
                           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.



