16. Procedures/Appeals

Sanderson v. UIA – 16.94

Sanderson v. UIA
Digest No. 16.94

Section 421.32a & Section 421.62

Cite as: Sanderson v Michigan Unemployment Insurance Agency, unpublished decision of the Court of Claims, issued June 5, 2017 (Case No. 16-000083-MM).

Court: Court of Claims
Appeal pending: Yes
Plaintiff: Judy Sanderson, Albert Morris, Antonyal Louis, and Madeline Browne
Defendant: Unemployment Insurance Agency
Date of decision: June 5, 2017

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HOLDING: The Court granted the defendant’s motion for summary disposition because plaintiffs failed to satisfy the requirements of MCL 600.6431.

FACTS: Claimant Sanderson began receiving unemployment benefits in June 2009. The UIA issued redeterminations on September 26, 27, and 28, 2011 determining that Claimant was not entitled to benefits because she made intentional misrepresentations. The UIA gives three years from the date of the last redetermination to initiate administrative action or court action to recover improperly paid benefits. The UIA began collection efforts against Claimant in May 2014. Interception of her tax refund occurred on or about April 9, 2015.

DECISION: Plaintiffs failed to comply with the notice requirements found in MCL 600.6431. Claimant Sanderson’s complaint was filed on April 11, 2016, far more than six months after the first instance of wrongful garnishment.

The Court denied the plaintiffs’ request to amend the complaint and rejects the claim that summary disposition is premature because discovery has not yet begun.

RATIONALE: Plaintiffs’ claims do no meet the timing requirements of MCL 600.6431. This applies a six month notice deadline to file a complaint. The Court assumed without deciding that Plaintiffs’ interpretation of Section 421.62 is correct, which sets a three year period for collecting a debt. However, plaintiffs’ complaints were filed on April 11, 2016 and in order for them to satisfy the requirements under MCL 600.6431, the wrongs need to occur within six months of the filing date. None of the claims asserted fit the timeframe.

The Court denied leave to amend because there is no manner in which they could amend the complaint so that it complies with the requirements under MCL 600.6431.

The Court also determined that plaintiffs’ assertions were not enough to demonstrate that discovery is warranted in this matter.

Digest author: Sara Posner, Michigan Law, Class of 2017
Digest updated: December 26, 2017

16. Procedures/Appeals

Bouchard v. Lavdas Enterprises, Inc. – 16.84

Bouchard v. Lavdas Enterprises, Inc.
Digest No. 16.84

Section 421.33(1)

Cite as: Bouchard v Lavdas Enterprises, Inc., unpublished opinion of the Macomb County Circuit Court, issued June 14, 2013 (Docket No. 2012-4168-AE).

Appeal pending: No
Claimant: Patricia J. Bouchard
Employer: Lavdas Enterprises, Inc.
Date of decision: June 14, 2013

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HOLDING: Claimant, through her attorney, was present at the hearing for the purpose of prosecuting her appeal pursuant to MCL 421.33.

FACTS: The Unemployment Insurance Agency issued a redetermination in which it found Claimant ineligible to receive unemployment benefits and ordered Claimant to pay restitution.

Claimant appealed the redetermination and Claimant’s counsel appeared at the hearing without Claimant present. The ALJ held that Claimant was required to appear at the hearing and that her failure to do so constituted a failure to prosecute her appeal pursuant to MCL 421.33. As a result, the ALJ dismissed Claimant’s appeal. The Board of Review affirmed the ALJ’s decision.

DECISION: The decisions of the ALJ and Board of Review are reversed and the case is remanded for a re-hearing before an ALJ.

RATIONALE: Per MCR 2.117(B)(l), “an appearance by an attorney for a party is deemed an appearance by the party. Unless a particular rule indicates otherwise, an act required to be performed by a party may be performed by the attorney representing the party.” Further, MCL 421.31 provides: “any individual claiming benefits in any proceeding before the commission or a court may be represented by counsel or other duly authorized agent.”

Based upon the above-referenced authority, the Court was satisfied that Claimant’s failure to personally appear at the hearing did not constitute a failure to prosecute her appeal.

Digest author: Stephanie Marshak, Michigan Law, Class of 2016
Digest updated: October 20, 2017

16. Procedures/Appeals

Pinecrest Custom Homes v Meines – 16.70

Pinecrest Custom Homes v Meines
Digest no. 16.70

Section 32a

Cite as: Pinecrest Custom Homes v Meines, unpublished opinion of the Kent Circuit Court, issued October 8, 2002 (Docket No. 02-03823-AE).

Appeal pending: No
Claimant: Janis Meines
Employer: Pinecrest Custom Homes
Docket no.: B2001-14696-RM1-161795
Date of decision: October 8, 2002

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CIRCUIT COURT HOLDING: Detrimental reliance on incorrect advice from a representative of the Agency constitutes “good cause” for filing a late protest.

