Mahuwe v. Ades ( 2023 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
ROGER O. MAHUWE, Appellant,
v.
ARIZONA DEPARTMENT OF ECONOMIC SECURITY, an agency,
Appellee.
No. 1 CA-UB 21-0148
FILED 5-11-2023
Appeal from the A.D.E.S. Appeals Board
No. U-1700193-001-B
REVERSED AND REMANDED
COUNSEL
Community Legal Services, Phoenix
By Nina Targovnik, Amanda Caldwell (argued), Danielle Morales
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Emily M. Stokes
Counsel for Appellee
MAHUWE v. ADES
Opinion of the Court
OPINION
Presiding Judge Paul J. McMurdie delivered the Court’s opinion, in which
Judge Michael J. Brown and Judge Michael S. Catlett joined.
M c M U R D I E, Judge:
¶1 Roger Mahuwe appeals from an Arizona Department of
Economic Security (“ADES”) Appeals Board decision finding he was
ineligible for Pandemic Unemployment Assistance (“PUA”) under the
federal Coronavirus Aid, Relief, and Economic Security (“CARES”) Act of
2020. We reject Mahuwe’s claim that ADES violated Mahuwe’s due process
rights or committed national origin discrimination by not providing an
interpreter because there is nothing in the recording suggesting he could
not communicate with the administrative law judge (“ALJ”). But as
Mahuwe presented sufficient evidence that he quit his job as a direct result
of COVID-19, and ADES presented no contrary evidence, we conclude that
Mahuwe was eligible for PUA. We, therefore, reverse and remand for a
determination of the amount of the award.
FACTS AND PROCEDURAL BACKGROUND
¶2 Mahuwe worked as a self-employed Uber driver until March
11, 2020, after becoming ill with asthma. Mahuwe planned to resume
driving after his condition improved, but on April 9, 2020, Uber sent its
drivers an email advising safe practices during the COVID-19 pandemic.
The email suggested that drivers should “consider wearing a face
covering,” “stay home if [they were] feeling sick,” and “roll down the
windows to improve ventilation,” among other recommendations. The
email did not tell drivers to stop driving. But after Mahuwe received the
email, he did not resume driving until it became safe. He was 60 years old.
¶3 Meanwhile, on March 30, 2020, Arizona’s Governor issued
Executive Order 2020-18. This order encouraged Arizonans to limit time
away from their homes but allowed for certain exceptions, such as essential
activities or employment in essential functions. Ariz. Exec. Order No.
2020-18 (Mar. 30, 2020). Executive Order 2020-12 previously designated
rideshare driving as an essential function. Ariz. Exec. Order No. 2020-12
(March 23, 2020).
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Opinion of the Court
¶4 On May 17, 2020, Mahuwe applied for PUA. He self-certified
that he was “unable to reach [his] place of employment because of a
quarantine imposed as a direct result of the COVID-19 public health
emergency.” ADES began paying Mahuwe PUA benefits. On February 4,
2021, ADES mailed Mahuwe a letter informing him that he was disqualified
from receiving PUA because he was “not unemployed as a direct result of
one of the COVID-19 related reasons listed in Section 2102 of the CARES
Act.” Mahuwe appealed ADES’s decision. When asked whether an
interpreter was needed, he stated “No” in his appeal application.
¶5 An ALJ conducted a telephonic hearing. Mahuwe testified to
the facts above in imperfect English, and near the end of the hearing, he
explained that English was not his first language. Some portions of the
testimony were transcribed as “inaudible.”
¶6 The ALJ found Mahuwe was not eligible for PUA because he
stopped working because of his asthma, not COVID-19. The ALJ concluded
that Mahuwe voluntarily quit because of his asthma and because he was
awaiting his COVID-19 vaccination. Thus, the ALJ found Mahuwe was not
entitled to benefits under the CARES Act. Mahuwe appealed to the appeals
board. The appeals board recognized Mahuwe as a vulnerable person but
concluded that this was not an enumerated reason under the CARES Act.
