Deboer Nursing Home, Inc. v. Beasley – 12.136

Deboer Nursing Home, Inc. v. Beasley
Digest No. 12.136

Section 421.29(b), Rule 207 of the Rules of Practice Before Referees and MES Board of Review

Cite as: Deboer Nursing Home, Inc v. Beasley, Unpublished Opinion of the Muskegon County Circuit Court of Michigan, Issued April 2, 2008 (Docket No. 186922WC).

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Appeal pending: Yes
Claimant: Amenia H. Beasley
Employer: Deboer Nursing Home, Inc.
Tribunal: Muskegon County Circuit Court
Date of Decision: April 2, 2008

HOLDING: An Administrative Law Judge’s (ALJ) failure to “advise… and give every assistance” to an unrepresented claimant violates Rule 207 of the Rules of Practice Before Referees and MES Board of Review and is grounds for a remand for another hearing before a different ALJ.

FACTS: Claimant was employed by Deboer Nursing Home, Inc. until she was discharged for misconduct. Her alleged misconduct included (a) failure to turn on a patient’s personal alarm, (b) failure or refusal to respond to a resident choking with urgency, (c) leaving a resident in bed all day, (d) failure to monitor an Alzheimer’s resident as required, (e) leaving a resident in loose stool, (f) leaving a resident on a commode, and (g) failure to turn on a resident’s alarm, resulting in the resident falling. The ALJ found that the unrepresented claimant did not deny these events occurred and that her explanations for the incidents were not persuasive. Thus, the ALJ disqualified the claimant from benefits pursuant to MCL 421.29(b) because of misconduct.

The State of Michigan Employment Security Board of Review (“Board”) reversed the ALJ’s decision on August 28, 2007 on two grounds. First, the Board argued the claimant was not given the procedural protections by the ALJ guaranteed by Rule 207. Second, the incidents relied upon by the employer did not constitute misconduct under MCL 421.29(b).

DECISION: The ALJ failed to provide the procedural protections guaranteed by Rule 207 to the claimant in her original hearing. The remedy for violating Rule 207 is remand for new hearing with a different ALJ.

RATIONALE: The Court denied the Board’s second ground for reversal, specifically that the incidents did not qualify as misconduct. The Board’s explanation for that view was a disagreement with the ALJ’s assessment that the claimant’s explanations for the incidents in the original hearing were unpersuasive. The court denied the Board’s explanation because of an absence of legal precedent permitting the Board of Review, who did not view the witness or hear testimony, to assess the credibility of the witness.

However, the Court agreed with the Board that the claimant was not afforded the procedural protection guaranteed by Rule 207. Rule 207 reads as follows: “The referee shall secure such competent, relevant, and material evidence that he or she deems necessary to arrive at a fair decision… [and] shall advise the [unrepresented] party of his or her rights, aid him or her in examining and cross-examining witnesses, and give every assistance to the party compatible with an impartial discharge of the Referee’s official duties.” The ALJ specifically failed to protect the unrepresented claimant by (a) not guiding the claimant through the several exhibits submitted by the employer and (b) not asking the claimant any questions in response to the allegations.

The Court sought to prevent the consequences of the Board’s reversal from falling solely upon the employer. To achieve this, the Court remanded the issue for a new hearing with a different ALJ. To prevent violations of Rule 207 in the future, the Court provided two options to employers facing ALJs who were not complying with Rule 207. First, the employer could carry out the required procedures that the ALJ is tasked with under 207, thus assisting the claimant in presenting his or her case. Alternatively, the employer could stay silent, knowing the possible remedy ordered by the Board would be a decision that the employer pay benefits to the claimant.

Digest Author: Sean Higgins, Michigan Law, Class of 2017
Digest Updated: 3/1/2016

Barbee v. J.C. Penney – 16.73

Barbee v. J.C. Penney
Digest No. 16.73

Section 421.29(b), 421.33, 421.34, 421.38

Cite as: Barbee v JC Penney Corp, Inc, Unpublished Opinion of the Circuit Court for the County of Oakland, Issued January 26, 2006 (Docket No. 177083W).

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Appeal Pending: No
Claimant: Della M. Barbee
Employer: J.C. Penney Corporation, Inc.
Tribunal: Circuit Court for the County of Oakland
Date of Decision: January 26, 2006

HOLDING: The State of Michigan Employment Security Board of Review’s (“Board”) lacks jurisdiction to review untimely appeals.

FACTS: Claimant was employed by J.C. Penney as a Customer Service Associate until she was discharged for misconduct. Her alleged misconduct included obtaining fraudulent refunds, discount abuse, and unauthorized price adjustments. The Administrative Law Judge (“ALJ”) disqualified the claimant from benefits due to her misconduct under MCL 421.29(b).

Claimant appealed the ALJ’s decision to the State of Michigan Employment Security Board of Review (“Board”). The deadline to appeal was September 24, 2004, but claimant did not file her appeal until October 6, 2004. Pursuant to MCL 421.33, the Board dismissed the late appeal due to lack of jurisdiction.

Claimant did not seek rehearing or to reopen the case with the Board for good cause but instead, appealed to the Circuit Court (“Court”) for de novo review of the Board’s (1) arbitrary Appeal deadline and (2) the underlying determination in finding the Plaintiff guilty of misconduct.

DECISION: The Board’s deadlines cannot be challenged as arbitrary because they were set by the legislature and codified as MCL 421.33(2) and MCL 421.34. Additionally, the Circuit Court cannot de novo review claimant’s underlying determination because she appealed the Board’s decision. Finally, the Board’s order dismissing claimant’s appeal for lack of jurisdiction was proper.

RATIONALE: The Circuit Court ruled that the appeal deadlines were not arbitrary because they were established by the legislature through MCL 421.33(2) and MCL 421.34.

The Court also denied claimant’s appeal for de novo review of her underlying determination as guilty of misconduct. The Court noted that a claimant can appeal a referee’s (ALJ’s) decision to the Circuit Court directly under MCL 421.38(2). However, because the claimant appealed the Board’s decision and said decision did not include a review of claimant’s determination as guilty of misconduct, the Circuit Court lacks authority to de novo review the claimant’s guilty determination.

The Circuit Court reviewed the whole record to determine if claimant’s appeal was untimely. Pursuant to MCL 421.38(1), the standard for finding an appeal untimely is support by competent, material, and substantial evidence. After finding that the appeal was untimely under the standard, the Court affirmed the Board’s decision dismissing claimant’s untimely appeal for lack of jurisdiction under MCL 421.33.

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

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