FILED
`3/2/2020 4:58 PM
`FELICIA PITRE
`DISTRICT CLERK
`DALLAS CO., TEXAS
`Lafonda Sims DEPUTY
`
`CAUSE NO. DC-19-01074
`
`JOSEPH L. DELUNA
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`Plaintiff,
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`V'
`
`TEXAS WORKFORCE COMMISSION,
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`AND DALLAS COUNTY, TX C/O
`EMPLOYERS UNITY LLC
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`Defendants.
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`OO’DCAO'JCAO’JFOOQODQODOOOOOO
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`IN THE DISTRICT COURT OF
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`DALLAS COUNTY, TEXAS
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`H- l 60TH JUDICLAL DISTRICT
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`DEFENDANTS’ JOINT RESPONSE TO
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`PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
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`TO THE HONORABLE JUDGE OF SAID COURT:
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`COME NOW Defendant Texas Workforce Commission (“‘TWC” or “Commission”); and
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`Defendant Dallas County and file their Joint Motion for Summary Judgment.
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`I.
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`Introduction
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`Plaintiff in this matter is Joseph L. DeLuna (“DeLuna”). Defendants are the Texas
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`Workforce Commission and Dallas County. This case arises as an appeal from the final decision
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`of the TWC. After DeLuna was terminated from employment with Dallas County, DeLuna filed
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`a claim for unemployment benefits with TWC. TWC’s final decision found DeLuna was not
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`qualified to receive unemployment benefits. DeLuna now seeks judicial review judicial review of
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`the Commission’s final decision.
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`II.
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`Summary of the Argument
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`Defendants jointly respond that Plaintiff s motion for summary judgment should be denied
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`because Plaintiff fails to prove that TWC’s decision (finding DeLuna not qualified to receive
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`unemployment benefits) is not supported by substantial evidence. Substantial evidence exists to
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`Defendants ’ Joint Response to Plaintifl’s Motion for Summary Judgment
`Joseph L. DeLuna v Texas Workforce Commission and Dallas County
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`page 1
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`show that Dallas County terminated DeLuna for violation of his employer’s security and safety
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`policies. DeLuna’s failure to comply with these policies was misconduct connected with the work,
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`so TWC ruled in accordance with the Texas Labor Code that DeLuna’s actions disqualified him
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`fiom receiving unemployment benefits. TWC’s decision is therefore supported by substantial
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`evidence and correctly followed the applicable law; the Court should therefore affirm TWC’s
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`administrative decision.
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`Summary Judgment Evidence
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`Defendants include the summary judgment evidence in an appendix filed with this Motion
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`and incorporate the evidence into this Motion by reference.
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`This Motion for Summary Judgment should be granted based on the following proof
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`included in the attached appendix:
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`Exhibit 1: TWC administrative record
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`Exhibit 2: Affidavit of Ervin L. Taylor
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`Standard of Review
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`A. Summary Judgments Generally
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`To prevail on a traditional motion for summary judgment, a movant must show that no
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`genuine issue of material fact exists and that it is entitled to judgment as a matter of law. TEX. R.
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`CIV. P. 166A(c). A movant that conclusively negates at least one essential element of its
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`opponent’s cause of action or proves all the elements of its defense is entitled to summary judgment
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`on that claim. Elliott— Williams Co. v. Diaz, 9 S.W.3d 801, 803 (Tex. 1999). When reviewing a
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`summary judgment, the court takes as true all evidence favorable to the nonmovant and indulges
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`every reasonable inference and resolves any doubts in the nonmovant’s favor. Science Spectrum,
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`Defendants ’ Joint Response to Plaintifl’s Motion for Summary Judgment
`Joseph L. DeLuna v Texas Workforce Commission and Dallas County
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`page 2
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`Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997); Friendswood Dev. Co. v. McDade & C0., 926
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`S.W.2d 280, 282 (Tex. 1996).
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`B.
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`Judicial Review of the Texas Workforce Commission
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`Summary judgment is appropriate for this cause since the only question before the Court
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`is a question of law. Texas law only allows the review of the TWC’s decision granting or denying
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`a claimant benefits by substantial evidence trial de novo. TEX. LAB. CODE § 212.202; see also
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`Mercer v. Ross, 701 S.W.2d 830 (Tex. 1986). Cases reviewed under substantial evidence trial de
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`novo have only a question of law. Firemen ’s & Policemen ’s Civil Service Comm ’n v. Brinkmeyer,
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`662 S.W.2d 953, 956 (Tex. 1984).
