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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

CARLOS LETONA

, Plaintiff/Appellant

,

v.

ARIZONA DEPARTMENT OF CORRECTIONS, et al.

,

Defendant s

/Appellee s

.

No. 1 CA

- CV 18

- 0590

Appeal from the Superior Court in Maricopa County

No. LC2017

- 000455

- 001
The Honorabl e Patricia A. Starr

, Judge

AFFIRMED

COUNSEL

Bihn & McDaniel, PLC , Phoenix By Martin A. Bihn , Donna M. McDaniel Counsel for Plaintiff/Appellant

Arizona Attorney General’s Office

, Phoenix By Michael K. Goodwin, Kirstin A. Story
C ounsel for Defendant s

/Appellee s Department of Corrections and Timothy Rhyne

Jackson Lewis P.C., Phoenix By Jeffrey W. Toppel, Monica M. Ryden Counsel for Defendants/Appellees Arizona State Personnel Board and its Members FILED 6-20-2019LETONA v. AD O C, et al.
Decision of the Court

2 MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court, in which Judge Kent E. Cattani and Judge Diane M. Johnsen joined.

W I N T H R O P

, Judge:

¶1 Carlos Letona (“Appellant”) challenges the superior court’s

ru ling affirming an administrative award of back pay made by the State Personnel Board (“Board”) and adopted by the Arizona Department of
Corrections (“ADC”). Appellant does not appeal the merits of the award, but instead argues the administrative process l acked statutory authority

. For the following reasons, we affirm the superior court’s ruling.

FACTS AND PROCEDURAL HISTORY

¶2 Appellant work s as a corrections officer for ADC

. On December 4, 2015, Appellant was fired for unnecessarily using “OC spray,” a chemical agent, on an inmate diagnosed with mental health issues

. Under Arizona Revised Statutes (“ A.R.S. ”) section 41

- 783(A) (2019)

, 1 a “covered” state employee is entitled to pre

- termination notice and a chance to respond to the allegations

. At the time of the termination, Appellant was on probation for a different incident , which ADC believe d resulted in Appellant losing his status as a covered employee ; accordingly, ADC did not provide a pre

- termination notice

. On December 8, 2015, Appellant appealed the termination to the Board, arguing he was a covered employee
and ADC had violated his procedural due process rights by not giving him

pre

- termination notice. The Board agreed with ADC and determined Appellant did not have the right to appe a l the termination because the
statute did not entitle him to notice

. Appellant appealed the Board’s decision to the superior court. The superior court reversed, finding that Appellan t was a covered employee and entitled to pre

- termination notice

.
¶3 On remand, the Board scheduled a n appeal hearing for
December 2016. Appellant then filed a motion with the hearing officer requesting a summary ruling. He argued the superior court ’s previo us ruling established ADC violated his procedural due process rights and he

1 We cite to the current version of the statute(s) when no revisions
material to this decision have occurred.LETONA v. AD O C, et al.
Decision of the Court

3 was therefore entitled to an award of back pay

. Before responding to the motion, ADC reinstated Appellant to his pre

- termination position and sent a formal notice of discipline fo r the OC s pray incident, giving Appellant a chance to respond to the allegations. ADC then responded to the motion

, arguing Appellant had been reinstated but was not yet entitled to an award
of back pay because ADC had not determined the level of discipli ne it would ultimately impose for the incident.

¶4 In his reply, Appellant argu ed the superior court’s ruling and
ADC’s reinstatement constituted a reversal of his initial termination and an
award of back pay was therefore mandatory under A.R.S. § 38

- 1106(J). He further argued that any subsequent discipline or termination due to the incident would be a separate issue from the December 2015 termination. The hearing officer agreed and determined that Appellant was entitled to
back pay under § 38

- 11 06(J). Nonetheless, the officer denied Appellant’s
motion because she de termined an evidentiary hearing was necessary to
de cide the amount of the award. 2 ADC then provided written notice that it would impose an eight y

- hour suspension in lieu of the termi nation.

¶5 A fter the evidentiary hearing, the hearing officer issued a recommendation for the Board to grant the appeal, reverse the termination, and award Appellant a uniform allowance and back pay

— reduced by earnings Appellant received from another job afte r he was fired. In April 2017, the Board adopted the hearing officer’s recommendation to grant the appeal and issue the uniform allowance and back pay

— but not the
recommendation to reverse the termination. Because there was a discrepancy in Appellant’s e mployment file, the Board stated that before it would reverse the termination, ADC must submit proof that the

termination had been officially rescinded and documented in the employment file. An evidentiary hearing was set so that ADC could submit
the required proof. Before the hearing, in March 2017, ADC accepted the Board’s ruling and paid Appellant $39,506.53 ( $21,080.06 after taxes).

