Tiffany Johnson v. Harris County District Attorney's Office

Opinion issued January 14, 2021
In The
Court of Appeals
For The
First District of Texas
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NO. 01-19-00736-CV
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TIFFANY JOHNSON, Appellant
V.
HARRIS COUNTY DISTRICT ATTORNEY’S OFFICE, Appellee
On Appeal from the 295th District Court
Harris County, Texas
Trial Court Case No. 2017-52728
MEMORANDUM OPINION
This is an appeal from the trial court’s order setting aside an award of
unemployment benefits. For over 14 years, Tiffany Johnson served as an assistant
district attorney for the Harris County District Attorney’s Office. During the latter
years of Johnson’s term of employment, Devon Anderson served as the district
attorney. But in 2016, Anderson lost her reelection bid to challenger Kim Ogg. After
the election, Ogg informed Johnson that she would not be offered a position in the
new administration but did not state why she had decided to discharge her.
After her discharge, Johnson filed an application for unemployment benefits,
which the Texas Workforce Commission granted. The DAO then appealed the
TWC’s award, arguing that Johnson was disqualified for benefits because she had
been discharged for prosecutorial misconduct. But because there had been a 13-
month delay between Johnson’s misconduct and discharge, the TWC found the
former to be “too remote” in time from the latter to disqualify Johnson for benefits
and therefore affirmed the award.
The DAO then filed a petition for judicial review in the trial court, and the
parties filed cross-dispositive motions. After a hearing on the motions, the trial court
found that the TWC had erroneously failed to consider evidence of the
reasonableness of the delay between Johnson’s misconduct and discharge and that
substantial evidence exists establishing the reasonableness of the delay. The trial
court therefore denied Johnson’s motion, granted the DAO’s motion, and reversed
the TWC’s award.
We reverse the judgment of the trial court and render judgment in favor of
Johnson.
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Factual Background
Johnson began working for the DAO in August 2002. She was discharged in
December 2016 for misconduct that occurred over a year earlier in November 2015.
The material facts in this appeal concern whether the DAO’s delay in discharging
Johnson was reasonable.
Johnson engages in prosecutorial misconduct resulting in a mistrial
In November 2015, Johnson prosecuted a case against Robert Yetman, a
physician charged with indecency with a child. The trial did not go well for the State.
During closing argument, Johnson inferred, without evidentiary support, that
Yetman had abused the complainant because of the latter’s race, prompting defense
counsel to request a mistrial, which the trial court granted. Yetman then filed an
application for pretrial habeas relief, arguing that Johnson, seeking to avoid an
impending judgment of acquittal, had intentionally goaded the defense into
requesting a mistrial and that, as a result, the constitutional prohibition against
double jeopardy barred Yetman’s retrial. The trial court agreed and granted
Yetman’s application, which the DAO appealed.
After the mistrial, Johnson still receives a positive performance review
It is undisputed that the statements Johnson made during closing argument of
the Yetman trial constitute prosecutorial misconduct for which she could have been
fired and disqualified for unemployment benefits. However, after the trial court
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granted the mistrial and application for pretrial habeas relief, Johnson was not
terminated, considered for termination, or otherwise disciplined by the DAO.
Instead, the DAO gave her a positive performance evaluation, rating her as either
“extraordinarily surpass[ing] expectations” or “frequently exceed[ing] expectations”
for every performance metric. The performance evaluation did not mention the
statements Johnson made during closing argument of the Yetman case. Nor did the
performance evaluation indicate that Johnson’s continued employment might be
conditioned on the outcome of the Yetman appeal then pending before our sister
court. Instead, the performance evaluation stated, without qualification, that Johnson
had “done a great job” in her division and recommended her for promotion.
After receiving the positive review, Johnson is fired by the new DA
In November 2016, Devon Anderson lost her reelection bid to challenger Kim
Ogg. Before taking office, Ogg reviewed the personnel files of all ADAs. In an email
dated December 16, 2016, Ogg informed 37 ADAs, including Johnson, that they
would not be offered a position in the new administration. The email stated:
As you know, I have spent the past several weeks having a team of
attorneys carefully review the personnel files of all assistant district
attorneys employed by this organization. The objectives upon which I
campaigned and which resulted in my election provided the framework
for our review. Accomplishing those objectives will require a new
organizational structure, new leadership, and personnel changes.
