Need some advice for an TX unemployment appeal. (receive, claim, record)

[stoneclaw]

Sorry in advance for long post.

I was fired from the City of Houston Fire Department for failure to pass a final exam in August this year. I started back in June. I got a Conditional Job Offer letter back in May, but only explained that the Conditional Job Offer would be contingent upon passing a drug screening and medical exam, which I both passed successfully. They informed us that we would have to quit our jobs before reporting to work our first day June 23. They went over some details of the physical requirements of the job, but the specific details of the requirements of the academic "classroom" portion of the job were not revealed.

It wasn't until our first day of work, they gave us the code of conduct booklet which detailed how that we MUST pass the final exam in order to keep our employment. Although I passed the class, I failed the final and was discharged shortly after.

I filed for unemployment the week I was terminated and the Employer responded on the last day possible and cited "misconduct" as the reason for my separation. I spoke with the first investigator and I explained that I performed the job to the best of my ability and there was no misconduct on my part. I just had my second hearing and submitted documents to disprove the misconduct claim:
1) Proof of my purchase of additional study material
2) Doctor's note- explaining I was on medications for a condition which could've affected concentration.
3. Class syllabus- which showed the date (which was after we were employed) detailing the specific requirements of passing the class (IE failing the final exam could automatically end your employment regardless of how well you do in the class)
4. Proof that I passed the class

Long story short, because my employer stated that they did not receive their copies of my documents from me, the Hearing officer did not consider my documents and deemed everything irrelevant and denied my claim.

I have one last chance to appeal this. Do i have any chances of winning this? I did everything I was told I would have to do to pass the class. I studied for hours during my lunchbreaks and all during my evenings and literally 12 hrs a day on my weekends, so I know I didn't misconduct myself. The proof I sent was to show that I did give this my 100% effort, but it seems they are trying to make this misconduct thing stick. I know I tried my best, but its a case of my best was not good enough.

Do I have any chance? I understand that I failed the test, but it seems that the employer is trying to make it seem like I just did some intentional wrongdoing as the misconduct definition suggests.

Any help would be appreciated.

[Rabrrita]

There are Four steps in the unemployment determination process.
1. Initial interview where the basic facts and a determination is made.
2. Appeal Tribunal (AKA Appeals Hearing) before an administrative judge.
3. Commission Review where you are not present and they take your appeals statement and review the recording of the hearing
4. Civil Court motion.

Can you confirm that you are now at the Commission Review.

You need to type in the exact wording of your denial. Also make sure you make proper and timely notice of the appeals request.

[Chyvan]

Originally Posted by Rabrrita

You need to type in the exact wording of your denial.

This really is the most important part to getting help. What many people think the word "misconduct" means is NOT the same when used for purposes of unemployment.

Also, you mention the excluded evidence. Talk more about that. Why didn't the employer get a copy? Did you not send one? Or were you duped. This I can speak to because it happened to me. I was required to send my evidence to the appeals people and send duplicate copies to the employer. My employer is in Phoenix, but the address I was required to use was in NY. My ALJ excluded my evidence, but I brought that up in my appeal. It's not my fault the NY people didn't get it to the Phoenix people. This might explain why I got a NEW hearing rather than a REOPENING, but I can't be positive.

That's why reading the denials helps. If your documents would have made for a different decision, it will be clear from the decision. Then again, people submit stuff that is of no value all the time.

[stoneclaw]

Originally Posted by Rabrrita

Can you confirm that you are now at the Commission Review.

Yes, my next step will be the Commission Review

You need to type in the exact wording of your denial. Also make sure you make proper and timely notice of the appeals request.

I hope i'm understanding you correct, but do you mean type the denial on here (city-data) or during my next appeal?

Just incase, my denial is as follows:

If continued employment is contingent upon taking and passing of a subsequent test, a claimant's failure to pass that test constitutes misconduct connected with the work. The employer notified the claimant he was required to take and pass an exam for continued employment, and the claimant did not pass the exam. Because the claimant did not pass the exam for continued employment and continued employment was contingent upon the claimant's discharge was for reasons of work connected misconduct. Therefore, the original decision to deny benefits will be affirmed.


My argument is that the employer did not notify us the specific requirements until after our first day of work, after we accepted the job offer. My hearing officer said during the interview, " Even after you were informed of the requirements, you still continued to work for the employer knowing you would have to pass the tests"

I don't understand the point of that argument. What was I supposed to do, quit, and be unemployed? It was never my intention to fail any tests. I figured by putting in hard work and dedication that I wouldn't have a problem passing the tests, but those tests were pretty tough. Plus, My employer required us quit our jobs in order to begin work, so what was I don't understand what they expected me to do?

