Petition for Rehearing — Franklin Cox, Petitioner v. Texas Workforce Commission, et al.

NO. 20 -194

■t

In The

SUPREME COURT OF THE UNITED STATES

FRANKLIN COX, Petitioner

v.

TEXAS WORKFORCE COMMISSION

AND LINCOLN TECHNICAL , Respondent

On Petition for a Writ of Certiorari to the

Court of Appeals of Texas , Fifth District

PETITION FOR REHEARING

Franklin L. Cox

P.O. Box 398783

Dallas, Texas 75339

Cell: (214) 491-0316

Petitioner Pro Se

RECEIVED

NOV 1 6 2020

SfjJJCE or I'idi Ci'KOK

SUPREME on-nr; Ti --

Table of Contents

Table of Authorities

u

Grounds for Rehearing

1.4

Affidavit In Support of Motion

For Rehearing.......

5.13

Conclusion

14

Certificate of Counsel

15

Appendix.. A.

16

Affidavit of Rick Calverley in Support

of Defendants ’ Motion For Summary

Judgment reprinted for booklet form

(CR 170 - CR 172).................................

17.22

Pursuant to Rule 44.2 respectfully petition

for rehearing of the Court’s order denying

Certiorari in this case.

Grounds for Rehearing

Grounds acknowledge that affidavit of Rick

Calverley in support of motion for summary

his unverified arguments nor has any suppor­

ting evidence attached to affidavit in support of

testimony given(CR 170 - CR 172).

Unsupported testimony:

2. “During his employment with Lincoln Techncal. I supervised Plaintiff Franklin Cox (“Cox”)

(CR 170)( App A).Calverley does not states the

relevant time period he was Cox am supervis­

or. Calverley also states “ I am the Education

supervisor for Lincoln Technical and have ser­

ved in this position since July 2013.” Attached

documents to Calverley affidavit conclusively

established:

Rick Calverley

CNC Education Supervisor

2501 E. Arkansas

Grand Prairie, Texas 75052

(972)660-5701 ext. 41112

( CR 134) (CR 136)( CR 138) and (CR 139).

5. Calverley testified “ Cox performed to my

satisfaction until around January 2016". In

item 3. Calverley testified “ I am also a custod­

ian of records for Lincoln Technical’ (CR 170 &

CR 171). Calverley does not provide the under­

lying facts to support the conclusion on Cox

1

performance. See Tex. R. Civ. P. 166a(f). Also

see 1001 McKinney Ltd v. Credit Suisse First

Boston Mortgage Capital, 192 S. W. 3d 20, 27

(Tex . App- Houston [ 14th Dist.] 2005, pet.

Denied). Calverley testified he is a custodian

of records for Lincoln Technical but he failed

to attached supporting evidence to support his

speculative opinion testimony on Cox perfor­

mance (CR 171 App A).

6. Calverley testified” I issued Cox multiple

verbal and written warning regarding his

performance “ Also including No. 8. “were of

the highest priority” Calverley does not give

any supporting evidence that he did not com­

ply with Cox request for material needed (CR

194 & CR 135) as outline in (CR 13- CR 14

No.5) advise supervisor of needed material.

7. Specifically, on January 21, 2016,1 assigned

Cox a list of five reasonably simple tasks that

needed to be completed by the next day. These

tasks included leak testing of welding booths,

Teflon taping, plugging gas lines which had

valves left open, retesting the gas lines after

repair, and repairing a fine in booth 73. Cox

did not complete the assigned tasks”.

Calverley does not give any supporting eviden­

ce to support this assigned task, this is not the

task that I received by email January 21, 2016

at 11:48 am (CR 162). See Petitioner’s Affi­

davit In Support of Motion For Rehearing item

No.4 assignment that Cox received attached

within.

2

9. Calverley testified he “ issued Cox a “Letter

of Concern “ on February 2, 2016, emphasizing

the need for such assigned tasks to be compl­

ete”. Calverley does give any supporting evi­

dence as to what method it was issued to Cox.

Cox received copy of Letter of Concern after

6/28/2016 from TWC packet.

11. Calverley testified “I instructed Cox that

he could use overtime to complete these tasks.

Cox could also order tools, if needed, to comp­

lete these task”. Calverley does not give any

supporting evidence, Cox never requested

overtime nor made a request for tools. This

is a false statement.

