Mowatt v. Village of Birch Run – 12.146

Mowatt v. Village of Birch Run
Digest no. 12.146

Section 421.29(1)(b)

Cite as: Mowatt v Village of Birch Run, Saginaw County Circuit Court, No. 08-000001-AE-2 (August 20, 2008).

Appeal pending: No
Claimant: Robert Mowatt, Jr.
Employer: Village of Birch Run
Docket no.: 190282H
Date of decision: August 20, 2008

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HOLDING: Claimant’s failure to sign an Improvement Plan aimed at advancing his job performance was conduct related to his work and constituted a deliberate and willful act against his employer’s interests. Thus, claimant’s failure to sign the plan amounted to disqualifying misconduct to bar claimant from unemployment benefits.

FACTS: On January 23, 2006, Robert Mowatt was fired from his position as Chief of Police by the Village of Birch Run. Mowatt failed to sign and acknowledge a performance improvement plan crafted by his employer to improve his job performance. Mowatt was first asked to sign the plan at a December 5, 2005 Village Council meeting. The Board of Review determined that failure to sign the improvement plan rose to the level of disqualifying misconduct.

DECISION: The circuit court affirmed the Board of Review’s decision, which found that claimant’s failure to sign the plan rose to the level of disqualifying misconduct under section 29(1)(b) of the MES Act.

RATIONALE: Claimant argued that the review of the Board’s record did not show that he refused to sign the plan, but rather that he simply needed clarification and could not sign the document as written. However, evidence showed that claimant had multiple opportunities to discuss the plan and address his concerns with the Village. Moreover, the Village decided that the improvement plan was in their best interest to advance claimant’s job performance. That claimant disagreed with the necessity of the plan is irrelevant to whether he acted deliberately against the interests of his employer. Thus, the court agreed that claimant’s outright refusal to sign the plan showed a willful disregard of his employer’s interests. Because the plan was directly aimed to improve claimant’s performance, his failure to sign the plan was related to his work. Further, a single incident of misconduct may satisfy the statutory meaning of misconduct under section 29(1)(b) of the MES Act. Tuck v. Ashcrafi’s Market Inc., Mich.App. 579, 589 (1986). Therefore, the court found that claimant’s insubordination amounted to disqualifying misconduct and the Board’s decision to deny him benefits was not contrary to law.

Digest Author: Adam Kleven, Michigan Law, Class of 2018
Digest Updated: 1/6/2016

Ducharme v Providence Hospital – 12.155

Ducharme v Providence Hospital
Digest no. 12.155

Section 29(1)(b)

Cite as: Ducharme v Providence Hosp, unpublished per curiam opinion of the Court of Appeals, issued March 7, 2006 (Docket No. 257231).

Appeal pending: No
Claimant: Joanne H. Ducharme
Employer: Providence Hospital
Docket no.: 03-051271-AE
Date of decision: March 7, 2006

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COURT OF APPEALS HOLDING: After previously demonstrating the ability to conform to an employer’s standards, a claimant’s termination for excessive absences may constitute disqualifying misconduct when the employer has no reasonable way to discover the relevant facts behind the absences and no legitimate explanation is offered by the claimant.

FACTS: Claimant is slightly mentally retarded and worked for Employer for 22 years. Claimant received about 26 unexcused absences over a five-month period, and Employer met with Claimant and her family to discuss the ramifications of accumulating more unexcused absences. Employer made an effort to work with Claimant before ultimately releasing her due to her long tenure with the company, however after accumulating four additional unexcused absences over a two-month period, Claimant was terminated. Claimant’s brother and legal guardian testified that Claimant sometimes became confused about her work schedule, and that most absences were due to a breathing problem Claimant suffers from. A reason for the final four unexcused absences was not provided.

After a determination that Claimant was not disqualified due to misconduct, the ALJ reversed, finding the evidence insufficient to conclude Claimant’s retardation was the cause of her attendance infractions. A split Board of Review affirmed, the dissent instead opining that Claimant’s actions were not “wanton or willful disregard” of Employer’s interests, but instead due to “inability or incapacity.”

DECISION: The decision of the Circuit Court affirming Claimant’s disqualification from benefits due to misconduct is affirmed as the court did not clearly err in finding the Board of Review’s decision was supported by the evidence and not contrary to law.

