AFFIRM and Opinion Filed March l2 2013.




                                         In The
                                  (!ntirt øf Appcah
                         2FiftIi Jitrict 01 ixa at JaI1a
                                      No, 05-l1-01214-CV

                             ROBERT L. HAMILTON, Appellant

                                                V.

                      TEXAS WORKFORCE COMMISSION AND
                     UNIVERSITY OF TEXAS AT DALLAS, Appellees

                      On Appeal from the 192nd Judicial District Court
                                   Dallas County, Texas
                            Trial Court Cause No. 10-14225-K

                                MEMORANDUM OPINION
                         Before Justices LangMiers, Myers, and Lewis
                                Opinion by Justice Lang-Miers
       Robert L. Hamilton appeals the trial court’s summary judgment in favor of the Texas

Workforce Commission and University of Texas at Dallas. Hamilton’s claim for unemployment

benefits was denied by the Commission, and he appealed to the district court. The parties filed

competing motions for summary judgment. The trial court granted appellees’ joint motion and

denied Hamilton’s. The court also denied Hamilton’s motion for new trial. In three issues on

appeal, Hamilton argues that (1) the Commission’s decision is not supported by substantial

evidence, (2) the Commission “engrafted an exhaustion requirement to undertake a company’s

internal appeals process” that violates his statutory and constitutional rights, and (3) the trial
court erred by granting appellecs’ motion lou summary judgment and denying his motions br

summary judgment and new trial. We affirm the trial court’s judgment. The background of this

case and the evidence adduced below are well known to the parties, and we limit our recitation of

the facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure

474 because the law to be applied in this case is well settled.

                                                             Background

           Hamilton was a systems analyst at ULDallas. Dr. Sue Ellen laylor, Assistant Vice

President of Information Resources, told Hamilton to meet her in her office at 8:30 am on June

29, 2009. At the meeting, Taylor gave Hamilton a two-page document entitled “Predisciplinary

Notice: Intent to Terminate” The notice described several instances of Hamilton’s misconduct’

and advised him that Taylor intended to terminate his employment effective at 5:00 pm on June

30 (the next day) unless he responded to the notice and provided “compelling reasons” why

Taylor should not terminate his employment. Hamilton told Taylor that he qUit, and fifteen

minutes after the meeting began, he handwrote a note and gave it to Taylor stating:

                                                                29 June 2008 [sic]
                                           UTD
                                           Richardson TX
                                                      I quit
                                                     Is! R. L Hamilton
                                                                8:45 AM




            me notice stated, among other things, that Hamilton had not met standards suitable and acceptable to the work environment and
            t
failed to comply with the standard procedure for notification about when hc would be absent from the office, It also stated that he had been
advised that he needed improvement in meeting due dates, increasing dependability, double-checking work, improving follow-through on
assigned tasks, and improving his attitude regarding customer service, but explained how he had failed to improve in those areas.
         laylor accepted the note and Hamilton s statement that he quit by signing her name at the

bottom of the note and dating     it.   iDana Smith, appellant’s supervisor, was also present at the

meeting and signed the note under laylor s signature.

         Hamilton sent an email to Taylor the next day at 9:14 am with the subject line, “Response

to your notice.” The email referred to a problem with the “Texas Grant report being late” and

how he resented Taylor’s insinuation that he was responsible. He also asked why he was not told

“face to face” that “Users were having problems with me” so that he “could correct whatever

[hel was doing wrong.” He related his observation that when he could not get anyone to give him

“access to the Orion system,” it “finally became apparent that there was no intent for me to

continue on to the new system and last month I started looking for another job in Education.”

And he also told faylor about his “first day at UTD.” He said the lady at the front desk never

responded to him, the manager did not introduce him to anyone, no one (except two people) ever

spoke to him, and he went home for lunch and was not going to go back until “a friend      —   a UTD

alumna   —   stopped by and talked me in to coming back to work.”

         Hamilton was unable to find employment, and in March 2010 he filed for unemployment

benefits. The Commission made a determination that Hamilton did not qualify for benefits

because he voluntarily quit his employment without good cause connected with his work.

Hamilton appealed the determination, and the appeal tribunal upheld the decision. Hamilton sued

for judicial review. He alleged that the Commission’s decision was wrong, arbitrary, capricious,

unreasonable, and not supported by substantial evidence, and that it engrafted a requirement to

follow UT-Dallas’s internal appeal process.