12. On March 22, 2016, after these tasks still

had not been completed, I issued Cox an

“Employee Success Plan” further voicing my

concerns regarding his failure to complete ass­

igned tasks, along with other performance

deficiencies.”Cox did receive Employee Success

Plan at the meeting. Cox disagree with it and

did not sign it. ESP plan conflicts with Lincoln

Education Services, Performance Appraisal

Program (CR 89 -CR 90). Cox 2014 Employee

Performance Appraisal, Appraisal Date 1/20

/15. Overall Rating on General Performance

Requirements^]. 2015 Employee Performance

Appraisal due 1/20/16, was not done by Mr.

Calverley (CR 84- CR 88).

3

13. Calverley testified 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 exten­

sions he had already been provided to compl­

ete this task. Regardless of any reminders,

Cox failed complete any tasks assigned to him.

I reassigned Cox’s tasks to another employee,

who was able to complete them within a few

days. Calverley does not provide the support­

ing evidence attached to affidavit assigning

Cox to do service in Argon & Co2 tank area.

This is a false statement (CR 172).

15. Calverley testified “ I made the decision to

terminate Cox employment, effective June 23,

2016. A copy of Cox’s “ Termination Transmi­

ttal Form “ is attached. Affidavit fails to show

Calverley supervised Cox 10-1-2015 thru 6-28

-2016 date of termination (CR 183 #11).

16. Calverley testified I have read the forego­

ing statements, and I declare under the pena­

lty of perjury that the foregoing statements

are true and correct. Calverley affidavit legally

insufficiency to support the motion for summ­

ary judgment (CR 182).

4

NO. 20-194

Franklin L. Cox

Petitioner

In The Supreme Court of

v.

The United States

Texas Workforce

Commission and

Lincoln Technical,

Respondent

Washington, D.C.

Petitioner’s Affidavit In Support of Motion

For Rehearing

Petitioner, Franklin L. Cox submits this

affidavit supporting this motion for rehearing.

Before me, the undersigned notary, on this day

personally appeared Franklin L. Cox, the

affiant, a person whose identity is unknown to

me is properly indemnify by Texas driver lice­

nse. After I administered an oath to affiant,

affiant testified:

1. “My name is Franklin L. Cox , I am over the

age of twenty one (21) years, of sound mind ,

and have never been convicted of a felony. I

am an adult resident of Dallas, Texas, an fully

competent and capable to testify herein . I am

owner in the capacity of having personal kno­

wledge of all the facts set forth herein, and

able to swear, and I hereby do swear , that all

5

the facts and statements herein are true and

correct”.

2. On or about July 10, 2013 Franklin L. Cox

enter into oral and written agreement with job

description of Tool Room Attendant with

Lincoln Educational Services, sign the agree­

ment that I have received the job description

and understand the duties and responsibilities

of the position ( CR 13-14).

3. On January 21, 2016 Thursday @ 10:00 am

Mr. Rick Calverley, Mr. Rivera (115 Tig instr­

uctor am) and Air Gas service tech for Argon

and Co2 tanks. Mr. Calverley stated that it

was leaks all over the lab. Cox lock ramp room

went in welding lab located a broken argon

line behind booth 73 above cut off valve, go

and founded Mr. Calverley told him about leak

show it to him and he want to know how long

it would take to repair? About an hour.

4. On January 21, 2016 got email with two

attachment @ 11: 48 am.

1. Leak test all booth from shut off to flow

meter.

2. Teflon tape all fitting from shut off to

flow meter.

3. Plug all gas lines. There are fines coming

into the booth with no hose that are not

plugged . See the picture. This is a safety

issue, if a student intentionally or acciden­

tally open we will have flowing gas into lab.

6

4. After the booth are completed, leak test

the argon lines from booth all the way

to the mixer.

5. At 1 pm. Today, shut down the Argon

system and repair the line you broke in

booth 73. I will keep student out until

2pm (CR 162).

[x] attachment one is a photo of booth 49

exposed electric wires it appeared to me

some one was trying to repair a foot ped­

dle for Tig machine.

[x] attachment two is a photo of booth 51

picture of shut off valve and flow meter

for Co2 gas in off position no green hose

Install on it.

5. On January 21, 2016 4:30 sent email to Mr.

Calverley , Tig systems and booth did not fin­

ish , booth 69 has bad regulator. Booth 73 rep­

airs are complete. The entire system of 75

booth will have to be look at. I did not brake

booth 73 fine. (finish for today time to clock

out (CR 133).

