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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ANGELICA PITTMAN, Appellant,

v.

ARIZONA DEPARTMENT OF ECONOMIC SECURITY, an agency, 

Appellee.

No. 1 CA-UB 21-0275 

Appeal from the A.D.E.S. Appeals Board

No. U-1708180-001-B

REVERSED AND REMANDED

COUNSEL

Bryan Cave Leighton Paisner LLP, Phoenix

By Gregory B. Iannelli

Counsel for Appellant

Arizona Attorney General’s Office, Tucson

By Jennifer R. Blum

Counsel for Appellee

Community Legal Services, Phoenix

By Pamela M. Bridge

Co-counsel for Amicus Curiae

FILED 11-16-2023
2

DNA People’s Legal Services Inc., Flagstaff

By Charles W. Doughty

Co-counsel for Amicus Curiae

Southern Arizona Legal Aid, Tucson

By Anthony L. Young

Co-counsel for Amicus Curiae

William E. Morris Institute for Justice, Phoenix

By Andrew P. Schaffer, Branda Munoz Furnish

Co-counsel for Amicus Curiae

MEMORANDUM DECISION

Vice Chief Judge Randall M. Howe delivered the decision of the court, in 

which Judge Anni Hill Foster joined and Judge Kent E. Cattani specially 

concurred.

H O W E, Judge:

¶1 Angelica Pittman appeals the decision of the Appeals Board 

of the Arizona Department of Economic Security finding her ineligible for 

pandemic unemployment assistance (“PUA”) benefits under the 

Coronavirus Aid, Relief, and Economic Security (“CARES”) Act of 2020, 15 

U.S.C. §§ 9001 to 9141. Because the Appeals Board erred in finding Pittman 

ineligible for PUA benefits, we vacate and remand. 

FACTS AND PROCEDURAL HISTORY

¶2 Pittman lives with her teenage daughter. Before the 

COVID-19 pandemic, Pittman did not hold a traditional job but performed 

gig work, including babysitting, selling artwork, sewing costumes, 

repairing computers, working as a field agent for a consumer company, 

recycling scrap metal, and doing yardwork for others. She never made 

enough money to pay taxes. Pittman stopped working in March 2020 once 

the pandemic hit because her daughter had to attend school virtually, and 

Pittman was concerned about her daughter’s safety. She also lost demand 

for her services.

¶3 In July 2020, Pittman filed an initial claim for PUA benefits.

On the application, she certified that she was self-employed as a gig worker, 

currently unemployed as a direct result of the pandemic, but was able and 
PITTMAN v. ADES

Decision of the Court

3

available to accept work. She certified that her daughter’s school was closed 

because of the pandemic, and that she had primary caregiving 

responsibility for her daughter. She also certified that she worked full-time 

and that her quarterly net earnings in 2019 were less than $200. On 

December 14, 2020, the Department disqualified her from receiving PUA 

benefits because it had determined that she had provided insufficient proof 

of wages under the CARES Act. Pittman timely appealed.

¶4 The Administrative Law Judge (“ALJ”) held a hearing, during 

which Pittman testified that she normally made a living doing gig work. A

“gig worker” is “a person who works temporary jobs typically in the service 

sector as an independent contractor or freelancer.” Gig worker, 

Merriam-Webster.com Dictionary, https://www.merriamwebster.com/dictionary/gig%20worker (last visited Oct. 25, 2023). 

She testified that before the pandemic, she worked Monday through Friday; 

she would drop off her daughter at the school bus and then walk around 

“scrapping” for metal in alleyways from 7:30 a.m. to 4:00 p.m. to sell. She 

was paid per pound of metal, which ranged from $13 to $60. She added that 

she was hired to fix computers, a job that did not continue once the 

pandemic hit; she would normally receive between $60 and $150 depending 

on the type of work done on the computer. She added that at the time of the 

hearing she had recently sold artwork after advertising online. She had also 

sold baby clothes and collectible cards online. For all of this work, Pittman 

only earned about $600 for the entire year of 2019.

¶5 During the pandemic, Pittman’s daughter’s school began 

virtual learning. Pittman testified that she could not go scrapping because 

she did not want to leave her 12-year-old daughter unsupervised. Pittman 

stayed home with her daughter because the apartment in general was 

unsafe; several people had been killed, shot, or stabbed there. Pittman 

added that her other daughter had been kidnapped, drugged, and raped 

when she was 16 years old. Her only other source of sustenance was food 

stamps.

