                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-09-221-CV


BRUCE A. ADES                                                   APPELLANT

                                       V.

TEXAS WORKFORCE                                                  APPELLEES
COMMISSION AND TXU
MINING SERVICES COMPANY

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          FROM THE 362ND DISTRICT COURT OF DENTON COUNTY

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                        MEMORANDUM OPINION 1

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                               I. INTRODUCTION

     This is an unemployment compensation appeal. In two issues, Appellant

Bruce A. Ades, pro se, appeals the trial court’s grant of summary judgment in




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         … See Tex. R. App. P. 47.4.
favor of Appellees Texas Workforce Commission (“TWC”) and TXU Mining

Services Company (“Luminant”).2 We will affirm.

                               II. B ACKGROUND

      Ades worked for Luminant from April 16, 2007, to October 15, 2007.

Luminant has a Code of Conduct that prohibits employees from withholding or

giving false or misleading information during an investigation. On September

20, 2007, Ades instructed Luminant employee Gerald Haupt to purchase a

42-inch flat-screen television for the mine facility where they worked. Ades

told Haupt that Operations Manager Ricky Godwin had authorized the purchase.

Haupt purchased the television from Wal-Mart using a company credit card, and

Ades directed Colby Guest, a third-party vendor, where to mount the television

at Luminant’s facility. As it turns out, neither Godwin nor other management

gave Ades or any other employee permission to purchase the television, which

was returned the following day. Luminant conducted an investigation into the

unauthorized purchase of the television, and Ades denied having any knowledge

or involvement in the purchase. Luminant, however, determined that Ades had




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      … We refer to TXU Mining Services Company as “Luminant” because
Luminant Mining Services Company stated in its original answer that it had
been incorrectly sued by Ades as “TXU Mining Services Company.” TWC
contends similarly and refers to TXU Mining Services Company as “Luminant”
throughout its brief, which Luminant adopted.

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in fact been involved in the purchase of the television; it therefore discharged

him from employment for violating its Code of Conduct for providing false

information in an investigation.

      TWC initially approved Ades’s claim for unemployment compensation

benefits.   Luminant appealed, and an appeal tribunal affirmed the initial

decision. Luminant appealed the tribunal’s decision, and TWC reversed the

tribunal, determining that Ades was disqualified from receiving benefits because

he had been discharged for misconduct connected with his employment. See

Tex. Lab. Code Ann. § 207.044(a) (Vernon 2006). Ades timely filed a petition

for a trial de novo against TWC and Luminant in the district court. The trial

court granted TWC and Luminant’s joint motion for summary judgment,

concluding that substantial evidence supported TWC’s decision to deny Ades

unemployment compensation benefits.

                III. A DES C HALLENGES THE S UMMARY J UDGMENT

      In two issues, which we address together, Ades argues that the trial

court erred by granting TWC and Luminant’s joint motion for summary

judgment because substantial evidence does not, as a matter of law, support

TWC’s determination that he is statutorily disqualified from receiving

unemployment compensation benefits for committing misconduct.




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      A.    Substantial Evidence Review

      The trial court reviews a TWC decision regarding benefit payments

de novo to determine whether there is substantial evidence to support that

decision. Id. § 212.202(a) (Vernon 2006); 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; the trial court must determine

whether reasonable minds could have reached the same conclusion that TWC

reached. Collingsworth Gen. Hosp. v. Hunnicut, 988 S.W.2d 706, 708 (Tex.

1998); see Dotson v. Tex. State Bd. of Med. Exam’rs, 612 S.W.2d 921, 922

(Tex. 1981). If substantial evidence supports either an affirmative or a negative

determination of a former employee’s entitlement to collect unemployment

compensation benefits, the trial court must allow TWC’s order to stand.

Edwards v. Tex. Employment Comm’n, 936 S.W.2d 462, 465 (Tex. App.—Fort

Worth 1996, no writ) (stating that if a trial court finds substantial evidence to

support TWC’s ruling, it must yield to the discretion exercised by TWC in

making the ruling); see Firemen’s and Policemen’s Civil Serv. Comm’n v.

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

evidence review).




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      TWC’s determination carries a presumption of validity, and whether the

decision is supported by substantial evidence is strictly a question of law.

Mercer, 701 S.W.2d at 831; City of Houston v. Morris, 23 S.W.3d 505, 508

(Tex. App.—Houston [1st Dist.] 2000, no pet.). Substantial evidence is more

than a mere scintilla of evidence but less than a preponderance of evidence;

consequently, the evidence may preponderate against TWC’s decision but still

amount to substantial evidence. City of Houston v. Tippy, 991 S.W.2d 330,

334 (Tex. App.—Houston [1st Dist.] 1999, no pet.).

      The party seeking to set aside the decision has the burden of showing

that it is not supported by substantial evidence. Mercer, 701 S.W.2d at 831.

The trial court may not set aside a TWC decision merely because there was

conflicting or disputed testimony or because the court would reach a different

conclusion.   Hunnicut, 988 S.W.2d at 708; Goettman v. Tex. Workforce

Comm’n, No. 02-02-00073-CV, 2003 WL 1090521, at *3 (Tex. App.—Fort

Worth Mar. 13, 2003, no pet.) (mem. op.). Rather, the court may only set

aside TWC’s decision if it finds that the decision was made without regard to

the law or the facts and, therefore, was unreasonable, arbitrary, or capricious.

Mercer, 701 S.W.2d at 831; Tippy, 991 S.W.2d at 334.




