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Cite as: Nichols v Auto Club Services, Inc, Unpublished Opinion of the Michigan Court of Appeals, Issued November 19, 2015 (Docket No. 14-001823-AE).

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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

Sherwood v Michigan Bell Telephone Co – 10.90

Sherwood v Michigan Bell Telephone Co
Digest no. 10.90

Section 29(1)(a)

Cite as: Sherwood v Michigan Bell Tel Co, unpublished opinion of the Wayne Circuit Court, issued October 28, 1999 (Docket No. 99-914657AE).

Appeal pending: No
Claimant: Thomas Sherwood
Employer: Michigan Bell Telephone Company
Docket no.: B98-07068-149398
Date of decision: October 28, 1999

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CIRCUIT COURT HOLDING: Claimant left employment voluntarily without good cause attributable to employer because he did not apply for a leave of absence even after he received a letter from the employer warning him his employment was about to be terminated. Turning in doctor’s notes was not sufficient action to maintain employment.

FACTS: Claimant was injured on the job and was off on a medical LOA from August 1997 to January, 1998, at which time he was assigned to The Toledo office, a 50 mile commute one-way. Claimant was suffering back pain associated with the injury. He provided the employer with doctor’s notes limiting his driving distance and time because driving aggravated his back pain. After failing to report to work for several days, the claimant was terminated. He had not applied for a medical leave of absence. Employer had sent the claimant a warning letter (of impending termination) but the claimant ignored it.

DECISION: The claimant is disqualified for voluntary leaving. Circuit court affirmed Board of Review in its reversal of the Referee decision, albeit for different reasons.

RATIONALE: Claimant initiated his separation by failing to report to work and failing to apply for a medical leave of absence to cover his absences. Claimant had valid medical restrictions but failed to demonstrate that they prevented him from reporting to work.

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

Rice v International Health Care Management, Inc – 4.28

Rice v International Health Care Management, Inc
Digest no. 4.28

Section 48

Cite as: Rice v Int’l Health Care Mgt, Inc, unpublished opinion of the Monroe Circuit Court, issued December 30, 1996 (Docket No. 95-3309-AE).

Appeal pending: No
Claimant: Gail Rice
Employer: International Health Care Management, Inc.
Docket no.: B93-06823-R01-128754W
Date of decision: December 30, 1996

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CIRCUIT COURT HOLDING: Where claimant was given choice between a leave of absence and termination after she notified employer of her pregnancy, she did not voluntarily request the leave of absence and was, therefore, unemployed and eligible for benefits under Section 48.

FACTS: Claimant worked for employer as housekeeper, nurse aide, laundress beginning in 1986. Claimant notified employer that she was pregnant and had some medical restrictions. Claimant requested work within her restrictions or light duty work. Employer refused and offered claimant a “voluntary” leave of absence as alternative to termination. Claimant testified her leave was not voluntary, i.e. was not requested by her.

DECISION: Claimant is not ineligible for benefits under Section 48(3).

RATIONALE: Neither the Agency, the Referee, nor the Board of Review addressed the issue of voluntariness. Claimant’s unrebutted sworn testimony was that she accepted a so-called voluntary leave of absence to avoid termination. The record does not support the conclusion that the claimant voluntarily requested a leave of absence. Therefore, the conclusion that she was ineligible for benefits under Section 48(3) was erroneous as a matter of law.

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

Urban (State of Michigan) – 4.19

Urban (State of Michigan)
Digest no. 4.19

Section 48

Cite as: Urban v Secretary of State, unpublished opinion of the Michigan Employment Security Board of Review, issued August 1, 1986  (Docket No. B85 13293 102223W).

Appeal pending: No
Claimant: Pamela A. Urban
Employer: Secretary of State (State of Michigan)
Docket no.: B85 13293 102223W
Date of decision: August 1, 1986

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BOARD OF REVIEW HOLDING: A “waived rights leave of absence” is not a leave of absence within the meaning of Section 48 of the MES Act.

FACTS: The claimant was a member of the Michigan State Employees Association. The contract executed between that organization and the State of Michigan provided for various types of leaves of absences. Article 16, Section D of that agreement provides that an employee may request a “waived rights leave of absence” of up to one year in those situations when an employee must leave his or her position for reasons beyond his or her control and for which a regular leave of absence is not granted. Employees requesting and granted a “waived rights leave of absence” do not have the right to return to state service at the end of the leave but will have the continuous nature of their service protected provided they return to work prior to the expiration of such leave.

In the instant matter the claimant sought and secured a “waived rights leave of absence”. While on the “waived rights leave of absence” the claimant filed for unemployment benefits. The employer asserted the claimant was ineligible under Section 48(3) of the MES Act which reads “An individual shall not be deemed to be unemployed during any leave of absence from work granted by an employer either at the request of the individual or pursuant to an agreement with the individual’s duly authorized bargaining agent, or in accordance with law.”

DECISION: The claimant is not ineligible for benefits.

RATIONALE: In American Telephone and Telegraph Company v MESC, 376 Mich 271 (1965) the Michigan Supreme Court held that a leave of absence meant a temporary authorized release from one’s duties for a stated period with the right or duty to return at the end of the period. The claimant in this matter had no right to return at the end of the period at issue. Therefore the Board found the claimant was not on a leave of absence as defined in American Telephone and Telegraph and consequently was not ineligible under Section 48(3).