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`C.
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`Substantial Evidence Standard of Review
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`Under the substantial evidence standard, a trial court
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`is only to determine whether
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`substantial evidence supports the agency’s decision. Fire Dep ’t of City ofFort Worth v. City of
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`Fort Worth, 217 S.W.2d 664, 666 (Tex. 1949) (citations omitted). The Texas Supreme Court has
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`held that substantial evidence exists if more than a mere scintilla of evidence supports the agency’ s
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`decision. Olivarez v. Aluminum Corp. 0fAm., 693 S.W.2d 931, 932 (Tex. 1985). The trial court
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`may neither weigh the facts nor substitute its judicial discretion for that of the TWC.
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`Tex.
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`Employment Comm ’n v. Ryan, 481 S.W.2d 172, 175 (Tex. Civ. App.—Texarkana 1972, no writ);
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`see also Tex. Employment Comm ’n v. Hodges, 734 S.W.2d 427, 428 (Tex. App—Dallas 1987, no
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`writ).
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`Because the TWC was acting under delegated authority,
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`its decision has a strong
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`presumption of validity. Mercer, 701 S.W.2d at 831. Therefore, Plaintiff solely bears the burden
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`to show that the TWC’S decision was unreasonable and was made without regard to the law or the
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`Defendants ’ Joint Response to Plaintifl’s Motion for Summary Judgment
`Joseph L. DeLuna v Texas Workforce Commission and Dallas County
`
`page 3
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`facts.
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`Id.; Levelland Indep. Sch. Dist. v Contreras, 865 S.W.2d 474, 477 (TeX. App—Amarillo
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`1993, writ denied).
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`1.
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`Controverted Evidence May Still Be Substantial
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`The TWC based its decision on the evidence put forward by the claimant and the former
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`employer during the administrative process. This evidence was not in complete agreement, but
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`instead conflicted on certain points. However, just because the evidence presented by the parties
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`and considered by the Commission is not entirely harmonious, neither creates a question of fact
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`nor renders this evidence unsubstantial.
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`In the present cause of action seeking judicial review of the Commission’s decision under
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`the substantial evidence standard, the Commission is the primary finder of fact. Brinkmeyer, 662
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`S.W.2d at 956. The Court is concerned only with whether the evidence relied upon by the
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`Commission is substantial — a question strictly of law. The Commission, not the Court,
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`is
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`responsible for resolving any factual conflicts or ambiguities in the evidence.
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`Id. Consequently,
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`just because the underlying evidence is disputed does not permit the Court to set aside the
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`Commission’s decision. 1d.
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`2.
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`Court Does Not Need to Agree with The Commission’s Decision
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`The Court reviewing a TWC decision does so under the substantial evidence standard.
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`Brinkmeyer, 662 S.W.2d at 956. If the TWC’s decision is supported by more than a mere scintilla
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`of evidence, the Court must affirrn the TWC’S decision. Olivarez, 693 S.W.2d at 932. The Court
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`may not set aside the TWC’s decision because the Court would have reached a different decision.
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`Mercer, 701 S.W.2d at 831; Brinkmeyer, 662 S.W.2d at 956. The Court is concerned only with
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`whether the TWC’S decision is reasonable, not whether the Court considers the decision to be
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`Defendants ’ Joint Response to Plaintifl’s Motion for Summary Judgment
`Joseph L. DeLuna v Texas Workforce Commission and Dallas County
`
`page 4
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`correct. Mercer, 701 S.W.2d at 831 ; Brinkmeyer, 662 S.W.2d at 956. Even if reasonable minds
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`might differ as to the correct decision, as long as some reasonable minds could reach the same
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`decision as the Commission, then the evidence is substantial, and the decision must be affirmed.
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`Brinkmeyer, 662 S.W.2d at 956.
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`V. Background
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`Defendant Dallas County employed DeLuna beginning in September 2008. Ex. 1, p. 14;
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`Ex. 2, p. l. DeLuna’s last day of employment was March 15, 2018. Ex. 2, p. l. DeLuna worked
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`as a Juvenile Supervision Officer (“JSO”) for the Dallas County Juvenile Department (“DJCD”).
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`Id. As a J SO, DeLuna oversaw the daily operations of juveniles who were residents of DJCD
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`pursuant to court orders. Id. DeLuna was trained on security and safety when he was hired and
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`received further such training throughout his employment.
