Letona v. Adoc

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CARLOS LETONA, Plaintiff/Appellant,

v.

ARIZONA DEPARTMENT OF CORRECTIONS, et al.,
Defendants/Appellees.

No. 1 CA-CV 18-0590
FILED 6-20-2019

Appeal from the Superior Court in Maricopa County
No. LC2017-000455-001
The Honorable Patricia A. Starr, Judge

AFFIRMED

COUNSEL

Bihn & McDaniel, PLC, Phoenix
By Martin A. Bihn, Donna M. McDaniel
Counsel for Plaintiff/Appellant

Arizona Attorney General’s Office, Phoenix
By Michael K. Goodwin, Kirstin A. Story
Counsel for Defendants/Appellees Department of Corrections and Timothy Rhyne

Jackson Lewis P.C., Phoenix
By Jeffrey W. Toppel, Monica M. Ryden
Counsel for Defendants/Appellees Arizona State Personnel Board and its
Members
 LETONA v. ADOC, et al.
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Kent E. Cattani and Judge Diane M. Johnsen joined.

W I N T H R O P, Judge:

¶1 Carlos Letona (“Appellant”) challenges the superior court’s
ruling affirming an administrative award of back pay made by the State
Personnel Board (“Board”) and adopted by the Arizona Department of
Corrections (“ADC”). Appellant does not appeal the merits of the award,
but instead argues the administrative process lacked statutory authority.
For the following reasons, we affirm the superior court’s ruling.

FACTS AND PROCEDURAL HISTORY

¶2 Appellant works as a corrections officer for ADC. On
December 4, 2015, Appellant was fired for unnecessarily using “OC spray,”
a chemical agent, on an inmate diagnosed with mental health issues. Under
Arizona Revised Statutes (“A.R.S.”) section 41-783(A) (2019),1 a “covered”
state employee is entitled to pre-termination notice and a chance to respond
to the allegations. At the time of the termination, Appellant was on
probation for a different incident, which ADC believed resulted in
Appellant losing his status as a covered employee; accordingly, ADC did
not provide a pre-termination notice. On December 8, 2015, Appellant
appealed the termination to the Board, arguing he was a covered employee
and ADC had violated his procedural due process rights by not giving him
pre-termination notice. The Board agreed with ADC and determined
Appellant did not have the right to appeal the termination because the
statute did not entitle him to notice. Appellant appealed the Board’s
decision to the superior court. The superior court reversed, finding that
Appellant was a covered employee and entitled to pre-termination notice.

¶3 On remand, the Board scheduled an appeal hearing for
December 2016. Appellant then filed a motion with the hearing officer
requesting a summary ruling. He argued the superior court’s previous
ruling established ADC violated his procedural due process rights and he

1 We cite to the current version of the statute(s) when no revisions
material to this decision have occurred.

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was therefore entitled to an award of back pay. Before responding to the
motion, ADC reinstated Appellant to his pre-termination position and sent
a formal notice of discipline for the OC spray incident, giving Appellant a
chance to respond to the allegations. ADC then responded to the motion,
arguing Appellant had been reinstated but was not yet entitled to an award
of back pay because ADC had not determined the level of discipline it
would ultimately impose for the incident.

¶4 In his reply, Appellant argued the superior court’s ruling and
ADC’s reinstatement constituted a reversal of his initial termination and an
award of back pay was therefore mandatory under A.R.S. § 38-1106(J). He
further argued that any subsequent discipline or termination due to the
incident would be a separate issue from the December 2015 termination.
The hearing officer agreed and determined that Appellant was entitled to
back pay under § 38-1106(J). Nonetheless, the officer denied Appellant’s
motion because she determined an evidentiary hearing was necessary to
decide the amount of the award.2 ADC then provided written notice that it
would impose an eighty-hour suspension in lieu of the termination.

¶5 After the evidentiary hearing, the hearing officer issued a
recommendation for the Board to grant the appeal, reverse the termination,
and award Appellant a uniform allowance and back pay—reduced by
earnings Appellant received from another job after he was fired. In April
2017, the Board adopted the hearing officer’s recommendation to grant the
appeal and issue the uniform allowance and back pay—but not the
recommendation to reverse the termination. Because there was a
discrepancy in Appellant’s employment file, the Board stated that before it
would reverse the termination, ADC must submit proof that the
termination had been officially rescinded and documented in the
employment file. An evidentiary hearing was set so that ADC could submit
the required proof. Before the hearing, in March 2017, ADC accepted the
Board’s ruling and paid Appellant $39,506.53 ($21,080.06 after taxes).

