                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-07-076-CV


MILLER OF DENTON, LTD.                                          APPELLANT

                                             V.

TEXAS WORKFORCE COMMISSION                                       APPELLEES
AND MATTHEW L. BENNETT

                                         ------------

         FROM COUNTY COURT AT LAW NO. 2 OF DENTON COUNTY

                                         ------------

                          MEMORANDUM OPINION 1

                                         ------------

I.   Background

     This is an unemployment benefits case. Co-Appellee Matthew L. Bennett

(“Bennett”) applied to Co-Appellee Texas Workforce Commission (“TWC”) for

unemployment benefits after being fired from Appellant Miller of Denton

(“Miller”). TWC originally denied Bennett benefits, but TWC’s appeal tribunal




     1
         … See T EX. R. A PP. P. 47.4.
reversed that decision and determined that Bennett was not guilty of

misconduct connected with his work as a delivery driver.

      Bennett was making a delivery to a Wal-Mart store located in The Colony,

Texas, when the events that led to him being fired from Miller occurred. Ms.

Coxsey, an employee of Wal-Mart, testified at trial that Bennett had touched

her in an unwanted and inappropriate manner—causing her to hit Bennett.

Specifically, Coxsey complained that Bennett had shoved a candy wrapper

down the front of her blouse. Bennett on the other hand, testified that he had

merely placed a candy wrapper on Coxsey’s shoulder as a joke. Coxsey told

her manager of the incident, and Wal-Mart informed Miller that Bennett would

not be allowed back into Wal-Mart. Furthermore, Wal-Mart informed Miller that

if Miller continued to employ Bennett, Miller could lose Wal-Mart as a customer.

The loss of Wal-Mart as a customer would have been a substantial loss of eight

percent of Miller’s sales as a beer delivery service.

      Miller conducted an investigation into the events between Coxsey and

Bennett and determined that Bennett had conducted himself in an inappropriate

manner. Miller fired Bennett and Bennett filed for unemployment benefits with

TWC. In response, Miller filed its “Employer response to Notice of Application”

stating its reason for dismissing Bennett:

      [Bennett] conducted himself in a manner that adversely affected
      the company’s best interest and reputation. [Bennett] touched a
      back door employee of an account in an inappropriate manner.

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      [Coxsey] felt [Bennett] sexual[ly] assaulted her after she told him
      to stop. [Bennett] was terminated immediately.

      After TWC’s appeal tribunal determined that Bennett was not guilty of

misconduct, and therefore entitled to unemployment benefits, Miller appealed

TWC’s decision to the county court at law. Miller’s petition stated that the

TWC’s appeal tribunal’s findings of fact and conclusions of law were

erroneously based on the wrong employer policy. Specifically, Miller contended

that TWC’s decision was based on Miller’s sexual harassment policy as

opposed to Miller’s policy regarding misconduct adversely affecting the

company’s best interest and reputation. After a non-jury trial, the trial court

entered a judgment affirming TWC’s decision. Miller appealed.

II.   Miller’s Points of Error

      In three points, Miller challenges the trial court’s judgment. First, Miller

argues that the trial court erred in upholding TWC’s decision because

substantial evidence shows that Bennett was properly terminated for

misconduct as a matter of law and, therefore, a reasonable mind could not

agree with TWC’s ruling or the ruling of the trial court. Second, Miller argues

that the trial court incorrectly upheld TWC’s decision because there was not

substantial evidence to support that decision; therefore, the decision was

unreasonable, arbitrary, and capricious. Finally, Miller argues that the trial court

and TWC relied on the wrong employer policy, ignored the Texas Labor Code’s



                                         3
definition of misconduct, and applied the wrong standard for misconduct. We

affirm.

III.   Standard of Review

       Judicial review of an administrative decision regarding a former

employee’s right to unemployment benefits requires a trial de novo with

substantial evidence review. T EX. L AB. C ODE A NN. § 212.202 (Vernon 2006);

Collingsworth Gen. Hosp. v. Hunnicutt, 988 S.W.2d 706, 708 (Tex. 1998);

Mercer v. Ross, 701 S.W.2d 830, 831 (Tex. 1986); Edwards v. Tex.

Employment Comm’n, 936 S.W.2d 462, 465 (Tex. App.—Fort Worth 1996, no

writ). Under this standard, TWC’s ruling is presumptively valid, which places

the burden on the party challenging the agency decision. Collingsworth Gen.

Hosp., 988 S.W.2d at 708.

       W hen the trial court examines whether there is substantial evidence to

support an agency’s decision, it determines whether reasonable minds could

have reached the same conclusion the agency reached. Dotson v. Tex. State

Bd. of Med. Exam’rs, 612 S.W.2d 921, 922 (Tex. 1981); Edwards, 936

S.W.2d at 465. While the court will hear and consider evidence to determine

whether reasonable support for the agency’s order exists, the agency remains

the primary fact finding body, and the question for the trial court is strictly one

of law.   Firemen’s & Policemen’s Civil Serv. Comm’n v. Brinkmeyer, 662

S.W.2d 953, 956 (Tex. 1984); Edwards, 936 S.W.2d at 465. The challenging

                                        4
party must therefore produce evidence that conclusively negates all reasonable

support for the agency’s decision, on any possible ground. Brinkmeyer, 662

S.W.2d at 956; Edwards, 936 S.W.2d at 465-66.

