Categories
14. Disqualifications - Other

Andrews v. COD Food Services, Inc. – 14.15

Andrews v. COD Food Services, Inc.
Digest No. 14.15

Section 421.29

Cite as: Andrews v COD Food Services, Inc, unpublished opinion of the Wayne County Circuit Court, issued August 29, 2008 (Docket No. 08-103679AE)

Appeal pending: No
Claimant: James R. Andrews
Employer: COD Food Services, Inc.
Date of decision: August 29, 2008

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HOLDING: While there must be a causal connection between the alleged theft and discharge of employment, the MESA 421.29(1)(i) does not require that the discharge occur within a specific period of time.

FACTS: On June 3, 2007, Employer learned $150 was missing from the counting room. When confronted about it, Claimant admitted to stealing the money. Claimant returned his set of keys to the counting room, and no longer had access to it after that date. However, Claimant was not fired for the theft until nearly two months later on August 2, 2007. Employer testified that he did not discharge Claimant immediately because he was “extremely short handed.” Claimant indicated that he was never given a reason for his discharge. Claimant filed for and received benefits. Employer protested. At hearing, ALJ ruled in favor of Claimant, but the Board of Review reversed. Claimant appealed.

DECISION: Evidence supporting the Board of Review’s finding that Claimant was discharged for theft was sufficiently substantial; the Board’s decision is upheld.

RATIONALE: Employer did not “condone” Claimant’s behavior by keeping him on for two more months after the theft. Furthermore, just because Claimant offered to return the key to the counting room does not mean Claimant was not reprimanded for the theft. Claimant was stripped of his counting room privileges, and removed from his position as closing supervisor, which shows he was punished for his actions. Employer stated a legitimate economic interest in keeping Claimant on until August. The statute does not mandate a specific timeframe for discharge because of theft. Though the causal connection between the two events weakens with time, there was no evidence here “that Claimant was discharged for a reason other than theft.” Pursuant to 421.29(1)(i) (disqualification for theft), Claimant may be disqualified for benefits.

Digest author: Jacob Harris, Michigan Law, Class of 2017
Digest updated: 3/30/2016

Categories
12. Misconduct

Mowatt v. Village of Birch Run – 12.146

Mowatt v. Village of Birch Run
Digest no. 12.146

Section 421.29(1)(b)

Cite as: Mowatt v Village of Birch Run, Saginaw County Circuit Court, No. 08-000001-AE-2 (August 20, 2008).

Appeal pending: No
Claimant: Robert Mowatt, Jr.
Employer: Village of Birch Run
Docket no.: 190282H
Date of decision: August 20, 2008

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HOLDING: Claimant’s failure to sign an Improvement Plan aimed at advancing his job performance was conduct related to his work and constituted a deliberate and willful act against his employer’s interests. Thus, claimant’s failure to sign the plan amounted to disqualifying misconduct to bar claimant from unemployment benefits.

FACTS: On January 23, 2006, Robert Mowatt was fired from his position as Chief of Police by the Village of Birch Run. Mowatt failed to sign and acknowledge a performance improvement plan crafted by his employer to improve his job performance. Mowatt was first asked to sign the plan at a December 5, 2005 Village Council meeting. The Board of Review determined that failure to sign the improvement plan rose to the level of disqualifying misconduct.

DECISION: The circuit court affirmed the Board of Review’s decision, which found that claimant’s failure to sign the plan rose to the level of disqualifying misconduct under section 29(1)(b) of the MES Act.

RATIONALE: Claimant argued that the review of the Board’s record did not show that he refused to sign the plan, but rather that he simply needed clarification and could not sign the document as written. However, evidence showed that claimant had multiple opportunities to discuss the plan and address his concerns with the Village. Moreover, the Village decided that the improvement plan was in their best interest to advance claimant’s job performance. That claimant disagreed with the necessity of the plan is irrelevant to whether he acted deliberately against the interests of his employer. Thus, the court agreed that claimant’s outright refusal to sign the plan showed a willful disregard of his employer’s interests. Because the plan was directly aimed to improve claimant’s performance, his failure to sign the plan was related to his work. Further, a single incident of misconduct may satisfy the statutory meaning of misconduct under section 29(1)(b) of the MES Act. Tuck v. Ashcrafi’s Market Inc., Mich.App. 579, 589 (1986). Therefore, the court found that claimant’s insubordination amounted to disqualifying misconduct and the Board’s decision to deny him benefits was not contrary to law.

