Nelson v Robot Support, Inc. – 12.160

Nelson v Robot Support, Inc.
Digest No. 12.160

Section 421.29(1)(b)

Cite as: Nelson v Robot Support, Inc, unpublished opinion of the Macomb County Circuit Court, issued October 3, 2017 (Docket No. 17-0123-AE).

Court: Circuit Court
Appeal pending:No
Claimant: Lisa Nelson
Employer: Robot Support, Inc.
Date of decision: October 3, 2017

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HOLDING: Excessive absences beyond a claimant’s control do not constitute the basis for misconduct. A claimant’s use of text messaging, instead of telephone, to communicate with his or her employer regarding the absences also does not constitute misconduct.

FACTS: Claimant was employed by Robot Support as an administrative assistant. Claimant left work in April 2016 to care for her mother, who was ill. During that time, Claimant also became ill and ended up missing 19 consecutive days of work. During that absence, Claimant sent her employer text messages to keep it updated. When Claimant returned to work, she was fired.

DECISION: It is well established that excessive absences beyond a claimant’s control do not constitute the basis for misconduct. Washington v Amway Grand Plaza, 135 Mich App 652, 658 (1984). It was contrary for law for the ALJ in this case to state that Claimant’s excessive absences were disqualifying misconduct, when really it based his decision on the fact that Claimant communicated her need for absences via text message instead of telephone.

RATIONALE: The ALJ’s findings of fact–that Claimant never communicated with her employer regarding the severity of her situation or the need for leave and sent updates to her employer via text–are supported by material and competent evidence. Claimant submitted medical documentation proving that her absences were beyond her control because both she and her mother were ill.

However, the ALJ based its decision on the lack of communication about the absences, not the absences themselves. The ALJ reasoned that it was disqualifying misconduct for Claimant to not call her employer during her extended absence. The Circuit Court held that the ALJ erroneously applied the law to the facts because, according to its decision, Claimant wasn’t terminated for her alleged misconduct, but rather her failure to communicate by telephone. The employer did not have a written policy requiring employee communications by telephone, and Claimant had in the past communicated with her employer via text. The Circuit Court held the decision of the ALJ contrary to law and reversed the decision of the MCAC, which affirmed the ALJ’s decision disqualifying Claimant from receiving benefits.

Digest author: Sarah Harper, Michigan Law, Class of 2017
Digest updated: December 26, 2017

Mendoza v. Aerotek, Inc. – 12.159

Mendoza v. Aerotek, Inc.
Digest No. 12.159

Section 421.29(1)(m)

Cite as: Mendoza v Aerotek, Inc, unpublished opinion of the Michigan Compensation Appellate Commission, issued August 18, 2017 (Docket No. 17-004211-252718W).

Court: Michigan Compensation Appellate Commission
Appeal pending: No
Claimant: Pedro Mendoza
Employer: Aerotek Incorporated
Date of decision: August 18, 2017

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HOLDING: The Michigan Compensation Appellate Commission (MCAC) reversed an Administrative Law Judge (ALJ) order finding Claimant disqualified for benefits under the “testing positive for drug use” provision of Section 29(1)(m).  The Commission held that under Ashford v Unemployment Compensation Commission, 328 Mich 428, 433 (1950), the employer did not meet its burden of proof where it failed to appear, and thus no prima facie case was established to prove the misconduct.  Therefore, the Commission reversed the order and found Claimant eligible for benefits.

FACTS:  The Agency found Claimant disqualified for benefits under the misconduct provision of MES 421.29.  Here, Claimant tested positive for drug use on an employer-administered drug test and thus was found ineligible under the illicit drug use provision of Section 29(1)(m).  At the hearing, the only participants present were Claimant’s attorneys and the judge.  Despite the employer’s lack of appearance, the judge affirmed the Agency’s finding of disqualification and held Claimant ineligible for benefits.  The MCAC reversed on appeal.

DECISION: The Commission reversed the ALJ order and found Claimant not disqualified for benefits under Section 29(1)(m).

RATIONALE: The Commission found that because the employer had the burden of proof to establish misconduct, its failure to appear at Claimant’s hearing and present evidence to support a finding of misconduct failed to meet the burden of proof.  Because no prima facie showing of misconduct could be established without the employer’s presence, the Commission held that the ALJ erred in affirming the Agency’s finding of misconduct.  Further, Claimant had no burden of proof in this case, and had only the obligation to prosecute his appeal under Ashford.  Because the employer failed to meet its burden of proof by not appearing at the hearing, and because Claimant had no burden of proof under Section 29(1)(m), the order was reversed and the Commission found Claimant not disqualified for benefits.