I regret to inform you that, in service of those objectives, I will not be
offering you a position after I take office on January 1, 2017.
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Six days later, on December 22, 2016, our sister court issued its opinion
affirming the trial court’s order granting Yetman’s application for pretrial habeas-
corpus relief. State v. Yetman, 516 S.W.3d 33 (Tex. App.—Houston [14th Dist.]
2016, no pet.). Johnson’s last day of employment was December 31, 2016. As of
that date, Johnson had not been told that misconduct in the Yetman trial had been
the cause of her termination.
Procedural History
TWC proceedings
In January 2017, Johnson applied for unemployment benefits and was
interviewed by the Hearing Officer assigned to her case. Johnson informed the
Hearing Officer that she had been fired by the newly-elected DA, Kim Ogg, who
had informed Johnson in an email that she would not be offered a position in the
new administration without providing a “specific reason” for the decision. Johnson
told the Hearing Officer that she had not received any warnings related to her firing
and that, to her knowledge, nothing “specific” had happened to cause her to be fired.
The TWC provided the DAO with notice of Johnson’s application. In a letter
dated January 17, 2017, the DAO responded to the notice by confirming that Johnson
had been fired. The DAO explained that Johnson had not been invited to serve in the
new administration because of her misconduct in the Yetman trial.
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The Hearing Officer then asked the DAO why there had been a delay between
Johnson’s misconduct and discharge. The DAO responded that the decision to
terminate Johnson had been made by the newly-elected DA Kim Ogg, who had not
been in a position to make any personnel decisions until after she had won the
election.
On January 25, 2017, the Hearing Officer made her initial decision approving
Johnson’s claim for unemployment benefits.
On February 8, 2017, the DAO filed an appeal of the Hearing Officer’s initial
decision with the Appeal Tribunal. The DAO reiterated its position that Johnson was
disqualified for benefits because she had been discharged for misconduct connected
with work.
On April 13, 2017, the Appeal Tribunal issued a decision affirming the
Hearing Officer’s initial decision. In its decision, the Appeal Tribunal found that
Johnson had been discharged at the request of the incoming DA. The Appeal
Tribunal further found that while Johnson’s conduct and work performance had been
acceptable to the prior administration, the new administration did not wish to further
employ her due to an incident that occurred in November 2015. The Appeal Tribunal
then cited an internal precedent from the TWC Appeals Policy and Precedent
Manual:
Where the most recent act of misconduct on a claimant’s part alleged
by the employer was shown to have occurred three months prior to the
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claimant’s discharge, such act or omission, even if proved by a
preponderance of the evidence, will not support a finding of misconduct
with the work for which the claimant was discharged, because it was
too remote in time from the discharge.
Applying the internal precedent to its findings, the Appeal Tribunal then
concluded that Johnson was not disqualified for benefits because her misconduct
was too remote in time from her discharge.
On April 27, 2017, the DAO appealed the Appeal Tribunal’s decision to the
Commission Appeals Board, arguing that the Tribunal erred in relying on the TWC’s
internal precedent and failing to consider whether the delay in discharging Johnson
had been reasonable.
On June 11, 2017, the Commission Appeals Board affirmed the Appeal
Tribunal’s decision, adopting in full the Tribunal’s findings of fact and conclusions
of law.
Trial court proceedings
On August 8, 2017, the DAO filed a petition for judicial review, requesting
that the TWC’s award of benefits be set aside due to Johnson’s prosecutorial
misconduct in the Yetman trial. See TEX. LAB. CODE § 212.201(a) (“A party
aggrieved by a final decision of the commission may obtain judicial review of the
decision by bringing an action in a court of competent jurisdiction for review of the
decision against the commission.”).
