## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 13 - 00096 - CV

JASON E. HADDOCK APPELLANT
V. TEXAS WORK FORCE COMMISSION AND ADECCO USA INC. APPELLEE S

------------ FROM COUNTY COURT AT LAW NO. 1 O F TARRANT COUNTY

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

### MEMORANDUM OPINION 1 

### ON REHEARING EN BANC

------------ I. Introduction Appellant Jason E. Haddock filed a motion for rehearing en banc. We deny the motion for rehear ing en banc, but we withdraw our opinion of October 17, 2013, and substitute the following in its place.

1 See Tex. R. App. P. 47.4.2

In two issues, Haddock appeals pro se the trial court’s summary judgment for Appellees Texas Workforce Commission (TWC) and Adecco USA, Inc. We
affirm.
II. Background On February 27, 2010, TWC qualified Haddock for $329 per week in unemployment compensation. T o retain these benefits, Haddock provided a bi

weekly report to TWC that stated, among other things, whether he earned money during the two week peri od, whether he was able to work, and whether he turned down any job offers. In July 2010, Haddock turned down a placement, and TWC subsequently notified him that he had been disqualified from receiving further unemployment benefits because he had refused a suitable job offer. After TWC’s appeals tribunal upheld the disqualification , Haddock sought judicial
review. 2 The trial court granted TWC and Adecco’s joint motion for summary judgment and affirmed TWC’s administrative decision. This appeal followed. III. Summary Judgment In his first issue, Haddock argues that the trial court erred by granting a traditional summary judgment because the appellees failed to conclusively prove their entitlement to judgment as a matter of law. He further argues that TW C violated the provisions of the Texas Unemployment Compensation Act “by not

2 Haddock states in his appellate brief that he subsequently found work similar to his previous job at $15.00 per hour and that he is only seeking to receive payment for the twenty

- seven weeks of denied ben efits while he was unemployed.3

following either the letter of the law or the spirit of the law, and in fact, making its
own law. ” A. Standard of Review In a summary judgment case, the issue on appeal is whethe r the movant met the summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844, 848 (Tex. 2009). We review a summary judgment de novo. Travelers Ins. Co. v. Joachim , 315 S.W.3d 860, 862 (Tex. 2010). Trial courts may grant summary judgments in cases tried under the substantial evidence rule, and appeals under substantial evidence review are uniquely suited to summary judgment because the only issue before the court is a question of law. Blanchard v. Brazos Forest Prods., L.P. , 353 S.W.3d 569, 573 (Tex. App.

— Fort Worth 2011, pet. denied) (citing Arellano v. Tex. Emp’t Com m’n , 810 S.W.2d 767, 771 (Tex. App.

— San Antonio 1991, writ denied)); see also Tex. Lab. Code Ann. § 212.202(a) (West 200 6 ) (“Judicial review under this subchapter is by trial de novo based on the substantial evidence rule.”); Mercer v. Ross , 701 S.W.2d 830, 831 (Tex. 1986)

. We 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. And we determine whether the summary judgment eviden ce established as a matter of law that substantial evidence existed to support the TWC decision. Id.4

In Blanchard

, we explained the following: Judicial review of a TWC determination is by “trial de novo based on the substantial evidence rule.” The trial court conducts an evidentiary trial t o “determine whether the agency’ s ruling is free of the taint of any illegality and is reasonably supported by substantial evidence.” In making this determination, the issue is not whether TWC made the correct decision ; it is instead “whether the evidence introduced before the trial court shows facts in exist ence at the time of the [agency’ s] decision that reasonably support the decision,” that is, whether reasonable minds could have reached the same conclusion. Becaus e substantial evidence is more than a mere scintilla of evidence but less than a preponderance of evidence, the evidence may preponderate against the TWC decision but still amount to substantial evidence. TWC remains the primary factfinding body, and the reviewing court may not substitute its judgment for TWC’ s on controverted fact issues; the question before the trial court is one of law.
Id. at 572 (citations omitted). The trial court here was required to determine whether Adecco and TWC proved as a ma tter of law that substantial evidence reasonably supported TWC’s decision to disqualify Haddo ck for unemployment benefits

— that is , whether reasonable minds could have reached the same
conclusion. See id. at 573

– 74. B. Applicable Law
Under labor code section 207.047, an individual can be disqualified from receiving unemployment benefits for failing, without good cause, to “accept suitable work offered to the individual.” Tex. Lab. Code Ann. § 207.047(a)(2) (West 200 6 ) . TWC considers the following fa ctors to determine whether work is “suitable” for an individual: (1) the degree of risk involved to the individual’s health, safety, and morals at the place of performance of the work; (2) the5

individual’s physical fitness and previous training; (3) the in dividual’s experience and previous earnings; (4) the individual’s length of unemployment and prospects for securing local work in the individual’s customary occupation; and (5) the distance of the work from the individual’s residence. Id. § 207.008(a)(1)

