Braska v. Challenge Mfg. Co. – 14.20

Braska v. Challenge Mfg. Co.
Kemp v. Hayes Green Memorial Hospital
Kudzia v. Avasi Services

Digest no. 14.20

Section 29(1)(m)

Cite as: Braska v. Challenge Mfg. Co., Court of Appeals of Michigan, Issued Oct. 23, 2014
(Docket Nos. 313932, 315441, 318344).


Appeal Pending: No. On November 4, 2015, Michigan Supreme Court denied the Agency’s Application for Leave to Appeal.

Claimants: Rick Braska, Jenine Kemp, Stephen Kudzia (3 separate claimants consolidated on appeal)

Employer: Challenge Manufacturing Company, Hayes Green Memorial Hospital, Avasi Services

Docket nos. 313932, 315441, 318344

Date of decision: Oct. 23, 2014

View/download the full decision

Holding: Claimants tested positive for marijuana and would ordinarily be disqualified for unemployment benefits under section 29(1)(m); however, because there was no evidence to suggest that the positive drug tests were caused by anything other than claimants’ use of medical marijuana in accordance with the terms of the Michigan Medical Marihuana Act (MMMA), the denial of the benefits constituted an improper penalty for the medical use of marijuana under MCL 333.26424(a).

Facts: The claimants each possessed medical marijuana cards. Each of them failed an employee drug test and was subsequently discharged even though there was no evidence of impairment at work.

Braska applied for and received benefits following his termination. The ALJ upheld the UIA’s determination. The MCAC reversed. The circuit court reversed hold that the MCAC’s decision that Braska was disqualified from receiving benefits was not supported by competent, material, and substantial evidence.

After termination, Kemp applied and received benefits. The ALJ affirmed. The MCAC reversed. The circuit court reversed the MCAC’s decision, holding “an employee, who uses medical marijuana but is not intoxicated at work, is not disqualified from receiving benefits under § 29(1)(m).”

Kudzia applied for and received benefits after termination. The ALJ held that Kudzia was disqualified from receiving benefits under § 29(1)(b). Kudzia appealed, and the MCAC affirmed the ALJ’s decision on different grounds. The circuit court reverserd, holding “to the extent that provisions of the MMMA and the MESA conflicted, the MMMA controlled” and that “although the MMMA does not impose restrictions on private employers, the MMMA applied to state action and the MCAC’s decision to deny Kudzia benefits was an action by the state.”

Decision: Following various procedural outcomes, The MCAC found claimants disqualified for benefits under § 29(1)(m). The respective circuit courts reversed. The Court of Appeals of Michigan consolidated the cases, and affirmed the decisions of the circuit courts.

Rationale: Claimants were nevertheless entitled to unemployment benefits pursuant to the MMMA. MCL 333.26424(a) provides broad immunity. It prohibits the imposition of certain consequences, including any penalty, upon individuals who use medical marijuana in accordance with the MMMA. Denial of unemployment benefits under § 29(1)(m) constitutes a “penalty” under the MMMA that was imposed upon claimants for their medical use of marijuana. Because the MMMA preempts the MESA, the MCAC erred in denying claimants unemployment benefits.

Digest author: James C. Robinson

Digest updated: 12/15

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

View/download the full decision

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

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

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., Macomb County Circuit Court, No. 2007-2858-AE (Dec. 19, 2007).

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

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, Washtenaw Circuit Court No. 98-10274-AE (April 21, 1999).

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

View/download the full decision

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