Franklin Cox v. Texas Workforce Commission and Lincoln Technical and UCAC Inc. ( 2019 )

AFFIRM; and Opinion Filed May 10, 2019.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-17-01331-CV
FRANKLIN COX, Appellant
V.
TEXAS WORKFORCE COMMISSION,
LINCOLN TECHNICAL INSTITUTE, INC., AND UCAC, INC., Appellees
On Appeal from the 134th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-17-01261
MEMORANDUM OPINION
Before Justices Schenck, Osborne, and Reichek
Opinion by Justice Osborne
Franklin Cox appeals the trial court’s judgment affirming the decision of the Texas
Workforce Commission (“TWC”) that he was disqualified from receiving unemployment benefits.
Because there was substantial evidence to support the TWC’s decision, we affirm the trial court’s
judgment.1
BACKGROUND
Cox was employed at Lincoln Technical Institute (“Lincoln”) as a tool room attendant from
April 2013 until June 2016, when he was terminated for unsatisfactory job performance. After his
termination, Cox sought unemployment benefits in an application to the TWC. The TWC
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Cox lists UCAC, Inc. as an appellee in his brief, but does not challenge any trial court ruling with respect to UCAC, Inc. Accordingly, we
affirm the trial court’s judgment as to UCAC, Inc. without further discussion.
determined that Cox was disqualified from receiving unemployment benefits because he was
discharged for misconduct. Cox appealed the decision to each level within the TWC and then filed
a petition for judicial review in the trial court. His petition alleged that because he was “fired for
inability to perform his job to employer’s satisfaction, rather than misconduct,” he was eligible for
unemployment compensation.
The TWC and Lincoln answered and filed a joint motion for summary judgment on the
ground that there was substantial evidence to support the TWC’s decision. They offered summary
judgment evidence through the affidavit of Cox’s supervisor Rick Calverley. Calverley stated that
Cox performed his duties, including proper maintenance of Lincoln’s tool room, welding lab, and
ramp room, to Calverley’s satisfaction until January 2016. Calverley testified further:
 He became aware of argon gas leaks in the welding lab on January 21, 2016;
 He directed Cox to test for leaks in the welding booths, Teflon tape the fittings, plug
gas lines that had valves left open, repair a line in one of the booths, and retest the gas
lines after repair;
 When Cox did not complete these tasks, Calverley sent him reminders, granted multiple
extensions, and issued verbal and written warnings, explaining that the tasks were of
the highest priority because the leaks were a safety hazard for students and were costly.
Specifically, Calverley sent Cox a “Letter of Concern” dated February 2, 2016,
emphasizing the need for Cox to complete the assigned tasks. Cox was warned in the
letter that continued violations would result in further disciplinary action. Cox refused
to sign the letter to indicate that he “read and understand[s] this disciplinary action”;
 Calverley followed up with Cox’s progress on the assigned tasks after sending the letter
of concern. He instructed Cox that he could use overtime and could order tools, if
needed, to complete the tasks;
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 Cox had not completed the tasks by March 22, 2016, when Calverley issued him an
“Employee Success Plan” listing “performance concerns” including failure to complete
the tasks relating to the argon leak. Calverley warned Cox that failure to improve his
performance to the levels described in the plan would result in further disciplinary
action, potentially including termination of Cox’s employment. Cox again refused to
sign the document;
 By April 1, 2016, Cox had not completed his assigned tasks. Calverley reassigned the
tasks to another employee, who completed them within a few days; and
 Calverley terminated Cox’s employment with Lincoln effective June 23, 2016, for
unsatisfactory job performance and failure to meet the expectations listed in the
Employee Success Plan. In the “Termination Transmittal Form,” Calverley noted that
“Mr. Cox has been asked to repair leaking gas lines in weld lab. After repeatedly not
finishing task, another employee spent 4 days repairing all lines and leaks.”
Calverley attached the “Letter of Concern,” “Employee Success Plan,” and “Termination
Transmittal Form” that were given to Cox to his affidavit.