The appeals board therefore affirmed. Mahuwe timely sought review by
this court.
¶7 We granted Mahuwe leave to appeal to this court under A.R.S
§ 41-1993(B) and appointed pro bono counsel to represent him.1
DISCUSSION
¶8 We defer to ADES’s findings of fact but review its legal
conclusions de novo, and we will affirm if the decision is supported by
substantial evidence and a reasonable interpretation of the record. Simmons
v. Ariz. Dep’t of Econ. Sec., 254 Ariz. 109, 111, ¶ 10 (App. 2022), review denied,
No. CV-22-0242-PR (Ariz. Apr. 7, 2023). We interpret the law and the facts
liberally to grant benefits and narrowly to deny them. Id. at ¶ 11.
1 This court thanks Nina Targovnik, Amanda Caldwell, and Danielle
Morales for their pro bono service.
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Opinion of the Court
A. ADES Did Not Violate Mahuwe’s Due Process Rights or Commit
National Origin Discrimination by Not Providing an Interpreter.
¶9 Mahuwe first argues that ADES violated his due process
rights by not offering or providing an interpreter for the hearing. He
concedes that he raises this issue for the first time on appeal, and such issues
are generally considered waived. See Odom v. Farmers Ins. Co. of Ariz., 216
Ariz. 530, 535, ¶ 18 (App. 2007). But he asks us to consider this issue under
an exception to the waiver rule that applies to matters of “statewide
significance.” See Barrio v. San Manuel Div. Hosp. for Magma Copper Co., 143
Ariz. 101, 104 (1984) (quoting Ruth v. Indus. Comm’n of Ariz., 107 Ariz. 572,
574 (1971)). Waiver is discretionary, and we may consider an issue
otherwise waived when it “is of statewide importance, of constitutional
dimension, or when the public interest is better served by having the issue
considered rather than deferred.” Torres v. Jai Dining Servs. (Phoenix), Inc.,
253 Ariz. 66, 71, ¶ 13 (App. 2022).
¶10 We agree with Mahuwe that the issue falls under the waiver
exception. The issue is constitutional, does not turn on disputed facts, and
the parties have briefed the matter. See Barrio, 143 Ariz. at 104 (applying the
exception to a constitutional issue that did not turn on disputed facts). In
addition, “a significant minority of [Arizona’s] population is burdened with
the handicap of being unable to effectively communicate in” English. State
v. Natividad, 111 Ariz. 191, 194 (1974). We will therefore consider the merits
of whether Mahuwe’s due process rights were denied when he was not
provided an interpreter.
¶11 We review questions of law, including due process claims, de
novo. Savord v. Morton, 235 Ariz. 256, 260, ¶ 16 (App. 2014). Due process
protections apply to PUA benefits because they “are a matter of statutory
entitlement for persons qualified to receive them” and “[t]heir termination
involves state action that adjudicates important rights.” Goldberg v. Kelly,
397 U.S. 254, 262 (1970); see also Gallarzo v. Ariz. Dep’t of Econ. Sec., 245 Ariz.
318, 321, ¶ 9 (App. 2018) (“All applicants, regardless of the merits of their
claims, have a property interest in their right to use the statutorily
established adjudicatory procedures.”). “Due process entitles a party to
notice and an opportunity to be heard at a meaningful time and in a
meaningful manner.” Curtis v. Richardson, 212 Ariz. 308, 312, ¶ 16 (App.
2006). A party claiming the denial of due process has the burden to show
that denial. Dep’t of Child Safety v. Beene, 235 Ariz. 300, 304, ¶ 8 (App. 2014).
¶12 Mahuwe argues that the hearing did not occur in a
meaningful manner. Although he stated in his application that he did not
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Opinion of the Court
need an interpreter, he claims that ADES should have offered one after
several “miscommunications.”