Digest Author: Adam Kleven, Michigan Law, Class of 2018
Digest Updated: 1/6/2016

Categories
12. Misconduct

Deboer Nursing Home, Inc. v. Beasley – 12.136

Deboer Nursing Home, Inc. v. Beasley
Digest No. 12.136

Section 421.29(b), Rule 207 of the Rules of Practice Before Referees and MES Board of Review

Cite as: Deboer Nursing Home, Inc v. Beasley, Unpublished Opinion of the Muskegon County Circuit Court of Michigan, Issued April 2, 2008 (Docket No. 186922WC).

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Appeal pending: Yes
Claimant: Amenia H. Beasley
Employer: Deboer Nursing Home, Inc.
Tribunal: Muskegon County Circuit Court
Date of Decision: April 2, 2008

HOLDING: An Administrative Law Judge’s (ALJ) failure to “advise… and give every assistance” to an unrepresented claimant violates Rule 207 of the Rules of Practice Before Referees and MES Board of Review and is grounds for a remand for another hearing before a different ALJ.

FACTS: Claimant was employed by Deboer Nursing Home, Inc. until she was discharged for misconduct. Her alleged misconduct included (a) failure to turn on a patient’s personal alarm, (b) failure or refusal to respond to a resident choking with urgency, (c) leaving a resident in bed all day, (d) failure to monitor an Alzheimer’s resident as required, (e) leaving a resident in loose stool, (f) leaving a resident on a commode, and (g) failure to turn on a resident’s alarm, resulting in the resident falling. The ALJ found that the unrepresented claimant did not deny these events occurred and that her explanations for the incidents were not persuasive. Thus, the ALJ disqualified the claimant from benefits pursuant to MCL 421.29(b) because of misconduct.

The State of Michigan Employment Security Board of Review (“Board”) reversed the ALJ’s decision on August 28, 2007 on two grounds. First, the Board argued the claimant was not given the procedural protections by the ALJ guaranteed by Rule 207. Second, the incidents relied upon by the employer did not constitute misconduct under MCL 421.29(b).

DECISION: The ALJ failed to provide the procedural protections guaranteed by Rule 207 to the claimant in her original hearing. The remedy for violating Rule 207 is remand for new hearing with a different ALJ.

RATIONALE: The Court denied the Board’s second ground for reversal, specifically that the incidents did not qualify as misconduct. The Board’s explanation for that view was a disagreement with the ALJ’s assessment that the claimant’s explanations for the incidents in the original hearing were unpersuasive. The court denied the Board’s explanation because of an absence of legal precedent permitting the Board of Review, who did not view the witness or hear testimony, to assess the credibility of the witness.

However, the Court agreed with the Board that the claimant was not afforded the procedural protection guaranteed by Rule 207. Rule 207 reads as follows: “The referee shall secure such competent, relevant, and material evidence that he or she deems necessary to arrive at a fair decision… [and] shall advise the [unrepresented] party of his or her rights, aid him or her in examining and cross-examining witnesses, and give every assistance to the party compatible with an impartial discharge of the Referee’s official duties.” The ALJ specifically failed to protect the unrepresented claimant by (a) not guiding the claimant through the several exhibits submitted by the employer and (b) not asking the claimant any questions in response to the allegations.

The Court sought to prevent the consequences of the Board’s reversal from falling solely upon the employer. To achieve this, the Court remanded the issue for a new hearing with a different ALJ. To prevent violations of Rule 207 in the future, the Court provided two options to employers facing ALJs who were not complying with Rule 207. First, the employer could carry out the required procedures that the ALJ is tasked with under 207, thus assisting the claimant in presenting his or her case. Alternatively, the employer could stay silent, knowing the possible remedy ordered by the Board would be a decision that the employer pay benefits to the claimant.

