Michael M. Blanchard v. Brazos Forest Products, L.P. and Texas Workforce Commission ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00419-CV
MICHAEL M. BLANCHARD APPELLANT
V.
BRAZOS FOREST PRODUCTS, APPELLEES
L.P. AND TEXAS WORKFORCE
COMMISSION
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FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY
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OPINION
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I. Introduction
Appellant Michael M. Blanchard appeals the trial court’s summary
judgment in favor of Appellees Brazos Forest Products, L.P. (Brazos) and Texas
Workforce Commission (TWC). Blanchard contends in two issues that the trial
court erred by granting summary judgment against him because it applied the
wrong summary judgment standard and made incorrect evidentiary rulings. We
affirm.
II. Background
Blanchard was employed as a truck driver for Brazos, but Brazos
terminated Blanchard’s employment on June 17, 2008, because he allegedly
treated a customer inappropriately. Blanchard sought unemployment benefits,
but the TWC appeal tribunal denied his claim. The TWC affirmed the denial, and
Blanchard appealed to district court. Brazos and TWC filed a joint motion for
summary judgment, which the trial court granted after overruling most of
Blanchard’s objections to Brazos and TWC’s summary judgment evidence.
In support of their joint motion for summary judgment, Brazos and TWC
presented affidavits by Helen Nguyen, Randy Nguyen, Kyle Arterburn, and Daren
Schirico. Ms. Nguyen stated in her affidavit that Blanchard delivered wood
supplies to RD Shutters, Inc. on June 17, 2008, and that she was familiar with
Blanchard from prior deliveries. She related that Blanchard typically entered the
front office when he arrived for deliveries so that RD Shutters employees could
assist him, but she said that Blanchard did not do so that day, that he instead
began unloading the wood supplies himself, that he began throwing the supplies
onto the loading dock, and that Blanchard had been rude and disrespectful
during at least one prior delivery.
Mr. Nguyen was also employed by RD Shutters on June 17, 2008. He
stated by affidavit that he was present during Blanchard’s delivery on that date,
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that he personally witnessed Blanchard throwing wood supplies onto the loading
dock, that he personally asked Blanchard to stop throwing the supplies and wait
until someone could assist him, but that Blanchard continued throwing the
supplies onto the loading dock. Mr. Nguyen also stated that he called Brazos
after the incident, complaining of Blanchard’s ―rude and destructive behavior‖ and
asking that Blanchard not make any further deliveries to RD Shutters.
Arterburn is Brazos’s human resources manager. He stated in his affidavit
that Blanchard’s employment with Brazos was terminated on June 17, 2008, after
RD Shutters complained about Blanchard’s conduct during the delivery. Schirico
is one of Brazos’s assistant general managers. Shirico stated by affidavit that he
presented Blanchard with a termination notice on June 17, 2008, and informed
Blanchard that he was being fired as a result of the customer complaint.
Blanchard filed a written response to Brazos and TWC’s joint motion for
summary judgment, and he asserted objections to Brazos and TWC’s summary
judgment evidence and presented evidence contradicting much of Brazos and
TWC’s summary judgment evidence. In his affidavit, Blanchard stated that he
went into the RD Shutters office when he arrived for the June 17, 2008 delivery
but that no one was there. He averred that he then began unloading the wood
bundles by sliding them from the truck to the loading dock and that this was
permissible because he had done so during previous deliveries. Blanchard
further stated that Mr. Nguyen approached him as he was unloading the last
bundle onto the dock and that Mr. Nguyen was upset with him for not asking RD
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Shutters workers to assist with the delivery. Blanchard said, however, that he
explained that there was no one in the office when he arrived, that he was not
rude or disrespectful to Mr. Nguyen, that he gave Mr. Nguyen the opportunity to
inspect the bundles, that Mr. Nguyen did so, and that Mr. Nguyen signed the
delivery invoice without indicating any damage to the product. Blanchard further
stated that he has a back problem and is physically unable to throw the wood
supplies onto a loading dock. Finally, Blanchard denied seeing or having any
interaction with Ms. Nguyen on June 17, 2008.
Mark Gilbert testified in his deposition that he was Blanchard’s direct
supervisor at Brazos, that sliding the wood product from the truck onto the
loading dock is a permissible way to unload without damaging the product, and
that he recalled providing Blanchard with a hook to assist him in sliding the wood
product off the bed of a delivery truck.
III. Standard of Review
We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,
315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the
light most favorable to the nonmovant, crediting evidence favorable to the
nonmovant if reasonable jurors could, and disregarding evidence contrary to the
nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every
reasonable inference and resolve any doubts in the nonmovant’s favor. 20801,
Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008).
