## In The **Court of Appeals Seventh District of Texas at Amarillo** 

________________________ No. 07
- 12
- 0 0207
- CV

________________________ TEXAS WORKFORCE COMMISSION AND TEXAS COMMISSION ON ENVIRONMENTAL QUALITY, APPELLANT S V. ELNORA MOSES , APPELLEE
On Appeal from the 21st District Court Lee County, Texas Tri a l Court No. 14, 530 ; Honorable Terry Flenniken , Presiding 

### August 29 , 2013 MEMORANDUM OPINION Before QUINN, C.J., and HANCOCK and PIRTLE, JJ. Appellants, Texas Workforce Commission (TWC) and Texas Commission on Environmental Quality ( TCEQ) , appeal from a judgment in favor of Appellee, Elnora Moses, on her claim for unemployment benefits . In support, Appellants assert the trial court erred in reversing the ir denial of Moses’s c laim because there was substantial2 evidence she was disqualified from receiving benefits . W e reverse the trial court’s judgment and render judgment affirming the decision of TWC

. B ACKGROUND In July 2009, Moses , a TCEQ air examiner, reported to her su pervisor, Alyssa Taylor, that she believed a lack of sleep was affecting her work performance. Moses attributed her lack of sleep to being sexually assaulted while she slept at night and she accused three co
- workers. According to Moses, d espite placing a dditional locks on her doors and bars on her windows, the sexual assaults had continued. She videotaped herself while she slept but only she appeared on the videotapes

. She also told Taylor she owned a firearm and recounted an incident where she ran outs ide her apartment at night waving her gun after she thought she heard something. Taylor reported this information to Human Resources and the legal department of TCEQ

. Moses later filed a sexual harassment complaint against the three co
- workers and, in August of 2009 , gave a similar account of sexual assaults to Melissa Applegate,
a H uman R esources D irector. Considering the efforts Moses undertook to secure h er apartment and the videotape results , Applegate believed her allegations were implausible. In the meantime, Moses had also complained to the police but, upon investigation , they too found the allegations implausible and did not open a case file. As a part of that investigation , Moses was given a sexual assault examination at a hospital , but t he results were negative. In September, Applegate met with Moses and advised her t hat she was prohibited from confronting co - workers with her sexual assault allegations. Tony3 Walker, a r egional m anager , also met with T aylor and Moses. He informed Moses that, after investigation, her allegations were found to be unsubstantiated. Mo ses expressed dissatisf action with the handling of her complaint and believed more should be done. Walker advised Moses to speak to her supervisor if she needed to speak about her allegations and ordered her not to discuss the nature of her complaints with any staff and not to confront the three co
- workers. Taylor indicated that speaking to her co
workers about the sexual assault allegations was destructive to t he work environment and, so long as the complaints were unsubstantiated, amounted to no more than gossip. In October, Moses confronted a co
- worker against wh om she had made a sexual assault complaint. The co
- worker was very upset and complained to Ta ylor. Taylor considered Moses a disruptive influence in the office and was concerned about the safety of her co
- workers. She was also concerned about Moses’s mental stability and believed she needed the assistance of a mental health expert. Because Mose s had disobeyed a direct order to not speak to co
- workers about her sexual assault complaints , she was placed on disciplinary probation from October 5, 2009 through April 5, 2010. She was also sent home and given an opportunity to receive counseling throu gh the Employee Assistance Program (EAP). As part of her probation, Moses was required to obtain a Return to Work Certification (RWC) before returning to work. She
was also warned t hat failure to adhere to the probation requirements could result in termi nation.4 In December, D r. Strange , an EAP counselor for TCEQ’s independent contractor for personnel services , Deer Oaks, issued a RWC to Moses . Among other things, the RWC required th at Moses not converse with known affiliates of TCEQ regarding her comp laint s without first obtaining Taylor’s approval (RWC #3) and she was to undergo a psychiatric evaluation within the next six months (01/01/10
- 07/01/10) ruling out parasomnia, borderline personality disorder, and dissociative identity disorder (RWC #5)

. Dr. Strange defined parasomnia as a sleep disorder where peculiar events occur that interrupt sleep ; borderline personality disorder as a condition which is often related to anger issues associated with delusional characteristics or approaches to people; a nd dissociative identity disorder as a condition where persons sometimes do not know who they are for peri ods of time. He testified he would not in clude any of the disorders in a RWC u nless he had serious concerns whether the person suffered from the diso rder. He opined that p ersons with borderline personality disorder might possibly be dangerous to t hemselves and others and, like dissociative identity, prone to bizarre behavior. He also testified he would be concerned if someone with any of the disorder s owned a firearm.
When Moses returned to work in January of 2010, Taylor discussed the RWC’s conditions with her numerous times. Evelyn Baker, E mployee R elations C oordinator, testified Moses often questioned why she had to take a battery of tests in connection with RWC #5 , the condition requiring psychiatric evaluation . Baker told Moses that the condition was a requirement to be completed before she returned to work . Baker then set Moses up with a number of psych iatrists who provided such tests. Sh e also advised5 Moses that she could share Dr. Strange’s report, as well as Deer Oaks’ information, with the psychiatrists but reiterated that Moses was not to discuss her sexual assault allegations with other employees. Moses later reported to Baker that t he psychiatrist did not perform the tests or cancelled her appointments for a variety of reasons. In February, Wendy Bass, F leet P roperty M anager, started receiving weekly visits from Moses. When Moses informed Bass that male co
- workers were stalking her, Bass suggested she go to H uman R esources, however, Moses told her she had already been and they were no help. In April, Taylor met with Moses to discuss her progress under the RWC and extend her probation period until July 1. Taylor was concern ed Moses was exhibiting signs indicative of workplace violence per the TCEQ ’s policies

