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Cunningham v. Ariz. Dep't of Econ. Sec.

ARIZONA COURT OF APPEALS DIVISION ONE
Jun 3, 2014
No. 1 CA-UB 13-0099 (Ariz. Ct. App. Jun. 3, 2014)

Opinion

No. 1 CA-UB 13-0099 No. 1 CA-UB 13-0100 (Consolidated)

06-03-2014

PATRICIA A. CUNNINGHAM, Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, an Agency, and DESERT SUBWAY INC. dba SUBWAY SANDWICHES AND SALADS, Appellees. PATRICIA A. CUNNINGHAM, Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC SECURITY, an Agency, Appellee.

Patricia A. Cunningham, Tempe Appellant Arizona Attorney General's Office, Phoenix By Carol A. Salvati Counsel for Appellee ADES


NOTICE: NOT FOR PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE

LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.


Appeal from the A.D.E.S. Appeals Board

Nos. U-1365089-BR, U-1365091-BR


AFFIRMED


COUNSEL

Patricia A. Cunningham, Tempe
Appellant

Arizona Attorney General's Office, Phoenix
By Carol A. Salvati
Counsel for Appellee ADES

MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the Court, in which Presiding Judge John C. Gemmill and Judge Patricia A. Orozco joined.

SWANN, Judge:

¶1 The Arizona Department of Economic Security ("ADES") disqualified Patricia A. Cunningham ("Claimant") from receiving unemployment insurance benefits based on a determination that she had voluntarily quit her employment with Desert Subway Inc. ("Employer") without good cause. We affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In April 2012, Employer offered Claimant employment conditioned on her passing a drug test and completing an online training program. Claimant took and passed the drug test, and began the online training program but did not complete it. She thereafter applied for and began receiving unemployment insurance benefits.

¶3 On June 29, ADES issued a Determination of Deputy finding that Claimant had voluntarily quit and disqualifying her from receiving benefits. The same day, ADES also issued a Determination of Overpayment for $720 in benefits that Claimant had received for the benefit weeks ending May 12 through May 26. The Determination of Overpayment classified the cause of the overpayment as fraud. Claimant timely appealed both the June 29 Determination of Deputy and the June 29 Determination of Overpayment, and the ADES Appeals Tribunal set a hearing for July 27.

¶4 Employer asked the Tribunal to reschedule the July 27 hearing to accommodate its representative's work-related travel plans. ADES denied Employer's request by voicemail and instructed Employer to call back with any questions. Employer returned ADES's call and left a message asking for a return call, but did not receive one. The hearing proceeded on July 27 in Employer's absence. Employer's failure to appear led the Tribunal to conclude that Employer had failed to meet its burden

under A.A.C. R6-3-50190(B)(2)(c) to refute Claimant's contention that she was discharged, and the Tribunal therefore issued a decision setting aside the June 29 Determination of Deputy and holding that Claimant had been discharged and did qualify for benefits.

¶5 Employer timely sought to reopen the hearing and to have the Tribunal's decision reversed. In response, the Tribunal set three hearings for September 10, to consider Employer's request to reopen and to again consider Claimant's appeals from the June 29 Determination of Deputy and the June 29 Determination of Overpayment. On September 10, Claimant and Employer's representative appeared and gave testimony.

¶6 Immediately after the hearings on September 10, the Tribunal issued three decisions. First, the Tribunal reopened the July 27 hearing and set aside its decision from that hearing, finding that Employer's failure to appear had resulted from its excusable neglect in failing to contact ADES a second time after having received no return call. Second, the Tribunal affirmed the June 29 Determination of Deputy, finding, based on the evidence and testimony presented, that Claimant had voluntarily quit without good cause. Third, the Tribunal affirmed the June 29 Determination of Overpayment, finding that Claimant had no reasonable basis for having claimed to ADES that Employer had discharged her.

¶7 Two days later, on September 12, ADES issued two new Determinations of Overpayment, one for $3,600 in benefits that Claimant had received for the benefit weeks ending May 12 through August 18 and the other for $240 in benefits that Claimant had received for the benefit week ending September 1. Both Determinations classified the overpayments as administrative.

