Dille, John A. v. Centerre Healthcare Corporation and Texas Workforce Commission

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AFFIRM; Opinion issued June 28, 2012

In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-11-01354-CV
............................
JOHN DILLE, Appellant
V.
TEXAS WORKFORCE COMMISSION AND CENTERRE
HEALTHCARE CORPORATION, Appellees
.............................................................
On Appeal from the 380th Judicial District Court
Collin County, Texas
Trial Court Cause No. 380-00415-2011
.............................................................

MEMORANDUM OPINION

Before Justices FitzGerald, Murphy, and Fillmore
Opinion By Justice Fillmore

The Texas Workforce Commission (TWC) determined John Dille was
not entitled to recover severance pay under the Texas Payday Law from
his former employer, Centerre Healthcare Corporation (Centerre). Dille
sought judicial review of the TWC’s decision in the district court. The
trial court found there was substantial evidence to support the TWC’s
decision denying Dille’s wage claim and affirmed the decision. In two
issues on appeal, Dille argues the trial court erred by affirming the
TWC’s decision because the decision (1) is not supported by substantial
evidence and (2) is unreasonable because it was made without regard to
the facts. We affirm the trial court’s judgment. The background of this
case and the evidence adduced at the various hearings are well known to
the parties, and therefore we limit recitation of the facts. We issue
this memorandum opinion pursuant to Texas Rule of Appellate Procedure

47.4 because the law to be applied in this case is well settled.
Background
On March 12, 2009, Dille began working for Centerre as a
vice-president of business development. Centerre’s business model
involved partnering with hospital systems for the development and
operation of joint-venture inpatient rehabilitation centers. Dille was
responsible for identifying, pursuing, and establishing those
partnerships for Centerre within the western region of the United
States.
On April 17, 2009, Dille and Centerre entered into a
Confidentiality, Noncompetition, and Nonsolicitation Agreement (the
Agreement). The Agreement stated that if Centerre terminated Dille’s
employment, Dille would be entitled to severance pay equal to one-half
his annual salary unless the termination was for cause. As relevant to
this case, the Agreement defined “cause” as “a continued failure by the
Employee to perform assigned duties after receiving written notification
of such failure from the Employer.”
On July 22, 2009, Jim Salandi, Dille’s immediate supervisor,
provided Dille a written performance notice that contained the following
“goals and expectations” for Dille to achieve by August 31, 2009: (1)
execute two letters of intent; (2) schedule three face-to-face meetings
with potential joint-venture partners; and (3) complete face-to-face
meetings with two potential joint- venture partners. The performance
notice further stated that if Dille did not achieve the outlined goals,
and immediate and sustained improvement was not seen in Dille’s

performance, “further action up to and including discharge [would]
result.” Dille did not achieve any of the goals enumerated in the July
22 performance notice by the August 31 deadline. On February 15,
2010, Salandi provided Dille a “Final Written Performance Notice” that
contained the following “goals and expectations” for Dille to achieve by
March 5, 2010: (1) execute one letter of intent; and (2) schedule two
face-to-face meetings with potential joint-venture partners. The
February 15 performance notice referenced Dille’s “poor performance” and
indicated that Dille’s failure to complete the enumerated goals by the
March 5 deadline would result in the termination of his employment with
Centerre. Dille did not achieve any of the goals described in the
February 15 performance notice and was terminated on March 5, 2010.
Centerre denied Dille’s request for severance pay under the
Agreement, claiming Dille was terminated for cause due to his continued
failure to meet goals and expectations. Dille filed a Payday Law claim
against Centerre with the TWC seeking the unpaid severance compensation.
See Tex. Lab. Code Ann. §§ 61.001-.095 (West 2006 & Supp. 2011). A TWC
investigator conducted a hearing at which Dille admitted he did not meet
the goals set out in either the July 22 performance notice or the
February 15 performance notice, but testified he performed all his
duties. Dille asserted the “goals” listed in the performance notices
were aspirational and distinct from the “duties” of his position, and
the failure to meet aspirational goals could not form the basis for

