UIA v. Tear – 3.09

UIA v. Tear
Digest No. 3.09

Section 421.46

Cite as: Unemployment Insurance Agency v Tear, unpublished opinion of the State of Michigan Court of Appeals, issued December 10, 2015 (Docket No. 13-001038-AE).

Appeal pending: No
Claimant: Rachel Tear
Employer: N/A
Date of decision: December 10, 2015

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HOLDING: Claimant is ineligible for unemployment benefits under MCL 421.46. The Circuit Court’s decision affirming that Claimant is eligible for unemployment benefits is reversed. The case is remanded for the entry of the order upholding the Agency’s denial of Claimant’s claim for benefits.

FACTS: Claimant was discharged from her job and subsequently filed a claim for unemployment benefits. The Unemployment Insurance Agency (“Agency”) denied her claim and found that she could not establish a benefit year under MCL 421.46. At the administrative law hearing, the ALJ reversed the Agency’s finding and found that a benefit year had been established because “Claimant’s high quarter wages were $2,883.00.”

DECISION: The ALJ’s finding that Claimant was paid $2,883.00 in a completed quarter is not supported by substantial and competent evidence. The Circuit Court’s conclusion that Claimant was paid more than $2,871.00 in a completed quarter is clearly erroneous.

RATIONALE: The court referred to the definition of “benefit year” in MCL 421.46(c), the definition of a “base period” in MCL 421.45, and the definition of “calendar quarter” in MCL 421.47 to determine Claimant’s eligibility for unemployment benefits.

Under those provisions, Claimant was required to have been paid at least $2,871.00 in at least one completed calendar quarter in the first four of the last five completed calendar quarters before filing her claim. Claimant would need to meet that requirement to establish a benefit year. In this case, Claimant only made $1,958.30 for the entire calendar year.

Although MCL 421.45 provides an alternative base period if a claimant cannot meet the above requirement, Claimant in this case still did not earn enough to establish a base period under MCL 421.45.

Digest author: Rita Samaan, Michigan Law, Class of 2017
Digest updated: 10/31/2017

 

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Cite as: Latham v Comcast Cablevision Corp, unpublished opinion of the Wayne County Circuit Court, issued August 28, 2013 (Docket No. 13-003859-AE).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

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

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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, unpublished opinion of the Macomb County Circuit Court, issued December 19, 2007 (Docket No. 2007-2858-AE).

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

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

UIA v. JDM & Associates v. Yordy – 13.28

UIA v. JDM & Associates v Yordy
Digest No. 13.28

Section 421.29(1)(e)

Cite as: JDM & Assoc v Yordy, Muskegon County Circuit Court, issued August 30, 2005 (Docket No. 05-43773-AE).

Appeal pending: No
Claimant: Sara B. Yordy
Employer: JDM & Associates
Docket no.: 176914W
Date of decision: August 30, 2005

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HOLDING: The Board’s decision to grant Yordy unemployment benefits was contrary to law. Yordy was not eligible for unemployment benefits because she failed without good cause to accept alternative suitable work offered to her by JDM.

FACTS: JDM & Associates had placed Yordy as an employee doing industrial work  at Hillite International from August 2002 to June 2003. When that job ended, JDM offered her other full-time employment doing industrial work at Whitehall Products on July 15, 2003. Yordy refused this offer because she wanted to work the second shift and the job was for the first shift. JDM gave her several other job offers which she also declined because of her desire to work second shift.

DECISION: The circuit court reversed the Board’s decision, which had found the claimant was not disqualified from receiving unemployment benefits under Section 29(1)(e).

RATIONALE: The purpose of the Act is to provide benefits to workers who are involuntarily unemployed. If the Board’s decision that Yordy was eligible for benefits were to stand, it would allow employees who were offered suitable work to turn it down and still receive benefits. Alternatively, the Board would have to preemptively decide what constitutes suitable work each time an employer offered a substitute job, which the legislature could not have intended.

Digest Author: Alisa Hand, Michigan Law, Class of 2017
Digest Updated: 3/1/2016

Dombeck v. Special Mold Engineering, Inc. – 13.26

Dombeck v. Special Mold Engineering, Inc.
Digest No. 13.26

Section 421.29(1)(e)

Cite as: Dombeck v Special Mold Engineering, Inc, unpublished opinion of the Maycomb County Circuit Court, issued April 14, 2005 (Docket No. 2005-000 1-AE).