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IV. Discussion
Blanchard contends in his first issue that the trial court erred by granting
summary judgment for Brazos and TWC because he presented evidence raising
genuine issues of material fact. Specifically, Blanchard argues that the trial court
did not apply the traditional summary judgment standard when granting Brazos
and TWC’s joint motion for summary judgment. In his second issue, Blanchard
contends that the trial court abused its discretion by overruling his objections to
Brazos and TWC’s summary judgment evidence.
A. Summary Judgment
Brazos and TWC moved for summary judgment on the ground that
Blanchard’s employment with Brazos was terminated for misconduct as defined
by labor code section 201.012, meaning that Blanchard was not entitled to
unemployment benefits pursuant to labor code section 207.044(a). See Tex.
Lab. Code Ann. §§ 201.012(a), 207.044(a) (West 2006).
Blanchard argues that under the traditional standard for reviewing
summary judgments—requiring the movant to establish entitlement to summary
judgment as a matter of law, taking as true the nonmovant’s evidence, and
indulging every inference in the nonmovant’s favor—he presented evidence
creating genuine issues of material fact. To resolve Blanchard’s first issue, it is
first necessary to review the nature of an appeal to district court following TWC’s
administrative decision.
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Judicial review of a TWC determination is by ―trial de novo based on the
substantial evidence rule.‖ Tex. Lab. Code Ann. § 212.202(a) (West 2006). The
trial court conducts an evidentiary trial to ―determine whether the agency’s ruling
is free of the taint of any illegality and is reasonably supported by substantial
evidence.‖ Edwards v. Tex. Emp’t Comm’n, 936 S.W.2d 462, 465 (Tex. App.—
Fort Worth 1996, no writ). In making this determination, the issue is not whether
TWC made the correct decision; it is instead ―whether the evidence introduced
before the trial court shows facts in existence at the time of the [agency’s]
decision that reasonably support the decision,‖ that is, whether reasonable minds
could have reached the same conclusion. Collingsworth Gen. Hosp. v.
Hunnicutt, 988 S.W.2d 706, 708 (Tex. 1998); see Edwards, 936 S.W.2d at 465;
see also Tex. Health Facilities Comm’n v. Charter Med.-Dallas, Inc., 665 S.W.2d
446, 452 (Tex. 1984) (―The true test is not whether the agency reached the
correct conclusion, but whether some reasonable basis exists in the record for
the action taken by the agency.‖). Because substantial evidence is more than a
mere scintilla of evidence but less than a preponderance of evidence, the
evidence may preponderate against the TWC 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.); see also Tex. Health Facilities Comm’n,
665 S.W.2d at 452. TWC remains the primary factfinding body, and the
reviewing court may not substitute its judgment for TWC’s on controverted fact
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issues; the question before the trial court is one of law. Edwards, 936 S.W.2d at
465.
Trial courts may grant summary judgments in cases tried under the
substantial evidence rule. Cruz v. City of San Antonio, 424 S.W.2d 45, 47 (Tex.
Civ. App.—San Antonio 1968, no writ); see Jimison v. Tex. Workforce Comm’n,
No. 02-09-00127-CV, 2010 WL 851418, at *3 (Tex. App.—Fort Worth Mar. 11,
2010, no pet.) (mem. op.). ―Indeed, appeals under substantial evidence review
are uniquely suited to summary judgment because the only issue before the
court is a question of law.‖ Arrellano v. Tex. Emp’t Comm’n, 810 S.W.2d 767,
771 (Tex. App.—San Antonio 1991, writ denied). We review the trial court’s
judgment by comparing the TWC decision with the evidence presented to the trial
court and the governing law. Potts v. Tex. Emp’t Comm’n, 884 S.W.2d 879, 882
(Tex. App.—Dallas 1994, no writ). We determine whether the summary
judgment evidence established as a matter of law that substantial evidence
existed to support the TWC decision. Id. at 883.
Thus, the trial court in this case was required to accept as true all of
Blanchard’s evidence, indulge every reasonable inference and resolve any
doubts in his favor, and determine whether the summary judgment evidence
showed, as a matter of law, that facts in existence at the time of TWC’s decision
reasonably supported the decision—i.e., whether reasonable minds could have
reached the same conclusion. See Collingsworth Gen. Hosp., 988 S.W.2d at
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708; Edwards, 936 S.W.2d at 465; Jimison, 2010 WL 851418, at *3–4; see also
Mann Frankfort, 289 S.W.3d at 848; 20801, Inc., 249 S.W.3d at 399.
