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



      1
        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,

                                               –4–
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




                                               –10–
                              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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