Pittman v. Ades

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ANGELICA PITTMAN, Appellant,

v.

ARIZONA DEPARTMENT OF ECONOMIC SECURITY, an agency,
Appellee.

No. 1 CA-UB 21-0275
FILED 11-16-2023

Appeal from the A.D.E.S. Appeals Board
No. U-1708180-001-B

REVERSED AND REMANDED

COUNSEL

Bryan Cave Leighton Paisner LLP, Phoenix
By Gregory B. Iannelli
Counsel for Appellant

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

Community Legal Services, Phoenix
By Pamela M. Bridge
Co-counsel for Amicus Curiae
DNA People’s Legal Services Inc., Flagstaff
By Charles W. Doughty
Co-counsel for Amicus Curiae

Southern Arizona Legal Aid, Tucson
By Anthony L. Young
Co-counsel for Amicus Curiae

William E. Morris Institute for Justice, Phoenix
By Andrew P. Schaffer, Branda Munoz Furnish
Co-counsel for Amicus Curiae

MEMORANDUM DECISION

Vice Chief Judge Randall M. Howe delivered the decision of the court, in
which Judge Anni Hill Foster joined and Judge Kent E. Cattani specially
concurred.

H O W E, Judge:

¶1 Angelica Pittman appeals the decision of the Appeals Board
of the Arizona Department of Economic Security finding her ineligible for
pandemic unemployment assistance (“PUA”) benefits under the
Coronavirus Aid, Relief, and Economic Security (“CARES”) Act of 2020, 15
U.S.C. §§ 9001 to 9141. Because the Appeals Board erred in finding Pittman
ineligible for PUA benefits, we vacate and remand.

FACTS AND PROCEDURAL HISTORY

¶2 Pittman lives with her teenage daughter. Before the
COVID-19 pandemic, Pittman did not hold a traditional job but performed
gig work, including babysitting, selling artwork, sewing costumes,
repairing computers, working as a field agent for a consumer company,
recycling scrap metal, and doing yardwork for others. She never made
enough money to pay taxes. Pittman stopped working in March 2020 once
the pandemic hit because her daughter had to attend school virtually, and
Pittman was concerned about her daughter’s safety. She also lost demand
for her services.

¶3 In July 2020, Pittman filed an initial claim for PUA benefits.
On the application, she certified that she was self-employed as a gig worker,
currently unemployed as a direct result of the pandemic, but was able and

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available to accept work. She certified that her daughter’s school was closed
because of the pandemic, and that she had primary caregiving
responsibility for her daughter. She also certified that she worked full-time
and that her quarterly net earnings in 2019 were less than $200. On
December 14, 2020, the Department disqualified her from receiving PUA
benefits because it had determined that she had provided insufficient proof
of wages under the CARES Act. Pittman timely appealed.

¶4 The Administrative Law Judge (“ALJ”) held a hearing, during
which Pittman testified that she normally made a living doing gig work. A
“gig worker” is “a person who works temporary jobs typically in the service
sector as an independent contractor or freelancer.” Gig worker,
Merriam-Webster.com Dictionary, https://www.merriam-
webster.com/dictionary/gig%20worker (last visited Oct. 25, 2023).
She testified that before the pandemic, she worked Monday through Friday;
she would drop off her daughter at the school bus and then walk around
“scrapping” for metal in alleyways from 7:30 a.m. to 4:00 p.m. to sell. She
was paid per pound of metal, which ranged from $13 to $60. She added that
she was hired to fix computers, a job that did not continue once the
pandemic hit; she would normally receive between $60 and $150 depending
on the type of work done on the computer. She added that at the time of the
hearing she had recently sold artwork after advertising online. She had also
sold baby clothes and collectible cards online. For all of this work, Pittman
only earned about $600 for the entire year of 2019.

¶5 During the pandemic, Pittman’s daughter’s school began
virtual learning. Pittman testified that she could not go scrapping because
she did not want to leave her 12-year-old daughter unsupervised. Pittman
stayed home with her daughter because the apartment in general was
unsafe; several people had been killed, shot, or stabbed there. Pittman
added that her other daughter had been kidnapped, drugged, and raped
when she was 16 years old. Her only other source of sustenance was food
stamps.