Cox filed a summary judgment response, arguing that there was “a triable issue of fact as
to whether he suffered an adverse employment action” and that the TWC’s ruling was not
supported by substantial evidence. He contended that “misconduct” precluding receipt of
unemployment benefits “does not include behavior that amounts only to poor performance like
carelessness, lack of skill, or errors made in good faith.” He objected to “summary evidence that
is not admissible or properly authenticated,” but specifically argued only that the TWC’s findings
of fact and record were inadmissible. Cox also stated he “did make emergency repair” to a welding
booth where a broken line was leaking gas. His response included an affidavit in which he swore
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“that all the facts and statements herein are true and correct.” But he did not offer any summary
judgment evidence to contradict the evidence offered by Lincoln and the TWC.
The trial court granted the motion for summary judgment. This appeal followed. In two
issues, Cox contends the trial court erred by granting summary judgment because there were
genuine issues of material fact whether the TWC’s ruling was supported by substantial evidence
and because Calverley’s affidavit was insufficient.
STANDARDS OF REVIEW
We review a summary judgment de novo. Knopf v. Gray, 545 S.W.3d 542, 545 (Tex. 2018)
(per curiam). We review the evidence presented in the motion and response in the light most
favorable to the party against whom the summary judgment was rendered, crediting evidence
favorable to that party if reasonable jurors could, and disregarding contrary evidence unless
reasonable jurors could not. See Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289
S.W.3d 844, 848 (Tex. 2009); City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).
Summary judgment is proper when there are no genuine issues of material fact and the movant is
entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co.,
690 S.W.2d 546, 548–49 (Tex. 1985).
Trial courts review TWC decisions regarding unemployment benefits “by trial de novo
based on the substantial evidence rule.” TEX. LAB. CODE § 212.202(a); Collingsworth Gen. Hosp.
v. Hunnicutt, 988 S.W.2d 706, 708 (Tex. 1998). Under this standard, the TWC’s ruling carries a
presumption of validity, and the party seeking to set aside the decision has the burden of showing
that it was not supported by “substantial evidence.” Collingsworth Gen. Hosp., 988 S.W.2d at 708;
Spicer v. Tex. Workforce Comm’n, 430 S.W.3d 526, 532 (Tex. App.—Dallas 2014, no pet.).
“Substantial evidence” is more than a scintilla and less than a preponderance. Terrill v. Tex.
Workforce Comm’n, No. 05-17-00349-CV, 2018 WL 1616361, at *2 (Tex. App.—Dallas Apr. 4,
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2018, no pet.) (mem. op.). The evidence in the record may preponderate against the TWC’s
decision but still amount to substantial evidence. Spicer, 430 S.W.3d at 533. A trial court may
grant summary judgment in cases tried under the substantial evidence rule because the only issue
before the court is a question of law. Id.
We review the trial court’s judgment by comparing the TWC decision with the evidence
presented to the trial court and the governing law. Id. We determine whether the summary
judgment evidence established as a matter of law that substantial evidence existed to support the
TWC decision. Id.
DISCUSSION
We first consider Cox’s challenges to Calverley’s summary judgment affidavit, which
provided the evidence supporting the TWC’s and Lincoln’s motion for summary judgment. In
issue 1.B, Cox challenges the sufficiency of the affidavit. Cox contends that Calverley failed to
disclose the basis on which he acquired personal knowledge of the facts he states in the affidavit.
He argues that Calverley did not state how his job duties would have afforded him knowledge of
the facts, and he argues that some of the facts Calverley stated were incorrect. He also contends
the documents attached to the affidavit are not authenticated. He concludes that Calverley’s
affidavit is legally insufficient to support the trial court’s judgment.
An affidavit supporting a motion for summary judgment must “be made on personal
knowledge, shall set forth facts as would be admissible in evidence, and shall show affirmatively
that the affiant is competent to testify to the matters stated therein.” TEX. R. CIV. P. 166a(f). The
affiant must swear that the facts in the affidavit reflect his personal knowledge. Hydroscience
Techs., Inc. v. Hydroscience, Inc., 401 S.W.3d 783, 791 (Tex. App.—Dallas 2013, pet. denied);
see also TEX. R. EVID. 602 (witness may testify to matter only if evidence is introduced sufficient
to support finding that witness has personal knowledge of matter). “An affiant’s position or job
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responsibilities can qualify him to have personal knowledge of facts and establish how he learned
of the facts.” Hydroscience, Inc., 401 S.W.3d at 791; see also TEX. R. EVID. 602 (evidence to prove
personal knowledge may consist of witness’s own testimony).
