                          STATE OF MICHIGAN

                           COURT OF APPEALS



AISHA NICHOLS,                                                     UNPUBLISHED
                                                                   November 19, 2015
              Claimant-Appellant,

v                                                                  No. 322231
                                                                   Wayne Circuit Court
AUTO CLUB SERVICES, INC.,                                          LC No. 14-001823-AE

              Respondent,

and

DEPARTMENT OF TALENT AND ECONOMIC
DEVELOPMENT/UNEMPLOYMENT
INSURANCE AGENCY,

              Respondent-Appellee.1


Before: JANSEN, P.J., and MURPHY and RIORDAN, JJ.

PER CURIAM.

       Claimant, Aisha Nichols, appeals by leave granted2 a circuit court order affirming a
decision by the Michigan Compensation Appellate Commission (“MCAC”), which affirmed the
decision of an administrative law judge (“ALJ”) finding that claimant was properly disqualified
from receiving unemployment benefits. On appeal, claimant argues that the decisions of the
lower tribunals are contrary to law because the tribunals failed to apply, in determining whether
claimant’s absences constituted disqualifying misconduct, the correct standard for absences that
are beyond an employee’s control. Claimant also argues that the circuit court erred in
concluding that the ALJ’s factual findings were supported by competent, material, and



1
  Because respondent Auto Club Services, Inc., is not a party in this appeal, we will refer to
respondent Department of Talent and Economic Development/Unemployment Insurance Agency
as “respondent” in this opinion.
2
 Nichols v Auto Club Servs, Inc, unpublished order of the Court of Appeals, entered October 30,
2014 (Docket No. 322231).


                                               -1-
substantial evidence. We agree that claimant’s disqualification from unemployment benefits was
contrary to law and reverse.

                                I. FACTUAL BACKGROUND

       This case arises from claimant’s application for unemployment benefits following her
discharge from Auto Club Services, Inc. (“ACS”) in March 2013. In October 2012, claimant
was hired as a customer sales and service representative at ACS. ACS had a written no-fault
attendance policy with no written exceptions, and exceptions were “very rare” in practice. ACS
employees received three days off from work every six months, which the employees earned
after working for 90 days as long as they were not “on formal discipline.”

        Between December 3, 2012, and February 25, 2013, claimant received three written
discipline notices, two of which were related to being absent from work or leaving work early.
The absence giving rise to the last discipline notice was illness-related, and claimant sought
medical treatment for her condition.

        On February 28, 2013, claimant’s vision became blurry and she was unable to see while
she was driving to work. This was the second time that she had experienced blurred vision, and
she was concerned that she was “having a thyroid storm.” After she pulled over to the side of the
road, a man assisted her in calling ACS so that she could leave a voicemail message regarding
her absence that day. Claimant testified that she stated in the voicemail that (1) the reason for
her absence was “personal,” (2) she would explain the reason for her absence when she returned,
and (3) she would return to work on March 1, 2013.

        When claimant returned to work on March 1, 2013, she was discharged from ACS for her
absence on February 28, 2013. As she was being discharged, claimant explained to her
supervisor that she had not been feeling well and had been unable to see, but she did not provide
documentation from her doctor confirming this condition. Following her termination, claimant
never gave ACS a doctor’s statement or any other medical documentation regarding the
circumstances of her medical condition on February 28, 2013. It is unclear from claimant’s
testimony at the hearing before the ALJ whether she provided ACS with a statement from her
doctor regarding her medical condition earlier in February 2013, but claimant did testify that she
told her employer that she was not feeling well prior to the time that she was discharged.

        Claimant sought unemployment benefits under the Michigan Employment Security Act
(“MESA”), MCL 421.1 et seq. The State of Michigan Unemployment Bureau disqualified her
from receiving unemployment benefits pursuant to MCL 421.29(1)(b) on the basis that claimant
was terminated for deliberately disregarding her employer’s interest. Claimant subsequently
appealed the agency’s decision to an ALJ, the MCAC, and the Wayne Circuit Court. At the
hearing before the ALJ, the parties stipulated that claimant’s absences were related to an illness
or medical condition, although the parties dispute on appeal whether the ALJ accepted that
stipulation.   Regardless, the tribunals below affirmed claimant’s disqualification from
unemployment benefits.

