

NO. 07-09-0149-CV
 
IN THE COURT OF APPEALS
 
FOR THE
SEVENTH DISTRICT OF TEXAS
 
AT
AMARILLO
 
PANEL C 
 
 OCTOBER 19, 2010

 
 

 
 
BIGHAM AUTOMOTIVE & ELECTRIC CO., INC., APPELLANT
 
V.
 
                  TEXAS WORKFORCE
COMMISSION AND FRANK MENDEZ,
                   APPELLEES
 

 

 
 FROM THE 99TH DISTRICT
COURT OF LUBBOCK COUNTY;
 
NO. 2007-541,728; HONORABLE WILLIAM SOWDER, JUDGE

 
 

 
 
Before QUINN, C.J., HANCOCK and PIRTLE, JJ.
 
 
MEMORANDUM OPINION
            This
is an appeal of a Texas Workforce Commission (TWC) administrative appeal
determining that the Claimant/Appellee, Frank Mendez, was terminated from
employment by Appellant, Bigham Automotive & Electric Co, Inc. (Bigham
Automotive).  Bigham Automotive contends
the trial court erred in granting summary judgment in favor of Appellees, TWC and
Mendez.  Specifically, Bigham Automotive asserts
(1) the trial court erred when it held that substantial evidence supported TWC's
decision; (2) substantial evidence supported a finding that Mendez left his job
voluntarily without good cause; (3) key precedent relied upon by TWC in its
decision is inapplicable, and (4) substantial evidence supported a finding that
Mendez was discharged due to his own misconduct.  We affirm.
Background
            On
March 20, 2007, Mendez, a Bigham Automotive employee for six years, injured
himself on the job.  On April 6, Mendez
returned to his workplace to pick up a paycheck and indicated he would return
to work the following week.  His
supervisor, Richard Bigham (Bigham) responded that Mendez should take his time.
            On April 10, Bigham received a
letter from Mendez's attorney requesting a site inspection of the area where
Mendez was injured and indicated that all contact with the Mendez family should
go through him.  Several days later,
Mendez received a call from Vince Lara, a Bigham Automotive parts manager.  Lara told Mendez that, when Bigham received
the letter from Mendez's attorney, Lara overheard Bigham say that he intended
to have Mendez arrested for trespass if he showed up at work.  Mendez concedes that Lara was not his
supervisor and had no managerial authority over him. 
            On
April 16, Mendez, accompanied by his attorney, returned to Bigham Automotive,
collected his tools and did not return.


Unemployment Proceedings
            In July 2007, Mendez filed a
claim for unemployment compensation.  On
August, 20, an examiner ruled in Bigham Automotive's favor finding that Mendez
had quit or abandoned his job.[1]  
            Mendez subsequently appealed to TWC's
Appeal Tribunal ("Tribunal").[2]  On August 8, an officer for the Tribunal held
a hearing.  Mendez testified that,
shortly after his attorney sent a letter to Bigham Automotive, Lara called him
and reported that, the day Bigham received a letter from Mendez's attorney, he
overheard Bigham say that, if Mendez returned to work, he would have Mendez
arrested for trespass.  Mendez testified
that, after hearing Lara's recount of Bigham's statement, he believed Bigham
had fired him because he had retained an attorney.  
            When asked whether he
told any employees that Mendez would be arrested if he showed up for work,
Bigham testified, in pertinent part, at the hearing as follows:
You know, I might have made a comment---I was a little
upset and I might have made a comment---It was something like that---you know,
out of text.  I don't---I don't---I don't
know what, you know, I said in the heat of battle there.  But I didn't fire the man.
 
            On September
14, the Tribunal issued its decision and reversed the examiner's prior ruling disqualifying
Mendez from obtaining unemployment compensation.  The Tribunal's decision stated, in pertinent
part, as follows:
In the current case, the employer admitted that he
made the statement that claimant would be arrested for trespassing if he
appeared on the employer's property. 
Such statement is clearly an intention to discharge the claimant, as an
employee would not be arrested for appearing on his employer's property.  This statement, and thus, intention, was
communicated to the claimant by the parts manager, a person in authority.  Therefore, the claimant's conclusion that he
had been discharged and his resulting failure to report for work was not unreasonable, and he was discharged under Section
207.044 of the Act.  Therefore, the
claimant's discharged (sic) was not for misconduct connected with the work
under Section 207.044 of the Act.  The
determination dated August 2, 2007, disqualifying the claimant . . . will be
reversed under Section 207.044 of the Act.
 
            Bigham
Automotive subsequently appealed the Tribunal's decision directly to the TWC.[3]  TWC adopted the Tribunal's findings of fact
and conclusions of law and affirmed its decision in all respects.   Thereafter, Bigham Automotive appealed the TWC's
decision to the 99th Judicial District Court in Lubbock County.[4]  TWC and Bigham Automotive filed cross-motions
for summary judgment.  The trial court
granted TWC's motion for summary judgment and denied Bigham Automotive's
motion, finding "there is substantial evidence to support [TWC's]
unemployment benefits decision." 
This appeal followed.