¶8 Claimant filed a petition for review and request for waiver of recoupment that ADES construed as: (1) a timely appeal to the Appeals Board regarding the Tribunal's September 10 decision affirming the June 29 Determination of Deputy; (2) a timely appeal to the Board regarding the Tribunal's September 10 decision affirming the June 29 Determination of Overpayment; and (3) a timely appeal to the Tribunal regarding the September 12 Determinations of Overpayment. The Board affirmed the Tribunal's September 10 decisions regarding the June 29 Determination of Deputy and the June 29 Determination of Overpayment, and the Tribunal dismissed Claimant's appeal from the September 12 Determinations of

Overpayment after Claimant failed to appear at the hearing set on the matter on October 25.

¶9 Claimant timely requested to reopen the October 25 hearing, explaining that she had missed the hearing because her calls to ADES regarding her pre-hearing request for subpoenas had not been returned and she needed subpoenaed information to proceed. The Tribunal denied the request to reopen and reiterated that the appeal from the September 12 Determinations of Overpayment was dismissed, finding that Claimant had failed to establish good cause for her failure to appear.

¶10 The Board construed Claimant's request to reopen the Tribunal hearing as also timely requesting further review of the Board's decisions regarding the June 29 Determination of Deputy and the June 29 Determination of Overpayment. On review, the Board affirmed its decision regarding the June 29 Determination of Deputy. The Board, however, set aside its previous decision regarding the June 29 Determination of Overpayment, the Tribunal's September 10 decision regarding that Determination, and the Determination itself. The Board explained that the June 29 Determination of Overpayment had automatically been set aside as a result of the Tribunal's decision at the July 27 hearing, and the overpayments reflected in the June 29 Determination of Overpayment had thereafter been rolled into the September 12 Determinations of Overpayment.

¶11 In March 2013, Claimant filed a second request to reopen her appeal from the September 12 Determinations of Overpayment. This request was not timely with respect to those Determinations. ADES therefore treated it as a timely application for appeal from the Board's decisions on review regarding the June 29 Determination of Deputy and the June 29 Determination of Overpayment. We accepted jurisdiction under A.R.S. § 41-1993 and consolidated the applications for appeal.

SCOPE OF APPEAL

¶12 As an initial matter, we note that though ADES designated Claimant's March 2013 correspondence as an appeal from the Board's decisions regarding the June 29 Determination of Deputy and the June 29 Determination of Overpayment, the correspondence and Claimant's arguments on appeal do not strictly align with this characterization.

¶13 First, Claimant quite logically does not challenge the Board's decision setting aside the June 29 Determination of Overpayment. Nor

does Employer contend that this decision was erroneous. We therefore conclude that we need not address it.

¶14 Second, Claimant does not limit her arguments on appeal to the Board's decision affirming the June 29 Determination of Deputy -- she also purports to challenge the Tribunal's grant of Employer's request to reopen the July 27 hearing and the Tribunal's denial of her request to reopen the October 25 hearing. We hold that these arguments are precluded by A.R.S. § 41-1993(B). Section 41-1993(B) provides, in relevant part, that "[n]o issue may be raised on appeal [to the Court of Appeals] which has not been raised in the request for review before the appeals board." Claimant never asked the Board to review the reopening of the July 27 hearing, and her request for review of the denial of her request to reopen the October 25 hearing was untimely under A.A.C. R6-3-1503(B)(3)(b) and set forth no allegations that could excuse the delay under A.A.C. R6-3-1404(B). We are statutorily prohibited from considering Claimant's arguments concerning the reopening requests. Prebula v. Ariz. Dep't of Econ. Sec., 138 Ariz. 26, 28, 672 P.2d 978, 980 (App. 1983).

¶15 Claimant also challenges ADES's failure to grant her request for a waiver of recoupment under A.R.S. § 23-787(C) with respect to the September 12 Determinations of Overpayment. At this time, however, there is no decision on the waiver request available for review. ADES explains in its answering brief that it has not yet ruled on the request for waiver because "[w]hile an appeal that might affect the existence, amount, or classification of an overpayment is pending in this Court, ADES defers action on such applications." We find nothing in Title 23 of the Arizona Revised Statutes, or in Title 6 of the Arizona Administrative Code, that precludes such a deferral of action by ADES, and we cannot say that the deferral was unreasonable. We note that with the issuance of our decision today, we are unaware of any further basis for delay in deciding Claimant's request for waiver.

¶16 We conclude that the only matter properly before us is whether the Board erred by affirming the June 29 Determination of Deputy and the Tribunal's finding that Claimant voluntarily quit without good cause.