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On June 27, 2019, the DAO filed a motion for summary judgment, arguing
that the TWC only arrived at its final decision awarding benefits to Johnson by
applying an erroneous legal standard that failed to consider evidence of the
reasonableness of the DAO’s delay in discharging her. The DAO further argued that
the evidence proved as a matter of law that its delay was reasonable due to the
pendency of the appeal in the Yetman case and the change over to the new DA
administration and that, as a result, Johnson was disqualified for benefits.
On August 19, 2019, Johnson filed a cross-motion for summary judgment,1
arguing that the evidence proved as a matter of law that the TWC’s final decision
was supported by substantial evidence. Johnson further argued that the DAO failed
to meet its burden to prove the reasonableness of its delay discharging her because
(1) the evidence contradicted the DAO’s allegation that it delayed in discharging her
due to the pendency of the appeal in the Yetman case and (2) the change over to the
new administration did not constitute a legally valid reason for the delay.
Johnson supported her cross-motion with numerous exhibits, including, as
relevant here: (1) the administrative record from the TWC proceedings, (2) the
performance evaluation she received after the Yetman mistrial, (3) the email she
received from Ogg informing her of her termination, (4) her sworn declaration, and
1
The motion was actually filed by both Johnson and the TWC, who are both
appellants in this appeal. For ease of reading, when discussing their motion and
arguments on appeal, we will refer to them collectively as Johnson.
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(5) and the affidavit of Belinda Hill, who served as the DAO’s First ADA during
Johnson’s term of employment.
In her declaration, Johnson stated that:
• when the trial court in the Yetman case found that she had engaged in
prosecutorial misconduct, she was not told by her supervisors that her
employment was in jeopardy or that she was under any type of investigation
for the misconduct;
• she was never told or warned that her continued employment would be based
on the resolution of the Yetman appeal;
• when she received Ogg’s email informing her that she would not be offered a
position in the new administration, she was not told that the termination of her
employment was based on the appellate court’s opinion affirming the trial
court’s order;
• at the time, she was not under investigation for misconduct;
• she was never given a reason why she was not being invited back to continue
her employment with the DAO or admonished for any misconduct; and
• only after she applied for unemployment benefits in January 2017 was she
informed that her employment had been terminated due to misconduct.
In her affidavit, Hill stated that during her tenure as First ADA:
• she personally handled or reviewed all employee investigations, discipline
recommendations, implementation of discipline, and terminations;
• at no time was Johnson investigated, disciplined, or considered for
termination for misconduct related to the Yetman trial;
• neither she nor DA Devon Anderson postponed initiation of a disciplinary
investigation or implementation of disciplinary action pending the resolution
of the DAO’s appeal of the trial court’s order finding that Johnson had
engaged in misconduct; and
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• Johnson's continued employment did not depend on the resolution of the
Yetman appeal.
On September 10, 2019, the trial court signed an order granting the DAO’s
motion for summary judgment and denying Johnson’s cross-motion for summary
judgment. In its order, the trial court found that: (1) no substantial evidence exists to
support the TWC’s award of unemployment benefits, (2) the TWC made its decision
without regard to the law or the facts because it failed to consider evidence of the
reasonableness of the delay between Johnson’s misconduct and discharge, and (3)
substantial evidence exists that the delay was reasonable due to the pending appeal
and the change over to the new DA. The trial court therefore ordered that the TWC’s
award of benefits be reversed.
Johnson appeals.
Challenge to TWC Ruling
On appeal, Johnson argues that the trial court erred in granting the DAO’s
motion for summary judgment and denying her cross-motion because the evidence
presented to the trial court establishes as a matter of law that the final decision of the
Commission Appeals Board is supported by substantial evidence.
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A. Standard of review
1. Summary judgment
We review an order granting or denying a motion for summary judgment de
novo. Charles R. Tips Family Tr. v. PB Commercial LLC, 459 S.W.3d 147, 152
(Tex. App.—Houston [1st Dist.] 2015, no pet.). When, as here, both parties moved
for summary judgment and the trial court granted one and denied the other, we
review the summary judgment evidence presented by each party, determine all
questions presented, and render judgment as the trial court should have
rendered. Id. We may affirm the judgment that the trial court rendered or reverse and
render the judgment that the trial court should have rendered. Id.
