NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

TERESA HOEVELER, Plaintiff/Appellant,

v.

ARIZONA ASSOCIATES IN DERMATOLOGY 

& COSMETIC SURGERY LLC, Defendant/Appellee.

No. 1 CA-CV 20-0120 

Appeal from the Superior Court in Yavapai County

No. P1300CV201800921

The Honorable Krista M. Carman, Judge

AFFIRMED

COUNSEL

Horne Slaton, PLLC, Scottsdale

By Thomas C. Horne

Counsel for Plaintiff/Appellant

Gammage & Burnham, PLC, Phoenix

By David A. Selden, Julie A. Pace, Heidi Nunn-Gilman, 

Melissa Posner Jarrett

Counsel for Defendant/Appellee

FILED 1-7-2021
HOEVELER v. AZ DERMATOLOGY

Decision of the Court

2

MEMORANDUM DECISION

Judge David D. Weinzweig delivered the decision of the Court, in which 

Presiding Judge Samuel A. Thumma and Judge D. Steven Williams joined.

W E I N Z W E I G, Judge:

¶1 Teresa Hoeveler appeals the superior court’s grant of 

summary judgment for Arizona Associates in Dermatology & Cosmetic 

Surgery, LLC dba Arizona Dermatology Group (“ADG”). We affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 ADG provides medical, surgical and cosmetic dermatology 

services in Prescott Valley, Prescott and Cottonwood offices. Michael 

Howe and Dr. Ray Johnson co-owned the practice until Dr. Johnson 

acquired the entire business toward the end of April 2018. Hoeveler joined 

ADG as Practice Manager in 2014 and was promoted to Director of 

Operations in 2015, which required her to supervise the front office and 

non-medical staff, manage the business and order supplies. She reported 

to Howe and Johnson. 

¶3 On Wednesday, April 11, 2018, Hoeveler met an ADG 

employee to discuss job performance issues at the Prescott Valley office. 

After the meeting, the employee called Dr. Johnson to complain about 

Hoeveler’s conduct, which she described as abusive and intimidating.

¶4 By that time, Dr. Johnson had received other complaints 

about Hoeveler. Dr. Johnson called Hoeveler at lunchtime “to inform her 

of the transfer [to a business administrator position] and that she would no 

longer be supervising employees,” but her salary would remain 

unchanged. She did not accept or reject the transfer. After the call, 

Hoeveler left work. About 20 minutes later, Hoeveler called Johnson, upset 

and crying. She said, “I can’t accept anything at this time. I think I’m 

having a heart attack.” Hoeveler later explained that she believed she was

terminated, despite Howe and Johnson’s contrary assurances.

¶5 Two days later, on April 13, Hoeveler told Howe she would 

be visiting a doctor after the weekend. She later texted Howe, saying she 

would use paid sick leave and attached a doctor’s note directing her to take 

a week off.
HOEVELER v. AZ DERMATOLOGY

Decision of the Court

3

¶6 Hoeveler emailed Dr. Johnson on April 19. She purported to 

“list” several facts, including that (1) she was “[i]nformed [she was] no 

longer the manager/practice manager,” (2) “[a]ll locks on all three practice 

locations were changed,” (3) “[m]y entire office has been boxed down and 

set by the door,” and (4) “[a]fter an extremely hysterical phone call with 

[Dr.] Johnson[,] he has never reached out to me again [or] inquired about 

my health.”

¶7 Dr. Johnson emailed Hoeveler back on April 23, sharing his 

version and assessment of events:

I spoke with you over the phone on Wednesday, April 11 during 

the lunch hour. I informed you that I was changing your 

position at ADG to business administrator not Director of 

Operations or “office manager.” Your position as business 

administrator would not involve direct supervision of 

employees. We briefly discussed the reasoning for this change. 

I did not terminate your employment with ADG. At that time, 

you acknowledged your understanding of our discussion.

Within 30 minutes you called me back and said that you were 

not accepting any changed position with ADG and also stated 

that you were not feeling well and were going to seek medical 

attention. You did not contact me again on April 11, 12, 13, 14, 

15, or 16. By the end of the day on April 16, a total of five days 

had passed including three consecutive scheduled work days 

with no contact from you or anyone representing you.

* * *

After waiting another scheduled work day with no contact from 

you, combined with your previous statement that you were not 

accepting any changed position with ADG, I concluded that you 

had voluntarily resigned from your job with ADG. 

¶8 Dr. Johnson also cited the “current ADG employee 

handbook,” which directs that “any employee who is absent from work for 

three or more consecutive scheduled work days and fails to provide notice 

will be considered to have voluntarily resigned from his/her employment 

and is not eligible for rehiring.”

¶9 Hoeveler never responded to Dr. Johnson’s email and instead 

retained an attorney who demanded that Hoeveler be reinstated to her 

former position of Director of Operations. ADG responded through 
HOEVELER v. AZ DERMATOLOGY

Decision of the Court

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counsel on April 26, explaining that Hoeveler had “refused her position and 

resigned,” “continued to refuse to accept the business administration 

position,” and instead “insisted that she be returned to her previous 

position.” Despite the acrimony, Dr. Johnson reinvited Hoeveler to remain 

at ADG, “giving her one more opportunity” in a business administration 

position. She declined four days later.