Digest Author: Sean Higgins, Michigan Law, Class of 2017
Digest Updated: 3/1/2016

Categories
14. Disqualifications - Other

Ciaravino v. Ford Motor Co. – 14.16

Ciaravino v. Ford Motor Co.
Digest No. 14.16

Section 421.29(1)(m)

Cite as: Ciaravino v Ford Motor Co, unpublished opinion of the Macomb County Circuit Court, issued December 19, 2007 (Docket No. 2007-2858-AE).

Appeal pending: No
Claimant: Robert Ciaravino
Employer: Ford Motor Company
Docket no.: 189730H
Date of decision: December 19, 2007

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Holding: The Board’s decision that Ciaravino should be disqualified from receiving unemployment benefits was not contrary to law and was supported by substantial evidence. Ford’s evidence was sufficient to show that Ciaravino’s positive drug test for marijuana, a controlled substance, disqualified him from receiving benefits.

Facts: Robert Ciaravino worked as an employee for Ford Motor Company from October 1994 until October 7, 2005. After he tested positive for marijuana during a random urinalysis, he was discharged. Ciaravino’s specimen was taken by Beverley Tukis, a Ford full-time nurse, and the positive drug results were received by Sally Gruca, another Ford full-time nurse.

Decision: The circuit court affirmed the Board of Review’s decision, which found the claimant to be disqualified from receiving benefits for misconduct under Section 29(1)(m) of the MES Act.

Rationale: Though Ciaravino denied using marijuana and said he had been taking Vicodin for a knee injury, there was no evidence that Vicodin would produce a false positive for marijuana or that the test was erroneous. Ciaravino had also signed a Reinstatement Waiver on April 4, 2005 in which he agreed to submit to random drug and alcohol testing as a condition of employment at Ford. The discharge of an individual due to ingestion of marijuana, which is considered a “controlled substance” pursuant to MCL 333.7104, 7201 and 7212, disqualifies the individual from receiving benefits. Ford also provided sufficient evidence to establish an adequate chain of custody from which a positive specimen result could be inferred.

Digest Author: Alisa Hand, Michigan Law, Class of 2017
Digest Updated: 3/1/2016

Categories
13. Refusal of Work

Eyre v. Saginaw Correctional Facility – 13.29

Eyre v. Saginaw Correctional Facility
Digest No. 13.29

Section 421.29(1)(e)

Cite as: Eyre v Saginaw Correctional Facility, 274 Mich App 382 (2007).

Appeal pending: No
Court: Michigan Court of Appeals
Date of decision: February 27, 2007

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HOLDING: “The employer initially bears the burden of establishing that a suitable offer of work had been made, but, once the employer has met this burden, it shifts to the claimant to establish that there was good cause for refusal.”

FACTS: Claimant was laid off by her employer, Saginaw Correctional Facility. Later, Standish Maximum Correctional Facility offered her a similar position. She did not accept this offer, however, due to health concerns and the longer commuting distance. The Department of Labor initially approved her benefits, concluding that her refusal of the offer had good cause. After the employer’s objection, the Department of Labor reversed its conclusion, finding that she had turned down suitable employment without good cause. The hearing referee, the review board, and the circuit court each upheld this determination. Claimant then appealed to the Fourth District Court of Appeals  of Michigan.

DECISION: The Circuit Court decision is reversed and the case is remanded to the hearing referee for further proceedings consistent with this opinion.

RATIONALE: The provision that establishes the disqualification for refusing a suitable offer of employment without good cause, MCL 421.29(1)(e), does not establish which party should bear the burden of proof in a dispute under that rule. The court also hadn’t established binding precedent on the matter. In prior cases, however, the court dealt with the issue of disqualification more generally. Lasher v. Mueller Brass Co. held that the burden of proving disqualification fell on the employer, while Tomei v. General Motors Corp. held that this burden doesn’t always fall on the employer. The guiding principle in these cases on who should have the burden of proof is “which party is better able to provide the information needed to answer the relevant inquiries”.

