                                  In The
                             Court of Appeals
                    Seventh District of Texas at Amarillo
                             ________________________

                                 No. 07-12-00207-CV
                             ________________________

        TEXAS WORKFORCE COMMISSION AND TEXAS COMMISSION ON
                ENVIRONMENTAL QUALITY, APPELLANTS

                                            V.

                             ELNORA MOSES, APPELLEE



                           On Appeal from the 21st District Court
                                     Lee County, Texas
               Trial Court No. 14, 530; Honorable Terry Flenniken, Presiding


                                    August 29, 2013

                           MEMORANDUM OPINION
                  Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

      Appellants, Texas Workforce Commission (TWC) and Texas Commission on

Environmental Quality (TCEQ), appeal from a judgment in favor of Appellee, Elnora

Moses, on her claim for unemployment benefits. In support, Appellants assert the trial

court erred in reversing their denial of Moses’s claim because there was substantial
evidence she was disqualified from receiving benefits. We reverse the trial court’s

judgment and render judgment affirming the decision of TWC.


                                      BACKGROUND


      In July 2009, Moses, a TCEQ air examiner, reported to her supervisor, Alyssa

Taylor, that she believed a lack of sleep was affecting her work performance. Moses

attributed her lack of sleep to being sexually assaulted while she slept at night and she

accused three co-workers. According to Moses, despite placing additional locks on her

doors and bars on her windows, the sexual assaults had continued. She videotaped

herself while she slept but only she appeared on the videotapes. She also told Taylor

she owned a firearm and recounted an incident where she ran outside her apartment at

night waving her gun after she thought she heard something.          Taylor reported this

information to Human Resources and the legal department of TCEQ.


      Moses later filed a sexual harassment complaint against the three co-workers

and, in August of 2009, gave a similar account of sexual assaults to Melissa Applegate,

a Human Resources Director. Considering the efforts Moses undertook to secure her

apartment and the videotape results, Applegate believed her allegations were

implausible.   In the meantime, Moses had also complained to the police but, upon

investigation, they too found the allegations implausible and did not open a case file. As

a part of that investigation, Moses was given a sexual assault examination at a hospital,

but the results were negative.


      In September, Applegate met with Moses and advised her that she was

prohibited from confronting co-workers with her sexual assault allegations.         Tony

                                            2
Walker, a regional manager, also met with Taylor and Moses. He informed Moses that,

after investigation, her allegations were found to be unsubstantiated. Moses expressed

dissatisfaction with the handling of her complaint and believed more should be done.

Walker advised Moses to speak to her supervisor if she needed to speak about her

allegations and ordered her not to discuss the nature of her complaints with any staff

and not to confront the three co-workers. Taylor indicated that speaking to her co-

workers about the sexual assault allegations was destructive to the work environment

and, so long as the complaints were unsubstantiated, amounted to no more than

gossip.


      In October, Moses confronted a co-worker against whom she had made a sexual

assault complaint. The co-worker was very upset and complained to Taylor. Taylor

considered Moses a disruptive influence in the office and was concerned about the

safety of her co-workers. She was also concerned about Moses’s mental stability and

believed she needed the assistance of a mental health expert. Because Moses had

disobeyed a direct order to not speak to co-workers about her sexual assault

complaints, she was placed on disciplinary probation from October 5, 2009 through April

5, 2010. She was also sent home and given an opportunity to receive counseling

through the Employee Assistance Program (EAP). As part of her probation, Moses was

required to obtain a Return to Work Certification (RWC) before returning to work. She

was also warned that failure to adhere to the probation requirements could result in

termination.




                                          3
       In December, Dr. Strange, an EAP counselor for TCEQ’s independent contractor

for personnel services, Deer Oaks, issued a RWC to Moses. Among other things, the

RWC required that Moses not converse with known affiliates of TCEQ regarding her

complaints without first obtaining Taylor’s approval (RWC #3) and she was to undergo a

psychiatric evaluation within the next six months (01/01/10-07/01/10) ruling out

parasomnia, borderline personality disorder, and dissociative identity disorder (RWC

#5).


       Dr. Strange defined parasomnia as a sleep disorder where peculiar events occur

that interrupt sleep; borderline personality disorder as a condition which is often related

to anger issues associated with delusional characteristics or approaches to people; and

dissociative identity disorder as a condition where persons sometimes do not know who

they are for periods of time. He testified he would not include any of the disorders in a

RWC unless he had serious concerns whether the person suffered from the disorder.

He opined that persons with borderline personality disorder might possibly be

dangerous to themselves and others and, like dissociative identity, prone to bizarre

behavior. He also testified he would be concerned if someone with any of the disorders

owned a firearm.


