Montalbano v. ades/adrenaline

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

BRIAN MONTALBANO, Appellant,

v.

ARIZONA DEPARTMENT OF ECONOMIC SECURITY, an Agency,

and

ADRENALINE TRAILER REPAIR & SERVICES, Appellees.

No. 1 CA-UB 22-0510
FILED 3-5-2024

Appeal from the A.D.E.S. Appeals Board
No. U-1814752-001-B

REVERSED

COUNSEL

Lindsey W. Hunter & Associates, Tempe
By David J. Keys-Nunes
Counsel for Appellant

Arizona Attorney General’s Office, Tucson
By Jennifer R. Blum
Counsel for Appellee Arizona Department of Economic Security

Adrenaline Trailer Repair & Services, Lake Havasu City
Appellee
 MONTALBANO v. ADES/ADRENALINE
Decision of the Court

MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Annie Hill Foster joined.

C A T T A N I, Judge:

¶1 Brian Montalbano appeals from a final administrative
decision denying his request for unemployment benefits on the basis that
he had engaged in disqualifying misconduct. We reverse. Although
Montalbano’s employer was entitled to fire him, the record does not
establish that Montalbano’s acts constituted the type of misconduct that
disqualifies an employee from obtaining unemployment benefits.

FACTS AND PROCEDURAL BACKGROUND

¶2 Montalbano worked as a paint technician for employer HRM
Unlimited LLC dba Adrenaline Trailer Repair & Services. In September
2021, Montalbano’s employer spoke with him about changing from salary
to hourly wages because of how much time he had been missing from work
for personal reasons. Believing a co-worker had complained to the
manager about his absences, Montalbano sent the co-worker the following
text message (names redacted; errors in original):

G[ ] says your talking shit. Whats the deal? Do i run to w[ ] all
day when your in the drivway smoking cigs? Thats some
punk ass bullshit..we will be talking soon. I spend 2 years
trying to fix all the adrenaline issues for you to come and talk
shit on me? Your a bitch. I asked you before if you have a
issues say so. Whats the deal? Man up face to face if you have
an issue. Instead you make up bullshit to get ahead like a
bitch..

The co-worker forwarded the text message to the manager, and the
manager called Montalbano and fired him.

¶3 Montalbano applied for unemployment benefits, stating he
had been discharged for attendance issues. The employer informed the
Arizona Department of Economic Security (“ADES”) that Montalbano had
been discharged for “Failure to show up for work without notice and
insubordination on several occasions,” adding that Montalbano “lost his

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Decision of the Court

temper[] and exploded” and “contacted several coworkers and threatened
them” as part of the final incident leading to termination. From this
information, an ADES deputy determined Montalbano had been
discharged for misconduct and was therefore disqualified for benefits,
specifically noting that Montalbano was fired for “being verbally abusive
to another employee” or “us[ing] profanity in [the] work environment.”

¶4 Montalbano appealed, and both he and a company manager
testified at the resulting evidentiary hearing before the Appeal Tribunal.
The manager testified that the text message, which he construed as a threat
against a fellow employee, was his sole reason for firing Montalbano. The
manager emphasized (contrary to the information previously provided to
ADES) that Montalbano’s attendance issues were not a basis for his
termination. The manager also testified that other employees felt
threatened by Montalbano, but he acknowledged he did not learn about
that until after Montalbano was fired, making it irrelevant to the reason for
termination.

¶5 For his part, Montalbano confirmed that he sent the text
message, but he denied that it was a threat and highlighted that it was sent
after hours (and thus, in his view, could not violate a policy regarding
profanity at work). Finding that Montalbano had used “foul language and
threatening language” despite “previously be[ing] warned” against using
profanity, the Tribunal concluded Montalbano had been discharged for
work-related misconduct and was thus disqualified from receiving
benefits. After Montalbano petitioned for review, the Appeals Board
adopted the Tribunal’s findings and conclusions without modification.

¶6 We granted Montalbano’s application for appeal under A.R.S.
§ 41-1993(B) and appointed pro bono counsel for Montalbano. ADES
participated in this appeal, but the employer did not appear.

DISCUSSION

¶7 Montalbano contests the Appeal Board’s finding that his
actions rose to the level of benefit-disqualifying misconduct.1 On review,

1 Preliminarily, ADES asserts that Montalbano failed to raise this issue
in his petition for review before the Appeals Board and that this court thus
lacks jurisdiction to consider it. See A.R.S. § 41-1993(B); see also Barriga v.
Ariz. Dep’t of Econ. Sec., 541 P.3d 1159, 1166, ¶ 27 (Ariz. 2024). Although
broadly stated (and accompanied by other allegations), Montalbano’s

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we defer to the Appeals Board’s findings of fact unless they are arbitrary,
capricious, or an abuse of discretion, and we are thus bound by the Board’s
factual findings provided substantial evidence supports them. Munguia v.
Dep’t of Econ. Sec., 159 Ariz. 157, 158–59 (App. 1988); Rice v. Ariz. Dep’t of
Econ. Sec., 183 Ariz. 199, 201 (App. 1995). We draw our own legal
conclusions from those facts, however, and owe no deference to the Board’s
interpretation of the law. Figueroa v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 548,
550, ¶ 9 (App. 2011); Prebula v. Ariz. Dep’t of Econ. Sec., 138 Ariz. 26, 30 (App.
1983).