Calverley testified in paragraph 1 of his affidavit that he has “personal knowledge of all
facts recited herein and state that such facts are true and correct.” In paragraph 2, Calverley states:
I am the Education Supervisor for Lincoln Technical and have served in this
position since July 2013. As Education Supervisor, I oversee and supervise the day-
to-day operations of the institute. This includes, but is not limited to, assigning tasks
to staff, completing performance evaluations, progressively issuing performance
and behavior related discipline, and making employment decisions regarding staff
hiring, promotions, and termination. During his employment with Lincoln
Technical, I supervised Plaintiff Franklin Cox (“Cox”).
Continuing in paragraphs 2 and 3, Calverley explained that (1) his job responsibilities
include “handling and/or maintaining Lincoln Technical’s records, such as those referenced and
attached herein”; (2) he is custodian of records for Lincoln Technical; and (3) he has referenced
and attached seven pages of records concerning Cox that are “original or exact duplicates of the
original.” He also stated facts to support admission of the documents as records of a regularly
conducted activity. See TEX. R. EVID. 803(6). He specifically identified the records by title, and
later in the affidavit, explained how and when he prepared the records as part of his supervision of
Cox. See Hydroscience, Inc., 401 S.W.3d at 792 (“References to true and correct copies of
documents in support of an affidavit also establishes personal knowledge.”). Consequently, the
documents were self-authenticating. TEX. R. EVID. 902(10) (business records accompanied by
affidavit in specified form and served as required are self-authenticating).
In the remaining paragraphs of the affidavit, Calverley recounted his own communications
with Cox, including verbal and written warnings regarding Cox’s job performance. He also
explained the circumstances that led to the warnings, culminating in reassignment of Cox’s
uncompleted tasks to another employee:
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On April 1, 2016, I e-mailed Cox that there was still a “significant leak” in the
Argon tank. I explained to Cox of the numerous reminders and deadline extensions
he had already been provided to complete this task. Regardless of my reminders,
Cox failed to complete any tasks assigned to him. I reassigned Cox’s tasks to
another employee, who was able to complete them within a few days.
We conclude that Calverley’s affidavit met rule 166a(f)’s requirements, and the trial court did not
err by considering it as summary judgment evidence. See Hydroscience, Inc., 401 S.W.3d at 792.
We decide Cox’s issue 1.B against him.
In issues 1.A and 2, Cox contends there were genuine issues of material fact regarding
whether the TWC’s ruling was supported by substantial evidence. The TWC ruled that Cox
“mismanaged his position of employment” and “[a]s such, . . . was discharged for misconduct
connected with the last work” under labor code section 207.044.
“An individual is disqualified for benefits if the individual was discharged for misconduct
connected with the individual’s last work.” TEX. LAB. CODE § 207.044. “‘Misconduct’ means
mismanagement 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 a law,
or violation of a policy or rule adopted to ensure the orderly work and the safety of employees.”
Id. § 201.012.
Relying on Mercer v. Ross, 701 S.W.2d 830 (Tex. 1986), Cox contends there is no evidence
of “misconduct” meeting the statutory definition. In Mercer, the supreme court held the TWC’s
decision to pay unemployment benefits was supported by substantial evidence although Mercer, a
travel agent, “made a number of errors” and “was never able to do the job to her employer’s
satisfaction and was discharged.” Id. at 830. The court reasoned,
TEC [Texas Employment Commission] correctly determined that mismanagement,
not misconduct in general, requires intent, or such a degree of carelessness as to
evidence a disregard of the consequences, whether manifested through action or
inaction. If the legislature had intended that mere inability to perform duties
required disqualification from benefits it could have stated so. . . .
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TEC’s standard of misconduct was proper. TEC found there had been no
mismanagement and there is no evidence that Mercer’s conduct placed the lives or
property of others in jeopardy. Therefore, TEC’s decision is supported by
substantial evidence in the record before us.
Id. at 831. Cox also contends there is no evidence that he intentionally violated a policy or rule,
and “no evidence of intent or careless disregard for the consequences present in this cause.”