FACTS: Claimant quit her job due to abusive conduct by the husband of the owner. Claimant filed for benefits. A determination held her disqualified for benefits under Section 29(1)(a). Claimant telephoned the claims examiner who issued the determination to ask what would be required to reverse the determination. Claimant testified the claims examiner told her (incorrectly) she would have to “prove with medical records or police reports that she had been ‘physically injured.’” Claimant did not file a timely protest of the determination because she did not have such evidence. A few weeks later, claimant met the person who had replaced her. That person also quit due to abusive conduct from employer’s husband and was seeking benefits. She told claimant other employees had quit for the same reason and had received benefits. Claimant then filed an untimely protest.

DECISION: The claimant established good cause for her late protest.

RATIONALE: “What justifies considering the late filing of a new, additional or reopened claim seems intuitively to justify considering the late protest of the initial determination of a claim.” That definition of “good cause” is “a justifiable reason, determined in accordance with the standard of conduct expected of an individual acting as a reasonable person in light of all the circumstances, that prevented a timely filing or reporting to file….” The statement of a “representative of the Unemployment Agency that a protest could succeed only with evidence that one does not have compels the conclusion that there is no point to a protest; reasonable people do not do the futile. [I]t is not reasonable to expect lay-people to ignore whom the government holds out to be an expert.” Claimant “had good cause for not protesting until she learned that she had been misled.”

Digest Author: Board of Review (original digest here)
Digest Updated:

16. Procedures/Appeals

Pool v R S Leasing, Inc – 16.69

Pool v R S Leasing, Inc
Digest no. 16.69

Section 32a

Cite as: Pool v R S Leasing, Inc, unpublished opinion of the Wayne Circuit Court, issued May 3, 2002, (Docket No. 01-138871-AE).

Appeal pending: No
Claimant: Brinda J. Pool
Employer: R. S. Leasing, Inc.
Docket no.: B2001-08251-159781W
Date of decision: May 3, 2002

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CIRCUIT COURT HOLDING: Where claimant’s late protest was attributable to her parents’ medical problems, good cause for reconsideration was established.

FACTS: On January 2, 2001 claimant received a determination holding her disqualified. The Agency received claimant’s protest on March 12, 2001. The Agency requested an explanation for the untimely protest. Claimant disclosed that she had been out of town because her parents were ill. The Agency denied her request for redetermination. Claimant testified that after she received the determination, she left town to care for her parents, both seriously ill. She thought she would return before the 30-day appeal period expired, but did not return until February 28, 2001. She mailed her protest after the 30-day appeal period expired. She did not mail the protest before leaving town because her main concern was her parents’ health. The Board found she failed to show good cause for her late protest.

DECISION: The claimant demonstrated good cause for her late appeal of the Agency’s determination.

RATIONALE: The plain language of Rule 270(1) provides that the “Rule’s [specific] list of grounds for finding good cause is not exclusive,” and Rule 210(2)(e)(v) provides that “[g]ood cause for late filing of a new, additional, or reopened claim” includes “[p]ersonal physical incapacity or the physical incapacity or death of a relative . . ..” Reading the two Rules together leads to the conclusion good cause was established.

Digest Author: Board of Review (original digest here)
Digest Updated:

16. Procedures/Appeals

Ngo v Nabisco Inc/Lifesavers – 16.71

Ngo v Nabisco Inc/Lifesavers
Digest no. 16.71

Section 34, 38

Cite as: Ngo v Nabisco Inc/Lifesavers, unpublished opinion of the Ottawa County Circuit Court, issued June 9, 2000 (Docket No. 99-35034-AE).

Appeal pending: No
Claimant: Thiet Ngo
Employer: Nabisco Inc/Lifesavers
Docket no.: B1999-03348-152225
Date of decision: June 9, 2000

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CIRCUIT COURT HOLDING: Notwithstanding the opinion that evidence supporting a Board conclusion is less substantial when the Board disagrees with the Referee, the Board’s decision must be affirmed if the record contains evidence a reasonable mind would accept as adequate to support a conclusion.

FACTS: Employer discharged claimant for violating rules prohibiting the removal of company property without written authorization. Security guards stopped claimant and found two 50-count boxes of lollipops under a Burger King bag in his lunch box. He did not have a receipt showing they were purchased at employer’s company store and did not know when he bought them. The candy was not packaged like that for sale at the company store, and was not in a bag from the store. Claimant testified he unwrapped both boxes to snack on, but had not eaten any of the candy. The Referee found the claimant’s testimony credible that he previously purchased the candy and had thrown the receipt away. The Board rejected the Referee’s credibility finding and found claimant disqualified under Section 29(1)(b). The Board found the claimant not credible because he did not know when he bought the lollipops, bought them to snack on and removed the cellophane but did not eat any, then tried to remove them from the facility without a receipt.

