CAUSE NUMBER - Texas Workforce Commission



CAUSE NO. ____________________________

_________________________________, )

) IN THE DISTRICT COURT

Plaintiff, )

) FOR __________ COUNTY,

v. )

)

TEXAS WORKFORCE COMMISSION ) _______ JUDICIAL DISTRICT

and FORMER EMPLOYER, INC. )

)

Defendants. )

PLAINTIFF’S ORIGINAL PETITION

COMES NOW, Plaintiff, your name here, complaining of Defendants, Texas Workforce Commission (TWC) and Former Employer, Inc. (hereinafter “FEI”), and by this petition seeks review of a decision of TWC, pursuant to the Tex. Lab. Code § 212.201 et. seq., and alleges as follows:

DISCOVERY CONTROL PLAN

Pursuant to the Texas Rules of Civil Procedure 190, Plaintiff intends to use a Level 1 discovery control plan.

I. PARTIES

1. Plaintiff, YOUR NAME HERE, is an individual residing at your street address in the City of your town, your County, State of Texas. Plaintiff is entitled to file this petition for judicial review without the charge of any fee by any court or officer thereof pursuant to Tex. Labor Code §207.007(a).

2. Defendant, Texas Workforce Commission, is an agency of the State of Texas, and may be served with citation, addressed to Paul N. Jones, General Counsel, 101 E. 15th Street, Room 608, Austin, TX 78778-0001.

3. Defendant, Former Employer, Inc., is a corporation formed and incorporated in the State of Texas. Pursuant to the Tex. Labor Code § 212.206 such service shall be deemed complete when service on all defendants, provided an additional copy of the petition is included for Defendant, TWC, to forthwith mail to Defendant FEI.

II. JURISDICTION

4. The controversy that is the subject of this suit falls within the Court’s general jurisdiction and the amount in controversy is within the Court’s jurisdictional limits.

5. Pursuant to the Tex. Labor Code § 212.204, venue is proper in Your county, Texas, because Your county is the county of Plaintiff’s residence and/or Defendant conducted business in Your county at the time of the events giving rise to Plaintiff’s claims.

III. PROCEDURAL HISTORY

6. The basis of the action is stated in TWC’s “Determination on Payment of Unemployment Benefits (Exhibit A) to be: ”employer fired you from your last work for being late to work. You understood the employer required you to be on time or obtain an excuse for being late.”…”Law Reference: Section 207.044 of the Texas Unemployment Compensation Act.”

7. On December 3, 2009, TWC denied unemployment benefits to Plaintiff.

8. On December 16, 2009, Plaintiff filed a timely appeal (Exhibit B) with TWC.

9. On January 11, 2010, TWC mailed the “Notice of Telephone Hearing” instructions and selected case documents (Exhibit C) to Plaintiff.

10. On January 27, 2010 a telephone hearing was conducted by TWC.

11. On January 29, 2010, TWC issued the “Appeal Tribunal Decision” (Exhibit D), again denied benefits stating “The Claimant put an incorrect time on her timesheet because she believed that the timesheet was not intended to reflect the specific times she arrived to and left work. However, it was not rational for the claimant to assume that her timesheet was not intended to reflect the times she arrived to and left work, as that is the entire purpose of having a timesheet. Because the claimant falsified her timesheet with regard to the time she arrived to work on October 13, 2009, the claimant is considered to have mismanaged her position of employment and is concluded to have been discharged for misconduct connected with the work.”

12. On February 11, 2010, Plaintiff filed a timely Request for Review (Exhibit E) with TWC in Austin and received acknowledgement from TWC (Exhibit F) on February 23, 2010.

13. On May 14, 2010 TWC issued its Findings and Decisions of Commission upon Review of Claim for Benefits (Exhibit G). In the Findings and Decisions of Commission, TWC affirmed the decision of the Appeal Tribunal in all respects.

IV. FACTS

14. Plaintiff was an employee of FEI for approximately three (3) years.

15. Plaintiff was first hired as a part-time sales clerk for FEI. Upon demonstrating excellent work-ethic for FEI, representatives of FEI offered Plaintiff to work full-time for FEI.

16. For all times relevant to this case, Plaintiff’s job position with FEI was a full-time sales clerk.

17. FEI does not have an Employee Manual or any Policy and Procedures Manual. No written work schedule exists; rather, all communications between Plaintiff and FEI regarding work schedules (work hours and times) are verbal.

