Petition for Writ of Certiorari — Franklin Cox, Petitioner v. Texas Workforce Commission, et al.

No.

i tail I

In the

SUPREME COURT OF THE UNITED STATES

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FRANKLIN COX, Petitioner

v.

TEXAS WORKFORCE COMMISSION

AND LINCOLN TECHNICAL, Respondent

FILED

MAR 0 2 m

On Petition for a Writ of Certiorari to the

Supreme Court of the State of Texas

PETITION FOR A WRIT OF CERTIORARI

'

Franklin L. Cox

P.O. Box 398783

Dallas, Texas 75339

Cell: (214) 491-0316

Petitioner Pro Se

RECEIVED

AUG - 5 2020

OFFICE OF THE CLERK

SUPREME COURT. U.S.

QUESTION’S PRESENTED

1. Will the employee have a duty to defend

employer tax audit for unemployment joined

as employer in the above reference cause?

2. Under Tex. Lab. Code 207.044 Misconduct

neglect that jeopardizes the life or property of

another does the legal standard-vicarious lia­

bility- an employer can be held liable for its

employee degree of careless as to evidence

a disregard of the consequence, an whether

manifested through action or inaction apply

in the above reference cause?

3. How can the substantial evidence rule be

properly applied when no date in the record

that misconduct occurred on to satisfy the

first prongs of misconduct and second prongs

discharge dose in time to termination?

4.Did supervisor cause employee to abandoned

job assignment, refusal of job assignment, or

delay performance of job assignment?

5. Within the scope of employer’s business or

related to employer’s equipment what confide­

ntial and proprietary information was discl­

osed to employee including training on a task

-task basis for assignment?

6. Is Affirmative Defense of Impracticability

°r Impossibility of Performance with summary

evidence sufficient to raise an issue of fact

on each element to preclude summary judg­

ment is applicable to above reference cause?

See Brownlee v. Brownlee, 665 S. W. 2d 111,

112 (Tex. 1984).

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PARTIES TO THE PROCEEDING

[X] All parties appear in the caption of the case

on the cover page.

Franklin L. Cox

Petitioner

P.O. Box 398783

Dallas, Texas 75339

Pro Se

Texas Workforce Commission

Respondent

Counsel of Record

Matthew T. Kennedy

P.O. Box 12548

Austin, Texas 78711

Lincoln Technical

Counsel of Record

Respondent

Victor Navasca Corpuz

500 N. Akard, Ste. 2500

Dallas, Texas 75201

[X] All parties do not appear in the caption of

the cover page.

UCAC INC

See(CR 194; App J1201 Richardson Dr., Ste. 110 CR 195; App I).

Richardson, Texas 75080

Cox v. TWC & Lincoln Technical No. DC-17-012

61, U.S. District Court of Dallas. Judgment ent­

ered Nov. 3, 2017.

Cox v. TWC & Lincoln Technical No. 05-17-03131-CV U.S. Court of Appeals for the Fifth Distr­

ict at Dallas. Judgment entered May 10, 2019.

Cox v. TWC & Lincoln Technical No. 19-0443

Supreme Court of Texas petition for review den­

ied October 4, 2019.

Cox v. TWC & Lincoln Technical No. 19-0443

Supreme Court of Texas motion for rehearing

denied December 6, 2019.

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1

TABLE OF CONTENTS

Page

Questions Presented

1

Parties to the Proceeding,

n

Table of Contents

in

Table of Authorities

,v

Petition for a Writ of Certiorari

.1

Opinions Below

1

Jurisdictional Statement

1

Statement of the Case

2

Reasons for Granting the Writ.

3

1. Will the employee have a duty

to defend employer tax audit for

unemployment joined as employer

in the above reference cause?.......

4

2. Under Tex. Lab. Code 207. 044

Misconduct neglect that jeopardizes

the life or property of another does

the legal standard - vicarious liab­

ility an employer can be held liab­

le for its employee degree of carele­

ssness as to evidence a disregard

of the consequence, an whether ma­

nifested through action or inaction

apply in the above reference cause?..