Digest author: Laura Page, Michigan Law, Class of 2018
Digest updated: January 2, 2018


Nichols v. Auto Club Services – 12.158

Nichols v. Auto Club Services & UIA
Digest No. 12.158

Section 421.29(1)(b)

Cite as: Nichols v Auto Club Services, Inc, Unpublished Opinion of the Michigan Court of Appeals, Issued November 19, 2015 (Docket No. 14-001823-AE).

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Appeal Pending: No
Claimant: Aisha Nichols
Employer: Auto Club Services Inc.
Date of Decision: November 19, 2015

HOLDING: Absences for good cause in violation of an employer’s no-fault attendance policy do not constitute misconduct under MCL 421.29(1)(b).

FACTS: In October 2012, claimant was hired as a customer sales and service representative for Auto Club Services Incorporated (“ACS”). After working for 90 days, ACS employees earned three days off from work for every six months. ACS had a written no-fault attendance policy with no written exceptions, and exceptions were very rare in practice. Between December 3, 2012, and February 5, 2013, claimant received three written discipline notices, two of which were related to absences or tardiness.

On February 28, 2013, while driving to work, claimant’s vision blurred, and she was unable to see. Claimant had previously experienced blurred vision and believed it was caused by “having a thyroid storm.” She left a voicemail with ACS informing them the (1) the reason for her absence was personal and (2) she could explain her absence upon her return on March 1, 2013.

Upon returning on March 1, 2013, ACS discharged claimant for her absence pursuant to their no-fault attendance policy. While being discharged, claimant informed ACS she felt unwell and could not see on February 28th. She did not provide medical documentation explaining her absence on the aforementioned date but had previously warned her employer she was not feeling well.

Claimant was disqualified from unemployment benefits pursuant to MCL 421.29(1)(b). During claimant’s hearing before an Administrative Law Judge (“ALJ”), the parties stipulated her absence was due to an illness, but there is a dispute whether the ALJ accepted that stipulation. The ALJ and subsequently, the Michigan Compensation Appellate Compensation (“MCAC”) and Wayne Circuit Court affirmed claimant’s determination of disqualified from benefits under MCL 421.29(1)(b). Claimant appeals arguing the lower tribunals’ (1) decisions were contrary to law and (2) fact finding was unsupported by competent, material, and substantial evidence.

DECISION: Claimant is not disqualified for misconduct pursuant to MCL 421.29(1)(b) because the absences were beyond her control, and thus, she had good cause for said absence.

RATIONALE: Misconduct has been defined as “conduct evincing such willful or wanton disregard of an employer’s interest 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. Mich. Employment Security Comm., 364 Mich. 538, 541; 111 NW2d 817 (1961). However, infractions that may cause termination do not necessarily constitute misconduct under MCL 421.29(1)(b). Hagenbuch v. Plainwell Paper Co., Inc., 153 Mich. App. 834, 837-838; 396 NW2d 556 (1986). Absenteeism and tardiness for reasons not beyond a claimant’s control constitute misconduct. Id at 837. However, absenteeism and tardiness for reasons beyond a claimant’s control which are otherwise with good cause do not constitute misconduct. Washington v. Amway Grand Plaza, 135 Mich. App. 652, 658; 354 NW2d 299 (1984).

The court argued the basis of claimant’s discharge was her accumulation of absences in violation of ACS’ attendance policy, not claimant’s failure to notify ACS of her medical condition to explain her final absence. This was confirmed by an ACS senior employee who testified that claimant would have been discharged due to the absences, regardless of whether she provided an explanation. Claimant provided evidence that her absences and tardiness prior to the February 28th incident were due to one or more chronic medical conditions related to her thyroid. Thus, these absences were beyond her control and constituted good cause.

The lower tribunals’ factual findings and ACS’s offered evidence was not inconsistent with claimant’s showing of good cause for her absences. Furthermore, the lower tribunals did not determine that claimant’s absences were without good cause and thus, erred in disqualifying claimant under MCL 421.29(1)(b). The Court held claimant was wrongfully disqualified for misconduct and remanded for further proceedings.

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

Hodge v. US Security Associates, Inc. – 16.91

Hodge v. US Security Associates, Inc.
Digest No. 16.91

Section 421.29; Section 421.38

Cite as: Hodge v US Security Associates, Inc., unpublished opinion of the Mich. Sup. Ct., issued February 6, 2015 (Docket No. 149984).

Appeal pending: No
Claimant: Carnice Hodge
Employer: U.S. Security Associates, Inc.
Date of decision: February 6, 2015

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HOLDING: A reviewing court is not at liberty to substitute its own judgment for a decision of MCAC that is supported with substantial evidence.

