                                 MEMORANDUM OPINION
                                        No. 04-08-00508-CV

                                       Jose F. VASQUEZ, Jr.,
                                              Appellant

                                                   v.

      TEXAS WORKFORCE COMMISSION, Merchants Building Maintenance, LLC,
                          and Pat Montes,
                             Appellees

                     From the 57th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2006-CI-17337
                            Honorable Martha Tanner, Judge Presiding

Opinion by:       Rebecca Simmons, Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: June 10, 2009

AFFIRMED

           This appeal arises from the employment termination of Jose F. Vasquez, Jr., a janitor

employed by Merchants Building Maintenance, LLC (Merchants). Vasquez sought judicial

review of an administrative ruling by the Texas Workforce Commission (TWC) denying

unemployment benefits to Vasquez. The trial court granted summary judgment in favor of

TWC, Merchants, and Operations Manager Pat Montes and affirmed TWC’s decision. Because
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the trial court applied the correct standard of misconduct and substantial evidence existed to

support TWC’s denial of benefits to Vasquez, we affirm the judgment of the trial court.

                                   FACTUAL BACKGROUND

       Merchants, a maintenance company, employed Vasquez as a janitor at Rolling Oaks Mall

in San Antonio. His job duties included sweeping, mopping, waxing the floors, emptying trash

containers, dusting, cleaning the glass doors and windows, and other duties as assigned. On June

20, 2006, Supervisor Ray Ledesma instructed Vasquez to clean the food court and, more

specifically, to remove brown circular spots from the wall in a private hallway adjacent to the

food court.

       Vasquez claims that his attempts to remove the spots with soap and water were

unsuccessful. But when he requested bleach, Ledesma informed Vasquez that there was no

bleach available and that he was to use Windex or some other available product. Vasquez

further claims that when he attempted to inform Ledesma that the spots could not be removed

without bleach, Ledesma had already left for the day. Left without other options, Vasquez

returned to the food court to continue his assigned duties and abandoned further efforts to

remove the spots.

       Several hours later, Operations Manager Pat Montes instructed Vasquez to “clock out and

go home” because of his failure to remove the brown spots. The following morning, Ledesma

informed Vasquez that his employment with Merchants was terminated.

       Vasquez subsequently filed for unemployment benefits with TWC and was approved.

Merchants appealed TWC’s decision alleging that Vasquez was discharged for refusing to

perform his regular duties as assigned and instructed by his supervisor. On August 22, 2006,

TWC’s Appeal Tribunal reversed the prior approval of benefits finding that Vasquez committed




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“misconduct” under the Texas Labor Code. Vasquez was ordered to repay any previously

collected benefits. Vasquez’s appeal of the Appeal Tribunal’s decision was denied on October

24, 2006 and he filed suit in district court.     The parties filed cross-motions for summary

judgment and on May 30, 2008, the trial court granted summary judgment in favor of appellees

and denied Vasquez’s motion for summary judgment. This appeal followed.

                                      STANDARD OF REVIEW

          The standard of review for a traditional summary judgment is well established: (1) the

movant must show “that there is no genuine issue of material fact and that it is entitled to

judgment as a matter of law; (2) [i]n deciding whether there is a disputed material fact issue

precluding summary judgment,” the court must take “evidence favorable to the non-movant . . .

as true”; and (3) the court must indulge every reasonable inference in favor of the non-movant

and resolve any doubts in the non-movant’s favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d

546, 548-49 (Tex. 1985). If the defendant meets this burden, the plaintiff must then raise a

genuine issue of material fact on each challenged element. Centeq Realty, Inc. v. Siegler, 899

S.W.2d 195, 197 (Tex. 1995). Because the case before the trial court was an appeal from a TWC

ruling, we must analyze the summary judgment evidence in the context of a substantial evidence

review.

          TWC’s actions are presumed valid and a party challenging a TWC ruling bears “the

burden to show that [the ruling is] not supported by substantial evidence.” Collingsworth Gen.

Hosp. v. Hunnicutt, 988 S.W.2d 706, 708 (Tex. 1998); accord Mercer v. Ross, 701 S.W.2d 830,

831 (Tex. 1986); City of San Antonio v. Tex. Water Comm’n, 407 S.W.2d 752, 758 (Tex. 1966).

Additionally, the challenging party must meet this burden with regard to any possible basis for




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upholding TWC’s decision, not solely TWC’s stated basis. See Tex. Employment Comm’n v.

Hays, 360 S.W.2d 525, 527 (Tex. 1962).

       Substantial evidence is “more than a mere scintilla, or some evidence.” Beaumont v. Tex.

Employment Comm’n, 753 S.W.2d 770, 772 (Tex. App.—Houston [1st Dist.] 1988, writ denied).

But substantial evidence may be less than a preponderance of the evidence.            Olivarez v.

