Robles v. ades/tucson

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

LILLIAN ROBLES, Appellant,

v.

ARIZONA DEPARTMENT OF ECONOMIC SECURITY, an Agency,

and

TUCSON CUSTOM APPAREL, INC., Appellees.

Nos. 1 CA-UB 21-0221, 1 CA-UB 21-0222, 1 CA-UB 21-0223
CONSOLIDATED
FILED 2-21-2023

Appeal from the A.D.E.S. Appeals Board
Nos. U-1697152-001-B, U-1697155-001-B, U-1697157-001-B

REVERSED

COUNSEL

MayesTelles, PLLC, Phoenix
By J. Blake Mayes, Kaitlin DiMaggio
Counsel for Appellant

Arizona Attorney General’s Office, Tucson
By Jennifer R. Blum
Counsel for Appellee DES
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Decision of the Court

MEMORANDUM DECISION

Judge Peter B. Swann1 delivered the decision of the court, in which
Presiding Judge Maria Elena Cruz and Judge Angela K. Paton joined.

S W A N N, Judge:

¶1 Lillian Robles appeals from an Arizona Department of
Economic Security (“ADES”) Appeals Board’s determination that Tucson
Custom Apparel, Inc. (“Employer”) timely appealed and that she did not
have good cause for quitting. For the following reasons, we reverse the
Appeals Board’s determination that Employer timely appealed, and the
Deputy’s Determination remains final.

FACTS AND PROCEDURAL HISTORY

¶2 Lillian worked as a manager of Employer’s store. Yolanda
Carr and Adrian Fernandez co-owned the store. On October 19, 2020,
Lillian arrived late to work because she had to help her three children log
in to computers for school. Lillian called ahead to tell the store associates
that she was running late; but upon arriving at the store, she alleges that
Yolanda screamed at her for being late and threw objects. Yolanda told
Lillian, “This will not happen again. You will call us and let us know that
you’re . . . late.” After completing her shift that evening, Lillian texted
Yolanda and Adrian, “Thank you for the opportunity, as of today I am
resigning. I wish you the best.” Later, Lillian applied for unemployment
benefits.

1 Judge Peter B. Swann was a sitting member of this court when the
matter was assigned to this panel of the court. He retired effective
November 28, 2022. In accordance with the authority granted by Article 6,
Section 3, of the Arizona Constitution and pursuant to Arizona Revised
Statutes (“A.R.S.”) section 12-145, the Chief Justice of the Arizona Supreme
Court has designated Judge Swann as a judge pro tempore in the Court of
Appeals for the purpose of participating in the resolution of cases assigned
to this panel during his term in office and the period during which his
vacancy remains open and for the duration of Administrative Order 2022-
162.

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¶3 Initially, an ADES Deputy found that Lillian qualified for
unemployment benefits. The Deputy’s Determination, mailed on
November 12, 2020, stated that it would become final “unless a written
appeal is filed . . . within 15 calendar days after the mailing date.” ADES
also mailed a letter to Employer on November 13, 2020, that stated
Employer would not be considered an interested party in the matter
because Employer had not signed and returned a letter mailed on October
19, 2020, within ten days. This decision also had to be appealed by
Employer within fifteen days from the mailing date.

¶4 ADES mailed both letters to Employer’s correct address.
Yolanda contends that despite checking the store’s mailbox in November
and December, she did not find either letter until January 12, 2021. She
mailed a letter appealing both decisions, postmarked on January 15, 2021.

¶5 The Appeal Tribunal held a telephonic hearing on February
26, 2021, and Lillian, Yolanda, and Adrian testified. The Tribunal first
found that Employer timely appealed the Deputy’s decision to award
Lillian unemployment benefits because Employer filed the appeal within
fifteen days of the Determination’s delivery. The Tribunal also found that
Employer timely appealed the Deputy’s Determination that Employer
would not be considered an interested party. Lastly, the Tribunal found
that Lillian quit without good cause, which disqualified her from receiving
unemployment benefits. The Appeals Board affirmed all three Tribunal
decisions.

¶6 Lillian timely requested judicial review by this court, and we
granted her applications for appeal. We accepted jurisdiction under A.R.S.
§ 41-1993 and consolidated the applications for appeal.