¶13 In the criminal context, our supreme court has held that when
a defendant does not request an interpreter, the trial court must still
determine whether the nature and severity of the defendant’s language
difficulties are such that the defendant has a right to be informed of his right
to have one. Natividad, 111 at 194–95. We see no reason the same principle
should not apply in a benefits hearing.
¶14 Mahuwe ostensibly stated in his appeal application that he
did not need an interpreter. The application, however, is in English, and it
prompts the applicant only with “Interpreter” and allows a yes-or-no
response. Although this will often suffice to preserve due process, we are
not satisfied that simply stating “No” on such a form always constitutes a
knowing and voluntary waiver of the right. See Natividad, 111 Ariz. at 194.
We, therefore, hold that the tribunal must inform an applicant of his or her
right to an interpreter if it becomes apparent that the applicant’s English is
so deficient that the applicant cannot understand the proceedings or
effectively communicate with the tribunal. In that scenario, the tribunal
must provide an interpreter unless the applicant knowingly and
voluntarily waives the right. See id.¶15 We recognize that the ALJ would be best positioned to
determine whether Mahuwe’s English skills allowed him to communicate
effectively during the hearing. See Natividad, 111 Ariz. at 194. And here, the
ALJ made no finding about Mahuwe’s English skills. But we need not
remand for such a determination because Mahuwe fails to explain how the
“miscommunications” prevented him from being heard “in a meaningful
manner.”
¶16 For example, Mahuwe points to a moment when the ALJ
asked him if he had any witnesses, and he responded, “No. Just me by
myself, because I have the . . . paycheck and all the documents. I want to
submit this one to you. . . . I believe [t]his one is [going to] be my witness.”
Mahuwe contends that this shows he misunderstood the distinction
between a witness and an exhibit. But he does not argue that he had other
witnesses who could not testify.
¶17 Mahuwe also claims that when the ALJ asked him twice what
illness caused him to stop driving on March 11, “he never understood well
enough to answer the ALJ’s question as posed.” For support, he cites parts
of his initial response that were transcribed as “inaudible.” But an
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MAHUWE v. ADES
Opinion of the Court
“inaudible” notation appears regularly in telephonic hearing transcripts
and is not evidence of the lack of Mahuwe’s English skills in this case. And
although his initial response was unclear, when the ALJ then asked if the
illness “had to do with [his] asthma,” he responded, “Correct ma’am.”
More importantly, he does not allege on appeal that the illness relates to
anything but his asthma.
¶18 Mahuwe does not identify any fact or argument he presented
that the ALJ misunderstood or ignored when reaching a conclusion based
on his lack of English skills. Thus, Mahuwe cannot show that he was not
heard “in a meaningful manner.” Mahuwe has not established that ADES
violated his due process rights. See Beene, 235 Ariz. at 304, ¶ 8.
¶19 Finally, Mahuwe argues that ADES’s failure to provide an
interpreter constitutes national origin discrimination under Title VI of the
Civil Rights Act of 1964. But Title VI prohibits only intentional
discrimination. Alexander v. Sandoval, 532 U.S. 275, 280 (2001); see 42 U.S.C.
§ 2000d. Mahuwe does not allege that ADES intentionally discriminated
against him, so his claim fails.
B. Mahuwe Qualifies for PUA Under the CARES Act Because He Had
to Quit His Job as a Direct Result of COVID-19.
¶20 Mahuwe argues that he qualifies for PUA. Under the CARES
Act, an applicant was eligible for PUA if the applicant (1) was ineligible for
regular unemployment and (2) self-certified that he was “otherwise able to
work and available for work . . . except [he was] unemployed, partially
unemployed, or unable or unavailable to work” for one of 11 enumerated
reasons. 15 U.S.C. § 9021(a)(3)(A)(i)–(ii). In his PUA application, Mahuwe
stated he was “unable to reach [his] place of employment because of a
quarantine imposed as a direct result of the COVID-19 public health
emergency.” See 15 U.S.C. § 9021(a)(3)(A)(ii)(I)(ee).
