ELIZABETH KERR JUSTICE

FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 017-286396-16 MEMORANDUM OPINION

In two issues, Bruce Fuller appeals from a summary judgment upholding the Texas Workforce Commission's denial of his application for unemployment benefits. We will affirm.

Background

In November 2004, The Neiman Marcus Group, LLC hired Fuller to work as a sales associate in its Fort Worth store. Fuller received written warnings for unprofessional behavior and for violating company policy in 2008, 2010, 2012, 2013, and 2014. Each warning advised Fuller that Neiman Marcus would address any future violations of its policies or procedures with further discipline, "up to and including termination of employment."

Among Neiman Marcus's policies and procedures was its "Third Party Charge Acceptance Procedures," which outlined its procedures for accepting third-party credit cards. On June 27, 2015, Fuller failed to follow these procedures when processing a third-party credit-card transaction that was later charged back to Neiman Marcus because the credit-card holder challenged the transaction as an unauthorized purchase. The credit-card provider did not notify Neiman Marcus about the chargeback until September 8, 2015. Neiman Marcus terminated Fuller's employment two days later.

The following month, Fuller applied to the TWC for unemployment benefits. The TWC determined that he was disqualified from receiving benefits because Neiman Marcus terminated his employment for misconduct related to his work. Fuller appealed and received a telephonic hearing with the appeal tribunal. The appeal tribunal concluded that Neiman Marcus terminated Fuller for violating Neiman Marcus's procedures and affirmed the decision to deny Fuller unemployment benefits. Fuller appealed to the TWC Commission, which affirmed the appeal tribunal's decision and adopted its findings of fact and conclusions of law. Fuller filed a motion for rehearing, which the TWC Commission denied.

Fuller then sued the TWC and Neiman Marcus in district court seeking judicial review of the TWC's denial of unemployment benefits. The TWC and Neiman Marcus jointly moved for summary judgment as a matter of law, arguing that the trial court should affirm the TWC's decision because it was supported by substantial evidence. They attached the following evidence to their summary-judgment motion: (1) the TWC's "appeals folder," authenticated by the TWC's records custodian as a public record maintained by the TWC; (2) an audio recording of the appeal-tribunal hearing; and (3) a declaration from Nicole Shelton, a human-resources manager at Neiman Marcus's Fort Worth store. In support of his response, Fuller attached his own affidavit.

After a hearing, the trial court granted the motion. In its final judgment, the trial court found that "there was substantial evidence to support the administrative decision of the Texas Workforce Commission that denied Plaintiff unemployment benefits" and affirmed the TWC's decision. Fuller appeals from this judgment.

Standard of Review

We review a summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could, and disregarding evidence contrary to the nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every reasonable inference and resolve any doubts in the nonmovant's favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008).

Trial courts review TWC decisions regarding unemployment benefits "by trial de novo based on the substantial evidence rule." Tex. Lab. Code Ann. § 212.202(a) (West 2015); see Collingsworth Gen. Hosp. v. Hunnicutt, 988 S.W.2d 706, 708 (Tex. 1998). Under this standard, the trial court must determine whether substantial evidence supports the TWC's decision. Collingsworth Gen. Hosp., 988 S.W.2d at 708; Int'l Union, United Auto., Aerospace & Agric. Implement Workers of Am.-UAW v. Gen. Motors Corp., 104 S.W.3d 126, 129 (Tex. App.—Fort Worth 2003, no pet.). Whether substantial evidence supported the decision is a legal question. Kaup v. Tex. Workforce Comm'n, 456 S.W.3d 289, 294 (Tex. App.—Houston [1st Dist.] 2014, no pet.); Blanchard v. Brazos Forest Prods., L.P., 353 S.W.3d 569, 572 (Tex. App.—Fort Worth 2011, pet. denied). Because the only issue before the trial court is one of law, a trial court may grant summary judgment in cases tried under the substantial-evidence rule. Blanchard, 353 S.W.3d at 573.

