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Cite as: Shatzman & Assoc v Rose, Unpublished Opinion of the Michigan Court of Appeals, Issued November 3, 2000 (Docket No. 96-533137).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

12. Misconduct

Broyles v Aeroquip Corp – 12.30

Broyles v Aeroquip Corp
Digest no. 12.30

Section 29(1)(b)

Cite as: Broyles v Aeroquip Corp, 176 Mich App 175 (1989).

Appeal pending: No
Claimant: Thomas Broyles
Employer: Aeroquip Corporation
Docket no.: B86 05457 104075
Date of decision: March 21, 1989

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COURT OF APPEALS HOLDING: Use of vulgar or abusive language can constitute employee misconduct depending on the totality of the circumstances.

FACTS: Claimant had a verbal confrontation with a supervisor, calling him an “asshole” and a “prick.” Claimant asserted the language he used was common and considered “shop talk.”

DECISION: Claimant was disqualified under the misconduct discharge provisions of Section 29(1)(b).

RATIONALE: “In looking at the use of vulgar or abusive language, we conclude that the use of such language can constitute employee misconduct. … [W]e believe an employer has the right to expect his employees to act with a certain amount of civility towards management personnel and, for that matter, fellow employees. Of course, every use of a vulgar epithet does not necessarily constitute misconduct. Rather, the totality of the circumstances of the case must be considered …” Where words are directed at a supervisor, where the tone and content suggest an abusive intent, where the comments are made in the presence of others, where such conduct is not condoned in the work place, the use of such language violates standards of behavior that an employer can reasonably expect from employees.

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