AD No. B91-3452-R01-121313W s.s. No.~~ B . 0 . No . 04--- -- -

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE

CHRISTOPHER A. LEE,

Appellant,

v

BERMEX, INC. and MICHIGAN EMPLOYMENT SECURITY COMMISSION,

Appellee(s). __________________________ / SANFORD A. SCHULMAN (P43230) Attorney for Appellant

BRUCE M. BAGDADY (P40476) Attorney for Appelle Bermex, Inc.

FRANK J. KELLEY, Attorney General of the State of Michigan By: MARK F. DAVIDSON (P31937)

Assistant Attorney General Attorneys for MESC _________________________________ /

HON. SUSAN BIEKE NEILSON

Case No. 93-324459 AE

OPINION AND JUDGMENT ENTERED ON JANUARY 27, 1994

M.E.S. BnJH:~n f""\1'"' l"'l~ ~~~ "lj - ,,~;,- .'"'"1 !.:. "t:l ~Y''

FEB 11 ·•gg Fil.f::f..J I . 4 ~ I A. DOUGlAS DAUr::G~A ' ._ ntq ~ t .. :: • -ECT0:-1

... ~ -­-- -- .. -

~ ... -~ .. . : .'" - - ';_ ---= =--- ...

STATE' OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE

CHRISTOPHER A. LEE,

Appellant,

vs.

BERMEX, INC. and MICHIGAN EMPLOYMENT SECURITY COMMISSI(IN I

Appellees. _______________________________ !

SANFORD A. SCHULMAN (P43230) 5ll East Larned St. Detroit, MI 48226 (3l3) 963-4740 Attorney for Appellant

MARK F. DAVIDSON (P31937) Assistant Att'y General 73l0 Woodward Ave. Detroit, MI 48202 (313) 876-5550 Att'y for Appellee MESC

Case No: 93-324459 AE

HON . SUSAN BIEKE NEILSON

BRUCE M. BAGDADY (P40476) 440 E. Congress, 5th Floor Detroit, MI 48226 (313) 965-7610 Att'y for Appellee Bermex

----------------------------------------------------------------------------------/ OPINION AND JUDGMENT

I. INTRODUCTION

Mr . Lee disputes the decisions of the MESC Referee and Board cf Review, pt'rsuant to which l1e is considered. disqualified for unemployment by reason of having voluntarily left employment without good cause attributabl~ to the employer (i.e., Lee failed to secure transportation, a · job requirement, even though the employer gave him several months during which to do so).

II. FACTUAL BACKGROUND

Bermex, Inc. (Appellee. Employer, hereinafter "Bermex") provides meter-reading services on contract to various utility companies, employing numerous individuals in this regard. At all times relevant to this dispute, Mr. Dennis McAdoo ("McAdoo") supervised Bermex meter-readers employed throughout the Detroit area.

1

~ ': - : - .. • - - ~· <"'-• .: ' ::: - ... --._· ·- ~

On May 1, 1990, Bermex hire.d Mr. Christopher Lee (Appellant·, hereinafter "Lee") on a full-time basis to read meters for Detroit Edison customers. Applicants for · this job were required, among other things, to have a vehicle (Tr. 11) 1

; although meter readers generally walk their routes throughout the 6-7 hour . shift once they get to the target neighborhood, the vehicle requirement was in place primarily ~or the workers' protection from the elements in the wintertime (Tr. 27). Lee had a registered vehicle when he was hired. Though Lee testified that he "can't recall" what he was told about the vehicle requirement at that time (Tr. 16), he does recall that he had to show his registration and proof of insurance in the hiring process (Tr. 26).

A few months after he was hired, Lee was involved in an auto accident tha\: "totalled" his car, on \vhich he still ovwd $2, 2 o·o. 00 (Tr. 25-2 6) . For several months thereafter (including winter months), Lee took a bus to work or caught rides in with fellow employees; once there, McAdoo assigned Lee "next to a guy" who would drop Lee off on his route, which Lee completed on foot, returning to Bermex with a fellow employee or via the bus (Tr. 7-8) . Thus, Lee was able to perform h i s duties even without a vehicle (Tr. 7, 11, 13, 28).