Appeal pending: No
Claimant: Max T. Dombeck
Employer: Special Mold Engineering, Inc.
Docket no.: 2005-000 1-AE
Date of decision: April 14, 2005

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HOLDING: When a claimant is offered the same position with identical pay, benefits, and work hours from an employer he previously worked for 7 months prior, after being laid off from his most recent employer, that offered position constitutes an offer of suitable employment. Further, not having adequate time to pursue alternate job options does not constitute good cause for refusal of suitable employment.

FACTS: Claimant was employed as a metal mold builder with Special Mold Engineering (SME). Claimant left SME to accept employment at another company because the new job provided day shift work, it was closer to home, it paid more money and would offer him opportunities for advancement. Claimant was laid off from employment on June 11, 2003 due to circumstances beyond his control. Claimant applied for unemployment benefits on June 12, 2003. On July 15, 2003, SME offered claimant his old job back, at the same rate of pay, with the same benefits, and with sufficient work hours. Claimant ultimately turned down the job offer because be felt “it was too soon for me to come back without being able to seek further employment with the, the new skill that I’ve learned.” Claimant was subsequently denied unemployment benefits under the refusal of suitable employment provision, MCL 421.29(1)(e)

DECISION: The MES Board’s decision was not contrary to the great weight of the evidence, finding that claimant was disqualified for unemployment benefits under MCL 421.29(1)(e).

RATIONALE: Claimant was offered suitable employment: a full-time job for which he was qualified at the same rate of pay he had been earning when he had left employment some 7 months prior, vacation pay and health benefits. Further, good cause for refusing to accept the offer of employment has not deem demonstrated. Although claimant stated he had not had enough time to find other employment, there is nothing to say that he could not have sought other employment while being employed. Claimant expressed some doubt about SME’s stability insofar as it had laid off some 20 employees and had cut hours shortly before he quit, but it is reasonable to assume that because they wanted to rehire him in July, the economic climate had changed for the better for SME, whereas, the new company had to lay off claimant due to an economic downturn, and there was no guarantee that claimant would be rehired.

Digest Author: Cydney Warburton, Michigan Law, Class of 2017
Digest Updated: 3/27/2016

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

Baggett v. Riverside Osteopathic Hospital – 15.37

Baggett v. Riverside Osteopathic Hospital
Digest No. 15.37

Section 421.29(8)(a)(i)

Cite as: Baggett v Riverside Osteopathic Hospital, unpublished opinion of the Wayne County Circuit Court, issued February 19, 1999 (Docket No. 98-820404-AE).

Appeal pending: No
Claimant: Shelby Baggett, et al.
Employer
: Riverside Osteopathic Hospital
Docket no.: 98-820404-AE
Date of decision: February 19, 1999

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HOLDING: Claimants who were on strike had not been “permanently displaced,” and therefore a labor dispute was the cause of their unemployment, which disqualified claimants for benefits under Section 29(8)(a)(i) of the MES Act.

FACTS: Claimants went on strike May 24, 1990 and returned to work on October 19, 1990. After July 8, 1990, the employer began hiring employees who subsequently became “permanent” employees. From the date the strike began to the end of the strike, positions for the striking employees were available upon their return. Claimants were returned to their positions after the strike. During the strike, claimants applied for unemployment benefits. The Board of Review determined claimants disqualified for benefits.

DECISION: The circuit court affirmed the Board of Review’s decision, which found the claimant to be disqualified for benefits due under Section 29(8)(a)(i) of the MES Act.

RATIONALE: Section 29(8) of the MES Act reads in relevant part: “(a) An individual is disqualified from receiving benefits for a week in which the individual’s total or partial unemployment is due to either of the following: (i) A labor dispute in active progress at the place at which the individual is or was last employed, or a shutdown or start-up operation caused by that labor dispute.” The circuit court read the Michigan Supreme Court case of Plymouth Stamping v Lipshu, 436 Mich 1 (1990), to suggest that Section 29(8) means, “If there is a position open for a striking worker, he/she is ineligible for unemployment benefits.” But, if claimants were permanently displaced then the labor dispute would no longer be the cause of their unemployment, and the claimants would thus be eligible for benefits. Here, the circuit court determined that the striking employees had permanent positions to return to and and that those employees were, in fact, returned to those positions at the end of the strike. Further, these positions were available to claimants throughout the strike. Thus, the Board of Review’s conclusion that claimants were not permanently displaced was supported by substantial evidence.

Digest Author: Adam Kleven, Michigan Law, Class of 2018
Digest Updated: 3/27/2016