– (5) (West 200 6 ) . Additionally, the labor code states that work is not suitable and benefits may not be denied if “the wages, hours, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for
simila r work in the locality.” Id

. § 207.008(b)(2) (West 2006 )

. C. Summary Judgment Evidence TWC and Adecco attached to their joint motion for summary judgment a n affidavit by Tr acie Wankowicz and a copy of TWC’s “Unemployment Benefits Handbook.” 3 They also attached a certified copy of the administrative record, which included a copy of the appeals tribunal’s final decision, including its findings of fact and conclusions of law, and a copy of the TWC’s adoption of
t hese findings and conclusions. In her affida vit, Wankowicz averred that Haddock had been making $13.80 an hour as a cell phone tester before he voluntarily left his job in January 2010;

3 Haddock argues that TWC’s “Unemployment Benefits Handbook” submitted into evidence by TWC and Adecco should have been excluded because it was a 2012 edition that included a different standard for reviewing “suitable” work than the 2010 edition, which was the most up

- to

- date version available at the time Haddock’s benefits were denied

. We decline to address Haddock’s evidentiary objection because the record c ontains substantial evidence to support TWC’s decision without considering the handbook or its disputed “25% rule

. ”6

that on July 16, 2010, she offered Haddock work as a cell phone tester, paying $10.25 an hour for the day shift an d $10.75 a n hour for the night shift ; that the job carried the same job responsibilities as Haddock’s previous job, was a “contract

- to

- hire” position with the possibility of permanent placement, and was located approximately a quarter mile from Haddock’s previous job ; that Haddock
declined both shift offers, telling Wankowicz that the pay was too low ; and that
Haddock subsequently contacted her and said he would accept the position only if it paid $12.00 an hour , and that she explained that no position s at that wage
were available. Haddock filed his response to the motion four days before the summary judgment hearing. To his response, Haddock attached what he asserted was “some evidence that [he] submitted to TWC” during his hearings, including
advertise ments for job openings in the area during his period of unemployment to show that $10.50 was not the prevailing wage. 4 He included a copy of the page in the 2010 TWC handbook , which states: What Happens If I Refuse a Job? If you refuse to apply for or acc ept a suitable job, we will not be able to pay you UI benefits. Some of the factors TWC considers in determining whether work is suitable are:

 Your experience, qualifications, and training

4 Haddock’s evidence is not in the form of traditional summary judgment evidence. See Tex. R. Civ. P. 166a(f). Nonetheless, it does not app ear that TWC and Adecco ever objected in the trial court to the form of Haddock’s summary judgment evidence or argued that considering his late

- filed evidence surprised or prejudiced them.7

 The working conditions and pay for similar work in your area

 An y risks to your health, safety, or morals

 The distance to work from your home and local commuting patterns

 The length of your unemployment. He also included his letter requesting a motion for rehearing stating that when
Wankowicz ca lled, “[He] was surprised to hear from her because ADECCO had contested [his] unemployme nt claim without success, and [they] were not on the
best of terms.” Haddock alleged that Adecco had tried to have his unemployment benefits denied before

. He said that although he could not prove that Adecco was trying to end his unemployment benefits in another way by calling to offer him “ a low paying job which they knew [he] probably wouldn’t accept,

. . . the $10.50 they offered was exactly 25 percent lower than [Haddock’s] pay with them, ” and he noted a TWC rule (of which he alleges he had no notice) that allowed for the loss of benefits for refusing a position that paid seventy

- five percent of his previous wage

. When Haddock appealed TWC’s disqualification determination, th e appeal tribunal provided the follow ing reasoning for its decision: Here, since the work which was offered to the claimant on July 16, 2010 was similar to his previous work with this employer and was in the same area, the work offered to him on that date was suitable. I understand why the claimant declined the offer at that time, but given the length of his prior unemployment and the fact that part of the reason for doing this was concern regarding the hearing for his claim for unemployment benefits, this is not considered good cause8

. . . [and] claimant is subject to disqualification under [section 207.047]. D. Analysis Haddock argues that the t rial court erred by granting summary judgment because TWC did not present any evidence showing that a $10.50

- per - hour wage was the prevailing wage for similar work in the area. Tex. Lab. Code Ann. § 207.008(b)(2). However, whether $10.50 was the “prevailing wage for similar work” in the area was a question for the TWC, the primary fact

