City of Dallas v. Texas Employment Commission

626 S.W.2d 549, 1981 Tex. App. LEXIS 4350

• Court: Court of Appeals of Texas
• Decided: November 10, 1981
• Docket: 8940
• Status: Published

Opinions

CORNELIUS, Chief Justice.

Charles Gulden was discharged from his position as a right-of-way agent for the Dallas Public Works Department because of his refusal to take a polygraph test in connection with an investigation of a bomb threat. The Texas Employment Commission ruled that Mr. Gulden’s refusal to submit to the test did not constitute misconduct as that term is used in Tex.Rev.Civ. Stat.Ann. art. 5221b-3(b),¹ and awarded him unemployment compensation. The City appealed to the district court which found the Commission’s decision to be supported by substantial evidence and affirmed it. We agree and affirm the district court’s judgment.

The bomb threat was directed to the City Credit Union which was housed in the same building as the Public Works Department. Because previous pranks had occurred in the right-of-way division of the Public Works Department, its employees were considered prime suspects in the bomb threat. The director of Public Works circulated a memorandum directing each employee of the right-of-way division to sign an attached waiver and consent to the polygraph examination. Mr. Gulden at that time was considered an active suspect. He, along with several other employees, refused to submit to the polygraph examination, but in other respects he fully cooperated with the police investigation. He was not notified, at the time he was employed, that he might be required to take a polygraph examination in connection with his work. Both the Commission and the district court relied heavily upon that fact in finding that his refusal to take the test did not constitute misconduct as contemplated by the statute.

Mr. Gulden was officially discharged for violating Rule 7.4(d) of the City’s Personnel Rules, which provides that:

Ҥ 7.4. The following are offenses which apply to all employees and which are grounds for discharge, ...:

(d) Insubordination. Willful failure or refusal to perform assigned work; or to fully comply with instructions or orders as requested by the supervisor or other member of management.”

The City contends that Mr. Gulden’s refusal to obey the direct order of his superior concerning the polygraph examination was insubordination of such a nature as amounts to misconduct sufficient to disqualify him from unemployment benefits. The City recognizes the right of Mr. Gulden to refuse to take the test on Fifth Amendment self-incrimination grounds, but argues that since the United States Supreme Court has now ruled that a test given under the circumstances existing here cannot be used against the employee in a subsequent criminal prosecution,² his refusal to take the test was unreasonable and thus constituted misconduct.

As used in the unemployment statutes, misconduct has been defined as an act of wanton or willful disregard of the employer’s interest, a deliberate violation of the employer’s rules, or a disregard of standards of behavior which the employer has the right to expect of his employees. Texas Employment Commission v. Ryan, 481 S.W.2d 172 (Tex.Civ.App.—Texarkana 1972, no writ), and cases there cited. Implicit in the definition and confirmed by the cases is the fact that, when the charge of misconduct is based upon the violation of a work rule or a supervisor’s directive, the rule or directive must be reasonable. See Hickenbottom v. District of Columbia, 273 A.2d 475 (D.C.App.1970); Gregory v. Anderson, 14 Wis.2d 130, 109 N.W.2d 675 (1961). Another way of expressing it is that the employee’s refusal must not be unreasonable, judged by what a reasonable, prudent person would do under the same or similar circumstances. It is true that this criterion tends to place emphasis upon the subjective motives and attitudes of the employee rather than upon objective standards, but one cannot determine whether an employee’s action is misconduct within the humanitarian purpose of the unemployment compensation statutes without judging the reasonableness of his act from his standpoint in the light of the circumstances facing him and the knowledge possessed by him at the time.

The City argues that the high degree of trustworthiness and dependability necessary for public employees demands that the public agency have, the right to discharge employees who claim the privilege against self-incrimination. The correctness of that assertion has been established. Lefkowitz v. Cunningham, 431 U.S. 801, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977); Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968). But the issue here is not wrongful discharge. The Commission concedes that the City had the right to discharge Mr. Gulden. The issue here is the employee’s entitlement to benefits under the provisions of a beneficent statute. Conduct constituting good cause for termination of employment does not necessarily equate with conduct disqualifying one from the benefits of that statute. To constitute the latter, the acts or omissions must rise to the level of misconduct, which generally requires wrongful intent, bad faith or wanton disregard of the employer’s interests. See, for example, Boughton v. Division of Unemploy. Ins., Dept. of Lab., 300 A.2d 25 (Del.Super.1972); James v. Levine, 34 N.Y.2d 491, 358 N.Y.S.2d 411, 315 N.E.2d 471 (1974); Hulse v. Levine, 41 N.Y.2d 813, 393 N.Y.S.2d 386, 361 N.E.2d 1034 (1977); Liebmann Packing Co. v. Industrial Commission, 27 Wis.2d 335, 134 N.W.2d 458 (1965); 81 C.J.S. Social Security § 222 at 428; § 224 at 441.

In view of the facts here, particularly that Mr. Gulden was not advised at the time of his employment that there was a possibility of his being subjected to a polygraph examination, and that at the time he was asked to submit to the test he was an active suspect and apparently believed he was properly exercising his constitutional privilege against self-incrimination, we find there was substantial evidence before the trial court that his refusal to take the test was not misconduct as contemplated by the statute.

The judgment is affirmed.

1 . “Art. 5221b-3. Disqualification for benefits

An individual shall be disqualified for benefits:

(b) If the Commission finds he has been discharged for misconduct connected with his last work. Such disqualification shall be for not less than one (1) nor more than twenty-six (26) benefit periods following the filing of a valid claim, as determined by the Commission according to the seriousness of the misconduct.”

2 . Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967).