      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. Mercer, 701 S.W.2d at 831; Edwards, 936 S.W.2d at

465. Rather, if the agency heard substantial evidence supporting either an

affirmative or a negative finding, the trial court must allow the agency’s order

to stand. Mercer, 701 S.W.2d at 831; Edwards, 936 S.W.2d at 465. In fact,

because substantial evidence is more than a mere scintilla, but less than a

preponderance, the evidence may preponderate against the decision of the

agency, 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 court

may only set aside the agency’s decision if it finds the decision “to have been

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

arbitrary, or capricious.” Mercer, 701 S.W.2d at 831; Edwards, 936 S.W.2d

at 466.

IV.   Discussion

      All three of Miller’s points can be condensed into the following statement:

Considering Miller’s policies and the labor code’s definition of misconduct, no

reasonable mind could uphold TWC’s decision that Bennett’s actions did not

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adversely affect the best interest and reputation of Miller; therefore, Bennett

was properly terminated and not entitled to unemployment benefits.          We

disagree.

      The trial court found that there was substantial evidence to support

TWC’s decision that Bennett was entitled to unemployment benefits. We must

look at the evidence presented to the trial court.        Nuernberg v. Texas

Employment Comm’n, 858 S.W.2d 364, 365 (Tex. 1993). In this case, the

TWC’s appeals tribunal’s findings were admitted as evidence and considered

by the trial court; we therefore will include it as part of our review. See id.

However, the record of the TWC proceedings was not included and therefore

will not be included as part of our review. Id.

      The Texas Labor Code provides that an individual can be disqualified from

unemployment benefits if the individual was “discharged for misconduct

connected with the individual’s last work.” T EX. L AB. C ODE A NN. § 207.044(a)

(Vernon 2006).    Further, the labor code provides that misconduct means

“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.”             Id.

§ 201.012(a) (Vernon 2006). However, not every violation of an employer’s

policies will trigger denial of unemployment benefits.     Collingsworth Gen.

                                       6
Hosp., 988 S.W.2d at 709; see also Santillan v. Wal-Mart Stores, Inc., 203

S.W.3d 502, 508 (Tex. App.—El Paso 2006, pet. denied).

      Miller argues that TWC used the wrong policy to determine Bennett’s

misconduct. Miller argues that TWC used Miller’s sexual harassment policy to

make its determination, rather than the correct policy—Miller’s policy against

“misconduct of any nature adversely affecting the company’s best interest and

reputation.” Miller points to TWC’s finding that “the claimant was fired for

allegedly violating [Miller’s] sexual harassment policy.” Further, Miller points

out that TWC’s conclusion was that the “evidence establishes that the claimant

merely touched [Coxsey’s] shoulder . . . [Bennett] did not violate the employer’s

policy and therefore was not guilty of misconduct connected with work.” But,

Miller contends that Bennett was not terminated for violating the sexual

harassment policy but for misconduct relating to Miller’s best interest and

reputation policy.

      TWC and Bennett argue that Miller submitted only its sexual harassment

policy to TWC when filing its Employer response to Notice of Application. TWC

and Bennett also argue that Miller’s failure to submit its best interest policy

remains unexplained.

      Miller responds that it provided TWC with its sexual harassment policy

because when Bennett applied for unemployment benefits he told TWC he was

fired for sexual harassment. Miller further argues that it provided TWC with its

                                       7
reasoning for firing Bennett, namely, “misconduct of any nature adversely

affecting the company’s best interest and reputation.” Miller adds that it was

Bennett who confused TWC into applying the wrong policy when he filled out

his application for benefits.

      TWC and Bennett counter that regardless of which policy Miller now

wants to contend was the basis for Bennett’s firing, Miller must produce

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

decision, on any possible ground (i.e. regardless of which policy), and Miller has

failed to do so. See Brinkmeyer, 662 S.W.2d at 956. We agree.

      TWC’s appeals tribunal specifically found that Bennett “was not guilty of

misconduct connected with work.” Furthermore, the tribunal found that all

Bennett had done was “merely touched [Coxsey’s] shoulder.”            Given these

findings, we cannot conclude that Miller has conclusively negated all reasonable

support for the agency’s decision on any possible ground. With these same

facts, TWC could have also found that Bennett was not guilty of a violation of

the Miller’s best interest and reputation policy. Additionally, not every violation

of an employer’s policies will trigger denial of unemployment benefits. See

Collingsworth Gen. Hosp., 988 S.W.2d at 709. TWC could have also found

that the mere touching of Coxsey’s shoulder was insufficient to constitute




                                        8
“misconduct” under the labor code. 2 See T EX. L AB. C ODE A NN. § 201.012(a).

Based on the record before us, we hold that the trial court did not err in

concluding as a matter of law that reasonable minds could have reached the

same conclusion as TW C—that Bennett was not guilty of misconduct

connected with work and therefore entitled to benefits.

V.    Conclusion

      Having overruled Miller’s three points, we affirm the trial court’s

judgment.




                                            ANNE GARDNER
                                            JUSTICE

PANEL A:    HOLMAN, GARDNER, and MCCOY, JJ.

DELIVERED: March 27, 2008




      2
        … We do not address whether Miller’s parroting of the term
“misconduct” in its best interest and reputation policy arises to the labor code’s
definition of misconduct. See T EX. L AB. C ODE A NN. § 201.012(a); see also
Collingsworth Gen. Hosp., 988 S.W.2d at 709 (holding that not every violation
of an employer’s policies will trigger denial of unemployment benefits, rather
the violation must amount to “misconduct” as defined in the Texas Labor
Code).

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