Affirmed and Memorandum Opinion filed October 18, 2018.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-17-00942-CV

         EVANGEL HEALTHCARE CHARITIES, INC., Appellant
                                        V.
 TEXAS WORKFORCE COMMISSION AND JENEBA ISHA BANGURA,
                     Appellees

                   On Appeal from the 400th District Court
                           Fort Bend County, Texas
                    Trial Court Cause No. 14-DCV-218138

                MEMORANDUM                       OPINION


      Evangel Healthcare Charities, Inc. appeals the trial court’s summary judgment
affirming the Texas Workforce Commission’s final decision ordering Evangel to
pay its former employee Jeneba Bangura wages owed under the Texas Payday Act.
According to Evangel, the decision violates the Act and is not supported by
substantial evidence. We affirm.
                                  I. BACKGROUND

        Evangel Healthcare Charities, Inc. (Evangel) is a home health care business
that hires nurses with various qualifications to see patients in their homes. Evangel
employed Jeneba Bangura, a licensed vocational nurse, to work as a pediatric nurse
from March 2011 to September 2013.

        In October 2013, Bangura filed a wage claim with the Texas Workforce
Commission (TWC) alleging that she was not paid for the last six weeks of her
employment. See Tex. Lab. Code §§ 61.001–.095 (Texas Payday Act). Bangura
sought unpaid wages totaling $8,640.00.

        The TWC ruled in Bangura’s favor and ordered Evangel to pay unpaid wages
of $8,640.00. After Evangel exhausted the administrative appeal process, the TWC
issued its final order on June 26, 2014. Evangel requested a rehearing, which was
denied on September 11, 2014.

        On October 3, 2014, Evangel appealed the TWC’s final order by filing suit
against the TWC and Bangura in the district court for a trial de novo. See
id. § 61.062. In March 2017, the TWC and Bangura jointly filed a motion for
summary judgment. In the motion, the TWC and Bangura argued that the TWC’s
administrative decision was reasonable and supported by substantial evidence.

        Evangel responded that the time sheets Bangura submitted to the TWC could
not constitute substantial evidence because they were not supported by nurse’s notes
and other documentation Evangel required for payment. Evangel further claimed
that Bangura had submitted fabricated time records in which she purported to be
caring for Evangel’s patient when she was working for other employers at the same
time.

        After an oral hearing, the trial court signed an order granting the TWC and

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Bangura’s motion for summary judgment on September 25, 2017. Evangel moved
for rehearing and a new trial. TWC and Bangura each filed responses to Evangel’s
motion. Evangel’s motion was denied by written order.

                                   II. ANALYSIS

      On appeal, Evangel contends that: (1) the TWC’s decision authorizing
payment of wages without supporting records violates the Texas Payday Act; (2) the
time sheets independently compiled by Bangura without corresponding supporting
records and accurate nursing notes do not suffice as proof of services provided for
which wages were due; (3) the TWC’s decision is not supported by substantial
evidence; and (4) this court should consider evidence that Bangura fabricated time
sheets and was simultaneously employed full time by six other employers.

A.    Substantial Evidence Review

      The trial court reviews the TWC’s decision on wage claims by trial de novo
to determine whether there is substantial evidence to support the TWC’s ruling. See
Tex. Lab. Code § 61.062(e). A TWC ruling is supported by substantial evidence
when the evidence introduced before the trial court shows facts in existence at the
time of the TWC’s decision that reasonably support the decision. See Collingsworth
Gen. Hosp. v. Hunnicutt, 988 S.W.2d 706, 708 (Tex. 1998); JMJ Acquisitions
Mgmt., LLC v. Peterson, 407 S.W.3d 371, 373 (Tex. App.—Dallas 2013, no pet.).
Because substantial evidence is more than a mere scintilla of evidence but less than
a preponderance of evidence, the evidence may preponderate against the TWC
decision but still amount to substantial evidence. Blanchard v. Brazos Forest Prod.,
L.P., 353 S.W.3d 569, 572 (Tex. App.—Fort Worth 2011, pet. denied); see also
Lewis v. Metro. Sav. & Loan Ass’n, 550 S.W.2d 11, 13 (Tex. 1977).

