                                    In The

                              Court of Appeals
                   Ninth District of Texas at Beaumont
                          ____________________
                             NO. 09-12-00567-CV
                          ____________________

                        LENA SAAVEDRA, Appellant

                                      V.

     TEXAS WORKFORCE COMMISSION AND THE WOODLANDS
          ACADEMY PREPARATORY SCHOOL, Appellees
_______________________________________________________        ______________

                   On Appeal from the 359th District Court
                        Montgomery County, Texas
                      Trial Cause No. 11-10-11289 CV
________________________________________________________        _____________

                         MEMORANDUM OPINION

      Lena Saavedra (Saavedra) appeals the trial court’s judgment, affirming the

Texas Workforce Commission’s (TWC) denial of Saavedra’s claim for

unemployment benefits. We affirm.

                               Background Facts

      Saavedra was employed as a math teacher at The Woodlands Academy

Preparatory School (Woodlands Prep) from August 20, 2007, until the close of the

2010 school year. On or about May 7, 2010, Kenneth West (West), the headmaster
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at Woodlands Prep, gave Saavedra a performance review, and there was no

indication in the review that her performance was unsatisfactory. Woodlands Prep

also offered her a new contract in May of 2010.

      Saavedra testified that she asked West if they could meet on May 25, 2010,

to discuss the contract. At that meeting, Saavedra asked West if Woodlands Prep

would pay her more money in the form of a stipend for the following year. West

testified that Saavedra had a piece of paper at the meeting that had the number of

minutes she had worked over the past three years and how many minutes she had

been off, and that it was the first time he had ever seen that type of documentation.

West also testified that he told Saavedra he would consider her request. West

spoke to Saavedra’s Department Supervisor, Karen Lilly (Lilly), about Saavedra’s

request.

      West, Lilly, and Jolynn Buckingham (Buckingham), the Director of

Admissions and Communications, met with Saavedra the next day on May 26,

2010. Saavedra testified that during the meeting, West discussed Saavedra’s past

performance, told her he reviewed her file and found past issues, and stated that

she did not “seem to be happy here.” Both Saavedra and West testified that West

spoke to Saavedra in the meeting about prior issues. West testified at trial that they

had prior problems with Saavedra regarding her workbook use, textbook


                                          2
selections, and grading procedures, as well as her failure to follow the direction of

the department chairperson. The testimony from West and Saavedra established

that Saavedra became frustrated or upset and walked out of the meeting. As she

was leaving the meeting, Saavedra stated that if she had another job she would quit

her job at Woodlands Prep.

      Buckingham followed Saavedra out of the meeting and asked her to

apologize to West and to return to the meeting. Buckingham testified that Saavedra

then stated West had something wrong with him and that he should apologize to

Saavedra. Upon her later return to the meeting, Saavedra either asked West not to

look at her because he would make her start crying again, or stated that she could

not look at him. West testified that Lilly and Buckingham told him that Saavedra

made disrespectful comments about him after the May 26, 2010 meeting. In an

audio recording of Lilly’s interview with the TWC, which was played at trial, Lilly

stated that later in the day on May 26th, Saavedra made derogatory remarks about

West’s demeanor: “[Saavedra] said that [West] had beady eyes. And [West] had a

smirk on his face. And that [Saavedra] was nervous sometimes teaching because

she thought [West] was lurking in the hallways.”

      On June 10, 2010, Saavedra and West met again. West informed Saavedra it

was not “going to work out” and her employment was terminated. West admitted


                                         3
at trial that he never told Saavedra she was either insubordinate or disrespectful.

He testified he told her that “this isn’t going to work and you’re not going to be

able to work here anymore.”

        West testified that the president of the School Board advised him that

Saavedra’s contract offer was void because she requested a stipend or attempted to

renegotiate the contract. Additionally, the school’s handbook states that an

employee may be terminated for “insubordination” to administrators. West further

testified the Board told him that if Saavedra was being insubordinate he had their

approval to terminate her employment. West also testified that Saavedra’s

disrespectful comments and behavior, her leaving the meeting and refusing to

return, and her comments to Lilly and Buckingham about him constituted

insubordination.

        At the trial, Lilly testified that she did not think Saavedra was being

insubordinate, which was defined by Saavedra’s attorney as “refusing an order or

direct order to do something[,]” in the meeting on May 26, 2010. Asked if

Saavedra was disrespectful, or disobeyed any instructions, Buckingham also stated

“no.”