         Appellees filed a joint motion for summary judgment arguing that the Commission’s

decision was supported by substantial evidence. Hamilton also filed a motion for summary




                                                    3
judgment in which he argued that his note stating “I quit” did not alter the fact that ULDallas

fired him, and there is no requirement that he exhaust UTDallas’s internal grievance or appeal

process before receiving unemployment benefits. The court granted appellees’ motion and

denied Hamilton’s. Hamilton filed a motion for new trial arguing that the trial court relied on the

wrong standard of review with regard to his claim about exhaustion of the internal appeal

process. The court denied the motion.

       On appeal, Hamilton argues that the Commission’s decision was not supported by

substantial evidence and that the trial court erred by granting appellees’ and denying his motions

for summary judgment.

                                        Standard of Review

       We review a summary judgment de novo. Lopez v. Tex, Workforce Comm n, No. 01-10

00849-CV, 2012 WL 4465197, at *3 (Tex, App.—Houston [1st Dist.1 Sep. 27, 2012, no pet.)

(mem, op.). When both parties move for summary judgment, each party bears the burden of

establishing that it is entitled to judgment as a matter of law. Cit of Garland v. Dallas Morning

News, 22 S.W.3d 351, 356 (Tex. 2000). When the trial court grants one motion and denies the

other, we review the summary judgment evidence presented by both parties and determine all

questions presented. Id.

       Trial and appellate courts review the Commission’s decisions about unemployment

benefits de novo using the substantial evidence standard. See TEX. LAB. CODE ANN.      § 61.062(e)
(West 2006); Dille v. Tex. Workforce Comm’n, No. 05-1 1-01354-CV, 2012 WL 2454221, at *2

3 (Tex. App.—Dallas June 28, 2012, no pet.) (mem. op.); see also Hooda Corp. v. Tex. Alcoholic

Beverage Comm’n, 370 S.W.3d 458, 461 (Tex. App.—Dallas 2012, no pet.). We presume the

Commission’s decision was valid, and the party seeking to set aside the decision has the burden




                                                 4
ol showing that    it   was not supported by substantial evidence. See Lo[k’z, 201 2 WL 4465 194. at

3; Hooda, 370 S.WId at 461 Substantial evidence is more than a scintilla and less than a
                                     .




preponderance. Tcv. /tlcoholu’ Beveraçc Coiiiiii ‘0             1’.   Cabanas. 313 S.W.3d 927. 930 (‘Fex.

App.— Dallas 2010. no pet.) (quoting        Gar:u i’.   ‘1ev.    ,4lcuholic Bei’erage Com,n’iz, 138 S.W.3d

609, 613 (Tex. App.—Houston 114th 1)ist.J 2004, no pet.)), As a result, the evidence may

actually preponderate against the decision of the Commission, but nevertheless satisfy the

substantial evidence standard. Ii Whether substantial evidence supported the Commission’s

decision is a   question of   law. See Firemen ‘s & Policemen ‘s Civil Serv. Comm ‘n v. Brinkmeyer,

662 S.W.2d 953, 956—57 (Tex. 1984).

        Under a substantial evidence review, the question we must decide is “whether the

evidence introduced before the trial court shows facts in              existence   at the time of the Iagency’sI

decision that reasonably support the decision.” Lopez, 2012 WL 4465197, at *3 (quoting

Collinçsworth Geii. Hasp. r. Hunnicutt. 988 S .W.2d 706, 708 (Tex. 1 998)). We may not

substitute our judgment for that of the Commission’s on controverted issues of fact. See

Brinkmeyer, 662 S.W. 2d at 956; C’abanas, 313 S.W.3d at 930. We may set aside the decision of

the Commission only if it was made without regard to the law or the facts and, as a result, was

unreasonable, arbitrary, or capricious. See Collingsworth, 988 S.W.2d at 708; Murray v. Tex.

Worlçforce Comnz’n. 337 S.W.3d 522, 524 (Tex. App.—Dallas 2011, no pet.). We compare the

Commission’s decision with the evidence presented to the trial court and the governing law.

Collingsworth, 988 S.W.2d at 708. We will affirm if we conclude that the summary judgment

evidence established as a matter of law that substantial evidence supported the Commission’s

decision. Id.
                                             Applicable Law

       A person who leaves his last work voluntarily without good cause connected with the

work is disqualified from receiving unemployment benefits. Ux. LAB. CoDE ANN. § 207.045

(West 2006), “Good cause connected with the work” “means such cause, related to the work, as

would cause a person who was genuinely interested in retaining work to nevertheless leave the

job.” Tux.   WORKFORCE COMM’N APPEALS POLICY                & PRECEDENT MANUAL, VI, 210.00 Good

Cause (Oct. 1. 1996),   uwiilabk’ at   http://www.twc.state.tx.us/uilappl/vI.pdf.