Blanchard’s contention is essentially that the trial court must have applied
the wrong evidentiary standard because he presented evidence creating genuine
issues of material fact in response to Brazos and TWC’s summary judgment
evidence. But Blanchard misinterprets the question to be decided by the trial
court on summary judgment. Rather than determine whether Brazos and TWC
proved as a matter of law that Blanchard engaged in misconduct as defined by
the labor code or whether fact issues precluded summary judgment, the trial
court was required to determine whether Brazos and TWC proved as a matter of
law that substantial evidence supported TWC’s decision to deny him
unemployment benefits. See Collingsworth Gen. Hosp., 988 S.W.2d at 708; Tex.
Health Facilities Comm’n, 665 S.W.2d at 452; Edwards, 936 S.W.2d at 465;
Potts, 884 S.W.2d at 883. As stated above, summary judgment is appropriate if
the summary judgment evidence proves as a matter of law that substantial
evidence—i.e., more than a scintilla but less than a preponderance—supports
the TWC decision, even though the summary judgment evidence preponderates
against the TWC decision to deny benefits. See Tippy, 991 S.W.2d at 334; see
also Tex. Health Facilities Comm’n, 665 S.W.2d at 452. With these principles in
mind, we turn to the merits of the trial court’s grant of summary judgment against
Blanchard.
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A person is ―disqualified for benefits if [he] was discharged for misconduct
connected with [his] last work.‖ Tex. Lab. Code Ann. § 207.044(a). Labor code
section 201.012(a) defines ―misconduct‖ as ―mismanagement 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.‖ Tex. Lab. Code Ann. § 201.012(a). Brazos and TWC argued to the
trial court that Blanchard’s conduct constituted mismanagement of his position of
employment. Mismanagement under section 201.012(a) requires intent ―or such
a degree of carelessness as to evidence a disregard of the consequences,
whether manifested through action or inaction.‖ Mercer v. Ross, 701 S.W.2d
830, 831 (Tex. 1986). However, ―[m]ere failure to perform the tasks to the
satisfaction of the employer, without more, does not constitute misconduct which
disqualifies an employee from benefits.‖ Tex. Emp’t Comm’n v. Torres, 804
S.W.2d 213, 215–16 (Tex. App.—Corpus Christi 1991, no pet.).
Brazos and TWC presented summary judgment evidence that Blanchard
delivered wood supplies to RD Shutters on June 17, 2008; that he did not ask for
assistance in the front office as he had done on prior deliveries; that he unloaded
the wood supplies himself by throwing them onto the loading dock; that Mr.
Nguyen asked Blanchard to stop throwing the supplies and wait until someone
could assist him; but that Blanchard continued throwing the supplies onto the
loading dock. There is also evidence that Blanchard’s employment with Brazos
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was terminated because Mr. Nguyen called Brazos after the incident, complained
of Blanchard’s ―rude and destructive behavior,‖ and asked that Blanchard not
make any further deliveries to RD Shutters. Blanchard presented summary
judgment evidence contradicting almost all of these facts.
If the issue were simply whether genuine issues of material fact precluded
summary judgment on the question of Blanchard’s alleged mismanagement of
his position of employment, the summary judgment should have been denied.
But the issue is instead whether the summary judgment evidence proved as a
matter of law that substantial evidence supported TWC’s decision to deny
Blanchard benefits because it found that he mismanaged his position of
employment. See Tex. Lab. Code Ann. § 201.012(a); Collingsworth Gen. Hosp.,
988 S.W.2d at 708; Tex. Health Facilities Comm’n, 665 S.W.2d at 452; Edwards,
936 S.W.2d at 465; Potts, 884 S.W.2d at 883. Answering solely that question of
law, we hold that the trial court did not err by concluding, as a matter of law, that
reasonable minds could have determined that Blanchard mismanaged his
position of employment. The evidence, although conflicting, constitutes more
than a scintilla of evidence that Blanchard acted with carelessness with sufficient
disregard of the consequences as opposed to the mere failure to perform a task
to Brazos’s satisfaction. See Mercer, 701 S.W.2d at 831; Torres, 804 S.W.2d at
215–16. We overrule Blanchard’s first issue.
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B. Evidentiary Rulings
Blanchard contends in his second issue that the trial court abused its
discretion by overruling his objections to Brazos and TWC’s summary judgment
evidence. We need not address Blanchard’s evidentiary objections, however,
because we have not relied on the objected-to evidence in determining that the
trial court did not err by finding that substantial evidence supported the TWC’s
decision.1 See Tex. R. App. P. 47.1. We therefore overrule Blanchard’s second
issue.