¶6 Although the only outstanding issue at the time the Board adopted the hearing officer’s recommendation was the mandate that ADC

2 T he hearing officer initially determined the appeal was moot because Appellant had been reinstated. However, after the evidentiary hearing, the hearing officer stated “ [ b ] ecause Appellant did not withdraw his appeal, and ADC did not rescind the dismissal, the appeal is a ‘live’ appeal and is not moot based solely on the ADC’s reinstatement. The Board is required to make the appropriate findings and orders to dis pose of the appeal as required by applicable law.”LETONA v. AD O C, et al.
Decision of the Court

4 provide proof that the termination was rescinded, the Board stated that either party

, at their discretion, could request a hearing on whether just
cause existed for the termination. Appellant requested such a hearing

. T he Board grant ed the request , and t he issue was set to be heard along with
submission of the proof of the termination’s rescission.

¶7 At the hearing, ADC’s counsel conceded that ADC never sent an official letter stating the termination was rescinded, but the fact that
ADC reinstated Appellant to his pre

- termination position and restored all his benefits to their pre

- termination status effectively created a
“constructive rescission.” Additionally, on April 6, 2017, ADC’s human
resources unit issued a memo confirming that it had removed all documents related to the termination and reinstatement from Appellant’s employment file. Appellant contested the accuracy of the memo.

¶8 Ultimately, t he hearing officer found that no just cause existed
for the termination and that AD C never officially rescinded Appellant’s

termination. The hearing officer recommended the Board find that ADC
had “ equitably rescinded ” the termination by restoring Appellant to the status quo ; that the restoration constituted grounds for A ppellant to be
awarded back pay ; and that the sufficiency of that award should be determined by the Department of Administration. Additionally, the hearing officer found that the rescission divested the Board of jurisdiction to consider the “dismissal appeal” 3 and that the eighty

- hour suspension

3 Appellant focuses on the Board’s adoption of this jurisdictional conclusion as the basis for most of his argument. However, j ust because an agency says it does or does not have jurisdiction does not automatically
make it so. See State v. Bryant , 219 Ariz. 514, 516, ¶ 4 (App. 2008) (“ Subject matter jurisdiction is a question of law, which we review de novo. ”)

. W hen an administrative agency has jurisdiction over the parties and t he subject matter, “[a]n erroneous interpretation and application of a statutory provision, [ in the determination of jurisdiction ] will normally constitute mere legal error and not operate to deprive an administrative agency of jurisdiction.” State ex rel . Dandoy v. City of Phoenix , 133 Ariz. 334, 338 (App. 1982)

, abrogated on other grounds by Legacy Found. Action Fund v. Citizens
Clean Elections Comm’n , 243 Ariz. 404 (2018)

. Therefore, assuming without deciding the Board made a mistake in adopting the hearing officer’s recommendation regarding jurisdiction, the legal error is not a basis for
reversal. Because we determine Appellant is estopped from bringing this appeal, we need not address the jurisdictional is sue in the decision.LETONA v. AD O C, et al.
Decision of the Court

5 imposed after Appellant was reinstated was a separate disciplinary issue subject to a different appeal or grievance process

.
¶9 Appellant filed an objection to the hearing officer’s report and
recommendation , and

— f or the first time

— a rgued that he had not prevailed on appeal and the only way he could be awarded back pay is for the Board
to find on the record that his termination was “reversed” and not
“rescinded.”

¶10 On October 25, 2017, the Board adopted the hearing officer’s
recommend ation, except the recommendation that the Department of Administration determine Appellant’s back

- pay award. Specifically, the
Board stated:

The appellant’s reinstatement to the Correction Officer II
constitutes a rescission of his December 2015 dismissal

. All records should reflect that he was reinstated and as a result,

we revers e any reference to any dismissal as there was no dismissal and no finding of just cause

. In order to clarify our previous order, any references to “dismissal” are to be removed from his file. The action of reinstatement and return voided his termination and thus we reverse any department action of dismissal.

