Bruce A. Ades v. Texas Workforce Commission and TXU Mining Services Company ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-221-CV
BRUCE A. ADES APPELLANT
V.
TEXAS WORKFORCE APPELLEES
COMMISSION AND TXU
MINING SERVICES COMPANY
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FROM THE 362ND DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION
This is an unemployment compensation appeal. In two issues, Appellant
Bruce A. Ades, pro se, appeals the trial court’s grant of summary judgment in
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… See Tex. R. App. P. 47.4.
favor of Appellees Texas Workforce Commission (“TWC”) and TXU Mining
Services Company (“Luminant”).2 We will affirm.
II. B ACKGROUND
Ades worked for Luminant from April 16, 2007, to October 15, 2007.
Luminant has a Code of Conduct that prohibits employees from withholding or
giving false or misleading information during an investigation. On September
20, 2007, Ades instructed Luminant employee Gerald Haupt to purchase a
42-inch flat-screen television for the mine facility where they worked. Ades
told Haupt that Operations Manager Ricky Godwin had authorized the purchase.
Haupt purchased the television from Wal-Mart using a company credit card, and
Ades directed Colby Guest, a third-party vendor, where to mount the television
at Luminant’s facility. As it turns out, neither Godwin nor other management
gave Ades or any other employee permission to purchase the television, which
was returned the following day. Luminant conducted an investigation into the
unauthorized purchase of the television, and Ades denied having any knowledge
or involvement in the purchase. Luminant, however, determined that Ades had
2
… We refer to TXU Mining Services Company as “Luminant” because
Luminant Mining Services Company stated in its original answer that it had
been incorrectly sued by Ades as “TXU Mining Services Company.” TWC
contends similarly and refers to TXU Mining Services Company as “Luminant”
throughout its brief, which Luminant adopted.
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in fact been involved in the purchase of the television; it therefore discharged
him from employment for violating its Code of Conduct for providing false
information in an investigation.
TWC initially approved Ades’s claim for unemployment compensation
benefits. Luminant appealed, and an appeal tribunal affirmed the initial
decision. Luminant appealed the tribunal’s decision, and TWC reversed the
tribunal, determining that Ades was disqualified from receiving benefits because
he had been discharged for misconduct connected with his employment. See
Tex. Lab. Code Ann. § 207.044(a) (Vernon 2006). Ades timely filed a petition
for a trial de novo against TWC and Luminant in the district court. The trial
court granted TWC and Luminant’s joint motion for summary judgment,
concluding that substantial evidence supported TWC’s decision to deny Ades
unemployment compensation benefits.
III. A DES C HALLENGES THE S UMMARY J UDGMENT
In two issues, which we address together, Ades argues that the trial
court erred by granting TWC and Luminant’s joint motion for summary
judgment because substantial evidence does not, as a matter of law, support
TWC’s determination that he is statutorily disqualified from receiving
unemployment compensation benefits for committing misconduct.
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A. Substantial Evidence Review
The trial court reviews a TWC decision regarding benefit payments
de novo to determine whether there is substantial evidence to support that
decision. Id. § 212.202(a) (Vernon 2006); Mercer v. Ross, 701 S.W.2d 830,
831 (Tex. 1986). Under a substantial evidence review, the issue is whether the
evidence introduced at trial shows facts in existence at the time of TWC’s
decision that reasonably support the decision; the trial court must determine
whether reasonable minds could have reached the same conclusion that TWC
reached. Collingsworth Gen. Hosp. v. Hunnicut, 988 S.W.2d 706, 708 (Tex.
1998); see Dotson v. Tex. State Bd. of Med. Exam’rs, 612 S.W.2d 921, 922
(Tex. 1981). If substantial evidence supports either an affirmative or a negative
determination of a former employee’s entitlement to collect unemployment
compensation benefits, the trial court must allow TWC’s order to stand.