5

-m-

TABLE OF CONTENTS- Continued

Page

3. How can the substantial evidence rule

be properly applied when no date in

the record that misconduct occurred

on to satisfy the first prongs of mis­

conduct and second prongs discharge

close in time to termination?.................. 7

4. Did supervisor cause employee to

abandoned job assignment, refusal

of job assignment, or delay perfor­

mance of job assignment?...................... 7

5. Within the scope ofemployer’s bus­

iness or related to employer’s equip­

ment what confidential and propriet­

ary information was disclosed to em­

ployee including training on a tasktask basis for assignment?.................... 9

6. Is Affirmative Defense of Impract­

icability or Impossibility of Performa­

nce with summary evidence sufficient

to raise an issue of fact on each elem­

ent to preclude summary judgement

is applicable to the above reference

cause? See Brownlee v. Brownlee, 665

S.W. 2d 111,112 (Tex. 1984).................. 10

Conclusion

11

Index To Appendices

Appendix A Decision of State Court of

Appeals.............................

12-13

Appendix B Decision of State Trial Court.. .14-15

-IV-

TABLE OF CONTENTS- Continued

Page

Appendix C Decision of State Supreme

Court Denying Review....

16-17

Appendix D Order of State Supreme

Court Denying Rehearing.

18-19

Appendix E (CR 133) booth 73 repairs are

Complete................................. 20-21

Appendix F (CR 136) update of progress

Feb. 11 & Feb. 23, 2016......

22-23

Appendix G (CR 162) Argon repair

1-21-16 11:48 am.......

24-25

Appendix H Photo of V 350 without

attachment...................

26-27

Appendix I (CR 113) Right to sue letter..... 28-29

Appendix J (CR 195) Declaration of

UCAC INC/ Motion to Dismiss.30-31

Appendix K (CR 194) Memorandum of

UCAC INC........................

32-33

Appendix L (CR 129) Letter of Concern

received after 6/28/16........

34-35

Appendix M (CR 134) Mr. Calverley email

I can not give you plugs 1/25/16..36-37

Appendix N (CR 135) Cox request more thr­

ead seal tape no response 1/29/16.38-39

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TABLE OF AUTHORITIES

Cases

Page

Adams v. Starside Custom Builders,

4

ILC, 547 S. W. 3d 890,896(Tex. 2018)

Collingsworth Gen. Hosp. v. Hunnicutt,

988 S. W. 2d 706, 709 (Tex. 1998)......

7

Farmer Enters., Inc v. Gulf States Ins. Co.,

940 S. W. 2d 103, 111, (Tex. App, Dallas

1996, no writ)............................................... 7

Goodyear Tire & Rubber v. Mayes,

236 S.W. 3d 754, 757 (Tex. 2007)................ 6

GTE Sw., Inc v. Bruce, 998 S. W. 2d

606, 617 (Tex. 1999).............................

6

G. T. Mgmt., Inc v. Gonzalez,

106 S. W. 3d 880, 884 (Tex.Dallas 203 no pet).....................................

6

Meggs v. Texas Unemployment

Compensation Comm’n, 234

S. W. 2d 453.............................................. 8

Mercer v. Ross, 701 S. W. 2d

830, 884 (Tex. 1986)................................. 4

Minyard Food Stores,Inc v. Goodman

80 S. W. 3d 880, 884 (Tex. 2002)........... 6

Saavedra v. Texas Workforce

Commission No. 09-12-00567-CV........... 7

South Tex. 66 Pipeline Co., 238 S. W.

3d at 543 (citing Brownlee v. Brown­

lee 665 S. W. 2d 111, 112 (Tex. 1984)..... 3.10

Stoker’s v. TWC Commissioners

(2013). No.05-00086-CV............................ 5

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TABLE OF AUTHORITIES -Continued

'

Page

Texas Labor Code..201.012'.

7

Texas Labor Code..207.044..

..5

4

Texas Labor Code..212.201.

Texas Labor Code.. 212.202

4

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f.

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of

certiorari issue to review the judgment below:

OPINIONS BELOW

[X] For cases from state courts:

The opinion of the highest state court to

review the merits is reprinted appears

at Appendix A to the petition and is desidesignated for publication but is not yet

reported

The opinion of the state trail court reprin­

ted appears at Appendix B to the petition

and is unpublished.

