                            STATE OF MICHIGAN

                            COURT OF APPEALS



CATHY A. MARTIN,                                                    UNPUBLISHED
                                                                    December 23, 2014
               Claimant-Appellant ,

v                                                                   No. 316393
                                                                    Kent Circuit Court
E. C. BROOKS CORRECTIONAL FACILITY,                                 LC No. 2012-009837-AE
and DEPARTMENT OF LICENSING &
REGULATORY AFFAIRS/UNEMPLOYMENT
INSURANCE AGENCY,

               Appellees.



Before: M. J. KELLY, P.J., and BECKERING and SHAPIRO, JJ.

PER CURIAM.

       Claimant, Cathy A. Martin, appeals by delayed leave granted the circuit court’s order
affirming a decision by the Michigan Compensation Appellate Commission (MCAC), which
denied her unemployment benefits. We affirm.

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

        Claimant worked full-time at the E. C. Brooks Correctional Facility (“E. C. Brooks”) as a
corrections officer from approximately 2008 until March 2011. Because of uncertainty—
discussed in detail below—regarding her job status, claimant began searching for new
employment in February 2011, and eventually found a position as a corrections officer in
Georgia. In March 2011, claimant resigned from her position at E. C. Brooks. For reasons that
are unclear from the record, claimant’s employment opportunity in Georgia did not come to
fruition. Thereafter, she applied for unemployment benefits in Michigan.

       In May 2011, the Unemployment Insurance Agency determined that claimant was
disqualified from receiving unemployment benefits pursuant to MCL 421.29(1)(a) because she
voluntarily left her employment without good cause attributable to her employer. Claimant
appealed that determination. The matter proceeded to a hearing before a hearing referee in June
2011. At the hearing, claimant testified that in February 2010, she heard rumors from her
supervisors that another correctional facility in Muskegon might close, and that this closure
could have an effect on her facility, but explained she was told not to worry about it. In February
2011, claimant’s supervisors informed her that there was going to be a layoff and that another
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correctional facility in Muskegon would close by June 1, 2011. Claimant believed that the
situation in February 2011 was different than the situation in February 2010 because her
supervisors told her that she should worry about the February 2011 situation, explaining, “we
kept hearing from our lieutenants and stuff that we were going to get laid off . . . .” Claimant
understood that because another facility in the area was closing, senior employees from that
facility would replace less senior employees, including herself, at E. C. Brooks. She explained
that her superiors told her that, because of her lack of seniority, if and/or when the other facility
closed, “you will get bumped[.]” According to claimant, her union was going to “see who was
going to get bumped out, who’s going to get transferred, what they can do, and who’s going to
take the layoff.” Claimant was stressed because she “didn’t know if [she was] going to be
bumped off, transferred, or laid off,” so she began looking for other work. She did not consider
transfers, because she was told by her superiors that there was a “freeze” on transfers, pending
the closure of the other facility. She also did not consider voicing her concerns with the human
resources department, explaining that speaking with the human resources department would be
disrespectful and “going over the[] head[s]” of her superiors. Claimant testified that it was
“normal” to receive such information from her superiors, rather than from human resources. She
testified that she trusted her superiors, but admitted, “I didn’t know really what was going on. It
confused me.”

       During her testimony, claimant spoke of a layoff, transfers, and being “bumped” from
employment by more senior employees from another facility. When asked if being “bumped”
was the same as being laid off, claimant responded, “I have no idea, ma’am. I really don’t.”

         Rebecca Wright, the human resources officer for E.C. Brooks and other Muskegon area
facilities, testified that a Muskegon correctional facility—not the one at which claimant
worked—closed in June 2011. Wright testified that supervisors do not have authority to give
official notice of facility closings. Official notice only came from human resources, which
would notify employees in a letter regarding whether they were being laid off or “bumped.”
According to Wright, a “bump” is where a more senior employee at one facility “bumps” a less
senior employee at a different facility out of his job and the more senior employee takes the less
senior employee’s place at that location. Then, a bumped employee has two weeks to decide
whether to accept an offer to transfer to a different facility. Wright said that there was room
throughout the state for everyone from E.C. Brooks, including claimant, to transfer to a different
location after being bumped out of E.C. Brooks.

       Wright testified that if claimant had approached her before she resigned, Wright could
have told her that there were enough transfer vacancies available so that no one at E. C. Brooks
would be laid off. According to Wright, ever since 2009, E.C. Brooks’ internal newsletter
warned employees of a possible closure, “but whether or not it would truly happen, we were
never really sure until the day they came down with notices.” On May 25, 2011, after claimant
resigned, the human resources department provided each E.C. Brooks employee with written
notice of how upcoming transfers would work, and that notice was the first official notice that
employees would be transferred.

         On June 30, 2011, the hearing referee found that, because of the layoff rumors, claimant
established good cause for leaving work that was attributable to her employer. The hearing
referee so found because it determined that leaving in order to avoid a layoff amounted to

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leaving for good cause attributable to the employer. The hearing referee concluded that claimant
acted as a reasonable person would have under the circumstances in response to the rumors and
statements by her supervisors.

