Texas Workforce Com'n v. City of Houston

• Decision Date: 23 October 2008
• Docket Number: No. 01-07-01100-CV.,01-07-01100-CV.
• Citation: 274 S.W.3d 263
• Parties: TEXAS WORKFORCE COMMISSION, Appellant, v. The CITY OF HOUSTON, Appellee.
• Court: Texas Court of Appeals

274 S.W.3d 263

TEXAS WORKFORCE COMMISSION, Appellant, v. The CITY OF HOUSTON, Appellee.

No. 01-07-01100-CV.

Court of Appeals of Texas, Houston (1st Dist.).

October 23, 2008.

Anthony Aterno, Assistant Attorney General, Senior Attorney, TWVC Section, Austin, TX, for Appellant.

Timothy J. Higley, City of Houston Legal Department, Senior Assistant City Attorney, Houston, TX, for Appellee.

Panel consists of Chief Justice RADACK and Justices NUCHIA and HIGLEY.

OPINION

SHERRY RADACK, Chief Justice.

The Texas Workforce Commission (TWC) appeals the trial court's summary judgment reversing TWC's decision that Sally Trimble was entitled to receive unemployment compensation. We reverse and render judgment for TWC.

BACKGROUND

Factual Background

Sally R. Trimble began working for the Houston Fire Department (HFD) on March 22, 2004. At the time she was hired, and as a condition of her employment, Trimble was told that she would have to successfully complete firefighter training in accordance with section 6.13 of the HFD Code of Conduct, entitled "Skills Proficiency." Trimble acknowledged receipt of the HFD Code of Conduct. Trimble was aware that in order to become a Houston firefighter, she had to pass the Houston Community College ("HCC") fire-training program.

On December 15, 2004, Trimble presented HFD with a statement from her physician indicating that she was unable to work from December 14-16, 2004. The physician indicated that, thereafter, Trimble could return to "desk work" until December 20, 2004.

On December 22, 2004, Trimble failed to complete the "air pack maze evolution,"¹ which was required to successfully complete the fire-training program at HCC. The lead instructor at HCC, John Mitchell, gave Trimble two opportunities to complete the maze, but she failed on both attempts.² On December 28, 2004, Mitchell sent a letter to Deputy Chief Josef Gregory requesting that Trimble be removed from his class.

Trimble met with Deputy Chief Gregory on December 29, 2004. Gregory told Trimble that she had two options—resign and reapply at a later date or be terminated. Trimble refused to resign and told Gregory that she would rather receive unemployment benefits than resign. Trimble never returned to work after her meeting with Gregory.

The next day—December 30, 2004— Gregory sent a letter to Assistant Chief John Flanagan recommending that Trimble's employment be terminated that same day. On February 1, 2005, Fire Chief Phil Boriskie terminated Trimble "for failure to complete the air pack maze skills portion of fire training."

Procedural Background

Trimble's initial claim for unemployment benefits was denied. She appealed the initial determination to the Appeals Tribunal. See TEX. LAB.CODE ANN. § 212.102 (Vernon 2006). The Appeals Tribunal ruled in Trimble's favor and reversed the initial determination denying her benefits. In so doing, the Appeals Tribunal issued the following findings of fact and conclusions of law:

On December 29, 2004 the claimant was given the option by her employer to either resign or be terminated. The claimant had been unable to complete a training course that was mandatory for completing the firefighter trainee program. The claimant had the option to resign and reapply at a later date or be terminated and not have the option to reapply at a later date. Either choice would result in the claimant being separated from work by the employer. The claimant chose to be terminated. The claimant had ongoing health problems, including bronchitis and sinusitis, throughout the course of the training program that hindered her ability to complete the physical training.

The claimant testified and provided documentation from her physician as evidence of her illnesses and the limitations her health problems placed on her ability to perform and contributed significantly to her inability to complete the training course in question. Because the claimant could not complete the physical training course requirement due to illness does not constitute misconduct connected with the work. Therefore, it is concluded that the employer has failed to provide evidence sufficient to support a finding by a preponderance of the evidence of misconduct connected with the work and that the claimant was terminated for reasons other than misconduct connected with the work. Accordingly, the determination disqualifying the claimant for benefits beginning January 30, 2005 under Section 207.044 will be reversed.

The City appealed the Appeals Tribunal's decision to the Commission. See TEX. LAB. CODE ANN. § 212.151(2) (Vernon 2006). The Commission affirmed the Appeals Tribunal's decision awarding Trimble benefits and adopted the Appeals Tribunal's findings of facts and conclusions of law. The City then filed a suit for judicial review of TWC's decision in district court. See TEX. LAB.CODE ANN. § 212.201 (Vernon 2006). TWC and the City filed cross-motions for summary judgment. The trial court granted the City's motion for summary judgment and denied TWC's motion, thereby reversing TWC's determination that Trimble was entitled to receive unemployment benefits. TWC now brings this appeal.