        After her termination, Saavedra filed for unemployment benefits with the

TWC. Woodlands Prep denied that Saavedra was entitled to unemployment


                                        4
benefits. In the July 20, 2010 telephone statement taken by the TWC investigator,

West stated that Saavedra was terminated for “insubordination,” that Saavedra was

insubordinate during a meeting, and that Saavedra said “she had never worked for

someone like [West] . . . she walked out of the meeting without permission . . . we

talked [sic] her unwillingness to follow the directives of head Math Dept. Karen

Lilly. . . .” On July 27, 2010, the TWC denied her claim for unemployment

benefits. Saavedra appealed that decision to the TWC Appeal Tribunal, and a

hearing was held on September 23, 2010. Concluding there was insufficient

evidence to support Woodland Prep’s claim of insubordination, the TWC Appeal

Tribunal reversed the prior TWC decision and awarded unemployment benefits to

Saavedra.

      Woodlands Prep then appealed that decision to the full TWC Commission.

On January 12, 2011, the Commission reversed the Appeal Tribunal’s ruling and

denied Saavedra any benefits. The Commission determined that Saavedra was

dismissed for misconduct under section 207.044 of the Texas Unemployment

Compensation Act. Saavedra filed a motion for rehearing with the Commission,

and a rehearing was held on August 9, 2011. On September 20, 2011, the

Commission affirmed the January 12, 2011 ruling.




                                        5
      Pursuant to Chapter 212 of the Labor Code, Saavedra then filed a petition in

the Montgomery County district court. She requested “judicial review” of the

TWC’s decision. See Tex. Lab. Code Ann. § 212.202 (West 2006). After a bench

trial, the trial court entered a judgment affirming the decision of the TWC and

finding that substantial evidence supported the TWC’s decision. Saavedra

appealed.

                               Standard of Review

      We exercise de novo review to determine if the trial court erred in its

determination that there was substantial evidence to support the TWC decision. See

Tex. Lab. Code Ann. § 212.202(a); see also Firemen’s & Policemen’s Civil Serv.

Comm’n v. Brinkmeyer, 662 S.W.2d 953, 956-57 (Tex. 1984); Blanchard v. Brazos

Forest Products, L.P., 353 S.W.3d 569, 572 (Tex. App.—Fort Worth 2011, pet.

denied). “Substantial evidence is more than a scintilla, but less than a

preponderance of the evidence.” City of Houston v. Tippy, 991 S.W.2d 330, 334

(Tex. App.—Houston [1st Dist.] 1999, no pet.). 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 TEC’s decision that reasonably support the

decision.” Collingsworth Gen. Hosp. v. Hunnicutt, 988 S.W.2d 706, 708 (Tex.

1998). Whether the TWC’s decision is supported by substantial evidence is a


                                        6
question of law. Blanchard, 353 S.W.3d at 573. If the TWC’s decision is

unreasonable, arbitrary, or capricious, it will be set aside. Murray v. Tex.

Workforce Comm’n, 337 S.W.3d 522, 524 (Tex. App.—Dallas 2011, no pet.). A

decision is unreasonable, arbitrary, or capricious if it is made without regard to the

law or the facts. Id.

      At the trial below and now on appeal, the findings of the TWC carry a

presumption of validity which a reviewing court cannot ignore or disregard. See

Hunnicutt, 988 S.W.2d at 708; Mercer v. Ross, 701 S.W.2d 830, 831 (Tex. 1986).

The TWC is the primary finder of the facts, and the reviewing court may not

substitute its judgment for the TWC’s judgment on controverted fact issues.

Brinkmeyer, 662 S.W.2d at 956; Blanchard, 353 S.W.3d at 572. In our review, we

will look at the evidence presented to the trial court, not the agency record. See

Nuernberg v. Tex. Emp’t Comm’n, 858 S.W.2d 364, 365 (Tex. 1993).

                                     Discussion

      On appeal, Saavedra articulates three issues: whether her actions constitute

misconduct under section 201.012 of the Texas Labor Code, whether substantial

evidence supports the district court’s decision to affirm the TWC’s decision to

deny her unemployment benefits, and whether the TWC’s decision was made

without reference to the facts and was unreasonable, arbitrary and capricious. All


                                          7
three of her issues are subsumed in the following issue: whether there was

substantial evidence to support the TWC’s decision denying Saavedra

unemployment benefits on the basis of misconduct.

      Section 207.044(a) of the Texas Labor Code disqualifies an individual from

receiving unemployment benefits if the person was discharged for “misconduct

connected with the individual’s last work.” Tex. Lab. Code Ann. § 207.044(a)

(West 2006). Section 201.012 of the Texas Labor Code defines “misconduct”:

            (a) “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.
            (b) The term “misconduct” does not include an act in
            response to an unconscionable act of an employer or
            superior.

