Hart v. Seven Resorts Inc.

Majority - Thompson, Presiding Judge

1. No, Arizona's constitutional right to privacy (Article 2, Section 8) does not establish a public policy that can support a wrongful termination claim against a private employer. The court found that this constitutional provision, like the Fourth Amendment of the U.S. Constitution, was intended as a prohibition on the State and applies only against governmental acts or where state action exists, not against actions of private individuals or entities. The court distinguished cases like In re Rasmussen and Weller v. Arizona Dep’t of Econ. Sec. by emphasizing that those cases involved state action or state benefits, and Weller explicitly warned against extending its reasoning to at-will employment terminations by private employers. The history of Arizona's Article 2, Section 8, derived verbatim from the Washington constitution, shows no similar intent to protect citizens from private actors, unlike California's explicitly amended privacy right. 2. No, an employee handbook containing a clear and conspicuous disclaimer of at-will employment does not modify the at-will relationship into a definite-term contract or create contractual rights regarding drug testing. The Personnel Policy Manual in this case explicitly stated that employment was terminable "with or without cause or advance notice, at any time" and that no one other than the President (under specific written conditions) could alter the at-will nature. Such language prevents the manual from becoming part of an employment contract for a definite term, consistent with Leikvold v. Valley View Community Hosp. Appellants themselves did not claim the manual provided job security or a definite employment term, only that it described drug testing conditions. Without a contract for a definite term, at-will employees cannot sue for breach of contract based on termination. 3. No, Temple Bar's demand for drug testing did not constitute the tort of intrusion upon seclusion. The tort requires an intentional intrusion into a private place or private affairs that would be highly offensive to a reasonable person, such as physical intrusion or covert investigation. The inconveniences described by the appellants, such as disrupted errands or lack of time to dress, do not meet this standard of intrusion into a secluded place or private concerns as defined by Restatement (Second) of Torts § 652B. 4. No, Temple Bar did not place the former employees in a false light because the employees failed to provide evidence of "publicity" by the employer. "Publicity" requires communication to the public at large, or to so many persons that the matter is substantially certain to become public knowledge, by the defendant. The court found that rumors circulating in the community, based solely on the appellants' interrogatory answers, did not meet this standard. Merely firing an employee under circumstances that lead to gossip, without the employer actively communicating the reasons for termination to the public, is insufficient for a false light claim, consistent with Stewart v. Pantry, Inc. and Moore v. Big Picture Co. 5. No, the employees were not falsely imprisoned. False imprisonment requires direct restraint of personal liberty against the person's will, with intent to confine. The appellants admittedly entered the van voluntarily. While consent can be revoked, a mere unexpressed change of mind or subjective feeling of restraint is insufficient; the revocation must be communicated or manifested, and an attempt to leave must be made or actual restraint demonstrated. The threat of job loss is not considered sufficient to negate voluntariness for false imprisonment purposes. Once appellants communicated their refusal to test and asked to be let out at the casino, Tomba complied. Their unexpressed revocation of consent prior to this communication did not convert them into unwilling passengers.