       When Moses returned to work in January of 2010, Taylor discussed the RWC’s

conditions with her numerous times. Evelyn Baker, Employee Relations Coordinator,

testified Moses often questioned why she had to take a battery of tests in connection

with RWC #5, the condition requiring psychiatric evaluation. Baker told Moses that the

condition was a requirement to be completed before she returned to work. Baker then

set Moses up with a number of psychiatrists who provided such tests. She also advised

                                            4
Moses that she could share Dr. Strange’s report, as well as Deer Oaks’ information,

with the psychiatrists but reiterated that Moses was not to discuss her sexual assault

allegations with other employees. Moses later reported to Baker that the psychiatrist did

not perform the tests or cancelled her appointments for a variety of reasons.


      In February, Wendy Bass, Fleet Property Manager, started receiving weekly

visits from Moses. When Moses informed Bass that male co-workers were stalking her,

Bass suggested she go to Human Resources, however, Moses told her she had already

been and they were no help.


      In April, Taylor met with Moses to discuss her progress under the RWC and

extend her probation period until July 1. Taylor was concerned Moses was exhibiting

signs indicative of workplace violence per the TCEQ’s policies. She believed Moses

was paranoid about persons from her workplace following her home and sexually

assaulting her in her sleep, and that she was desperate over recent personal issues.

She also believed Moses was exhibiting an escalating emotional state and displaying

anger over how her sexual assault complaints had been handled. Moses commented to

Taylor several times that “she felt she was going to have to take matters into her own

hands and be the aggressor.” Other employees observed Moses in the parking lot

walking alone while having animated conversations with herself. Taylor felt personally

threatened by Moses and was concerned for her co-workers’ safety. Also in April, Bass

indicated Moses came to her office upset and angry because her probation was

extended to July to allow her additional time to comply with RWC #5.




                                            5
      In May, Bass was visited again by Moses.         Moses told her that male staff

members had again broken into her apartment and sexually assaulted her.            She

accused specific employees and provided details that made Bass very uncomfortable.

On one occasion, Moses came into Bass’s office very upset and said “they” were

worried she was going to go postal because she knew how to use a gun and went to a

shooting range. Moses indicated she was skilled with a gun. Later, when Bass was

passing through the front office, she observed Moses sitting with another employee who

appeared distraught and realized she was not the only person affected by Moses’s

behavior. The weekly conversations disrupted her ability to do her work and made her

uncomfortable. She also believed Moses presented a danger to other people at work

and decided to speak with Walker.


      In late June, Moses testified she underwent a psychiatric examination at the John

Peter Smith Emergency Room. She didn’t take her RWC but discussed its contents

with the doctors. She did not disclose Dr. Strange’s report or any information from Deer

Oaks. When Taylor subsequently sought to determine her fitness to return to work by

seeking a medical release to verify the psychiatric examination, Moses refused because

she “didn’t feel it was necessary and [she] didn’t trust them.” Shortly after Bass spoke

to Walker, Moses was terminated for (1) violating RWC #3 (requiring her to not discuss

her allegations of sexual assault with affiliates of TCEQ) and (2) failing to complete

RWC #5 (requiring her to submit to a psychiatric examination). Following her discharge,

additional security measures were put in place at TCEQ’s regional office because of

concerns Moses might take some kind of action.




                                           6
         Moses’s application for unemployment benefits was subsequently denied by a

hearing officer because she “was discharged for misconduct connected with [her] last

work.”    TEX. LAB. CODE ANN. § 207.044(a) (West 2006).        She appealed the initial

determination to TWC’s Appeal Tribunal. See TEX. LAB. CODE ANN. § 212.051, 212.102

(West 2006). The Appeal Tribunal upheld the hearing officer’s decision to deny benefits

and Moses appealed the Tribunal’s decision to TWC.         See TEX. LAB. CODE ANN. §

212.151(2) (West 2006).       TWC subsequently affirmed the Tribunal’s decision and

Moses filed suit for judicial review of TWC’s decision in district court. See TEX. LAB.

CODE ANN. § 212.201(a) (West 2006). After a bench trial, the trial court reversed TWC’s

decision and awarded unemployment benefits to Moses. TWC and TCEQ now bring

this appeal.


                                       DISCUSSION


         Appellants contend the trial court erred in rendering judgment in Moses’s favor

because there was substantial evidence to support TWC’s decision that Moses

engaged in misconduct connected with her work thereby disqualifying her for

unemployment benefits. See TEX. LAB. CODE ANN. § 207.044(a) (West 2006). We

agree.


         STANDARD OF REVIEW


         The trial court reviews TWC’s decision de novo to determine whether there is

“substantial evidence” to support the decision. TEX. LAB. CODE ANN. § 212.202(a) (West

2006).     See Mercer v. Ross, 701 S.W.2d 830, 831 (Tex. 1986).          In making this

determination, the issue is not whether TWC made the correct decision; it is instead

                                            7
“whether the evidence introduced before the trial court shows facts in existence at the

time of the [TWC’s] decision that reasonably support the decision,” that is, whether

reasonable minds could have reached the same conclusion.             Blanchard v. Brazos

Forest Products, L.P. and Tex. Workforce Comm’n, 353 S.W.3d 569, 572 (Tex.App.—

Fort Worth 2011, pet. denied) (quoting Collingsworth Gen. Hosp. v. Hunnicutt, 988

S.W.2d 706, 708 (Tex. 1998)). Because substantial evidence is more than a mere

scintilla but less than a preponderance of evidence, 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.).