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`On January 28, 2018, DeLuna was on duty supervising a section 5C, a detention section
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`containing several juvenile residents. Id. Video surveillance of the section showed some juveniles
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`throwing cards at one another. Id. Another pair ofjuveniles hovering over a third juvenile lying
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`prone on a cot who was flashing gang signs at the other two. Id. DCJD rules require staff to
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`“maintain a safe and secure environment for residents at all times, free from abuse, neglect,
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`exploitation, coercion, or harassment of any nature.” Ex. 2, p. 2; Ex. 2-E, p. 2. Residents throwing
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`objects, flashing gang signs, and exhibiting threatening posture towards other residents were all
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`signs of unsafe and unsecure environment. Ex. 2, p. 2. Despite this situation, DeLuna took no
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`action to regain control of the situation and did not initiate a “code red” (a request for immediate
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`assistance from other DCJD staff). Ex. 2, p. 1. Fortunately, a Manager observing the section 5C
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`witnessed the situation and directed additional DCJD staff to the section to restore order. Ex. 2,
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`Defendants ’ Joint Response to Plaintifl’s Motion for Summary Judgment
`Joseph L. DeLuna v Texas Workforce Commission and Dallas County
`
`page 5
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`On February 5, 2018, DeLuna was again supervising a section ofjuvenile residents. EX. 2,
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`p. 2. DeLuna gave a resident to take a broom inside a cell; DeLuna then closed the cell door and
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`walked away. Id. DCJD allows juveniles to use a broom to sweep out their cells, but only under
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`the direct supervision of a ISO. Id. By closing the door and walking away, DeLuna had allowed
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`the juvenile to use the broom without direct supervision.
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`Id. DCJD only permits the issued
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`bedding (pillow, blanket, etc.) to be inside a resident’s cell; anything else is regarded as contraband
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`and is strictly forbidden. Ex. 2, p. 2; EX. 2-C, p. l; EX. 2-D, p. 4. As a ISO, DeLuna knew of this
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`policy and as recently as September 2017 had signed written notice of his awareness. EX. 2, p. 2;
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`Ex. 2—C, p. 1. DeLuna then compounded the situation by leaving the section and failing to inform
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`any other DCJD personnel that the juvenile had a wooden broom in his possession. Ex. 2, p. 2.
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`Once alone with the broom, the juvenile subsequently broke the broom apart; this resulted
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`in a wooden handle with nails sticking out from one end and approximately 15 feet of metal wire.
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`EX. 2, p. 2. These objects could easily be used as weapons that could harm either the juvenile
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`himself, the other residents, or DCJD staff.
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`Id. Fortunately, DCJD staff were able to calm the
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`juvenile and recover the improvised weapon without injury.
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`Shortly after DeLuna’s incident with the broom, a supervisor issued a Performance
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`Improvement Plan (“PIP”) t0 DeLuna. EX. 2, p. 3. A PIP is an educational tool designed to
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`improve the performance of an employee by providing additional training. Id. Since DeLuna had
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`clearly shown failure to enforce DCJD policies, DeLuna certainly needed further training. Id.
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`A PIP is not part of the employee discipline system, so DeLuna was separately evaluated
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`as to whether his actions also warranted punitive action. EX. 2, p. 3. DCJD began a thorough
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`Defendants ’ Joint Response to Plaintifl’s Motion for Summary Judgment
`Joseph L. DeLuna v Texas Workforce Commission and Dallas County
`
`page 6
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`investigation of the incident that included multiple witness interviews (initial and follow—up) and
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`review of video surveillance. Id. DCJD filed a report with the Texas Juvenile Justice Department
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`(DCJD’s licensing agency) and consulted with DCJD Administrative Team, the Dallas County
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`Humans Resource Department, and attorneys in the Civil Division of the Criminal District
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`Attorney’s Office. Id. This was an involved process that took weeks to complete. Id.
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`At the conclusion of this process, DCJD concluded that DeLuna’s failure to properly
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`perform his assigned duties and enforce DJCD rules had placed both the juvenile residents and the
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`DJCD staff at serious risk of bodily injury or death. Ex. 2, p. 3. DCJD subsequently decided
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`DeLuna’s misconduct required his employment be terminated. Ex. 2, p. 3; Ex. 2-F, p. 3. Deputy
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`Director Ervin Taylor informed DeLuna of his termination via letter. Ex. 2, p. 1; Ex. 2—A.