¶8 A person is disqualified from receiving unemployment
benefits if discharged for “wilful or negligent misconduct connected with
the employment.” A.R.S. § 23-775(2). To be disqualifying, such misconduct
must breach the employee’s obligations to the employer or adversely affect
the employer’s substantial interest. A.R.S. § 23-619.01(A); Ariz. Admin.
Code (“A.A.C.”) R6-3-5105(A); see also A.A.C. R6-3-5185(B) (off-duty
misconduct may be disqualifying if it “bears such a relationship to [the] job”
that it causes an “adverse [e]ffect” on operations, rendering the employee
“unsuitable to continue in [the] job”). Misconduct justifying termination of
employment and misconduct justifying disqualification for unemployment
benefits are thus “two distinct concepts,” Weller v. Ariz. Dep’t of Econ. Sec.,
176 Ariz. 220, 223 (App. 1993), and the employer has the burden to prove
that the misconduct justifying discharge was indeed disqualifying, A.A.C.
R6-3-51190(B)(2)(b).

¶9 Intemperate relations with a co-worker may, in certain
circumstances, constitute disqualifying misconduct. See A.R.S. § 23-
619.01(B)(5); A.A.C. R6-3-51390. But mere “[t]emperamental inability to get
along” does not suffice unless manifested in an “overt act” that “could
impair the efficiency of operations” or otherwise harm the employer’s
interests. A.A.C. R6-3-51390(A). And depending on the nature of the
employment, use of abusive or profane language between co-workers
may—or may not—be misconduct. A.A.C. R6-3-51390(B)(1)–(2). Use of
“mildly abusive and profane language” at workplaces where such
language is the norm is not misconduct unless “used in such a belligerent
or vociferous manner that there is interference with good order and
discipline.” A.A.C. R6-3-51390(B)(2). And while “repeated and
inappropriate use of abusive language” is disqualifying, A.R.S. § 23-

petition contested the existence of misconduct and any connection to the
workplace. This contention adequately raised the issue of whether
Montalbano’s conduct justified disqualification for benefits and thus
preserved his challenge to the Appeals Board’s decision.

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619.01(B)(5), “occasional” profanity is not misconduct unless it prompts
“dissatisfaction and discord among employees” and the employer
“previously warned against its use,” A.A.C. R6-3-51390(B)(3).

¶10 Here, the Appeals Board adopted the Appeal Tribunal’s
findings and reasoning that Montalbano’s text message contained “foul”
and “threatening” language against which Montalbano had previously
been warned, all in derogation of the employer’s interests. But the record
does not bear out critical aspects of these findings and reasoning.

¶11 First, although there was no dispute that Montalbano’s text
message included “foul” or profane language, there was no evidence of
“repeated” profanity or abusive language. See A.R.S. § 23-619.01(B)(5)
(emphasis added). There was likewise no evidence that Montalbano had
ever received a specific, individualized warning about inappropriate
language; the manager confirmed as much, testifying only that Montalbano
had been informed of the general company policy against using profanity
at work. Compare A.A.C. R6-3-51390(B)(3) (discharge based on profanity
disqualifying if “the employer had previously warned against its use”)
(emphasis added), with (D)(2) (discharge due to bickering disqualifying if
culprit “has been made aware through general rules or warnings” to avoid or
stop such actions) (emphasis added). And the company policy did not
prohibit coarse language between co-workers generally, but rather was
targeted at avoiding profanity around customers or female employees—
and neither such circumstance was implicated here. See A.A.C. R6-3-
51390(B)(2). The profane language Montalbano used in the text message to
his co-worker was inappropriate (and his employer could fire him for it),
but it was not the type of repeated, previously warned-against misconduct
that would disqualify him from receiving unemployment benefits. See
Weller, 176 Ariz. at 223.

¶12 Second, contrary to the Board’s finding, Montalbano’s text
message did not contain “threatening” language that interfered unduly
with the employer’s business. The ostensibly “threatening” language was
simply this: “we will be talking soon.” A “threat” to talk is generally not so
inherently disruptive or vociferously belligerent as to constitute
disqualifying misconduct. See A.A.C. R6-3-51390(B)(2). At most,
Montalbano’s single, isolated text message—profanity and all—established
only a “[t]emperamental inability to get along” with his co-worker and an
intention to resolve the issue through verbal communication. See A.A.C.
R6-3-51390(A). Moreover, although the co-worker who received the text
message was present at the Tribunal hearing, the employer did not have
him testify about any subjective understanding that he perceived the text

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Decision of the Court

message as threatening. Without such testimony (or other comparable
evidence), the employer failed to prove that Montalbano’s “threat” to talk
concealed some genuinely threatening subtext or otherwise interfered with
the employer’s interests. See id.; see also A.A.C. R6-3-51190(B)(2)(b)
(employer’s burden to prove discharge resulted from a disqualifying
reason). Accordingly, the employer here did not meet its burden of
establishing the type of misconduct that warrants denial of unemployment
benefits. See A.A.C. R6-3-51390(A)–(B).

CONCLUSION

¶13 We reverse the Appeals Board’s decision and remand with
directions to award Montalbano the benefits to which he is entitled.

AMY M. WOOD • Clerk of the Court
FILED: AA

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