                                                 Analysis

       On appeal, Hamilton contends that the trial court erred by granting appellees’ joint

motion for summary judgment because the Commission’s ruling was “arbitrary and capricious in

light of [the Commissionj and judicial precedent” and it “erect[edl additional bars to the receipt

of unemployment benefits that the Legislature has never established.” Hamilton’s contention is

that he did not voluntarily leave his employment, he was fired.

       Appellees’ summary judgment evidence consisted of Taylor’s affidavit, the notice of

intent to terminate employment, UT-Dallas’s policy on discipline and dismissal of certain

employees, Hamilton’s handwritten note, and the decision by the Commission’s appeal tribunal.

In their response to Hamilton’s summary judgment motion, appellees also produced excerpts

from Taylor’s and Hamilton’s depositions. Hamilton’s summary judgment evidence consisted of

these same documents, plus the email he sent Taylor and other documents produced by appellees

in discovery.

       The decision by the Commission showed that the appeal tribunal made the following

factual findings: the employer presented Hamilton with a notice of intent to terminate his

employment, the employer gave Hamilton until 5 pm the next day to respond to the notice and




                                                    6
provide evidence why the employer should not go forward with the proposed termination, the

employer advised ii would move forward with the termination if 1-lamilton failed to respond or

provide compelling reasons why the employer should not terminate his position, Hamilton was to

box his personal items in his work area and leave his office keys and identification until the

matter had been finally decided, Hamilton would he reissued his keys and identification if the

proposed termination was rescinded, Hamilton provided a handwritten note at 8:45 am stating

that. he quit, Hamilton did not intend to quit when he turned in the note because he believed he

was already discharged. and hamilton did not ask the employer to provide him with the

information he needed to aid him with a response to the notice of intent to terminate.

       The notice of intent to terminate stated that Hamilton had not met the work performance

standards and standards of conduct expected of UT-Dallas employees. citing specific examples

of misconduct, and stated that Taylor intended to terminate Hamilton’s employment at 5:00 pm

the next day. It also stated that UT-Dallas policy calls for you to be notified of the intended

action and provide you an opportunity to respond. The notice advised Hamilton not to report to

work and to use his time to respond to the notice. It stated that if Hamilton failed to respond or

provide compelling reasons why Taylor should not terminate his position, she would “move

forward with the termination action   .   .   .   .“   Although the notice stated that Hamilton should take

his personal items from his work area and leave his keys and work identification, it also stated

that he could bring the personal items back and the keys and identification would be reissued if

the proposed termination was rescinded.

       In her affidavit, Taylor stated that a final decision about Hamilton’s continued

employment had not been made as of June 29, 2009. She stated that she would have taken into

consideration any response Hamilton made to the notice before a decision was made. She said




                                                           7
she told Hamilton in the meeting that she vs as not going to fire him at that time and “thai this was

a Pre-disciplinary Notice of Intent to Terminate Employment.’ She said Hamilton then made the

statement that he quit. She said Hamilton’s statement caught her “off guard,” so she called a

human resources representative who “instructed I herj to obtain a written and signed paper slating

his (Dr. Hamilton’s) decision to quit.” She said Hamilton did not ask for access to any

information that he might need to respond to the notice and (lid not ask for additional time in

which to respond. She understood Hamilton’s note “to mean that he had quit his job at UTD,

effective immediately.” In her deposition testimony, Taylor reiterated the above testimony and

also stated that if Hamilton had presented evidence related to the specific items of misconduct in

the notice, she would have considered them. She thought that Hamilton would have been on paid

leave until a final decision was made.

        Hamilton’s summary judgment evidence did not dispute the way in which these events

happened, but he argues that different conclusions should be drawn from the evidence. He argues

that the Commission’s decision was unreasonable and ignored the Commission’s own precedent

“that once an employer has expressed a clear intent to terminate the employee within a relatively

short period of time, the employee’s decision to resign immediately will still be viewed as caused

by the employer’s manifest intent to terminate him and will not be considered a voluntary

departure from the job or change the nature of the separation from service[.j” He said he wrote

the “I quit” note “not to signify my voluntary separation, since I had already been effectively

discharged and my means of access to my work had already been taken away[,j” but “to express

the practical inability to undertake the review process contained in the Notice to Terminate[.]”

       Hamilton argues that the facts of his situation are like those in Madisoiwille consolidated

Independent School District and precludes the Commission from denying him unemployment
benefits. See Madisonville consol. Jndep. Sch. 131st. v. Tex. Emp ‘t comm n, 821 SW.2d 310

(Tex. App.-—Corpus Christi 1991. writ denied). The Commission disagreed.

          in thai case, a school superintendent gave a teacher the   “statutorily   required ‘notice ol

proposed nonrenewal’ of his contract” for the coming school year. Id. at 310. The teacher talked

to a friend who happened to he the president of the school hoard about the proposed nonrenewal.

