14. Disqualifications - Other

Winfied Machine Service LLC v. UIA – 14.19

Winfied Machine Service LLC v. UIA
Digest No. 14.19

Section 429.21(1)(i)

Cite as: Winfied Machine Services, LLC v Havens, unpublished opinion of the Macomb Circuit Court, issued July 13, 2009 (Docket No. 2009-­0342-­AE).

Appeal pending: No
Claimant: Dennis Havens
Employer: Winfied Machine Services LLC
Date of decision: July 13, 2009

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HOLDING: Because the Michigan Employment Security Act does not define “theft” for the purposes of MCL 429.21(1)(i), a claimant cannot be disqualified from receiving benefits when “theft” is interpreted as requiring felonious intent and the employer fails to establish that the claimant acted with felonious intent.

FACTS: Claimant was fired after his employer discovered that he had sold a hydraulic pump allegedly stolen from the employer. Testimony on behalf of the Claimant suggested that a third party had given Claimant the pump, and that Claimant was unaware of any prior owners.  Neither the ALJ nor the Michigan Employment Security Board of Review could determine true ownership of the pump. Since ownership of the pump was unclear, the Board found that the employer failed to meet its burden of demonstrating Claimant’s felonious intent to deprive the employer of its alleged property.

DECISION: The court declined to reverse the decision of the Michigan Employment Security Board of Review because it was supported by “competent, material and substantial evidence on the whole record, and clearly conformed to the law.”

RATIONALE: Because the Michigan Employment Security Act does not define “theft,” it is not contrary to the law to determine that an element of theft is felonious intent.  Under such an interpretation, a claimant cannot be disqualified from receiving benefits under MCL 429.21(1)(i) when the Employer fails to establish felonious intent.

Digest author: James Mestichelli, Michigan Law, Class of 2017
Digest updated: 3/29/2016

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Cite as: Andrews v COD Food Services, Inc, unpublished opinion of the Wayne County Circuit Court, issued August 29, 2008 (Docket No. 08-103679AE)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

14. Disqualifications - Other

Ginez v University of Michigan Medical Center – 14.11

Ginez v University of Michigan Medical Center
Digest no. 14.11

Section 29(1)(i)

Cite as: Ginez v Univ of Michigan Medical Center, unpublished opinion of the Washtenaw County Circuit Court, issued April 21, 1999 (Docket No. 98-10274-AE).

Appeal pending: No
Claimant: Purificacion O. Ginez
Employer: University of Michigan Medical Center
Docket no.: B98-01381-147739W
Date of decision: April 21, 1999

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CIRCUIT COURT HOLDING: Claimant is not subject to disqualification under Section 29(1)(i) unless the common law elements of theft are established.

FACTS: Claimant worked for the employer from 1979 to November 10, 1997. On November 7, 1997 at the end of her shift she experienced an asthma attack. Claimant went to a “satellite” pharmacy near her ward for medication. The pharmacy belonged to the employer. Though the pharmacy was closed, claimant knew where the medication was kept and prepared an inhaler for her use. Her supervisor approached and asked if she was acting appropriately. Claimant felt she was acting appropriately because she had been allowed to use inhalers from the pharmacy in the past. Her supervisor had no knowledge of that, and checked with a nurse manager. The employer’s policy was that employees in similar situations should seek treatment in an emergency room. Claimant used the inhalant and left the unused portion. As a result, the employer suspended, then ultimately discharged her.

DECISION: Claimant is not disqualified from receiving benefits under Section 29(1)(i).

RATIONALE: Theft is not defined in the M.E.S. Act. Black’s Law Dictionary defines “theft” as a “popular name for `larceny’.” Larceny is prohibited by MCL 750.356 et seq, but is not defined by that statute and the elements must be found in common law. The elements of larceny are laid out in People v Gimotty, 216 Mich App 254, 257-258 (1996), as the “taking and carrying away of the property of another, done with felonious intent and without the owner’s consent.” The court found the claimant took the inhaler with the intent to deprive the employer of some value. The issue was whether the employer consented to the claimant’s use of the inhaler; if so, then her actions cannot be considered theft. While the employer had a policy disallowing such actions, the claimant’s supervisor was not aware of that policy. The court concluded the “record does not contain substantial and competent evidence of the elements of theft, nor is there an articulated finding on these questions.” The court rejected the Board’s additional rationale that a disqualification was justified “because the product taken was a prescription drug in a hospital setting.”

Digest Author: Board of Review (view original digest here)
Digest Updated: 7/99

12. Misconduct

Stratton v Fred Sanders – 12.20

Stratton v Fred Sanders
Digest no. 12.20

Section 29(1)(b)

Cite as: Stratton v Fred Sanders, unpublished opinion of the Wayne Circuit Court, issued December 1, 1965 (Docket No. 20866).

Appeal pending: No
Claimant: Vera Stratton
Employer: Fred Sanders
Docket no.: B63 4573 31639
Date of decision: December 1, 1965

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CIRCUIT COURT HOLDING: The absence of the intent to steal in the mishandling of a small amount of employer’s property prevents the offense “from being misconduct and renders it de minimis.”

FACTS: “[T]he night store manager, Mrs. Langlois, observed a bulge under the pillow on a cot in the employees’ washroom. She lifted the pillow and discovered a purse. Upon opening the purse, four bunches of lollipops, store merchandise, were found in the purse. The purse was identified as claimant’s, and she was questioned as to how she had obtained the lollipops. During the interview, claimant offered to pay for the lollipops. Subsequently, claimant stated that she had purchased the lollipops at another company store.” Following the employer’s review of the matter, claimant was discharged.

DECISION: “[T]here is no unequivocal finding of dishonesty in the handling of the employer’s property. For this reason the case is remanded for a new trial.”

RATIONALE: “When the misconduct charged involves the mishandling of company property of very small value, the legal principle … from a review of all the pertinent cases … is this: For misconduct there must be dishonest handling of the property. Otherwise, the absence of intrinsic gravity in the offense or the absence of serious impact upon the employer prevents the incorrect handling of employer’s property from being misconduct and renders it de minimis.”

“[I]f there is dishonest handling of the employer’s property there is misconduct, no matter how small the amount. The de minimis rule does not mean that a little thievery is all right.”

The factual issue to be decided on remand below is whether there was “a dishonest handling or an innocent mishandling without intent to steal.”

Digest Author:  Board of Review (original digest here)
Digest Updated: 6/91