Nieves v. opulent/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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

NICHOLAS NIEVES, Appellant,

v.

OPULENT REAL ESTATE GROUP, L.L.C.

and

ARIZONA DEPARTMENT OF ECONOMIC SECURITY, an Agency,
Appellees.

No. 1 CA-UB 16-0027
FILED 6-7-2018

Appeal from the A.D.E.S. Appeals Board
No. U-1510656-001-BR

AFFIRMED

COUNSEL

Nicholas Nieves, Phoenix
Appellant

Law Office of Joseph A. Velez, Scottsdale
By Joseph A. Velez
Counsel for Appellee Opulent Real Estate Group, LLC

Arizona Attorney General’s Office, Phoenix
By Jennifer L. Holder
Counsel for Arizona Department of Economic Security
 NIEVES v. OPULENT/ADES
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Peter B. Swann delivered the decision of the court, in which
Judge Kent E. Cattani and Chief Judge Samuel A. Thumma joined.

S W A N N, Judge:

¶1 Nicholas Nieves appeals the Arizona Department of
Economic Security (“DES”) Appeals Board (the “Board”) decision denying
his appeal for unemployment insurance benefits. For the following reasons,
we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Opulent Real Estate Group, L.L.C. (“Opulent”) terminated
Nieves from his position as a leasing agent. Nieves applied for
unemployment benefits and the Deputy determined that Nieves was
eligible, finding that Opulent provided “no singular reason” to disqualify
Nieves. Opulent timely requested an appeal and hearing concerning the
Deputy’s determination. The DES Appeal Tribunal (“Tribunal”) held a
telephonic hearing. Nieves, Opulent’s owner James Ruley, and Opulent’s
witness Clara Ramos testified. Counsel appeared on behalf of Opulent. At
the start of the hearing, Opulent stated that it intended to call Ramos as its
only witness.

¶3 As the hearing proceeded, before calling Ramos as a witness,
Opulent indicated that it wanted to examine Ruley. Nieves did not contest
the use of Ruley as a witness, and Ruley testified that he had received 11
complaints concerning Nieves over the course of Nieves’s 8 months of
employment. Clients were dissatisfied with Nieves’s service and conduct,
and internal team members had complained about Nieves’s behavior in the
office. Ruley had warned Nieves three times before the final incident
leading to his termination. Thereafter, another employee, Ramos, reported
to Ruley that Nieves had “screamed and yelled” at coworker Kat Jacobson,
referring to her “disparagingly as a bitch and a rook[ie]” and that Jacobson
had left the office after the incident.

¶4 Ramos corroborated Ruley’s testimony, stating that she “had
witnessed Nick screaming” at Jacobson calling her a “bitch and a rook[ie]
[and] . . . witnessed Nick being rude in our office, talking down to her and

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using vulgarity towards her.” Ruley discharged Nieves because there were
a “substantial amount of [client] complaints against Mr. Nieves in addition
to internal team member complaints” accusing Nieves of “being rude in
[the] office.”

¶5 Nieves then examined the witnesses, presented his case, and
had the opportunity to make a closing statement. After the hearing, the
Tribunal reversed the Deputy’s ruling, determining that Nieves was
disqualified for willful or negligent misconduct on the basis of his
interactions with coworkers. Nieves appealed the determination and sent
new evidence to the Board in his appeal, and the Board’s three-judge panel
affirmed. Nieves requested a review, and the Board affirmed on the same
basis after correcting a procedural defect. Nieves then filed this timely
application for appeal. This court then granted the application for review
and has now considered the briefs filed on appeal.

DISCUSSION

¶6 Nieves argues that the Board erred by: (1) considering
hearsay evidence; (2) declining to consider Nieves’s “new evidence” upon
review; (3) allowing a certain witness to testify; and (4) concluding there is
sufficient evidence to support the denial of benefits.

¶7 We review the evidence in the light most favorable to
sustaining 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 (App. 1997). And we review a request to supplement
the record with new evidence for an abuse of discretion. See Avila v. Ariz.
Dep’t of Econ. Sec., 160 Ariz. 246, 249 (App. 1989). We accept the Board’s
factual findings unless they are arbitrary, capricious, or constitute an abuse
of discretion. Figueroa v. Ariz. Dep’t of Econ. Sec., 227 Ariz. 548, 550, ¶ 9 (App.
2011).

I. THE BOARD DID NOT ERR BY CONSIDERING HEARSAY
EVIDENCE.

¶8 Nieves appears to contest the Board’s reliance on hearsay
testimony as the “sole[ ]” determinative factor in affirming the Tribunal’s
decision. Hearsay is admissible in administrative proceedings before the
Board. Begay v. Ariz. Dep’t of Econ. Sec., 128 Ariz. 407, 409 (App. 1981). To
be admissible, the evidence must possess “probative value commonly
accepted by reasonably prudent persons in the conduct of their affairs.”
A.R.S. § 23-674(D). Upon admission, hearsay evidence may be given either

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probative weight or be the sole support of an administrative decision.
Begay, 128 Ariz. at 409–10.