A TWC decision is presumptively valid, and the party seeking to set it aside has the burden to show that it was not supported by substantial evidence. Collingsworth Gen. Hosp., 988 S.W.2d at 708. "Substantial evidence" is more than a scintilla but less, even, than a preponderance. Blanchard, 353 S.W.3d at 572; City of Houston v. Tippy, 991 S.W.2d 330, 334 (Tex. App.—Houston [1st Dist.] 1999, no pet.). Under a substantial-evidence review, the issue is whether the trial-court evidence reveals facts existing at the time of the TWC's ruling that reasonably support the TWC tribunal's decision—that is, whether reasonable minds could have reached the same conclusion. Blanchard, 353 S.W.3d at 572; see Collingsworth Gen. Hosp., 988 S.W.2d at 708. The issue is not whether the TWC's decision was correct. Blanchard, 353 S.W.3d at 572. In fact, even when the TWC's decision is shown to be against the great weight and preponderance of the evidence, a reviewing court is bound, as a matter of law, to affirm the TWC's decision so long as a reasonable person could have reached the same conclusion. Tex. Workforce Comm'n v. BL II Logistics, L.L.C., 237 S.W.3d 875, 878-79 (Tex. App.—Texarkana 2007, no pet.). A trial court may not set aside the TWC's decision merely because it would reach a different conclusion; rather it may set aside a TWC decision only if it determines that the decision was made without regard to the law or the facts and was thus unreasonable, arbitrary, or capricious. Collingsworth Gen. Hosp., 988 S.W.2d at 708.

As for us, "[w]e review the trial court's judgment by comparing the TWC decision with the evidence presented to the trial court and the governing law." Blanchard, 353 S.W.3d at 573. We decide whether the summary-judgment evidence presented to the trial court established as matter of law that substantial evidence supported the TWC decision. Id. We look at the evidence presented to the trial court, not the agency record. Nuernberg v. Tex. Emp't Comm'n, 858 S.W.2d 364, 365 (Tex. 1993). Although the standard of review prohibits the trial court from simply reviewing the agency's record to determine if substantial evidence supports the decision, individual items from the agency's record may be introduced independently before the trial court as part of its de novo review. Id.; JMJ Acquisitions Mgmt., LLC v. Peterson, 407 S.W.3d 371, 375 (Tex. App.—Dallas 2013, no pet.).

Analysis

In two issues, Fuller argues that the trial court erred by granting summary judgment affirming the TWC's denial of unemployment benefits because his pre-2015 conduct and his June 2015 misconduct were too remote in time to support his termination and because Neiman Marcus had already addressed his pre-2015 conduct before terminating him in September 2015.

By law, a person is disqualified for unemployment benefits if he was discharged for misconduct connected with his last work. Tex. Lab. Code Ann. § 207.044(a) (West 2015). "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) (West 2015). Company-policy violations that are too remote from a firing do not qualify as misconduct for unemployment-compensation purposes. See Kaup, 456 S.W.3d at 297 (citing City of Houston v. Morris, 23 S.W.3d 505, 509-10 (Tex. App.—Houston [1st Dist.] 2000, no pet.)).

In her declaration, human-resources manager Shelton averred that before 2015, Neiman Marcus had issued Fuller multiple written warnings for behaving unprofessionally and for violating company policy:

• January 2008: written warning for consuming alcohol while working with clients during a fitting-room event;

• October 2010: written warning for unprofessional and inappropriate conduct;

• August 2012: written warning for engaging in unprofessional and inappropriate behavior and conversations;

• October 2013: written warning for failing to comply with Neiman Marcus's return-check policy, resulting in a six-month suspension of his check-writing privileges; and

• May 2014: written warning and five-day suspension for repeatedly engaging in unprofessional and inappropriate conduct.

Shelton also outlined Neiman Marcus's "Third Party Charge Acceptance Procedures." Under these procedures, when processing a third-party credit-card transaction, Neiman Marcus employees were to enter the customer-identification number on the back of the credit card if Neiman Marcus's system prompted them to do so. If the customer's printed name did not appear on the printed credit-card-transaction receipt or signature slip, or if prompted by the system, the employee was to make an imprint of the credit card. The employee was required to turn in the imprint slip at the end of the day.

