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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


        JD MEDICAL DISTRIBUTING COMPANY, INC., Appellant,

                                         v.

   ARIZONA DEPARTMENT OF ECONOMIC SECURITY, an agency,

                                        and

                           RENEE ROACH, Appellees.

                              No. 1 CA-UB 17-0307
                                FILED 5-31-2018


                   Appeal from the A.D.E.S. Appeals Board
                            No. U-1540278-001-B


                              BOARD REVERSED


                                    COUNSEL

JD Medical Distributing Company, Inc., Phoenix
Appellant

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



                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge James B. Morse Jr. and Judge Kent E. Cattani joined.


W I N T H R O P, Judge:

¶1           JD Medical Distributing Company, Inc. (“Employer”) appeals
the decision of the Arizona Department of Economic Security (“ADES”)
Appeals Board (“Board”) granting unemployment insurance benefits to
Renee Roach (“Claimant”). For the following reasons, we hold that the
Board erred and therefore reverse.

                FACTS AND PROCEDURAL HISTORY

¶2          Employer discharged Claimant after three weeks of
employment because Claimant was late to work for two consecutive days.
Claimant thereafter applied for unemployment benefits and an ADES
deputy found Claimant eligible to receive them.

¶3             Employer appealed the initial determination.1 After a
hearing, the ADES Appeals Tribunal (“Tribunal”) reversed, holding
Claimant was discharged for willful or negligent misconduct and was
ineligible to receive benefits. See A.R.S. § 23-775(2). Claimant petitioned
the Board for review. Upon review, the Board reversed the Tribunal’s
decision, finding that Employer failed to meet its burden proving
Claimant’s tardiness amounted to willful or negligent misconduct.

¶4           Employer timely appealed to this court, and we granted its
application pursuant to A.R.S. § 41-1993(B).

                                ANALYSIS

¶5              Employer argues that the Board erred in concluding that it
did not discharge Claimant for disqualifying misconduct, as Claimant had
no valid explanation for her tardiness. We defer to the Board’s decision and
will affirm if, viewing the evidence in the light most favorable to upholding

1      Employer’s appeal to the Tribunal was not timely, Arizona Revised
Statutes (“A.R.S.”) section 23-773(B) (allowing fifteen days to appeal a
deputy determination); however, its timeliness was not raised below.


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                      JD MEDICAL v. ADES/ROACH
                          Decision of the Court

the decision, it is supported by any reasonable interpretation of the
evidence. Prebula v. Ariz. Dep’t of Econ. Sec., 138 Ariz. 26, 30 (App. 1983).
However, the Board’s legal conclusions are not binding on this court, and
we review de novo whether the Board properly applied the law. Rice v. Ariz.
Dep’t of Econ. Sec., 183 Ariz. 199, 201 (App. 1995).

¶6             Under A.R.S. § 23-775(2), an employee is disqualified for
benefits if an employer discharges them for willful or negligent misconduct
connected with the employment. Willful or negligent misconduct includes
the “repeated failure without good cause to exercise due care for
punctuality or attendance in regard to the scheduled hours of work set by
the employer.” A.R.S. § 23-619.01(B)(1); Gardiner v. Ariz. Dep’t of Econ. Sec.,
127 Ariz. 603 (App. 1980). Misconduct can be presumed when a “rule or
standard of conduct normally applied in all employment relationships is
violated[,]” Arizona Administrative Code (“A.A.C.”) § R6-3-5145, and may
be found in “repetition of tardiness caused by the worker’s failure to
exercise due care for punctuality[,]” A.A.C. § R6-3-51435(C). Tardiness,
however due to “unavoidable delay in transportation, emergency
situations, or causes not within the claimant’s control” does not generally
constitute misconduct. A.A.C. § R6-3-51435(B).

¶7             When an employer discharges a claimant, the employer bears
the burden to show that discharge was for disqualifying reasons. Ross v.
Ariz. Dep’t of Econ. Sec., 171 Ariz. 128, 129 (App. 1991). An admission by the
claimant, however, relieves the employer of this burden. A.A.C. § R6-3-
51190(B)(2)(b). Additionally, when an individual makes a statement that is
denied by another party, and not supported by other evidence, “it cannot
be presumed to be true.” A.A.C. § R6-3-51190(B)(2)(a).