RATIONALE: It is generally the employer’s burden to demonstrate disqualification for benefits. In the case of termination for excessive absences, disqualifying misconduct must be shown with evidence that the absences were not beyond the employee’s control or otherwise with good cause. However, if the relevant facts are entirely in the hands of the claimant and for all practical purposes cannot be discovered by the employer, the claimant bears the burden to provide a legitimate explanation for the absences.

Here, reasonable minds could differ as to whether Claimant provided sufficient evidence to provide a legitimate explanation for her absences. Plaintiff was able to work for Employer for 22 years before termination, suggesting the general ability to conform to Employer’s expectations, and the explanations provided as to the reason for some of her absences does not necessarily suffice to legitimately explain the particular absences resulting in Claimant’s termination. The standard of review is clear error, and the Circuit Court did not clearly err.

Digest Author: Jack Battaglia
Digest Updated: 9/14

Gent v. Pride Ambulance Co. – 12.139

Gent v. Pride Ambulance Co.
Digest No. 12.139

Section 421.29(1)(b)

Cite as: Gent v Pride Ambulance Co, unpublished per curiam opinion of the Michigan Court of Appeals, issued January 12, 2006 (Docket No. 252912).

Appeal pending: No
Claimant: Sheri L. Gent
Employer: Pride Ambulance Company
Date of decision: January 12, 2006

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HOLDING: Claimant was eligible for benefits when she was discharged from her employment for her refusal to work because claimant’s refusal to work was based on her conscientious observance of the Sabbath.

FACTS: Claimant was employed as a paramedic by Pride Ambulance. In September 2002, claimant informed her employer that she could no longer work on Saturdays because that was her Sabbath day. Claimant was a Seventh Day Adventist. Claimant had regularly worked Saturdays but decided to discontinue the practice, and arrangements were made to accommodate her after Saturday, October 5, 2002. Pride found a replacement worker for September 28, but not for October 5. When claimant informed Pride that she would not come into work on October 5, Pride informed her that such an action would be considered job abandonment. Claimant did not come to work on Saturday, October 5, and she turned in her uniform the following Monday.

DECISION: Affirming the Circuit Court, but on different grounds, the Court of Appeals held that regardless of the existence and application of general rules protecting the free exercise of religion, the clear language of the applicable employment security rules supports an award of unemployment benefits.

RATIONALE: The court relied on a Michigan Employment Security Commission rule, promulgated to implement section 29 of the MES Act. 1985 MR 6, R 421.209 stated: “An individual who refuses to work on the Sabbath designated by his or her religion, or who is discharged from work or voluntarily leaves work, solely because of the conscientious observance of the Sabbath…shall not…be disqualified from receiving unemployment benefits.” Pride offered no justification for their failure to follow the established rule for resolving this benefits dispute. The court considered analyzing any First Amendment issues as unnecessary because the claimant is eligible for unemployment benefits based on the plain language of the employment security rule. Therefore, the constitutional question need not be addressed.

Digest Author: Adam Kleven, Michigan Law, Class of 2018
Digest Updated: 1/6/2016

Riccardi v Oakland General Health Systems – 12.154

Riccardi v Oakland General Health Systems
Digest no. 12.154

Section 29(1)(b)

Cite as: Riccardi v Oakland Gen Health Systems, unpublished per curiam opinion of the Court of Appeals, issued January 10, 2006 (Docket No. 256164).

Appeal pending: No
Claimant: Carol Ann Riccardi
Employer: Oakland General Health Systems / St. John Oakland Hospital
Docket no.: 04-050903-AE
Date of decision: January 10, 2006

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COURT OF APPEALS HOLDING: A finding of statutory misconduct due to excessive absenteeism or tardiness cannot be made if there is no evidence that any of the absences were not for good cause.

FACTS: Claimant’s accumulation of absences for various reasons led to her termination under Employer’s “no-fault” attendance system which set forth a schedule detailing how escalating amounts of absenteeism would lead to increasingly severe penalties. The majority of the absences were documented as due to illness, doctor’s visits, car trouble, or problems at home. Claimant was initially granted benefits under the reasoning that she was not discharged for a deliberate disregard of her employer’s interests. This determination was overruled by the ALJ, and affirmed by the Board of Review and the Circuit Court, finding that Claimant had committed disqualifying misconduct under the reasoning that her absences were excessive, she was aware of the attendance policy that could lead to dismissal, and she “made very little effort” to correct her attendance problem.