The court drew from its reasoning in Tomei, which involved a plant closure and an offer to continue working at a different facility. Tomei held that the initial burden should fall on the employer to demonstrate that it had communicated a viable offer of reasonable employment, but that if an employer met this burden, it switched to the claimant to show that the decision to leave work was not voluntary. Likewise, in the present case, the court found that the initial burden should rest on the employer to show that a suitable offer of employment had been made. As above, if the employer carries this burden, the claimant must then show that her refusal was supported by good cause. The court reasoned that the employer is in better position to determine whether the employee can discharge the responsibilities of the new position, whereas the claimant will inevitably have a better understanding of personal circumstances that would provide a good cause reason to turn down an offer.

Digest author: James Fahringer, Michigan Law, Class of 2018
Digest updated: 3/27/2016

Categories
12. Misconduct

Laque v. Tru Tech Systems, Inc., UIA – 12.144

Laque v. Tru Tech Systems, Inc., UIA
Digest No. 12.144

Section 421.29(1)(a)

Cite as: Laque v Tru Tech Systems, Inc., Macomb Circuit Court, No. 2005-4944-AE

Appeal pending: No
Claimant: Michael J. Laque
Employer: Tru Tech Systems, Inc.
Docket no.: 2005-4944-AE
Date of decision: May 25, 2006

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HOLDING: When a claimant voluntarily terminates his or her employment, a withholding of wages by the employer pursuant to an IRS order constitutes good cause attributable to the employer when the employer continues such withholding long after the IRS order is resolved.

FACTS: Claimant held a traveling service job for Tru Tech, beginning January 2003 and ending in December 2004 when he quit due to withheld paychecks. In November 2004, Employer began to withhold wages earned by Claimant pursuant to a levy issued by the IRS. Claimant explained that the IRS had issued the levy by mistake and produced a release of the levy eight days after the IRS’s request for withholding. Employer continued to withhold paychecks due on December 2, 9, and 16, and on December 20, 2004, Claimant called Employer to end his employment due to the unnecessarily withheld pay. On December 18 (or earlier, based on the testimony of Employer), Claimant met with Employer to discuss changing his status to independent contractor. Employer failed to produce written record of any such discussion and claimant “vehemently disputed the employer’s testimony” that he had ever considered himself an independent contractor. When Claimant filed for unemployment benefits, his claim was denied by the Unemployment Insurance Agency. On appeal to an Administrative Law Judge, this decision was reversed and his claim was granted. On Employer’s appeal to the Michigan Employment Security Board of Review, the ALJ’s decision was at first reversed, then affirmed on reconsideration. Employer then appealed further to the District Court.

DECISION: The Board of Review decision is affirmed and Claimant is entitled to unemployment insurance benefits.

RATIONALE: When a justification for withholding pay, such as an IRS order, becomes ineffective (e.g., by an official rescission of the IRS order), employers immediately regain their duty to pay their employees in a timely fashion. For the relevant legal question of whether a “reasonable, average, and otherwise qualified worker” would give up her or his employment, such circumstances are essentially the same, from the worker’s perspective, as an employer withholding pay for no reason.

Digest Author: James Fahringer, Michigan Law, Class of 2017
Digest Updated: 1/6/2016

Categories
11. Leaving to Accept

Dean v. Thrifty Services, Inc., UIA – 11.06

Dean v. Thrifty Services, Inc., UIA
Digest No. 11.06

Section 421.29(5)

Cite as: Dean v Thrifty Services, Inc, unpublished opinion of the Montmorency County Circuit Court, issued April 15, 2006 (Docket No. 05-1219 AE).

Appeal pending: No
Claimant:
John Dean
Employer: Thrifty Services, Inc.
Docket no.: 05-1219 AE
Date of decision: April 15, 2006

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HOLDING: A claimant’s employee status does not cease when the client failed to renew the contract.

FACTS: Claimant initially worker for Automobile First and provided personnel and employee leasing services to Thrifty Services. Claimant worked for Thrifty Services from May 30, 2001 until June 20, 2004 as a mechanic/manager. On June 30, 2004 Automobile First sold facility to SAD Inc who did not continue the contract with Thrifty Services. Claimant became an employee of SAD Inc.