2. Substantial evidence review
The applicable standard of review for a TWC decision is “trial de novo based
on the substantial evidence rule.” LAB. § 212.202(a). A TWC decision carries a
presumption of validity, and the party seeking to set it aside has the burden to show
it was not supported by substantial evidence. Kaup v. Tex. Workforce Comm’n, 456
S.W.3d 289, 294 (Tex. App.—Houston [1st Dist.] 2014, no pet.). Whether the
TWC’s decision is supported by substantial evidence is a question of law. Id.Under the substantial evidence rule, the burden is on the party seeking to set
aside the TWC’s ruling to demonstrate that less than substantial evidence supports
the decision. Id. We do not weigh the evidence to decide whether TWC made the
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correct decision but, instead, ask whether the evidence introduced before the trial
court shows facts in existence at the time of the TWC’s decision that reasonably
support the decision it reached. Id.If the evidence is such that reasonable minds could have reached the same
conclusion as the TWC, the agency’s decision must be upheld. Id. In other words, if
substantial evidence would support either affirmative or negative findings, we must
uphold the agency decision and resolve any conflicts in favor of the agency decision.
Id. We may not set aside an agency decision merely because testimony was
conflicting or disputed or because it did not compel the agency’s decision. Id. If there
is substantial evidence which supports the order, the courts must defer to the
administrative body’s exercise of discretion. Id. It is the agency’s function to resolve
conflicts in evidence, and it is the aim of the substantial evidence rule to protect that
function. Id. at 294–95.
We review the trial court’s judgment by comparing the TWC decision with
the evidence presented to the trial court and the governing law. Id. at 295. In
reviewing the order granting summary judgment, we decide whether the evidence
presented to the trial court established as a matter of law that substantial evidence
existed to support the TWC decision. Id.
“Substantial evidence” is more than a scintilla, but less than a preponderance.
Id. If substantial evidence exists that supports the TWC’s determination, it does not
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affect our resolution of the case that the DAO presented contrary evidence; we do
not weigh the evidence. Id.
In addition to reviewing whether substantial evidence supports the TWC
ruling, we also review whether TWC applied the correct legal standard to reach its
conclusion. Id. If the TWC grants benefits without regard to the law or the facts, the
denial is unreasonable, arbitrary, or capricious and subject to reversal. See id.
B. Applicable law
Under the Labor Code, “[a]n individual is disqualified for benefits if the
individual was discharged for misconduct connected with the individual’s last
work.” LAB. § 207.044(a). However, “an employee’s act or omission cannot be too
remote in time from the discharge to constitute misconduct that is ‘connected with’
the employee’s last work.” City of Houston v. Morris, 23 S.W.3d 505, 509 (Tex.
App.—Houston [1st Dist.] 2000, no pet.). Thus, “if the discharge is remote in time
from the misconduct, then the burden is on the employer to show the delay was
reasonable.” Id.C. Analysis
It is undisputed that the DAO discharged Johnson for misconduct; it is
undisputed that Johnson’s misconduct occurred 13 months before her date of
discharge; and it is undisputed that such a delay renders misconduct too remote in
time from discharge to be considered connected with an employee’s last work absent
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a showing of reasonableness by the employer. Thus, in challenging the TWC’s
decision, the DAO had the burden to present evidence establishing as a matter of law
the reasonableness of its delay in discharging Johnson. See Kaup, 456 S.W.3d at 294
(party seeking to set aside presumptively valid TWC decision has burden to show
decision was not supported by substantial evidence); Morris, 23 S.W.3d at 509 (if
discharge is remote in time from misconduct, burden is on employer to show delay
was reasonable). The DAO contends that it met its burden by presenting evidence
that the decision to discharge Johnson was made by the new DA, Kim Ogg; Ogg was
not able to make the decision until after her election in November 2016; and even
after her election, Ogg did not immediately decide whether to discharge Johnson but
instead waited until the resolution of the appeal in the Yetman case. We disagree.
