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Cite as: Hill v Dep’t of Community Health, unpublished opinion of the Wayne County Circuit Court, issued September 27, 2005 (Docket No. 05-514911-AE).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