¶6 Although the only outstanding issue at the time the Board
adopted the hearing officer’s recommendation was the mandate that ADC

2 The hearing officer initially determined the appeal was moot
because Appellant had been reinstated. However, after the evidentiary
hearing, the hearing officer stated “[b]ecause Appellant did not withdraw
his appeal, and ADC did not rescind the dismissal, the appeal is a ‘live’
appeal and is not moot based solely on the ADC’s reinstatement. The Board
is required to make the appropriate findings and orders to dispose of the
appeal as required by applicable law.”

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provide proof that the termination was rescinded, the Board stated that
either party, at their discretion, could request a hearing on whether just
cause existed for the termination. Appellant requested such a hearing. The
Board granted the request, and the issue was set to be heard along with
submission of the proof of the termination’s rescission.

¶7 At the hearing, ADC’s counsel conceded that ADC never sent
an official letter stating the termination was rescinded, but the fact that
ADC reinstated Appellant to his pre-termination position and restored all
his benefits to their pre-termination status effectively created a
“constructive rescission.” Additionally, on April 6, 2017, ADC’s human
resources unit issued a memo confirming that it had removed all
documents related to the termination and reinstatement from Appellant’s
employment file. Appellant contested the accuracy of the memo.

¶8 Ultimately, the hearing officer found that no just cause existed
for the termination and that ADC never officially rescinded Appellant’s
termination. The hearing officer recommended the Board find that ADC
had “equitably rescinded” the termination by restoring Appellant to the
status quo; that the restoration constituted grounds for Appellant to be
awarded back pay; and that the sufficiency of that award should be
determined by the Department of Administration. Additionally, the
hearing officer found that the rescission divested the Board of jurisdiction
to consider the “dismissal appeal”3 and that the eighty-hour suspension

3 Appellant focuses on the Board’s adoption of this jurisdictional
conclusion as the basis for most of his argument. However, just because an
agency says it does or does not have jurisdiction does not automatically
make it so. See State v. Bryant, 219 Ariz. 514, 516, ¶ 4 (App. 2008) (“Subject
matter jurisdiction is a question of law, which we review de novo.”). When
an administrative agency has jurisdiction over the parties and the subject
matter, “[a]n erroneous interpretation and application of a statutory
provision, [in the determination of jurisdiction] will normally constitute
mere legal error and not operate to deprive an administrative agency of
jurisdiction.” State ex rel. Dandoy v. City of Phoenix, 133 Ariz. 334, 338 (App.
1982), abrogated on other grounds by Legacy Found. Action Fund v. Citizens
Clean Elections Comm’n, 243 Ariz. 404 (2018). Therefore, assuming without
deciding the Board made a mistake in adopting the hearing officer’s
recommendation regarding jurisdiction, the legal error is not a basis for
reversal. Because we determine Appellant is estopped from bringing this
appeal, we need not address the jurisdictional issue in the decision.

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imposed after Appellant was reinstated was a separate disciplinary issue
subject to a different appeal or grievance process.

¶9 Appellant filed an objection to the hearing officer’s report and
recommendation, and—for the first time—argued that he had not prevailed
on appeal and the only way he could be awarded back pay is for the Board
to find on the record that his termination was “reversed” and not
“rescinded.”

¶10 On October 25, 2017, the Board adopted the hearing officer’s
recommendation, except the recommendation that the Department of
Administration determine Appellant’s back-pay award. Specifically, the
Board stated:

The appellant’s reinstatement to the Correction Officer II
constitutes a rescission of his December 2015 dismissal. All
records should reflect that he was reinstated and as a result,
we reverse any reference to any dismissal as there was no dismissal
and no finding of just cause. In order to clarify our previous order,
any references to “dismissal” are to be removed from his file. The
action of reinstatement and return voided his termination and thus
we reverse any department action of dismissal.

(emphasis added).