FACTS: Claimant was a security guard at an airport. Claimant was fired for accessing publicly available flight departure information on a computer at the request of a traveler in violation of the employer’s policy regarding the unauthorized use of computer equipment. The Administrative Law Judge (ALJ) disqualified claimant from unemployment benefits for committing misconduct under Section 421.29. The Michigan Compensation Appellate Commission (MCAC) affirmed, holding that the decision was made in conformity with the facts as developed at the hearing and properly applied the law to the facts. The Wayne Circuit Court reversed, concluding that claimant’s conduct did not warrant a denial of benefits because claimant was violating the employer’s policy in order to help a customer, and the Michigan Court of Appeals affirmed the Wayne Circuit Court’s reversal.

DECISION: The Court of Appeals judgment is reversed and the MCAC judgment is reinstated.

RATIONALE: The Wayne Circuit Court and the Court of Appeals applied an incorrect standard of review by substituting their own assessment of the relative severity of claimant’s violation of her employer’s rules for the assessment of MCAC. A reviewing court is not at liberty to substitute its own judgment for a decision of MCAC that is supported with substantial evidence. A circuit court must affirm a decision of the ALJ and MCAC if it conforms to law and if competent, material, and substantial evidence supports it. The ALJ was the only adjudicator who actually heard testimony and observed the demeanor of the witnesses while testifying, reviewed all the evidence in the record, and made findings of fact based on credibility of witnesses and weight of the evidence. MCAC’s assessment of claimant’s conduct was made within the correct legal framework and was therefore authorized by law and not contrary to law, so the courts below improperly reweighed the evidence in order to reach a different assessment in violation of Section 421.38 and Const. 1963, art 6, § 28.

Digest author: Winnie Chen, Michigan Law, Class of 2017

Digest updated: 11/19/2017

War Memorial Hosp. v. Nodurft

War Memorial Hospital. v. Nodurft
Digest no.

Section 29(1)(a)

Cite as: War Mem’l Hosp v Nodurft, Unpublished Opinion of the Michigan Court of Appeals, issued June 3, 2014 (Docket No. 312205)

Appeal Pending: No
Court: Court of Appeals of Michigan
Date of decision: June 3, 2014

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Holding: A nurses aide, discharged for refusing to help restrain an out of control patient and thus putting her co-workers and the patient in danger, commits disqualifying misconduct under MCL 421.29(1)(b).

Facts: Employer Behavioral Health Center terminated claimant Nodurft when claimant refused to assist, at the direction of nurse manager Greg Wolf, other staff members in the restraint of an agitated and violent patient. Defendant filed a claim for unemployment benefits, which the Unemployment Insurance Agency denied under the misconduct provisions of the Michigan Employment Security Act (MESA) MCL 421.29. An Administrative Law Judge (ALJ) upheld the Agency’s decision, which the MCAC affirmed. Defendant then filed a claim of appeal with the circuit court, which reversed the MCAC’s decision upholding the denial of unemployment benefits.

Decision: The Court of Appeals reversed the circuit court’s order overturning the decision of the Michigan Compensation Appellate Commission, which upheld the denial of unemployment benefits to defendant Nodurft on the basis that she was “discharged for misconduct connected with her work,” under MCL 421.29(1)(b).

Rationale: The circuit court reversed the decision on the basis of its view that the evidence did not support plaintiff’s decision to terminate defendant’s employment on the basis of insubordination. Whether a termination is proper, however, is irrelevant when considering whether work-related misconduct occurred under MCL 421.29(1)(b). Nowhere in the Supreme Court’s definition of “misconduct” [in Carter v. Michigan Employment Security Comm.]  is the propriety of the employer’s authority to terminate an employee taken into consideration. Rather, the focus of the misconduct analysis must be on the claimant’s misconduct, not whether the employer wrongfully discharged the claimant. The CoA also found that the Circuit Court did not follow the correct standard of review.

When the definition of “misconduct” articulated by Carter is applied, it is clear that competent, material, and substantial evidence on the whole record supports the conclusion that disqualifying misconduct occurred.

Digest author: James C. Robinson
Digest updated: 2/15

Latham v. Comcast Cablevision Corp. – 12.157

Latham v. Comcast Cablevision Corp.
Digest No. 12.157

Section 421.29(1)(b)

Cite as: Latham v Comcast Cablevision Corp, unpublished opinion of the Wayne County Circuit Court, issued August 28, 2013 (Docket No. 13-003859-AE).

Appeal pending: No
Claimant: Carmen Latham
Employer: Comcast Cablevision Corporation
Date of decision: August 28, 2013

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HOLDING: The Michigan Appellate Compensation Commission’s decision that Latham’s discharge for misconduct was contrary to law. Absent the provision of Comcast’s written policy on credit checks, there was not enough evidence to show that Latham’s actions rose to the level of misconduct.