McAdoo and Lee functioned as described above for approximately 7 months . . McAdoo was willing to give Lee special consideration in assigning routes for a period of time in order to provide Lee, who "could be a good worker" but for the lack of a car, the opportunity to get a car (Tr. 28) . Lee himself testified that McAdoo gave him "a lot of time" to acquire a vehicle (Tr. 23, 25 ) . However, McAdoo "instructed" Lee that he had to have a car because McAdoo could not keep making ·special arrangements to accomodate Lee ' 's lack of transportation (Tr. 8, 12, 28-29).

Towards the end of Lee's employment with Bermex, Lee requested an advance pay-out on his vacation time for the purpose, understood by both Lee and McAdoo, of purchasing a car (Tr. 8, 19). · This request was approved and Lee received a check for $300.00, with which he attempted to buy a car (which needed "substantial amounts of work") at public auction (Tr. 19) . This amount was insufficient to pay for that particular vehicle, however, and Lee was unable to obtain financing. Id. Lee then considered buying a used car from a fellow employee, but decid~~ against it because the vehicle; which was not running and would ·have required "excessive amount [ s]" of time and work to repair, "was not worth. what . . . they wanted"

·-· · ... (Tr .. .. 20). Lee, who was . (and is) still paying on his totalled automobile (Tr. 2 6) and had · "o.ther· bills" · (Tr. ·19) , · never did acquire another car during hi~ employment with Bermex.

1"Tr." followed by a number denotes pages from the certified transcript of the Referee Heari~g held in this matter.

2

.J. ••

..... - .. :-:.,._r:-

..; - .... ·: .. ---·.·- .. -.::. ;:-~· ,-~ ·- ~ ··.::·: '-i .:.. :~~-·: =;~-~ ,;~ -~-~- .. : _.:- -:;.-::-:·. -

on July 5, 1991, Lee woke up late for work, called the office and was told not . to report for work that day (a "mandatory work" Saturday) , but to come in the following Monday. Lee did so, whereupon McAdoo informed him that he had been dismissed {Tr. 17). When Lee asked why he was being dismissed, McAdoo told him to take that up with Mr. Ray Doogan, who told · Lee that· i f he "was to purchase another car, I would be able to come back." (Tr. 17-18).

The facts as set forth above are not disputed by the parties. Indeed, the only issue of fact about which there is any dispute has to do with the reason for Lee's dismissal. Specifically, the parties dispute, or at l east are unclear about, the extent to which Lee's lack of a vehi cle resulted in absenteeism from work, if at all, and whether absenteeism was a factor contributing to Lee's dismissa:L.

In this regard, McAdoo initially testified that Lee began to miss days from work due to his lack of transportation2 (Tr. 8), that he was warned about excessive absenteeism (Tr. 14), and that Lee was ultimately terminated both because he did not have a car AND because of excessive absenteeism related to same (Tr. 9). McAdoo did not bring Lee 1 s attendance records to the Referee Hearing, however, and did not recall the dates upon which warnings regarding absenteeism were issued to Lee (Tr. 10 1 14) . Under cross examination at the Hearing, McAdoo appeared to retreat to the position that Lee 1 s dismissal was solely due to his lack of transportation (Tr. 10, 12, 30). McAdoo testified that, when he terminated Lee, he informed Lee that he was "going to separate him for not having a car." (Tr. 9). Lee, on the other hand, testified that McAdoo ascribed his termination to Lee's being absent from work on July 53 , whereas Doogan told him that he could return to work once he had a car (Tr. 21-22). On the question of absenteeism in general, Lee first testified that he could not recall how many times he was tardy due to the lack of a vehicle (Tr. 16). Later he stated that not having a vehicle never precluded him from getting to work (Tr. 20).