termination for cause under the Agreement. In response, Julie Farris,
Centerre’s vice-president of human resources, testified that, as a
vice-president of business development, Dille’s job responsibilities
required him to close partnership deals with hospital systems. According
to Farris, Dille’s assigned duties included accomplishment of the goals
listed in the performance notices. Farris also testified that Dille was
informed his duties included the listed goals. The TWC investigator
issued a Preliminary Wage Determination Order, finding that Dille was
not entitled to the unpaid severance compensation and dismissing Dille’s
wage claim.
Dille appealed the wage determination order to the TWC Wage
Claim Appeal Tribunal. The Appeal Tribunal affirmed the wage
determination order and made the following findings of fact:
As the Vice President of Business Development, the claimant was
basically responsible for establishing business partnerships between the
employer and other companies. His duties included establishing those
partnerships and all their attendant tasks. The employer informed the
claimant, verbally and in writing, that he was required to accomplish
specific goals as part of his job duties. The claimant failed to
accomplish those goals and was terminated for cause on March 5, 2010.
The employer did not pay the claimant any severance pay, justifying its
denial under section 9(c)(vi) of the Noncompete Agreement. The claimant
failed to perform his assigned duties, namely, achieving partnership
goals.

Dille appealed the decision of the Appeal Tribunal to the full TWC. The
TWC adopted the findings of fact and conclusions of law of the Appeal
Tribunal and affirmed the denial of Dille’s claim. Dille sought judicial
review of the TWC’s decision in the district court. At trial, Dille,
Centerre, and the TWC submitted evidence that was consistent with the
evidence presented at the original TWC hearing. The district court
affirmed the TWC’s decision and this appeal ensued.
Standard of Review
Decisions of the TWC regarding wage claims are subject to
judicial review “by trial de novo with the substantial evidence rule
being the standard of review.” Tex. Lab. Code Ann. § 61.062(e) (West
2006). Under this hybrid review, the trial court “conducts an
evidentiary hearing for the limited purpose of determining 'whether at
the time the questioned order was entered there then existed sufficient
facts to justify the agency’s order.’” Cooper v. Tex. Workforce Comm’n,
343 S.W.3d 310, 312 (Tex. App.-Dallas 2011, pet. denied) (quoting Bd. of
Trs. of Big Spring Firemen's Relief & Ret. Fund v. Firemen’s Pension
Comm'r, 808 S.W.2d 608, 612 (Tex. App.-Austin 1991, no writ)). While the
trial court “must hear and consider evidence to determine whether
reasonable support for the administrative order exists,” the “agency
itself is the primary fact-finding body, and the question to be
determined by the trial court is strictly one of law.” Id. (quoting
Firemen’s & Policemen's Civil Serv. Comm'n v. Brinkmeyer, 662 S.W.2d
953, 956 (Tex. 1984)). The appellate court reviews the trial court’s

judgment. Id.
The TWC ruling is presumptively valid, and “the party seeking to
set aside the [agency’s] decision has 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); see also Hooda
Corp., Inc. v. Tex. Alcoholic Beverage Comm’n, No. 05-11-00064-CV, 2012
WL 1881055, at *2 (Tex. App.-Dallas May 24, 2012, no pet. h.). Under the
substantial evidence standard, an administrative decision is reasonably
supported by substantial evidence if “the evidence as a whole is such
that a reasonable mind could have reached the same conclusion the judge
reached in order to justify his decision.” Tex. Alcoholic Beverage
Comm'n v. Cabanas, 313 S.W.3d 927, 930 (Tex. App.-Dallas 2010, no pet.)
(quoting Garza v. Tex. Alcoholic Beverage Comm'n, 138 S.W.3d 609, 613
(Tex. App.-Houston [14th Dist.] 2004, no pet.)). Substantial evidence is
more than a scintilla and less than a preponderance. Id. Thus, the
evidence may actually preponderate against the decision of the TWC, but
nevertheless satisfy the substantial evidence standard. Id.
In determining whether substantial evidence exists in support of
an administrative decision, the reviewing court may not invade the fact
finding authority of the agency. State Banking Bd. v. Allied Bank Marble
Falls, 748 S.W.2d 447, 448-49 (Tex. 1988) (per curiam); Cabanas, 313
S.W.3d at 930. The court may not substitute its judgment for that of the
agency on controverted issues of fact. Brinkmeyer, 662 S.W.2d at 956;