DECISION: Claimant is not disqualified under Section 29(1)(a).

RATIONALE: The Court affirmed claimant not disqualified under Section 29(1)(a), even though the employee leasing company transferred him to the client company’s payroll, shortly before the client ceased operations. After reviewing the record, the Board finds that there has not been an abuse of discretion. Therefore, the Referee’s order, a copy of which is attached and incorporated by this reference, should be affirmed.

Digest Author: Katrien Wilmots, Michigan Law, Class of 2017
Digest Updated: 3/1/2016

Categories
16. Procedures/Appeals

Barbee v. J.C. Penney – 16.73

Barbee v. J.C. Penney
Digest No. 16.73

Section 421.29(b), 421.33, 421.34, 421.38

Cite as: Barbee v JC Penney Corp, Inc, Unpublished Opinion of the Circuit Court for the County of Oakland, Issued January 26, 2006 (Docket No. 177083W).

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Appeal Pending: No
Claimant: Della M. Barbee
Employer: J.C. Penney Corporation, Inc.
Tribunal: Circuit Court for the County of Oakland
Date of Decision: January 26, 2006

HOLDING: The State of Michigan Employment Security Board of Review’s (“Board”) lacks jurisdiction to review untimely appeals.

FACTS: Claimant was employed by J.C. Penney as a Customer Service Associate until she was discharged for misconduct. Her alleged misconduct included obtaining fraudulent refunds, discount abuse, and unauthorized price adjustments. The Administrative Law Judge (“ALJ”) disqualified the claimant from benefits due to her misconduct under MCL 421.29(b).

Claimant appealed the ALJ’s decision to the State of Michigan Employment Security Board of Review (“Board”). The deadline to appeal was September 24, 2004, but claimant did not file her appeal until October 6, 2004. Pursuant to MCL 421.33, the Board dismissed the late appeal due to lack of jurisdiction.

Claimant did not seek rehearing or to reopen the case with the Board for good cause but instead, appealed to the Circuit Court (“Court”) for de novo review of the Board’s (1) arbitrary Appeal deadline and (2) the underlying determination in finding the Plaintiff guilty of misconduct.

DECISION: The Board’s deadlines cannot be challenged as arbitrary because they were set by the legislature and codified as MCL 421.33(2) and MCL 421.34. Additionally, the Circuit Court cannot de novo review claimant’s underlying determination because she appealed the Board’s decision. Finally, the Board’s order dismissing claimant’s appeal for lack of jurisdiction was proper.

RATIONALE: The Circuit Court ruled that the appeal deadlines were not arbitrary because they were established by the legislature through MCL 421.33(2) and MCL 421.34.

The Court also denied claimant’s appeal for de novo review of her underlying determination as guilty of misconduct. The Court noted that a claimant can appeal a referee’s (ALJ’s) decision to the Circuit Court directly under MCL 421.38(2). However, because the claimant appealed the Board’s decision and said decision did not include a review of claimant’s determination as guilty of misconduct, the Circuit Court lacks authority to de novo review the claimant’s guilty determination.

The Circuit Court reviewed the whole record to determine if claimant’s appeal was untimely. Pursuant to MCL 421.38(1), the standard for finding an appeal untimely is support by competent, material, and substantial evidence. After finding that the appeal was untimely under the standard, the Court affirmed the Board’s decision dismissing claimant’s untimely appeal for lack of jurisdiction under MCL 421.33.

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

Categories
12. Misconduct 16. Procedures/Appeals

Hill v Department of Community Health – 16.76

Hill v Department of Community Health
Digest No. 16.76

Section 421.29; Section 421.32

Cite as: Hill v Dep’t of Community Health, unpublished opinion of the Wayne County Circuit Court, issued September 27, 2005 (Docket No. 05-514911-AE).