Aluminum Corp. of Am. (Rockdale Works), 693 S.W.2d 931, 932 (Tex. 1985) (per curiam). “In

fact, the evidence may be substantial and yet greatly preponderate the other way.” Id. (quoting

Lewis v. Metro. Sav. & Loan Ass’n, 550 S.W.2d 11, 13 (Tex. 1977)); see also Matthews v. Scott,

268 S.W.3d 162, 172 (Tex. App.—Corpus Christi 2008, no pet.).             “Resolution 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 & Policemen’s Civil Serv. Comm’n

v. Brinkmeyer, 662 S.W.2d 953, 956 (Tex. 1984).

       To prevail on his summary judgment motion, Vasquez had to establish that TWC’s

decision was “made without regard to the law or the facts and therefore was unreasonable,

arbitrary, or capricious.” See Mercer, 701 S.W.2d at 831. Vasquez “cannot meet [his] burden

merely by casting doubt on the TWC’s decision.” See City of Houston v. Morris, 23 S.W.3d

505, 508 (Tex. App.—Houston [1st Dist.] 2000, no pet.); Brinkmeyer, 662 S.W.2d at 956. To

the contrary, Vasquez “must produce evidence that conclusively negates all reasonable support

for [TWC’s] decision, on any ground offered.” See Morris, 23 S.W.3d at 508. In support of his

summary judgment and in response to the appellees’ motion for summary judgment, Vasquez

argues that there was no evidence before TWC that his actions amounted to misconduct under

the terms of the Texas Labor Code. See TEX. LAB. CODE ANN. § 201.012 (Vernon 2006).

Therefore, TWC acted arbitrarily and capriciously when it ruled in the appellees’ favor.




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       To prevail on their summary judgment, the appellees had to establish that there was no

genuine issue as to any material fact and they were entitled to judgment as a matter of law. See

Nixon, 690 S.W.2d at 548. In other words, there was more than a scintilla of evidence to support

TWC’s finding that Vasquez engaged in misconduct and, therefore, was not entitled to

unemployment benefits. See Olivarez, 693 S.W.2d at 932.

                         TEXAS WORKFORCE COMMISSION DECISIONS

       The underlying issue in this case concerns the meaning of misconduct under the Texas

Unemployment Compensation Act (TUCA).             See TEX. LAB. CODE ANN. §§ 201.001–.101

(Vernon 2006). The TUCA compensates those who become unemployed through no fault of

their own. However, “[a]n individual is disqualified for benefits if the individual was discharged

for misconduct connected with the individual’s last work.” TEX. LAB. CODE ANN. § 207.044(a)

(Vernon 2006). Further, the TUCA defines misconduct as:

       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.

TEX. LAB. CODE ANN. § 201.012 (Vernon 2006). Repeated acts of carelessness that place an

employer’s property in jeopardy, coupled with intermittent periods of satisfactory performance,

can amount to misconduct. See Tex. Employment Comm’n v. Tates, 769 S.W.2d 290, 291-92

(Tex. App.—Amarillo 1989, no writ).

       Vasquez asserts the trial court and TWC applied the wrong standard of misconduct to

Vasquez; thus, TWC’s decision was unreasonable, arbitrary, and capricious. Vasquez argues

that “misconduct” requires a showing of intent, citing Mercer v. Ross, 701 S.W.2d 830 (Tex.

1986) and Texas Employment Commission v. Torres, 804 S.W.2d 213 (Tex. App.—Corpus

Christi 1991, no writ), as authority to support his position. Both cases are distinguishable.



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Mercer states “mismanagement, not misconduct in general, requires intent.”          Mercer, 701

S.W.2d at 831.     Mismanagement, however, is only one of the prohibited acts constituting

misconduct. TEX. LAB. CODE ANN. § 201.012 (Vernon 2006) (defining misconduct). In Torres,

on the other hand, the court did not find misconduct by the employee, but held the employee’s

discharge was due to neglect. Torres, 804 S.W.2d at 216. In the present case, TWC found:

       that the greater weight of the evidence supports the employer’s version of the
       facts because it was corroborated by the testimony of a firsthand witness. Based
       on the foregoing, the evidence presented establishes the claimant failed to perform
       his assigned job duties when he did not properly clean the walls in the hallway.
       Because failure to properly perform job duties is misconduct under the above
       Commission precedent, and as the claimant had previously been warned for the
       same offense, the claimant committed work connected misconduct.

TWC did not find negligent conduct, thus Torres is inapplicable. We decline to require a

showing of intent for a violation of a company rule where none is required under the statute. We

hold that misconduct consisting of the violation of a rule or policy does not require evidence of

intent under the terms of the statute. With that holding in mind, we turn to the summary

judgment evidence before the trial court to determine if there was some evidence to support

TWC’s ruling.

