AFFIRM; and Opinion Filed January 31, 2017.




                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-15-01183-CV

                       L. JOHNSON, Appellant
                               V.
      TEXAS WORKFORCE COMMISSION, FRIEDMAN & FEIGER, LLP, AND
                OASIS OUTSOURCING III, INC., Appellees

                      On Appeal from the 191st Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. DC-14-04671

                             MEMORANDUM OPINION
                       Before Justices Bridges, Lang-Miers, and Whitehill
                                 Opinion by Justice Lang-Miers
       This is an appeal by L. Johnson from a summary judgment upholding the Texas

Workforce Commission’s decision to deny unemployment compensation benefits to her. She

raises three issues on appeal: (1) the trial court erred by granting appellees’ motions for summary

judgment; (2) the trial court erred by denying her cross-motion for summary judgment; and

(3) the trial court erred by dismissing appellee law firm Friedman & Feiger, LLP from the

lawsuit. We affirm.

                                          Background

       Johnson was employed in August 2012 by the law firm as a legal secretary. Appellee

Oasis Outsourcing III, Inc., a licensed professional employer organization that contracted with

the law firm to provide human resources, risk management, benefits, and payroll services, was
named as Johnson’s employer in the proceeding before the Commission and appeared at the

hearings pursuant to its contract with the law firm. The Commission initially awarded benefits to

Johnson, but reversed that decision on appeal. Johnson appealed the reversal, and the

Commission affirmed the denial of benefits. Johnson sought judicial review. All parties filed

motions for summary judgment in the trial court, and the court’s rulings on those motions

dismissed the law firm from the lawsuit and affirmed the Commission’s decision to deny

benefits. Johnson appealed to this Court.

                                      Standard of Review

       On judicial review of a decision by the Commission, the sole issue before the trial court

is “whether the evidence introduced before the trial court shows facts in existence at the time of

the [Commission’s] decision that reasonably support the decision.” See TEX. LAB. CODE ANN.

§ 212.202(a) (West 2015) (trial court reviews decision de novo using substantial evidence

standard); Collingsworth Gen. Hosp. v. Hunnicutt, 988 S.W.2d 706, 708 (Tex. 1998). The

Commission’s decision is presumed valid, and the party seeking to set aside the decision bears

the burden to show the decision was not supported by substantial evidence. Hunnicutt, 988
S.W.2d at 708. The trial court may set aside a decision by the Commission only if it concludes

that the decision “was made without regard to the law or the facts and therefore was

unreasonable, arbitrary, or capricious.” Id. It may not set aside the decision solely because it

would have reached a different conclusion. Id.

       Whether a Commission’s decision is supported by substantial evidence is a question of

law. Galindo v. Tex. Workforce Comm’n, No. 05-11-01627-CV, 2012 WL 1470153, at *1 (Tex.

App.—Dallas Apr. 26, 2012, no pet.) (mem. op.). “Substantial evidence” means more than a

scintilla, but the evidence does not have to preponderate in favor of the decision; it is evidence

such that reasonable minds could have reached the decision the Commission must have reached

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in order to make the decision it did. Direct Commc’ns, Inc. v. Lunsford, 906 S.W.2d 537, 541

(Tex. App.—Dallas 1995, no writ). In reviewing the trial court’s summary judgment in this type

of case, we review the Commission’s decision against the evidence presented to the trial court

and the governing law and determine whether the summary-judgment evidence established as a

matter of law that substantial evidence existed to support the Commission’s decision. Id. at 542.

                                                                Discussion

             In issues one and two, which Johnson argues together, she contends that summary

judgment in favor of the Commission 1 was improper because substantial evidence did not

support the Commission’s decision that her discharge was due to misconduct related to her work,

and the trial court should have granted her cross-motion for summary judgment. We disagree.

             The Texas Unemployment Compensation Act states that an employee is ineligible to

receive unemployment benefits if the employee “was discharged for misconduct connected with

the individual’s last work.” TEX. LAB. CODE ANN. § 207.044(a). The Act defines “misconduct”

as:

             [M]ismanagement 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 the law, or violation of policy or rule
             adopted to ensure the orderly work and safety of employees.

Id. § 201.012.

             The Commission attached the record of its proceedings as summary-judgment evidence

and also presented to the trial court the following evidence of Johnson’s misconduct:

             Johnson, a licensed attorney, applied for a paralegal position with the law firm; instead,

she was offered and accepted a position as legal secretary. Upon starting the position, Johnson

received a written job description for a legal secretary with the firm. The description stated,


      1
          We refer to the Commission and Oasis collectively as the Commission.



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among other things, that the firm “expect[s] all legal secretaries to exercise good judgment,

discretion, maintain a proactive work ethic and exhibit well-developed interpersonal skills.” It

stated that a legal secretary’s job duties included to “[w]ork in cooperation with assigned team

paralegal(s).” During the course of her employment, however, Johnson complained about having

to “train” paralegals and do their work. In June 2013, the law firm gave Johnson a written

reprimand concerning an “on-going personality conflict between [Johnson] and paralegal [D.O.]”

stating they had been “unable to work together as a cohesive team.” The reprimand stated

       there is in-fighting amongst them in the form of non-cooperation on case
       matters . . ., and an unfriendly, tension-filled atmosphere exists in their corner of
       the 2nd floor. All of this is a distraction to the attorneys and a distraction to them
       as employees, which is affecting their work. The clients’ cases are in jeopardy due
       to [Johnson] and [D.O.] being unable to professionally set aside their personality
       conflict while at the office.