¶21 Mahuwe was not eligible for PUA on this ground. As a
rideshare driver, he “does not have a ‘place of employment.’” U.S. Dep’t of
Labor, Unemployment Insurance Program Letter No. 16-20 I-6 (2021). He,
therefore, cannot claim that he could not reach his place of employment.
Mahuwe may, however, be eligible on other grounds. He argues he also
qualifies because he had to “quit his . . . job as a direct result of COVID-19.”
See 15 U.S.C. § 9021(a)(3)(A)(ii)(I)(ii).
¶22 Although Mahuwe did not select this subsection in his
application, ADES concedes that it “did not limit [Mahuwe] to the
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MAHUWE v. ADES
Opinion of the Court
government-quarantine ground” during the hearing.2 Because Mahuwe
testified that he quit his job to avoid contracting COVID-19, he has properly
preserved the issue for appeal.
¶23 As the appeals board found, Mahuwe stopped working
because he was a vulnerable person trying to minimize his risk of infection
to protect his health and life while awaiting a vaccination. Mahuwe has thus
established that he “ha[d] to quit his job . . . as a direct result of COVID-19.”
He is, therefore, a covered individual under the CARES Act and is entitled
to benefits. See 15 U.S.C. § 9021(a)(3)(A)(ii)(I)(ii).
¶24 At the hearing, Mahuwe testified that starting on March 11,
2020, he took a two-week “vacation” to deal with an asthma-related illness.
Shortly afterward, Uber sent its drivers an email recommending safe
practices. Mahuwe felt compelled to stop driving because he was
recovering from his “asthma attack” and COVID-19 could “catch [him]
quick.” He added that he was awaiting a vaccination, which would not be
available until months later, and he would not feel safe returning to work
without taking the added precautions.
¶25 The ALJ found that Mahuwe’s reasons for quitting did not
entitle him to benefits because he voluntarily stopped working because of
his asthma and vaccination status. On appeal to the appeals board, Mahuwe
argued that staying home complied with government orders because he
was a vulnerable person.
¶26 The appeals board also rejected that argument, finding that
the governor’s order exempted employment and thus did not prevent
Mahuwe from continuing to work. The board found that Mahuwe “chose
to stop working as a ride-sharing driver because he is a vulnerable person
and he wanted to wait until he was vaccinated before returning to work.”
The board also found that Mahuwe wanted to “minimize the risk of
infection and protect his health” but that those were “not . . . reasons
2 Still, ADES argues that Mahuwe conceded or waived the argument
when he stated to the appeals board, “I never quit the job. I still Uber
partner until today my Uber driving account is still active.” Considering
Mahuwe’s English language deficiencies, one could reasonably conclude
that Mahuwe instead meant that he was prepared to return to work once it
was safe. We need not speculate, however, because the appeals board found
that he did “stop working.”
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MAHUWE v. ADES
Opinion of the Court
identified in the CARES Act that allow[] for PUA benefits eligibility.” The
board thus affirmed.
¶27 Mahuwe argues that he qualifies under the direct-result
subsection because he quit his job to avoid the “serious risk of contracting
COVID-19.” ADES counters that Mahuwe voluntarily chose to stop
working because he had only general concerns about COVID-19, and thus
he does not qualify.
¶28 Mahuwe is eligible if he can show he “ha[d] to quit . . . as a
direct result of COVID-19.” 15 U.S.C. § 9021(a)(3)(A)(ii)(I)(ii). “Generally,
an employee ‘has to quit’ within the meaning of [this subsection] only when
ceasing employment is an involuntary decision compelled by” COVID-19.
U.S. Dep’t of Labor, Unemployment Insurance Program Letter No. 16-20,
Change 4 I-7 (2021). Having only “general concerns about exposure to
COVID-19” is not a qualifying reason under the CARES Act. U.S. Dep’t of
Labor, Unemployment Insurance Program Letter No. 16-20, Change 1 I-10
(2021).