2According to McAdoo, . Lee told him that his absenteeism was caused by the lack of a car . (Tr. 9, 11) . Lee did not dispute making such a statement to McAdoo; neither did he confirm it.

3Earlier, however, Lee had testified that McAdoo did not tell him why he was being dismissed, but referred him to Ray Doogan (Tr. 17) .

3

: ,·-- ·~ - - .. ·-_ .. _· ---: ~._ -.. - -_ ~ ... ~ ... .. -~. .· .-

In any event, Lee was terminated on or about July 5, 19914 •

Lee's subsequent efforts to obtain unemployment benefits are set forth below.

III. PROCEDURAL BACKGROUND

Lee submitted his application for unemployment benefits on July 24, 1991, indicating that he had been discharged because he did not have a car for work and because of attendance. Lee also wrote that McAdoo had warned him twice about the condit i ons causing his discharge, but added that "he (McAdoo) did not tell me about being dismiss (sic). 11 MESC then sent to Bermex a Request for Information Relative to Possible Ineligibility or Disqualification, and Request to Employer for Wage and Separation Information, on which forms ·Bermex indicated that: 1) Lee had been discharged because he did not have a car, a basic requirement of h is position; 2) Lee was therefore unable to do the job; and 3) Lee should not be eligible for benefits. On August 27, 1991, MESC issued a Notice of Determination finding Lee disqualified for benefits:

Claimant terminated his employment by failure to maintain personal vehicle, a requirement of employment as a meter reader, claimant must have transportation. Claimant's leaving is voluntary, without good cause attributable to the employer. Claimant is disqualified for voluntary leaving.

Lee filed a protest and MESC issued a Redetermination on September 18, 1991, affirming the original Determination:

The clai mant protested the determination issued 8/27/91 which disqualifies under the misconduct provisions of the MES Act [sic5

]. The claimant was released because he could not furnish transportation which was a ·requirement of the job. Claimant's separation is deemed to have been voluntary, without good cause attributable to the employer.

Lee then filed an appeal for a Referee Hearing, which was held on October 15, 1991. Lee, represented by counsel, gave -testimony, as did Dennis McAdoo. On October 24, 1991, the Referee issued his

40n his application for unemployment benefits, Lee identified July 3 as the last day worked and July 5 as .the date of ·dismissal,

-:-·-· ·although, · accordirig to his "testimony -·a.t -the Referee !fearing, he was not informed of the dismissal . until the Monday following July 5, that is, July 7.

5The Redetermination here misstated the reason given for disqualification in the original Determination, which was for voluntary leaving and not for m~sconduct.

4

When an employee has a specific condition of employment that is required to perform the job and he loses that condition of employment and is released due to his failure to meet the condition which is required for the job, the separation · is considered to be a voluntary leaving and without good cause attributable to the employer and therefor (sic) under disqualifying circumstnaces.

Lee ·appealed to the MESC Board of Review ("the Board") which, on March 19, 1993 1 affirmed the Referee's decision by a vote of two to one . Fro~ that decisi~n, Lee no~ appeals to this Court.

IV . POSITIONS OF THE PARTIES

Bermex and MESC, obviously, take the position that the Board's decision to affirm the Referee was not contrary to law and was based on competent, material and substantial evidence. Appellees therefore request that this Court affirm the decision of the Board.

Lee argues that the decision . of the Board was contrary to law in that Michigan does not recognize the doctrine of constructive voluntary leaving (e.g., where an employee "leaves" employment by virtue of being discharged by· the employer). Lee also argues that, given the fact that he was able to perform his duties even without a vehicle, together with the lack of evidence regarding excessive absenteeism, the decision was unsupported by competent, material and substantial evidence. For these reasons, Lee requests that this court either reverse the decision of the Board or, in the alternative, grant him a rehearing.

