COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-127-CV
PAMELA R. JIMISON APPELLANT
V.
TEXAS W ORKFORCE
COMMISSION AND
PROFESSIONAL
CARETAKERS, INC. APPELLEES
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FROM THE 153RD DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION
This is an appeal involving the denial of unemployment benefits. Appellant
Pamela R. Jimison, proceeding pro se both in the trial court and on appeal, appeals
the summary judgment granted in favor of Appellee Professional Caretakers, Inc.
(PCI) and the judgment affirming the decision of Appellee Texas W orkforce
1
See Tex. R. App. P. 47.4.
Commission (TW C) signed after a trial on the merits between Jimison and TW C.
In three issues, Jimison argues that the trial court erred by depriving her of a full
hearing on the merits when it denied her motion for continuance, that the trial court
erred by granting PCI’s motion for summary judgment, and that PCI’s actions were
an abuse of authority. W e will affirm.
II. F ACTUAL AND P ROCEDURAL B ACKGROUND
PCI is a licensed home health care agency that provides on-call home health
care, senior care, elder care, case management, personal assistance, and sitter and
companion services. Jimison worked for PCI as an in-home health care giver from
August 2006 to January 2007. In January 2007, PCI terminated Jimison for violating
five of PCI’s behavior policies, stemming from Jimison’s acceptance of direct
payments from a client for whom she was providing health care services.
Approximately three months later, Jimison filed for unemployment benefits
with TW C. TW C denied Jimison unemployment benefits based on its finding that
she was fired from her job for violating company rules and policies. Jimison
appealed the denial of unemployment benefits and received a telephone hearing
with the Appeal Tribunal; the Appeal Tribunal upheld the decision to deny her
unemployment benefits. Jimison appealed that decision to the Commission
Appeals, which adopted the findings of fact and conclusions of law of the Appeal
Tribunal and also affirmed the decision to deny her unemployment benefits. Jimison
then filed suit in Tarrant County District Court against TW C and PCI.
2
After both TW C and PCI answered, PCI filed a motion for summary judgment,
which the trial court granted. Jimison filed a motion for rehearing of PCI’s motion for
summary judgment; the trial court held a hearing on Jimison’s motion and denied it. 2
The trial court thereafter held a trial on the merits of Jimison’s still-pending
claim challenging TW C’s decision to deny her unemployment benefits; the trial court
determined that substantial evidence supported TW C’s administrative decision and
affirmed the administrative decision. This appeal followed.
III. T RIAL C OURT D ID N OT E RR B Y D ENYING J IMISON’S M OTION FOR C ONTINUANCE
In her first issue, Jimison appears to argue that the trial court should have
granted her oral motion for continuance of the summary judgment hearing. She
argues that the trial court erred by depriving her of a full hearing on the merits on
“any real issue of fact” and that “due to her inexperience in the law and civil
procedures, she has never been given a full hearing on the merits.”
Initially, we note that although we may read the language of pro se documents
broadly, we do not apply lesser standards for the benefit of pro se litigants. See Tex.
R. App. P. 38.9; White v. Cole, 880 S.W .2d 292, 294 (Tex. App.—Beaumont 1994,
writ denied). Pro se litigants are held to the same standards as licensed attorneys;
they must comply with all applicable rules of procedure. Clemens v. Allen, 47
S.W .3d 26, 28 (Tex. App.—Amarillo 2000, no pet.); Chandler v. Chandler, 991
2
Jimison attempted to appeal the trial court’s summary judgment for PCI,
but this court dismissed that appeal for want of jurisdiction because the summary
judgment was interlocutory.
3
S.W .2d 367, 378–79 (Tex. App.—El Paso 1999, pet. denied), cert. denied, 529 U.S.
1054 (2000).
W e review a trial court’s ruling on a motion for continuance for an abuse of
discretion. See BMC Software Belg., N.V. v. Marchand, 83 S.W .3d 789, 800 (Tex.
2002). W e do not substitute our judgment for that of the trial court. In re Nitla S.A.
de C.V., 92 S.W .3d 419, 422 (Tex. 2002) (orig. proceeding). Instead, we must
determine whether the trial court’s action was so arbitrary and unreasonable as to
amount to a clear and prejudicial error of law. Joe v. Two Thirty Nine Joint Venture,
145 S.W .3d 150, 161 (Tex. 2004). The test is whether the trial court acted without
reference to guiding rules or principles. Cire v. Cummings, 134 S.W .3d 835, 838–39
(Tex. 2004).
A motion for continuance shall not be granted except for sufficient cause
supported by an affidavit, consent of the parties, or by operation of law. See Tex.
R. Civ. P. 251. If a motion for continuance is not made in writing and verified, it will
be presumed that the trial court did not abuse its discretion by denying the motion.