DECISION: The orders of the below tribunals are reversed, and the initial determination finding Claimant entitled to benefits is reinstated.

RATIONALE: Absenteeism and tardiness for reasons that are not outside a claimant’s control may constitute statutory misconduct. However, misconduct requires a determination that the claimant’s attendance issues were without good cause, and it is the employer’s burden to show this.

Here, no below tribunal made any factual findings discrediting Claimant’s explanations for her absences, rather only finding her disqualified due to the excessive nature of her absences and taking no remedial action despite knowing that her job was in jeopardy. Without a finding that her absences were not for good cause, the burden required to establish disqualifying misconduct was not met. The below tribunals erred in finding statutory misconduct.

Digest Author: Jack Battaglia
Digest Updated: 9/14

Gallagher v Montcalm County – 12.153

Gallagher v Montcalm County
Digest no. 12.153

Section 29(1)(b)

Cite as: Gallagher v Montcalm Co, unpublished opinion of the Court of Appeals, issued August 17, 1999 (Docket No. 203429).

Appeal pending: No
Claimant: Dale Gallagher
Employer: Montcalm County
Docket no.: 96-000348-AE
Date of decision: August 17, 1999

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COURT OF APPEALS HOLDING: A claimant’s indirect and belated efforts to notify his employer of his absences and failure to contact his employer thereafter, when occurring immediately following other disciplinary action, may constitute disqualifying misconduct.

FACTS: Claimant was employed as a building inspector for Employer. On December 3, 1993, Claimant received a 3-day suspension for falsification of time cards, failure to return to work after breaks, and other things. On his first day back after this suspension, Claimant suffered from a spasmodic colon causing him to defecate uncontrollably while on his way to work. After cleaning himself, he stopped into work only briefly before leaving without communicating with anyone. Claimant’s daughter-in-law contacted his supervisor on December 9 about Claimant’s illness, and Claimant mailed in his time card on December 10 with the word “sick” written on it. Claimant never personally contacted his supervisor regarding his absence; Claimant did not provide medical verification, nor did his doctor ever tell him that he could not return to work. Claimant was sent a letter on December 17 informing him that his failure to return to work, make personal contact, or provide written clarification of his absence is considered voluntary termination of his employment.

On appeal of Claimant’s initial determination of eligibility, the ALJ determined that failure to keep Employer adequately informed as to why he was absent constituted disqualifying misconduct. The Board of Review affirmed the ALJ decision on different grounds, finding misconduct instead in failure for Claimant to provide medical verification of the reason for his absence. On appeal, the Circuit Court disagreed with the Board of Review’s reasoning, but affirmed the decision as not contrary to law, agreeing with the ALJ that misconduct stemmed from Claimant’s failure to keep the employer adequately informed as to the reason for his absence.

DECISION: The Circuit Court decision is affirmed, Claimant is disqualified from benefits due to misconduct.

RATIONALE: Generally, tardiness or absence which results from circumstances outside the claimant’s control cannot be considered to be misconduct, which is willful or wanton disregard of the employer’s interest. However, here, the evidence shows that Claimant’s doctor did not tell him that he could not return to work. Also, when Claimant stopped at Employer’s building the same day of his medical condition, he did not bother to appraise anyone of his situation or leave any form of communication, nor did he personally contact Employer that day or any day subsequent. “An employer . . . has a right to expect that its employees will provide appropriate notification of their reasons for an absence from work. Coming on the heels of a three-day disciplinary suspension,” Claimant’s actions constitute an intentional and substantial disregard for his employer’s interests. The Circuit Court did not clearly err by affirming the Board of Review’s decision.

Digest Author: Jack Battaglia
Digest Updated: 8/14

Hoag v. Emro Marketing – 12.141

Hoag v. Emro Marketing
Digest No. 12.141

Section 421.29(1)(b)

Cite as: Hoag v Emro Mktg, unpublished opinion of the Maycomb County Circuit Court, issued April 9, 1999 (Docket No. 98-4783-AE).

Appeal pending: No
Claimant: Jeffery A. Hoag
Employer: Emro Marketing
Docket no.: 98-4783-AE
Date of decision: April 9, 1999

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HOLDING: Recurrences of negligent behavior do not per se suggest an intentional and substantial disregard of an employer’s interests and thus cannot per se establish misconduct.