6. On January 25, 2016 3:04 pm Monday day 3

on the leaks, got email from Mr. Calverley “I

can not give you the plugs until you tell me

what size and how many. I need to know when

this will be complete. As I said before, this has

more priority than anything “ (CR 134). We

have 19 Tig booth all have Co2 gas drop

complete with shut off valve and flow meter

with green hose attached to flow meter that

lay behind machine on the floor. Prior conver­

sion with Mr. Calverley told him I needed a

dozen V2 galvanized plugs.

7. On January 27,2016 11:28 am. Still having

issues with machine some are still leaking.

Need to get bundles ready for student and

booth appointed (class delayed 1st day) (CR

134).

8. On January 29, 2016 4;28 pm. Tig booth

still not complete, we are using used parts

they have to disconnected -clean- inspectiontape - reassemble and hope they don’t leak.

If they start over again. Began putting tag on

unit that pass or failed test. Need more thread

seal tape (CR 135).

9. On February 11, 2016 9:41 am. Mr. Calv­

erley “Mr. Cox I need a full daily update of

your progress” (CR 1360.

10. On February 11, 2016 12::31 Sent email on

Tig booth found bad joint with compressor oil

all over it allowing it to enter in to line thru

ring gap open, clean joint no black stuff in

weld as of today.

Row B at the bottom 8-V350 units has pass

first test

Row B center section 4-V350 has pass second

Test ready for load test.

Row C at the bottom 8 units need to be sent

8

out (1) Miller XMT 350 (2) 5- Lincoln V

350 (3) Cut master 102 (4) track carrier.

By the sink 12 wire feeder tag for scrap. The

tig joint I shared with you Monday 2-8-2016

(CR 136). This was the first update on the

machine the handwriting on the email was the

update made two copies place one copy under

Mr. Calverley office door and the other goes to

Mr. Stanley Jenkins pm supervisor under his

door.

11. On February 23, 2016 l:55pm.”Mr. Cox see

email below. To date, you not answered that

email or given me any updates. Can you

explain why?

Row B, 4 V-350 ready for load test

7 V- 350 ready for load test, stack at

he end of row B.

Row B center 5 V-350 ready for load test.

Row C bottom add 3 V- 350 to original num­

ber (8+3=11 units to be sent out).

All wire feeder check and tag if parts are

missing (CR 136)

These wire feeder are on the top self of Row A

And Row B.

12. March 22, 2016 front office meeting Mr.

Rick Calverley am supervisor, Mr Stanley

Jenkins pm supervisor and Franklin Cox. Ord­

er of the meeting was Employee Success Plan

which was hand delivered to Cox to take home

and study it at cox request.

13. March 23, 20161 told Mr. Calverley I in

9

Good conscious can not sign this plan hand it

back to Mr. Calverley, Mr. Calverley was try­

ing to explain the plain.

In Mr. Calverley Employee Success Plan,

Section One: History it states “On Feb. 11,2016 I asked for a daily update of progress,

In writing of both tasks. I followed that up

On Feb.23rd, asking again for an update and

I received no reply.

Total for machine for Feb. 11, 2016 and Feb.

23, 2016 in writing from (CR 136) V-350

that pass second test ready for load test 4

from Feb. 11 add to 16 V-350 from Feb. 23,

2016 total of 20 V-350. Units to be sent to

Airgas Row C 11 units. 12 wire feeder tag for

scrap, Cox not authorized to remove scan

tags from Lincoln property. Cox not authori­

zed to send units out for repair to Airgas.

14. On April 1, 2016 3:26 pm. Mr. Calverley

“ Mr. Cox Airgas was just out to refill the

Argon tank and he came and told me we have

a “ significant leak”. Back in January, as we

have discussed, I tasked you to check that line

for leaks and update me. Also in your ESP you

were to give me weekly updates on task you

assigned. Why have I not received an update

on this task?

What is the current status of fixing leaks and

inspection of lines?

10

From ESP:

3. Weekly you will meet with your supervisor

and discuss concerns with down equipment

and status of machine repairs “ (CR 139).

15. On April 1, 2016 3:51 pm We did have a

big leak in January, booth 73 was broken in­

line. Can you forward me a list on your finding

on leaks that you did this weak also fist of

down machine, I only have one Miller from

booth 4 replaced with Lincoln 350 from row b.

have no other down at this time. Also did not

sign that 30 day termination notice. You had

Billy looking at that miller XMT 350 (CR 137).