V. LAW

A. Scope of Review

In reviewing the decision of the Michigan Employment Security Board of Review, this Court has a limited scope of review:

The circuit court . . . may reverse an order or decision [of the board] only if it finds that the order or decision is contrary tci law or is not supported by competent, material, and substantial· evidence on the whole record. MCL 421.38(1}.

"Substantial evidence" has been defined as · evidence that a reasoning mind would find sufficient to support a conclusion; more than a mere scintilla but less than a preponderance. Russo v Department of Licensing and Regulation, 119 Mich App 624, 631 (1982). A reviewing court may not substitute its judgment for that

5

-- .... . :. ':"'

of the administrative decisionmakers, particularly where substantial evidence exists in support of both sides and the agency was required to make a judgment assigning credibility. smith v MESC, 410 Mich 231, 261 (1981); Saber v Capitol Reproductions, Inc, 28 Mich App 462, 464 (19 70) . It is not the role of the circuit courts to rubber stamp agency decisions; however, it .is the duty of the circuit court to affirm s~ch decisions to the extent that they are rationally based and not contrary to law. Peaden v MESC, 355 Mich 613, 629 (1959); Diepenhorst v General Elec Co, 29 Mich App 651 (1971).

B. Voluntary Leaving /Good Cause Attributable to Employer

Appellant was disqualified under the following provisioh of the Michlgan Employment Security Act:

(1) An individual shall be disqualified for benefits in the following cases in w~ich the individual:

(a) Left work voluntari ly without good cause attributable to the employer or employing unit ....

MCL 4 21. 2 9 ( 1) (a) .

The question whether an employee left 11 Voluntarily" is a question of law. Clarke v North Detroit Gen Hosp , 179 Mich App 511, 515 (1989). An employee who resigns or quits is considered to have left work "voluntarily , .. and may therefore be disqualified for benefits, only when he/she chooses to leave in the face of alternatives that an ordinary person would find reasonable. Laya v Cebar Construe Co, 101 Mich App 26 (1980) (an employee who resigns or quits when circumstances are such that hejshe has no real choice will not be said to have 11 voluntarily" left employment and may not be denied benefits) . Discharged employees, on the other hand, are generally not considered to have left employment "voluntarily" under Michigan law, and therefore generally qualify for benefits. See, ~·, Stephen's Nu-Ad, Inc v Green, 168 Mich App 219, 224 (1988) (Michigan courts have repeatedly rojecte.d th~ doctrine of "constructive voluntary leaving," i.e. , those cases in which a claimant is actually discharged· by an employer). However, where the employee, through hisjher own actions, fails to satisfy a condition of employment and is subsequently discharged, the employee is considered to have left work "voluntarily" for purposes of theMES Act, and may be disqualified for benefits. See,~., City of Saginaw v Lindquist, 139 Mich App 515 (1984) and Echols v MESC, 4 Mich App 173 (1966), aff'd 380 Mich 87 (1968).

Whether a claimant left employment with or without "good cause attributable to the employer" is 'to be determined by application of the "reasonable person" standard. In Carswell v Share House, Inc, 151 Mich App 392, 396-97 (1986) the Court stated:

6

•· ·- .... ~ ­.. .. .,._.

_. -~ .· . !.:._ . .. · -- ~-

.... ··­. --~ -- . . - ·· ·-· . - - - .

We find that the "reasonable man" standard properly effectuates the legislative intention behind MCL 421.29(1)(1). Under that standard, "good cause" (attributable to the emp l oyer] compelling an employee to terminate his employment should be found where an employer's actions would cause a reasonable, average, and otherwise qualified worker to give up his or her employment.

VI. ANALYSIS

This Court may reverse the decision of the Board of Review only if one of the following is true: 1) the decision is contrary to law (i.e., Lee did not -leave voluntarily); or 2) the decision was not supported by c ompetent , material and substant·ial evidence on the record. For the reaso"ns set -forth below, the Court finds that neither conditi on of reversal is met under the circumstances of this case . Hence, the Board's decision is affirmed.

