Opinion
NO. 12-11-00230-CV
06-06-2012
MERVINA. SMITH, APPELLANT v. TEXAS WORKFORCE COMMISSION, JOSEPH M. BARNES, MERCY EMS AND M. DOWNING, APPELLEES
APPEAL FROM THE 349TH
JUDICIAL DISTRICT COURT
HOUSTON COUNTY, TEXAS
MEMORANDUM OPINION
Mervin A. Smith appeals from the trial court's judgment granting the Texas Workforce Commission's (TWC) motion for summary judgment and affirming its decision to deny Smith's request for unemployment benefits. Smith raises five issues on appeal. We affirm.
BACKGROUND
Smith worked for Joseph M. Barnes d/b/a Mercy EMS (Mercy) as an emergency medical technician. Mercy was concerned with the spread of disease, specifically the H1N1 virus, at its work facility, so a coworker requested that Smith assist in disinfecting the facility to make it a more sterile environment. Smith adamantly opposed this request, and exhibited his opposition by not only refusing to comply, but also by cursing and slamming a door. When told of Smith's actions, Smith's immediate supervisor went to Smith and repeated the request that he assist in disinfecting the facility. Smith again declined. Smith's supervisor then told Smith to either assist in disinfecting the facility or go home, and Smith chose to go home. Mercy then terminated Smith.
Smith sought unemployment compensation, and Mercy opposed Smith's request. A hearing officer with TWC conducted a hearing on the matter and concluded that Smith was disqualified from receiving unemployment compensation because Smith was terminated as a result of his own misconduct. Smith appealed the hearing officer's decision to the TWC Appeal Tribunal. The Appeal Tribunal affirmed the hearing officer's decision.
Smith then sought judicial review of TWC's decision by filing a petition for judicial review against TWC, the hearing officer, and Mercy. TWC, the hearing officer, and Mercy filed answers. TWC also filed a motion for summary judgment, and Smith responded. In an order entitled "Final Judgment," the trial court granted the summary judgment and affirmed TWC's decision that Smith was disqualified from receiving unemployment compensation. The trial court's judgment also stated, "This judgment is a final disposition of all parties and all claims." Smith filed a motion for new trial that apparently was overruled by operation by law. This pro se appeal followed.
Smith responded to the motion for summary judgment in a pleading entitled "Motion for Hearing: Mistakes and [Excusable] Neglect."
JURISDICTION
We must independently determine whether we have jurisdiction over an appeal, even if no party contests jurisdiction. M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004) (per curiam); Tex. La Fiesta Auto Sales, LLC v. Belk, 349 S.W.3d 872, 878 (Tex. App.—Houston [14th Dist.] 2011, no pet.). Generally, an appeal may be taken only from a final judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); see also Ogletree v. Mathews, 262 S.W.3d 316, 319 n.1 (Tex. 2007) (stating that unless a statute specifically authorizes an interlocutory appeal, appellate courts have jurisdiction only over final judgments). A judgment is final for purposes of appeal if it disposes of all pending parties and claims in the record. Lehmann, 39 S.W.3d at 195.
In addition to TWC, Smith sued the hearing officer and Mercy, but the judgment is silent as to these parties. However, Smith sought judicial review of only TWC's decision, and the trial court's judgment specifically affirms TWC's decision. Therefore, the trial court's judgment disposed of all parties and all claims pending in the record, and is a final judgment. See id Additionally, the trial court's judgment indicates that it is final in clear, unambiguous language. See In re Burlington Coat Factory Whse. of McAllen, Inc., 167 S.W.3d 827, 830 (Tex. 2005). Consequently, we have jurisdiction over Smith's appeal.
MOTION FOR SUMMARY JUDGMENT
In his fifth issue, Smith argues that the trial court erred by granting the summary judgment. In his first and second issues, Smith argues that TWC did not base its decision on the reason stated by Mercy EMS for his termination and that TWC did not address "insubordination" in its motion for summary judgment. In his third and fourth issues, Smith argues that the trial court erred in its judicial review of Smith's case and in the refusal to investigate the "questions of law" Smith raised in his request for judicial review. Because it is dispositive of the appeal, we address Smith's fifth issue first. See TEX. R. APP. P. 47.1. Standard of Review
The movant for traditional summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). Additionally, after an adequate time for discovery has passed, a party without the burden of proof at trial may move for summary judgment on the ground that the nonmoving party lacks supporting evidence for one or more essential elements of its claim. TEX. R. CIV. P. 166a(i). Once a no evidence motion has been filed in accordance with Rule 166a(i), the burden shifts to the nonmovant to bring forth evidence that raises a fact issue on the challenged evidence. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). All theories in support of or in opposition to a motion for summary judgment must be presented in writing to the trial court. See TEX. R. CIV. P. 166a(c).
Trial courts may grant summary judgment in judicial review of TWC decisions. See Blanchard v. Brazos Forest Prods., L.P., 353 S.W.3d 569, 572 (Tex. App.—Fort Worth 2011, pet. denied). However, appellate review of a summary judgment affirming a TWC determination is different from review of a typical summary judgment. See Murray v. Tex. Workforce Comm'n, 337 S.W.3d 522, 524 (Tex. App.—Dallas 2011, no pet.).