¶6 The ALJ affirmed the Department’s determination because 

Pittman did not establish that she was “attached to the labor force” or 

provide proof that she worked “other than odd jobs for a few hours 

weekly.” The ALJ cited the CARES Act, the Department of Labor’s 

Unemployment Insurance Program Letters (“UIPL”) No. 16-20 (2020), 

No. 16-20 Change 1 (2020), and No. 16-20 Change 2 (2020), along with an 

internal Department policy that implemented the CARES Act 

(“Exclusion”). The Exclusion provides, “Odd jobs, such as babysitting or 
PITTMAN v. ADES

Decision of the Court

4

doing neighborhood yard work for a few hours weekly, do not constitute a 

recent attachment to the labor market.”

¶7 Pittman timely appealed. The Appeals Board affirmed, 

finding that Pittman’s gig work were “odd jobs” that did not show that she 

was self-employed. Pittman timely requested judicial review by this court,

arguing that she was not required to present any evidence before the 

amendment of the CARES Act on December 27, 2020, and that even if she 

was required to present evidence to substantiate her claim, she met her 

burden. This court granted her application under A.R.S. § 41–1993, 

appointed her pro bono counsel, and requested briefing on specific issues.

DISCUSSION

¶8 In her supplemental opening brief, Pittman presents several 

arguments that the Appeals Board abused its discretion in denying her 

claim for PUA benefits as a self-employed1 gig worker. She argues first that 

the CARES Act, a federal law, preempts the application of the Exclusion, a 

state law, under the Supremacy Clause of the United States Constitution. 

U.S. Const. art. VI, cl. 2. She also argues that the Exclusion is void because 

it was not a properly promulgated rule under the Administrative Procedure 

Act and that the Appeals Board violated her due process rights in relying 

on the Exclusion. We need not reach these arguments, however, because

the Appeals Board erred in finding that she must first prove she was 

self-employed rather than demonstrating that she met the definition of 

“covered individual.” 

¶9 In reviewing the Appeals Board’s ruling, we accept its factual 

findings unless they are arbitrary, capricious, or an abuse of discretion. 

Avila v. Ariz. Dep’t of Econ. Sec., 160 Ariz. 246, 248 (App. 1989). An “agency 

abuses its discretion when it misapplies the law or fails to consider the 

relevant facts.” Simmons v. Ariz. Dep’t of Econ. Sec., 254 Ariz. 109, 111 ¶ 10 

(App. 2022) (quoting Rios Moreno v. Ariz. Dep’t of Econ. Sec., 178 Ariz. 365, 

367 (App. 1994)). We review de novo whether the Board properly applied 

the law. Bowman v. Ariz. Dep’t of Econ. Sec., 182 Ariz. 543, 545 (App. 1995). 

1 The U.S. Department of Labor has defined “self-employed 

individual” as “an individual whose primary reliance for income is on the 

performance of services in the individual’s own business, or on the 

individual’s own farm.” See 20 C.F.R. § 625.2(n). This definition includes

independent contractors, gig economy workers, and workers for certain 

religious entities. See U.S. Dep’t of Labor, UIPL No. 16–20 I–3 (2020).
PITTMAN v. ADES

Decision of the Court

5

“We may substitute our judgment for the agency’s conclusions about the 

legal effect of facts.” Simmons, 254 Ariz. at 111 ¶ 10.

¶10 In July 2020, an individual was eligible to receive PUA 

benefits under the plain language of the CARES Act if that individual was 

a “covered individual” which was defined as someone who met two 

conditions. First, the individual must be otherwise ineligible for “regular 

compensation or extended benefits under State or Federal law or pandemic 

emergency unemployment compensation.” 15 U.S.C. § 9021(a)(3)(A)(i). An 

individual who fulfills this first condition includes one “who is []seeking 

part-time employment, lacking sufficient work history, or who is otherwise 

not qualified” for unemployment compensation, employment benefits, or 

pandemic emergency unemployment compensation. U.S. Dep’t of Labor, 

UIPL Change 4 I-4 (2021). Pittman did not work a traditional job, and thus 

cannot be considered a traditional employee. See A.R.S. § 23–771(6) (an 

individual is ineligible for unemployment benefits unless she has earned 

wages for “insured work”); A.R.S. § 23–619 (defining “insured work” as 

confined to employment); A.R.S. § 23–615(A) (defining “employment” as 

“any service of whatever nature performed by an employee”); A.R.S. 