Tex. Lab. Code Ann. § 201.012 (West 2006). Mismanagement requires

“intent, or such a degree of carelessness as to evidence a disregard of the

consequences, whether manifested through action or inaction.” Mercer, 701

S.W.2d at 831.

      At the trial below, the district court heard testimony from West,

Saavedra, Lilly, and Buckingham, and each side introduced several exhibits,




                                        8
including copies of items submitted to the Commission. In its January 12,

2011 ruling, the TWC found:

      Rather, the Commission concludes that the claimant’s actions and
      comments on May 26, 2010 showed such contempt for the head of
      school’s authority as to be insubordinate. The claimant thus
      mismanaged her position of employment by actions rising to the level
      of misconduct connected with the work.

      At trial, the testimony from West and Saavedra established that prior to May

25, 2010, Woodland’s Prep offered Saavedra a new contract for the 2010-2011

school year. She did not sign the contract, but instead asked for additional

compensation to be included in the contract. As a result of her request for more

compensation, West and Saavedra’s immediate supervisor, Lilly, reviewed

Saavedra’s record and past performance. On May 26, 2010, West, Lilly, and

Buckingham met with Saavedra about past problems, and Saavedra became upset,

left the meeting, and made comments about West to Lilly and Buckingham.

Saavedra’s statement that she would quit the next day if she had another job,

walking out of the meeting, and commenting negatively about West to Lilly

provided substantial evidence to support the Commission’s finding that Saavedra

was disqualified from receiving benefits because of insubordination toward

administrators, and that her actions constituted mismanagement rising to the level

of misconduct. See Tex. Lab. Code Ann. §§ 201.012, 207.044(a); see also


                                        9
Blanchard, 353 S.W.3d at 574 (holding that employee’s conduct in ignoring

customer complaint and engaging in “‘rude and destructive behavior’” was

substantial evidence of mismanagement); Anderson v. Tex. Workforce Comm’n,

No. 05-02-01595-CV, 2003 Tex. App. LEXIS 4879 (Tex. App.—Dallas June 5,

2003, pet. denied) (mem. op.) (concluding that insubordination is misconduct).

      Saavedra argues that the Commission erroneously denied her benefits.

However, the issue on appeal is not whether the Commission reached the correct

conclusion based upon what may be characterized as conflicting interpretations of

the respective evidence, testimony, and meetings, but whether or not the

administrative decision was reasonable. Brinkmeyer, 662 S.W.2d at 956. Saavedra

argues that the Commission and the trial court erred in denying her benefits

because her actions from May 26 to June 10, 2010, do not meet the statutory

definition of “misconduct.” In support of her argument, Saavedra cites to

Hunnicutt v. Texas Employee Commission, 949 S.W.2d 52 (Tex. App.—Amarillo

1997), which was reversed by the Texas Supreme Court in Collingsworth General

Hospital v. Hunnicutt, 988 S.W.2d 706 (Tex. 1998). She also cites to Lohmuller v.

Texas Workforce Commission, No. 14-00-00008-CV, 2000 Tex. App. LEXIS 8497

(Tex. App.—Houston [14th Dist.] 2000, no pet.), a Fourteenth Court of Appeals

decision holding that an employee’s refusal to work was due to the employer’s


                                       10
“unconscionable act” of demanding that the employee work for a period of time

without pay, and, therefore, the employee’s conduct did not meet the definition of

misconduct under section 201.012. Lohmuller is not applicable here. There is no

evidence in the record that Woodlands Prep was trying to get Saavedra to work

without pay or that the school was otherwise engaging in an illegal or

unconscionable act by having her attend the meeting of May 26, 2010.

       The evidence presented by Saavedra does not show that the TWC’s decision

was unreasonable, arbitrary, or capricious, nor does it conclusively negate all

reasonable support for the TWC’s decision. See Murray, 337 S.W.3d at 524; City

of Houston v. Morris, 23 S.W.3d 505, 508 (Tex. App.—Houston [1st Dist.] 2000,

no pet.). Based on this record, we conclude the trial court properly held as a matter

of law that substantial evidence supports the TWC’s decision to deny benefits to

Saavedra. All of Saavedra’s issues are overruled. We affirm the trial court’s

judgment.

      AFFIRMED.


                                                    _________________________
                                                        LEANNE JOHNSON
                                                              Justice
Submitted on April 24, 2014
Opinion Delivered June 12, 2014

Before McKeithen, C.J., Kreger and Johnson, JJ.

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