NOTICE:
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE
CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION ONE
CHARLES T. JORDAN, JR.,
Appellant,
v.
ARIZONA DEPARTMENT OF ECONOMIC
SECURITY, an Agency,
and
AVALON HEALTH AND REHAB CENTER
TUCSON, LLC,
Appellees.
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DIVISION ONE
FILED: 06/07/2011
RUTH A. WILLINGHAM,
CLERK
BY: DLL
No. 1 CA-UB 09-0195
DEPARTMENT A
MEMORANDUM DECISION
(Not for Publication –
Rule 28, Arizona Rules
of Civil Appellate
Procedure)
Appeal from the Appeals Board of the Department of Economic
Security of the State of Arizona
A.D.E.S. Appeals Board No. U-1118146-BR
REVERSED AND REMANDED
Charles T. Jordan, Jr.
Appellant in Propria Persona
Tucson
Thomas C. Horne, Arizona Attorney General
Tucson
By
Claudia Acosta Collings, Assistant Attorney General
Attorneys for Appellee Arizona Department of Economic Security
T H O M P S O N, Judge
¶1
Charles T. Jordan (Jordan) appeals from the denial of his
claim for unemployment insurance benefits.
The Arizona Department
of Economic Security (ADES) Unemployment Insurance Appeals Board
(the Board) determined that Jordan was disqualified from benefits
because he was discharged for work-related misconduct.
For the
following reasons, we reverse and remand for an award of benefits.
FACTUAL AND PROCEDURAL HISTORY
¶2
Health
Jordan was employed as an activity director at Avalon
and
Rehabilitation
Center
(Avalon),
a
skilled
nursing
facility in Tucson, for approximately seventeen months before he
was discharged for violating an employer policy.
Jordan was
discharged because he overheard a patient tell another patient and
family members that she had been beaten up by aides, and he did not
immediately report the incident.
Avalon had a policy which
required
report
employees
resident abuse.
to
immediately
any
allegations
of
Instead, Jordan told the patient to report the
incident to an administrator, Mr. Steve Anderson (Anderson).
did so the following day.
She
There had been no previous incidents
where Jordan was alleged to have violated reporting policies.
¶3
Jordan applied for unemployment benefits, which were
denied by an ADES department deputy.
Jordan appealed, and a
hearing was held before the ADES Appeal Tribunal.
At the appeal
tribunal hearing, Jordan testified that when the patient made the
allegation, her family members told him that the incident had not
2
occurred; they had been with her when the abuse allegedly happened.
Jordan further testified that Avalon had not enforced the policy
on another occasion when a patient had actually been abused in
2007.
In that instance, according to Jordan, Avalon terminated the
abuser but did not terminate a certified nursing assistant and
nurse
who
were
aware
of
but
failed
to
report
the
incident.
Anderson, who had not been employed by Avalon at that time, was not
aware of the 2007 incident described by Jordan.
Anderson further
testified that, with regard to the incident which led to Jordan’s
discharge, the allegation that the patient had been beaten up by an
aide was indeed unsubstantiated.
The Appeal Tribunal reversed the
deputy’s determination and found that the applicant was discharged
for
reasons
other
than
willful
connection with the employment.
or
negligent
misconduct
in
The administrative law judge
focused on Jordan’s lack of a previous record and the fact that
previous
violators
substantially
less
of
the
discipline
reporting
for
the
policy
same
had
violation
received
in
his
decision.
¶4
Avalon appealed.
The Appeals Board found that Jordan had
not established that the policy was not uniformly enforced and
reversed the decision of the Appeal Tribunal.
Jordan filed a
request for review, and the Appeals Board affirmed its decision on
review.
Jordan timely appealed, and we granted the application for
appeal.
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DISCUSSION
¶5
We are bound by the Board’s reasonable findings of fact,
but are not bound by its legal conclusions and independently
determine whether the Board properly interpreted the law.
Mungia
v. Dep’t of Econ. Sec., 159 Ariz. 157, 159, 765 P.2d 559, 561 (App.
1988).
We will affirm the Board’s decision if any reasonable
interpretation of the record supports it.
Bowman v. Ariz. Dep’t of
Econ. Sec., 182 Ariz. 543, 545, 898 P.2d 492, 494 (App. 1995).
However, courts interpret the law and facts “liberally to grant
benefits and narrowly to deny benefits” to further the public
policy of providing benefits for unemployed workers.
Mungia, 159
Ariz. at 162, 765 P.2d at 564 (App. 1998).
¶6
An employer has the burden of proving that an employee
was discharged for disqualifying reasons.
Ross v. Ariz. Dep’t of
Econ. Sec., 171 Ariz. 128, 129, 829 P.2d 318, 319 (App. 1991); see
also Ariz. Admin. Code (A.A.C.) R6-3-51190(B)(2).
Among other
reasons, an employee is disqualified from receiving benefits if his
discharge was due to “willful or negligent misconduct connected
with the employment.”
A.R.S. § 23-775(2) (1995).
A.A.C. R6-3-
51485, provides in relevant part:
1.
An employee, discharged for violating a
company rule, generally is considered
discharged for misconduct connected with the
work. This principle is based on the theory
that when hired, an employee agrees to abide
by the rules of his employer. This section
covers rules peculiar to a particular
employer, and not rules constituting the
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general code of industrial misconduct. In
order for misconduct connected with the work
to be found, it must be determined that the
claimant knew or should have known of the
rule and that the rule is reasonable and
uniformly enforced.
2.
Recognition must be accorded to the type
of business in which the employer is engaged
and other surrounding circumstances.
The
rule must be reasonable in light of public
policy and should not constitute an
infringement upon the recognized rights and
privileges of workers as individuals.
(Emphasis added).
¶7
The Appeal Tribunal had sufficient evidence to support
its decision in favor of Jordan on the basis that Avalon had not
met its burden of proof in regards to the alleged incident that
resulted in Jordan’s discharge and the uniform enforcement of its
reporting policy.
Our review of the record indicates that there
was not substantial evidence to support the Board’s finding that
Avalon’s policy was uniformly enforced.
Accordingly, we find that
the Board abused its discretion when it reversed the Appeal
Tribunal.
¶8
We reverse the denial of benefits and remand for an award
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of appropriate benefits to Jordan.
/s/
________________________________
JON W. THOMPSON, Judge
CONCURRING:
/s/
_____________________________________
PHILIP HALL, Presiding Judge
/s/
_____________________________________
LAWRENCE F. WINTHROP, Judge
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