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`DeLuna subsequently filed a claim for unemployment benefits with the Texas Workforce
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`Commission. The Commission found that DeLuna had mismanaged his position, violated rules
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`adopted for the safety of the employees, and negligently jeopardized the lives of others. Ex. 1, p.
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`16. TWC concluded that DeLuna’s actions constituted misconduct under the Texas Labor Code
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`that disqualified him from receiving unemployment benefits. Id, p. 16-17.
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`VI. Argument
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`A. DeLuna’s misconduct disqualified him from receiving unemployment benefits
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`Plaintiff DeLuna’s claim for unemployment benefits were denied because TWC
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`determined that he was disqualified because he’d been terminated for work-related misconduct.
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`Under the Texas Labor Code, a claimant for unemployment benefits can be disqualified “. .
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`. if the
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`individual was discharged for misconduct connected with the individual’s last work.” TEX. LAB.
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`CODE § 207.044(a). The statute also defines “misconduct” as:
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`Defendants ’ Joint Response to Plaintifl’s Motion for Summary Judgment
`Joseph L. DeLuna v Texas Workforce Commission and Dallas County
`
`page 7
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`

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`“Mi smanagement ofa position of employment by action or inaction, neglect
`that jeopardizes the life or property of another, intentional wrongdoing or
`malfeasance, intentional violation of the law, or violation of policy or rule
`adopted to ensure the orderly work and safety of employees.”
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`TEX. LAB. CODE § 201.012.
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`DeLuna was employed as a Juvenile Supervision Officer at a Dallas County detention
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`facility. His primary job was ensuring that the juveniles behaved in a safe and secure manner
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`based on the procedures and policies adopted by his employer. Failure to follow these procedures
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`could create the opportunity for a juvenile to harm themselves or others. Since this facility housed
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`some juveniles with a history of violence, the possibility of further violence was not insignificant.
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`On January 28, 2018, DeLuna carelessly allowed juveniles to break various disciplinary
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`rules, including throwing cards at others and behaving in a threatening manner towards one
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`another. Such behavior obviously creates potential for aggression and thereafter violence. A
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`J SO’s primary responsibility is to maintain a safe and secure environment for the juveniles, yet
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`DeLuna clearly failed to do so.
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`On February 5, DeLuna let a resident take a broom behind a closed door without any further
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`supervision and without informing any DCJD personnel of the situation. DeLuna violated multiple
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`safety and security rules in allowing the juvenile to have such contraband. Moreover, that juvenile
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`subsequently created a weapon using that broom — precisely the reason DCJD policy forbids
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`unsupervised possession of such items by any resident — and threatened to inflict bodily harm on
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`others.
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`DeLuna had been trained both when he was hired and multiple times thereafter on the safety
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`and security rules he was expected to both follow and enforce. His failure to do so clearly
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`mismanaged his position. Moreover, his neglect created a situation that put the lives of other
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`Defendants ’ Joint Response to Plaintifl’s Motion for Summary Judgment
`Joseph L. DeLuna v Texas Workforce Commission and Dallas County
`
`page 8
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`

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`employees and the juvenile residents in jeopardy. DeLuna unequivocally committed misconduct
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`as it is defined by the Texas Labor Code. TEX. LAB. CODE § 201.012.
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`The precedents set by Texas courts support this position. Failing to heed an employer’s
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`anti—theft policies when handling merchandise can be misconduct. Edwards v. Tex. Employment
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`Com ’n, 936 S.W.2d 462, 468 (Tex.App.—Fort Worth 1996) (no writ).
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`Insubordination and
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`disruptive behavior towards a supervisor can be misconduct. Burton v. Texas Employment Com ’n,
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`743 S.W.2d 690, 693 (Tex.App.—El Paso 1987)(no writ). Failure to follow the employer’s
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`attendance policy can be misconduct. Murray v. Texas Workforce Com ’n (Tex.App.—Da11as
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`201 1) (no pet.). Violating rules forbidding use of racial slurs and the unauthorized use of employer
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`equipment can be misconduct. City of Houston v. Tippy, 991 S.W.2d 330, 336 (Tex.App.—
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`Houston [1St Dist.] 1999) (no writ). Based on these precedents, DeLuna’s neglect of his job duties
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`and his Violation of the security and safety rules are clearly misconduct.
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`DCJD subsequently fired DeLuna for his actions. An individual terminated for misconduct
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`connected with their last work is disqualified from receiving unemployment benefits. TEX. LAB.