Appeal pending: No
Claimant: Darlene Hill
Employer: Department of Community Health; State of Michigan, Department of Labor & Economic Growth
Date of decision: September 27, 2005

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HOLDING: When a claimant incorrectly thinks she is terminated and there is no evidence that 1) she acted with deliberate intent to evade her job responsibilities, or 2) her employer communicated its expectations to her, she has not committed misconduct by failing to appear at work, even if it was ignorant of her to believe that she was terminated. Section 421.32 provides that if within ten days the employer does not respond to the Agency’s request for information, the Agency shall decide the matter on the information provided. Furthermore, if the employer cannot show that it reasonably could not meet the ten day deadline, all benefits paid before the employer’s reply was received are deemed proper.

FACTS: The patient Claimant was tending indicated that he did not want her in his home because Claimant could not physically perform the necessary tasks. Claimant thought that the patient was her employer, and did not realize that the Department of Community Health was actually her employer. Claimant did not seek a new assignment and thought her job was terminated.  The employer did not respond to the Unemployment Insurance Agency’s request for information, did not send a representative to the hearing, and did not file a brief on appeal. The Board of Review denied benefits to Claimant on the basis of a voluntary quit.

DECISION: The claimant’s disqualification from benefits is reversed.

RATIONALE: Claimant was not told how to seek another assignment. She did not appear to have acted with deliberate intent to evade her job responsibilities, nor was she warned of any deficiencies in her performance. “Unless an employer’s expectations can be expected to ‘flow naturally’ from the employee relationship itself . . . they must be communicated to the employee before they can serve as a proper basis for a charge of misconduct.” McAlpin v Wood River Med. Ctr., 921 P2d 178, 183 (Idaho 1966) (quoting Davis v Howard O. Miller Co., 695 P2d 1231, 1233 (Idaho 1984)). There was not evidence of communication here. A decision “cannot rest upon mere conjecture or speculation.” Clements v Clements, 2 Mich App 370, 374 (1966). Therefore, because the employer has the burden to show misconduct, the lack of evidence of misconduct here compelled a finding for the employee. In addition, the testimony of even a single witness (in this instance, the claimant) can meet the substantial evidence standard.

Section 421.32 provides that if within ten days the employer does not respond to the Agency’s request for information, the Agency shall decide the matter on the information provided. Furthermore, if the employer cannot show that it reasonably could not meet the ten day deadline, all benefits paid before the employer’s reply was received are deemed proper.

Digest author: Winne Chen, Michigan Law, Class of 2017
Digest updated: October 30, 2017

Categories
13. Refusal of Work

UIA v. JDM & Associates v. Yordy – 13.28

UIA v. JDM & Associates v Yordy
Digest No. 13.28

Section 421.29(1)(e)

Cite as: JDM & Assoc v Yordy, Muskegon County Circuit Court, issued August 30, 2005 (Docket No. 05-43773-AE).

Appeal pending: No
Claimant: Sara B. Yordy
Employer: JDM & Associates
Docket no.: 176914W
Date of decision: August 30, 2005

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HOLDING: The Board’s decision to grant Yordy unemployment benefits was contrary to law. Yordy was not eligible for unemployment benefits because she failed without good cause to accept alternative suitable work offered to her by JDM.

FACTS: JDM & Associates had placed Yordy as an employee doing industrial work  at Hillite International from August 2002 to June 2003. When that job ended, JDM offered her other full-time employment doing industrial work at Whitehall Products on July 15, 2003. Yordy refused this offer because she wanted to work the second shift and the job was for the first shift. JDM gave her several other job offers which she also declined because of her desire to work second shift.

DECISION: The circuit court reversed the Board’s decision, which had found the claimant was not disqualified from receiving unemployment benefits under Section 29(1)(e).

RATIONALE: The purpose of the Act is to provide benefits to workers who are involuntarily unemployed. If the Board’s decision that Yordy was eligible for benefits were to stand, it would allow employees who were offered suitable work to turn it down and still receive benefits. Alternatively, the Board would have to preemptively decide what constitutes suitable work each time an employer offered a substitute job, which the legislature could not have intended.

Digest Author: Alisa Hand, Michigan Law, Class of 2017
Digest Updated: 3/1/2016