16. On April,2016 7,58 pm. Mr. Calverley “Mr.

Calverley we do not have a “30 day terminat­

ion notice.” What you refused to sign was an

Employee Success Plan, which is an outline of

some discrepancies in your performance and a

plan to help you succeed in correcting them.

The Airgas finding was not from January, it

was from today and has been ongoing for wee­

ks, costing us a significant amount of lost

Argon. What I found in my inspection this

week was that we still have booths leaking”

(CR 138).

17. On April 5, 2016 hand delivered report Ar­

gon Repair 1-21-16 11:48 am:

1. Cover page: emailed received 1-21-16 11:48

11

am typed top of page, drawing that Cox

did, middle and bottom of page. Cover page

is for items No. 1 and No. 2 on the repair

email. Drawing shows were tape was replac­

ed after joints were disassemble, clean (rem­

oved old tape if present), inspected, install

tape, reassemble shut off valve to flow meter

(CR 162).

2. All Co2 gas lines that needed plugs were

taped up with electrical tape. See email item

No. 3 on the repair (CR 162).

3. Cover page item No. 4 Flow chart of Argon

lines to Tig area booths back to mixer. All

line joint were clean and check for leaks.

Bad joint were reported, hand drawing (CR

162).

4. Cover page item 5. Cox made emergency

repair to broke argon line in booth 73. Booth

73 repaired to be repaired first due to the

serious of an open line “significant leak”, and

safety. All general measure safety precaution

done 1st stop flow of Argon. Broken Argon line

in booth 73 was repaired, 4 cutoff valve for

booth 69-75 were slowly turn back on allow­

ing Argon to build up, and check for leak in

repaired area. Booth 73 repairs complete was

reported 1/21/2016 2 4:30pm (CR 162).

On April 5, 2016 hand delivered report Argon

Repair 1-21-16 11:48 am. One copy was hand

delivered to Mr. Calverley standing in his

12

in his office door witness by Richard Ehrhardt,

another copy unlocked door to Mr. Stanley

Jenkins office place copy on his desk.

Petitioner Franklin 1. Cox provides the under­

lying facts to support the conclusion in his

affidavit by attaching supporting documents,

and describing the circumstance of his perpersonal involvement in the events relevant to

summary judgment evidence should have been

fully considered. Mr. Calverley intended to

cause an adverse employment action, that act

was the proximate cause of the ultimate empl­

oyment action Cox was fired.

I Franklin L. Cox declare under the penalty of

perjury that the foregoing statements are true

and correct

^—■" Franklin L. Cox

STATE OF TEXAS

COUNTY OF DALLAS

SUBSCRIBED AND SWORN TO BEFORE

ME Z*4* day of klwu+h ■pt—

2020

{/

NOTARY PUBLIC AND FOR

THE STATE OF TEXAS

My Commission

Expires:

MW

ARTHUR RASHAAD WEBSTER

Notary Public. State of Te xas

Comrri' Expires 06-12-2021

\lin/

Notary ID 131167645

Certificate of Counsel

I hereby certify that this Petition For

Rehearing is presented in good faith and not to

delay, and that it is restricted to the grounds

Specified in Supreme Court Rule 44.2

a.

Franklin L. Cox

15

CAUSE NO. DC- 17-01261

FRANKLIN COX

IN THE DISTRICT

COURT

v.

TEXAS WORKFORCE

COMMISSION And

LINCOLN TECHNICAL,

DALLAS COUNTY,

TEXAS

134th JUDICIAL

DISTRICT

Defendants.

AFFIDAVIT OF RICK CALVERLEY IN SUPP­

ORT OF DEFENDANTS’ MOTION FOR

SUMMARY JUDGMENT

STATE OF TEXAS §

§

COUNTY OF HILL §

BEFORE ME, the undersigned

authority, personally appeared Rick Calverley ,

who being duly sworn deposed as follows:

1. My name is Rick Calverley, I am over

21 years of age, of sound mind, and fully comp­

etent to testify as a witness. I have personal

knowledge of all facts recited herein and state

2. I am the Education Supervisor for

Lincoln Technical and have served in this pos­

ition since July 2013. As Education Supervisor,

I oversee and supervise the day-to- day operat­

ions of the institute. This includes, but is not

t limited to, assigning task 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 Techn­

ical, I supervised Plaintiff Franklin Cox

(“Cox”), Part of my job responsibilities also in­

clude handling and/ maintaining Lincoln Tech­

nical’s records, such as those referenced and

attached herein.