. She believed Moses
was paranoid about persons from her workplace following her home and sexually assaulting her in her sleep, and that she was desperate over recent pe rsonal issues

. She also believed Moses was e xhibiting an escalating emotional state and displaying anger over how her sexual assault complaints had been handled. Moses commented to Taylor several times that “she felt she was going to have to take matters into her own hands and be the aggressor.” Other employees observed Moses in the parking lot walking alone while h aving animated conversations with herself . Taylor felt personally threatened by Moses and was concerned for her co
- workers’ safety. Also in April, Bass indicated Moses came to her office upset and angry because her probation was extended to July to allow her additional time to comply with RWC #5.6 In May, Bass was visited again by Moses. Moses told her that male staff members had ag ain broken into her apartment and sexually assaulted her. She accused specific employees and provided details that made Bass very uncomfortable. On one occasion, Moses came into Bass’s office very upset and said “ they ” were worried she was going to go po stal because she knew how to use a gun and went to a shooting range. Moses indicated she was skilled with a gun. Later, w hen Bass was passing through the front office, she observed Moses sitting with another employee who appeared distraught and realized she was not the only person affected by Moses’s behavior. The weekly conversations disrupted her ability to do her work and made her uncomfortable. She also believed Moses presented a danger to other people at work and decided to speak with Walker.
In l ate June, Moses testified she underwent a psychiatric examination at the John Peter Smith Emergency Room. She didn’t take her RWC but discussed its contents with the doctors. She did not disclose Dr. Strange’s report or any information from Deer Oaks. W hen Taylor subsequently sought to determine her fitness to return to work by seeking a medical release to verify the psychiatric examination, Moses refu sed because she “ didn’t feel it was necessary and [she] didn’t trust them

. ” Shortly after Bass spoke to Walker, Moses was terminated for (1) violating RWC #3 (requiring her to not discuss her allegations of sexual assault with affiliates of TCEQ) and (2) failing to complete RWC #5 (requiring her to submit to a psychiatric examination)

. Following her discha rge,
a dditional s ecurity measures were put in place at TCEQ’s regional office because of concerns M oses might take some kind of action.7 Moses’s application for unemployme nt benefits was subsequently denied by a hearing officer because she “was discharged for misconduct connected with [her] last work.” T EX
. L AB
. C ODE A NN
. § 207.044(a) (West 2006) . She appealed the initial determination to TWC’s Appeal Tribunal. See T EX
. L AB
. C ODE A NN
. § 212.051, 212.102 (West 2 006). The Appeal Tribunal upheld the hearing officer’s decision to deny benefits and Moses appealed the Tribunal’s decision to TWC. See T EX
. L AB
. C ODE A NN
. § 212.151(2) (West 2006). T WC subsequently affirmed the Tribunal’s decision and Moses fil ed suit for judicial review of T WC’s decision in district court. See T EX
. L AB
. C ODE A NN
. § 212.201 (a) (West 2006). After a bench trial, the trial court reversed TWC’s decision and awarded unemployment benefits to Moses. TWC and TCEQ now brin g this appeal.
D ISCUSSION Appellants contend the trial court erred in rendering judgment in Moses’s favor because there was substantial evidence to support TWC’s decision that Moses engaged in misconduct connected with her work thereby disqualifying her for unemployment benefits

. See T EX
. L AB
. C ODE A NN . § 207.044(a) (West 2006)

. We agree. S TANDARD OF R EVIEW
The trial court reviews TWC ’s decision de novo to determine whether there is

“ substantial evidence ” to support the decision

. T EX
. L AB
. C ODE A NN . § 212.2 02(a) (West 2006)

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

. In making this determination, the issue is not whether TWC made the correct decision; it is instead8 “whether the evidence introduced before the trial court shows facts in existence at the time of the [ TWC ’s] decision that reasonably support the decision, ” that is, whether reasonable minds could have reached the same conclusion. Blanchard v. Brazos Forest Products, L.P. and Tex. Workforce Comm’n, 353 S.W.3d 569, 572 (Tex.App.

— Fort Worth 2011, pet. denied) (quoting Collingsworth Gen. Hosp. v. Hunnicutt, 988 S.W.2d 706, 708 (Tex. 1998) )

. B ecause substantial evidence is more than a mere scintilla but less than a preponderance of evidence, the evidence may prepondera te against TWC ’s decision but still amount to substantial evidence. City of Houston v. Tippy , 991 S.W.2d 330, 334 (Tex.App.