                                II. STANDARDS OF REVIEW



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       The Michigan Supreme Court recently explained the standard of review applicable to
unemployment benefit claims based on Article 6, § 28 of Michigan’s 1963 Constitution, which
provides the standard of review applicable to a decision of an administrative body; MCL 421.34,
which pertains to an appeal from an ALJ to the MCAC; and MCL 421.38, which also pertains to
an appeal from the MCAC to a circuit court:

       [A] circuit court must affirm a decision of the ALJ and the MCAC if it conforms
       to the law, and if competent, material, and substantial evidence supports it. A
       reviewing court is not at liberty to substitute its own judgment for a decision of
       the MCAC that is supported with substantial evidence. The Court of Appeals
       then reviews a circuit court’s decision to determine whether the lower court
       applied correct legal principles and whether it misapprehended or misapplied the
       substantial evidence test to the agency’s factual findings . . . . [Hodge v US
       Security Assoc, Inc, 497 Mich 189, 193-194; 859 NW2d 683 (2015) (quotation
       marks and footnotes omitted).]

As such, our review of the lower court’s application of the “substantial evidence test”

       is indistinguishable from the clearly erroneous standard of review that has been
       widely adopted in Michigan jurisprudence. As defined in numerous other
       contexts, 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.
       [Logan v Manpower of Lansing, Inc, 304 Mich App 550, 555; 847 NW2d 679
       (2014) (quotation marks and citations omitted).]

Stated differently, “[s]ubstantial evidence is that which a reasonable mind would accept as
adequate to support a decision, being more than a mere scintilla, but less than a preponderance of
the evidence.” Petrelius v Houghton-Portage Twp Sch, 281 Mich App 520, 521; 761 NW2d 395
(2008) (quotation marks and citation omitted).

        Additionally, we “review questions of statutory interpretation de novo. The primary goal
when interpreting a statute is to ascertain and give effect to the Legislature’s intent.” Logan, 304
Mich App at 555 (citations omitted). “If the statutory language is unambiguous, appellate courts
presume that the Legislature intended the plainly expressed meaning, and further judicial
construction is neither required nor permitted.” Petrelius, 281 Mich App at 522. This Court has
recognized that the MESA “generally is to be liberally construed, [but] those provisions
regarding disqualification from benefits are to be construed narrowly.” Korzowski v Pollack
Indus, 213 Mich App 223, 229; 539 NW2d 741 (1995).

                                    III. APPLICABLE LAW

       Pursuant to MCL 421.29(1)(b), an individual is disqualified from receiving benefits
under the MESA if he or she “[w]as suspended or discharged for misconduct connected with the
individual’s work or for intoxication while at work.” “Misconduct” is not statutorily defined, but
the Michigan Supreme Court adopted the following definition of “misconduct” for purposes of
MCL 421.29(1)(b):



                                                -3-
       [“Misconduct”] is limited to conduct evincing such willful or wanton disregard of
       an employer’s interests as is found in deliberate violations or disregard of
       standards of behavior which the employer has the right to expect of his employee,
       or in carelessness or negligence of such degree or recurrence as to manifest equal
       culpability, wrongful intent or evil design, or to show an intentional and
       substantial disregard of the employer’s interests or of the employee’s duties and
       obligations to his employer. On the other hand mere inefficiency, unsatisfactory
       conduct, failure in good performance as the result of inability or incapacity,
       inadvertencies or ordinary negligence in isolated instances, or good faith errors in
       judgment or discretion are not to be deemed [“]misconduct[”] within the meaning
       of the statute.” [Carter v Mich Employment Security Comm, 364 Mich 538, 541;
       111 NW2d 817 (1961) (quotation marks and citation omitted).]

“[W]rongdoings which may justify termination of employment under a[n employment] contract
do not necessarily qualify as ‘misconduct’ for purposes of the [MESA].” Hagenbuch v Plainwell
Paper Co, Inc, 153 Mich App 834, 837-838; 396 NW2d 556 (1986). Similarly, some actions
may constitute statutory “misconduct” even if they do not justify termination under the terms of
a particular employment contract. Id. at 838. As such, a claimant’s behavior must be assessed
objectively, independent from the requirements of his or her employment contract. Id.

      “It is well established that excess absenteeism and tardiness for reasons not beyond the
employee’s control constitutes misconduct under MCL 421.29(1)(b)[.]” Id. at 837; see also
Washington v Amway Grand Plaza, 135 Mich App 652, 658; 354 NW2d 299 (1984) (“An
employee’s failure to report to work on time may in certain circumstances constitute statutory
misconduct.”). However,

       applying the Carter, [364 Mich at 541], definition to the facts of this case,
       claimant’s tardiness or absences cannot support a finding of statutory misconduct
       unless it is determined that they were without good cause, which could include
       personal reasons or other reasons beyond claimant’s control. As a matter of law,
       tardiness or absences resulting from events beyond the employee’s control or
       which are otherwise with good cause cannot be considered conduct in wilful or
       wanton disregard of the employer’s interests. Carter, supra. This interpretation
       is consistent with the Court’s duty to narrowly construe the disqualification
       provisions of the act so as to further the remedial policy of the act, which is, in
       part, to provide benefits to persons unemployed through no fault of their own.
       [Washington, 135 Mich App at 658 (emphasis added).]