      Further, the “[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.” Tex. Workforce Comm’n v. BL II Logistics, L.L.C., 237 S.W.3d 875, 881

(Tex.App.—Texarkana 2007, no pet.) (quoting Firemen’s & Policemen’s Civil Serv.

Comm’n v. Brinkmeyer, 662 S.W.2d 953, 956 (Tex. 1984)). Thus, TWC remains the

primary fact-finding body, and the reviewing court may not substitute its judgment for

TWC’s on controverted fact issues. BL II Logistics, L.L.C., 237 S.W.3d at 878; Edwards

v. Tex. Emp’t Comm’n, 936 S.W.2d 462, 465 (Tex.App.—Fort Worth 1996, no writ).

Because the determination of whether TWC’s decision was supported by substantial

evidence is a question of law, we review de novo the trial court’s determination. BL II

Logistics, L.L.C., 237 S.W.3d at 878 (citing El Paso Natural Gas Co. v. Minco Oil & Gas,

Inc., 8 S.W.3d 309, 312 (Tex. 1999)).


      TWC’s ruling also carries a presumption of validity, and the party seeking to set it

aside has the burden to show it was not supported by substantial evidence. Hunnicutt,

                                            8
988 S.W.2d at 708. Thus, the party seeking to overturn TWC’s decision must produce

evidence that conclusively negates all reasonable support for the agency’s decision—on

any ground offered. BL II Logistics, L.L.C., 237 S.W.3d at 880.     Accordingly, we may

only set aside TWC’s decision if it was made “without regard to the law or the facts, and,

therefore, was unreasonable, arbitrary, or capricious.” Mercer, 701 S.W.2d at 831.


      UNEMPLOYMENT BENEFITS


      An employee is “disqualified for benefits if [he or she] was discharged for

misconduct connected with [the employee’s] last work.”          TEX. LAB. CODE ANN. §

207.044(a) (West 2006). “Misconduct” is defined 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 the law, or

violation of a policy or rule adopted to ensure the orderly work and safety of

employees.” TEX. LAB. CODE ANN. § 201.012(a) (West 2006).


      “Misconduct” includes conduct that is disruptive or insubordinate; Burton v. Tex.

Employ. Comm’n, 743 S.W.2d 690, 693 (Tex.App.—El Paso 1987, writ denied), or

causes an employer concern for co-workers’ safety. Hunnicutt, 988 S.W.2d at 709-10.

In making our determination whether an employee engaged in “misconduct,” we focus

on the adverse impact of an employee’s conduct on the employer and the purpose of

the Unemployment Compensation Act. Tippy, 991 S.W.2d at 336. See Hunnicutt, 988

S.W.2d at 710 (The Act’s “intent and purpose [is] to provide compensation for workers

who are unemployed through no fault of their own.”) There is no requirement that an

employer show the misconduct negatively affected the employee’s work. Murray v. Tex.


                                            9
Workforce Comm’n, 337 S.W.3d 522, 525 (Tex.App.—Dallas 2011, no pet.).                              The

“connected with” requirement may be established by evidence that one or more acts of

employee misconduct occurred while the employee was on duty or occurred on the

employer’s premises. Hunnicutt, 988 S.W.2d at 709.


        Here, Moses engaged in insubordination when she violated RWC #3 and #5.

Despite numerous warnings, she conversed with at least one co-worker about her

complaint that male employees were sexually assaulting her in her sleep and she failed

to provide verification that she underwent a psychiatric evaluation for certain disorders

within the designated time period. 1 Her generalized threats and references to her skill

with a firearm also created a legitimate concern among her supervisors for the safety of

her co-workers.        Further, given the ample time she was allowed to make an

appointment and submit a report in compliance with RWC #5, we find TCEQ’s response

was not arbitrary and unreasonable. She was advised early on and throughout her

probationary period that continued employment depended on her full cooperation and

compliance with the RWC’s conditions.                Accordingly, we find there is substantial

evidence in the record that Moses was terminated because she engaged in

“misconduct” that was “connected with” her work at TCEQ’s regional office.                          See

Hunnicutt, 988 S.W.2d at 709-10. Appellant’s single issue is sustained.




1
 Moses’s conduct was also subject to TCEQ policies regarding professional conduct that prohibited
employees from disrupting others with rudeness or gossip, engaging in disrespectful and insubordinate
conduct, and threatening any employee or member of the public. Her conduct was also subject to
policies regarding workplace violence that prohibited employees from engaging in verbal threats or taking
physical actions which create a security hazard for others in the workplace.

                                                   10
                                    CONCLUSION


      The trial court’s judgment is reversed and a judgment affirming the decision of

TWC is rendered.


                                              Patrick A. Pirtle
                                                  Justice




                                         11