FACTS: Appellant worked as an assistant manager for Emro Marketing and was discharged for cash drawer shortages. Appellant was initially determined to be not disqualified from receiving benefits. A further redetermination also found Appellant not disqualified. A hearing in front of an ALJ held the same

finding that the employer had not met its burden of proof in establishing appellant was discharged for reasons which would constitute misconduct. Further, the ALJ found that the appellant’s reporting of the shortages which allocated the blame to himself,  coupled with his signing of the respective warnings from his employer did not constitute misconduct. The Michigan Employment Security Board of Review, on appeal, found that the doctrine of res ipsa loquitur applies in this case. The Board concluded that if appellant did not commit theft, then he was obviously negligent. Further, the Board found misconduct was established by such reoccurrences as to show an intentional and substantial disregard of the employer’s interests or of the employee’ s duties and obligations to the employer

DECISION: The Court finds the Board acted contrary to law when it determined appellant’s recurrent negligence rose to the level of disqualifying misconduct.

RATIONALE: The court found that the Board’s decision was contrary to law in that the facts found did not constitute the legal definition of misconduct. This is because the Board’s use of res ipsa loquitur was in error. When determining if misconduct exists,  the legal question is not merely whether appellant was negligent, but whether that negligence rises to the level of disqualifying misconduct. Negligent recurrences do not per se suggest an intentional and substantial disregard of an employer’s interests, thus, they do not amount to misconduct. Here the employer bears the burden of proof in showing appellant’s recurrent negligence showed an intentional and substantial disregard of the employer’s interest.

Digest Author: Cydney Warburton, Michigan Law, Class of 2017
Digest Updated: 3/1/2016

Smith v. DoC, MESC – 12.150

Smith v. DoC, MESC
Digest No. 12.150

Section 421.29(1)(b)

Cite as: Smith v Dep’t of Corrections, unpublished opinion of the Kent Circuit Court, issued April 1, 1996 (Docket No. 95-1797-AE).

Appeal pending: No
Claimant: Wayne E. Smith
Employer: Michigan Department of Corrections
Docket no.: 95-1797-AE
Date of decision: April 1, 1996

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HOLDING: The claimant’s sleeping on the job and insubordination, by themselves, given the claimant’s position as a prison guard, are enough evidence to support a finding of misconduct disqualifying the claimant from benefits.

FACTS: The claimant worked for the employer as a prison guard. The claimant had a history of disciplinary counseling under the employer’s progressive disciplinary policy. The claimant was eventually discharged based on two instances of alleged misconduct, which included sleeping on the job and an incident of insubordination of a supervisor that involved the slamming of a door. The claimant was later reinstated.

DECISION: The circuit court affirmed the Board of Review’s decisions, which found the claimant to be disqualified for benefits due to misconduct under Section 29(1)(b) of the MES Act and Carter v MESC, 364 Mich 538 (1961).

RATIONALE: Sleeping on the job does not always constitute misconduct in some employment environments. However, the circuit court stated that the claimant’s position as a prison guard charged with supervising a large number of prisoners put him in a position of “unusual responsibility.” See Bell v. Employment Security Comm 359 Mich 649 (1960) (a fireman in a boiler room was deemed to have a position of unusual responsibility and his sleeping on the job constituted disqualifying misconduct). Given the nature of the claimant’s responsibility, his sleeping on the job and insubordination by themselves constituted disqualifying misconduct. Further, the claimant did not fall under the conditional language of Section 29(1)(b) that provided an employee whose discharge was later reduced is not disqualified for benefits, as that conditional language only applied to discharges for intoxication and not general misconduct.

Digest Author: Adam Kleven, Michigan Law, Class of 2018
Digest Updated: 1/6/2016

Broyles v Aeroquip Corp – 12.30

Broyles v Aeroquip Corp
Digest no. 12.30

Section 29(1)(b)

Cite as: Broyles v Aeroquip Corp, 176 Mich App 175 (1989).

Appeal pending: No
Claimant: Thomas Broyles
Employer: Aeroquip Corporation
Docket no.: B86 05457 104075
Date of decision: March 21, 1989

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COURT OF APPEALS HOLDING: Use of vulgar or abusive language can constitute employee misconduct depending on the totality of the circumstances.