— Hous ton [1st Dist.] 1999, no pet.).

Further, t he “[ r ] esolution of factual conflicts and ambiguities is the province of the
a dministrative body and it is the aim of the substantial evidence rule to protect that function. ” Tex. Workforce Comm’n v. BL II Logistics, L.L.C., 237 S.W.3d 875, 881 (Tex.App.

— Texarkana 2007, no pet.) (quoting Firemen’s & Policemen’s Civil Serv. Comm’n v . Brinkmeyer , 662 S.W.2d 953, 956 (Tex. 1984)). Thus, TWC remains the primary fact
- finding body, and the reviewing court may not substitute its judgment for TWC’s on controverted fact issues. BL II Logistics, L.L.C., 237 S.W.3d at 878 ; Edwards v. Tex. Emp’t Comm’n, 936 S.W.2d 462, 465 (Tex.App.

— Fort Worth 1996, no writ). Because the determination of whether TWC’s decision was supported by substantial evidence is a question of law, we review de novo the trial court’s determination. BL II Logistics, L.L.C., 237 S.W.3d at 878 (citing El Paso Natural Gas Co. v. Minco Oil & Gas, Inc ., 8 S.W.3d 309, 312 (Tex. 1999)). TWC’s ruling also carries a presumption of validity, and the party seeking to set it aside ha s the burden to show it was not supported by substantial evidence. Hunnicutt ,9 988 S.W.2d at 708

. Thus, the party seeking to overturn TWC’s decision must produce evidence that conclusively negates all reasonable support for the agency’s decision

— on any ground offered. BL I I Logistics, L.L.C., 237 S.W.3d at 880

. Accordingly, w e may only set aside TWC’s decision if it was made “ without regard to the law or the facts, and, therefore, was unreasonable, arbitrary, or capricious. ” Mercer, 701 S.W.2d at 831

. U NEMPLOYMENT B ENEFITS
An employee is “disqualified for benefits if [ he or she ] was discharged for misconduct connected with [the employee’s] last work.” T EX
. L AB
. C ODE A N N . § 207.044(a) (West 2006) . “M isconduct” is defined as “mismanagement of a position of employm ent by action or inaction, neglect that jeopardizes the life or property of another, intentional wrongdoing or malfeasance, intentional violation of the law, or violation of a policy or rule adopted to ensure the orderly work and safety of employees.” T EX
. L AB
. C ODE A NN . § 201.012(a) (West 2006).
“Misconduct” includes conduct that is disruptive or insubordinate; Burton v. Tex. Employ. Comm’n , 743 S.W.2d 690, 693 ( Tex.App.

— El Paso 1987, writ denied ) , o r causes an employer concern for co - workers’ safety

. H unnicutt , 988 S.W.2d at 709
- 10

. In making our determination whether an employee engaged in “misconduct,” w e focus on the adverse impact of an employee’s conduct on the employer and the purpose of the Unemployment Compensation Act. Tippy , 991 S.W.2d a t 336

. See Hunnicutt , 988 S.W.2d at 710 ( The Act’s “ intent and purpose [is] to provide compensation for workers who are unemployed through no fault of their own .”) There is no requirement that an employer show the misconduct negatively affected the employee’s work. Murray v. Tex.10 Workforce Comm’n , 337 S.W.3d 522, 525 (Tex.App.

— Dallas 2011, no pet. ). The “connected with” requirement may be established by evidence that one or more acts of employee misconduct occurred while the employee was on duty or occurred on the employer’s premises. Hunnicutt , 988 S.W.2d at 709

. Here, Moses engaged in insubo rdination when she violated RWC #3 and #5

. Despite numerous warnings, she conversed with at least one co - worker about her complaint that male employees were sexually assaulting her in her sleep and she failed to provide verification that she underwent a psychiatric evaluation for certain disorders within the designated time period

. 1 Her generalized threats and references to her skill with a firearm a lso created a legitimate concern among her supervisors for the safety of her co
- workers. Further, g iven the ample time she was allowed to make an appointment and submit a report in compliance with RWC #5 , we find TCEQ’s response was not ar bitrary and unreasonable

. She was advised early on and throughout her probationary period that continued employment depended on her full cooperation and compliance with the RWC ’s conditions

. Accordingly, we find there is substantial evidence in the recor d that Moses was terminated because she engaged in “misconduct” that was “connected with” her work at TCEQ’s regional office. See Hunnicutt , 988 S.W.2d at 709
- 10 . Appellant’s single issue is sustained.

1 Moses ’ s conduct was also subject to TCEQ policies regarding professional conduct that prohibited employees from disrupting others with rudeness or gossip, engaging in disrespectful and insubordinate conduct, and threatening any employee or member of the public. Her condu ct was also subject to policies regarding workplace violence that prohibited employees from engaging in verbal threats or taking physical actions which create a security hazard for others in the workplace.11 C ONCLUSION The trial court’s judgment is revers ed and a judgment affirming the decision of TWC is rendered.
Patrick A. Pirtle Justice