See Villegas v. Carter, 711 S.W .2d 624, 626 (Tex. 1986); In re E.L.T., 93 S.W .3d
372, 375 (Tex. App.—Houston [14th Dist.] 2002, no pet.); Favaloro v. Comm'n for
Lawyer Discipline, 13 S.W .3d 831, 838 (Tex. App.—Dallas 2000, no pet.).
Here, Jimison appeared at the hearing scheduled on PCI’s motion for
summary judgment and made an oral motion for continuance. The next day, Jimison
filed a response to PCI’s motion for summary judgment. The trial court subsequently
4
signed an order denying Jimison’s motion for continuance and signed a summary
judgment for PCI. Jiminson filed two motions for rehearing of the trial court’s
summary judgment, the trial court held a hearing on Jimison’s motions, and the trial
court denied each motion.
The record reflects that Jimison made only an oral motion for continuance and
that it was not supported by an affidavit or consent of the parties. Accordingly, we
cannot say that the trial court abused its discretion by denying Jimison’s motion for
continuance. Villegas, 711 S.W .2d at 626; see also E.L.T., 93 S.W .3d at 375
(holding that trial court did not abuse its discretion by denying oral motion for
continuance); Khadem v. Norwest Bank Tex., No. 04-99-00026-CV, 1999 W L
692668, at *1 (Tex. App.—San Antonio Sept. 8, 1999, no pet.) (holding that trial
court did not abuse its discretion by denying pro se litigant’s oral motion for
continuance because he had initiated the proceedings and filed all pleadings pro se).
W e therefore overrule Jimison’s first issue.
IV. T RIAL C OURT D ID N OT E RR B Y G RANTING S UMMARY J UDGMENT FOR PCI
In her second issue, Jimison argues that the trial court erred by granting PCI’s
motion for summary judgment because substantial evidence does not exist that her
actions constituted misconduct. PCI moved for summary judgment on the ground
that TW C had correctly determined, and the summary judgment evidence
conclusively established, that PCI terminated Jimison’s employment for
misconduct—specifically accepting money from a client in violation of PCI’s policies.
5
Trial courts review the TW C’s denial of benefits in a trial de novo based on the
substantial evidence rule. Tex. Lab. Code Ann. § 212.202 (Vernon 2006). Under
this hybrid standard of review, the trial court must determine whether there is
substantial evidence to support the ruling of the agency by examining the evidence
presented in trial, not the record created by the agency. Mercer v. Ross, 701
S.W .2d 830, 831 (Tex. 1986). W hether the TW C’s decision was supported by
substantial evidence is a question of law. Arrellano v. Tex. Employment Comm'n,
810 S.W .2d 767, 770 (Tex. App.—San Antonio 1991, writ denied). 3 The TW C’s
decision carries a presumption of validity, and the party seeking to set aside the
agency’s decision has the burden of showing that it was not supported by substantial
evidence. See City of San Antonio v. Tex. Water Comm'n, 407 S.W .2d 752, 758
(Tex. 1966).
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). Movants must show that there is no genuine issue of
material fact and that they are entitled to judgment as a matter of law; we accept as
true evidence favorable to the nonmovant and indulge in every reasonable inference
3
The Texas Employment Commission (“TEC”) became the TW C in 1995.
See Act of May 26, 1995, 74th Leg ., R.S., ch. 655, § 11.75, 1995 Tex. Gen. Laws
3543, 3621–22. Accordingly, cases involving TEC are informative in cases involving
the TW C.
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and resolve any doubts in the nonmovant’s favor. Nixon v. Mr. Prop. Mgmt. Co., 690
S.W .2d 546, 548–49 (Tex. 1985).
W e review the trial court’s judgment by comparing the TW C’s decision with
the evidence presented to the trial court and the governing law. Potts v. Tex.
Employment Comm'n, 884 S.W .2d 879, 882 (Tex. App.—Dallas 1994, no writ). W e
determine whether the summary judgment evidence established as a matter of law
that substantial evidence existed to support the TW C’s decision. Id. at 883. W hen
the trial court does not specify the basis for a summary judgment, the appealing
party must show it is error to base the summary judgment on any ground asserted
in the summary judgment motion. See Star-Telegram, Inc. v. Doe, 915 S.W .2d 471,
473 (Tex. 1995).
By law, an individual is disqualified for unemployment benefits if the individual
was discharged for misconduct connected with the individual’s last work. Tex. Lab.
Code Ann. § 207.044(a) (Vernon 2006). “Misconduct” is defined in the labor code
as follows:
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). An employer is not required to prove intent with respect to
misconduct arising from the violation of a company policy or rule. See Mercer, 701
7
S.W .2d at 831; Lairson v. Tex. Employment Comm’n, 742 S.W .2d 99, 101 (Tex.
App.—Fort W orth 1987, no writ).