¶9 Here, the Tribunal admitted hearsay testimony presented
through Ruley, Nieves’s supervisor. At the hearing, Ruley testified that
Ramos told him that Nieves had “screamed and yelled” at their coworker
Jacobson, referring to her “disparagingly as a bitch and a rook[ie]” and as a
result, Jacobson left work early the same day. The testimony is of the type
reasonably accepted by prudent persons in the conduct of their affairs, it
was probative of Nieves’s behavior toward coworkers, and it supported
Opulent’s basis for terminating Nieves. Further, while statements made by
Ruley may be hearsay, Ramos — who directly witnessed Nieves’s behavior
— corroborated Ruley’s statements and her account was not hearsay.
Accordingly, the Board did not err by relying on Ramos and Ruley’s
testimony as support for affirming the Tribunal’s administrative decision.

II. THE BOARD DID NOT ERR BY DECLINING TO CONSIDER NEW
EVIDENCE UPON REVIEW.

¶10 Nieves also argues that the Board wrongfully suppressed his
“impeachment evidence by not reviewing it.” The Board, however, may
elect to not allow the introduction of additional information, unless it can
be shown that such information could not have been presented at the
Tribunal hearing with some exercise of due diligence, or unless the facts of
the case establish some unusual circumstance that would justify
supplementing the record and deciding the case on a new record. A.R.S. §
23-674(D); A.A.C. R6-3-1504. Before the hearing, Nieves was directed to
submit all potential exhibits. The record shows that upon submitting a
request for review by the Board, Nieves presented new evidence. Nieves
provided no reason for the untimely submission of the new evidence, such
as unusual circumstances suggesting that the information could not have
been presented with the exercise of due diligence. Rather, he stated simply
that he did not have “advanced notification before the hearing that this
hearsay claim/issue was going to be considered as part of the hearing.” The
notice Nieves received concerning the hearing sufficiently informed him of
the issues Opulent would raise. See A.A.C. R6-3-1502(B)(2) (the notice
received by parties to a hearing “shall contain . . . the issues involved”).
Here, the Board determined that the notice “clearly identifies one of the
issues as ‘whether the claimant was discharged for misconduct or a
compelling personal reason.’”

¶11 We also disagree with Nieves’s argument that the Board’s
refusal to grant review of the new evidence he provided after the Tribunal

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hearing violated his due process rights. Before the hearing, Nieves received
notice of the issues that Opulent intended to raise and Nieves was afforded
the opportunity to present his case, respond to allegations, present
evidence, and rebut any unfavorable testimony. Salas v. Ariz. Dep’t of Econ.
Sec., 182 Ariz. 141, 143 (App. 1995) (“Procedural due process includes the
right to notice and opportunity to be heard at a meaningful time and in a
meaningful manner.”). Accordingly, the Board neither violated Nieves’s
due process rights nor erred by declining to consider his new evidence
presented after the Tribunal hearing.

III. THE TRIBUNAL DID NOT ERR BY ALLOWING RAMOS TO
TESTIFY.

¶12 Nieves contends that Ramos is “not a credible witness” and
the Tribunal therefore erred by allowing her to testify. But the credibility
of witnesses is within the province of the trier of fact in administrative
proceedings. Anamax Mining Co. v. Ariz. Dep’t of Econ. Sec., 147 Ariz. 482,
486 (App. 1985). A witness’s credibility goes to the weight of his testimony
— not to the testimony’s admissibility. Because the administrative law
judge is the sole judge of witness credibility, we decline to question the
administrative law judge’s determination. See Paramo v. Indus. Comm’n, 186
Ariz. 75, 79 (App. 1996).

IV. THERE IS SUFFICIENT EVIDENCE ON THE RECORD
SUPPORTING THE BOARD’S DETERMINATION.

¶13 Finally, Nieves argues that Opulent did not meet its burden
of proof to show a basis for misconduct. The Board affirmed the Tribunal’s
determination that Nieves was discharged for “misconduct connected with
the employment” under A.R.S. §§ 23-619.01 and -775, and A.A.C. R6-3-
51390. Misconduct in connection with work includes “[i]nsubordination,
disobedience, repeated and inappropriate use of abusive language” and
“[v]iolation without good cause of any rule of conduct . . . which can be
reasonably implied from the type of employment.” A.R.S. § 23-619.01(B)(5),
(8); see also A.A.C. R6-3-5105(A)(1)(c). Opulent presented sufficient
evidence that Nieves acted inappropriately during the course of his
employment and had received three warnings concerning his conduct.
Ruley and another employee testified that despite the warnings, Nieves
called a coworker a “rook[ie]” and “bitch,” and employees reported
separate complaints about Nieves’s conduct in the office. Such
circumstances are sufficient for a finding that Nieves acted with
disobedience and that he repeatedly and inappropriately used abusive

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language toward coworkers. Therefore, we conclude that there is sufficient
evidence to support the Board’s decision.

CONCLUSION

¶14 For the foregoing reasons, we affirm the Board’s
determination denying Nieves unemployment benefits.

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

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