Edwards v. Tex. Employment Comm’n, 936 S.W.2d 462, 465 (Tex. App.—Fort
Worth 1996, no writ) (stating that if a trial court finds substantial evidence to
support TWC’s ruling, it must yield to the discretion exercised by TWC in
making the ruling); see Firemen’s and Policemen’s Civil Serv. Comm’n v.
Brinkmeyer, 662 S.W.2d 953, 956 (Tex. 1984) (discussing substantial
evidence review).
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TWC’s determination carries a presumption of validity, and whether the
decision is supported by substantial evidence is strictly a question of law.
Mercer, 701 S.W.2d at 831; City of Houston v. Morris, 23 S.W.3d 505, 508
(Tex. App.—Houston [1st Dist.] 2000, no pet.). Substantial evidence is more
than a mere scintilla of evidence but less than a preponderance of evidence;
consequently, the evidence may preponderate against TWC’s decision but still
amount to substantial evidence. City of Houston v. Tippy, 991 S.W.2d 330,
334 (Tex. App.—Houston [1st Dist.] 1999, no pet.).
The party seeking to set aside the decision has the burden of showing
that it is not supported by substantial evidence. Mercer, 701 S.W.2d at 831.
The trial court may not set aside a TWC decision merely because there was
conflicting or disputed testimony or because the court would reach a different
conclusion. Hunnicut, 988 S.W.2d at 708; Goettman v. Tex. Workforce
Comm’n, No. 02-02-00073-CV, 2003 WL 1090521, at *3 (Tex. App.—Fort
Worth Mar. 13, 2003, no pet.) (mem. op.). Rather, the court may only set
aside TWC’s decision if it finds that the decision was made without regard to
the law or the facts and, therefore, was unreasonable, arbitrary, or capricious.
Mercer, 701 S.W.2d at 831; Tippy, 991 S.W.2d at 334.
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B. Summary Judgment
In a summary judgment case, the issue on appeal is whether the movant
met the summary judgment burden by establishing that no genuine issue of
material fact exists and that the movant is entitled to judgment as a matter of
law. Tex. R. Civ. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211,
215 (Tex. 2002); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671,
678 (Tex. 1979). The burden of proof is on the movant, and all doubts about
the existence of a genuine issue of material fact are resolved against the
movant. Sw. Elec. Power Co., 73 S.W.3d at 215. We take as true all evidence
favorable to the nonmovant, and we indulge every reasonable inference and
resolve any doubts in the nonmovant’s favor. Valence Operating Co. v.
Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Evidence that favors the movant’s
position will not be considered unless it is uncontroverted. Great Am. Reserve
Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965).
But we must consider whether reasonable and fair-minded jurors could differ in
their conclusions in light of all of the evidence presented. See Wal-Mart Stores,
Inc. v. Spates, 186 S.W.3d 566, 568 (Tex. 2006); City of Keller v. Wilson, 168
S.W.3d 802, 822–24 (Tex. 2005).
Appeals under substantial evidence review are uniquely suited to
summary judgment because the only issue before the court is a question of law.
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Arrellano v. Tex. Employment Comm’n, 810 S.W.2d 767, 771 (Tex. App.—San
Antonio 1991, writ denied). Our task in this appeal is to determine whether the
summary judgment evidence established as a matter of law that substantial
evidence existed to support TWC’s decision. See, e.g., Direct Commc’ns, Inc.
v. Lunsford, 906 S.W.2d 537, 542 (Tex. App.—Dallas 1995, no writ).
C. Substantial Evidence Supports TWC’s Decision as a Matter of Law
The Texas Unemployment Compensation Act’s intent is to compensate
those who become unemployed through no fault of their own. Hunnicut, 988
S.W.2d at 709–10. However, “[a]n individual is disqualified for benefits if the
individual was discharged for misconduct connected with the individual’s last
work.” Tex. Lab. Code Ann. § 207.044(a). “Misconduct” means “misman-
agement of a position of employment by action or inaction, neglect that
jeopardizes the life or property of another, intentional wrongdoing or
malfeasance, intentional violation of a law, or violation of a policy or rule
adopted to ensure the orderly work and the safety of employees.” Id.