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`CODE § 207.044(a). Given the evidence of DeLuna’s misconduct and the applicable law, the
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`Texas Workforce Commission correctly found DeLuna disqualified from unemployment benefits.
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`The Commission’s decision is neither arbitrary nor capricious, but is supported by considerably
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`more than a scintilla of evidence; thus, the substantial evidence standard has been met. TEX. LAB.
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`CODE § 212.202. Therefore, the Court must affirm the Texas Workforce Commission’s decision.
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`B. Plaintiff’s motion lacks summary judgment evidence
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`As the attached evidence and foregoing argument sent out in considerable detail, DeLuna
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`Defendants ’ Joint Response to Plaintifl’s Motion for Summary Judgment
`Joseph L. DeLuna v Texas Workforce Commission and Dallas County
`
`page 9
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`

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`was terminated from his employment and disqualified from receiving benefits because he seriously
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`mismanaged his position, ignored important safety rules, and placed the lives of others in jeopardy.
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`Plaintiffs motion, however, virtually ignores this evidence in its entirety. Plaintiff characterizes
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`DeLuna’s extensive failure as merely an “alleged incident for which DeLuna was allegedly fired .
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`.
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`. ” and which Plaintiff suggests “at most a reprimand” would have been the proper disciplinary
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`action. Plaintiff’5 Motion, p. 2. Plaintiff’ s motion instead claims that DeLuna was laid off as “part
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`of a conspiracy between Dallas [County] and TWC to avoid for Dallas its’ liability to DeLuna to
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`pay his $36,000 in vesting benefits in his pension account which would shortly be vested.” [sic]
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`Plaintiff’5 Motion, p. 1.
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`Plaintiff, however, offers nothing to back up these outlandish and slanderous claims against
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`the Defendants. The closest the Plaintiff comes to an actual fact is the observation that the
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`Commissioners of TWC overruled its Appeal Tribunal, whom Plaintiffrefers to as the “UC hearing
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`officer.” Plaintifl’s Motion, p. 2. The TWC administrative review process has three stages: an
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`initial determination, an appeal tribunal, and the Commissioners; a party must complete all three
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`stages to exhaust administrative review. See generally TEX. LAB. CODE §212.001 et seq.
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`In
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`this particular case, the Commissioners did indeed overrule the Appeal Tribunal. Ex. 1, p. 14-18;
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`22-27. But Plaintiff’ s suggestion that “it appears Dallas [County] and TWC conspired” to overrule
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`the Appeal Tribunal is patently ridiculous. The final decision of the Commissioners explores at
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`some length why they disagree with the previous ruling, just as one might expect a Court of
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`Appeals in a decision overruling a trial court. That a higher court might overrule a lower court is
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`not evidence that the higher court conspired with the prevailing party.
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`Beyond that faintest hint of fact, Plaintiff’s motion is otherwise devoid of evidence.
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`Defendants ’ Joint Response to Plaintifl’s Motion for Summary Judgment
`Joseph L. DeLuna v Texas Workforce Commission and Dallas County
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`page 10
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`Plaintiff’s motion attaches but a single document: Plaintiff’s previously filed Motion for Default
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`Judgment. This prior motion — which curiously never articulates why Plaintiff is entitled to
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`judgment default against either defendant — was itself not supported by evidence, but did include
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`a verification by DeLuna (as notarized by Plaintiff” s counsel). However, none of this constitutes
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`summary judgment evidence.
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`First, pleadings, even if sworn, do not constitute summary judgment proof. Hidalgo v.
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`Surety Savings & Loan Assoc., 462 S.W.2d 540, 543 (Tex. 1971).
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`Second, even were DeLuna’s sworn pleadings to be considered,
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`they are merely a
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`collection of conclusory statements that provide insufficient facts to support the conclusion.
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`Brown v. Brown, 145 S.W.3d 745, 751 (Tex.App.—Dallas 2004, pet. denied). DeLuna makes a
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`series of claims about the Dallas County pension system and its financial operations, but fails to
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`explain how he has personal and direct knowledge of any of these topics. DeLuna refers repeatedly
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`to “civil service rules” and how he contends they operate without identifying any rule by name or
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`number or demonstrating the basis for his knowledge of Dallas County employment policy.
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`DeLuna alleges the existence of a conspiracy between Dallas County and TWC, but identifies no
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`dates, times, names, locations, communications, or other tangible details to support his claims.
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`DeLuna’s statements are wholly unsupported by any manuals, records, texts, or other documents.