¶29 In Simmons v. Ariz. Dep’t of Econ. Sec., we clarified that an
applicant is eligible under this subsection if he “ha[d] to quit” because of an
“unacceptable risk of exposure to the virus in the workplace.” 254 Ariz. at
113, ¶ 20. The applicant in Simmons quit his job because his employer
created “an amplified risk of exposure to COVID-19” by refusing to address
the applicant’s specific concerns, including sick employees in the office and
the employer’s lax mask policies. Id. We held that these were not general
concerns and that the applicant was eligible for PUA. Id. at ¶¶ 19–20.
¶30 Like Simmons, Mahuwe identifies specific COVID-19-related
reasons for quitting his job. He notes that his asthma and age increased his
risk of suffering health complications or death from COVID-19. He
identifies a recommendation from the Centers for Disease Control and
Prevention that such people “should take special precautions” because of
their heightened risk of serious illness. See Coronavirus Disease 2019
(COVID-19) Situation Summary, CDC (Mar. 17, 2020),
https://www.stacks.cdc.gov/view/cdc/85916. He also supports this
notion with a citation to a contemporaneous Arizona Department of Health
Services news release, which explains that the “highest risk” individuals
are “older adults and people with serious medical conditions like . . . lung
disease.” Arizona to Receive More than $12 Million in Federal Funding to
Support COVID-19 Response, Ariz. Dep’t of Health Servs. (Mar. 12, 2020),
https://www.azdhs.gov/director/public-information-
office/index.php#news-release-031220.
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Opinion of the Court
¶31 Mahuwe also points to the executive orders issued during the
pandemic, which sought to “protect [Arizona’s] most vulnerable citizens”
and informed them that “the elderly population and those with serious
underlying health conditions are most at risk from COVID-19.” Ariz. Exec.
Order No. 2020-09 (Mar. 19, 2020); Ariz. Exec. Order No. 2020-07 (Mar. 11,
2020). And the governor advised “all vulnerable individuals, including the
elderly and individuals with underlying health conditions, . . . to take
reasonable steps to continue limiting their time away from [home].” Ariz.
Exec. Order No. 2020-36 (May 12, 2020).
¶32 Mahuwe repeatedly testified that he quit driving for Uber
because of COVID-19. The ALJ did not question Mahuwe’s credibility, and
no contradictory evidence was offered. The ALJ thus erred by finding that
Mahuwe quit simply because of general concerns about COVID-19. Instead,
he quit because his age and a documented underlying medical condition
made him a vulnerable person, his work environment in a car made it
difficult to distance himself from or control others, and he was awaiting a
vaccine. The uncontroverted evidence shows that he suffered lung
problems causing him to take prescription medication for asthma. He quit
his job in early 2020 when little was known about COVID-19, and no mask
mandates were in effect. Mahuwe was compelled to stop driving due to
concerns specific to his circumstances that the state and federal
governments recognized as putting his life at risk. Had he continued to
work, he would have subjected himself to “an unacceptable risk of exposure
to the virus.” See Simmons, 254 Ariz. at 113, ¶ 20. Mahuwe returned to work
for Uber once he got vaccinated for COVID-19, further supporting his
quitting directly because of COVID-19.
¶33 Still, ADES contends Mahuwe failed to show that he “had to
quit his job as a direct result of COVID-19.” ADES argues that we should
narrowly interpret “direct result” for several reasons. ADES first cites 15
U.S.C. § 9021(h), which provides that PUA eligibility requirements
generally parallel the disaster unemployment assistance requirements in 20
C.F.R. § 625. And ADES notes that 20 C.F.R. § 625.5(c) limits unemployment
as a “direct result” of a major disaster to unemployment that “is an
immediate result of the major disaster itself, and not the result of a longer
chain of events precipitated or exacerbated by the disaster.” ADES then
argues that Mahuwe’s unemployment was not a “direct result” of
COVID-19 because he could not show, for example, “that the pandemic had
destroyed his car or that the government’s stay-at-home order had forced
his company to shut down.”