Discussion
            Bigham
Automotive asserts the trial court's decision is neither supported by
substantial evidence nor reasonable because Bigham did not admit that he made
the statement communicated by Lara to Mendez and, even if he did, Lara was not
a "person in authority" with management discretion to fire
Mendez.  Bigham Automotive also asserts
there is substantial
evidence supporting a finding that Mendez left his job voluntarily without good
cause, key precedent relied upon by TWC is inapplicable,
and substantial evidence supported a finding that Mendez was discharged due to
his own misconduct.
            Standard of Review
            Judicial review of a TWC tribunal
ruling is "by trial de novo based on the substantial evidence rule."  § 212.202. 
See Mercer v. Ross, 701 S.W.2d 830, 831 (Tex. 1986).  Under a substantial evidence review, the
issue is whether the evidence introduced at trial shows facts in existence at
the time of TWC's decision that reasonably support the decision, i.e., the
trial court must determine whether reasonable minds could have reached the same
conclusion that TWC reached.  Collingsworth Gen. Hosp. v.
Hunnicutt, 988 S.W.2d 706, 708 (Tex. 1998).  When there is substantial evidence supporting
an administrative order, the order must stand, notwithstanding the fact that
the trial court may have reached a different result.  Gerst v. Goldsbury, 434 S.W.2d 665, 667 (Tex. 1968).  
            Because
a TWC decision regarding unemployment benefits carries a presumption of
validity with it, Collingsworth, 988
S.W.2d at 708, the burden is on the party seeking to set aside the decision to
prove that TWC's ruling is not supported by substantial evidence.  Mercer,
701 S.W.2d at 831. 
Although substantial evidence must be more than a scintilla of evidence,
it need not be a preponderance.  Olivarez v. Aluminum Corp. of Am. (Rockdale Works), 693 S.W.2d 931, 932 (Tex. 1985) (per curiam).  Consequently, the evidence may preponderate
against TWC's decision but still amount to substantial evidence sufficient to
uphold the administrative ruling.  Id. (quoting Lewis v. Metro Sav. & Loan Ass'n, 550 S.W.2d 11, 13 (Tex.
1977)).  In addition, "[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."  Firemen's and Policemen's Civil Service
Comm'n v. Brinkmeyer, 662 S.W.2d 953, 956 (Tex. 1984).  
            The
issue on review is strictly one of law; the administrative body being the
primary fact-finding body.  Brinkmeyer, 662 S.W.2d
at 956.  See City of Houston v. Morris, 235
S.W.3d 505, 507 (Tex.App.--Houston 2000, no pet.).  Here the parties filed cross motions for
summary judgment.  Our task then in this
appeal is to determine whether the summary judgment evidence established as a matter
of law that substantial evidence existed to support TWC's decision.  See, e.g., Direct Communications, Inc. v. Lunsford, 906 S.W.2d 537,
542 (Tex.App.--Dallas 1996, no writ). 
If, based on the evidence, any reasonable person could have come to the
same conclusions as TWC, then the agency's decision
must be upheld, even if the reviewing court could have reached a different
conclusion.  See Potts v. Tex. Employment Comm'n, 884
S.W.2d 879, 882 (Tex.App.--Dallas 1994, no writ). 
I.  Lara's Statement and "Person
in Authority"
            Bigham
Automotive correctly asserts that, without Mendez's account of his conversation
with Lara wherein Lara informed Mendez of the statement he overheard Bigham
make upon receiving the letter from Mendez's attorney, there would be no
evidence supporting TWC's determination that Mendez was fired because he
obtained legal representation.  And, while
Bigham Automotive also correctly asserts the multiple hearsay statements may be
inadmissible,[5] TWC's
Tribunal clearly inferred from Bigham's equivocal testimony that he admitted
making the statement described by Lara to Mendez "in the heat of
battle."            
            Thus,
TWC's decision does not rest so much on Lara's statement to Mendez as it does Bigham's
equivocal testimony from which the hearing officer inferred an admission that Bigham
had made the statement.  Because TWC "determines the meaning, weight, and credibility
to assign conflicting evidence," County
of Reeves v. Tex. Comm'n on Envtl. Quality, 266 S.W.3d 516, 528 (Tex.App.--Austin 2008, no pet.), we
defer to TWC’s determination regarding Lara's statement to Mendez coupled with Bigham's
testimony and find there is substantial evidence Bigham Automotive fired Mendez
because Mendez sought legal representation. 
This is particularly so given the contemporaneous nature of Bigham's
statement in relation to his receipt of the letter from Mendez's attorney.
            Further,
it is uncontroverted that Bigham was Mendez's immediate and only
supervisor.  Thus, Bigham's statement was
made by a "person in authority" albeit relayed by Lara, a manager, to
Mendez.  Bigham Automotive's first issue is
overruled.
II.  Voluntary
Termination Without Good Cause
            Having determined there is substantial
evidence to support TWC's finding that Bigham Automotive fired Mendez because
he retained legal representation, Bigham Automotive's assertion that there is also
substantial evidence Mendez departed voluntarily or abandoned his job must fail.  A reviewing court may not set aside a TWC
decision merely because it would reach a different conclusion, Mercer, 701 S.W.2d at 831, and/or the
evidence may "greatly preponderate the other way."  Olivarez,
693 S.W.2d at 932. 
Rather, to be successful on appeal, Bigham Automotive must produce
evidence that conclusively negates
all reasonable support for TWC's decision, on any possible ground.  Brinkmeyer,
662 S.W.2d at 956; Edwards
v. Texas Empl. Comm'n, 936
S.W.2d 462, 465-66 (Tex.App.--Fort Worth 1996, no writ).  On this record, he has failed to do so.  Bigham Automotive's second issue is overruled.


