ADINA v. ADES/JP MORGAN

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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 ARLEN B. ADINA, ) ) Appellant, ) ) v. ) ) ARIZONA DEPARTMENT OF ECONOMIC ) SECURITY, an Agency, ) ) and ) ) JP MORGAN CHASE BANK NA, ) ) Appellees. ) __________________________________) 1 CA-UB 12-0327 1 CA-UB 13-0004 (Consolidated) DIVISION ONE FILED: 10/29/2013 RUTH A. WILLINGHAM, CLERK BY: GH DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Appeals Board of the Department of Economic Security of the State of Arizona A.D.E.S.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-1323337-BR and U-1331458-BR Administrative Law Judge Louis Deleon Administrative Law Judge Timothy Rollins AFFIRMED Arlen B. Adina, Appellant In Propria Persona Phoenix Thomas C. Horne, Attorney General Phoenix by Carol A. Salvati, Assistant Attorney General Attorneys for Appellee Arizona Department of Economic Security T H U M M A, Judge ¶1 Arlen B. Adina appeals from administrative decisions in two unemployment benefit cases. Adina challenges the Appeals Board s determination that she was discharged as a teller for negligent misconduct determination. Because and challenges substantial an evidence overpayment supports the decisions, the Appeals Board s determinations are affirmed. FACTS 1 AND PROCEDURAL HISTORY ¶2 Adina worked for JP Morgan Bank (Employer) as a full- time teller for 12 years. Adina had a good work record until her transfer to the Glendale branch in 2010, about a year before her discharge. Employer apparently began coaching and counseling Adina on errors just a few months after her transfer to the Glendale branch. Adina s discipline and eventual discharge resulted from several specific errors she made in the summer and fall of 2011. ¶3 wrong In June 2011, Adina posted a customer s deposit to the account, causing the customer to incur a fee for insufficient funds and resulting in a customer complaint. In July 2011, Adina told a merchant customer that a deposit was twenty dollars short. This resulted in a customer complaint, and 1 This court views the evidence in a light most favorable to upholding the decision of the Appeals Board. Prebula v. Ariz. Dep t of Econ. Sec., 138 Ariz. 26, 30, 672 P.2d 978, 982 (App. 1983). 2 once investigated, Employer found the twenty dollars on the manager and floor near Adina s teller station. ¶4 In August 2011, contrary to Employer s without consulting policies, Adina a informed a merchant customer that checks must be endorsed before coming to the bank and, if that did not occur, deposits would not be processed. The customer complained to a district manager and Adina received a written warning a week later specifically mentioning all three of these errors. The written warning noted general unsatisfactory performance and stated that Adina was expected to remain focused on every interaction and fully review and verify what is presented to you every time, as well as seek management before telling customers if they have a transaction difference. Additionally, the written warning stated that failure to provide [i]mmediate and sustained improvement . . . may result in further corrective action, up to and including termination. ¶5 In October 2011, again without consulting a manager, Adina incorrectly adjusted a customer s deposit amount from $690 to $241 because she believed there were checks missing from a deposit. In fact, the checks were included with the deposit. Unfortunately, it took Employer fourteen days to retrieve the archived checks amongst Adina s 3 deposit paperwork and then properly credit the customer s account. Due to this error, Employer discharged Adina. ¶6 Adina applied for unemployment benefits, and the Deputy determined she was eligible because [a] disregard of the employer s timely interest appeal, the has not Appeal been established. Tribunal held a On formal Employer s hearing on January 10, 2012. 2 Employer testified it discharged Adina for [u]nsatisfactory procedures. performance, Employer specifically maintained that Adina to was policy warned and on accuracy and efficiency, including that mistakes could lead to discharge. ¶7 When asked for her reasons for the mistakes, Adina stated [e]very time they coach me or they ask me . . . why I m having . . . errors or mistakes, I told them that sometimes it s so busy, adding she was required to cover multiple stations. When asked about the October 2011 incident that led to her discharge, Adina stated, the scan [system] was just new to our . . . system. We didn t have this before, but it s . . . been like a year or more than a year that they put this in the system . . . the reason why I did the scan later, because it s so busy. . . . Those are not intentional mistakes, those are just mistakes that it could happen to anybody. 2 Although Adina had an interpreter at subsequent proceedings, at this hearing, there was no interpreter and it does not appear that Adina had requested an interpreter. 4 Adina also claimed Employer was harassing me to the point that I was making mistakes, an issue she said she did not raise because I was so afraid of retaliation. When asked whether she had any proof that Employer did not treat her fairly, Adina stated, every month they . . . were looking for my mistakes. Adina added she wrote (but did not send) a letter requesting a transfer to another branch due to the miserable working environment. 