The summary judgment evidence presented to the trial court at the summary
judgment hearing consisted solely of the documents attached to PCI’s motion for
summary judgment. Those documents included a “W ork Separation Details” form;
the affidavit of Deonnah Tate, PCI’s administrator/director of nursing; PCI’s “Policy
& Procedures for Caretakers and New Employees”; Jimison’s answers to PCI’s
requests for admissions; copies of three checks from the client to Jimison; a “PCI
Notes Report,” stating that Jimison should not cash the client’s check until she heard
back from PCI; the affidavit of Deborah Parker, PCI’s scheduler; a “PCI Notes
Report,” telling Jimison that she could not accept money from a client; a “PCI Notes
Report,” stating that Jimison had been terminated because she admitted cashing a
check from the client; Jimison’s application for unemployment benefits, stating that
she was fired “because I had violated 5 of there [sic] policies and procedures”; and
the TW C’s decision and documents filed with TW C by Jimison.
PCI’s policies state,
Do not accept gifts, tips or personal belongings directly from the client.
If the client wants to give you something, tell them to contact the office.
This policy is to protect you, the client and the Company. If you are
offered anything you must notify the office immediately. Unreported
gifts are grounds for immediate TERMINATION. After approving it with
the family, we will forward you the gift.
8
The notes reflect that Jimison reported at least two of the checks that she received
from the client and explained that she was doing “extra work” for the client. After
Jimison explained that the “extra work” included cleaning up for the client and other
tasks, she was told that such tasks were part of the duties that she was required to
provide for the client and was told not to accept money from the client. Jimison
thereafter admitted in her answers to PCI’s requests for admission that she cashed
two checks from the client for $200 each and one check from the client for $240.
Jimison argued during her appeal of the denial of her unemployment benefits that
she was never told not to cash the checks.
Based on the record before us, we hold that the trial court did not err by
concluding, as a matter of law, that reasonable minds could not have reached a
different conclusion than that reached by TW C—that Jimison had violated PCI’s
policies by accepting money from a client. See Goettman v. Tex. W orkforce
Comm’n, No. 02-02-00073-CV, 2003 W L 1090521, at *4 (Tex. App.—Fort W orth
Mar. 13, 2003, no pet.) (mem. op.) (holding that trial court did not err by upholding
TW C’s decision that former employee had violated employer’s policy against sexual
harassment). As a matter of law, substantial evidence exists supporting the TW C’s
conclusion that Jimison committed misconduct in connection with her last work at
PCI; in fact, the summary judgment evidence conclusively establishes this fact. See
Tex. Lab. Code Ann. § 201.012(a); Anderson v. Tex. Workforce Comm’n, No. 05-02-
01595-CV, 2003 W L 21350082, at *2 (Tex. App.—Dallas June 5, 2003, pet. denied)
9
(mem. op.) (holding that evidence of misconduct was clear when former employee
altered authorization, which was a failure to follow direct orders and constituted an
act of insubordination); Goettman, 2003 W L 1090521, at *4 (holding that former
employee committed misconduct by violating employer’s policy against sexual
harassment). Accordingly, the trial court did not err by granting summary judgment
for PCI. W e overrule Jimison’s second issue.
V. N O E VIDENCE T HAT PCI ABUSED ITS AUTHORITY
In her third issue, Jimison argues that PCI abused its authority. Specifically,
Jimison argues that PCI is “fraudulently avoiding payments of benefits,” that it
“presented tainted evidence to TW C,” that it “intentionally and knowingly falsified
facts,” and that it “violated the rights of [its] client.” Appellate briefs must contain
appropriate citations to the record. See Tex. R. App. P. 38.1(i). Jimison’s brief does
not cite any portion of the record to support her broad, sweeping statements that PCI
has abused its authority. W e are not obligated to search the record in an effort to
verify Jimison’s assertions. See LaChalet Int'l, Inc. v. Nowik, 787 S.W .2d 101, 107
(Tex. App.—Dallas 1990, no writ). And bare assertions of error without proper
citation to the record waive error. See Fredonia State Bank v. Gen. Am. Life Ins.
Co., 881 S.W .2d 279, 284 (Tex. 1994) (appellate court has discretion to waive point
of error due to inadequate briefing); Devine v. Dallas County, 130 S.W .3d 512, 514
(Tex. App.—Dallas 2004, no pet.) (holding that when a party fails to adequately brief
a complaint, he waives the issue on appeal). Because Jimison’s global allegations
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of abuse of authority are not supported by record references and because we have
located nothing in the record to support Jimison’s allegations, we overrule Jimison’s
third issue.
VI. C ONCLUSION
Having overruled Jimison’s three issues, we affirm the trial court’s judgments
in favor of PCI and TW C.
SUE W ALKER
JUSTICE
PANEL: W ALKER, MCCOY, and MEIER, JJ.
DELIVERED: March 11, 2010
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