It seemed almost pointless to send in any supporting documents if they weren't even going to be looked at in this decision. The day after I was fired, my Doctor voluntarily submitted a letter to the HR of the department explaining that I had been on medication. I sent a copy of that letter to my Hearing officer and it didn't seem like it wasn't even looked at.

Originally Posted by Chyvan

Also, you mention the excluded evidence. Talk more about that. Why didn't the employer get a copy? Did you not send one? Or were you duped.

I sent the documents approximately 2 mailing days before the hearing date. I received the letter 4 mailing days before the decision which I did not really feel was much time, but I did send the information. I just think that it wasn't in that person's hands at the time of the hearing which was in the morning.

[Chyvan]

Originally Posted by stoneclaw

If continued employment is contingent upon taking and passing of a subsequent test, a claimant's failure to pass that test constitutes misconduct connected with the work. The employer notified the claimant he was required to take and pass an exam for continued employment, and the claimant did not pass the exam. Because the claimant did not pass the exam for continued employment and continued employment was contingent upon the claimant's discharge was for reasons of work connected misconduct. Therefore, the original decision to deny benefits will be affirmed.

The above was what we were talking about. Now, look to the findings of fact. Was it concluded that you knew the requirement BEFORE or AFTER taking the job. I'm going to do research, so it might matter or then again it might be a TX thing, and there is nothing you can do.

http://scholar.google.com/scholar_ca...en&as_sdt=4,44

This is from 2008 and there appears to be nothing that overturned it, so read this. Its even discusses the distinction between a good faith effort and not trying at all. So, it's my opinion, you have something to work with unless TX changed it's laws or regulations since then, and that is something that Rabrrita is better at finding than I.

http://www.twc.state.tx.us/ui/appl/u...l-updates.html

Then again, there are cases here with the insurance person and the park ranger, but they don't say whether something might have made a difference. Like the park ranger was a change, but they don't say if she tried and failed or failed to try at all. The insurance person was a condition of employment so that makes things different.

While I did think you had a good chance, I've now changed my mind because it's getting muddier the more I read. If you do have a chance, I'm no longer sure what to make as the key issue anymore.

[stoneclaw]

Originally Posted by Chyvan

.

While I did think you had a good chance, I've now changed my mind because it's getting muddier the more I read. If you do have a chance, I'm no longer sure what to make as the key issue anymore.

Interesting and thanks for your perspective. Can you elaborate?

So you no longer think I have a good chance? The key isssue they're trying to say is I was aware of the requirement when I began the first day on the job, yet I continued to work for the company after knowing what the requirements were. True, but as I stated before, what was my other option? To quit before trying and just be unemployed?

as far as that second link you referenced, the Hearing officer referenced case number 413444 as a precedent (on that same link), but I feel every case should be treated different. The fact that my Doctor sent a letter explaining that I was on medications to treat a condition which could've had an effect on my concentration, I think that differs the case in itself.

[Chyvan]

The thing is you're in TX. In any other state not passing an examine like in the park ranger's situation would have been inability, not misconduct. TX is a more stringent state.

My position is that I don't know what factors make a difference.

Both the park ranger and insurance agent needed to pass an exam. They both failed and they were denied. The park ranger found out after she was employed there for some time, and so did you. In the 2008 decision from the court, that person got benefits for failing the test. It's because of the conflicting decisions and not getting all the details that makes it so hard to tell you what to do. These things quite often hinge on WHY, and when you can't determine what made the difference, you do don't know what to say in your appeal.

You're not supposed to rehash the evidence, but say specifically why the decision is wrong.

A lot of the time, I really do know what has the best chance of winning on appeal, but in this case, it's out of my league. I just hope someone else has some ideas for you, but at a minimum, study the 2008 decision, borrow the logic from it, reference it in your write up so that hopefully the Commission reviews it, and pray they think they should rule in your favor because of it.

[stoneclaw]

Well, I just went ahead and filed a commissions appeal. I think this will be the last appeal opportunity I have. I'm just going to have to go ahead and pray that this works in my favor.

[stoneclaw]

Well, just thought I'd give an update to anyone who cares. It took them over 2 months to give me this bull but I lost my commission appeal. Texas sucks when it comes to unemployment!

But on a happier note, I will be starting a new job next week. I still could've still really used that $4500 amount of unemployment. I have another chance to appeal it and I thought about letting it go, but I think I'm gonna go ahead and do it anyway. Nothing lost if I do.

[Chyvan]

Please type in the write up from the commission. We need to know WHY you were denied because sometimes there is a nugget in there that can make a difference for someone else.