Shelton further explained that while Fuller was working at Neiman Marcus on June 27, 2015, he processed a third-party credit-card transaction but failed to make an imprint of the card. The transaction was later charged back to Neiman Marcus because the credit-card holder challenged the transaction as an unauthorized purchase. The credit-card provider notified Neiman Marcus of the chargeback on September 8, 2015. Because Fuller had violated the credit-card procedures by not making an imprint of the credit card, Neiman Marcus lost $427.59 on the transaction.

The appeal tribunal's decision shows that the TWC initially determined, and the appeals tribunal agreed, that Neiman Marcus discharged Fuller for "misconduct connected with the work." The appeal tribunal made the following fact findings:

Prior to filing an initial claim for unemployment benefits with the effective date of October 4, 2015, the claimant last worked from

November 22, 2004, through September 10, 2015, as a sales associate for the named employer, a retailer.

The claimant processed a credit card transaction on June 27, 2015. The credit card holder claimed that the transaction was unauthorized and the employer received a charge back notice on September 8, 2015 from the credit card company. The employer lost $427.59 on that transaction because the claimant did not follow the employer's procedures. The claimant was aware of the employer's procedures.

As noted, Neiman Marcus and the TWC successfully moved for summary judgment on the ground that substantial evidence supported the TWC's decision. On appeal, Fuller does not challenge the TWC's determination that he violated Neiman Marcus's third-party credit-card procedures and that this violation was misconduct under section 201.012. Rather, he contends that this misconduct, as well as his pre-2015 conduct, was too remote in time to be "connected with" his work under section 207.044, and that Neiman Marcus failed to show that the delay between the conduct and his termination was reasonable. See Morris, 23 S.W.3d at 509 ("We agree with the TWC that an employee's act or omission cannot be too remote in time from the discharge to constitute misconduct that is 'connected with' the employee's last work. . . . if the discharge is remote in time from the misconduct, then the burden is on the employer to show the delay was reasonable.").

Even though the appeal tribunal heard evidence regarding Fuller's pre-2015 conduct, that conduct was not why it denied Fuller unemployment benefits. Instead, as the appeal tribunal's decision states, the TWC denied Fuller benefits based solely on his 2015 misconduct. We therefore overrule Fuller's arguments relating to his pre-2015 conduct.

With respect to his 2015 misconduct, Fuller implies that Neiman Marcus knew about his June 2015 procedural lapse because the third-party credit-card procedures required him to turn in the imprint slip at the end of the day, and so his firing two-and-a-half months later was too remote to be linked with his misconduct. But there is no evidence that Neiman Marcus knew, contemporaneously or shortly afterward, that Fuller violated its procedures in June 2015. During the appeal-tribunal hearing, the hearing officer specifically asked Shelton about the length of time between Fuller's policy violation and his termination, and Shelton explained—as she did in her declaration attached to the summary-judgment motion—that the credit-card company did not notify Neiman Marcus about the chargeback until September 8, 2015.

Although the appeal tribunal's decision does not specifically address this time interval in concluding that Neiman Marcus fired Fuller for misconduct connected with his work under section 207.044, it implicitly determined that Fuller's June 2015 misconduct was not too remote from his termination, or if it was, that Neiman Marcus proved that the delay was reasonable. As noted, we do not decide whether the TWC reached the correct decision but, instead, whether substantial evidence was presented to the trial court to support the TWC's decision. Under that standard, and considering the summary-judgment evidence before the trial court, we overrule Fuller's contention that his June 2015 misconduct was too remote from his termination to qualify as misconduct connected with work under section 207.044, and we conclude that substantial evidence supports the TWC's decision to deny him benefits. See Kaup, 456 S.W.3d at 297-98 (rejecting remoteness argument when summary-judgment evidence revealed that employer fired employee one week after discovering that employee had been violating company policy for months).

We therefore overrule Fuller's two issues.

Conclusion

Having overruled both of Fuller's issues, we affirm the trial court's final judgment.

/s/ Elizabeth Kerr

ELIZABETH KERR

JUSTICE PANEL: SUDDERTH, C.J.; GABRIEL and KERR, JJ. DELIVERED: May 10, 2018