The teacher got the impression from his friend that his contract would not he renewed, regardless

of what he did. Id. at 31 1. The friend testified at trial that the school board usually followed the

school superintendent’s recommendation, and the superintendent had never recommended

nonrenewal before, Id. The teacher decided to tender his resignation because he believed the

school hoard would follow the recommendation and any appeal would be useless. Id.

          The Commission concluded that the teacher was not disqualified from receiving

unemployment benefits. Id. at 3 10—1 1. The appellate court agreed and recognized that

circumstances at work may cause an individual to voluntarily leave his employment but would

not disqualify the individual from receiving unemployment benefits. Id. at 3 12—13 (giving

examples that included union employees who were laid off without pay during a plant shutdown,

an employer facing a mandatory retirement policy, and a pregnant employee whose company

required her to quit work at the fifth month of pregnancy). The court concluded that if an

“employee is given an option by his employer of either resigning or being discharged, he should

not be disqualified for benefits if he chooses to resign with dignity rather than to be discharged,

provided that there is no evidence of misconduct that would otherwise bar him from benefits.”

Id. at 3 13—14. The court cautioned, however, that “the employee should have good reason to

believe that he will imminently be discharged, or nonrenewed, unless he chooses to resign.” Id.

at 313.




                                                 9
        Lu   I lamilton’ s case. the Commission        acknowledged the Madison title   case,   but

distinguished Hamilton’s situation:

                In the present case, the employer did hot provide the claimant with a
        notice of his discharge on June 29. 2009, but a notice of intent to terminate his
        employment with the claimant being provided until 5:00 p.m. on June 30, 2009 to
        respond to the notice to provide evidence why the employer should not go
        forward with the proposed termination. As such, the claimant’s providing a
        handwritten note outlining that he quit within 15 minutes of being advised of the
        proposed termination constituted a voluntary separation and not a discharge in
        accordance with the Texas Workforce Commission policy cited above. Since the
        claimant provided the note outlining that he quit because he believed he was
        already discharged and not because he believed that it was unlikely that the
        employer would rescind the proposed action to terminate his employment, this
        case can be distinguished from the Madisonville case cited above.

The Commission also concluded that it was Hamilton’s responsibility to ask for any information

he needed to respond to the notice, but that he did not ask for the il1tormatiofl.

        In summary, the parties’ summary judgment evidence showed that a final decision had

not been made about Hamilton’s employment and that Taylor would have reviewed anything

Hamilton submitted in making the final decision. In other words, the evidence did not show that

Hamilton would be fired if he did not resign. See Madisonville, 821 S.W.2d at 313. Instead, the

evidence showed that Hamilton was given an opportunity to respond to the notice and he chose

to quit rather than try to save his job. And Hamilton’s email “response” sent to Taylor the next

day complained about the work environment and (lid not address the specific complaints in the

notice. Although Hamilton said he believed the notice discharged him, the evidence does not

support that belief. Consequently, the Commission reasonably could have concluded that

Hamilton left his employment without good cause connected with the work. See TEx.

WORKFORCE COMM’N APPEALS POLICY & PRECEDENT MANUAL, VL 210.00 Good Cause.

       Based on the summary judgment evidence presented below, we conclude that the trial

court did not err by granting appellees’ motion for summary judgment and denying Hamilton’s




                                                  hO
motion. We resolve issues one and three against appellant. Because the Commission did not base

its decision on ULI)allass internal appeal process. we do not need to reach Ilamiltons

arguments in issue   tWO.


                                          Conclusion

       We affirm the trial court s judgment




ii l2l3FPO5




                                              ™
                                              II
                                (!tntrl iii ;\pt’cihi
                        Fi1LI! OitrirL Lii rct it JtI1a
                                        JUDGMENT

ROBERT L. HAMILTON, Appellant                      On Appeal from the 192nd Judicial District
                                                   Court, Dallas County, Texas
No, 05llMl2l4-CV           V.                      Trial Court Cause No. 1044225-K.
                                                   Opinion delivered by Justice Lang-Miers,
TEXAS WOk KEORCE COMMISSION                        Justices Myers and Lewis participating.
AND UNIVERSITY OF TEXAS AT
DALLAS. Appellees

        In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMEI).
        It is ORDERE1) that appellees Texas Workforce Commission and University of Texas at
Dallas recover their costs of this appeal from appellant Robert L. Hamilton.


Judgment entered this 12t11 day of March, 2013.



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