¶6 The ALJ affirmed the Department’s determination because
Pittman did not establish that she was “attached to the labor force” or
provide proof that she worked “other than odd jobs for a few hours
weekly.” The ALJ cited the CARES Act, the Department of Labor’s
Unemployment Insurance Program Letters (“UIPL”) No. 16-20 (2020),
No. 16-20 Change 1 (2020), and No. 16-20 Change 2 (2020), along with an
internal Department policy that implemented the CARES Act
(“Exclusion”). The Exclusion provides, “Odd jobs, such as babysitting or

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doing neighborhood yard work for a few hours weekly, do not constitute a
recent attachment to the labor market.”

¶7 Pittman timely appealed. The Appeals Board affirmed,
finding that Pittman’s gig work were “odd jobs” that did not show that she
was self-employed. Pittman timely requested judicial review by this court,
arguing that she was not required to present any evidence before the
amendment of the CARES Act on December 27, 2020, and that even if she
was required to present evidence to substantiate her claim, she met her
burden. This court granted her application under A.R.S. § 41–1993,
appointed her pro bono counsel, and requested briefing on specific issues.

DISCUSSION

¶8 In her supplemental opening brief, Pittman presents several
arguments that the Appeals Board abused its discretion in denying her
claim for PUA benefits as a self-employed1 gig worker. She argues first that
the CARES Act, a federal law, preempts the application of the Exclusion, a
state law, under the Supremacy Clause of the United States Constitution.
U.S. Const. art. VI, cl. 2. She also argues that the Exclusion is void because
it was not a properly promulgated rule under the Administrative Procedure
Act and that the Appeals Board violated her due process rights in relying
on the Exclusion. We need not reach these arguments, however, because
the Appeals Board erred in finding that she must first prove she was
self-employed rather than demonstrating that she met the definition of
“covered individual.”

¶9 In reviewing the Appeals Board’s ruling, we accept its factual
findings unless they are arbitrary, capricious, or an abuse of discretion.
Avila v. Ariz. Dep’t of Econ. Sec., 160 Ariz. 246, 248 (App. 1989). An “agency
abuses its discretion when it misapplies the law or fails to consider the
relevant facts.” Simmons v. Ariz. Dep’t of Econ. Sec., 254 Ariz. 109, 111 ¶ 10
(App. 2022) (quoting Rios Moreno v. Ariz. Dep’t of Econ. Sec., 178 Ariz. 365,
367 (App. 1994)). We review de novo whether the Board properly applied
the law. Bowman v. Ariz. Dep’t of Econ. Sec., 182 Ariz. 543, 545 (App. 1995).

1 The U.S. Department of Labor has defined “self-employed
individual” as “an individual whose primary reliance for income is on the
performance of services in the individual’s own business, or on the
individual’s own farm.” See 20 C.F.R. § 625.2(n). This definition includes
independent contractors, gig economy workers, and workers for certain
religious entities. See U.S. Dep’t of Labor, UIPL No. 16–20 I–3 (2020).

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“We may substitute our judgment for the agency’s conclusions about the
legal effect of facts.” Simmons, 254 Ariz. at 111 ¶ 10.

¶10 In July 2020, an individual was eligible to receive PUA
benefits under the plain language of the CARES Act if that individual was
a “covered individual” which was defined as someone who met two
conditions. First, the individual must be otherwise ineligible for “regular
compensation or extended benefits under State or Federal law or pandemic
emergency unemployment compensation.” 15 U.S.C. § 9021(a)(3)(A)(i). An
individual who fulfills this first condition includes one “who is []seeking
part-time employment, lacking sufficient work history, or who is otherwise
not qualified” for unemployment compensation, employment benefits, or
pandemic emergency unemployment compensation. U.S. Dep’t of Labor,
UIPL Change 4 I-4 (2021). Pittman did not work a traditional job, and thus
cannot be considered a traditional employee. See A.R.S. § 23–771(6) (an
individual is ineligible for unemployment benefits unless she has earned
wages for “insured work”); A.R.S. § 23–619 (defining “insured work” as
confined to employment); A.R.S. § 23–615(A) (defining “employment” as
“any service of whatever nature performed by an employee”); A.R.S.
§ 23–613.01 (an “employee” is not an independent worker). Pittman
demonstrated that she was not qualified for unemployment compensation
and therefore met the first prong of the definition of “covered individual.”