        E. C. Brooks appealed the hearing referee’s decision to the MCAC, and on May 29, 2012,
the MCAC reversed the hearing referee’s decision. The MCAC concluded that it was undisputed
that claimant left E. C. Brooks voluntarily; thus, it found that the dispositive issue was whether
claimant left for good cause attributable to her employer. Noting Wright’s testimony that a
bump was not the same as a layoff, the MCAC found that claimant did not leave her employer in
anticipation of a layoff; rather, she left in anticipation of a bump, which was essentially a
transfer. The MCAC concluded that claimant’s decision to leave was premature and not for
good cause attributable to her employer. It found that claimant acted on “rumors” from her
superiors regarding facility closures, and that such action did not amount to good cause
attributable to her employer.

        Thereafter, claimant appealed the MCAC’s decision to the circuit court. After hearing
oral argument, the circuit court affirmed the MCAC’s decision. The circuit court found
significant claimant’s lack of understanding as to whether being bumped was the same as being
laid off. It also found that the information claimant received from her supervisors regarding the
closure and bumps or layoffs was uncertain. Thus, it found that the record supported the
MCAC’s finding that claimant resigned in response to “rumors.” Further, the circuit court found
that the MCAC’s decision was not contrary to law, as it found that the MCAC correctly applied
the reasonable person and “good cause” standards to claimant’s case.

                                        II. DISCUSSION

       “When reviewing a circuit court’s review of an agency’s decision, we must determine
whether the circuit court applied correct legal principles and whether it misapprehended or
grossly misapplied the substantial-evidence test to the agency’s factual findings.” Logan v
Manpower of Lansing, Inc, 304 Mich App 550, 554; 847 NW2d 679 (2014). “This latter
standard is indistinguishable from the clearly erroneous standard of review that has been widely
adopted in Michigan jurisprudence. . . . [A] finding is clearly erroneous when, on review of the
whole record, this Court is left with the definite and firm conviction that a mistake has been
made.” Id. at 555 (citation and quotation omitted).

       Regarding the circuit court’s review of an agency’s decision:

       A circuit court’s review of an administrative agency’s decision is limited to
       determining whether the decision was contrary to law, was supported by
       competent, material, and substantial evidence on the whole record, was arbitrary
       or capricious, was clearly an abuse of discretion, or was otherwise affected by a
       substantial and material error of law. [Dignan v Michigan Pub Sch Employees
       Retirement Bd, 253 Mich App 571, 576; 659 NW2d 629 (2002).]

Substantial evidence “is evidence that a reasonable person would accept as sufficient to support a
conclusion.” Logan, 304 Mich App at 557 (citation and quotation omitted). “While this requires
more than a scintilla of evidence, it may be substantially less than a preponderance.” Id. (citation

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and quotation omitted). In addition, “it is not a reviewing court’s function to resolve conflicts in
the evidence or to pass on the credibility of witnesses.” Vanzandt v State Employees Retirement
Sys, 266 Mich App 579, 593; 701 NW2d 214 (2005). Finally, a reviewing court “may not set
aside findings merely because alternative findings also could have been supported by substantial
evidence on the record.” Edw C Levy Co v Marine City Zoning Bd of Appeals, 293 Mich App
333, 341; 810 NW2d 621 (2011).

        Here, the MCAC found that claimant left work because of rumors about impending
changes, and therefore, claimant was disqualified from receiving unemployment benefits because
she voluntarily left work without good cause attributable to the employer. Under MCL
421.29(1)(a), an individual is disqualified from receiving unemployment benefits if he or she
“[l]eft work voluntarily without good cause attributable to the employer or employing unit.”
Claimant does not dispute that she voluntarily left work. However, she contends that her
decision to leave was for good cause attributable to her employer. “ ‘[G]ood cause’ 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.”
Carswell v Share House, Inc, 151 Mich App 392, 396-397; 390 NW2d 252 (1986). The
“claimant has the burden of proving that her voluntary leaving was justified.” Id. at 397.

        In Carswell, we stated: “[w]e decline to hold, as a matter of law, that a notice of
termination does or does not constitute good cause attributable to the employer. The notice of
termination and events precipitating the termination can constitute ‘good cause’. Each case must
be evaluated on the facts presented.” Id. at 397. Thus, under the reasoning of Carswell, rumors
of a facility closing that could potentially cause layoffs or transfers do not, as a matter of law,
constitute good cause attributable to E. C. Brooks. Id.

        In evaluating good cause attributable to the employer in this case, we also find instructive
our decision in McArthur v Borman’s Inc, 200 Mich App 686; 505 NW2d 32 (1993). In that
case, the employer, a grocery store, negotiated a new union contract, which it had an option to
reduce a portion of its full-time workforce to part-time status in two years. Id. at 688. Half of
the cashiers at the store would remain full-time, and eligibility for full-time employment was
determined by seniority. Id. The claimants in that case, who were cashiers, lacked sufficient
seniority to guarantee full-time status, so they opted to take a buyout and voluntarily left their
employment. Id. We found that the claimants were unable to establish good cause attributable
to the employer under the circumstances, explaining, “[n]either claimant here was told she would
be laid off if she rejected the buyout.” Id. at 693.

