18. Restitution, Waiver, Fraud

Olivarez v Unemployment Insurance Agency – 18.16

Olivarez v Unemployment Insurance Agency
Digest No. 18.16

Section 62 & Section 54

Cite as: Olivarez v Unemployment Insurance Agency, unpublished opinion of the Saginaw County Circuit Court, issued November 17, 2008 (Docket No. 08-000366-AE-3).

Appeal pending: No
Claimant: William Olivarez
Employer: Michigan Unemployment Insurance Agency
Date of decision: November 17, 2008

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HOLDING: The court reversed the fraud decision because there was not competent, material, and substantial evidence to support it.

FACTS: Claimant  worked for the Agency and applied for benefits while on long term disability. The Agency ordered restitution and Claimant won at the ALJ hearing but lost at MCAC.

MCAC held that there was fraud because Claimant collected while on long term disability; he knew there was an issue about whether he could do so; an employee of the disability insurance company told him this was alright; and Claimant should have known to go to Agency with questions about eligibility.

DECISION: Claimant is ineligible for benefits. The Agency did not provide sufficient evidence for fraud.

RATIONALE: On eligibility, there was a doctor’s note that said Claimant could not do any work at all. This was competent, material, and substantial evidence and the court affirmed this decision.

Regarding fraud, there was not sufficient evidence to “support a finding of wrongful, quasi-criminal behavior.” The court went on to say: “Fraud, while easily claimed, is not lightly proven.” Citing Mallery v Van Hoeven, 332 Mich 561, 568; (1952). Fraud must be established by evidence. This was a “skimpy record” and does not “support a finding of serious wrongdoing, even under the relatively light standard of substantial evidence.”

Digest author: Benjamin Tigay, Michigan Law, Class of 2018
Digest updated: December 1, 2017

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Cite as: Shatzman & Assoc v Rose, Unpublished Opinion of the Michigan Court of Appeals, Issued November 3, 2000 (Docket No. 96-533137).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

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:

07. Eligibility - Able & Available

Kloha v. Notebaert Construction & MESC – 18.18

Kloha v. Notebaert Constr. & Michigan Employment Security Commission

Digest no. 18.18

Section 28(1)(c), 54(b)

Cite as: Kloha v. Notebaert Construction & MESC, unpublished opinion of the Bay County Circuit Court, issued May 2, 1997 (Docket No. 96-4031-AE-B).

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Tribunal: Bay County Circuit Court

Appeal Pending: No

Claimant: Alfred H. Kloha

Employer: Notebaert Construction

Docket no. 96-4031-AE-B

Date of decision: May 2, 1997

Holding: In a fraud case the Agency has the burden of proof to establish that claimant knowingly made a false statement or, with intent to defraud, failed to disclose a material fact in order to obtain unemployment benefits. Under the facts of this case the Agency met their burden to establish that claimant committed fraud when he certified that he was “able and available” for work and collected benefits for weeks he was in the hospital recovering from two different surgeries.

Facts: .

Decision: .

Rationale: .

Digest author: Steve Gray

Digest updated: 5/15

15. Labor Disputes

Alexander v. A.P. Parts Manufacturing Co. – 15.36

Alexander v. A.P. Parts Manufacturing Co.
Digest No. 15.36

Section 421.29(8)

Cite as: Alexander v AP Parts Manufacturing Co., unpublished per curiam opinion of the Court of Appeals, issued February  23, 1996 (Docket No. 168700).

Appeal pending: No
Claimant: David J. Alexander, Louise Anderson, Charles Arndt, Bruce Berthiaume, Wyatt Boyer, Robert Beuchel, Paul Chomas, George Clark, Richard Courtney, Cheryl Dehate, Dean Fenwick, George Fittig, and Jacob Gotfryd
Employer: A.P. Parts Manufacturing Company
Date of decision: February 23, 1996

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HOLDING: Court applied the deferential standard to the decision of the MESC Board of Review. Reversed the Circuit Court opinion and reinstated the MESC Board of Review’s decision. There exists substantial evidence on the whole record to support the board of review’s conclusion that the labor dispute was connected with the lockout. Ruling of the board of review is supported by competent, material, and substantial evidence on the whole record.

