12. Misconduct

Shatzman & Assoc. v. Rose, UIA – 12.156

Shatzman & Assoc. v. Rose, UIA
Digest No. 12.156

Section 421.29(b)

Cite as: Shatzman & Assoc v Rose, Unpublished Opinion of the Michigan Court of Appeals, Issued November 3, 2000 (Docket No. 96-533137).

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Appeal Pending: No
Claimant: Beth Rose
Employer: Shatzman & Associates
Tribunal: Michigan Court of Appeals
Date of Decision: November 3, 2000

HOLDING: The use of vulgar language by an employee, if condoned by an employer, does not constitute misconduct under MCL 421.29(b).

FACTS: Claimant, Beth Rose, worked as a legal secretary for employer, Shatzman & Associates. Claimant was terminated for insubordination, poor attendance, and creating a hostile work environment through her use of profanities. The Michigan Unemployment Insurance Agency (the “Agency”) determined Rose was not discharged for misconduct under MCL 421.29(b) and thus, was entitled to benefits. Employer requested a redetermination, and the Agency again found Rose was not discharged for misconduct under MCL 421.29(b).

Employer then appealed to a referee. The referee held that employer did not meet its burden of proof of proving misconduct and that the employer condoned the use of claimant’s profane language. Employer appealed the referee’s decision, arguing that (a) the employer did not condone claimant’s use of profane language, (b) the referee’s ruling was contrary to law and unsupported by competent, material, and substantial evidence, and (c) employer produced sufficient evidence of misconduct when the isolated incidents are viewed collectively.

DECISION: Claimant did not commit misconduct under MCL 421.29(b) because her employer condoned her profane language through the frequent usage of similar language by said employer and the length of claimant’s employment. Even when the alleged incidents of misconduct are viewed collectively, employer failed to reach his burden of providing competent, material, and substantial evidence of misconduct.

RATIONALE: The Michigan Court of Appeals reverses a referee’s decision if the decision is contrary to law because said decision is not supported by competent, material, and substantial evidence on the whole record. Korzowski v Pollack Industries, 213 Mich App 223, 228 (1995). The Michigan Supreme Court defined misconduct as “evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee.” Carter v Employment Security Comm, 364 Mich 538 (1961). Excessive absenteeism and tardiness for reasons not beyond an employee’s control constitute misconduct. Hagenbuch v Plainwell Paper Co, Inc, 153 Mich App 834, 837 (1986), citing Washington v Amway Grand Plaza, 135 Mich App 652, 658-659 (1984). Similarly, the use of vulgar language can constitute misconduct. Broyles v Aeroquip Corp, 176 Mich App 175 (1989). However, before ruling vulgar language as misconduct, the court must examine the totality of the circumstances and weigh whether the language was “directed at a fellow employee, a supervisor, or a customer, whether the tone and context suggests an abusive intent or friendly badgering, whether the comments were made in a private conversation or in the presence of others, and whether such conduct has been condoned in the past.” Id at 179.

The length of claimant’s employment is evidence that claimant’s inappropriate behavior was condoned. A fellow employee testified that claimant and her employer, Shatzman, frequently used profane language in the common areas of the work place, possibly on a daily basis. Because claimant was employed for a lengthy tenure despite using vulgar language almost daily and that profanity was used frequently by the employer, the Court held claimant’s profane language did not constitute misconduct because the inappropriate language was condoned.

In the alternative, employer argued the use of profane language in conjunction with claimant’s poor attendance and subordination constituted misconduct. The evidentiary record was unclear on the frequency of claimant’s absenteeism. Furthermore, Shatzman and other employees conceded that claimant was a good employee, a cooperative person, and an efficient work, rebutting the insubordination claim. For these reasons, the Court held that the employer failed to carry his burden to establish misconduct by competent, material, and substantial evidence. Therefore, claimant is not disqualified for misconduct under MCL 421.29(b) and is entitled to benefits.

Digest Author: Sean Higgins, Michigan Law, Class of 2017
Digest Updated: 3/27/2016

10. Voluntary Leaving

Frankenstein v Independent Roofing & Siding – 10.65

Frankenstein v Independent Roofing & Siding
Digest no. 10.65

Section 29(1)(a)

Cite as: Frankenstein v Independent Roofing & Siding, unpublished opinion of the Delta Circuit Court, issued June 16, 1989 (Docket No. 88-8956-AE).

Appeal pending: No.
Claimant: Terry J. Frankenstein
Employer: Independent Roofing & Siding
Docket no.: B87-12977-106695W
Date of decision: June 16, 1989

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CIRCUIT COURT HOLDING: Foul, vulgar, sexually oriented outbursts, not directed at Claimant, but tolerated by her for five years, do not constitute good cause attributable to the employer.

FACTS: Claimant worked for the employer from July 1982, until August, 1987. She resigned at that time because of what she considered the employer’s “extremely foul language.” The language itself did not substantively change during the period of Claimant’s employment. However, Claimant perceived it was worse near the end because of what she felt was an increased frequency. During her employment Claimant had only complained about the language once.

DECISION: Claimant is disqualified for voluntary leaving.

RATIONALE: Upon a review of the entire record, the circuit court found that Claimant had indeed listened to foul, vulgar and sexually oriented outbursts from her employer over a period of five years. But, this language was not directed at her nor did she feel fear or sexual hostility and had only complained once during the course of her five years of employment. In light of these facts, the court found the record supported the findings of the Board of Review.

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

10. Voluntary Leaving

Smith v Andrews on the Corner – 10.47

Smith v Andrews on the Corner
Digest no. 10.47

Section 29(1)(a)

Cite as: Smith v Andrews on the Corner, unpublished opinion of the Court of Appeals, issued July 22, 1987 (Docket No. 94071).

Appeal pending: No
Claimant: Ollie Smith
Employer: Andrews on the Corner
Docket no.: B85 02586 99533W
Date of decision: July 22, 1987

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COURT OF APPEALS HOLDING: Claimant quit work without good cause attributable to the employer where she quit without notice because of a co-worker’s profanity and anger and refused to continue work despite the employer’s offer to change the co-worker’s schedule.

FACTS: Claimant was employed as a part time cook for two years. Throughout that period she experienced frustration with the full time co-worker who was in charge of the kitchen. Claimant was upset by the co-worker’s frequent profanity and angry moods. The employer attempted to intervene on occasion, without success. Only the claimant had difficulty with the co-worker. Eventually the claimant quit without notice. She refused to return to work despite an offer from the employer to change the co-worker’s schedule.

DECISION: Claimant is disqualified for voluntary leaving.

RATIONALE: “In this case, we have no difficulty in concluding that claimant’s disqualification is amply supported by competent, material and substantial evidence on the record. Despite the Biblical injunction to ‘swear not at all,’ we are not unmindful that, as observed by Mark Twain, ‘In certain trying circumstances, urgent circumstances, desperate circumstances, profanity furnishes a relief denied even to prayer.’ … In our estimation, claimant’s precipitous and unannounced termination from employment was not a reasonable reaction to her workplace discomfiture. Clearly, the employer was amenable to implementing scheduling changes in order to accommodate claimant’s wounded sensibilities. … [W]e believe reasonable efforts were made to eliminate the periodic conflicts between the employees. … The employer was yielding, while claimant was inflexible; we feel that under the circumstances in this case, this inflexibility was unreasonable.”

Digest Author: Board of Review (view original digest here)
Digest Updated: 11/90