First, while the DAO contends that Ogg refrained from making her decision
until after the resolution of the Yetman appeal, the DAO has failed to present
evidence supporting its contention. The evidence presented to the trial court does not
show that Ogg waited to make her decision until the Yetman appeal was resolved.
In fact, it shows the opposite. Ogg sent her termination email on December 16, 2016.
But the court of appeals did not issue its opinion in the Yetman appeal until six days
later on December 22, 2016. Yetman, 516 S.W.3d at 33. Thus, Ogg’s decision to
terminate Johnson could not have depended on the resolution of the Yetman appeal,
since Ogg made the decision before the appeal was resolved.
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Second, while it is undisputed that Ogg could not have made the decision to
discharge Johnson until after she was elected as DA in November 2016, the DAO
has failed to present evidence showing that it could not have discharged Johnson
before then—i.e., before Ogg was elected.
For example, the DAO did not present evidence that Johnson’s misconduct
was not discovered until after Ogg’s election; it is undisputed that the DAO knew of
the misconduct from the day it was committed. See Kaup, 456 S.W.3d at 297–98
(rejecting remoteness argument when summary-judgment evidence revealed that
employer fired employee one week after discovering that employee had been
violating company policy for months); Fuller v. Tex. Workforce Comm’n, No. 02-
17-00169-CV, 2018 WL 2142902, at *3–5 (Tex. App.—Fort Worth May 10, 2018,
no pet.) (mem. op.) (rejecting remoteness argument when evidence showed that
employer fired employee two days after discovering that employee had violated
company policy).
Nor did the DAO present evidence that it could not have discharged Johnson
until after Ogg took office because it had been following established procedures
designed to prevent the wrongful termination of employees. See Morris, 23 S.W.3d
at 509 (“As a general rule, misconduct will not be found where the precipitation
incident is too remote in time from the date of the work separation. This general rule
does not apply, however, if the delay is caused by established procedures designed
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to protect the worker from possible erroneous separation decisions.” (quoting TWC
Appeal No. 97-008947-10-082097)).
Nor has the DAO cited authority that a change in an employer’s leadership,
standing alone, justifies an otherwise unreasonable delay in discharging an employee
for work-related misconduct. In the absence of such authority, we reject the DAO’s
argument and the trial court’s finding that the delay in discharging Johnson was
reasonable due to the change over to the new administration.
Presuming the validity of the TWC’s decision, we hold that the DAO failed
to meet its burden to present evidence to the trial court establishing as a matter of
law the reasonableness of the DAO’s delay in discharging Johnson. See Kaup, 456
S.W.3d at 294; Morris, 23 S.W.3d at 509. The DAO argues that we should
nevertheless affirm the trial court’s summary judgment setting aside the TWC’s
decision because the TWC made its decision without regard to the law or the facts.
See Kaup, 456 S.W.3d at 295 (trial court may set aside TWC decision made without
regard to law or facts). Specifically, the DAO contends that, in making its decision,
the TWC disregarded the law and the facts by (1) failing to consider evidence of the
reasonableness of the DAO’s 13-month delay in discharging Johnson and instead (2)
applying an erroneous TWC internal precedent establishing a three-month delay as
unreasonable per se. Again, we disagree.
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First, the record does not support the DAO’s contention that the TWC failed
to consider evidence of the reasonableness of the DAO’s delay in discharging
Johnson. The DAO contends the TWC failed to consider two types of evidence: (1)
evidence that the delay was due to the change in the DAO’s leadership and (2)
evidence that the delay was due to the pendency of the Yetman appeal.
But the record shows that the TWC did consider the first type of evidence. In
its decision affirming the Hearing Officer’s initial decision, the Appeal Tribunal
found that Johnson had been discharged “at the request of the incoming DA.” The
Appeal Tribunal further found that while Johnson’s “conduct and work
performance” had been “acceptable to the prior administration[,]” “[t]he new
administration did not wish to further employ [her] based on an incident” that had
“occurred in November 2015.” The Appeal Tribunal’s findings were adopted in full
by the Commission Appeals Board in its final decision affirming the award of
benefits. These findings show that the TWC considered—and rejected—evidence
that the delay in discharging Johnson was reasonable due to the change in the
leadership of the DAO.