3 ¶8 Employer countered that many of the incidents . . . were brought to our attention . . . either by customer complaint . . . or by our research and adjustment department, so [i]t wasn t something that we were actually looking for. Employer also maintained that its policies were uniformly enforced. ¶9 On January 12, 2012, the Appeal Tribunal reversed the Deputy s ruling. The Appeal Tribunal found Employer s testimony more credible and found Adina was discharged for misconduct, specifically for violating a company rule and failure to exercise ordinary care amounting to negligent misconduct under Arizona Administrative Code (A.A.C.) R6-3-51300 and R6-3-51485. 3 Adina said she did not send the letter because [she was] so afraid of the retaliation. This letter was not submitted before or during the hearing and was not part of the formal hearing record. 5 ¶10 The Appeals Board reviewed the merits of the Appeal Tribunal decision. 4 In doing so, the Appeals Board declined to consider new evidence and allegations Adina sought to press, restricted generally the review adopted the to the findings Appeal of Tribunal the and Tribunal. Appeal record The Appeals Board concluded that Adina s discharge date was November 3, 2011 and modified her disqualification period accordingly. ¶11 As a result of these administrative decisions, Adina received $1,440 in unemployment benefits that she should not have received for the weeks of December 3, 2011 through January 7, 2012. At a hearing on the overpayment issue, where she was assisted by an unemployment interpreter, payments. The Adina confirmed Appeal receipt the affirmed Tribunal of an overpayment determination classified as administrative and the Appeals Board Board affirmed considered the that merits decision. 5 of the Likewise, appeal and the Appeals affirmed the Appeal Tribunal decision. ¶12 Adina timely appealed both her discharge and overpayment cases to this court, which granted Adina s appeals 4 Although initially rejecting Adina s appeal in the misconduct case as untimely, the Appeals Board later concluded her appeal was the subject of a postal error and therefore timely. 5 As with the misconduct case, although initially rejecting Adina s appeal in the overpayment case as untimely, the Appeals Board later concluded her appeal was the subject of a postal error and therefore timely. 6 and consolidated the cases. This court has jurisdiction over the appeals pursuant to Article 6, Section 9 of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) section 411993(B) (2013). 6 DISCUSSION I. Standard Of Review. ¶13 This court will affirm an Appeals Board decision if it is supported by substantial evidence and accepts the Appeals Board s factual findings unless they are arbitrary, capricious, or an abuse of discretion. Rice v. Ariz. Dep t of Econ. Sec., 183 Ariz. 199, 201, 901 P.2d 1242, 1244 (App. 1995). This court reviews de novo whether the Appeals Board properly interpreted the law. Id.; Prebula, 138 Ariz. at 30, 672 P.2d at 982. However, the credibility of witnesses is a matter peculiarly within the province of the trier of facts. Anamax Mining Co. v. Ariz. Dep t of Econ. Sec., 147 Ariz. 482, 486, 711 P.2d 621, 625 (App. 1985). II. Discharge For Misconduct. A. ¶14 Declining To Consider New Evidence And Arguments. In her discharge case, Adina pressed additional arguments and evidence on appeal that she did not raise at the 6 Absent material revisions after the relevant dates, statutes cited refer to the current version unless otherwise indicated. 7 Appeal Tribunal hearing. The Appeals Board did not allow the introduction of this additional information. ¶15 The administrative process requires that [a]ll interested parties shall be ready and present with all witnesses and documents at the . . . hearing and shall be prepared at such time to dispose of all issues and questions involved in the appeal or petition. A.A.C. R6-3-1502(L). The Appeals Board does have discretion to order the taking of additional evidence. A.R.S. §§ 23-672(C), 23-674(C); A.A.C. R6-3-1507(C)(1)(b); see also Avila v. Ariz. Dep t of Econ. Sec., 160 Ariz. 246, 249, 772 P.2d 600, 603 (App. 1989). ¶16 In declining to consider the new arguments and evidence, the Appeals Board noted it would confine its review to the Tribunal hearing absent a showing that such information could not have been presented at the Appeal Tribunal hearing with the exercise of due diligence or of unusual circumstances which would justify supplementing the record. The Appeals Board then concluded that [t]his record does not establish either ground, and Adina had sufficient notice of the issues . . . to have previously produced the information the new now submitted for without any inclusion in the record. ¶17 Adina included information explanation why she did not present it at the Appeal Tribunal 8 hearing. She also did not show that anything prevented her from presenting the information at the prior hearings. Accordingly, the Appeals Board did not abuse its discretion in refusing to consider Adina s new arguments and evidence. B. Discharge For Negligent Misconduct. ¶18 The Appeal Tribunal found Adina s conduct amounted to negligent