¶8             Here, Employer discharged Claimant after she was late for
work on two consecutive days. At the hearing before the Tribunal,
Employer’s representative testified that the scheduled start time is
promptly at 8:00 a.m., and employees are expected to give prior notification
in the event they will be late or absent. On August 2, 2016, Employer
received a text message from Claimant at 8:13 a.m. stating she overslept and
would be at work by 9:00 a.m. Claimant gave no further explanation of her
tardiness for that day.

¶9             The next day Claimant had not arrived for work, and, at 8:18
a.m., Employer sent a text message to Claimant to make sure “everything
was okay.” Claimant responded twenty-two minutes later, “I did it again.
I’ll be [there] in 15. OMG.” When Claimant arrived at work, she was
“visibly flustered,” but had “no real explanation other than that . . . it was


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                     JD MEDICAL v. ADES/ROACH
                         Decision of the Court

so unlike her, it was odd[,]” that “maybe she was sick[,]” and “she was just
not feeling herself.”

¶10            Claimant admitted that she was late on August 3, 2016,
because she overslept and did not hear her alarm. Claimant also testified,
however, that she told Employer she was “very sick.” Nevertheless,
Employer’s representative maintained that Claimant failed to give proper
notice of her tardiness and failed to communicate that she was so ill that her
conduct should be excused.

¶11          At the evidentiary hearing to determine these issues, the
Tribunal found this testimony, along with the fact that once awake,
Claimant was “well enough” to report to work, sufficient to demonstrate
that Employer proved it discharged Claimant for willful or negligent
misconduct.2 Upon review, the Board adopted the Tribunal’s findings of
fact, but reasoned that because Claimant stated she was sick, and
Employer’s representative “acknowledged that [] Claimant mentioned that
she was sick[,]” Employer did not establish Claimant’s actions were
disqualifying conduct. We disagree.

¶12           In determining whether Claimant’s tardiness constituted
willful or negligent misconduct, the Tribunal properly concluded that the
Employer met its burden of proof. It is undisputed that Claimant did not
report to work on time because she overslept and failed to contact Employer
prior to 8:00 a.m. both days she was late. In fact, Employer had to contact
Claimant to determine her whereabouts on August 3rd. See A.A.C. § R6-3-
51435(A) (providing that an employee has “[t]he duty to report to work on
time[.]”). This uncontroverted evidence demonstrates Claimant’s failure to
exercise due care for punctuality, the Employer’s established work hours,
and the company policy that employees are required to notify Employer if
they are going to be late or miss a scheduled work day. See A.R.S. § 23-
619.01(B)(1).

¶13          As to Claimant’s contended good cause, A.A.C. § R6-3-
51435(B), Employer—regardless of whether it acknowledged that Claimant
stated that “maybe she was sick” on August 3rd—denied that Claimant


2     The Tribunal also heard the parties’ testimony as to further instances
of misconduct, including: accounting errors, arguing with vendors, and
impersonating a co-worker to gain access to—and alter—payroll
information. See A.R.S. § 23-619.01(D) (providing that when evaluating
misconduct, the trier of fact may consider “a claimant’s prior history of
employment with the same employer.”).


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                    JD MEDICAL v. ADES/ROACH
                        Decision of the Court

communicated definitively that she was ill, as she offered no such
explanation the first day she overslept and was late, and her
contemporaneous explanation the second day was equivocal at best. See
supra, ¶¶ 8-9. Besides Claimant’s conflicting testimony, she offered no
evidence to support her contention that her tardiness was outside of her
control due to illness. Therefore, as a matter of law, Claimant’s assertion
cannot be presumed to be true. See A.A.C. § R6-3-51190(B)(2)(a).

¶14         On this record, we conclude that the Board erred in its
reasoning and conclusions of law. Accordingly, we reverse and vacate the
Board’s determination that Claimant was eligible for unemployment
benefits.

                             CONCLUSION

¶15          For the foregoing reasons, we reverse the Board’s decision.




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




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