JURISDICTION

The date on which the highest state court decid­

ed my case was Oct. 4. 2019 a copy of that decis­

ion reprinted appears at Appendix C.

[X] A timely petition for rehearing was there

after denied on the following date: Dec.6. 2019.

and a reprinted copy of the order denying rehea­

ring appears at Appendix D.

The jurisdiction of this Court is invoked under

28 U.S.C. § 1257(a).e

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STATEMENT OF THE CASE

On Jan. 21, 2016 became aware of issue with

Argon supply line to booth 73, % inch Duratec

line was broken above cut off valve. Mr. Calverley

had contacted Cox at ramp room about 10: am

with Mr. Rivera and Air gas service tech for the

Argon and Co2 tanks outside. At the ramp room

Mr. Calverley stated it was leaks all over lab,Cox

lock ramp room went in to welding lab.Broken

Argon line booth 73 is a significant leak allowing

Argon to flow into booth 73 and welding lab. Fou­

nd Mr. Calverley told him about leak show it to

him and he wanted to know long it would take to

repair? About a hour.

Received email on Argon leaks (CR 162) Jan 21,

2016 11:48 am. (Exhibit 1 hand writing).

Sent email (CR 133; App D) Jan 21, 2016 booth

73 repairs complete at 4:30pm.

Cox request for plugs refusal 1/25/2016 3:04 pm.

(CR 134; App L) received in May 2016.

Cox request more thread seal tape no response

1/29/2016 (CR 135; App M (CR 67 line 17).

Request for update 2/11/2016 9:41 am. Mr. Cal­

verley (CR 136; App E).

Response sent 2/11/2016 12:31 pm (CR 136; App

E).

Request for update Mr. Calverley 2/23/2016 (CR

136; App E).

Response sent to Mr. Calverley 2/23/2016 1:55

pm (CR 136; AppE).

Employee Success Plan meeting 3/22/2016 (CR

157).

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F

Notice given to Mr. Calverley in good conscious

can not sign this plan 3/23/2016 in person.

Response to Employee Success Plan disagreement

clause 3/30/2016 (CR 160-161).

Email received Mr. Calverley “significant leak”

April/1/2016 (CR 139).

Affidavit of Mr. Calverley he testified that was a

“significant leak” in the Argon tank (CR 171).

Cox has never did any work in the Argon and Co2

tank area at Lincoln.

In the memorandum opinion the fifth court of

appeals erred by relying on Mr. Calverley affida­

vit. See opinion page 7 line 1. Rick Calverley

Affidavit statement represented in the affidavit

need factual specificity such as place, time and

exact nature of the alleged facts .South Tex 66

Pipeline Co., 238 S. W. 3d at 543 (citing Brownlee

v. Brownlee, 665 S'. W. 2d 111, 112 (Tex. 1984).

REASON FOR GRANTING THE WRIT

The opinion of the Fifth Court of Appeals has dec­

ided an important question of federal law that

has not been, but should be, settled by this Court,

or has decided an important federal question in a

way that conflicts with relevant decision of this

Court.

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I

Judicial review of an administrative decision re­

garding a former employee’s right to employment

benefits requires a trial de novo with substantial

evidence review. Tex. Lab. Code 212.202; Mercer

v. Ross , 701 S. W. 2d 830, 831 (Tex. 1986).

The document which the Dallas Fifth Court of

Appeals refused to consider demonstrate the

existence of fact issues that should preclude

summary judgment.

This Court has emphasized repeatedly that the

Rules of Appellate Procedure recognize a strong

policy preference in Texas that appeals are to be

resolved on the merits whenever possible. See,

Adams v. Starside Custom Builders, LLC, 547

S.W. 3d 890, 896 (Tex. 2018).

Cox deserves appellate review on the merits to

determine whether the trial court erred in rend­

ing summary judgment against him for miscon­

duct connect with work. The Court of appeals

erred: by failing to reach the merits of Cox argu­

ments on appeal.