In contrast to Mercer, there was evidence that Cox performed his job to his employer’s
satisfaction for over two years before the problems arose that led to his termination. Then, in
January 2016, Cox was given a specific list of tasks to complete and a deadline for completing
them. Cox did not offer any evidence that he could not perform the tasks or that the requests were
unreasonable. He did not offer any explanation to Calverley for his failure to complete the tasks
despite the many extensions of time and specific warnings he received. Calverley extended the
deadline for completing the tasks several times over a period of months to give Cox an opportunity
to finish the work, but he never did. Calverley informed Cox that the work was his highest priority
and that refusing to follow his supervisor’s reasonable directive was in violation of a provision in
the employee handbook. Calverley instructed Cox to “seek guidance from the shift Education
Supervisor” if he had other daily tasks that interfered with completing the work. After months of
extended deadlines, Calverley finally assigned the work to another employee, who completed the
work in four days. This summary judgment evidence supports a conclusion by the TWC that Cox
mismanaged his position of employment by “such a degree of carelessness as to evidence a
disregard of the consequences, whether manifested through action or inaction.” Cf. id. at 831.
In Potts v. Texas Employment Commission, 884 S.W.2d 879, 881 (Tex. App.—Dallas
1994, no writ), the summary judgment evidence showed that Potts, a warehouseman, was
discharged by his employer for repeatedly failing to follow written requisition procedures and for
misfiling requisitions. The TEC concluded that because Potts failed to follow procedures and did
not use a reasonable degree of care in the performance of his duties, he engaged in mismanagement
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or neglect that placed the property of others in jeopardy. Id. at 883. In concluding that the trial
court was correct in granting summary judgment for the employer and the Commission, we
explained:
ABCO [the employer] counseled Potts at least three times about his poor job
performance in misfiling orders and following procedures. After each counseling
session, Potts’s performance would improve for a period of time before he would
return to an unacceptable level of performance. The trial court correctly found
substantial evidence existed to support TEC’s denial of benefits for
mismanagement.
Potts did not follow simple, written procedures for filling requisitions. He did not
always have the recipient of the requisitioned materials, check the materials
delivered and complete the necessary documentation—purely mechanical,
administrative tasks. That Potts would follow procedures for some time after a
reprimand showed he could do the work and was aware of its requirements. His
repeated failure to follow the procedures evidences neglect. Potts’s neglect
endangered ABCO’s property. ABCO suffered property loss because it incurred
extra expenses correcting Potts’s negligent acts.
TEC and ABCO established that there was substantial evidence to support TEC’s
decision as a matter of law.
Id. at 883 (citation omitted). Here, as in Potts, we conclude that substantial evidence existed to
support the TWC’s denial of benefits for mismanagement under labor code sections 201.012 and
207.044.
Cox also argues that he raised genuine issues of material fact, including (1) whether he
completed the repairs of the broken argon line, (2) whether Lincoln violated its own “performance
appraisal program” by taking disciplinary action against him without giving him a performance
review in January 2016, and (3) whether there was any evidence of poor performance, given his
most recent performance review in January 2015 showing that he met expectations in the
performance of his job duties. Cox also argues that he did complete some of the assigned tasks; it
was impossible to complete other assigned tasks in the time allotted; he was not authorized to do
some of the assigned tasks; and in any event, the tasks were not a high priority. But Lincoln and
the TWC offered evidence to contradict Cox’s contentions, as we have discussed. And in any
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event, our review concerns whether the summary judgment evidence established as a matter of law
that substantial evidence existed to support the TWC’s decision, not whether there was some
evidence to the contrary. See Spicer, 430 S.W.3d at 532–33. Even if the evidence had
preponderated against the TWC’s decision, we have concluded that there was more than a scintilla,
and thus “substantial evidence,” to support the TWC’s decision. See id. We conclude that Cox did
not meet his burden to show that the TWC’s decision was not supported by “substantial evidence.”
Collingsworth Gen. Hosp., 988 S.W.2d at 708; Spicer, 430 S.W.3d at 532–33. We decide issues
1.A and 2 against Cox.
CONCLUSION
We affirm the trial court’s judgment.
/Leslie Osborne/
LESLIE OSBORNE
JUSTICE
171331F.P05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
FRANKLIN COX, Appellant On Appeal from the 134th Judicial District
Court, Dallas County, Texas
No. 05-17-01331-CV V. Trial Court Cause No. DC-17-01261.
Opinion delivered by Justice Osborne;
TEXAS WORKFORCE COMMISSION, Justices Schenck and Reichek,
LINCOLN TECHNICAL INSTITUTE, participating.
INC., AND UCAC, 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, Lincoln Technical Institute,
Inc. and UCAC, Inc. recover their costs of this appeal from appellant Franklin Cox.
Judgment entered this 10th day of May, 2019.
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