Was there Substantial Evidence to Support TWC's Decision?

In its sole issue on appeal, TWC contends the trial court erred in rendering summary judgment in favor of the City because there was substantial evidence to support TWC's decision that Trimble did not engage in misconduct with her work, thereby disqualifying her from unemployment benefits under section 207.044 of the Labor Code.

Trial Court's Standard of Review

The trial court reviews a TWC decision de novo to determine whether there is substantial evidence to support the TWC's decision. Mercer v. Ross, 701 S.W.2d 830, 831 (Tex.1986); Texas Employment Comm'n v. Morgan, 877 S.W.2d 11, 13 (Tex.App.-Houston [1st Dist.] 1994, no pet). The trial court may hear any evidence in existence at the time of the hearing before the Appeals Tribunal regardless of whether it was introduced at the hearing. See Firemen's and Policemen's Civil Serv. Comm'n v. Brinkmeyer, 662 S.W.2d 953, 956 (Tex.1984); G.E. American Communication v. Galveston Cent. Appraisal Dist., 979 S.W.2d 761, 764 (Tex.App.-Houston [14th Dist.] 1998, no pet.). The determination of whether TWC's decision was supported by substantial evidence is a question of law. Arrellano v. Texas Employment Comm'n, 810 S.W.2d 767, 770 (Tex.App.-San Antonio 1991, writ denied).

TWC's ruling 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. Mercer, 701 S.W.2d at 831; Morgan, 877 S.W.2d at 13. The trial court may not set aside a TWC decision merely because it would reach a different conclusion. Mercer, 701 S.W.2d at 831; Morgan, 877 S.W.2d at 13-14. It may do so only if it finds the TWC's 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; Morgan, 877 S.W.2d at 14.

Appellate Court Standard of Review

The summary judgment rule provides a method of summarily ending a case that involves only a question of law and no fact issues. TEX.R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985); Cigna Ins. Co. v. Rubalcada, 960 S.W.2d 408, 411 (Tex.App.-Houston [1st Dist.] 1998, no pet.). When, as here, both sides move for summary judgment, and the trial court grants one motion and denies the other, we review the summary judgment evidence presented by both sides and determine all questions presented. See Comm'rs Ct. of Titus Cty. v. Agan, 940 S.W.2d 77, 81 (Tex.1997); Rubalcada, 960 S.W.2d at 411-12. We render such judgment as the trial court should have rendered. Agan, 940 S.W.2d at 81; Rubalcada, 960 S.W.2d at 412.

By granting summary judgment to the City, the trial court necessarily held that there was no substantial evidence to support TWC's decision. We must determine whether the City established there was no substantial evidence to support TWC's decision. We must look at the evidence presented to the trial court, and not the agency record by itself. Nuernberg v. Texas Employment Comm'n, 858 S.W.2d 364, 365 (Tex.1993); Morgan, 877 S.W.2d at 13. The record of TWC's proceeding, which was admitted as stipulated evidence by both parties, was part of the evidence considered by the trial court.

Substantial Evidence Review

Under the substantial evidence rule, the party seeking to set aside an agency's order has the burden of proving that it is not supported by substantial evidence. See Mercer, 701 S.W.2d at 831. "Substantial evidence is more than a mere scintilla, but less than a preponderance of the evidence." City of Houston v. Tippy, 991 S.W.2d 330, 334 (Tex.App.-Houston [1st Dist.] 1999, no pet.). Under this rule, if the evidence before the court, taken as a whole, is such that reasonable minds could have reached the same conclusion reached by the agency, then the order must be sustained. Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424, 441 (1946); White v. City of Dallas, 517 S.W.2d 344, 348 (Tex.Civ.App.-Dallas 1974, no writ). The court reviewing the agency's decision must not put itself in the position of the agency and substitute its findings for that of the agency, even if it concludes that the overwhelming preponderance of evidence is against the agency's decision. City of San Angelo v. Boehme Bakery, 144 Tex. 281, 190 S.W.2d 67, 70 (1945). The determination of whether an agency's decision is supported by substantial evidence is a question of law to be reviewed de novo by the district court and the court of appeals. See Thomas v. Stanolind Oil & Gas Co., 145 Tex. 270, 198 S.W.2d 420, 421 (1946).

Is the Inability to Complete Training "Misconduct"?

The Texas Unemployment Compensation Act provides, in pertinent part, the following:

(a) An individual is disqualified for benefits if the individual was discharged for misconduct...