III.  TWC
Precedent
            Bigham Automotive also asserts that key
precedent relied upon by TWC in its decision is inapplicable.  See Texas
Workforce Commission, Appeals Policy and
Precedent Manual, MC 135.35 Discharge or
Leaving:  Leaving in Anticipation of
Discharge, TWC Appeal No. 87-10432-19-061787 (October 1, 1996).[6]  We disagree. 

            In
TWC Appeal No. 87-10432-10-061787, the claimant left work upset after being
informed by an assistant manager that the district manager was going to fire
her that day.  TWC held that the claimant
was actually separated from her employment when she was informed of her
impending firing by the assistant manager. 
The TWC Appeal does not discuss, and ostensibly did not find it
relevant, whether the assistant manager also had authority to terminate the
claimant.  Here, TWC determined Mendez
reasonably believed he had been discharged when Lara told him of the statement
by Bigham---Mendez's only supervisor.  Thus,
we find TWC's precedent applicable.  Bigham
Automotive's third issue is overruled.
IV.  Misconduct
            Finally, Bigham Automotive asserts
there is substantial evidence Mendez was properly terminated for misconduct
because he "cut his hand by using unauthorized equipment
improperly."  In support, however, Bigham
Automotive offers no more than a conclusory statement taken from Bigham
Automotive's initial response to Mendez's claim for unemployment benefits, Work
Separation Form dated July 18, 2007.[7]  Bigham Automotive cites no record evidence in
support of the statement that "Claimant went into an area of the building
which Claimant knew, and which was clearly marked, as
off-limits to employees, and attempted to use a table saw which he was neither
authorized to use, nor trained to operate."  Accordingly, not only is this allegation not
supported by substantial evidence, it also fails to conclusively negate all
reasonable support for TWC's decision.  See Brinkmeyer, 662 S.W.2d at 956; Edwards, 936 S.W.2d at
465-66.  Bigham Automotive's
fourth issue is overruled.
Conclusion
            The trial
court’s judgment is affirmed.  
                                                                                    
Patrick A. Pirtle
                                                                                          Justice  
    
            
            
            
            
            
            
            




[1]See Tex. Lab. Code Ann. §§ 212.051-.054
(Vernon 2006).  For convenience, we will
cite provisions of the Texas Labor Code throughout the remainder of this
opinion simply as "Section ___" or "§ ___."


[2]See §§ 212.101-.104.


[3]See
§§ 212.151-.153.


[4]See
§§ 212.201-.210. 


[5]In
a trial de novo, the evidence heard
by the agency is not per se
admissible in the district court.  Levelland Independent School
District v. Contreras, 865 S.W.2d 474, 476 (Tex.App.--Amarillo 1993, writ
denied). The trial court makes its substantial evidence determination
based on the evidence admitted at the trial de
novo, not on the record created by the administrative agency.  Mercer,
701 S.W.2d at 831. 
Whether the evidence is admissible depends upon "its own merits
under the general rules of evidence." 
Direct
Communications, Inc. v. Tex. Employment Comm'n, 906 S.W.2d 537, 540
(Tex.App.--Dallas 1995, no writ) (quoting Mary
Lee Found v. Tex. Employment Comm'n, 817 S.W.2d 725, 727
(Tex.App.--Texarkana 1991, writ denied). 
If a statement contains multiple levels of hearsay, the statement is
only admissible if each component hearsay statement qualifies under an
exception to the hearsay rule.  See Tex. R. Evid. 802,
805.  Here, Bigham's statement
overheard by Lara, then communicated to Mendez who testified to the statement
before the hearing officer was plainly introduced to prove the truth of the
matter asserted and TWC makes no argument that any exception to the hearsay
rule applies.  


[6]The
TWC's manual can be located at: 
http://www.twc.state.tx.us/ui/appl/app_manual.html.


[7]Neither
did Bigham Automotive cite any additional evidence in the trial court.