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

Ackerberg v Grant Community Hospital – 10.11

Ackerberg v Grant Community Hospital
Digest no. 10.11

Section 29(1)(a)

Cite as: Ackerberg v Grant Community Hosp, 138 Mich App 295 (1984).

Appeal pending: No
Claimant: Karla Ackerberg
Employer: Grant Community Hospital
Docket no.: B81 07538 78982
Date of decision: October 15, 1984

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COURT OF APPEALS HOLDING: The employer must show that the claimant falls within the expressed terms of one of the disqualifications stated in the unemployment act.

FACTS: Plaintiff submitted a leave of absence form requesting an unpaid, personal leave beginning March 27, 1981, and extending for one and one-half years. The employer countered with an offer to give plaintiff a 30-day leave of absence. Plaintiff refused a 30-day leave and believed she was rightfully allowed the leave she requested. Plaintiff informed the employer she intended to begin her leave as requested by her with or without approval. The employer terminated plaintiff’s unemployment immediately.

DECISION: Claimant is not disqualified for voluntary leaving.

RATIONALE: Relying on Thomas v Employment Security Comm, 356 Mich 665 (1959) and Copper Range Co v UCC, 320 Mich 460 (1948), the court declined to find a constructive voluntary leaving when the claimant was actually discharged by the employer. Because the employer discharged the claimant on March 23, we can only speculate as to what the claimant would have done on March 27. The Act does not permit disqualification on the basis of speculation as to what an individual would have done if he or she had not been discharged.

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

Golden v Huron Valley Schools – 4.23

Golden v Huron Valley Schools
Digest no. 4.23

Section 48

Cite as: Golden v Huron Valley Schools, unpublished opinion of the Oakland Circuit Court, issued April 25, 1984 (Docket No. 83-258818-AE).

Appeal pending: No
Claimant: William P. Golden
Employer: Huron Valley Schools
Docket no.: B82 03503 R01 85873W
Date of decision: April 25, 1984

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CIRCUIT COURT HOLDING: A claimant is considered an employed person under Section 48 of the Act when a claimant’s request for a leave of absence in lieu of being fired is granted even if the leave is for an indefinite period and with no guarantee of re-employment.

FACTS: Claimant worked for the employer from September, 1954 until June, 1980. In August, 1980 he was charged criminally with embezzlement and commingling of funds. He was suspended with pay from August, 1980 until August, 1981. In June, 1981 he was convicted of the charged felonies. A hearing was scheduled to discharge claimant, however, the claimant and the employer reached a settlement. It was agreed claimant would request a leave of absence and the employer would grant the leave of absence until all his appeal rights were exhausted. Claimant began a leave of absence August 3, 1981 which continued through the date of the Referee hearing on March 22, 1982.

DECISION: Claimant was employed under Section 48 on August 3, 1981 and thereafter while on an approved leave of absence and was therefore ineligible for benefits.

RATIONALE: “The phrase ‘leave of absence’ is not defined in the statute. Appellant’s suggested strict limitation of its meaning to only those leaves of absence where the employee has an ‘absolute right’ to return to work apparently arises from his understanding of American T. & T. Co. v Employment Security Commission, 376 Mich 271 (1965), and a now repealed provision of the Act, former Section 29(1)(d) … A plain reading of the statute does not justify such a limited definition.

Appellant’s reliance on American T.&.T. Co. v Employment Security Commission, supra, is misplaced. This Michigan Supreme Court decision was controlled by a now repealed section of the Act providing for pregnancy leaves. Even assuming the provision was presently in effect, its definition of ‘leave of absence’ is clearly confined to pregnancy leaves.”

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

Buczek v Meijer Thrifty Acres – 7.22

Buczek v Meijer Thrifty Acres
Digest no. 7.22

Section 28 (1)(c)

Cite as: Buczek v Meijer Thrifty Acres, No. 79 928 311 AE, unpublished opinion of the Wayne Circuit Court (December 21, 1979).

Appeal pending: No
Claimant: Catherine Buczek
Employer: Meijer Thrifty Acres
Docket no.: B76 19230 55251
Date of decision: December 21, 1979

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CIRCUIT COURT HOLDING: Where a pregnant woman is medically restricted from heavy lifting, and only one of her several assignments is affected, but the employer unilaterally places the claimant on leave, the claimant is unemployed and available for work.

FACTS: The claimant did not request maternity leave, but did submit a doctor’s note restricting her from heavy lifting during her pregnancy. Only one of the claimant’s several assignments required heavy lifting. The employer put the claimant on leave unilaterally.

DECISION: The claimant was unemployed and available for work during the unilateral leave.

RATIONALE: “[W]here an employer decides to place an employee on a maternity leave of absence for a reason other than one contained in MCLA 421.48, the employee, though on an employer imposed leave of absence, is not on a Section 48 leave of absence for purposes of determining her employment status under the Act.”

“She was available for suitable work for which she was qualified except for the heavy lifting limitation. This limitation affected only a portion of one job duty, i.e., lifting groceries into the shopping cart, and neither would have detracted from her ability to perform her other job duties at Meijer nor the office work she was qualified to perform by past experience or training as these jobs did not require heavy lifting within the doctor’s restriction.”

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