A. Summary Judgment

       In his second issue on appeal, Vasquez argues that because substantial evidence was not

presented to support a finding of misconduct, the trial court erred in granting TWC’s motion for

summary judgment and in denying his motion for summary judgment. The only issue before the

trial court was the legal question of whether TWC acted reasonably in denying Vasquez’s claim

for unemployment benefits. See Hunnicutt, 988 S.W.2d at 708 (“[T]he issue is whether the

evidence introduced before the trial court shows facts in existence at the time of the TEC’s

decision that reasonably support the decision.”).




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       We must determine whether the summary judgment evidence established, as a matter of

law, that substantial evidence existed to support TWC’s decision. TWC specifically found that

Vasquez engaged in work related misconduct and was, therefore, not eligible for unemployment

benefits. See TEX. LAB. CODE ANN. § 207.044(a) (Vernon 2006) (“An individual is disqualified

for benefits if the individual was discharged for misconduct connected with the individual’s last

work.”).

       In its decision denying Vasquez benefits, TWC acknowledged the conflicting testimony.

The question is not whether there was conflicting evidence before TWC, but whether its denial

of benefits was supported by more than a scintilla of evidence. See Olivarez, 693 S.W.2d at 932;

Brinkmeyer, 662 S.W.2d at 956. The evidence established that prior to Merchants taking over

the maintenance contract of the mall, Vasquez received commendations for positive job

performance. However, during his last year of employment, Vasquez’s supervisors documented

his poor performance on several occasions.

       September 25, 2005: Failure to complete his assigned tasks; warned he would be
                           discharged
       December 15, 2005: Failure to remove a stain by the security bank as requested
                           by his supervisor
       March 27, 2006:     Failure to properly clean the food court floor along the
                           front walkway; told to use mops behind the scrubber to
                           pick up the dirty water
       April 21, 2006:     Failure to satisfactorily clean glass and chrome
       June 13, 2006:      Warned that floors in the mall were very dirty and not
                           properly scrubbed
       June 20, 2006:      Warned that hallways, railings, and sides of the file were
                           not cleaned as instructed

Each report prior to June 13, 2006 was signed and acknowledged by Vasquez.

       Ledesma’s affidavit explained that Vasquez was provided with, and had access to, all of

the cleaning materials required to satisfactorily complete his job duties. Ledesma further stated

that he “had to write [Vasquez] up on more than one occasion for poor performance of his job



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duties” and that Ledesma did not remember ever giving as many warnings to any other employee

as were given to Vasquez prior to his termination. Additionally, in Montes’s affidavit, she

recalled being contacted on several occasions regarding Vasquez’s poor job performance. TWC

determined that Vasquez’s intentional violation of a direct order from his supervisor amounted to

misconduct.    As the Dallas Court of Appeals explained in Potts v. Texas Employment

Commission, 884 S.W.2d 879, 882 (Tex. App.—Dallas 1994, no writ), if any reasonable person

could have come to the same conclusion, regardless of the grounds on which the decision is

based, TWC’s decision should be upheld. Id.

        The documents admitted into evidence establish that there was some evidence that

Vasquez failed to respond to a directive from his supervisor—to clean the brown circular stains.

This evidence constitutes insubordination, a terminable offense according to Merchants’ policies.

Vasquez failed to carry his burden to establish that TWC’s determination was not supported by

substantial evidence. Accordingly, we hold there was substantial evidence to support TWC’s

denial of benefits to Vasquez as a matter of law and therefore, the trial court did not err in

granting summary judgment on behalf of the appellees.

B. Employer Under the Texas Unemployment Compensation Act

        Finally, Operations Manager Pat Montes asserts that because she is not an employer

under the Texas Labor Code, she is not personally subject to the Texas Unemployment

Compensation Act (TUCA). We agree. The TUCA provides “‘employer’ means an employing

unit that:”

              (1) paid wages of $1,500 or more during a calendar quarter in the current
              or preceding calendar year; or
               (2) employed at least one individual in employment for a portion of at
              least one day during 20 or more different calendar weeks of the current or
              preceding calendar year.




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TEX. LAB. CODE ANN. § 201.021(a) (Vernon 2006).          The TUCA further provides that an

“‘[e]mploying unit’ means a person who . . . has employed an individual to perform services for

the person in this state.” Id. § 201.011(11).

       The testimony is uncontroverted that Vasquez was employed by Merchants and that Pat

Montes was the operations manager of Merchants. Montes was an employee of Merchants, not

the owner. Vasquez was never employed by Montes and she never personally paid Vasquez

wages for any services performed for her as her employee. Id. She was, therefore, not his

employer and not subject to the TUCA. As such, the trial court properly granted summary

judgment as to Appellee Pat Montes.

                                           CONCLUSION

       The trial court correctly found substantial evidence existed to support TWC’s denial of

benefits.   The appellees established that there was substantial evidence to support TWC’s

decision as a matter of law. Vasquez’s summary judgment evidence did not raise a genuine issue

of material fact. Thus, the trial court correctly granted summary judgment for the appellees and

denied summary judgment to Vasquez. Accordingly, the judgment of the trial court is affirmed.




                                                 Rebecca Simmons, Justice




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