1. Will the employee have a duty to defend

employer tax audit for unemployment join­

ed as employer in the above reference

cause? Texas Labor Code under section 212.201

(a) states that a party aggrieved by a final decis­

ion of the TWC may obtain judicial review of

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:

the decision by bringing a suit for review again­

st the TWC not later than the fourteenth day af­

ter the decision becomes final. Subsection (b)

sates that “JeJach other party to the proceeding

before the commission must be made a defend­

ant in an action under this chapter.” On Cox

letter of right to sue UCAC INC with business

address was listed as employer, Lincoln Techni­

cal above UCAC INC (CR 113 ; AppH). See

Stoker’s v. TWC Commissioners (2013). No. 0500086-CV by the statute, which included mand­

atory defendants, had to be brought within the

limitation period to Confer jurisdiction on the

trial court. TWC and Lincoln Technical were the

mandatory defendants, UCAC the necessary

defendant should not be under the jurisdictional

prerequisite for suit against the government

with the limitation period. Once the limitation

period expires the necessary defendant can be

dismiss. See Declaration of UCAC, INC, and

Motion to Dismiss UCAC, INC (CR 195 ; App I).

Also See Memorandum of UCAC, INC (CR 194;

App J). Cox does not put UCAC, INC in front of

this above reference cause. UCAC, INC is not

Cox employer.

2. Under Tex. Lab Code 207.044 Misconduct

neglect that jeopardizes the life or proper­

ty of another does the legal standard - vic­

arious liability - an employer can be held

liable for its employee degree of careless-5-

ness as to evidence a disregard of the

consequence , an whether

manifested

through action or inaction apply in the

above reference cause?

Generally, an

employer is vicariously liable for the torts of his

employees committed in the course and scope of

their employment. See GTE Sw., Inc v. Bruce,

998 S. W. 2d 605, 617 (Tex. 1999). The test is

whether the employee was acting within the

scope of employment, not whether the employer

authorized the specific act. See Farmer Enters.,

Inc v. Gulf States Ins. Co., 940 Sh. W. 2d 103,

111 (Tex. App.-Dallas 1996, no writ). An empl­

oyer is liable “when the tortious act falls within

the scope of the employee’s general authority in

furtherance of the employer’s of employer’s busi­

ness and for the accomplishment of the object

for which the employee was hired.”

Minyard

Food Stores, Inc v. Goodman, 80 S. W. 3d 573,

577 (Tex. 2002); see also G.T. Mgmt., Inc v. Gon­

zalez, 106 S. W. 3d 880, 884 (Tex.-Dallas 2003,

no pet.)(employer liable for act of employee even

if act contrary to express orders, if done within

general authority of employee). The employee’s

acts must be of the same general nature as the

conduct authorized or incidental to authorized

conduct to be within the scope of employment.

Goodyear Tire & Rubber Co. v. Mayes , 236 S.W

. 3d 754, 757 (Tex. 2007). Cox was hired at Linc­

oln Technical as a tool room attendant in the

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furtherance of the employer’s business, Cox es­

sential duties and responsibilities “ Perform”

duties and responsibilities as assigned. Advise

the supervisor of needed materials. We are teac­

hing student to become certified welder See (CR

13 - 14; Exhibit 1).

3. How can the substantial evidence rule

be properly applied when no date in the

record that misconduct occurred on to

satisfy the first pongs of misconduct and

second pongs discharge close in time to

termination? Cox directs the Court to Brief

of Appellant page 17 line 13 , “evidence missing

from the record no date of misconduct close in

time to termination as in Saavedra v. Texas Wo­

rkforce Commission No. 09-12-00567-CV.” Date

of misconduct May 26, 2010, date of discharge

June 10, 2010. In the above reference cause no

date of misconduct to satisfy the first pongs to

trigger the denial of unemployment benefits

Tex. Labor Code 201. 012. Collingsworth Gen.

Hosp. v. Hunnicutt, 988 S. W. 2d 706, 709 (Tex.

1998). And does not fit within statutory definiti­

on. Cox was performing the object for which Cox

was hired and was within the scope of employ­

ment.

4. Did supervisor cause employee to aband­

oned job assignment,refusal of job assign­

ment, or delay performance of job assignm­

ent.

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When the reason for the discharge is neglect

that endangers property of the employer, the

neglect must be intentional or must show such

carelessness that it indicates a disregard for the

consequences. Mere failure to perform the task

to the satisfaction of the employer, without more

, does not constitute misconduct which disqualies an employee from benefits.

!