      Whether substantial evidence exists to support the TWC’s decision is a


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question of law. See Tex. Dept. of Pub. Safety v. Alford, 209 S.W.3d 101, 103 (Tex.
2006; Blanchard, 353 S.W.3d at 572. The trial court may not set aside the TWC’s
decision merely because it would have reached a different conclusion. See Mercer
v. Ross, 701 S.W.2d 830, 831 (Tex. 1986); JMJ Acquisitions, 407 S.W.3d at 374.
Nor may the trial court set aside the decision because the testimony was conflicting
or disputed or because it did not compel the result reached by the agency. Firemen’s
and Policemen’s Civil Serv. Comm’n v. Brinkmeyer, 662 S.W.2d 953, 956 (Tex.
1984); JMJ Acquisitions, 407 S.W.3d at 374. The TWC’s decision carries a
presumption of validity and may be set aside only if it was made without regard to
the law or the facts and therefore was unreasonable, arbitrary, or capricious. See
Collingsworth, 988 S.W.2d at 708; JMJ Acquisitions, 407 S.W.3d at 374. The
burden rests with the complaining party to demonstrate an absence of substantial
evidence. Tex. State Bd. Of Dental Exam’rs v. Sizemore, 759 S.W.2d 114, 116 (Tex.
1988).

      When reviewing a summary judgment granted by the trial court in its de novo
review of a TWC decision, we compare the TWC decision with the evidence
presented to the trial court and the governing law. Blanchard, 353 S.W.3d at 573.
We decide whether the evidence presented established, as a matter of law, that
substantial evidence existed to support the TWC decision. Id.; JMJ Acquisitions, 407
S.W.3d at 374. We review questions of statutory construction de novo. See First Am.
Title Ins. Co. v. Combs, 258 S.W.3d 627, 631 (Tex. 2008).

B.    Application of Law to Facts

      1.    Payday Act Violation

      In its first issue, Evangel contends that the TWC’s decision violates the Texas
Payday Act. Evangel argues that throughout the administrative proceeding, Evangel
testified that it determined compensation based on time sheets and accurate records
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of services provided, and that Bangura “followed this practice from hire until she
began to defraud Evangel.” According to Evangel, the TWC’s decision that Bangura
was owed wages when she submitted time sheets without the additional
documentation Evangel required runs contrary to the Payday Act, which “affords
[the] employer the right to compute [the] employee’s wages in a certain manner.”
Evangel cites the Payday Act’s definition of “wages” as “compensation owed by an
employer” for “labor or services rendered by an employee, whether computed on a
time, task, piece, commission, or other basis.” See Tex. Lab. Code § 61.001(7)(A).
Evangel asserts that it computes compensation for its nurses based on time and task
and that “[t]he task encompasses the required record.”

      Evangel complains that the TWC told Bangura to complete her time sheets to
include hours she believed she worked only after the purported services were
provided, and therefore the time records could not have been signed by the patient
or patient’s guardian at the close of each visit and were produced “after the fact.”
Thus, Evangel argues, the TWC “meddled with Evangel’s records because the
signed time [sheet] is part of the accurate record requested of Bangura that she could
not produce.” However, the time sheets that were provided to the TWC and included
in the summary judgment record reflect the dates, times, and total hours worked by
Bangura, as well as the signatures of both Bangura and the patient’s guardian on
forms provided by Evangel. Evangel did not object to these time record in its
response to the summary judgment motion.

      Evangel claims it requires both the time records and the additional
documentation of the services provided to patients before it can accurately calculate
Bangura’s compensation, and it also requires this documentation so that Evangel can
be reimbursed for those services by federal and state agencies.1 Evangel’s position

      1
          Evangel provides no documentation of any company policy or procedure requiring both
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is that if Bangura provided time sheets without accurate records of the services she
provided, she did not do the work and so was not entitled to be paid. The TWC did
not agree with this position, however, and ordered Evangel to pay Bangura based on
her testimony and the time sheets documenting the hours she worked.

       Evangel may disagree with the TWC’s decision that Bangura was entitled be
paid based on her testimony and time records, but Evangel points to no statutory
provision or other authority to support its contention that the TWC’s decision
somehow violates the Payday Act. The TWC’s decision is not unreasonable merely
because the testimony was conflicting or disputed or did not compel the result the
TWC reached. See Brinkmeyer, 662 S.W.2d at 956; JMJ Acquisitions, 407 S.W.3d
at 374. We overrule Evangel’s first issue.