(emphasis added)

.
¶11 ADC adopted the Board’s decision and sent notice to Appellant in November 2017. Appellant appealed to the superior court

, and t he superior court upheld the decision. In its August 2018 minute entry, the superior court concluded ( 1) the Board did not err when it made a factual finding that ADC “equitably rescinded” the dismissal by reinstating Appellant; ( 2) the Board had jurisdiction to determine Appellant’s back pay under § 38

- 1106(J) once the termination was rescinded; and ( 3) the Board did not act contrary to law when it determined what benefits were owed to Appellant

.
¶12 In this appeal, Appellant challeng es the first two determinations made by the superior court, and we have jurisdiction pursuant to A.R.S. § § 12

- 913 and 41

- 783( G ).

ANALYSIS

¶13 Appellant contends the superior court erred by affirming the Board’s April and October 2017 decisions. He asserts ( 1) the Board had no authority to make an equitable finding that his termination was re scinded ;LETONA v. AD O C, et al.
Decision of the Court

6 ( 2) the Board had no jurisdiction to hear the appeal and make findings regarding the termination after it was rescinded; ( 3) the Board could not
have determined an amount of back pay without official ly reversing the termination on appeal; and ( 4) ADC and the superior court erred in affirming the Board’s decisions.

¶14 In response, ADC argues “the record contains ample support
that the D epartment rescinded [Appellant’s ] dismissal at his behest” and “in light of the fact that [Appellant] obtained the primary relief that he sought, his contention that he did not prevail is unsupported by fact or
law.”

¶15 Likewise, the Board argues Appellant “prevailed in his appeal to the Pe rsonnel Board, even if the Personnel Board did not explicitly say so in its April 12, 2017 Order, as [Appellant’s] termination was effectively reversed by [ AD C] when he was reinstated.” In addition, the Board asserts that Appellant fails to “demonstrate[] that the Personnel Board’s actions were contrary to the language and spirit of its statut o ry authority.”

I. Appellant i s Judicially Estopped from Bringing This Appeal

¶16 Appellant maintains “[t]he positions taken by the superior court, ADC, and the Personnel Board are untenable and should be rejected by this Court.” Appellant’s arguments are nonsensical , without any factual foundation and, as explained below, legally impermissible

.
¶17 In his briefing to this court, Appellant is asserting a legal position contrar y to the position he argued before the hearing officer when he originally sought and received his back

- pay award.

¶18 Under the doctrine of judicial estoppel, “ a party who has assumed a particular position in a judicial proceeding is estopped to
assume an inco nsistent position in a subsequent proceeding involving the same parties and questions.” State v. Towery , 186 Ariz. 168, 182 (1996); see also Pegram v. Herdrich , 530 U.S. 211, 22 7 n.8 (2000) ( “ J udicial estoppel generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase

. ”)

. Judicial estoppel protects the integrity of the judicial system by “ preventing a litigant from using the courts to gain an unfair advantage. ” Towery , 186 Ariz. at 182 ; cf. Smith v. CIGNA HealthPlan of Ariz.

, 203 A riz. 173, 179, ¶¶ 19

- 21 (App. 2002) (explaining principles of estoppel

can apply to decisions of administrative agencies acting in a quasi

- judicial capacity). For judicial estoppel to apply, three requirements must be metLETONA v. AD O C, et al.
Decision of the Court

7 “(1) the parties must be the same, (2) the question involved must be the same, and (3) the party asserting the inconsistent position must have been successful in the prior judicial proceeding. ” Bank of Am. Nat’l Tr

. & Sav. Ass’n v. Maricopa C oun t y , 196 Ariz. 173, 175, ¶ 7 (App. 1999).

¶19 A party is considered to have been successful in a prior judicial proceeding when “(a) the court in that proceeding granted the party relief or accepted the party ’ s earlier inconsistent position either as a preliminary matter or as part of a final disposition, and (b) the party’s inconsistent position was a significant factor in the relief granted.” Id. at 176, ¶ 8.

¶20 We conclude all three factors are present in this case

. ADC
and Appellant originally appeared before the Board

, which was acting in a quasi

- judicial capacity, and all three parties appeared in the superior court proceedings

. In addition, the underlying issue is the same: whether the Board had authority to award Appellant back pay pursuant to § 38

- 1106(J)
once ADC r einstated Appellant to his former position

.
¶21 As to the third factor, the record shows Appellant filed a motion for summary ruling with the Board in 201 6 as part of his original appeal , arguing that ADC’s procedures for his termination were defective
and he was therefore entitled to reinstatement and back pay. In the reply in support of the motion, Appellant asserted multiple times that the
termination h ad been “ reversed ” by ADC

— referring to ADC ’ s reinstatement of him to his position

— and that he therefore had prevailed in the appeal under § 38

- 1106(J)

. The hearing officer agreed with Appellant’s assertion that he was entitled to back pay pursuant to § 38

- 1106(J) and set a hearing to determine if the award should be reduced by any statutory amount

. 4 Relying on Appellant’s position that he prevailed on appeal and obtained a reversal of his termination, the hearing officer
then recommended an award of $39,506.53. The Board adopted that
recommendation , and Appellant ultimately was paid that amount ( less applicable taxes) in March 2017.

