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Cite as: Nichols v Auto Club Services, Inc, Unpublished Opinion of the Michigan Court of Appeals, Issued November 19, 2015 (Docket No. 14-001823-AE).

View/download the full decision

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

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

View/download the full decision

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

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

View/download the full decision

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

Farnsworth v Michigan Masonic Home – 10.76

Farnsworth v Michigan Masonic Home
Digest no. 10.76

Section 29(1)(a)

Cite as: Farnsworth v Michigan Masonic Home, unpublished per curiam opinion of the Court of Appeals, issued January 17, 1992 (Docket No. 130244).

Appeal pending: No
Claimant: Paula M. Farnsworth
Employer: Michigan Masonic Home
Docket no.: B88-08686-109087W
Date of decision: January 17, 1992

View/download the full decision

COURT OF APPEALS HOLDING: Discipline imposed for legitimate absences and other factors beyond a claimant’s control may provide good cause for leaving.

FACTS: The claimant had been ill with mononucleosis and was off of work. Upon her return, the claimant was disciplined. Although acknowledging her absences were either the result of illness or pre-approved annual leave, the employer disciplined her for being excessively absent. It also criticized her appearance and slurred speech. The claimant’s slurred speech was the result of a congenital birth defect. The employer believed it was indicative of alcohol use. Shortly thereafter, the claimant submitted her resignation.

DECISION: The claimant was not disqualified under Section 29(1)(a).

RATIONALE: The claimant reasonably believed she would be subjected to further discipline for legitimate absences and other factors beyond her control.

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