In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-12-00207-CV
________________________
TEXAS WORKFORCE COMMISSION AND TEXAS COMMISSION ON
ENVIRONMENTAL QUALITY, APPELLANTS
V.
ELNORA MOSES, APPELLEE
On Appeal from the 21st District Court
Lee County, Texas
Trial Court No. 14, 530; Honorable Terry Flenniken, Presiding
August 29, 2013
MEMORANDUM OPINION
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Appellants, Texas Workforce Commission (TWC) and Texas Commission on
Environmental Quality (TCEQ), appeal from a judgment in favor of Appellee, Elnora
Moses, on her claim for unemployment benefits. In support, Appellants assert the trial
court erred in reversing their denial of Moses’s claim because there was substantial
evidence she was disqualified from receiving benefits. We reverse the trial court’s
judgment and render judgment affirming the decision of TWC.
BACKGROUND
In July 2009, Moses, a TCEQ air examiner, reported to her supervisor, Alyssa
Taylor, that she believed a lack of sleep was affecting her work performance. Moses
attributed her lack of sleep to being sexually assaulted while she slept at night and she
accused three co-workers. According to Moses, despite placing additional locks on her
doors and bars on her windows, the sexual assaults had continued. She videotaped
herself while she slept but only she appeared on the videotapes. She also told Taylor
she owned a firearm and recounted an incident where she ran outside her apartment at
night waving her gun after she thought she heard something. Taylor reported this
information to Human Resources and the legal department of TCEQ.
Moses later filed a sexual harassment complaint against the three co-workers
and, in August of 2009, gave a similar account of sexual assaults to Melissa Applegate,
a Human Resources Director. Considering the efforts Moses undertook to secure her
apartment and the videotape results, Applegate believed her allegations were
implausible. In the meantime, Moses had also complained to the police but, upon
investigation, they too found the allegations implausible and did not open a case file. As
a part of that investigation, Moses was given a sexual assault examination at a hospital,
but the results were negative.
In September, Applegate met with Moses and advised her that she was
prohibited from confronting co-workers with her sexual assault allegations. Tony
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Walker, a regional manager, also met with Taylor and Moses. He informed Moses that,
after investigation, her allegations were found to be unsubstantiated. Moses expressed
dissatisfaction with the handling of her complaint and believed more should be done.
Walker advised Moses to speak to her supervisor if she needed to speak about her
allegations and ordered her not to discuss the nature of her complaints with any staff
and not to confront the three co-workers. Taylor indicated that speaking to her co-
workers about the sexual assault allegations was destructive to the work environment
and, so long as the complaints were unsubstantiated, amounted to no more than
gossip.
In October, Moses confronted a co-worker against whom she had made a sexual
assault complaint. The co-worker was very upset and complained to Taylor. Taylor
considered Moses a disruptive influence in the office and was concerned about the
safety of her co-workers. She was also concerned about Moses’s mental stability and
believed she needed the assistance of a mental health expert. Because Moses had
disobeyed a direct order to not speak to co-workers about her sexual assault
complaints, she was placed on disciplinary probation from October 5, 2009 through April
5, 2010. She was also sent home and given an opportunity to receive counseling
through the Employee Assistance Program (EAP). As part of her probation, Moses was
required to obtain a Return to Work Certification (RWC) before returning to work. She
was also warned that failure to adhere to the probation requirements could result in
termination.
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In December, Dr. Strange, an EAP counselor for TCEQ’s independent contractor
for personnel services, Deer Oaks, issued a RWC to Moses. Among other things, the
RWC required that Moses not converse with known affiliates of TCEQ regarding her
complaints without first obtaining Taylor’s approval (RWC #3) and she was to undergo a
psychiatric evaluation within the next six months (01/01/10-07/01/10) ruling out
parasomnia, borderline personality disorder, and dissociative identity disorder (RWC
#5).
Dr. Strange defined parasomnia as a sleep disorder where peculiar events occur
that interrupt sleep; borderline personality disorder as a condition which is often related
to anger issues associated with delusional characteristics or approaches to people; and
dissociative identity disorder as a condition where persons sometimes do not know who
they are for periods of time. He testified he would not include any of the disorders in a
RWC unless he had serious concerns whether the person suffered from the disorder.
He opined that persons with borderline personality disorder might possibly be
dangerous to themselves and others and, like dissociative identity, prone to bizarre
behavior. He also testified he would be concerned if someone with any of the disorders
owned a firearm.
When Moses returned to work in January of 2010, Taylor discussed the RWC’s
conditions with her numerous times. Evelyn Baker, Employee Relations Coordinator,
testified Moses often questioned why she had to take a battery of tests in connection
with RWC #5, the condition requiring psychiatric evaluation. Baker told Moses that the
condition was a requirement to be completed before she returned to work. Baker then
set Moses up with a number of psychiatrists who provided such tests. She also advised
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Moses that she could share Dr. Strange’s report, as well as Deer Oaks’ information,
with the psychiatrists but reiterated that Moses was not to discuss her sexual assault
allegations with other employees. Moses later reported to Baker that the psychiatrist did
not perform the tests or cancelled her appointments for a variety of reasons.