§ 23–613.01 (an “employee” is not an independent worker). Pittman 

demonstrated that she was not qualified for unemployment compensation 

and therefore met the first prong of the definition of “covered individual.” 

¶11 Second, as required before December 26, 2020, the individual 

must self-certify that she “is otherwise able to work and available for work 

within the meaning of applicable State law, except the individual is 

unemployed, partially unemployed, or unable or unavailable to work” 

because of a listed reason related to COVID-19. 15 U.S.C. 

§ 9021(a)(3)(A)(ii)(I)(aa)–(kk). One such reason is because the individual 

has primary caregiving responsibility over a family member who is unable 

to attend school because it is closed as a direct result of the COVID-19 

pandemic. 15 U.S.C. § 9021(a)(3)(A)(ii)(I)(dd). 

¶12 Pittman also satisfied this condition. She certified that she was 

able to and available for work under Arizona law, except that her 

daughter’s school was closed as a direct result of the COVID-19 pandemic. 

“A claimant’s certification that [she] is available for work is accepted as 

prima facie evidence of availability in the absence of evidence to the 

contrary.” A.A.C. R6–3–52190(B)(8). Pittman relied on her daughter’s 

in-person school attendance to allow her to work. 15 U.S.C. 

§ 9021(a)(3)(A)(ii)(I)(dd). She provided evidence that her daughter’s school 

switched to remote learning, testified that she had to stay home with her 

daughter because of the crime in their neighborhood, and provided 
PITTMAN v. ADES

Decision of the Court

6

evidence of that crime. The ALJ did not expressly find her testimony about 

the safety of her neighborhood not credible. Pittman thus satisfied the 

second condition.

¶13 In sum, Pittman presented evidence that she met the 

requirements outlined in the plain language of the CARES Act. The 

Department did not present contradictory evidence, and the ALJ did not 

find that Pittman’s testimony lacked credibility. Pittman qualified as a 

covered individual under the CARES Act, and she was eligible to receive 

PUA benefits.

CONCLUSION

¶14 We reverse and remand for a determination of the award.

C A T T A N I, Judge, specially concurring:

¶15 I agree that the Board erred by denying Pittman PUA benefits 

to which she was entitled. I write separately to highlight that PUA benefits 

were designed precisely for individuals—including gig workers and other 

self-employed individuals like Pittman—who would not otherwise qualify 

for traditional unemployment benefits. 15 U.S.C. § 9021(a)(3)(A)(ii)(I), (II); 

see also UIPL No. 16-20, Attachment I, I-10 (Apr. 5, 2020) (including gig 

workers as self-employed). As the decision notes, Pittman self-certified that 

she was “self-employed . . . or a gig worker.” But more than that, the only

evidence of record established that, before the pandemic, Pittman worked 

in one way or another essentially full-time at a variety of gigs to earn the 

modest amount she needed to make ends meet. ADES did not present 

controverting evidence or otherwise contest Pittman’s account of full-time 

work, and the Tribunal made no finding that Pittman was not credible. See 

Simmons v. Ariz. Dep’t of Econ. Sec., 254 Ariz. 109, 113, ¶¶ 20–21 (App. 2022)

(holding that, absent controverting evidence or an adverse credibility 

determination, claimant’s testimony was sufficient to establish eligibility 

for PUA benefits). 

¶16 Although Pittman’s pre-pandemic gig work generated only 

limited income, the CARES Act extended PUA benefits to gig workers 

(among others) without reference to wage-threshold requirements. See

UIPL No. 16-20, Change 1, Attachment I, I-11 (Apr. 27, 2020) (describing the 

relevant consideration as not a fixed floor for qualifying earnings, but rather 

whether the self-employed individual (or gig worker, or independent 

contractor, etc.) suffered a “significant diminution” from pre-pandemic 

work); UIPL No. 16-20, Change 2, Attachment I, I-4 to -5 (July 21, 2020) 

(same); see also UIPL No. 16-20, Change 4, Attachment I, I-8 (Jan. 8, 2021) 
PITTMAN v. ADES

Cattani, J., specially concurring

7

(same). Benefits under the CARES Act are paid by the federal government 

(although processed by the States), and the eligibility requirements are 

those specified by the federal government. Here, based on the 

uncontroverted evidence, Pittman met those requirements, and she is 

entitled to PUA benefits.