        In general, “the employer bears the burden of proving [statutory] misconduct,”
Korzowski, 213 Mich App at 229; see also Washington, 135 Mich App at 658, but the burden
shifts when “the relevant facts are entirely in the hands of the former employee and, for all
practical purposes, cannot be discovered by the employer,” Veterans Thrift Stores, Inc v Krause,
146 Mich App 366, 368; 379 NW2d 495 (1985). “[O]nce the employer raises the issue of
disqualification for misconduct under [MCL 421.]29(1)(b) and submits evidence of a number of
absences which, if unsupported by sufficient reasons, are so excessive as to constitute
misconduct within the contemplation of this section, then the burden is upon the claimant to
provide a legitimate explanation for the absences.” Id.

                                               -4-
                                       IV. APPLICATION

        The question here is whether claimant’s absences constituted a basis for a finding of
statutory misconduct, disqualifying her from receiving unemployment benefits. There is no
dispute that she violated respondent’s no-fault attendance policy and that the violation was the
basis for her termination. But, respondent stipulated at the hearing that the reason for claimant’s
absences was her illness. Thus, the relevant inquiry is whether respondent discharged claimant
for “misconduct” as that term is construed under MCL 421.29(1)(b).

        The ALJ found that claimant’s actions displayed willful disregard of her employer’s
interest and, therefore, constituted misconduct because her attendance “left much to be desired,”
claimant had received warnings related to her attendance issues, and she did not advise her
employer or submit medical evidence in support of her claim that her last absence was due to a
medical condition. The MCAC and the circuit court concluded, and we agree, based on the
record, that these factual findings are not clearly erroneous. The record demonstrates that
claimant was absent from work or left early from work on multiple occasions. The record also
indicates that she received disciplinary write-ups based on her attendance issues. Finally,
although claimant testified at the hearing that she told her ACS supervisor, at the time that she
was being discharged, that she was absent on February 28, 2013, because she was not feeling
well and could not see, the record supports the ALJ’s finding that claimant failed to expressly
advise her employer, or provide medical documentation specifically indicating, that her last
absence was due to a medical condition.3

        However, even if we assume, without deciding, that the ALJ did not accept the parties’
stipulation that all of claimant’s absences were due to a medical condition, there is nothing in the
record contradicting the evidence proffered by claimant that at least two of her absences, i.e.,
those occurring on February 18, 2013, and February 28, 2013 (the absence that precipitated her
discharge), were due to illness or a medical condition. Likewise, the ALJ did not state any
factual findings that discredited claimant’s explanation for her attendance issues. Nevertheless,
the ALJ concluded that respondent’s failure to advise her employer of the reason for her last
absence or submit medical evidence following her last absence, in conjunction with her repeated
absences and warnings, constituted statutory misconduct. Similarly, in affirming the ALJ’s
decision, the circuit court focused on the fact that claimant did not provide an explanation for her
absences when she was discharged and the fact that claimant did not submit documentation from
her doctor concerning her absences until shortly prior to the hearing before the ALJ, reasoning
that the ALJ was permitted to consider the explanation offered by claimant at the hearing and the
content and timing of the doctor’s letter in assessing claimant’s credibility. Accordingly, even if
the ALJ and the circuit court arguably “stated doubt regarding [claimant’s] explanation for her



3
  We conclude that the ALJ’s factual findings were based on substantial evidence because
claimant did not identify a particular medical condition in her conversation with her supervisor
when she was terminated. See Petrelius, 281 Mich App at 521 (“Substantial evidence is that
which a reasonable mind would accept as adequate to support a decision, being more than a mere
scintilla, but less than a preponderance of the evidence.”).


                                                -5-
absences,” as respondent contends on appeal, it is evident that neither tribunal made factual
findings contrary to claimant’s explanation for her absences or specifically found that claimant’s
explanation was not credible.