¶22 When the Board issued its April 2017 decision adopting the hearing officer’s recommendation to award back pay, the only outstanding

4 Section 38

- 1106(J)(4) allows the Personnel Board to reduce an award
of back pay “[b]y any amount earned by the law enforcement officer in alternative employment.” The record here establishes, and Appellant does

n o t challenge , that he earned approximately six thousand dollars at another job after he was dismissed by ADC.LETONA v. AD O C, et al.
Decision of the Court

8 issue was for ADC to provide proof that it had rescinded the termination. The Board stated that a hearing on just cause would be held only if requested by one of the parties

. It was Appellant who requested the just cause hearing, which start ed a n apparent snowball of confusion in the procedural posture of this case.

¶23 It was not until the resulting just

- cause hearing in September 2017 that Appellant changed his position and began arguing his termination was never reversed as required by the sta tutes, that ADC had no authority to reinstate him, and the Board lacked jurisdiction to award
him back pay. Without question, Appellant received the relief he initially sought

— reinstatement of his position and an award of back pa y. This
result was all con sistent with the argument he had previously advanced

— t hat he had prevailed on appeal pursuant to § 38

- 1106(J). But for Appellant’s request for an additional hearing , the matter would have b e e n entirely resolved.

¶24 Nonetheless, Appellant baldly asserts that “his personnel file now reflects that [he] was dismissed, reinstated, and suspended.” He argues that anyone reviewing his record today will not know that ADC wrongfully terminated him and that he prevailed in appealing the
termination. The re is simply no factual basis for this assertion. The record on appeal contains the ADC human resources unit memo documenting that
it had removed from Appellant’s employment file all references to his
termination and reinstatement

. And

, in October 2017, th e Board , in response to Appellant’s argument that the ADC memo was not accurate,
also specifically ordered any remaining mention of Appellant’s dismissal to be stricken from his employment file. There is nothing in the record that
indicates ADC has not co mplied with that order. Most telling , a t oral argument, Appellant’s counsel conceded that the employment file has not been reviewed by Appellant or his counsel since May of 2017

— clearly
before the Board’s October 2017 order was issued. 5

¶25 Appellant had the obligation to submit a record to this court that supports his factual assertions. However, t here is no evidence in the record to support Appellant’s contention that his personnel fil e does not comply with the October 2017 order

. Appellant did not designate his employment file in the record on appeal or move to supplement the record

5 ADC’s counsel noted at oral argument that Appellant had access to review his employment file on his own, and Appellant ’s counsel did not dispute such representatio n

.LETONA v. AD O C, et al.
Decision of the Court

9 to reflect the current status of that file. W e therefore assume the employment file reflects compliance that is consistent with the Board’ s order. See State v. Olague , 240 Ariz. 475, 478, ¶ 7 ( App. 2016) (“ It is an appellant ’ s duty to supplement an incomplete record. ”) (internal citation
omitted ); see also State ex rel. Dep’t of Econ. Sec. v. Burton , 205 Ariz. 27, 30, ¶ 16 (App. 2003) (“An appellant is responsible for making certain that the record on appeal contains all transcripts or other documents necessary for us to consider the issues raised on appeal.

. . . When a party fails to do so, we assume the missing portions of the record would support the trial

court ’ s findings and conclusions.”) (internal citations omitted)

.
¶26 Throughout the appellate process

, Appellant has repeatedly challenge d the Board’s authority to issue the back

- pay award. However, Appellant has never offered to return the funds

. Because Appellant received everything he asked for when he initially appealed the termination and is now arguing a position opposite the position that allowed him to
obtain the reinstatement and award , we deny him any further relief on appeal.

I I. Costs on Appeal

¶27 As the prevailing part ies on appeal, ADC and the Board are entitled to an award of costs upon their compliance with ARCAP 21.

CONCLUSION

¶28 For the foregoing reasons, we affirm.