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      B.    Summary Judgment

      In a summary judgment case, the issue on appeal is whether the movant

met the summary judgment burden by establishing that no genuine issue of

material fact exists and that the movant is entitled to judgment as a matter of

law. Tex. R. Civ. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211,

215 (Tex. 2002); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671,

678 (Tex. 1979). The burden of proof is on the movant, and all doubts about

the existence of a genuine issue of material fact are resolved against the

movant. Sw. Elec. Power Co., 73 S.W.3d at 215. We take as true all evidence

favorable to the nonmovant, and we indulge every reasonable inference and

resolve any doubts in the nonmovant’s favor.         Valence Operating Co. v.

Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Evidence that favors the movant’s

position will not be considered unless it is uncontroverted. Great Am. Reserve

Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965).

But we must consider whether reasonable and fair-minded jurors could differ in

their conclusions in light of all of the evidence presented. See Wal-Mart Stores,

Inc. v. Spates, 186 S.W.3d 566, 568 (Tex. 2006); City of Keller v. Wilson, 168

S.W.3d 802, 822–24 (Tex. 2005).

      Appeals under substantial evidence review are uniquely suited to

summary judgment because the only issue before the court is a question of law.

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Arrellano v. Tex. Employment Comm’n, 810 S.W.2d 767, 771 (Tex. App.—San

Antonio 1991, writ denied). Our task 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 Commc’ns, Inc.

v. Lunsford, 906 S.W.2d 537, 542 (Tex. App.—Dallas 1995, no writ).

      C.    Substantial Evidence Supports TWC’s Decision as a Matter of Law

      The Texas Unemployment Compensation Act’s intent is to compensate

those who become unemployed through no fault of their own. Hunnicut, 988

S.W.2d at 709–10. 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). “Misconduct” means “misman-

agement 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.”            Id.

§ 201.012(a) (emphasis added).

      TWC and Luminant attached evidence to their joint motion for summary

judgment that showed the following:       Luminant’s Code of Conduct was

adopted to ensure the orderly work and safety of its employees; Luminant’s

employees are expected to follow the Code of Conduct; a violation of the Code

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of Conduct can lead to disciplinary action or immediate termination; Ades

electronically signed an “Acknowledgment and Certification of Compliance”

indicating that he had read and understood the Code of Conduct; Ades

instructed Haupt to purchase a television for the mining facility; before

purchasing the television with the company credit card, Haupt called Ades to

confirm that the purchase had been authorized, and Ades assured Haupt that

the purchase had been approved; Ades directed Guest where to mount the

television at Luminant’s facility; Operations Manager Godwin did not give Ades

permission to purchase the television; when Luminant investigated the

unauthorized television purchase, Ades denied having any knowledge or

involvement in the purchase; Luminant terminated Ades’s employment because

he provided false information during a company investigation, which is a

violation of Luminant’s Code of Conduct.     TWC and Luminant’s summary

judgment evidence thus shows that Ades committed misconduct connected

with his work because he violated Luminant’s Code of Conduct, which was

adopted to ensure the orderly work and safety of its employees, when he

provided false information in the course of Luminant’s investigation. See Tex.

Lab. Code Ann. § 207.044(a).      The facts constituting Ades’s misconduct,

which were in existence at the time of TWC’s decision, reasonably support its




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determination   that   Ades   is   disqualified   from   receiving   unemployment

compensation benefits. See id.; Hunnicut, 988 S.W.2d at 708.

      Ades argues that the question before the trial court was “did [he] lie

during the investigation[,] and is that sufficient to rise to the level of

misconduct.” But this was not the “question” before the trial court because

TWC was the primary fact-finding body, not the trial court. See Brinkmeyer,

662 S.W.2d at 956. The issue before the trial court was strictly one of law:

whether substantial evidence supports TWC’s decision to deny benefits to

Ades. See Tex. Lab. Code Ann. § 212.202(a); Mercer, 701 S.W.2d at 831.

Ades also challenges TWC and Luminant’s factual allegations that he committed

misconduct, but mere conflicts in the evidence do not permit the trial court to

set aside TWC’s determination under the substantial evidence standard. See

Hunnicut, 988 S.W.2d at 708.           Further, Ades responded to TWC and

Luminant’s joint motion for summary judgment with a “Motion to Deny

Defendants’ Motion for Summary Judgment,” but he did not attach any

evidence to the motion. To the extent Ades references evidence in his brief

that is not part of the summary judgment record, that evidence does not

support Ades’s argument because we are required to look at the evidence

presented at the trial de novo, not at the record created by the TWC. See

Mercer, 701 S.W.2d at 831.

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      We hold that Ades failed to demonstrate that TWC’s decision was made

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

arbitrary, or capricious.   We further hold that the trial court did not err by

concluding that the summary judgment evidence established as a matter of law

that substantial evidence existed to support TWC’s determination that Ades is

statutorily disqualified from receiving unemployment compensation benefits for

committing misconduct; reasonable minds could have reached the same

conclusion as TWC—that Ades violated Luminant’s Code of Conduct for giving

false information during an investigation. See Hunnicut, 988 S.W.2d at 708;

Dotson, 612 S.W.2d at 922. We overrule Ades’s two issues.

                                 IV. C ONCLUSION

      Having overruled Ades’s two issues, we affirm the trial court’s judgment.


                                            PER CURIAM

PANEL: MEIER, WALKER, and MCCOY, JJ.

DELIVERED: October 22, 2009




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