¶10 Hoeveler sued ADG for retaliation under A.R.S. § 23-364. She 

alleged that ADG terminated her because she used accrued paid sick leave.

ADG answered. After discovery, ADG moved for summary judgment.

Hoeveler countered that summary judgment was improper because 

“[r]easonable minds could draw different inferences, based on evidence, as 

to whether [Hoeveler] was terminated by ADG or whether [Hoeveler] 

abandoned her position with ADG.” The court granted ADG’s motion for 

summary judgment, finding that Hoeveler had “abandoned her 

employment prior and she had no intention of returning to ADG in the only 

position that was offered to her.” Hoeveler timely appealed. We have 

jurisdiction. See A.R.S. § 12-2101(A).

DISCUSSION

¶11 Hoeveler contends the superior court erroneously granted 

summary judgment for ADG on her retaliation claim because there are

genuine issues of material fact as to whether ADG terminated her in 

retaliation for using earned paid sick leave in violation of A.R.S. § 23-364(B).

¶12 Summary judgment is appropriate when “there is no genuine 

dispute as to any material fact and the moving party is entitled to a 

judgment as a matter of law.” Ariz. R. Civ. P. 56(a). “We review de novo a 

grant of summary judgment, viewing the evidence and reasonable 

inferences in the light most favorable to the party opposing the motion.” 

Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12 (2003). A moving party is entitled 

to summary judgment “if the facts produced in support of the [nonmovant’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. Id. at 

¶ 13. A plaintiff bears the burden of showing available, competent evidence 

that would justify a trial once the defendant establishes it is entitled to 

summary judgment. Ulibarri v. Gerstenberger, 178 Ariz. 151, 156 (App. 1993). 

We may affirm the superior court’s grant of summary judgment if it is 

correct for any reason. Rowland v. Great States Ins. Co., 199 Ariz. 577, 581, 

¶ 6 (App. 2001).
HOEVELER v. AZ DERMATOLOGY

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A. Retaliation Claim

¶13 Arizona law prohibits an employer from retaliating against 

an employee for exercising certain guaranteed rights, including for using 

earned paid sick time. A.R.S. §§ 23-364(B), -374(A), (B). An employee 

“injured by a violation” of the statute has a private right of action against 

an employer. A.R.S. § 23-364(E), (H). Retaliation includes “any threat, 

discharge, suspension, demotion, reduction of hours, or any other adverse 

action against an employee for the exercise of any right guaranteed.” Id. 

(B). The statute recognizes a presumption of retaliation if adverse action is 

taken “against a person within ninety days of a person’s engaging” in the 

protected right. Id. The burden then shifts to the employer to rebut the 

presumption with “clear and convincing evidence that such action was 

taken for other permissible reasons.” Id.

¶14 As applied here, the summary judgment record reveals that 

Hoeveler was discharged within 90 days of exercising paid sick leave and 

was therefore entitled to a presumption of retaliation. The burden then 

shifted to ADG to rebut the presumption with “clear and convincing 

evidence that such action was taken for other permissible reasons.” Id.

¶15 ADG met its burden here. ADG offered emails, 

contemporaneous documents and deposition testimony that Hoeveler was 

discharged for “permissible reasons,” including (1) the complaint about her 

treatment of employees, and (2) her failure to respond for nearly two weeks 

to ADG’s proposed reassignment at the same salary. Hoeveler never 

disputed these facts, which offered legitimate grounds for her dismissal. 

Hoeveler presented no evidence or argument to prove retaliation. Indeed, 

Hoeveler only argued that summary judgment was improper based on

disputed issues of fact about “whether [she] was terminated by ADG or 

whether [she] abandoned her position with ADG.” 

¶16 Hoeveler now contends her deposition testimony “should 

[have been] sufficient to preclude summary judgment regardless of what 

the burden of proof is.” Not so. Hoeveler only testified about the timing of 

her decision to take sick leave and ADG’s discharge, which entitled her to 

a presumption of retaliation. Her deposition testimony does not challenge 

the permissible rationale for her discharge. Because the record did not 

create a material issue of fact over the reasons for Hoeveler’s discharge, we 

affirm.
HOEVELER v. AZ DERMATOLOGY

Decision of the Court

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B. Attorney Fees

¶17 ADG seeks an award of reasonable attorney fees on appeal

under A.R.S. § 12-341.01, but Hoeveler sued for retaliation under A.R.S. § 

23-364, which only permits an award of fees and costs to the “prevailing 

plaintiff.” A.R.S. § 23-364(G). Section 12-341.01 “does not apply to purely 

statutory causes of action.” Hanley v. Pearson, 204 Ariz. 147, 151, ¶ 17 (App. 

2003). We thus decline ADG’s fee request. As the successful party on 

appeal, however, ADG is entitled to costs upon compliance with Arizona 

Rule of Civil Appellate Procedure 21.

CONCLUSION

¶18 We affirm the superior court’s entry of summary judgment 

for ADG.