The reprimand also stated that Johnson had been “previously advised verbally” by the human

resources manager that her job required her to cooperate with assigned paralegals. Four months

after the written reprimand, Johnson again complained through emails to the human resources

manager (and copied to Johnson’s supervising attorney) that she was having to do the paralegals’

work, teach and coach them, review their work, and file notices and requests for records, all of

which took considerable time away from her job and for which she was not being paid. Johnson

ended one email with: “I would like this corrected now. Or I will be forced to quit my job and

you look for a replacement.” That same day, Johnson left the office stating she was ill. She went

to Parkland Hospital where she saw a doctor who advised her to stay home and rest for the

remainder of the week. The next day, Johnson sent an email to her supervising attorney stating

that she “won’t be in” and explaining that she was ill and had been told to rest. The lengthy email

reiterated her on-going complaints about having to do the paralegals’ work. That same day, the

law firm decided to terminate Johnson, but it did not notify her until the following Monday when

she returned to work.
                                                –4–
          In the termination letter to Johnson, the law firm reminded Johnson about the requirement

“to work in cooperation with the assigned team paralegal(s),” but stated that she had

demonstrated an inability to work with two paralegals, was reassigned to a third paralegal, then

complained about having to work with that paralegal. At that point, the law firm decided to

terminate her employment. The human resources manager testified by affidavit that the firm

terminated Johnson’s employment because of her insubordinate attitude and refusal to work in

cooperation with paralegals.

          Johnson argues on appeal that her conduct did not amount to misconduct and that the real

reason she was terminated was because she missed work due to illness. She contends that the

Commission “is skewing facts to justify its denial of unemployment benefits.” The reason for

Johnson’s termination, however, was a question for the Commission as the primary factfinder

and not the trial court. See Haddock v. Tex. Workforce Comm’n, No. 02-13-00096-CV, 2014 WL
486076, at *4 (Tex. App.—Fort Worth Feb. 6, 2014, pet. denied) (mem. op.). The only question

before the trial court was whether there was substantial evidence to support that decision. See

TEX. LAB. CODE ANN. § 212.202(a); Hunnicutt, 988 S.W.2d at 708. The evidence showed that

Johnson’s conduct was inappropriate, a violation of law firm policy, and was disrupting work.

Based on the record before us, we conclude that Johnson did not satisfy her burden to

demonstrate the Commission’s decision was unsupported by substantial evidence. See Hunnicutt,
988 S.W.2d at 708. Consequently, the trial court did not err by granting the Commission’s

motion for summary judgment. 2

          Woven within Johnson’s arguments on issues one and two are her complaints that the

Commission’s procedures were tainted with irregularity. She contends there was a bias against

her because she was a former hearing officer who blew the whistle on the Commission for

   2
       Johnson did not get a ruling on her cross-motion for summary judgment.



                                                                   –5–
improper procedures. She contends she was denied the rights to ask questions, to lead the witness

on cross-examination, and to testify freely about her illness. But Johnson did not produce

evidence to support her arguments. Although a recording of the hearing before the Commission

was in evidence before the trial court, it is not part of our appellate record. And Johnson did not

seek a hearing on this issue. Consequently, there is no evidence upon which we may conclude

that the Commission proceedings were tainted by irregularity. See Tex. Emp’t Comm’n v. Gant,

Inc., 604 S.W.2d 211, 214 (Tex. Civ. App.—San Antonio 1980, no writ) (court may receive

evidence of procedural irregularities alleged to have occurred during agency proceedings but not

reflected by record).

       We resolve issues one and two against Johnson.

       In issue three, Johnson argues that the trial court erred by dismissing the law firm from

the lawsuit and denying her motion to vacate that dismissal. Again, we disagree.

       The law firm filed a no-evidence motion for summary judgment arguing that Johnson’s

original petition did not state a claim against the firm apart from her complaint about the

Commission’s decision in which Oasis was listed as the employer. The trial court agreed with the

law firm and dismissed it from the lawsuit. We have reviewed Johnson’s petition and agree with

the trial court that the petition did not assert a separate claim against the law firm. Consequently,

the trial court did not err by dismissing the law firm from the lawsuit. We resolve issue three

against Johnson.

                                            Conclusion

       We affirm the trial court’s judgment.


                                                      /Elizabeth Lang-Miers/
                                                      ELIZABETH LANG-MIERS
                                                      JUSTICE

151183F.P05
                                                –6–
                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

L. JOHNSON, Appellant                                On Appeal from the 191st Judicial District
                                                     Court, Dallas County, Texas
No. 05-15-01183-CV         V.                        Trial Court Cause No. DC-14-04671.
                                                     Opinion delivered by Justice Lang-Miers.
TEXAS WORKFORCE COMMISSION,                          Justices Bridges and Whitehill participating.
FRIEDMAN & FEIGER, LLP, AND OASIS
OUTSOURCING III, INC., Appellees

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

      It is ORDERED that appellees Texas Workforce Commission, Friedman & Feiger, LLP,
and Oasis Outsourcing III, Inc. recover their costs of this appeal from appellant L. Johnson.


Judgment entered this 31st day of January, 2017.




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