The record further shows that the DAO never presented the TWC with the
second type of evidence. See Morris, 23 S.W.3d at 509 (“[I]f the discharge is remote
in time from the misconduct, then the burden is on the employer to show the delay
was reasonable.” (emphasis added)). The record shows that, in the TWC
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proceedings, the DAO stated that it had discharged Johnson for her misconduct in
the Yetman trial. But there is no evidence in the record that the DAO ever informed
the TWC that it had appealed the trial court’s order finding that Johnson had
committed prosecutorial misconduct. Nor is there any evidence that the DAO
informed the TWC that Ogg waited to make her decision until the appeal was
resolved. The TWC cannot be faulted for failing to consider the pendency of the
Yetman appeal as evidence of the reasonableness of the DAO’s delay in discharging
Johnson when the DAO did not bother to present the TWC with such evidence for
its consideration. See id.Second, assuming without deciding the TWC made its decision by applying
an erroneous internal precedent, the error is not a sufficient ground for setting aside
the TWC’s decision. In making its decision, the TWC applied the following internal
precedent from its Appeals Policy and Precedent Manual:
Where the most recent act of misconduct on a claimant’s part alleged
by the employer was shown to have occurred three months prior to the
claimant’s discharge, such act or omission, even if proved by a
preponderance of the evidence, will not support a finding of misconduct
with the work for which the claimant was discharged, because it was
too remote in time from the discharge.
The DAO construes this internal precedent as establishing a per se rule:
misconduct occurring more than three months before discharge is too remote in time
from the discharge to be considered connected with the employee’s last work
regardless of the reasons for the delay. The DAO contends that this rule violates
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Morris, which holds that such misconduct is too remote in time from the discharge
unless the employer shows the delay was reasonable. See 23 S.W.3d at 509–10.
But whether the TWC’s internal precedent violates Morris is irrelevant to
whether the TWC’s decision in this case should be affirmed. The TWC’s ultimate
conclusion (that Johnson is not disqualified for benefits because her discharge was
too remote in time from her misconduct) is supported by substantial evidence (as
detailed in the first part of our analysis). Because the TWC’s conclusion is supported
by substantial evidence, “it is immaterial that it may have proceeded to the
conclusion on an erroneous theory or may have given an unsound reason for reaching
it.” Tex. Emp’t Comm’n v. Hays, 360 S.W.2d 525, 527 (Tex. 1962). This is part of
the reason why it is so difficult to reverse a TWC decision. But this difficulty is by
design, given the deference afforded to administrative decisions.
Finally, the DAO suggests that Morris’s remoteness standard conflicts with
the plain meaning of Section 207.044(a), which simply requires that the employee’s
misconduct be “connected with the [employee]’s last work” regardless of the time
between the misconduct and discharge. LAB. § 207.044(a). To the extent the DAO
urges us to overrule Morris, we decline to do so; the precedent is soundly reasoned
and well-established. And even if Morris were incorrect, we would still be bound to
follow it “because there has been no intervening material change in the law since the
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opinion was issued.” Nghiem v. Sajib, 559 S.W.3d 188, 192 (Tex. App.—Houston
[1st Dist.] 2017), rev’d, 567 S.W.3d 718 (Tex. 2019).
In sum, Johnson presented substantial evidence that her discharge was remote
in time from her misconduct, and the DAO failed to present evidence conclusively
negating Johnson’s evidence or proving that its delay in discharging her was
reasonable. We hold that the evidence presented to the trial court established as a
matter of law that substantial evidence existed to support the TWC’s decision
awarding benefits to Johnson. We therefore further hold that the trial court erred in
granting the DAO’s motion for summary judgment and in denying Johnson’s cross-
motion for summary judgment. Accordingly, we sustain Johnson’s sole issue.
Conclusion
We reverse the trial court’s order granting the DAO’s motion for summary
judgment and denying Johnson’s cross-motion for summary judgment and render
judgment for Johnson affirming the TWC’s award of benefits.
Gordon Goodman
Justice
Panel consists of Justices Kelly, Goodman, and Countiss.
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