defendants' motion for summary judgment on all claims based on Seballos's inability to prove his prima facie case, thereby implicitly denying his claim for punitive damages. On appeal, Defendants contend that Seballos has not produced any evidence that they acted with an evil mind, asserting he failed to support his argument that they ignored legal obligations in protecting public safety.
¶43 Given our conclusion that Seballos has met his burden of establishing a prima facie case of retaliation under the AEPA based on his disclosures about the quality of the drinking water, and genuine issues of material fact exist as to whether his termination was pretextual, we vacate the court's ruling implicitly denying his punitive damages claim. On remand, the court shall consider in the first instance whether, viewing the evidence in the light most favorable to Seballos, a reasonable jury could find Defendants terminated Seballos with the requisite "evil mind" by clear and convincing evidence. We express no opinion on whether summary judgment should be granted on that issue.
CONCLUSION
¶44 Because the superior court erred in granting summary judgment on Seballos's AEPA claim that he disclosed a statutory drinking water violation, we vacate the court's ruling on that disclosure, as well as Seballos's punitive damages claim, and remand for further proceedings consistent with this decision. We affirm the remainder of the court's ruling. Because each party has achieved partial success on appeal, we decline to award taxable costs to either party.