        As such, it is apparent that the ALJ, the MCAC, and the circuit court failed to recognize
that absences for good cause do not constitute “misconduct” for purposes of MCL 421.29(1)(b),
even if those absences violate the terms of a claimant’s employment under a no-fault attendance
policy. See Hagenbuch, 153 Mich App at 837-838; Washington, 135 Mich App at 658. MCL
421.29(1)(b) provides for a disqualification from unemployment benefits if an individual was
“discharged for misconduct connected with the individual’s work.” (Emphasis added.) Thus,
under the plain language of the statute, a disqualification for misconduct can only arise from the
conduct that served as the basis of an employee’s discharge. See Petrelius, 281 Mich App at
522. Allowing an individual to be disqualified from unemployment benefits on the basis of
conduct that should not impact his or her disqualification contradicts the principle, based on the
remedial nature of the MESA, that “provisions regarding disqualification from benefits are to be
construed narrowly.” Korzowski, 213 Mich App at 229.

       Here, failing to notify ACS that her final absence was due to a medical condition was not
the basis of claimant’s discharge. Instead, claimant was discharged because she accumulated
excessive absences in violation of ACS’s no-fault attendance policy, regardless of the reasons for
her absences; a senior employee relations specialist for ACS expressly confirmed that the
reasons for claimant’s absences did not matter, and that claimant would have been terminated
despite any explanation that she provided for her absences. Thus, the only acts properly
considered in determining whether claimant committed statutory misconduct for purposes of
MCL 421.29(1)(b) are claimant’s absences themselves, not whether claimant advised her
employer of the reasons for her absences or provided medical documentation to her employer
concerning those absences.

        The record shows that claimant provided a “legitimate explanation” for at least two of her
absences at the hearing before the ALJ, see Veterans Thrift Stores, 146 Mich App at 368, which
was supported by her testimony at the ALJ hearing, the ACS write-ups included in the record
and referenced during the senior employee relations specialist’s testimony, and the certification
to return to work or school prepared by claimant’s doctor concerning claimant’s February 18,
2013 absence.4 In addition to specifically noting that claimant was under her doctor’s care on
February 18, 2013, the certification provided evidence that claimant had one or more chronic
medical conditions related to her thyroid:

       Limitations/Remarks: DX: Toxic Diffuse Goiter and Anxiety disorder. This
       patient was taken care of by us with a follow up appointment from an ER visit in
       February. She has a history of Grave’s Disease, which can cause numerous
       fatigue symptoms which may cause her to go to the hospital on occasion. She
       was able to continue work with no restrictions at this time when released from our


4
  We recognize that the certification was prepared several months after claimant’s last two
absences.


                                               -6-
       office; however, she has had the same symptoms also in March 2013, which can
       be caused by her anxiety and her thyroid issues. Aisha’s symptoms are heart
       palpitations, some blurred vision, headaches, and severe dry mouth. Please assist.

It is also apparent from the hearing transcript that claimant did not provide additional testimony
regarding the medical reasons for her absences in light of the ALJ’s response, i.e., “[W]hy do we
need to go into detail?,” after the parties offered to stipulate that claimant’s medical condition
was the reason for her absences.

        Except for providing evidence that respondent left early on November 29, 2012, due to a
family emergency, respondent did not contradict the medically-related reasons provided by
claimant for her absences. Likewise, none of the lower tribunals stated factual findings that
contradicted the reasons provided by claimant or concluded that claimant’s absences were
without good cause. Instead, the lower tribunals focused on claimant’s lack of attendance, the
fact that claimant received warnings regarding her attendance, and the fact that claimant did not
provide an explanation or proffer documentation for her absences until after she was terminated.
However, these facts do not establish, on their own, that claimant’s absences constituted
statutory misconduct. Again, a “claimant’s tardiness or absences cannot support a finding of
statutory misconduct unless it is determined that they were without good cause, which could
include personal reasons or other reasons beyond claimant’s control.” Washington, 135 Mich
App at 658 (emphasis added). Accordingly, because the lower tribunals did not determine that
claimant’s absences were without good cause, the ALJ, the MCAC, and the circuit court erred in
concluding that claimant’s absences constituted statutory misconduct that justified a
disqualification from unemployment benefits under MCL 421.29(1)(b). Hodge, 497 Mich at
193-194; Logan, 304 Mich App at 554-555.

                                       V. CONCLUSION

       The lower tribunals did not determine whether claimant’s absences were without good
cause in light of her alleged illness or medical condition. Accordingly, without such a factual
determination, claimant was wrongfully disqualified from receiving unemployment benefits
under MCL 421.29(1)(b).

        Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.



                                                            /s/ Kathleen Jansen
                                                            /s/ William B. Murphy
                                                            /s/ Michael J. Riordan




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