Cabanas, 313 S.W.3d at 930. “The reviewing court is concerned only with
the reasonableness of the administrative order, not its correctness.”
Brinkmeyer, 662 S.W.2d at 956; see also Cabanas, 313 S.W.3d at 930. The
ruling of the TWC may be set aside only if it was made without regard to
the law or the facts and, therefore, was unreasonable, arbitrary, or
capricious. Collingsworth, 988 S.W.2d at 708; Murray v. Tex. Workforce
Comm'n, 337 S.W.3d 522, 524 (Tex. App.-Dallas 2011, no pet.).
Analysis
Dille argues the trial court erred by affirming the TWC’s ruling
denying him severance pay from Centerre because the ruling was not
supported by substantial evidence and was unreasonable because it was
not supported by the facts. Both of Dille’s issues are premised on
Dille’s argument that he was not terminated for cause because, although
he failed to achieve certain “goals,” he did not fail to perform his
assigned “duties.” Dille contends that aspirational goals are not
duties. Dille maintains that because the definition of “cause” for
termination in the Agreement refers only to a continued failure by the
employee to perform assigned “duties” after receiving written
notification of such failure from the employer, his failure to achieve
stated “goals” cannot justify a termination for cause and a denial of
severance pay.
We disagree. Under the Agreement, Dille was not entitled to
severance compensation if he was terminated for a continued failure to
perform his assigned duties after receiving written notice of such

failure from Centerre. The evidence before the TWC established Dille was
hired by Centerre to generate business partnerships with hospital
systems for the development and operation of joint- venture inpatient
rehabilitation centers. Farris testified that Dille’s ultimate duty as a
vice-president of business development was to close partnership deals.
Centerre notified Dille in writing on two occasions that he must meet,
within a specific time frame, individual performance goals in
furtherance of the duties of his position. These goals included
scheduling and completing face-to- face meetings with potential
joint-venture partners and executing letters of intent to proceed with
partnerships. Farris testified Dille was told these goals were part of
his duties. Dille admitted he failed to meet any of the goals. The TWC
found that Dille was told he was required to accomplish specific goals
as part of his job duties and that Dille failed to perform his “assigned
duties, namely achieving partnership goals” and denied Dille's claim for
severance pay.
We conclude Dille failed to establish the TWC’s decision was not
supported by substantial evidence. Given the facts of this case, the
volume of evidence presented to the TWC, and the limited scope of
judicial review, we cannot say that the trial court erred by affirming
the TWC’s decision. We resolve both of Dille’s issues against him and
affirm the trial court’s judgment.

ROBERT M.
FILLMORE
JUSTICE
111354F.P05
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JOHN DILLE, Appellant
No. 05-11-01354-CVV.

TEXAS WORKFORCE COMMISSION AND CENTERRE HEALTHCARE CORPORATION,
AppelleesAppeal from the 380th Judicial District Court of Collin County,
Texas. (Tr.Ct.No. 380- 00415-2011).
Opinion delivered by Justice Fillmore, Justices FitzGerald and Murphy
participating.
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 and Centerre Healthcare Corporation recover
their costs of this appeal from appellant John Dille.
Judgment entered June 28, 2012.
/Robert M.
Fillmore/
ROBERT M.
FILLMORE
JUSTICE

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