Lee essenti~lly argu es that there was "no showing that Mr. Lee voluntarily quit;•, er-go, t h e Board must have found him to be disqualified under tne constructive voluntary leaving doctrine, which has been re jected by Michigan courts and is therefore contrary to law. Lee points to ·clarke v North Detroit General Hosp, 437 Mich 280 (1991), which involved claimants who, like himself, had been discharged for failure to meet a condition of employment and who, like himself, had initially been disqualified for benefits under the "voluntary leaving" provision of the MES Ac~. The Court noted that Michigan has rejected the doctrine of constructive voluntary leaving, and held that the discharged claimants had not left work "voluntarily" and were not ineligible for benefits. Clarke, supra_ at 282, 288. Lee argues that Clarke is analogous to his case, and that a similar result should obtain :

Similarly, in the case at bar, the appellant did not voluntarily quit by failing to meet a requirement of employment which was not required at the time he began employment and. did not _ effect (sic) his ability to perform. Appellant's Brief at 11.

A review of Clarke reveals significant distinctions between that case and the case that is presently before the Court, however. The claimants in Clarke were graduate nurses who had failed the state licensing examination , the · successful completion of which was required as a condition of continued employment at their respective hospitals. In holding that the discharg~d nurses had not left voluntarily and were entitled tq unemployment, the supreme court found it significant that: ·

there are no allegations of misconduct, negligence, or illegal acts there is no evidence in the .record that

7

-: -.··~

either (nurse was] negligent in preparing for or taking the examination. Id. at 2886

Like the nurses in Clarke, Lee was discharged for failure to satisfy a condition of employment. There the similarity ends. The Clarke claimants did what they could to meet their particular condition of employmenti failing the examination was clearly not the result of a freely chosen or wilful action on their part, nor did it result ·from any negligence in making necessary preparations. Lee, on the other hand, made no effort to meet his condition of employment (that is, to secure p~rsonal transportation) from the time his first car was totalled until approximately 7 months later. At the eleventh hour, Lee entered the car-buying market with only $3 00 . 00 advance 'vacation pay, furnished by the employer specifically so 'that Lee could obtain a car and ' thus continue his employment . . Lee did not buy a vehicle, however, although he did look at two cars (both in noD-drivable condition , one costing more than Lee had and the second not "worth what they wanted."). To summarize, Lee failed to meet his particular condition of employment, and made no ti~ely efforts to do so, even though his employer gave him 7 months t o find a car, made special scheduling accomodations for h im during that time, and even advanced funds towards the purchase of a car . Under these circumstances, Lee's failure to obtain a car, unlike the· failure of the nurses in Clarke to pass their examination, appears to the Court to have resulted from Lee's own negligence. stated another way, Lee 's discharge resulted from his decision not to do anything about his situation for a lengthy period of time. As such,. even though Lee was eventually discharged, his leaving could reasonably · be characterized as volitional, freely chosen and wilful - in short, voluntary. Thus, Clarke does not support Lee's argument that the decision of the Board is contrary to law.

The Court finds the reasoning of Echols v MESC, 4 Mich App 173 (1966) , aff'd 380 Mich 87 {1968) to be applicable to the case at bar. The claimant in Echols was a taxi driver who had stopped reporting to work after his license was revoked due to the accumulation af ex-:::essive points. The Eoc.rd of RevieJ;·J found that Echols was disqualified under the voluntary leaving provisions:

The employer at all times would have retained the claimant if he had been able to drive a taxi. We believe that the claimant's separati on in this matter was caused solely by his loss of certain prerequisites which were necessary f or his continued employment ~ At the time the

6The Court of Appeals, which also found that the nurses had not left voluntarily, noted the lack of any evidence that "failirig the examination was the result of an unrestrained, volitiona l, freely chosen, or wilful action on their part." Cl arke v North Detroit Hasp., 179 Mich App 511, 516 {1989).

8

- - ~.