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Opinion of the Court
¶34 This interpretation is far too narrow. First, we reiterate that
we interpret the law broadly to grant benefits and narrowly to deny them.
Simmons, 254 Ariz. at 111, ¶ 11. Second, the Department of Labor
specifically provided an example of eligibility under the direct-result
subsection that includes a “chain of events”: an individual would be eligible
under the direct-result subsection if he quits his job to care for his child who
cannot attend school because the school is closed to in-person instruction
as a direct result of the pandemic. U.S. Dep’t of Labor, Unemployment
Insurance Program Letter No. 16-20, Change 5 10 (2021). Although Mahuwe’s
unemployment does not result from a similar “chain of events,” this
example shows that our interpretation of the PUA eligibility requirements
should not be inseparably linked to the disaster unemployment assistance
regulations.
¶35 ADES next argues that even if Mahuwe quit his job because
of his age and lung disease, he is still not eligible for PUA because a
vulnerable person is eligible “only if” a healthcare professional advised him
to self-quarantine. An individual is indeed eligible if he “is unable to reach
the place of employment because the individual has been advised by a
health care provider to self-quarantine due to concerns related to
COVID-19.” 15 U.S.C. § 9021(a)(3)(A)(ii)(I)(ff). But this subsection does not
preclude eligibility on other grounds. ADES cites a Department of Labor
letter for more support, but the letter states that “[w]ithout having been
advised by a health care provider to self-quarantine, an individual who
does not go to work due to general concerns about exposure to COVID-19,
and who does not meet any of the other COVID-related criteria for PUA, is not
eligible for PUA.” U.S. Dep’t of Labor, Unemployment Insurance Program
Letter No. 16-20, Change 1 I-10 (2020) (emphasis added). The Department of
Labor later clarified that states must allow applicants to self-certify their
eligibility on more than one ground. U.S. Dep’t of Labor, Unemployment
Insurance Program Letter No. 16-20, Change 5 10 (2021). Mahuwe’s
ineligibility under the healthcare-provider subsection is irrelevant to his
eligibility under the direct-result subsection.
¶36 Finally, ADES points to the email Uber sent its drivers that
recommended they wear masks and drive with the windows open, among
other safety suggestions. ADES argues that this email shows that Mahuwe
did not have to quit. And as mentioned, the ALJ concluded that Mahuwe
could have returned to work while wearing a mask. But Uber’s email to all
drivers did not account for the unique circumstances of any individual.
Although many drivers could have taken precautions and continued to
work, Mahuwe’s circumstances compelled him to quit to avoid “an
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Opinion of the Court
unacceptable risk of exposure to the virus.” See Simmons, 254 Ariz. at 113,
¶ 20.3
CONCLUSION
¶37 We reverse the appeals board’s decision and remand for a
determination of the amount of the benefit to award.
AMY M. WOOD • Clerk of the Court
FILED: AA
3 Mahuwe argues that the ALJ erred by not gathering enough
information to develop the record fully. He contends that under these
circumstances, the ALJ should have further “probe[d] the relevant facts.”
We agree that “there are circumstances in which [an administrative body]
may be required to take more than a passive role in the fact finding
process.” Emp. Sec. Comm’n v. Doughty, 13 Ariz. App. 494, 497 (1970). Such
circumstances may be present here because ADES incorrectly allowed
Mahuwe to select only one qualifying reason when completing the
application for PUA benefits. Ultimately, however, we need not decide
whether the ALJ erred by arguably failing to probe into facts rendering
Mahuwe eligible for other reasons because we find that Mahuwe qualifies
for PUA, having quit his job as a direct result of COVID-19.
11