       2.      Sufficiency of Time Records as Evidence

       In its second issue, Evangel contends that the TWC’s reliance on Bangura’s
time sheets is not evidence of work done because the “timesheet by itself does not
equal time worked without accurate records showing time and task.” Consequently,
Evangel argues, the time records are only “a scintilla” of evidence that is not
sufficient to entitle Bangura to wages. In support of this argument, Evangel cites two
cases in which the TWC’s decisions were reversed because they were not supported
by substantial evidence. See Kellum v. Tex. Workforce Comm’n, 188 S.W.3d 411
(Tex. App.—Dallas 2006, no pet.); Lohmuller v. Tex. Workforce Comm’n, No. 14-
00-00008-CV, 2000 WL 1862824 (Tex. App.—Houston [14th Dist.] Dec. 21, 200),
no pet.) (not designated for publication).2


time sheets and specific additional documentation prior to payment for services rendered, nor does
Evangel point to any federal or state agency rule, regulation, or other provision that health care
providers like Evangel must follow to be reimbursed for their services.
       2
         Evangel also cites Murray v. Texas Workforce Commission, but contrary to Evangel’s
premise, the court affirmed the TWC’s decision. See 337 S.W.3d 522, 523–25 (Tex. App.—Dallas
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       Both Kellum and Lohmuller addressed whether substantial evidence
supported the TWC’s decisions to deny unemployment benefits to discharged
employees who allegedly engaged in “misconduct” as that term was defined for
purposes of the Texas Unemployment Compensation Act. In Kellum, the court
reversed the trial court’s ruling in favor of the TWC, concluding that under the
existing law and the evidence, the employee’s belief that his deferred adjudication
was not a conviction when he filled out his job application was neither unreasonable,
unsupportable, nor dishonest, and thus did not satisfy the statutory definition of
misconduct. See 188 S.W.3d at 414–15. In Lohmuller, this court concluded that the
TWC’s decision to deny benefits was not based on substantial evidence when the
employee’s refusal to work was due to the employer’s “unconscionable act” of
demanding that the employee work for a period of time without pay, and therefore
the employee’s refusal did not meet the statutory definition of misconduct. See 2000
WL 1862824, at *3.

       Unlike Kellum and Lohmuller, the present case does not involve a proceeding
under the Texas Unemployment Compensation Act, nor does it involve the
interpretation of a statutory exception to the payment of wages under the Payday
Act. While Kellum and Lohmuller reflect that a TWC decision may be reversed
based on a lack of substantial evidence, Evangel does not explain why these cases
compel reversal of the TWC’s decision in this case. Evangel argues only that
Bangura’s time records were provided “after TWC told her to write down the times
that she believed she worked” and so lacked contemporaneous verification and the



2011, no pet.) (holding that substantial evidence supported TWC’s decision to deny unemployment
benefits to fired employee when evidence showed that employee repeatedly violated employer’s
disciplinary system used to address absences and tardiness even after receiving and signing
warnings that further tardiness could lead to termination and therefore his conduct satisfied the
statutory definition of “misconduct” under the Texas Unemployment Compensation Act).

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additional documentation Evangel contends is required for payment.

      As discussed above, the time sheets Bangura provided to the TWC reflect the
dates, times, and total hours worked by Bangura, as well as the signatures of both
Bangura and the patient’s guardian on forms provided by Evangel. This evidence
constitutes more than a scintilla of proof supporting the TWC’s decision. We
overrule Evangel’s second issue.

      3.     Substantial Evidence

      In its third issue, Evangel contends that the TWC’s decision is not supported
by substantial evidence. According to Evangel, the TWC’s decision is erroneous as
a matter of law because the TWC concluded that Bangura was entitled to wages
without a showing of services provided by means of the records and accurate nurse’s
notes. Evangel argues that its own evidence and its allegation that Bangura
committed fraud reflect that Bangura “did not work the purported hours.”

      Under the substantial evidence standard, the only issue is whether the
evidence introduced before the trial court shows, as a matter of law, that facts in
existence at the time of the TWC’s decision reasonably support the decision. See
Sizemore, 759 S.W.2d at 116; Collingsworth Gen. Hosp., 988 S.W.2d at 708. If
substantial evidence would support either affirmative or negative findings, we must
uphold the order, resolving any conflicts in favor of the agency’s decision. See Auto
Convoy Co. v. R.R. Comm’n, 507 S.W.2d 718, 722 (Tex. 1974). We have already
concluded that more than a scintilla of evidence shows facts in existence at the time
of the TWC’s decision that reasonably support its decision. Accordingly, we
overrule Evangel’s third issue.

