ALJDEC decisions subject to certification as final

20F-010-ARB · Arizona State Retirement System · 2020-08-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Gregory Wingo

Appellant,

v.

Arizona State Retirement System,

Appellee.

No. 20F-010-ARB

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: July 21, 2020

APPEARANCES: Appellant Gregory Wingo appeared on behalf of himself. Assistant Attorney General Cassie Adams appeared on behalf of Appellee Arizona State Retirement System.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. On January 13, 2017, Appellant Gregory Wingo became a member of the Arizona State Retirement System (ASRS).

2. On July 1, 2019, Appellant met with an ASRS benefit advisor regarding his account options, including a refund. The benefit advisor explained to Appellant that requesting a refund would result in a termination of his ASRS account.

3. Appellant submitted an Application for Withdrawal of Contributions and Termination of Membership (Withdrawal Application) during the July 1, 2019 meeting.

4. In the Withdrawal Application, Appellant agreed to the following acknowledgments (among others):

I understand I am forfeiting all future retirement rights and privileges of membership with the ASRS; and

I understand that Long Term Disability (LTD) benefits will be canceled if I elect to withdraw contributions while receiving or electing to receive LTD benefits.

I understand that I cannot cancel my request after the ASRS has received my application.

5. On July 29, 2019, Appellant submitted a second Withdrawal Application online. At the time, the ASRS was waiting for an employee ending verification (EPV) from Appellant’s last employer. The EPV was needed to process the refund.

6. After the ASRS received the EPV, it processed Appellant’s refund.

7. During the end of July 2019, the ASRS terminated Appellant’s ASRS account.

8. On August 1, 2019, the ASRS issued Appellant’s refund by direct deposit into his bank account.

9. Appellant communicated with the ASRS on February 7, 2019, May 9, 2019, July 1, 2019, July 17, 2019, July 24, 2019, and July 29, 2019. Appellant failed to notify the ASRS of his intention to apply for long-term disability (LTD) benefits during those communications.

10. Broadspire is the LTD benefits administrator for the ASRS.

11. In late November of 2019, Broadspire received an application for LTD benefits from Appellant.

12. On December 9, 2019, Appellant discussed the application with a representative from Broadspire. See Exhibit 5, Bates 033. Broadspire mailed a letter to Appellant the same day regarding the meeting. The letter contained language explaining that income from Social Security may be deducted from LTD benefits. See Exhibit 5, Bates 033-034.

13. Broadspire denied Appellant’s application because Appellant was not a member of the ASRS at the time he filed the LTD benefits application.

14. On or about January 28, 2020, Appellant requested that the ASRS reinstate his account.

15. On February 20, 2020, the ASRS issued a notice denying Appellant’s request for reinstatement.

16. Appellant filed an appeal regarding the denial.

17. On May 27, 2020, ASRS issued a notice denying Appellant’s appeal.

18. Appellant requested a hearing regarding the May 27, 2020 denial. Appellant expressed that he did not understand that by withdrawing funds from the ASRS, he was forfeiting his eligibility for LTD benefits.

19. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

20. On June 18, 2020, the ASRS issued a Notice of Hearing setting the matter for hearing on July 21, 2020.

21. A hearing was held on July 21, 2020.

22. At hearing, Appellant testified on behalf of himself. The ASRS presented the testimony of Member Advocate, Ryan Guerra, and submitted exhibits 1 through 8.

23. Appellant testified that he told the ASRS benefit advisor that he intended to apply for LTD benefits. Appellant stated that the benefit advisor did not inform him that he would be forfeiting his right to receive LTD benefits if he received a refund from the ASRS. Appellant stated that the ASRS advisor explained to him that he would be required to pay back LTD benefits before receiving social security benefits.

24. Appellant argued that the ASRS benefits advisor was racially discriminatory because the advisor withheld information about the impact of requesting a refund from ASRS. However, Appellant made no such allegation in his appeal and request for hearing.

25. I find that Appellant’s testimony regarding his communication with the ASRS benefit advisor is not reliable.

25. The ASRS contended that it properly terminated Appellant’s ASRS account and that Appellant never informed the ASRS of his intention to apply for LTD benefits before his account was closed. The ASRS argued that its May 27, 2020 determination to deny Appellant’s request for reinstatement was proper.

CONCLUSIONS OF LAW

1. Appellants bear the burden of proof and, as such, must establish by

a preponderance of the evidence that ASRS improperly denied Appellant’s request that ASRS reinstate Appellant’s membership in ASRS.

2. “A preponderance of the evidence is such proof as convinces the trier of fact

that the contention is more probably true than not.” A preponderance of the evidence is “evidence which is of greater weight or more convincing than evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.”

3. Ariz. Rev. Stat. section 38-740 provides:

D. Withdrawal of contributions with interest constitutes a withdrawal from membership in ASRS and results in a forfeiture of all other benefits under ASRS.

4. The weight of the evidence presented at hearing shows that ASRS properly terminated Appellant’s membership in ASRS in July of 2019.

5. The preponderance of the evidence does not show that Appellant notified the ASRS of his intention to apply for LTD benefits before his account was closed. Appellant has provided no legal authority to establish that his membership in ASRS should be reinstated.

6. The Administrative Law Judge concludes that in the absence of controlling authority to the contrary, Appellant failed to establish by a preponderance of the evidence that the ASRS’s May 27, 2020 denial of his appeal was improper.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that the ASRS Board affirm its May 27, 2020 denial of Appellants’ appeal.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five (5) days from the date of that certification.

Done this day, August 24, 2020.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Paul Matson, Director

Arizona State Retirement System