¶11 ADC adopted the Board’s decision and sent notice to
Appellant in November 2017. Appellant appealed to the superior court,
and the superior court upheld the decision. In its August 2018 minute
entry, the superior court concluded (1) the Board did not err when it made
a factual finding that ADC “equitably rescinded” the dismissal by
reinstating Appellant; (2) the Board had jurisdiction to determine
Appellant’s back pay under § 38-1106(J) once the termination was
rescinded; and (3) the Board did not act contrary to law when it determined
what benefits were owed to Appellant.

¶12 In this appeal, Appellant challenges the first two
determinations made by the superior court, and we have jurisdiction
pursuant to A.R.S. §§ 12-913 and 41-783(G).

ANALYSIS

¶13 Appellant contends the superior court erred by affirming the
Board’s April and October 2017 decisions. He asserts (1) the Board had no
authority to make an equitable finding that his termination was rescinded;

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(2) the Board had no jurisdiction to hear the appeal and make findings
regarding the termination after it was rescinded; (3) the Board could not
have determined an amount of back pay without officially reversing the
termination on appeal; and (4) ADC and the superior court erred in
affirming the Board’s decisions.

¶14 In response, ADC argues “the record contains ample support
that the Department rescinded [Appellant’s] dismissal at his behest” and
“in light of the fact that [Appellant] obtained the primary relief that he
sought, his contention that he did not prevail is unsupported by fact or
law.”

¶15 Likewise, the Board argues Appellant “prevailed in his
appeal to the Personnel Board, even if the Personnel Board did not explicitly
say so in its April 12, 2017 Order, as [Appellant’s] termination was
effectively reversed by [ADC] when he was reinstated.” In addition, the
Board asserts that Appellant fails to “demonstrate[] that the Personnel
Board’s actions were contrary to the language and spirit of its statutory
authority.”

I. Appellant is Judicially Estopped from Bringing This Appeal

¶16 Appellant maintains “[t]he positions taken by the superior
court, ADC, and the Personnel Board are untenable and should be rejected
by this Court.” Appellant’s arguments are nonsensical, without any factual
foundation and, as explained below, legally impermissible.

¶17 In his briefing to this court, Appellant is asserting a legal
position contrary to the position he argued before the hearing officer when
he originally sought and received his back-pay award.

¶18 Under the doctrine of judicial estoppel, “a party who has
assumed a particular position in a judicial proceeding is estopped to
assume an inconsistent position in a subsequent proceeding involving the
same parties and questions.” State v. Towery, 186 Ariz. 168, 182 (1996); see
also Pegram v. Herdrich, 530 U.S. 211, 227 n.8 (2000) (“Judicial estoppel
generally prevents a party from prevailing in one phase of a case on an
argument and then relying on a contradictory argument to prevail in
another phase.”). Judicial estoppel protects the integrity of the judicial
system by “preventing a litigant from using the courts to gain an unfair
advantage.” Towery, 186 Ariz. at 182; cf. Smith v. CIGNA HealthPlan of Ariz.,
203 Ariz. 173, 179, ¶¶ 19-21 (App. 2002) (explaining principles of estoppel
can apply to decisions of administrative agencies acting in a quasi-judicial
capacity). For judicial estoppel to apply, three requirements must be met

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“(1) the parties must be the same, (2) the question involved must be the
same, and (3) the party asserting the inconsistent position must have been
successful in the prior judicial proceeding.” Bank of Am. Nat’l Tr. & Sav.
Ass’n v. Maricopa County, 196 Ariz. 173, 175, ¶ 7 (App. 1999).

¶19 A party is considered to have been successful in a prior
judicial proceeding when “(a) the court in that proceeding granted the party
relief or accepted the party’s earlier inconsistent position either as a
preliminary matter or as part of a final disposition, and (b) the party’s
inconsistent position was a significant factor in the relief granted.” Id. at
176, ¶ 8.

¶20 We conclude all three factors are present in this case. ADC
and Appellant originally appeared before the Board, which was acting in a
quasi-judicial capacity, and all three parties appeared in the superior court
proceedings. In addition, the underlying issue is the same: whether the
Board had authority to award Appellant back pay pursuant to § 38-1106(J)
once ADC reinstated Appellant to his former position.