V. Conclusion
Having overruled each of Blanchard’s issues, we affirm the trial court’s
judgment.
ANNE GARDNER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.
DAUPHINOT, J., filed a concurring opinion.
DELIVERED: October 27, 2011
1
Blanchard objected to evidence of the TWC appeal tribunal decision and
TWC final decision, Brazos employee conduct policies, the portion of Shirico’s
affidavit detailing the complaint he received from Ms. Nguyen, e-mails from Ms.
Nguyen to Shirico, and the portion of Ms. Nguyen’s affidavit detailing statements
made by RD Shutters employee Ana Saucedo.
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COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00419-CV
MICHAEL M. BLANCHARD APPELLANT
V.
BRAZOS FOREST PRODUCTS, APPELLEES
L.P. AND TEXAS WORKFORCE
COMMISSION
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FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY
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CONCURRING OPINION
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The majority correctly recites the standard of review appropriate for a
traditional summary judgment1 but then essentially holds that it is irrelevant
because there is no real appeal from the determination of the Texas Workforce
Commission (TWC), stating,
1
Majority op. at 4; see Tex. R. Civ. P. 166a(b)–(c); Travelers Ins. Co. v.
Joachim, 315 S.W.3d 860, 862 (Tex. 2010); Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009); 20801, Inc. v.
Parker, 249 S.W.3d 392, 399 (Tex. 2008).
Rather than determine whether Brazos and TWC proved as a matter
of law that Blanchard engaged in misconduct as defined by the labor
code or whether fact issues precluded summary judgment, the trial
court was required to determine whether Brazos and TWC proved as
a matter of law that substantial evidence supported TWC’s decision
to deny him unemployment benefits.2
No matter that we must take the allegations of the nonmovant as true and
determine whether any issue of material fact exists in a true traditional summary
judgment review,3 if there was any evidence amounting to more than a scintilla
before the TWC that supports its decision, the entire appeal process is a sham
because as a matter of law the TWC cannot be reversed.4 Here, the nonmovant
showed substantial conflicting evidence. If we take it as true, summary judgment
is not proper.5 But, despite the standard of review to which we must give lip
service, all that conflicting evidence must be ignored in this case because, in
determining appeals from a TWC ruling, factual allegations of the nonmovant are
2
Majority op. at 8.
3
Tex. R. Civ. P. 166a(c); Fielding, 289 S.W.3d at 848.
4
See majority op. at 8; City of Houston v. Tippy, 991 S.W.2d 330, 334 (Tex.
App.—Houston [1st Dist.] 1999, no pet.); Edwards v. Tex. Emp’t Comm’n, 936
S.W.2d 462, 465 (Tex. App.—Fort Worth 1996, no writ); see also Tex. Health
Facilities Comm’n v. Charter Med.-Dallas, Inc., 665 S.W.2d 446, 452–53 (Tex.
1984) (noting that if there is substantial evidence, that is, more than a mere
scintilla, supporting the agency findings, the decision must be upheld even if the
evidence preponderates against it).
5
See Tex. R. Civ. P. 166a(c); Fielding, 289 S.W.3d at 848.
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irrelevant if there was any evidence amounting to more than a mere scintilla
before the TWC that supports its ruling.6
If this is what the legislature intends, then the Supreme Court of Texas
should come up with a new standard of review to be applied to summary
judgment cases involving appeals from administrative decisions based on
substantial evidence, and that standard of review should make sense in light of
the law that we are obligated to follow. I would suggest that the standard first
look to whether there was substantial evidence to support the administrative
ruling. Then I would ask whether the nonmovant has produced evidence either
below or as newly discovered evidence to show as a matter of law that the
administrative ruling cannot stand or that reasonable persons could not disagree
that the veracity or reliability of the evidence supporting the administrative ruling
was so lacking that a reasonable person could not rely on the evidence below. If
there is a question regarding when the nonmovant became aware of this
evidence, it would go to the propriety of granting or denying the motion for
summary judgment. That is, the burden would be on the proponent of the newly
discovered evidence in the same manner as in a motion for new trial based on
newly discovered evidence.7
6
See majority op. at 7; Edwards, 936 S.W.2d at 465.
7
See Fantasy Ranch, Inc. v. City of Arlington, 193 S.W.3d 605, 615 (Tex.
App.—Fort Worth 2006, pet. denied).
3
The majority has correctly addressed the issues before us as the law now
stands. I respectfully ask the Supreme Court of Texas to reconsider the standard
of review for summary judgments in cases involving appeals from administrative
rulings based on substantial evidence.
LEE ANN DAUPHINOT
JUSTICE
DELIVERED: October 27, 2011
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