misconduct for failure to exercise ordinary care; the Appeals court, Board Adina adopted these asserts findings. that she was In not her appeal to terminated this due to misconduct but was written up for minor errors that did not constitute negligent misconduct justifying discharge. ¶19 Employer discharge was had for the burden of disqualifying proof to reasons. show Adina s A.A.C. R6-3- 51190(B)(2)(b). This requires proof that the employee committed [acts] of misconduct connected with his work and he must have been discharged for such act(s). A.A.C. R6-3-51385(A). Misconduct is defined as any act or omission by an employee which constitutes a material or substantial breach of the employee s duties . . . or which adversely affects a material or substantial interest of the employer. A.R.S. § 23-619.01. ¶20 Ordinary misconduct, fails to which exercise carelessness generally ordinary may arises care 9 in amount when the a to worker negligent knowingly performance of his duties. A.A.C. R6-3-51300(A)(1). However, [i]n the absence of gross carelessness carelessness or or negligence, negligence, or work recurrence errors are of ordinary presumptively attributed to good faith and absent contrary evidence do not amount to negligent claimant s work misconduct. history with A.A.C. the R6-3-51300(A)(3). employer is a factor A of consideration in determining whether the employee s actions rise to misconduct. A.R.S. § 23-619.01(D). ¶21 As summarized above, employer as early February significant work as issues Adina was 2011, resulting counseled yet in she customer by her still had complaints. Starting in June 2011, Adina had several significant incidents regarding accuracy and efficiency in a comparatively short period of time. By that time, she knew of Employer s policies and had been warned about her errors. Employer testified that when counseled, Adina acknowledged that . . . she needed to pay more attention and be more focused. Adina s acknowledgement shows her awareness and understanding that Employer expected her to improve her accuracy. While Adina provided testimony that her errors were due to the volume of work required of her, the Appeal Tribunal found the testimony of Employer more credible. This court does not re-weigh credibility. Anamax Mining Co., 147 Ariz. at 486, 711 P.2d at 625. 10 ¶22 Adina also claims Employer was targeting her and looking for her mistakes. Adina did not provide further evidence beyond her testimony at the hearing that Employer was being unfair with her. Employer testified that it uniformly enforced employment policies and that most of Adina s mistakes came to management s attention through either customer complaints or the bank s research department. Given this evidence, the Appeals Board did not err in rejecting Adina s allegations. See id. ¶23 Employer s written repeated carelessness could warning lead to informed her Adina discharge. that She was specifically instructed to involve management before informing customers that they had a transaction difference. Despite this requirement, customer s Adina adjusted detriment without contrary to than years 12 Employer s of a customer first consulting instructions. experience as a transaction to the management, all Finally, teller, Adina and had more therefore had considerable knowledge about teller duties. Given these facts, there was substantial evidence from which the Appeals Board could find negligent misconduct. 7 7 Because substantial evidence supported the Appeals Board conclusion that Adina was discharged for negligent misconduct, this court need not address whether substantial evidence exists regarding misconduct for a rule violation. 11 III. Overpayment. ¶24 Based on her discharge for misconduct, Adina was assessed an overpayment totaling $1,440. One who receives any amount as benefits . . . to which the person is not entitled is liable to repay the overpaid amount to the department. A.R.S. § 23-787(A). An administrative overpayment which occurred benefit without overpayment fault on the is part of an the claimant. A.A.C. R6-3-1301(6). ¶25 No unemployment misconduct, one disputes benefits, the that and benefits Adina that were due received the to discharge properly her specified classified for as an overpayment. No evidence shows that Adina was at fault for the Deputy s initial determination, so the Appeals Board correctly classified the overpayment as administrative. On appeal, other than challenging her discharge for negligent misconduct, Adina provides no argument countering these findings. Accordingly, and because substantial conclusions evidence regarding supports Adina s the discharge Appeals for Board s negligent misconduct, Adina s challenge to the overpayment finding fails. 12 CONCLUSION ¶26 Based on the Appeal Tribunal record, substantial evidence supports the Appeals Board determinations that Adina was discharged for negligent misconduct and received an overpayment properly classified as administrative. Accordingly, the Appeals Board determinations in Adina s unemployment cases are affirmed. /S/_______________________________ SAMUEL A. THUMMA, Judge CONCURRING: /S/_____________________________ RANDALL M. HOWE, Presiding Judge /S/_____________________________ PATRICIA A. OROZCO, Judge 13

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