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`Conclusory testimony or affidavits are not competent summary judgment evidence. Montoya v.
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`Nichirin-Flex (Tex.App.—El Paso, 2013)(n0 pet.); see McIntyre v. Ramirez, 109 S.W.3d 741,
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`749—50 (Tex. 2003); see also Ryland Group v. Hood, 924 S.W.2d 120, 122 (Tex. 1996).
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`VII. Conclusion and Request for Relief
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`Based on the foregoing, Plaintiffs motion should be denied. Plaintiff’s motion all but
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`Defendants ’ Joint Response to Plaintifl’s Motion for Summary Judgment
`Joseph L. DeLuna v Texas Workforce Commission and Dallas County
`
`page 11
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`ignores that explicit basis for Plaintiff’s termination and instead indulges in unsupported
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`conjecture lacking proper summary judgment evidence. Plaintiff has failed to meet its burden
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`under the substantial evidence standard.
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`Defendants have instead attached summary judgment evidence which amply demonstrates
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`that Plaintiff DeLuna mismanaged his position, violated multiple safety rules, and neglectfully
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`created a situation that placed lives in jeopardy. Dallas County fired DeLuna for his misconduct
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`and TWC correctly followed the law in finding DeLuna was disqualified from receiving
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`unemployment benefits. The evidence supporting the Commission” 5 conclusion is more than mere
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`scintilla and a reasonable mind considering this same evidence could reach the same conclusion
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`as the Commission, so the substantial evidence standard has been met. The Texas Workforce
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`Commission’s final decision follows the applicable law and is supported by substantial evidence.
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`Accordingly, Defendants request that this Court deny Plaintiffs Motion for Summary
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`Judgment, and affirm the Commission’s decision.
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`Defendants ’ Joint Response to Plaintifl’s Motion for Summary Judgment
`Joseph L. DeLuna v Texas Workforce Commission and Dallas County
`
`page 12
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`

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`Respectfully submitted,
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`KEN PAXTON
`
`Attorney General of Texas
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`JEFFREY C. MATEER
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`First Assistant Attorney General
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`DARREN L. MCCARTY
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`Deputy Attorney General for Civil Litigation
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`JACK HOHENGARTEN
`
`Chief for Tax Division
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`/S/ Scott D. Simmons
`SCOTT D. SIMMONS
`Texas Bar No. 24013512
`
`Assistant Attorney General
`Scott.Simmons
`0a .texas. ov
`
`Office of the Attorney General
`Tax Division
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`PO. Box 12548
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`Austin, Texas 7871 1-2548
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`PH:
`FAX:
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`(512) 475-3694
`(512) 478-4013
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`ATTORNEYS FOR DEFENDANT
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`TEXAS WORKFORCE COMMISSION
`
`JOHN CREUZOT
`
`Criminal District Attorney
`Dallas County, Texas
`
`/s/ Ben Stool
`Ben Stool
`
`Texas Bar No. 19312500
`
`Assistant District Attorney
`benstool
`dallascount
`.or
`
`411 Elm Street, 5th Floor
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`Dallas, Texas 75202
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`PH:
`FAX:
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`(214) 653-7358
`(214) 653-6134
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`ATTORNEYS FOR DEFENDANT
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`DALLAS COUNTY
`
`Defendants ’ Joint Response to Plaintifl’s Motion for Summary Judgment
`Joseph L. DeLuna v Texas Workforce Commission and Dallas County
`
`page 13
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`

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`CERTIFICATE OF SERVICE
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`I hereby certify that on the March 2, 2020, a true and correct copy of the foregoing
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`document was served on all parties and counsel of record as indicated:
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`Via E—Serve
`
`Steven R. Pitzner
`
`Texas Bar No. 16055900
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`STEVEN R. PITZNER, PC
`
`10701 Gleneagles Lane
`Rowlett, Texas 75089
`214—969—0001
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`469-426-5027
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`469-969-0351
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`COUNSEL FOR PLAINTIFF
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`JOSEPH L. DELUNA
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`/s/ Ben L. Stool
`
`BEN L. STOOL
`
`Assistant Criminal District Attorney
`Civil Division
`
`Dallas County, Texas
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`Defendants ’ Joint Response to Plaintifl’s Motion for Summary Judgment
`Joseph L. DeLuna v Texas Workforce Commission and Dallas County
`
`page 14
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`

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`EXHIBIT 1
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`TEXAS WORKFORCE COMMISSION
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`ADMINISTRATIVE RECORD
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`CAUSE NO. 9019-01074
`
`JOSEPH L. DELUNA
`
`VS.