§ 201.012(a) (emphasis added).
TWC and Luminant attached evidence to their joint motion for summary
judgment that showed the following: Luminant’s Code of Conduct was
adopted to ensure the orderly work and safety of its employees; Luminant’s
employees are expected to follow the Code of Conduct; a violation of the Code
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of Conduct can lead to disciplinary action or immediate termination; Ades
electronically signed an “Acknowledgment and Certification of Compliance”
indicating that he had read and understood the Code of Conduct; Ades
instructed Haupt to purchase a television for the mining facility; before
purchasing the television with the company credit card, Haupt called Ades to
confirm that the purchase had been authorized, and Ades assured Haupt that
the purchase had been approved; Ades directed Guest where to mount the
television at Luminant’s facility; Operations Manager Godwin did not give Ades
permission to purchase the television; when Luminant investigated the
unauthorized television purchase, Ades denied having any knowledge or
involvement in the purchase; Luminant terminated Ades’s employment because
he provided false information during a company investigation, which is a
violation of Luminant’s Code of Conduct. TWC and Luminant’s summary
judgment evidence thus shows that Ades committed misconduct connected
with his work because he violated Luminant’s Code of Conduct, which was
adopted to ensure the orderly work and safety of its employees, when he
provided false information in the course of Luminant’s investigation. See Tex.
Lab. Code Ann. § 207.044(a). The facts constituting Ades’s misconduct,
which were in existence at the time of TWC’s decision, reasonably support its
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determination that Ades is disqualified from receiving unemployment
compensation benefits. See id.; Hunnicut, 988 S.W.2d at 708.
Ades argues that the question before the trial court was “did [he] lie
during the investigation[,] and is that sufficient to rise to the level of
misconduct.” But this was not the “question” before the trial court because
TWC was the primary fact-finding body, not the trial court. See Brinkmeyer,
662 S.W.2d at 956. The issue before the trial court was strictly one of law:
whether substantial evidence supports TWC’s decision to deny benefits to
Ades. See Tex. Lab. Code Ann. § 212.202(a); Mercer, 701 S.W.2d at 831.
Ades also challenges TWC and Luminant’s factual allegations that he committed
misconduct, but mere conflicts in the evidence do not permit the trial court to
set aside TWC’s determination under the substantial evidence standard. See
Hunnicut, 988 S.W.2d at 708. Further, Ades responded to TWC and
Luminant’s joint motion for summary judgment with a “Motion to Deny
Defendants’ Motion for Summary Judgment,” but he did not attach any
evidence to the motion. To the extent Ades references evidence in his brief
that is not part of the summary judgment record, that evidence does not
support Ades’s argument because we are required to look at the evidence
presented at the trial de novo, not at the record created by the TWC. See
Mercer, 701 S.W.2d at 831.
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We hold that Ades failed to demonstrate that TWC’s decision was made
without regard to the law or the facts and, therefore, was unreasonable,
arbitrary, or capricious. We further hold that the trial court did not err by
concluding that the summary judgment evidence established as a matter of law
that substantial evidence existed to support TWC’s determination that Ades is
statutorily disqualified from receiving unemployment compensation benefits for
committing misconduct; reasonable minds could have reached the same
conclusion as TWC—that Ades violated Luminant’s Code of Conduct for giving
false information during an investigation. See Hunnicut, 988 S.W.2d at 708;
Dotson, 612 S.W.2d at 922. We overrule Ades’s two issues.
IV. C ONCLUSION
Having overruled Ades’s two issues, we affirm the trial court’s judgment.
PER CURIAM
PANEL: MEIER, WALKER, and MCCOY, JJ.
DELIVERED: October 22, 2009
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