FACTS: From April 3, 2006 until May 11, 2012, when she was discharged for misconduct, Latham worked for Comcast as an inbound sales executive. In March 2012, Comcast audited Latham’s work because she had not run credit checks on several accounts. On May 11, 2012 Latham was discharged. She then filed a claim for unemployment, but was ruled disqualified under the misconduct provisions of the act. According to the testimony of the employer at the ALJ hearing, credit checks are mandatory and the company’s policy does not allow employees discretion on whether to perform them. Latham was also found to have set up an account without Comcast’s permission, but believed she was following an appropriate course of action.

DECISION: The circuit court reversed the decision of the Michigan Appellate Compensation Commission and ruled that the claimant was not disqualified for benefits because of misconduct under Section 29(1)(b) of the act.

RATIONALE: Latham argued that under MRE 1002, the best evidence rule, Comcast was required to provide the written policy on credit checks rather than using testimonies of employees to demonstrate its contents. The circuit court agreed and stated that without this policy, it only had the statements of Comcast representatives to rely on to decide how much discretion Comcast employees are allowed. Without the written policy clearly defining Latham’s responsibilities, the circuit court found that her conduct amounted only to poor performance and not misconduct.

Digest Author: Alisa Hand, Michigan Law, Class of 2017
Digest Updated: 3/27/2016

Carter v. MLP MFG, Inc. – 16.75

Carter v. MLP MFG, Inc.
Digest No. 16.75

Section 421.38, Section 421.29

Cite as: Carter v MLP MFG, IncMuskegon Circuit Court, No. 02-41720-AE (February 18, 2003).
Appeal pending: No
Claimant: David Carter
Employer: MLP MFG, Inc.
Date of decision: February 18, 2003

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HOLDING: When both an agent and an attorney have filed an appearance, an order must be served to both of them to fulfill Section 421.1101 (now rescinded).

FACTS: The administrative law judge issued an opinion dated July 20, 2001, which affirmed an agency determination denying the claimant unemployment benefits because of misconduct. The claimant’s agent appealed this opinion. The Board of Review affirmed the decision with an opinion dated November 9, 2001. On December 10, 2001, the claimant’s counsel filed his appearance and a timely request for a rehearing of the November 9, 2001 decision. The Board issued an order denying the application for rehearing on January 24, 2002. This January 24, 2002 order was not sent to the claimant’s attorney. Consequently, on April 29, 2002, the claimant’s attorney moved the Board to reopen the matter so that the claimant could file a timely appeal with the circuit court. In an order dated June 28, 2002, the Board denied the application for reopening, but acknowledged sending a copy of the January 24, 2002 order to the claimant and the claimant’s agent, but not the claimant’s attorney. On July 2, 2002, the claimant filed this appeal to the circuit court.

DECISION: The Board of Review erred in failing to send the claimant’s counsel a copy of the January 24, 2002 order.  When both an agent and an attorney have filed an appearance, an order must be served to both of them to fulfill Section 421.1101 (now rescinded), which is to be read in a manner that does not produce an unjust result, even if the literal language of the rule suggests otherwise. Therefore the July 2, 2002 filing of this appeal was timely, and this Court will adjudicate the appeal on the merits. This Court finds that the ALJ’s decision was not contrary to law and therefore affirms the previous decision disqualifying the claimant for benefits.

RATIONALE: In construing administrative rules, courts apply principles of statutory construction. However, there is an exception “when a literal reading of the statutory language would produce an absurd and obviously unjust result and would be clearly inconsistent with the purposes and policies of the act in question.” AG v LS Wood Preserving, Inc, 199 Mich App 149, 155 (1993). Reading Section 421.1101(1) literally (“A decision, notice, or order shall be served on each party and on the agent or attorney of record of each party . . .” (emphasis added)) would provide an unjust result in this case, as the purpose and policy of the rule is to provide notice. Thus the Board of Review needed to send the January 24, 2002 order to both the claimant’s agent and the claimant’s counsel, even though the rule uses the word “or.” Hence, the 30-day appeal period of Section 421.38(1) was tolled until the Board of Review issued its final order on June 28, 2002, and the July 2, 2002 filing of appeal was timely. Nevertheless, this Court finds that the ALJ’s decision was not contrary to law and was supported by competent, material, and substantial evidence on the whole record. The ALJ found the testimony of the cliamant’s supervisor to be credible. In doing so, he found that the claimant had engaged in three “no-call, no-show” absences which constitutes misconduct within the meaning of Section 421.29.

Digest author: Winne Chen, Michigan Law, Class of 2017
Digest updated: 11/19/2017