      4.     Evangel’s Evidence of Fraud

      In its fourth issue, Evangel contends that this court should consider the

                                         8
evidence that Bangura “engaged in the fraud of fabricating her time sheets and
records for wages” while simultaneously working full time for six other employers.
The evidence Evangel refers to is a petition it filed against Bangura in a Harris
County district court seeking damages for breach of contract and fraud based on
fabricated time sheets, as well as an agreed judgment in that case. Evangel first
submitted the documents in its motion for rehearing and a new trial, which the trial
court denied. Evangel contends that because of the “overwhelming evidence of
fraud” perpetrated by Bangura in fabricating records of services not provided,
Bangura is not owed any wages.

      Evangel does not contend that the trial court erred in denying its motion for
rehearing and a new trial, but construing Evangel’s brief liberally we will assume
that is the basis of Evangel’s argument. In response to Evangel’s motion, both the
TWC and Bangura argued that Evangel presented no new evidence and failed to
show good cause for granting a new trial on the grounds of newly discovered
evidence. See Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010). To
obtain a new trial based on newly discovered evidence, a party must show the trial
court that (1) the evidence has come to light since trial; (2) it is not due to lack of
diligence that it was not produced sooner; (3) the new evidence is not cumulative;
and (4) the new evidence is so material that it would probably produce a different
result if a new trial were granted. Id. The trial court’s denial of a motion for new trial
is reviewed for abuse of discretion. Id.

      In its motion, Evangel did not argue that it was entitled to a rehearing or new
trial based on newly discovered evidence. Further, Evangel’s Harris County petition
and agreed judgment reflect that the evidence was not “newly discovered.” The
documents show that Evangel filed the petition in 2015 and the agreed judgment was
signed on August 7, 2017—well before Evangel filed its summary judgment

                                            9
response on September 14, 2017.3 Evangel offers no excuse for not presenting this
evidence earlier, and Evangel does not argue that the evidence is not cumulative or
that it is so material that it would probably produce a different result if a new trial
were granted. See Waffle House, 313 S.W.3d at 813. Thus, the trial court reasonably
could have concluded that Evangel did not demonstrate grounds for a new trial based
on newly discovered evidence.

       In its appellate reply brief, Evangel takes a different tack, arguing that it raised
its fraud allegations during the administrative process but the TWC failed to consider
its complaints. Evangel also argues that “[t]he evidence of fraud perpetrated by
Bangura was in existence at the time of the trial court’s summary judgment hearing”
and was presented to the trial court during the summary judgment proceedings. To
emphasize the latter point, Evangel refers generally to its summary judgment
response, the attached affidavit of its vice-president and administrator stating that
Evangel was defrauded by Bangura and had filed a lawsuit against her, the evidence
presented by both sides, and the argument of Evangel’s counsel at the summary
judgment hearing.

       Evangel’s acknowledgement that both the TWC and the trial court were
presented with Evangel’s allegations and evidence concerning fraud allegedly
committed by Bangura demonstrates that Evangel is merely complaining that neither
the TWC nor the trial court sufficiently credited its evidence controverting
Bangura’s evidence in support of her wage claim. But as we have explained, when
applying the substantial evidence standard of review, the reviewing court is


       3
         Although the agreed judgment reflects that Evangel is to recover from Bangura a sum of
money, it contains no admission of liability, and there are no findings of fact or conclusions of law
indicating that the trial court resolved contested issues or found Bangura liable for fraud. Thus,
even if considered, this evidence adds little, if anything, to the arguments Evangel made before the
TWC that Bangura had submitted falsified time sheets for hours she did not work.

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concerned only with the reasonableness of the administrative order, not its
correctness. See Brinkmeyer, 662 S.W.2d at 956. The TWC’s decision may not be
set aside because the testimony was conflicting or disputed or because it did not
compel the result reached by the agency. See id.; JMJ Acquisitions, 407 S.W.3d at
374. On this record, Evangel has not satisfied its burden to demonstrate that an
absence of substantial evidence exists to support the TWC’s decision that Bangura
was entitled to payment for unpaid wages based on her testimony and time sheets
documenting her hours worked. See Sizemore, 759 S.W.2d at 116. We overrule
Evangel’s fourth issue.

                                III. CONCLUSION

      On this record, we conclude that reasonable minds could have reached the
conclusions that the TWC must have reached to justify its decision, and therefore
the trial court did not err in granting the TWC and Bangura’s joint motion for
summary judgment. We therefore overrule Evangel’s issues and affirm the trial
court’s judgment.




                                     /s/     Ken Wise
                                             Justice


Panel consists of Justices Donovan, Wise, and Jewell.




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