The purpose of the statute is to provide benefits

for the unemployed and as such it is to be const­

rued liberally in favor of the award of benefits.

See Meggs v. Texas Unemployment Compensat­

ion Comm’n, 234 S. W. 2d 453. The Court of Ap­

peals opinion page 8 line 8, “then in January 2016, Cox was given a specific list of task to

complete and a deadline for completing them.”

The Court failed to realize Mr. Calverley was

not supervisor, with clean hands Cox was never

in a position of mismanagement Cox is working

under the am shift education supervisor which

is Mr. Calerley, and the pm education supervis­

or is Mr. Jenkins, Cox work the am shift, if Cox

needed any material for a task he has to advise

am supervisor which would be Mr. Calverley.

On highest priority, extended the deadline, spec­

ific warning, he had other daily task that inter­

fered with completing the Argon leaks. At the

time Cox was working in the course and scope of

his employment. Cox does not why it took Mr.

Calverley months to get plugs and thread seal

tape or why he did not have January 23, 2016

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for Saturday work when no student are in the

lab. The Court may concluded that Cox was

acting within the course and scope of his emplo­

yment and that Lincoln and TWC was not entit­

led to a summary judgment on this issue. Mr.

Calverley has proper maintenance that define

and describe Cox work duties nothing in the rec­

ord points to whether Cox deviated from his dut­

ies.

5. Within the scope of employer’s business

or related to employer’s equipment what

confidential and proprietary information

was disclosed to employee including trai­

ning on a task-task basic for assignment?

Second assignment “Mr. Hughes asked you to

have all machine sorted, inspected, and tagged

within 10 days, and send repairable machines

to Airgas for repair.” See (App: D) (photo of V

350 without attachment).Mr. Calverley testified

in by affidavit “ I am a custodian of records for

Lincoln Technical.” As custodian of records Rick

Calverley should have knowledge of person or

who is duly authorized to call Airgas and sched­

ule pick up of equipment for repair, sign repair

order and approve repair of said equipment Cox

is not authorized to do shipping from Lincoln to

Airgas to have machine repaired. No confiden­

tial and proprietary information was disclosed

to Cox including training to complete this assig­

nment. All machine that ready for load test from

update of progress See Petitioner’s Affidavit in

support of a Writ of Certiorari item No. 13 line 7

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v<

(Total 20 V-350). Units to be sent to Airgas Row

C 11 units.

6.1s Affirmative Defense of Impracticability

or Impossibility of Performance with

summary evidence sufficient to raise an

issue of fact on each element to preclude

summary judgement is applicable to above

reference cause See Brownlee v. Brownlee, 665

S.W, 2d 111, 112 (Tex 1984)? Cox raises a gen­

uine issue of material fact to defeat motion for

summary judgment. Cox performance is made

impracticable, Mr. Calverley has control over

the performance of two assignment given to Cox

leaks in Argon in Tig section and welding mach­

ine in ramp room. A true and correct copy attac­

hed within Exhibit 1 to Affidavit in support of a

Writ of Certiorari.

Utilizing the record to point out deficiencies as

to matters upon which Appeals Court misappl­

ied the rule of law:

1. Mr. Calverley email I can not give you plugs

1/25/16 (CR 134; App L) received in May 2016.

2. Cox request more thread seal tape no response

l/29/16(CR 135; App M)(CR 67 line 17).

3.Failed to provide a safe time in welding lab to

perform task on Saturday no student in lab.

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H

4. Had actual knowledge of the condition and

failed to adequately warn.

5. Assignment of welding machine in ramp

room could not complete confidential and

proprietary information was not disclosed

to Cox including training to complete this

assignment. Regular assignment that are

recurring were delayed.

Mr. Calverley intended to cause an adverse employ­

ment action, that act was the proximate cause of

the ultimate employment action Cox was fired June

28, 2016.

Employees are generally understood as those who

work “in the service of another person (the employ­

er) under an express or implied contract of hire,

under which the employer has the right to control

the details of work performance."Black Law Diction­

ary, at 639.

Cox seeks relief 10 weeks unemployment back pay

6/26/2016 thru 9/11/2016, costs of court.(CR 57).

CONCLUSION

The petition for writ of certiorari should be granted.

Respectfully submitted

Date: July 7.2020

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