DECISION: Claimant is disqualified for misconduct.

RATIONALE: Claimant argued that the Board did not give due deference to the Referee’s credibility finding, citing Michigan Employment Relations Comm v Detroit Symphony Orchestra, Inc, 393 Mich 116, 127 (1974), for the proposition that “evidence supporting a review board’s conclusion is less substantial when it disagrees with an experienced impartial examiner who has observed the witness,” to argue that there was insufficient evidence to support the Board’s conclusion. The court disagreed, observing that “less substantial” is not the same as “insubstantial” and that Section 34 authorizes the Board to “…reverse the findings of fact and decision of the referee.”

Digest Author: Board of Review (original digest here)
Digest Updated:

10. Voluntary Leaving

Sempliners Formalwear v Leifer – 10.60

Sempliners Formalwear v Leifer
Digest no. 10.60

Section 29(1)(a)

Cite as: Sempliners Formalwear v Leifer, unpublished opinion of the Bay County Circuit Court, issued February 14, 1995 (Docket No. 94-3420-AE).

Appeal pending: No
Claimant: Debra J. Leifer
Employer: Sempliners Formalwear
Docket no.: B92-31007-124907W
Date of decision: February 14, 1995

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CIRCUIT COURT HOLDING: Claimant is not subject to disqualification where she left her employment, and the state, to ensure her personal safety from her husband who was also co-owner of the employer.

FACTS: The claimant worked for the employer from February 1990, to February 1992. The claimant was married to the president and part-owner of the employer. The claimant and her husband wintered in their home in Florida. The claimant had the practice of working full-time for the employer out of her Florida home. In spring of 1991, the claimant and her husband returned to Michigan. The claimant’s husband became threatening towards her and other employees. The employer took steps to remove the claimant’s husband from his office and to prohibit him from entering the business. The claimant informed the employer she planned on staying in Florida permanently because she feared for her safety and wanted to avoid her husband. Her husband hit her at work, threatened her, closed their joint checking account, changed the locks on their Michigan residence, and confiscated her car.

DECISION: The claimant is not disqualified for benefits.

RATIONALE: This matter is an “unusual and unique case in that the claimant’s employer is her husband.” This unique relationship resulted in the employer, through the claimant’s husband, exerting an inordinate amount of control over the claimant’s professional and personal life. The claimant had the practice of staying in Florida during the winter months and working out of her Florida home. The claimant did not intend to resign but informed the employer she intended to work from Florida as was her practice. The employer did not notify the claimant that she would compromise her employment by remaining in Florida.

It is the duty and responsibility of a party, not the court, to search for and uncover legal authority in support of the party’s argument.

Digest Author: Board of Review (original digest here)
Digest Updated: 

07. Eligibility - Able & Available

Taylor v United States Postal Service – 7.27

Taylor v United States Postal Service
Digest no. 7.27

Section 28(1)(c)

Cite as: Taylor v US Postal Service, 163 Mich App 77 (1987).

Appeal pending: No
Claimant: Geneva Taylor
Employer: United States Postal Service
Docket no.: UCF84 13552 98942W
Date of decision:

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COURT OF APPEALS HOLDING: A claimant must establish she is physically capable of performing work of a type for which she has received wages in the past. Claimant’s unsubstantiated assertion she could perform work permitted by medical restrictions imposed by her physician is insufficient to establish that she is able to work.

FACTS: Claimant worked as a postal carrier until medical restrictions due to pregnancy made her unable to meet the physical demands of that employment. Claimant worked previously as a salesclerk and asserted that she could perform sales work. However, she was restricted from lifting, pushing or pulling anything over 20-25 pounds, sitting more than 2 hours, standing more than 2 hours, excessive bending, stooping or stretching and could perform inside work only. Claimant acknowledged that salespeople usually stand on their feet all day, but opined she could sit or stand.

DECISION: Claimant is not eligible for benefits because she is not able to perform suitable full time work.

RATIONALE: “In this case, it was factually determined that plaintiff was unable to do the work for which she had previously received wages, including both postal-related employment or any type of sales related employment, because of the restrictions imposed by her physician.”

SECONDARY ISSUE: Claimant asserted on appeal that the Referee did not satisfy his duty to assist an unrepresented party. Citing Ackerberg v Grant Community Hospital, 138 Mich App 295 (1984) the Court of Appeals stated: “the failure to raise an issue to the Board of Review precludes raising the issue on review before this court. …as it has been waived.”

Digest Author: Board of Review (original digest here)
Digest Updated:6/91