COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-076-CV
MILLER OF DENTON, LTD. APPELLANT
V.
TEXAS WORKFORCE COMMISSION APPELLEES
AND MATTHEW L. BENNETT
------------
FROM COUNTY COURT AT LAW NO. 2 OF DENTON COUNTY
------------
MEMORANDUM OPINION 1
------------
I. Background
This is an unemployment benefits case. Co-Appellee Matthew L. Bennett
(“Bennett”) applied to Co-Appellee Texas Workforce Commission (“TWC”) for
unemployment benefits after being fired from Appellant Miller of Denton
(“Miller”). TWC originally denied Bennett benefits, but TWC’s appeal tribunal
1
… See T EX. R. A PP. P. 47.4.
reversed that decision and determined that Bennett was not guilty of
misconduct connected with his work as a delivery driver.
Bennett was making a delivery to a Wal-Mart store located in The Colony,
Texas, when the events that led to him being fired from Miller occurred. Ms.
Coxsey, an employee of Wal-Mart, testified at trial that Bennett had touched
her in an unwanted and inappropriate manner—causing her to hit Bennett.
Specifically, Coxsey complained that Bennett had shoved a candy wrapper
down the front of her blouse. Bennett on the other hand, testified that he had
merely placed a candy wrapper on Coxsey’s shoulder as a joke. Coxsey told
her manager of the incident, and Wal-Mart informed Miller that Bennett would
not be allowed back into Wal-Mart. Furthermore, Wal-Mart informed Miller that
if Miller continued to employ Bennett, Miller could lose Wal-Mart as a customer.
The loss of Wal-Mart as a customer would have been a substantial loss of eight
percent of Miller’s sales as a beer delivery service.
Miller conducted an investigation into the events between Coxsey and
Bennett and determined that Bennett had conducted himself in an inappropriate
manner. Miller fired Bennett and Bennett filed for unemployment benefits with
TWC. In response, Miller filed its “Employer response to Notice of Application”
stating its reason for dismissing Bennett:
[Bennett] conducted himself in a manner that adversely affected
the company’s best interest and reputation. [Bennett] touched a
back door employee of an account in an inappropriate manner.
2
[Coxsey] felt [Bennett] sexual[ly] assaulted her after she told him
to stop. [Bennett] was terminated immediately.
After TWC’s appeal tribunal determined that Bennett was not guilty of
misconduct, and therefore entitled to unemployment benefits, Miller appealed
TWC’s decision to the county court at law. Miller’s petition stated that the
TWC’s appeal tribunal’s findings of fact and conclusions of law were
erroneously based on the wrong employer policy. Specifically, Miller contended
that TWC’s decision was based on Miller’s sexual harassment policy as
opposed to Miller’s policy regarding misconduct adversely affecting the
company’s best interest and reputation. After a non-jury trial, the trial court
entered a judgment affirming TWC’s decision. Miller appealed.
II. Miller’s Points of Error
In three points, Miller challenges the trial court’s judgment. First, Miller
argues that the trial court erred in upholding TWC’s decision because
substantial evidence shows that Bennett was properly terminated for
misconduct as a matter of law and, therefore, a reasonable mind could not
agree with TWC’s ruling or the ruling of the trial court. Second, Miller argues
that the trial court incorrectly upheld TWC’s decision because there was not
substantial evidence to support that decision; therefore, the decision was
unreasonable, arbitrary, and capricious. Finally, Miller argues that the trial court
and TWC relied on the wrong employer policy, ignored the Texas Labor Code’s
3
definition of misconduct, and applied the wrong standard for misconduct. We
affirm.
III. Standard of Review
Judicial review of an administrative decision regarding a former
employee’s right to unemployment benefits requires a trial de novo with
substantial evidence review. T EX. L AB. C ODE A NN. § 212.202 (Vernon 2006);
Collingsworth Gen. Hosp. v. Hunnicutt, 988 S.W.2d 706, 708 (Tex. 1998);
Mercer v. Ross, 701 S.W.2d 830, 831 (Tex. 1986); Edwards v. Tex.
Employment Comm’n, 936 S.W.2d 462, 465 (Tex. App.—Fort Worth 1996, no
writ). Under this standard, TWC’s ruling is presumptively valid, which places
the burden on the party challenging the agency decision. Collingsworth Gen.
Hosp., 988 S.W.2d at 708.
W hen the trial court examines whether there is substantial evidence to
support an agency’s decision, it determines whether reasonable minds could
have reached the same conclusion the agency reached. Dotson v. Tex. State
Bd. of Med. Exam’rs, 612 S.W.2d 921, 922 (Tex. 1981); Edwards, 936
S.W.2d at 465. While the court will hear and consider evidence to determine
whether reasonable support for the agency’s order exists, the agency remains
the primary fact finding body, and the question for the trial court is strictly one
of law. Firemen’s & Policemen’s Civil Serv. Comm’n v. Brinkmeyer, 662
S.W.2d 953, 956 (Tex. 1984); Edwards, 936 S.W.2d at 465. The challenging
4
party must therefore produce evidence that conclusively negates all reasonable
support for the agency’s decision, on any possible ground. Brinkmeyer, 662
S.W.2d at 956; Edwards, 936 S.W.2d at 465-66.