¶11 Second, as required before December 26, 2020, the individual
must self-certify that she “is otherwise able to work and available for work
within the meaning of applicable State law, except the individual is
unemployed, partially unemployed, or unable or unavailable to work”
because of a listed reason related to COVID-19. 15 U.S.C.
§ 9021(a)(3)(A)(ii)(I)(aa)–(kk). One such reason is because the individual
has primary caregiving responsibility over a family member who is unable
to attend school because it is closed as a direct result of the COVID-19
pandemic. 15 U.S.C. § 9021(a)(3)(A)(ii)(I)(dd).

¶12 Pittman also satisfied this condition. She certified that she was
able to and available for work under Arizona law, except that her
daughter’s school was closed as a direct result of the COVID-19 pandemic.
“A claimant’s certification that [she] is available for work is accepted as
prima facie evidence of availability in the absence of evidence to the
contrary.” A.A.C. R6–3–52190(B)(8). Pittman relied on her daughter’s
in-person school attendance to allow her to work. 15 U.S.C.
§ 9021(a)(3)(A)(ii)(I)(dd). She provided evidence that her daughter’s school
switched to remote learning, testified that she had to stay home with her
daughter because of the crime in their neighborhood, and provided

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evidence of that crime. The ALJ did not expressly find her testimony about
the safety of her neighborhood not credible. Pittman thus satisfied the
second condition.

¶13 In sum, Pittman presented evidence that she met the
requirements outlined in the plain language of the CARES Act. The
Department did not present contradictory evidence, and the ALJ did not
find that Pittman’s testimony lacked credibility. Pittman qualified as a
covered individual under the CARES Act, and she was eligible to receive
PUA benefits.

CONCLUSION

¶14 We reverse and remand for a determination of the award.

C A T T A N I, Judge, specially concurring:

¶15 I agree that the Board erred by denying Pittman PUA benefits
to which she was entitled. I write separately to highlight that PUA benefits
were designed precisely for individuals—including gig workers and other
self-employed individuals like Pittman—who would not otherwise qualify
for traditional unemployment benefits. 15 U.S.C. § 9021(a)(3)(A)(ii)(I), (II);
see also UIPL No. 16-20, Attachment I, I-10 (Apr. 5, 2020) (including gig
workers as self-employed). As the decision notes, Pittman self-certified that
she was “self-employed . . . or a gig worker.” But more than that, the only
evidence of record established that, before the pandemic, Pittman worked
in one way or another essentially full-time at a variety of gigs to earn the
modest amount she needed to make ends meet. ADES did not present
controverting evidence or otherwise contest Pittman’s account of full-time
work, and the Tribunal made no finding that Pittman was not credible. See
Simmons v. Ariz. Dep’t of Econ. Sec., 254 Ariz. 109, 113, ¶¶ 20–21 (App. 2022)
(holding that, absent controverting evidence or an adverse credibility
determination, claimant’s testimony was sufficient to establish eligibility
for PUA benefits).

¶16 Although Pittman’s pre-pandemic gig work generated only
limited income, the CARES Act extended PUA benefits to gig workers
(among others) without reference to wage-threshold requirements. See
UIPL No. 16-20, Change 1, Attachment I, I-11 (Apr. 27, 2020) (describing the
relevant consideration as not a fixed floor for qualifying earnings, but rather
whether the self-employed individual (or gig worker, or independent
contractor, etc.) suffered a “significant diminution” from pre-pandemic
work); UIPL No. 16-20, Change 2, Attachment I, I-4 to -5 (July 21, 2020)
(same); see also UIPL No. 16-20, Change 4, Attachment I, I-8 (Jan. 8, 2021)

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Cattani, J., specially concurring

(same). Benefits under the CARES Act are paid by the federal government
(although processed by the States), and the eligibility requirements are
those specified by the federal government. Here, based on the
uncontroverted evidence, Pittman met those requirements, and she is
entitled to PUA benefits.

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

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