FACTS: Employer manufactures parts for the automobile and heavy truck industry and employed approximately 206 union employees and 75 nonunion employees. In October 1989, employer hired 10-12 additional employees and began to operate two shifts .In December 1989 employer issued a “WARN” letter advising its employees that some employees may be laid off if a new collective bargaining agreement was reached on or about February 8, 1990 (the date the then existing one was set to expire). On February 5, 1990, when employer determined it had sufficient inventory in the warehouse, it laid off the 10-12 nonunion employees it had hired in Oct 1989. On February 8, 1990, immediately after union employees rejected the collective bargaining agreement that the employer had proposed, the employer announced that its operation would be shut down for the next two working days due to an “inventory adjustment”. On February 13, 1990 the employer announced a “lockout” that affected all union employees. Claimants immediately began to picket. Union employees rejected a third proposal and employer ended the lockout by notifying its employees to return to work. However, 75 employees were laid off one additional week due to “lack of work”.


  • Determined that claimants were disqualified from receiving unemployment compensation because their temporary unemployment was related to a labor dispute (and the state must remain neutral in labor disputes).
  • In an evidentiary hearing, an MESC referee rejected the employer’s claim that the lockout was related to a labor dispute and hence found that claimants were entitled to unemployment benefits.

MESC Board of Review:

  • Reversed the decision of the referee two-to-one.
  • Concluded that:
    • (1) employers had “warehoused” its product in order to improve its bargaining position in the event of a labor dispute, and
    • (2) claimants were disqualified from receiving benefits under MCL 421.29(8) because the labor dispute that developed was a substantial contributing factor to the lockout.

Circuit Court

  • Reversed the ruling of the board of review

DECISION: Circuit court erred in reversing the decision of the MESC Board of Review.

RATIONALE: “Substantial evidence” means more than a mere scintilla but less than a preponderance of the evidence. So long as the MESC Board of Review selected between two reasonable positions, the judiciary must accord deference to administrative expertise and refrain from substituting its own judgment for that of the administrative agency. Court applied the deferential standard to the decision of the MESC Board of Review.

Digest author: Katrien Wilmots, Michigan Law, Class of 2017
Digest updated: 3/30/2016

10. Voluntary Leaving

Kirby v Benton Harbor Screw Co – 10.64

Kirby v Benton Harbor Screw Co
Digest no. 10.64

Section 29(1)(a)

Cite as: Kirby v Benton Harbor Screw Co, unpublished per curiam opinion of the Court of Appeals, issued June 16, 1995 (Docket No. 163513).

Appeal pending: No
Claimant: Michael J. Kirby
Employer: Benton Harbor Screw Co.
Docket no.: B90-10197-116367W
Date of decision: June 16, 1995

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COURT OF APPEALS HOLDING: The Board of Review decision must be affirmed if based on competent, material, substantial evidence in the record and in accordance with the law.

FACTS: The parties disagreed as to the proper characterization of the separation.

On February 15, 1990, his last day of work, the claimant received an unfavorable evaluation. He finished his shift that day and went home. He returned to the plant later that evening. While there, he went to his office, reconciled his petty cash account, left documentation of his expense account, cleared his personal belongings from his desk and left his company keys. He also asked two co-workers to witness these acts and verify he was only taking his personal effects. While departing the claimant mumbled an obscenity and stated, “I’m leaving.” Thereafter, the claimant appeared to work at his regular time the following Monday only to discover he had been replaced.

DECISION: Claimant is disqualified for voluntary leaving.

RATIONALE: Although the circuit court and Court of Appeals may have reached a different conclusion given the facts in the record, the circuit court decision was reversed and the Board of Review decision reinstated because there was competent, material and substantial evidence to support the Referee and Board’s finding that the claimant had voluntarily left his employment.

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