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. Mercer, 701 S.W.2d at 831; Edwards, 936 S.W.2d at
465. Rather, if the agency heard substantial evidence supporting either an
affirmative or a negative finding, the trial court must allow the agency’s order
to stand. Mercer, 701 S.W.2d at 831; Edwards, 936 S.W.2d at 465. In fact,
because substantial evidence is more than a mere scintilla, but less than a
preponderance, the evidence may preponderate against the decision of the
agency, 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 court
may only set aside the agency’s decision if it finds the decision “to have been
made without regard to the law or the facts and therefore was unreasonable,
arbitrary, or capricious.” Mercer, 701 S.W.2d at 831; Edwards, 936 S.W.2d
at 466.
IV. Discussion
All three of Miller’s points can be condensed into the following statement:
Considering Miller’s policies and the labor code’s definition of misconduct, no
reasonable mind could uphold TWC’s decision that Bennett’s actions did not
5
adversely affect the best interest and reputation of Miller; therefore, Bennett
was properly terminated and not entitled to unemployment benefits. We
disagree.
The trial court found that there was substantial evidence to support
TWC’s decision that Bennett was entitled to unemployment benefits. We must
look at the evidence presented to the trial court. Nuernberg v. Texas
Employment Comm’n, 858 S.W.2d 364, 365 (Tex. 1993). In this case, the
TWC’s appeals tribunal’s findings were admitted as evidence and considered
by the trial court; we therefore will include it as part of our review. See id.
However, the record of the TWC proceedings was not included and therefore
will not be included as part of our review. Id.
The Texas Labor Code provides that an individual can be disqualified from
unemployment benefits if the individual was “discharged for misconduct
connected with the individual’s last work.” T EX. L AB. C ODE A NN. § 207.044(a)
(Vernon 2006). Further, the labor code provides that misconduct means
“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.” Id.
§ 201.012(a) (Vernon 2006). However, not every violation of an employer’s
policies will trigger denial of unemployment benefits. Collingsworth Gen.
6
Hosp., 988 S.W.2d at 709; see also Santillan v. Wal-Mart Stores, Inc., 203
S.W.3d 502, 508 (Tex. App.—El Paso 2006, pet. denied).
Miller argues that TWC used the wrong policy to determine Bennett’s
misconduct. Miller argues that TWC used Miller’s sexual harassment policy to
make its determination, rather than the correct policy—Miller’s policy against
“misconduct of any nature adversely affecting the company’s best interest and
reputation.” Miller points to TWC’s finding that “the claimant was fired for
allegedly violating [Miller’s] sexual harassment policy.” Further, Miller points
out that TWC’s conclusion was that the “evidence establishes that the claimant
merely touched [Coxsey’s] shoulder . . . [Bennett] did not violate the employer’s
policy and therefore was not guilty of misconduct connected with work.” But,
Miller contends that Bennett was not terminated for violating the sexual
harassment policy but for misconduct relating to Miller’s best interest and
reputation policy.
TWC and Bennett argue that Miller submitted only its sexual harassment
policy to TWC when filing its Employer response to Notice of Application. TWC
and Bennett also argue that Miller’s failure to submit its best interest policy
remains unexplained.
Miller responds that it provided TWC with its sexual harassment policy
because when Bennett applied for unemployment benefits he told TWC he was
fired for sexual harassment. Miller further argues that it provided TWC with its
7
reasoning for firing Bennett, namely, “misconduct of any nature adversely
affecting the company’s best interest and reputation.” Miller adds that it was
Bennett who confused TWC into applying the wrong policy when he filled out
his application for benefits.
TWC and Bennett counter that regardless of which policy Miller now
wants to contend was the basis for Bennett’s firing, Miller must produce
evidence that conclusively negates all reasonable support for the agency’s
decision, on any possible ground (i.e. regardless of which policy), and Miller has
failed to do so. See Brinkmeyer, 662 S.W.2d at 956. We agree.
TWC’s appeals tribunal specifically found that Bennett “was not guilty of
misconduct connected with work.” Furthermore, the tribunal found that all
Bennett had done was “merely touched [Coxsey’s] shoulder.” Given these
findings, we cannot conclude that Miller has conclusively negated all reasonable
support for the agency’s decision on any possible ground. With these same
facts, TWC could have also found that Bennett was not guilty of a violation of
the Miller’s best interest and reputation policy. Additionally, not every violation
of an employer’s policies will trigger denial of unemployment benefits. See
Collingsworth Gen. Hosp., 988 S.W.2d at 709. TWC could have also found
that the mere touching of Coxsey’s shoulder was insufficient to constitute
8
“misconduct” under the labor code. 2 See T EX. L AB. C ODE A NN. § 201.012(a).
Based on the record before us, we hold that the trial court did not err in
concluding as a matter of law that reasonable minds could have reached the
same conclusion as TW C—that Bennett was not guilty of misconduct
connected with work and therefore entitled to benefits.
V. Conclusion
Having overruled Miller’s three points, we affirm the trial court’s
judgment.
ANNE GARDNER
JUSTICE
PANEL A: HOLMAN, GARDNER, and MCCOY, JJ.
DELIVERED: March 27, 2008
2
… We do not address whether Miller’s parroting of the term
“misconduct” in its best interest and reputation policy arises to the labor code’s
definition of misconduct. See T EX. L AB. C ODE A NN. § 201.012(a); see also
Collingsworth Gen. Hosp., 988 S.W.2d at 709 (holding that not every violation
of an employer’s policies will trigger denial of unemployment benefits, rather
the violation must amount to “misconduct” as defined in the Texas Labor
Code).
9
Miller of Denton, Ltd. v. Texas Workforce Commission and Matthew L. Bennett
Combined Opinion