`
`TEXAS WORKFORCE COMMISSION AND
`DALLAS COUNTY, TX C/O EMPLOYERS
`UNITY LLC
`
`§
`§
`§
`§
`§
`§
`§
`
`IN THE 160TH JUDICIAL
`
`DISTRICT COURT OF
`
`DALLAS COUNTY, TEXAS
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`AFFIDAVIT
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`§ §
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`§
`
`STATE OF TEXAS
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`COUNTY OF TRAVIS
`
`BEFORE ME, the undersigned authority, personally appeared, Kristal K. Beightoi, who, being by me duly sworn,
`deposed as follows:
`
`“My name is Kristal K. Beightoi; I am over 18 years of age and fully competent to make this affidavit. I have personal
`knowledge of the facts stated herein, and they are all true and correct.“
`
`“I am Kristal K. Beightol, Custodian of Records for the Office of General Counsel of the Texas Workforce
`Commission."
`
`“I hereby certify that annexed hereto is a true and correct certified copy of the appeals folder as listed in the attached
`Table of Contents as kept as a public record by the Records Management Center from the record maintained by the
`Commission in connection with an initial claim for unemployment insurance benefits dated March 11, 2018 and an
`appeal of the initial determination, by loseph L. DeLuna."
`
`
`
`STAL K. BEIGHTO
`CUSTODIAN OF RECORDS
`TEXAS WORKFORCE COMMISSION
`
`“Further affiant sayeth not.”
`
`Signed this 24’h day of October 2019.
`
`§ §
`
`§
`
`THE STATE OF TEXAS
`
`COUNTY OF TRAVIS
`
`BEFORE ME, the undersigned authority, on this day personally appeared KRISTAL K. BEIGHTOL, known to me to
`be the person whose name is subscribed to the foregoing instrument and, being by me duly sworn, upon oath declared
`that the statements and capacity acted in are true and correct.
`
`GIVEN UNDER MY HAND and seal of office this 24““ day of October 20l9.
`
`
`
`
`at metres; 9:“ ENS
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`Y Us to
`#1": NIDMESBZEAB?
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`335-.
`~33:
`State ct Texas
`"I... Atl-
`Comm. Exp. 07-27-2021
`
`
`NOTARY WITHOUT BOND
`
`
`
` ESSLl COLLINS
`NOTARY PUBLIC
`IN AND FOR THE STATE OF TEXAS
`
`

`

`
`TABLE OF CONTENTS
`
`Description
`
`Page No.
`
`Findings and Decisions of Commission Upon Review of Claim for Benefits ........... 1
`
`Acknowledgment of Receipt of Motion for Rehearing .............................................. 3
`
`Correspondence from Claimant — Claimant’s Motion for Rehearing ......................... 3
`
`Fax from Claimant ...................................................................................................... 9
`
`Findings and Decisions of Commission Upon Review of Claim for Benefits ......... 14
`
`Acknowledgment of Receipt of Appeal .................................................................... 20
`
`Fax from Employer’s Representative ....................................................................... 21
`
`Appeal Tribunal Decision ......................................................................................... 22
`
`Exhibits ..................................................................................................................... 29
`
`Cd’s of Proceedings for Appeal Before Appeal Tribunal ......................................... 68
`
`Gutierrez Package ..................................................................................................... 69
`
`Correspondence from Claimants Representative .................................................... 143
`
`Determination on Payment of Unemployment Benefits ......................................... 181
`
`Joseph L. Deluna
`Table of Contents - Page 1 of l
`
`

`

`""I
`
`See reversc side for instmctinns
`
`TEXAS WORKFORCE COMMISSION
`Austin, Texas
`
`FINDINGS AND DECISIONS OF COMMISSION
`UPON REVIEW OF CLAIM FOR BENEFITS
`JAN 0 8 2819
`Date Maiied
`
`
`
`JOSEPH L DELUNA
`
`DALLAS-COUNTY OF
`”/79 EMPLOYERS UNITY LLC
`
`PO BOX 173836
`
`DENVER’ CO 802176836
`
`42>Z”>€"fl
`
`wm<crezm
`
`2284377-3
`
`SDCial Securtt Number:
`‘
`
`Prior Decision Date-
`October 30, 2018
`
`
`
`Appeal Filed bx: Claimant
`
`On October 30, 2018, the Commission issued a decision in Case Number 2284377-2. The claimant
`has now filed a timeiy motion for rehearing in accordance with the provisions of Section 212.153 of
`the Texas Unemployment Compensation Act.