3. I am also a, custodian of records for

Lincoln Technical. Referenced herein are

seven (7) pages of records concerning Cox, in­

cluding a “ Letter of Concern”, “ Employee Suc­

cess Plan”, and “ Termination Transmittal

Form” .These records are kept by Lincoln Tech­

nical in the regular course of business, and it

was the regular course of business of Lincoln

Technical for an employee or representative of

Lincoln Technical, with personal knowledge of

the act, event, condition, opinion, or diagnosis

recorded to make the record or to transmit

information thereof to be included in such

record; and the record was made at or near the

time or reasonably soon thereafter . The rec­

ords attached hereto-are the original or exact

duplicates of the original.

4. Cox began working for Lincoln Techncal as a Tool Room Attendant in April 2013.

He remained in this position until bis

termination in June 2016.

5. As Tool Room Attendant, Cox was

primarily responsible for the proper mainten­

ance of the tool room, welding lab, and ramp

room. Cox performed to my satisfaction until

around January 2016.

6. From January 2016 until his disch­

arge from Lincoln Technical, because he failed

to follow through with assigned tasks, I issued

Cox multiple verbal and written warnings reg­

arding his performance.

7. Specifically, on January 21, 2016,1

assigned Cox a list of five reasonably simple

tasks that needed to be completed by the next

day. These tasks included leak testing of weld­

ing booths, Teflon taping , plugging gas fines

valves left open, retesting the gas fines after,

and repairing a fine in booth 73. Cox did not

complete the assigned tasks.

8.1 gave Cox multiple extensions, which

he failed to meet. I sent Cox multiple email re­

minders and notified him these tasks were of

the highest priority.

9. Due to Cox’s disregard and failure to

complete the tasks assigned to him, I (with the

support of Cory Hughes, President, and Ron

Harris, Director of Education) issued Cox a

“Letter of Concern” is attached. The letter spe­

cifically referenced the January 21, 2016 assi­

gned tasks, the failure to complete them, and

the resulting financial loss to the company and

the potential safety hazards to students. The

warning requested that Cox complete the ass­

igned tasks, and apprised hazards to students.

The warning requested that Cox complete the

assigned tasks, and apprised him that contin­

ued violations would result in further discipli­

nary action. Cox refused to sign the document.

10.1 followed up with Cox on a least

two separate occasions regarding the status of

Argon leak, leaking booths, Teflon taping, gas

line plugging, which were all still incomplete.

11.1 instructed Cox that he could use

overtime to complete these tasks. Cox could

also order tools, if needed, to complete these

tasks.

12. On March 22,2016, after these tasks

still had not been completed, I issued Cox an

“Employee Success Plan” further voicing my

concerns regarding his failure to complete ass­

igned tasks, along with other performance deficienies (including working room condition,

attendance, out-of-service welding machines).

A true and correct copy of the “Employee Succ­

ess Plan” is attached. I set an April 1st deadfine for Cox to complete the TIG booth repairs,

leaking Argon fines, and other tasks. I reitera­

ted to Cox that his performance was at an uns­

atisfactory level, and that failure to improve

would result in further disciplinary action, inc­

luding termination. Cox refused to sign the

document.

20

13. On April 1, 2016 I e-mailed Cox that

there was 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.

14.1 provided Cox ample opportunity to

complete his assigned tasks, even when he co­

nsistently failed to follow through. Each of

Cox’s formal disciplinary documents advised

him that future violations would be addressed

with further discipline, up to and including

termination of employment.

15. Given Cox’s unsatisfactory job perf­

ormance in failing to follow through with assi­

gned tasks, after previously demonstrating

his ability to perform to my satisfaction, I

made the decision to terminate Cox’s employ­

ment, effective June 23, 2016. A copy Cox’s

“Termination Transmittal form” is attached.

16.1 have read the foregoing statements,

and I declare under the penalty of perjury that

the foregoing statements are true and correct.

21

“Rick E. Calveriv”

Affiant

Executed on October_9,2017

SWORN TO AND SUBSCRIBED before me

on the___ day of October, 2017

“Nvree Preston”

Notary Public, State of Texas

Notary’s printed name: Nvree Preston

Nyree Preston

Notary Public, State of Texas

My Commission Expires

June 30, 2918

My Commission Expires:6/30/2018

22