The initial judicial review of a TWC determination in the trial court is by trial de novo based on the substantial evidence rule. TEX. LAB. CODE ANN. § 212.202(a) (West 2006). The substantial evidence rule means that the TWC decision carries a presumption of validity, and it is the burden of the party challenging the TWC decision to demonstrate that it is not supported by substantial evidence. Murray, 337 S.W.3d at 524. The TWC ruling is supported by substantial evidence when "the evidence introduced before the trial court shows facts in existence at the time of the [agency's] decision that reasonably support the decision." Collingsworth Gen. Hosp. v. Hunnicutt, 988 S.W.2d 706, 708 (Tex. 1998). Substantial evidence is more than a 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.). For the TWC decision to be set aside, it must have been made without regard to the law or the facts, and thus, be unreasonable, arbitrary, or capricious. Murray, 337 S.W.3d at 524. TWC is the primary factfinder, and the reviewing court may not substitute its judgment for TWC's on controverted fact issues. Blanchard, 353 S.W.3d at 572.
Whether TWC's decision is supported by substantial evidence is a question of law. Id. Stated simply, the standard of review requires this court to determine whether the summary judgment evidence proves as a matter of law that substantial evidence—more than a mere scintilla, but less than a preponderance—supports TWC's decision to deny benefits to Smith. See id. at 573. This analysis places a much lower burden on the movant than in the ordinary summary judgment context. See id at 573-74. Applicable Law
An individual is disqualified from receiving unemployment benefits if the individual was discharged for misconduct connected with the individual'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 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 2006). It does not include an act in response to an unconscionable act of an employer or superior. Id § 201.012(b). Mismanagement requires "intent, or such a degree of carelessness as to evidence a disregard of the consequences, whether manifested through action or inaction." Mercer v. Ross, 701 S.W.2d 830, 831 (Tex. 1986); see Blanchard, 353 S.W.3d at 574 (holding that claimant's conduct in ignoring customer complaint and engaging in "rude and destructive behavior" was substantial evidence of mismanagement). Discussion
Here, the evidence before the TWC hearing officer showed that Smith ignored a coworker's reasonable request that he assist in disinfecting the work facility. He cursed and slammed a door to further demonstrate his displeasure with her request. The evidence also showed that Smith's direct supervisor gave Smith a second opportunity to comply with the request. He again refused. He was then given a final opportunity accompanied with a directive that he either comply with the request or go home, and he chose to go home. This constitutes substantial evidence that Smith engaged in misconduct and was disqualified from receiving unemployment benefits.
Smith's argument against summary judgment seems to focus on (1) the fact that he did not violate a written policy of Mercy, and (2) his contention that TWC violated its own rules of procedure. His first argument is inconsequential. An employee can engage in mismanagement by acting with such a degree of carelessness as to evidence a disregard of the consequences without violating a specific, written rule of his employer. See Blanchard, 353 S.W.3d at 574 (holding employee engaged in mismanagement, and thus, was ineligible for unemployment benefits, even though apparently no written rule of employer was violated).
His second argument is that TWC could consider only whether Smith was guilty of "insubordination," and not whether he was guilty of misconduct as defined under the statute, because Mercy terminated him for "insubordination." As support for this proposition, Smith relies on Hernandez v. Texas Workforce Commission, 18 S.W.3d 678, 682 (Tex. App.—San Antonio 2000, no pet.) (stating that "TWC must base its disqualification decision on the same set of misconduct for which [the employer] terminated [the employee]."). Thus, Smith argues that TWC failed to follow the proper procedure when it considered whether Smith's conduct amounted to misconduct.
First, Smith's conduct is substantial evidence of insubordination. Second, even assuming Smith is correct that his conduct is not substantial evidence of insubordination, Smith's reading of Hernandez is incorrect. In that case, Hernandez made long distance phone calls. Id. When he was confronted by his employer, he initially denied making the phone calls. Id. TWC found that Hernandez's denial that he made the phone calls was misconduct, but did not find that making the phone calls was misconduct. Id. Thus, the reviewing court had to determine whether there was substantial evidence that Hernandez was terminated because of his denial that he made long distance phone calls. Id. at 683. Hernandez simply stands for the proposition that "the reason the individual was discharged must amount to misconduct, not that the individual was discharged and, at some time while he was employed, he engaged in misconduct." Id. at 682-83. TWC properly considered Smith's act of misconduct in failing to assist in disinfecting the facility.
The trial court properly construed the issue before it as whether the summary judgment evidence proved as a matter of law that substantial evidence supported TWC's decision to deny Smith benefits. See id.; see also Blanchard, 353 S.W.3d at 573. The trial court did not err in granting TWC's motion for summary judgment and affirming its decision that Smith is not entitled to unemployment benefits.
Smith's fifth issue is overruled.
DISPOSITION
We have overruled Smith's fifth issue. Having determined that the trial court properly granted summary judgment against Smith, we do not address Smith's remaining issues. See TEX. R. APP. P. 47.1. We affirm the judgment of the trial court.
BRIAN HOYLE
Justice
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(PUBLISH)
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
NO. 12-11-00230-CV
MERVIN A. SMITH,
Appellant
v.
TEXAS WORKFORCE COMMISSION,
JOSEPH M. BARNES, MERCY EMS
AND M. DOWNING,
Appellees
Appeal from the 349tht Judicial District Court
of Houston County, Texas. (Tr.Ct.No. 10-0147)
THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged against the appellant, MERVIN A. SMITH, for which execution may issue, and that this decision be certified to the court below for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.