`
`The Texas Administrative Code at 40 T.A.C. 8115.17 provides that a motion for rehearing shaii not be
`granted unless each of the following three criteria is met:
`
`(A)
`(B)
`(C)
`
`there is an offering of new evidence, which was not presented at the Appeai Tribunal level;
`there is a compelling reason why the evidence was not presented earlier and,
`there is a specific explanation of how consideration of the evidence would change the outcome
`of the case.
`
`The Commission has considered the motion for rehearing and is of the opinion that it does not meet the
`criteria of Rule 17 and that the Commission’s decision of October 30, 2018 was proper. Accordingly,
`a rehearing is denied.
`
`Robert D. Thomas
`
`Commissioner Representing the Public
`
`géééiéééégééee::
`
`Ruth R. Hughs
`Commissioner Representing Employers
`
`I maintain the previous dissent in this case
`
`Julian Alvarez
`
`Commissioner Representing Labor
`
`L-
`
`HMWWWWWWWWWWMWWWWWWWWWWWWW
`
`.J
`
`Joseph L. DeLuna
`
`2284377
`
`001
`
`

`

`TEXAS WORKFORCE COMMESSION
`
`COMMESSION APPEALS
`
`101 EAST 15TH ST
`AUSTIN TX 78778-0001
`
`Appeal Rights from Motion for Rehearing Decision
`
`A copy of the decision of the Texas Workforce Commission regarding the motion for
`rehearing made in this case is either printed on the reverse side of this form or attached.
`The decision will become final fourteen (14) days after the date of mailing of the
`decision. The date of maiiing is set out at the top of the decision. Ail mailing dates are
`shown as month. day and year. Shouid you disagree with this decision, and wish to
`pursue the matter further, your ONLY recourse at this point is to file suit.
`in effect. such
`suit should be filed from the 15th through the 28th day after this decision was mailed.
`Further correspondence with the Commission wiil NOT serve to preserve your rights in
`this case.
`
`Chapter 212 of the Texas Unemployment Compensation Act provides in Subchapter E
`that a party aggrieved by a final decision of the Commission may obtain judicial review
`of the decision by bringing an action against the Commission in a court of competent
`jurisdiction in the county of claimant's residence for a trial de novo review of the
`decision. Soch action must be brought between the 15th and the 28th day after the
`date of the Commission decision, and each other party to the proceeding before the
`Commission must be made a defendant in such action.
`if the claimant is not a Texas
`
`resident, such action must be fiied in Travis County, or the Texas county where
`claimant’s iast employer has its principal piece of business, or in the Texas county of
`ciairnant's last residence. The petition in such action must state the grounds on which
`review is sought. and must be served on a member of the Commission or on General
`Counsei. Suite 608,
`tO‘i E 15‘“ St. Austin TX 78?78, the person designated by the
`Commission to receive service on its behalf and there must be left with such person as
`many copies of the petition as there are defendants. This constitutes completed service
`on all parties, and the Commission immediateiy shaii mail one copy of the petition to
`each defendant.
`‘
`
`You must continue to conduct an active work scorch and keep records.
`
`Notice To CLAIMANT:
`
`x Home
`
`Joseph L. DeLuna
`
`2284377
`
`002
`
`

`

`TEXAS WORKFORCE COMMISSION
`
` COMMISSION APPEALS RM. 678
`
`101 E. 15TH ST.
`AUSTIN, TX 78778
`
`__1
`
`FAX (512) 475-2044
`TEL. 1-800-432-4218
`
`claimants www.texasworkforce.org/ubs
`emptoyers www.texasworkforce.org/ebs
`
`JOSEPH L DELUNA
`
`1 1/19/2101 8
`
`Claimant:
`SSN:
`Claim ID:
`Case#:
`
`JOSEPH L. DELUNA
`
`03/11/2018
`2284377-3
`
`The ciaimant’s communication of November 13, 2018 has been received and is being referred to the
`Commission for consideration as a motion for rehearing, or reconsideration, of the decision rendered
`by the Commission.
`
`The Commission will review the case as soon as it is reached on the Commission docket. The
`
`decision of the Commission is normally rendered on the basis of the evidence submitted during the
`previous hearing. However, if the Commission requires additional evidence, a hearing wiil be
`sch