DISCUSSION

¶17 We view the evidence in the light most favorable to affirming the Board's decision, and will affirm if any reasonable

interpretation of the record supports the decision. Baca v. Ariz. Dep't of Econ. Sec., 191 Ariz. 43, 46, 951 P.2d 1235, 1238 (App. 1997). We accept the Board's factual findings unless they are arbitrary, capricious, or constitute an abuse of discretion. Avila v. Ariz. Dep't of Econ. Sec., 160 Ariz. 246, 248, 772 P.2d 600, 602 (App. 1989). We review de novo whether the Board properly applied the law. Bowman v. Ariz. Dep't of Econ. Sec., 182 Ariz. 543, 545, 898 P.2d 492, 494 (App. 1995).

¶18 An employee who leaves work voluntarily without good cause in connection with the employment is disqualified from receiving unemployment insurance benefits. A.R.S. § 23-775(1). An employee voluntarily leaves or quits her employment when she acts to end the employment and intends this result. A.A.C. R6-3-5005(A)(2), R6-3-50135(A)(1)(a). In determining whether a quit has occurred, ADES must consider all relevant factors, including the parties' remarks and actions, who initiated the separation, and the parties' intentions. A.A.C. R6-3-50135(A)(2). A worker who leaves her employment because she believes that she has been discharged is deemed to have quit if she acts based on information other than the employer's authorized notification of discharge and fails to confirm her belief of discharge with the employer. A.A.C. R6-3-50135(C). In determining whether a quit was supported by good cause, ADES must consider the employee's reasons for the quit and whether those reasons justified the quit, to determine what a reasonable worker would have done under similar circumstances. A.A.C. R6-3-50210(A).

¶19 Here, the evidence showed the following. Employer conditionally hired Claimant on April 23, 2012. On April 24, Claimant was treated at a hospital for an upper respiratory infection. Claimant called Employer that same day and left a voicemail in which she advised Employer of her illness and asked Employer to call her back with instructions on how to proceed. The next day, April 25, Claimant took the drug test required by Employer. Employer received the results of the drug test on April 26, and on April 27 issued Claimant an employee number and a login and password for her online training, which she had agreed to complete within 30 days from her date of hire. Also on April 27, Claimant again called Employer and left a voicemail in which she stated that she was still ill and needed instructions. On April 30, Claimant completed a portion of the online training program, but stopped working on the program because she concluded that Employer's failure to return her calls meant that she had been discharged. Employer's representative received a voicemail from Claimant on May 11 in which she stated that she was still contagious and could not presently work for Employer, and the representative tried returning her call several times without success.

Claimant did not contact Employer again until June, at which point Employer told her that it believed she had quit.

¶20 This evidence was sufficient to support the Board's determination that Claimant was disqualified from receiving unemployment insurance benefits under A.R.S. § 23-775(1). Between and after Claimant's calls to Employer on April 24 and April 27, she took several affirmative steps to fulfill the conditions of her hire: she submitted to a drug test on April 25, and on April 30 she began her online training, the access information for which Employer had provided to her on the same day as her second unreturned call. Partway through the online training, however, she came to believe that Employer's failure to return her calls meant that she had been discharged. But she later informed Employer that she was unavailable to work (an action that would have been anomalous for an employee who believed she had been discharged), and she took no action to confirm her belief that she had been discharged until well after the deadline to complete the online training and fulfill the conditions of her hire had expired. The record reasonably supports a finding that Claimant voluntarily quit her employment with Employer without good cause: she unilaterally ceased her online training, based on the unreasonable and unconfirmed belief that Employer's failure to return her calls indicated a discharge.

CONCLUSION

¶21 We affirm for the reasons set forth above.


Summaries of

Cunningham v. Ariz. Dep't of Econ. Sec.

ARIZONA COURT OF APPEALS DIVISION ONE
Jun 3, 2014
No. 1 CA-UB 13-0099 (Ariz. Ct. App. Jun. 3, 2014)
Case details for

Cunningham v. Ariz. Dep't of Econ. Sec.

Case Details

Full title:PATRICIA A. CUNNINGHAM, Appellant, v. ARIZONA DEPARTMENT OF ECONOMIC…

Court:ARIZONA COURT OF APPEALS DIVISION ONE

Date published: Jun 3, 2014

Citations

No. 1 CA-UB 13-0099 (Ariz. Ct. App. Jun. 3, 2014)