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JEDI Categories as of August 10, 2014:
  1. Santayana Syndrome

  2. Inappropriate Role Shifting

  3. Unauthorized Rule-making

  4. Hypothecation


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CASE NAME: James M. Orr (Employer) v. Austin Johnson (Claimant)
CASE NUMBER: Appeal #1854078-1-3

Texas Workforce Commission Appeal Tribunal at Austin, Texas

[ ] Santayana Syndrome

[x ] Inappropriate Role Shifting

[ ] Unauthorized Rule-making

[ ] Hypothecation
In this case, the prospect of "Inappropriate Role Shifting" was referenced by the Claimant (Austin Johnson) on appeal to the full Texas Workforce Commission (TWC) from the denial of his eligibility determination pursuant to the above referenced appeal. The following excerpt (in dark blue font) is from the tribunal decision denying Mr. Johnson unemployment benefits:

CASE HISTORY: A determination dated May 30, 2014 approved the claimant's claim for benefits without disqualification under Section 207.044 of the Texas Unemployment Compensation Act. The employer appealed.

It was also ruled that any benefits paid to the claimant based on wage credits from this employer will be charged back to the employer's tax account for use in computing the employer's tax rate.

ISSUES: The issues in this case include:

Whether the claimant separated from the last work as a result of a discharge based on work-connected misconduct or a voluntary quit without good work-connected cause.

Whether benefits paid to the claimant based on wages from the employer should be charged to the employer's account for use in computing the employer's tax rate.

A pdf of the full Appeal Tribunal Decision (redacted to exclude sensitive personal data) is among the attachments below. Mr. Johnson submitted his appeal of that decision via the TWC portal at which has a 4500 character limitation for stating appeal grounds. Below (in dark green font) is a quote of Mr. Johnson's stated grounds for appeal:

Throughout the administrative record at hand, Orr (the employer) portrays Mr. Johnson (the claimant) as a problematic employee, but ultimately attributes Johnson’s termination to his unwillingness to sign a pencil-written acknowledgment form. Orr confirms this ground for terminating Johnson on cross examination by claimant’s representative. Yet the Hearing Officer determines that “(t)he employer discharged the claimant for several reasons: refusal to sign a written reprimand, insubordination, previous disciplinary actions, customer relations, negative comments about the business, and personal hygiene.” Such “fact finding” goes beyond the Hearing Officer’s prerogative to resolve factual conflicts and ambiguities. Instead, it constitutes advocacy and disregards the Hearing Officer’s obligation to render a fair and impartial decision. See,

These sentiments expressed in 1992 by the U.S. Court of Appeals for the Seventh Circuit are implicit in all provisions of the TWC’s Appeal Hearing Officer Handbook: “a judge abuses his authority . . . when ‘the judge abandons his proper role, and assumes that of an advocate’; “A . . . judge may not advocate on behalf of” (any party over which he or she presides.)”. See, Ross v. Black & Decker, Inc., 977 F.2d 1178 at 1187 (7th Cir. 1992).

The Hearing Officer formulated grounds for terminating Mr. Johnson despite his employer’s more limited admission against interest within the meaning of Texas Rule of Evidence 801(e)(2). Perhaps even that move would be justified if, as the Hearing Officer contends, “(t)he greater weight of the evidence is in favor of the employer’s decision to discharge the claimant.” See, Appeal Dec. p 3. However, there are simply no objective or otherwise sensible grounds for that conclusion apparent from the record.

According to the Hearing Officer, “(w)ith the exception of his attorney, the claimant presented only secondhand, hearsay testimony about his conduct at work and the resulting discharge.” Appeal Dec. p 3. Actually, Mr. Johnson disputed each of these contentions through his own testimony:

- “The claimant was observed by the owner and other employees defying the employer’s known rules”;

- “When the claimant returned to work, he refused to sign the reprimand and reportedly cursed the employer.” [NOTE: Mr. Johnson admitted calling Orr a “damn liar” post-termination and apologized on record for that indiscretion];

- “The claimant chose to handle (his hygiene) problem by putting on body deodorant or a body scent which, by all accounts, made the problem worse. Appeal Dec. p 2.

Mr. Johnson sought to corroborate, not conclusively prove his account of events through (among other things) unsworn, written witness statements that he affirmed under oath are authentic.##So they do not constitute hearsay within the meaning of Texas Rule of Evidence 801(d).

Appeal No. 658-CA-77 provides that “(t)he sworn testimony of one party, based on her firsthand knowledge, should be given greater weight than exclusively secondhand, hearsay testimony offered by another party.” That precedent hardly justifies crediting an employer’s testimony more than that of his former employee, SIMPLY because the employer can produce current employees as favorable witnesses. Unlike Orr’s employees/witnesses, Mr. Johnson’s witnesses lack an apparent, compelling motive to lie or exaggerate to impact this proceeding. Interestingly, the Hearing Officer believes one of them to the extent he purportedly supports her “inferences about the claimant’s body odor”. See, Appeal Dec. p 3. Otherwise, she suggests Mr. Johnson’s witnesses -- all of whom are reportedly accomplished businesspeople -- have misapprehended their ability to account for his work ethic and should be disregarded accordingly.

The Hearing Officer submits “what (she finds) to be the facts of the case based on what (she considers) the most plausible testimony of all the testimony presented.” But her disposition of this case has all the foundation of a coin toss. The decision is unreasonable, arbitrary, and capricious. Moreover, there are no reasonable grounds for disqualifying the Claimant as made evident by the record including the “CLAIMANT’S BRIEF IN SUPPORT OF ELIGIBILITY DETERMINATION” filed herein and made part of this appeal by reference as if fully set forth.

##Johnson also explained why his witnesses were unavailable to testify.

A pdf of the referenced Claimaint's Brief is among the attachments below. After submitting the Okorowski and Crenshaw-Logal statements noted in the brief, Mr Johnson submitted two customer statements (one is a Yelp review), all of which are among the attachments below, redacted to exclude personal contact information.
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