Robin Mitchell was recently the agency’s top attorney, in charge of all legal and ethical matters.
Mitchell sent a Notice of Claim letter earlier this month to three elected Arizona Corporation Commissioners and two high-level staff members, alleging she was unjustly demoted in January and is paid less than her replacement because she is a Black woman.
Notice of claim alleges “purge”
The 11-page letter alleges agency leaders carried out a “purge” of minority employees over the past year by systematically removing “multiple female and non-white experienced employees and replacing them with new white male employees.”
“The Commission has not, does not, and will not discriminate on the basis of race or any other category, but bases its employment decisions on objective work-related criteria,” said spokesperson Nicole Garcia in a statement.
Mitchell alleges equal pay and civil rights violations
The May 8 letter alleges the Commission, under the guidance of Executive Director Doug Clark, “engaged in a pattern and practice of treating Mitchell and other non-white, female employees less favorably than white employees and applicants.” Mitchell accuses the Commission of violating federal laws regarding equal pay and civil rights.
The Notice of Claim states Mitchell plans to file a Charge of Discrimination with the Equal Employment Opportunity Commission with the intent to sue.
Mitchell said in the letter she would be willing to settle with the ACC for backpay and punitive damages amounting to $939,000 and an assurance from the agency it will “cease discriminatory employment practices.”
Mitchell was given a raise
“The Commission notes that the claimant is still employed by the Commission and is being paid at a rate higher than when she was the head of the legal division,” Garcia said in a written statement to 12News.
Mitchell alleges in her Notice of Claim the 5 percent raise amounted to “an attempt to smooth over the obvious mistreatment” of Mitchell after she was demoted.
Employee must prove discrimination based on minority status
In any employment discrimination case, an employee must prove they are a protected class, something adverse happened to them, and there is a connection between those two factors, said Arizona employment and labor attorney Denise Blommel.
“You have to show there is a connection, a connection to race or sex in order to make the case,” Blommel said.
Establishing a pattern of how an employer treats other employees can be used as evidence to make that connection, Blommel said.
Mitchell blames Clark, commissioners and policy Advisor
“Mitchell’s performance at the Commission was consistently exemplary, as illustrated by her history of outstanding performance reviews,” her letter to the Commission states.
According to the Notice of Claim, Clark told Mitchell in September of 2023 that she was being removed from her position because less-experienced attorneys performed poorly under her management in the opening days of an APS rate case. Mitchell alleges she had already notified Clark she planned to provide additional training to the attorneys but Clark told her a group of people he only referred to as “they” wanted her demoted anyway. When pressed, Clark told her, “They wanted you gone yesterday,” the letter states.
“When Mr. Clark referred to ‘they’ and ‘them,’ Ms. Mitchell understood that Mr. Clark was referring to those Commissioners holding majority control,” the letter states.
Those named in the Notice of Claim are Clark, Commissioners Kevin Thompson, Nick Myers and Jim O’Connor and policy advisor Katharine Fredriksen. Four of the five began at the agency in 2023. Thompson and Myers were sworn in as commissioners in January of 2023. Fredriksen (who is Thompson’s sister) was later hired as O’Connor’s policy advisor and Clark took the top staff position in March of 2023.
Mitchell alleges commission ignored her opinions
According to the Notice of Claim, Mitchell is working in a previously non-existent role as “Director of Special Projects.” Mitchell also alleges in October Commissioners rejected her advice regarding an issue related to Commissioners allegedly violating open meeting laws and instead sought an outside attorney’s opinion.
“The Commissioners chose to retain an external attorney (Mary O’Grady, a white woman) to review the issue and render a second opinion. We understand that attorney O’Grady came to the same conclusion of Ms. Mitchell, namely, that the Commissioners violated Arizona Open Meeting Law. The only difference was that Commissioners accepted Ms. O’Grady’s conclusions but not Ms. Mitchell’s,” the letter states.
Mitchell’s re-assignment could have greater credibility if her case moves forward. A recent U.S. Supreme Court decision, Muldrow v. City of St. Louis, relates to whether a transfer or reassignment alone could be viewed as discrimination. The court ruled in favor of the employee.
“Their decision was, as long as the plaintiff can prove harm, any kind of harm, the fact that the dollar amount is the same or even better in the new job isn’t dispositive,” Blommel said.
Mitchell alleges a practice of discrimination
Mitchell alleges two Black directors of divisions (including Mitchell) were removed from their positions without justification. The letter claims another division director, a Hispanic woman, resigned under pressure after Commissioner Nick Myers allegedly criticized her work.
The letter claims another experienced employee, Steven Olea, was informed last year he was no longer “wanted” in his position as special advisor to the executive director. Olea was physically moved off the Commissioners wing of the building to an unoccupied floor. The letter states he is Hispanic.
“Even if the Commission is somehow able to put forth a legitimate, non-discriminatory reason for its actions against Ms. Mitchell, the statistical disparities discussed are sufficient to show that the Commission’s alleged ‘legitimate’ reasons for its actions are mere pretext for discrimination,” Kvesic wrote in the letter.
Alleged violation of the Equal Pay Act
Her former position was advertised at a salary of $150,000 - $160,000. The Commission hired Van Flein in February at a salary of $190,000.
Mitchell’s attorney Kvesic writes, “The legal career of Mr. Van Flein (a white male)… is devoid of any experience relevant to the Commission.” He also wrote Van Flein’s political affiliations appeared to have influenced the Republican-majority Commission’s hiring.
Van Flein issued a written statement to 12News, saying, “Neither Ms. Mitchell nor the Commission knows my political views. It is more than dubious I would have been hired ‘because of them.’ Similarly, Ms. Mitchell is ignorant of my work experience.”
For more than a decade, Van Flein was the Chief of Staff to Arizona Congressman Paul Gosar and before that, he practiced law in Alaska. When he was hired he did not yet have a law license in Arizona.
Proving equal treatment may require showing how hiring was handled
Proving the Commission did not violate Fair Pay laws might require additional evidence showing how the Commission handled the hiring process, Blommel said.
That evidence might include showing what qualifications other applicants possessed and what kind of salary they were willing to work for.
According to Blommel, legal disputes like this could take years to resolve if they are not settled out of court.
“There’s a lot of discovery that takes place,” Blommel said. “There’s so much evidence out there you can get, whether it's emails, text messages and phone calls.”
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