¶21 As to the third factor, the record shows Appellant filed a
motion for summary ruling with the Board in 2016 as part of his original
appeal, arguing that ADC’s procedures for his termination were defective
and he was therefore entitled to reinstatement and back pay. In the reply
in support of the motion, Appellant asserted multiple times that the
termination had been “reversed” by ADC—referring to ADC’s
reinstatement of him to his position—and that he therefore had prevailed
in the appeal under § 38-1106(J). The hearing officer agreed with
Appellant’s assertion that he was entitled to back pay pursuant to § 38-
1106(J) and set a hearing to determine if the award should be reduced by
any statutory amount.4 Relying on Appellant’s position that he prevailed
on appeal and obtained a reversal of his termination, the hearing officer
then recommended an award of $39,506.53. The Board adopted that
recommendation, and Appellant ultimately was paid that amount (less
applicable taxes) in March 2017.

¶22 When the Board issued its April 2017 decision adopting the
hearing officer’s recommendation to award back pay, the only outstanding

4 Section 38-1106(J)(4) allows the Personnel Board to reduce an award
of back pay “[b]y any amount earned by the law enforcement officer in
alternative employment.” The record here establishes, and Appellant does
not challenge, that he earned approximately six thousand dollars at another
job after he was dismissed by ADC.

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issue was for ADC to provide proof that it had rescinded the termination.
The Board stated that a hearing on just cause would be held only if
requested by one of the parties. It was Appellant who requested the just
cause hearing, which started an apparent snowball of confusion in the
procedural posture of this case.

¶23 It was not until the resulting just-cause hearing in September
2017 that Appellant changed his position and began arguing his
termination was never reversed as required by the statutes, that ADC had
no authority to reinstate him, and the Board lacked jurisdiction to award
him back pay. Without question, Appellant received the relief he initially
sought—reinstatement of his position and an award of back pay. This
result was all consistent with the argument he had previously advanced—
that he had prevailed on appeal pursuant to § 38-1106(J). But for
Appellant’s request for an additional hearing, the matter would have been
entirely resolved.

¶24 Nonetheless, Appellant baldly asserts that “his personnel file
now reflects that [he] was dismissed, reinstated, and suspended.” He
argues that anyone reviewing his record today will not know that ADC
wrongfully terminated him and that he prevailed in appealing the
termination. There is simply no factual basis for this assertion. The record
on appeal contains the ADC human resources unit memo documenting that
it had removed from Appellant’s employment file all references to his
termination and reinstatement. And, in October 2017, the Board, in
response to Appellant’s argument that the ADC memo was not accurate,
also specifically ordered any remaining mention of Appellant’s dismissal to
be stricken from his employment file. There is nothing in the record that
indicates ADC has not complied with that order. Most telling, at oral
argument, Appellant’s counsel conceded that the employment file has not
been reviewed by Appellant or his counsel since May of 2017—clearly
before the Board’s October 2017 order was issued.5

¶25 Appellant had the obligation to submit a record to this court
that supports his factual assertions. However, there is no evidence in the
record to support Appellant’s contention that his personnel file does not
comply with the October 2017 order. Appellant did not designate his
employment file in the record on appeal or move to supplement the record

5 ADC’s counsel noted at oral argument that Appellant had access to
review his employment file on his own, and Appellant’s counsel did not
dispute such representation.

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to reflect the current status of that file. We therefore assume the
employment file reflects compliance that is consistent with the Board’s
order. See State v. Olague, 240 Ariz. 475, 478, ¶ 7 (App. 2016) (“It is an
appellant’s duty to supplement an incomplete record.”) (internal citation
omitted); see also State ex rel. Dep’t of Econ. Sec. v. Burton, 205 Ariz. 27, 30,
¶ 16 (App. 2003) (“An appellant is responsible for making certain that the
record on appeal contains all transcripts or other documents necessary for
us to consider the issues raised on appeal. . . . When a party fails to do so,
we assume the missing portions of the record would support the trial
court’s findings and conclusions.”) (internal citations omitted).

¶26 Throughout the appellate process, Appellant has repeatedly
challenged the Board’s authority to issue the back-pay award. However,
Appellant has never offered to return the funds. Because Appellant
received everything he asked for when he initially appealed the termination
and is now arguing a position opposite the position that allowed him to
obtain the reinstatement and award, we deny him any further relief on
appeal.

II. Costs on Appeal

¶27 As the prevailing parties on appeal, ADC and the Board are
entitled to an award of costs upon their compliance with ARCAP 21.

CONCLUSION

¶28 For the foregoing reasons, we affirm.

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

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