        Here, as noted, the MCAC and trial court found that claimant failed to establish good
cause for leaving her employment because she left in response to rumors. Claimant first
challenges the MCAC’s finding that she resigned in response to rumors; she argues that such a
finding was not supported by competent, material, and substantial evidence. She contends that
she resigned in response to statements from her superiors that there was going to be a layoff. We
disagree. In this case, the evidence showed that claimant’s supervisors told her that there was
going to be a layoff, but claimant acknowledged that her union was going to “see who was going
to get bumped out, who’s going to get transferred, what they can do, and who’s going to take the
layoff.” Claimant stated that she did not know if she was going to be bumped out, transferred, or
laid off, so she began looking for other work. She was later informed that, “you will get

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bumped” when the other facility closed, but she did not understand what being bumped meant
and failed to seek information regarding what being bumped meant. Claimant even admitted, “I
didn’t really know what was going on.” Wright testified that being bumped only meant that an
employee would be transferred to another facility and that it did not mean the same thing as a
layoff. Based on this evidence, the circuit court did not misapprehend or grossly misapply the
substantial evidence test to the agency’s factual findings. Claimant’s statements showed her
confusion and lack of understanding pertaining to the situation, and she failed to seek
clarification, which Wright testified was readily available, in order to understand what being
bumped meant. Her statements further acknowledged that she was uncertain as to what was
going to happen to her, and she even stated that it was possible for E. C. Brooks to transfer her in
lieu of firing her. This lack of certainty shows that the MCAC’s finding—that claimant left
because of rumors—was supported by competent, material, and substantial evidence. See
Dignan, 253 Mich App at 576.

        In arguing to the contrary, claimant focuses solely on her testimony wherein she stated
that she was informed by her supervisors that she was going to be laid off. She contends that
such testimony negates any finding that she resigned from her employment because of rumors.
We do not agree. As noted, while claimant heard from a supervisor that she was going to be laid
off, claimant said she was later told by her superiors that she was going to be bumped.
Moreover, the isolated statement regarding layoffs was in conflict with the rest of the evidence
that showed that claimant was unsure of whether she was going to be laid off or bumped. Even
though the isolated portion of the record cited by claimant may have supported claimant’s
argument, we “may not set aside findings merely because alternative findings also could have
been supported by substantial evidence on the record.” Edw C Levy Co, 293 Mich App at 341.

        Next, claimant argues that the circuit court misapplied the correct legal principles,
contending that it erred in applying the reasonable person test from Carswell, 151 Mich App at
396-397, when it found that her decision to voluntarily leave her employment in response to the
above-noted circumstances was without good cause attributable to the employer. We do not
agree with claimant. The circuit court properly noted that, pursuant to MCL 421.29(1)(a), one
who voluntarily leaves work without good cause attributable to his or her employer is
disqualified from receiving unemployment benefits. Moreover, the circuit court properly noted
that a good cause analysis involves a reasonable person analysis taking into account the facts of
the case. Id. And, under the circumstances, i.e., leaving because of rumors and uncertainty,
claimant did not leave for good cause attributable to the employer. See McArthur, 200 Mich
App at 693; Carswell, 151 Mich App at 397. Indeed, this was not a case where claimant left
work in the face of certain layoffs. Rather, there was uncertainty and rumors as to whether
claimant would be laid off or merely bumped, and claimant herself admitted to being confused
with regard to what was going to happen. Further, claimant did not attempt to clarify her status,
nor did she attempt to determine what being bumped meant. There is evidence on the record
that, had she done so, she would have been informed that she was not going to be laid off.
Claimant did not satisfy her burden of demonstrating that a reasonable, average, and otherwise
qualified worker would have left under the same circumstances, i.e., she did not satisfy her
burden of showing that her leaving was justified. Carswell, 151 Mich App at 396-397. The




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circuit court applied the correct legal principles to the MCAC’s findings, which were not
contrary to law. See Logan, 304 Mich App at 554; Dignan, 253 Mich App at 576.1

       Affirmed.

                                                           /s/ Michael J. Kelly
                                                           /s/ Jane M. Beckering
                                                           /s/ Douglas B. Shapiro




1
  In reaching this conclusion, we find unconvincing claimant’s citation to unpublished decisions,
Muns v Glassman Oldsmobile, unpublished opinion per curiam of the Court of Appeals, issued
December 12, 1986 (Docket No. 84721), and Farnsworth v Michigan Masonic Home,
unpublished opinion per curiam of the Court of Appeals, issued January 17, 1992 (Docket No.
130244), because we find the facts of both decisions are distinguishable. Moreover, the
decisions are not binding on this Court. Paris Meadows v Kentwood, 287 Mich App 136, 145 n
3; 783 NW2d 133 (2010). Further, we find unconvincing claimant’s citation to Tomei v Gen
Motors Corp, 194 Mich App 180; 486 NW2d 100 (1992). In that case, the issue we decided was
whether the employee’s decision to leave was voluntary—an issue that is not disputed in the
instant case. Id. at 187-188. We did not decide whether the employee left for good cause
attributable to the employer.


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