18. Plaintiff was terminated on October 20, 2009.

19. The reason for termination given by FEI to Plaintiff was for being late for work on October 13, 2009.

20. When FEI submitted its “Work Separation Details” (part of Exhibit C) form sent to her by TWC, written in the margin was “she was fired because she was late + lied on timesheet” thereby changing the reason Plaintiff had been given for termination.

21. FEI, did not follow her own policy as stated in the “Written Warning” (Part of Exhibit C) given to Plaintiff on September 26, 2009 for being late. “The next time she is late she will receive a Final Written Warning”. No Final Written Warning was ever issued by FEI; rather, Plaintiff was terminated.

22. TWC stated in the “Appeal Tribunal Decision” (Exhibit D) that “it was not rational for the claimant to assume that her timesheet was not intended to reflect the times she arrived to and left work, as that is the entire purpose of having a timesheet.” This allegation is untrue. Employers use timesheets to allocate the number of hours/amount of salary expense to different cost centers, to charge different clients for work performed, to record sick leave vs. vacation vs. normal work hours as well as to document the number of hours the employee actually worked on a particular day. The timesheets provided by FEI were pre-printed generic forms purchased at Staples and not customized forms intended to capture specific data for FEI.

23. FEI had established the precedent of using the timesheet provided to represent the hours worked and not to reflect the exact arrival and departure time of the employees.

24. Current and blank timesheet forms were kept in the cash drawer where any employee could see them. Another employee of FEI, (friend and witness at telephone hearing), repeatedly filled out blank timesheets with the hours of her shift, 9:30 a.m. to 5:30 p.m., for weeks in advance leaving only the dates blank.

25. Friend stated in her testimony during the telephone hearing that just because the timesheet said 9:30 a.m. did not mean she arrived exactly at that time – she could have arrived at 9:15 a.m. or 9:40 a.m.

26. TWC stated in the “Appeal Tribunal Decision” (Exhibit D) that “The claimant did not put her correct arrival time on her time sheet because she thought the time sheet was intended to reflect the total hours she worked rather than the specific times she arrived and left work. The employer did intend for employees’ timesheets to reflect the specific time they arrived to and left work. The employer discharged the claimant for falsifying her timesheet.”

27. Although Defendants allege that the timesheets were intended to reflect the actual hours worked, FEI never admonished Plaintiff or any other employee of FEI for stating their shift time. Writing an employee’s shift was a common practice with employees at FEI.

28. In fact, on several occasions, Plaintiff worked well past her shift’s end at 5:30 p.m. and yet only noted her shift end time of 5:30 p.m. on the time sheet.

29. In addition, FEI was aware of this practice by Plaintiff and other employees at FEI.

30. FEI acknowledged it was aware of this during the telephone hearing when its owner, Former Boss, stated that she knew Plaintiff was staying long after closing and [Defendant] was “alright with it because “ [Plaintiff’s] “home life was not good”. Testimony by Friend and Claimant’s Ex during the telephone hearing further corroborates that Plaintiff stayed past her shift hours during her employment at FEI.

31. Since FEI was aware that she was not compensating Plaintiff for all the work done at FEI, in effect, it was FEI that has been withholding appropriate pay from Plaintiff for years.

V. GROUNDS FOR REVIEW

32. The Texas Labor Code allows Plaintiff a trial de novo as a matter of right, pursuant to § 212.202(a), even without entry of any specific exceptions to the rulings of the TWC §212.202(b). Nevertheless, §212.205 requires this Petition to state grounds for review.

33. For grounds, Plaintiff would show the Court as follows:

a. TWC’s decision is not supported by substantial evidence;

b. TWC’s decision is based upon improper legal definitions of “misconduct” and other legal terms;

c. There is no evidence to support TWC’s decision;

d. There is legally insufficient evidence to support TWC’s decision;

e. TWC’s decision is against the greater weight and degree of the evidence; and

f. TWC’s decision is against matters conclusively established as a matter of law.

WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that Defendants be cited to appear and answer herein, that Plaintiff be granted judgment against Defendants for his her damage as they may appear upon the trial hereof, reserving here right to amend the pleadings to conform to the facts as they may develop, costs, pre-judgment and post-judgment interest at the maximum rate allowed by law, whether equitable or statutory, and for such other and further relief, special or general, legal or equitable to which Plaintiff may show himself herself justly entitled.

Respectfully Submitted,

__________________________________________

Your Name here

Your street address

Your Town, TX 75555

Telephone: (555) 491-1441

Pro Se Plaintiff

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download