FACTS: Claimant had a verbal confrontation with a supervisor, calling him an “asshole” and a “prick.” Claimant asserted the language he used was common and considered “shop talk.”

DECISION: Claimant was disqualified under the misconduct discharge provisions of Section 29(1)(b).

RATIONALE: “In looking at the use of vulgar or abusive language, we conclude that the use of such language can constitute employee misconduct. … [W]e believe an employer has the right to expect his employees to act with a certain amount of civility towards management personnel and, for that matter, fellow employees. Of course, every use of a vulgar epithet does not necessarily constitute misconduct. Rather, the totality of the circumstances of the case must be considered …” Where words are directed at a supervisor, where the tone and content suggest an abusive intent, where the comments are made in the presence of others, where such conduct is not condoned in the work place, the use of such language violates standards of behavior that an employer can reasonably expect from employees.

Digest Author: Board of Review (original digest here)
Digest Updated: 11/90

Stephen’s Nu-Ad, Inc v Green – 10.24

Stephen’s Nu-Ad, Inc v Green
Digest no. 10.24

Section 29(1)(a) & (b)

Cite as: Stephen’s Nu-Ad, Inc v Green, 168 Mich App 219 (1988).

Appeal pending: No
Claimant: Howard Green
Employer: Stephen’s Nu-Ad, Inc.
Docket no.: B86 02424 102397W
Date of decision: April 19, 1988

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COURT OF APPEALS HOLDING: Claimant’s immediate termination by the employer after having given notice of intent to quit is not disqualifying under Section 29(1)(a). However, since claimant made it clear and was unwaivering that he intended to quit after his two week notice, claimant is disqualified after the date he intended to quit under Section 29(1)(a).

FACTS: On 2-3-86 claimant informed the employer that on 2-15-86 he would no longer be working for the employer. Claimant was asked to continue the employment relationship, but he declined. Later that day the employer told claimant his employment was being immediately terminated.

DECISION: Claimant is not disqualified for the period of 2-3-86 to 2-15-86 under Section 29(1)(a) but claimant is disqualified after 2-15-86 under Section 29(1)(a).

RATIONALE: Claimant’s leaving on 2-3-86 was not voluntary. “The notice of an intention to permanently leave work in two weeks is not notice of an intention to permanently leave work immediately. If an employer so chooses to treat the former identically with the latter — which, of course, is an employer’s prerogative — this does not transmute, for purposes of the Michigan Employment Security Act or otherwise, the employee’s premature separation from his or her job into a voluntary action on the part of the employee.”

However, due to claimant’s persistent and irrefragable declarations that under no circumstance would he work for the employer after 2-15-86, claimants unemployment after 2-15-86 was voluntary and disqualifying under Section 29(1)(a).

Digest Author: Board of Review (original digest here)
Digest Updated: 11/90

Parks v MESC – 12.11

Parks v MESC
Digest no. 12.11

Section 29(1)(b)

Cite as: Parks v MESC, 427 Mich 224 (1986).

Appeal pending: No
Claimant: Anne B. Parks
Employer: Detroit Public Schools
Docket no.: B78 12258 66005
Date of decision: December 26, 1986

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SUPREME COURT HOLDING: An individual whose employment is terminated for failing to pay agency shop fees as required by the applicable collective bargaining agreement is disqualified from receiving unemployment benefits.

FACTS: Claimant’s employment with the Detroit Public Schools was terminated pursuant to the terms of a collective bargaining agreement because she failed to pay agency shop fees to the Detroit Federation of Teachers, the recognized bargaining agent for teachers and counselors. She objected to being “forced” to financially support an organization which conducted activities to which she was opposed.

DECISION: The claimant is disqualified from receiving unemployment benefits.

RATIONALE: A majority of the Court held the claimant is disqualified. A plurality, Justices Brickley and Archer and Chief Justice Williams, concluded the claimant should be disqualified for work-connected misconduct under Section 29(1)(b) as her failure to pay agency shop fees after receiving notice from the employer demonstrated an intentional disregard of the employer’s interests. Two justices, Boyle and Cavanaugh, concluded that the claimant, by failing to pay the shop fees as required by the agreement, had voluntarily left her work without good cause attributable to the employer.

Digest Author:  Board of Review (original digest here)
Digest Updated: 11/90