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Terrill v. Texas Workforce Commission

Court of Appeals of Texas, Fifth District, Dallas

April 4, 2018

ROBY TERRILL, Appellant
v.
TEXAS WORKFORCE COMMISSION AND PARK PLACE MOTORCARS, LTD., Appellees

          On Appeal from the 298th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-16-02960

          Before Francis, Evans, and Boatright Justices

          MEMORANDUM OPINION

          JASON BOATRIGHT JUSTICE

         The Texas Workforce Commission denied Roby Terrill's request for unemployment benefits. He challenged the denial in district court. Terrill lost on summary judgment, and he appeals. We affirm.

         Terrill was hired as a sales representative at Park Place Motorcars, Ltd. in 1980. Park Place's sales quota required that each representative sell eight vehicles per month on a ninety-day rolling average. Terrill met this quota in all but four months during his employment at Park Place. In each of the four exception months, the last of which occurred in June 2015, Terrill was notified that he could be discharged for failing to meet the quota. After failing to meet the quota that July, Terrill was told that he needed to sell 14.5 vehicles in the following month to keep his job. He failed to meet his quota, and he was fired on September 1, 2015.

          Terrill filed a claim for unemployment benefits a few weeks later. The Commission denied his claim because it found that his discharge resulted from "misconduct" under section 207.044 of the Texas Labor Code. That section provides that a person who was discharged for misconduct connected with his last work is disqualified from receiving benefits. Tex. Lab. Code Ann. § 207.044(a) (West 2015). Misconduct includes "mismanagement of a position of employment by action or inaction." Id. § 201.012(a) (West 2015).

         Terrill appealed the Commission's decision to the Commission's Appeal Tribunal. He argued that his failure to meet the sales quota did not satisfy the definition of misconduct under section 201.012. In response, the Tribunal explained that the Commission had ruled in a prior case that an employee's failure to meet the employer's required production standards after previously demonstrating a capacity for satisfactory production, and after being counseled regarding the decreased productivity, constituted misconduct under section 201.012. The Tribunal concluded that the facts of Terrill's case were analogous to that precedent, and it affirmed the Commission's decision. Terrill appealed the Tribunal's decision to the Commission, which affirmed the Tribunal's decision and adopted the Tribunal's findings of fact and conclusions of law. Terrill then filed a suit for judicial review in the district court. The parties filed competing motions for summary judgment. The district court rendered judgment granting the Commission's motion and denying Terrill's.

         Terrill appeals the district court's ruling, arguing that his failure to meet the sales quota cannot be misconduct under section 201.012 and that we should therefore reverse the Commission's decision. The Commission's decision carries a presumption of validity, and Terrill bears the burden to show that the decision was not supported by substantial evidence. Collingsworth Gen. Hosp. v. Hunnicutt, 988 S.W.2d 706, 708 (Tex. 1998).

         Terrill argues in his appellate brief that his failure to meet sales expectations is not enough to show misconduct, citing Just Energy Texas I Corp. v. Texas Workforce Commission, 472 S.W.3d 437, 439 (Tex. App.-Dallas 2015, no pet.). However, the Commission ruling at issue in that case stated that the "claimant had never consistently been able to meet his employer's expectations." Id. That is the opposite of the Commission's ruling in Terrill's case, which stated that he "was capable of performing the work in a satisfactory manner by meeting a long-standing sales quota, with some periodic exceptions." The Just Energy case is also inapposite because the court's analysis did not involve the definition of misconduct under section 201.012 or the denial of benefits under section 207.044. It was about a plea to the jurisdiction and whether the Commission's sovereign immunity from suit was waived. Id. at 444.

         Terrill also argues that his case involves a "mere inability to perform duties" because, like other sales representatives, he has an inability to control the actions of potential customers. He explains that inability cannot constitute misconduct, citing Mercer v. Ross, 701 S.W.2d 830, 831 (Tex. 1986) and Elfer v. Texas Workforce Commission, 169 Fed.Appx. 378, 381-82 (5th Cir. 2006) (per curiam) (not designated for publication). However, Terrill does not cite any evidence indicating that the behavior of customers caused the decline in his performance.

         In its appellate brief, the Commission points to summary judgment evidence that Terrill was able to meet his quota for many years until June of 2015, at which point he failed to meet his quota for three consecutive months. During this period, Terrill was twice warned of the consequences of continued failure before he was discharged. The Commission argues that this constituted misconduct, citing Potts v. Texas Employment Commission, 884 S.W.2d 879, 883 (Tex. App.-Dallas 1994, no writ) and Texas Employment Commission v. Tates, 769 S.W.2d 290, 291- 93 (Tex. App.-Amarillo 1989, no writ), both of which held an employee's failure to perform satisfactory work, after demonstrating an ability to do so and after repeated warnings, is substantial evidence of misconduct.

         The Commission also points to summary judgment evidence that Terrill's behavior, not the conduct of his potential customers, caused his performance to decline. For example, the record contains the transcript of a statement Terrill made to the Commission in which he admitted that distractions in his personal life negatively affected his sales performance in May and June of 2015. The record also shows that Terrill told the Commission that the company's refusal to pay him a bonus upset him and affected his sales in July of that year. And the record includes a September 1, 2015 internal Park Place memorandum in which the company attributed Terrill's failure to make his sales quota to unexcused absences from work.

         The Texas Supreme Court has held that conduct which shows "such a degree of carelessness as to evidence a disregard of the consequences, whether manifested through action or inaction, " constitutes mismanagement and, therefore, misconduct. Mercer, 701 S.W.2d at 831. The Commission has presented several pieces of evidence supporting the conclusion that Terrill was able to perform his duties but that his performance declined because he was absent, distracted, and upset. The evidence also shows that his performance declined even though he was repeatedly warned about the consequences of his poor performance. Thus, the Commission has presented evidence that Terrill was careless, disregarding the consequences of his behavior through action and inaction.

         In order to prevail, the Commission must present substantial evidence, which is more than a scintilla and less than a preponderance. Hamilton v. Tex. Workforce Comm'n, No. 05-11-01214-CV, 2013 WL 1281862, at *2 (Tex. App.-Dallas Mar. 12, 2013, no pet.) (mem. op). More than a scintilla of evidence exists when the evidence supporting a finding, as a whole, rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). Terrill has presented no evidence that he was unable to perform his duties, while the Commission has presented ample evidence that he was able to perform his duties and that he was careless about the consequences of his failure to do so. The ...


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