In February, Wendy Bass, Fleet Property Manager, started receiving weekly
visits from Moses. When Moses informed Bass that male co-workers were stalking her,
Bass suggested she go to Human Resources, however, Moses told her she had already
been and they were no help.
In April, Taylor met with Moses to discuss her progress under the RWC and
extend her probation period until July 1. Taylor was concerned Moses was exhibiting
signs indicative of workplace violence per the TCEQ’s policies. She believed Moses
was paranoid about persons from her workplace following her home and sexually
assaulting her in her sleep, and that she was desperate over recent personal issues.
She also believed Moses was exhibiting an escalating emotional state and displaying
anger over how her sexual assault complaints had been handled. Moses commented to
Taylor several times that “she felt she was going to have to take matters into her own
hands and be the aggressor.” Other employees observed Moses in the parking lot
walking alone while having animated conversations with herself. Taylor felt personally
threatened by Moses and was concerned for her co-workers’ safety. Also in April, Bass
indicated Moses came to her office upset and angry because her probation was
extended to July to allow her additional time to comply with RWC #5.
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In May, Bass was visited again by Moses. Moses told her that male staff
members had again broken into her apartment and sexually assaulted her. She
accused specific employees and provided details that made Bass very uncomfortable.
On one occasion, Moses came into Bass’s office very upset and said “they” were
worried she was going to go postal because she knew how to use a gun and went to a
shooting range. Moses indicated she was skilled with a gun. Later, when Bass was
passing through the front office, she observed Moses sitting with another employee who
appeared distraught and realized she was not the only person affected by Moses’s
behavior. The weekly conversations disrupted her ability to do her work and made her
uncomfortable. She also believed Moses presented a danger to other people at work
and decided to speak with Walker.
In late June, Moses testified she underwent a psychiatric examination at the John
Peter Smith Emergency Room. She didn’t take her RWC but discussed its contents
with the doctors. She did not disclose Dr. Strange’s report or any information from Deer
Oaks. When Taylor subsequently sought to determine her fitness to return to work by
seeking a medical release to verify the psychiatric examination, Moses refused because
she “didn’t feel it was necessary and [she] didn’t trust them.” Shortly after Bass spoke
to Walker, Moses was terminated for (1) violating RWC #3 (requiring her to not discuss
her allegations of sexual assault with affiliates of TCEQ) and (2) failing to complete
RWC #5 (requiring her to submit to a psychiatric examination). Following her discharge,
additional security measures were put in place at TCEQ’s regional office because of
concerns Moses might take some kind of action.
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Moses’s application for unemployment benefits was subsequently denied by a
hearing officer because she “was discharged for misconduct connected with [her] last
work.” TEX. LAB. CODE ANN. § 207.044(a) (West 2006). She appealed the initial
determination to TWC’s Appeal Tribunal. See TEX. LAB. CODE ANN. § 212.051, 212.102
(West 2006). The Appeal Tribunal upheld the hearing officer’s decision to deny benefits
and Moses appealed the Tribunal’s decision to TWC. See TEX. LAB. CODE ANN. §
212.151(2) (West 2006). TWC subsequently affirmed the Tribunal’s decision and
Moses filed suit for judicial review of TWC’s decision in district court. See TEX. LAB.
CODE ANN. § 212.201(a) (West 2006). After a bench trial, the trial court reversed TWC’s
decision and awarded unemployment benefits to Moses. TWC and TCEQ now bring
this appeal.
DISCUSSION
Appellants contend the trial court erred in rendering judgment in Moses’s favor
because there was substantial evidence to support TWC’s decision that Moses
engaged in misconduct connected with her work thereby disqualifying her for
unemployment benefits. See TEX. LAB. CODE ANN. § 207.044(a) (West 2006). We
agree.
STANDARD OF REVIEW
The trial court reviews TWC’s decision de novo to determine whether there is
“substantial evidence” to support the decision. TEX. LAB. CODE ANN. § 212.202(a) (West
2006). See Mercer v. Ross, 701 S.W.2d 830, 831 (Tex. 1986). In making this
determination, the issue is not whether TWC made the correct decision; it is instead
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“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,” that is, whether
reasonable minds could have reached the same conclusion. Blanchard v. Brazos
Forest Products, L.P. and Tex. Workforce Comm’n, 353 S.W.3d 569, 572 (Tex.App.—
Fort Worth 2011, pet. denied) (quoting Collingsworth Gen. Hosp. v. Hunnicutt, 988
S.W.2d 706, 708 (Tex. 1998)). Because substantial evidence is more than a mere
scintilla but less than a preponderance of evidence, 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.).
