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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CARLOS LETONA, Plaintiff/Appellant,

v.

ARIZONA DEPARTMENT OF CORRECTIONS, et al., 

Defendants/Appellees.

No. 1 CA-CV 18-0590

Appeal from the Superior Court in Maricopa County

No. LC2017-000455-001

The Honorable 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

Counsel for Defendants/Appellees 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 6-20-2019
LETONA v. ADOC, 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 

ruling 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 lacked statutory authority.

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

FACTS AND PROCEDURAL HISTORY

¶2 Appellant works 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 believed 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 appeal 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 

Appellant was a covered employee and entitled to pre-termination notice.

¶3 On remand, the Board scheduled an appeal hearing for 

December 2016. Appellant then filed a motion with the hearing officer 

requesting a summary ruling. He argued the superior court’s previous 

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. ADOC, 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 for the OC spray 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 discipline it 

would ultimately impose for the incident.

¶4 In his reply, Appellant argued 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 § 38-1106(J). Nonetheless, the officer denied Appellant’s

motion because she determined an evidentiary hearing was necessary to 

decide the amount of the award.2 ADC then provided written notice that it 

would impose an eighty-hour suspension in lieu of the termination.

¶5 After 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 after 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 employment 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 The 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 dispose of the 

appeal as required by applicable law.”
LETONA v. ADOC, et al.

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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. The 

Board granted the request, and the 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, the hearing officer found that no just cause existed 

for the termination and that ADC 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 Appellant 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, just 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.”). When 

an administrative agency has jurisdiction over the parties and the 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 issue in the decision.
LETONA v. ADOC, et al.

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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—for the first time—argued 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 

recommendation, 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 reverse 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 the 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 challenges 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 rescinded; 
LETONA v. ADOC, et al.

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(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 officially 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 Department 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 Personnel 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 [ADC] 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 statutory 

authority.”

I. Appellant is 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 contrary 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 inconsistent 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, 227 n.8 (2000) (“Judicial 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 Ariz. 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 met 
LETONA v. ADOC, et al.

Decision of the Court

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“(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 County, 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 reinstated 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 2016 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 had 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

not challenge, that he earned approximately six thousand dollars at another 

job after he was dismissed by ADC.
LETONA v. ADOC, et al.

Decision of the Court

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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 started an 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 statutes, 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 pay. This 

result was all consistent with the argument he had previously advanced—

that he had prevailed on appeal pursuant to § 38-1106(J). But for 

Appellant’s request for an additional hearing, the matter would have been 

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. There 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, the 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 complied with that order. Most telling, at 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, there is no evidence in the 

record to support Appellant’s contention that his personnel file 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 representation.
LETONA v. ADOC, et al.

Decision of the Court

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to reflect the current status of that file. We 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 

challenged 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.

II. Costs on Appeal

¶27 As the prevailing parties 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.