DISCUSSION

¶7 We view the evidence in a light most favorable to affirming
the Board’s decisions and will affirm if any reasonable interpretation of the
record supports the decisions. Baca v. Ariz. Dep’t of Econ. Sec., 191 Ariz. 43,
46 (App. 1997). We accept the Board’s findings of facts “unless they are
arbitrary, capricious, or an abuse of discretion.” Avila v. Ariz. Dep’t of Econ.
Sec., 160 Ariz. 246, 248 (App. 1989). However, we review de novo whether
the Board “properly applied the law to the facts before it.” Bowman v. Ariz.
Dep’t of Econ. Sec., 182 Ariz. 543, 545 (App. 1995).

¶8 A Deputy’s Determination shall become final unless one of
the parties filed a request for reconsideration within fifteen days of the
Determination’s mailing. A.R.S. § 23-773(B); A.A.C. R6-3-1503(A). When

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the party mails an appeal via the United States Postal Service (“USPS”), the
appeal is considered filed on the date shown by the postmark. A.A.C. R6-
3-1404(A)(1). An untimely appeal will be considered timely if it was due
to: (1) “[d]epartment error or misinformation,” (2) “delay or other action of
the [USPS]” (the “postal service exception”), or (3) “when the delay
submission was because the individual changed his mailing address at a
time when there would have been no reason for him to notify the
Department of the address change.” A.A.C. R6-3-1404(B). The party
submitting the late appeal must establish one of the exceptions to the
“satisfaction of the Department.” Id.

¶9 The three exceptions listed in A.A.C. R6-3-1404(B) serve to
preserve the parties’ due process guarantees and do not constitute good
cause exceptions. Freelance Interpreting Servs., Inc. v. Ariz. Dep’t of Econ. Sec.,
212 Ariz. 457, 462, ¶ 29 (App. 2006); see also Wallis v. Ariz. Dep’t of Econ. Sec.,
126 Ariz. 582, 585 (App. 1980) (“We must assume that the legislature meant
what it said . . . .”). Thus, no other exceptions for untimely appeals can be
read into the regulation. See Freelance Interpreting Servs., Inc., 212 Ariz. at
462, ¶ 29.

¶10 Lillian contends that the Board erred in finding that
Employer’s late appeal met the postal service exception. The Board stated
that the “Tribunal implicitly found the Employer’s testimony credible” and
sufficient to establish the postal service exception.

¶11 The record does not support the Board’s conclusion that
Employer established the postal service exception. One store co-owner,
Adrian, admitted that it was both store owners’ responsibility to check the
store’s mailbox. Adrian testified that typically the manager, Lillian,
checked the mail, so after October 19, no one collected the mail because he
did not know the mailbox was located at a retail plaza. Adrian also testified
that “[t]he mail wasn’t checked for over a month usually.” But Yolanda
contradicted Adrian’s testimony by stating that she knew the mailbox’s
location and had checked it in November, December, and January. She
stated that she did not see the letter until January 12, 2021, and the most
recent day she had checked the mailbox was January 4. The bookkeeper
continued to pay the bills but told Yolanda that she had not seen the
Deputy’s letters in the mail.

¶12 Employer offered no proof that any delay in mail delivery
was due to USPS error. “[T]here is a strong presumption that a letter
properly addressed, stamped and deposited in the United States mail will
reach the addressee.” State v. Mays, 96 Ariz. 366, 367–68 (1964). Adrian

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speculated that the mail was “probably taken back” due to the mailbox’s
small size, and both owners stated the “mail was backed up.” But the store
still received other mail after October 19 because the bills were timely being
paid. Lillian also stated that, while manager, the store’s mail did not have
any delivery issues, and two other store associates knew about the mailbox.
Even if the owners’ speculation that USPS withheld mail due to a backup
in the mailbox was true, this delay would still be the owners’ fault for failing
to timely collect the mail. Therefore, the Board erred when it affirmed the
Tribunal and found Employer’s appeal timely.

¶13 Because Employer did not timely appeal, the Deputy’s
Determination that Lillian should receive unemployment benefits is final.
Therefore, the issue of whether Lillian had good cause to quit is moot.

CONCLUSION

¶14 For the foregoing reasons, we reverse the Appeals Board’s
determination that Employer timely appealed, and the Deputy’s
Determination remains final.

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

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