Further, the “[r]esolution of factual conflicts and ambiguities is the province of the
administrative body and it is the aim of the substantial evidence rule to protect that
function.” Tex. Workforce Comm’n v. BL II Logistics, L.L.C., 237 S.W.3d 875, 881
(Tex.App.—Texarkana 2007, no pet.) (quoting Firemen’s & Policemen’s Civil Serv.
Comm’n v. Brinkmeyer, 662 S.W.2d 953, 956 (Tex. 1984)). Thus, TWC remains the
primary fact-finding body, and the reviewing court may not substitute its judgment for
TWC’s on controverted fact issues. BL II Logistics, L.L.C., 237 S.W.3d at 878; Edwards
v. Tex. Emp’t Comm’n, 936 S.W.2d 462, 465 (Tex.App.—Fort Worth 1996, no writ).
Because the determination of whether TWC’s decision was supported by substantial
evidence is a question of law, we review de novo the trial court’s determination. BL II
Logistics, L.L.C., 237 S.W.3d at 878 (citing El Paso Natural Gas Co. v. Minco Oil & Gas,
Inc., 8 S.W.3d 309, 312 (Tex. 1999)).
TWC’s ruling also 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. Hunnicutt,
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988 S.W.2d at 708. Thus, the party seeking to overturn TWC’s decision must produce
evidence that conclusively negates all reasonable support for the agency’s decision—on
any ground offered. BL II Logistics, L.L.C., 237 S.W.3d at 880. Accordingly, we may
only set aside TWC’s decision if it was made “without regard to the law or the facts, and,
therefore, was unreasonable, arbitrary, or capricious.” Mercer, 701 S.W.2d at 831.
UNEMPLOYMENT BENEFITS
An employee is “disqualified for benefits if [he or she] was discharged for
misconduct connected with [the employee’s] last work.” TEX. LAB. CODE ANN. §
207.044(a) (West 2006). “Misconduct” is defined 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 the law, or
violation of a policy or rule adopted to ensure the orderly work and safety of
employees.” TEX. LAB. CODE ANN. § 201.012(a) (West 2006).
“Misconduct” includes conduct that is disruptive or insubordinate; Burton v. Tex.
Employ. Comm’n, 743 S.W.2d 690, 693 (Tex.App.—El Paso 1987, writ denied), or
causes an employer concern for co-workers’ safety. Hunnicutt, 988 S.W.2d at 709-10.
In making our determination whether an employee engaged in “misconduct,” we focus
on the adverse impact of an employee’s conduct on the employer and the purpose of
the Unemployment Compensation Act. Tippy, 991 S.W.2d at 336. See Hunnicutt, 988
S.W.2d at 710 (The Act’s “intent and purpose [is] to provide compensation for workers
who are unemployed through no fault of their own.”) There is no requirement that an
employer show the misconduct negatively affected the employee’s work. Murray v. Tex.
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Workforce Comm’n, 337 S.W.3d 522, 525 (Tex.App.—Dallas 2011, no pet.). The
“connected with” requirement may be established by evidence that one or more acts of
employee misconduct occurred while the employee was on duty or occurred on the
employer’s premises. Hunnicutt, 988 S.W.2d at 709.
Here, Moses engaged in insubordination when she violated RWC #3 and #5.
Despite numerous warnings, she conversed with at least one co-worker about her
complaint that male employees were sexually assaulting her in her sleep and she failed
to provide verification that she underwent a psychiatric evaluation for certain disorders
within the designated time period. 1 Her generalized threats and references to her skill
with a firearm also created a legitimate concern among her supervisors for the safety of
her co-workers. Further, given the ample time she was allowed to make an
appointment and submit a report in compliance with RWC #5, we find TCEQ’s response
was not arbitrary and unreasonable. She was advised early on and throughout her
probationary period that continued employment depended on her full cooperation and
compliance with the RWC’s conditions. Accordingly, we find there is substantial
evidence in the record that Moses was terminated because she engaged in
“misconduct” that was “connected with” her work at TCEQ’s regional office. See
Hunnicutt, 988 S.W.2d at 709-10. Appellant’s single issue is sustained.
1
Moses’s conduct was also subject to TCEQ policies regarding professional conduct that prohibited
employees from disrupting others with rudeness or gossip, engaging in disrespectful and insubordinate
conduct, and threatening any employee or member of the public. Her conduct was also subject to
policies regarding workplace violence that prohibited employees from engaging in verbal threats or taking
physical actions which create a security hazard for others in the workplace.
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CONCLUSION
The trial court’s judgment is reversed and a judgment affirming the decision of
TWC is rendered.
Patrick A. Pirtle
Justice
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