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12. Misconduct

Roberts v Americhem Sales Corp – 12.134

Roberts v Americhem Sales Corp
Digest No. 12.134
Section 421.29(1)

Cite as: Roberts v American Sales, Corp, Unpublished Opinion of the Kent County Circuit Court of Michigan, Issued April 11, 2003 (Docket No. B-2002-06554-16443).


Court: Circuit Court for the County of Kent
Appeal pending: No
Claimant: John D. Roberts
Employer: American Sales Corporation (“ASC”)
Date of decision: April 11, 2003

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HOLDING: “An individual is disqualified from receiving benefits if he or she: … [w]as discharged for … testing positive on a drug test, …,”only if, should the worker dispute that result, a confirmatory test is administered and is also positive under MCL 421.29(1)(m). A claimant cannot be disqualified from benefits if he or she asked for a second test, and no such test was administered.

FACTS: Claimant worked as a sales representative for Americhem Sales Corporation (“ASC”) from June, 2001, through January 25, 2002. His tenure was troubled. He was warned and disciplined several times for poor job performance, failing to follow instructions, and/or insubordination, and by a letter dated January 14, 2002, he was told by the president of ASC that, because of that “continued pattern of behavior,” he would have to submit to drug and alcohol testing, which he did and had tested positive for cocaine. Shortly after, the employment was terminated. Claimant applied for unemployment benefits. When his application was denied, he appealed. A full evidentiary hearing took place, and the referee issued a decision finding, first, that claimant had been discharged solely because of the drug test, not because of poor job performance or disciplinary problems. The employer had claimed otherwise, but the referee was not persuaded. The referee also found that claimant had demanded a confirmatory drug test. He had testified to such a demand, and the employer’s witnesses did “not recall” whether he had asked for another test. Therefore, because ASC had conceded that no second test had been administered, the referee ruled that MCL 421.29(l)(m) barred disqualifying claimant from benefits. The Board of Review affirmed, finding that “the [r]eferee’s decision is in conformity with the facts as developed at the hearing,” and that he had “properly applied the law to the facts.” ASC appealed claiming that both the referee and the Board of Review erred, because the finding that claimant had not been fired for repeated misconduct “completely ignored the evidence of the series of events leading to [c]laimants discharge.”

DECISION: The court affirmed the decision of the referee and the Board of Review.

RATIONALE: While the notice of termination from ASC’s president referred to claimant’s “pattern of behavior of not following instructions,” it was certainly reasonable to read that notice as stating that pattern merely as the justification for having required claimant to submit to a drug test, not as a statement of reasons for his termination. Under 421.29(1)(m), because it could not reverse the findings that claimant “[w]as discharged for … testing positive on a drug test,” that he asked for a second test, and that no such test was administered, let alone was again positive, the court found that Claimant cannot be disqualified from benefits. Giving to the determination of the Employment Security Appeal Board the deference to which it is entitled and the meaningful review to which the parties are constitutionally entitled, the court found that that determination was amply supported by the record and was also legally correct. The court did not apply Miller v FW Woolworth Co, 359 Mich 342 (1960) to this case, because it was convinced that its superior courts would not so apply Miller, as it would require departing from the ordinary meaning of the terms used in MCL 421.29(I)(b) and (1)(m).

Digest author: Toni Suh, Michigan Law, Class of 2020
Digest updated: January 29, 2021