- finding body, not
the tri al court. See Blanchard , 353 S.W.3d at 572; Brinkmeyer , 662 S.W.2d at
9 56. Further, although Haddock presented TWC with a li st of jobs in the area paying more than $10.50 per hour, an agency ruling may not be set aside merely because there was conflicting or disputed testimony. See Blanchard , 353 S.W.3d at 572. Here, the issue before the trial court was a question of law:
wheth er substantial evidence supported TWC’s decision to disqualify Haddock’s
benefits. See Tex. Lab. Code Ann. § 207.047(a)(2); Mercer , 701 S.W.2d at 831. TWC and Adecco’s summary judgment evidence presents more than a
scintilla support ing TWC’s determination that Haddock violated section 207.047 by declining a suitable job offer without good cause. See Tex. Lab. Code Ann. § 207.047(a)(2). Haddock ’s offer to accept the position at $12.00 per hour
demonstrates that he was not concerned about the job posing a risk to his health, safety, or morals , nor was he concerned about the job’s difficulty or his over qualification based on prior training and experience; rather, his sole concern was9

the pay rate

. See i d. § 207.008(a)(1)

– (3)

. Additionally, Haddock refused the job, which was located a quarter of a mile from his previous job, in his eighteenth week of unemployment. See i d. § 207.008(a)(4)

– (5)

. Accordingly, TWC’s finding that Haddock was disqualified from receiving unemployment compensation benefits is reasonably supported under the
substantial evidence rule. See Collingsworth Gen. Hosp. v. Hunnicu t t , 988 S.W.2d 706, 708 (Tex. 1998) ; City of Hou ston v. Tippy , 991 S.W.2d 330, 334 (Tex. App.

— Houston [1st Dist.] 1999 , no pet. ). Based on the record before us, Haddock failed to demonstrate that TWC’ s decision was unreasonable, arbitrary, or capricious. See Mercer , 701 S.W.2d at 831; Tippy , 991 S.W.2 d at 334 ; see also McKinley Iron Works, Inc. v. Tex. Emp’t Comm’n , 917 S.W.2d 468, 470 (Tex. App.

— Fort Worth 1996, no pet.) (stating that trial court need only determine whether evidence heard by agency was incredible, perjured, or
unreasonable because tha t evidence is deemed not substantial). Therefore, w e overrule Haddock’s first issue , which is dispositive of this appeal. 5

5 In his second issue, Haddock argues that the trial court admitted inadmissible evidence, that his due process rights were violated by TWC altering its internal benefit guidelines without giving him notice, and that the trial court erred by granting a no

- evidence summary judgment. However, TWC and Adecco did not file a n o - evidence summary judgment. And to the extent that Haddock preserved his complaints in the trial court about TWC’s evidence and his due process rights, we need not reach them based on our resolution above because t here is no indication that the appeal t r ibunal relied on the “25% rule” in making its decision, and TWC and Adecco demonstrated in the trial court that substantial evidence supported its decision. See Tex. R. App. P. 47.1. On rehearing, Haddock notified us that the court reporter had located th e record of the summary judgment hearing, and he filed it with this court. The10 IV. Conclusion Having overruled Haddock’s dispositive issue , we affirm the trial court’s judgment. /s/ Bob McCoy BOB MCCOY JUSTICE EN BANC
DELIVERED: February 6, 2014

reporter’s record reflects that a t the hearing, Haddock stated that TWC’s decision to deny his be nefits was based on the “25% rule”; however, civil procedure rule 166a(c) states that no oral testimony shall be received at the hearing, and the trial court explained to Haddock that although his argument was helpful to understanding the situation, it was compelled to rule in favor of Adecco and TWC based on the standard of rev iew and the pleadings. See Tex. R. Civ. P. 166a(c); s ee also Martin v. Martin, Martin & Richards, Inc. , 989 S.W.2d 357, 359 (Tex. 1998) (explaining that although summary judgment hearings may be helpful to the parties or the court, just as oral argument i s often helpful on appeal, no oral testimony can be adduced in support of or opposition to a motion for summary judgment). In denying Haddock’s motio n for rehearing en banc, we reiterate that we are limited to the evidence contained in the record , which c ontain s a copy of the appeal tribunal’s decision that does not reference the “25% rule” and finds that Haddock turned down s uitable work without good cause and Wankowicz ’s affidavit summarized above. Although Haddock disputed Wankowicz’s claim that the n e w position was essentially the same as his previous position, because her affidavit provides substantial evidence to support TWC’s termination of Haddock’s benefits, the trial court did not err by granting summary judgment in favor of Adecco and TWC.