· f'· ·· - . . + --. :-· ,..~·.:.:: .. :: _-:.~o-:-:. . . . - . ·. .: _.. ·- - . ·. .. - •.: ~ ~ . --...

claimant entered into a contract of hire ... a condition precedent was imposed that the claimant must at all times have a license .... The appeal board has ruled on several occasions that the loss of a claimant's prerequisites for continued employment, especially through his own negligence, is a voluntary leaving without ' good cause attributable to the employer. Id. at 175-176 (emphasis added) .

The circuit court affirmed, noting simply that t h e Board's decision was not contrary to law or fact. Id. at 176. The Court of Appeals also affirmed:

In the . instant case, the defendant was out of work, not because he was physically detained against )lis · will, or because he carelessly missed his ship, but because he, by his own actions, had lost a prerequisite for his employment. . . . Id. at 177-178.

Finally, the Supreme Court affirmed, quoting from the decision of the Board :

'In the instant matter, the claimant lost his operator's license through no fault of . the employer and it is our opinion that his leaving was ·not constructive but purely a voluntary leaving and he should be disqualified. 1

Echols v MESC, 380 Mich 87, 93 (1968).

Likewise, when a municipal employee was discharged for failing to maintain residency, as required by the city's administrative code, she was found to be disqualified for benefits because her actions constituted a voluntary leaving. City of Saginaw v Lindquist, 139 Mich App 515 (1984~. The Court stated:

Loss of qualification for employment because of residency is in the control o f the employee and falls within the meaning · of "voluntary . leaving · without good cause attributable to th·= emplbl'.er or employing unit" and i::; not a 11 constructi ve voluntary leaving. 11 Id. at 77 4 (emphasis added).

The claimants in Echols and Lindquist lost the prerequisites for their employment through their own actions, and were denied benefits because they were deemed to have voluntarily left employment. Lee. lost the prerequisite of his employment through his ·own inaction. It was ·certainly within . Lee 's control to· obtain ·· a rep lacement vehicle, or at least to take steps to do so, from the time of the accident that totalled his first car . Instead, Lee chose to do nothing about the situation for a period of months. Under these circumstances, Lee's discharge could very reasonably be characterized as a purely voluntary, not a constructive, leaving.

9

. . - . ... .

The Court notes Lee's argument that he was able to do his job on foot (and did so for quite some time), so that owning a car was not actually necessary to the performance of his duties. No doubt the claimant in the Lindquist case performed her duties capably as well, even though she did not live, as required, within city limits. The point is that the employers in both ·c·ases had, for reasons of their own, imposed certain conditions on emplo~ent, that the employees were aware of these requirements at hire , and that the employees freely chose to disregard them.

The court also riotes Lee's argument that his alleged absenteeism resulting from the · lack of a vehicle was not established by means of docuentary evidence . How_ever, both ·Lee and McAdoo were questioned and cross-examined in this regard at the Hearing before Referee Gvadza, who thus ·i1ad the opt-Jortunit:y to speak _with, listen to and observe the witnesses, and who found McAdoo to be more credible on this issue. This Court will not substitute its judgment for that of the Referee, particularly where that individual made an assessment based on credibility. Smith v MESC, 410 Mich 231, 261 (1981).

VII. CONCLUSION

Having reviewed the law and · the record of administrative proceedings, including the testimony of the parties, the Court is unable to conclude that the Board ~f Review reached a decision that is contrary to law andjor unsupported by sufficient evidence. The decision of the Board is therefore affirmed.

1JAN 2 7 1994 Date: , 1994

SUSAN BIEJ<E NEILSON

Susan Bieke Neilson Wayne County Third Circuit Judge

- -~ . 7Lee· never ·testified· that ·he was ' not ·told about ·the requirement of a car when Bermex hired him, only that he did not recall what he was told in this regard. Lee did remember being asked to show his driver's license and proof of insurance, however, and it is difficult to believe that he was completely unaware that Bermex expected its meter readers to provide their own transportation to and from their routes.

10

. . . - . -· -·- ... . _