<,_,-,J. _>'--J--'---"7!1/~-- Please enter and distribute along with Board of Revi ew Decisions/Orders and Referee Decision/Orders.

Transcription

1 ' ' ) I 'r:~j ',_./.- CIRCUIT COURT ORDER/OPI NION Stephine Gwin, Circuit Court Clerk 1 Appea 1 Docket No: /'--//_._7_ <,_,-,J. _>'--J--'---"7!1/~-- Please enter and distribute along with Board of Revi ew Decisions/Orders and Referee Decision/Orders. c=j Board Member and assigned attorney to case D Other: I, ~... IYX N I Potential Digest Case )-~ U) f.:j Section of the Act Date: 1/.I ' 2005 I R. Doug s Daligga, Dlrector MES - Board _of Review l REP PC Prepared by Stephine Gwin_ ~

2 Offic,> of.the County Ct-erk Cathy M. Garrett Wayne County Clerk June 1, 2005 State of Michigan Employment Security Board of Review 611 W. Ottawa, 4 1 h Floor P.O. Box Lansing, Ml RE: SHIRLEY MULLINS VS GOLDEN HOME HEALTH CARE AGENCY, ETAL WAYNE COUNTY CIRCUIT CASE NO AE Good Morning, Please find enclosed a true copy of the Court OPINION AND ORDER REVERSING AND VACATING THE DECISIONS OF THE BOARD OF REVIEW AND AFFIRMING THE DECISION OF THE ALJ AWARDING BENEFITS TO SHIRLEY MULLINS, signed by the Honorable Gershwin A. Drain, on May 27, The Certification of and Record of Proceedings by Michigan Employment Security Board of Review is also being forwarded at this time. If you have any questions, please do not hesitate to call. Jennifer Moore Deputy County Clerk Encl. True Copy of Order Agency Records 211 Coleman A. Young Municipal Center, Detroit, MI (313) Fax (313) t.'

3 STATE OF MICIDGAN IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE SHIRLEY MUlilNS, Claimant-Appellant CASE NO: AE HON. GERSHWJN A. DRAIN Vs GOLDEN HOME HEALTH CARE AGENCY Employer-Appellee DEPARTMENT OF LABOR AND ECONOMIC GROWTH, UNEMPLOYMENT INSURANCE AGENCY, Appellee OPINION AND ORDER REVERSING AND VACATING THE DECISIONS OF THE BOARD OF REVIEW AND AFFIRMING THE DECISION OF THE AI::J AWARDING BENEFITS TO SIDRLEY MULLINS At a session of said Court held in the Coleman A. Young Municipal Center, Courtroom #1519 Detroit, Michigan on: MA'{ PRESENT: - OEUHW~ A. DRAIN CIRCUIT COURT JUDGE, Claimant-Appellant, Shirley Mullins claims an appeal from the October 19, 2004, decision of the Employment Security Board of Review' which disqualified Claimant for unemployment benefits pursuant to MCL (1) and reversed the July 30, 2004 decision of Administrative Law Judge Carl T. Ratliff finding Claimant-Appellant not disqualified for unemployment benefits. Claimant-Appellant field a timely motion for 1

4 Rehearing on November 16, 2004, which was subsequently denied by the Board of Review in an Order, dated January 28, Claimant-appellant filed her timely Claim of Appeal in this Court on February 5, Upon receipt of the Certified Record of Proceedings by the Michigan Employment Security Board of Review, this Court set a briefing schedule, which was subsequently modified by Stipulation of the parties and Order. The Appellant's brief was timely filed and Oral Argument was formally requested. It should be noted that both the Appellee, Golden Home Health Care and the office of the State Attorney General appearing on behalf of the Appellee Department of Labor and Economic Growth, Unemployment Insurance Agency failed to file an appellate brief. Accordingly, pursuant to MCR 7.101(K) oral argument was afforded to the Appellant on May 25, The basis for this Court's jurisdiction is established in Section 38 of the Michigan Employment Security Act, MCL (1). Factual Summary The basic factual scenario in this case is that Claimant-Appellant was employed ~ _ concurrently with Golden Home Health Care and Wal-Mart Corporation. Claimant- Appellant performed part-time work for Golden Home Health Care and full-time work with Wal-Mart Corporation. Claimant-Appellant then quit her part-time position with Golden Home Health Care to continue working full-time for Wal-Mart. Claimant Appellant had testified that she gave Golden Home Health Care two-week notice when Golden Home advised her that she would be given more clients which would in turn require her to do more traveling without reimbursement. Wal-Mart was offering a fulltime position for more money, benefits and no traveling involved, which was more appealing to the Claimant. At some point after leaving her position with Golden Home Health Care, Claimant Appellant lost her full-time position at Wal-Mart and sought to collect unemployment 2

5 compensation. Claimant-Appellant argues that she should not be disqualified from receiving benefits because she quit a lower paying job that required her to travel without reimbursement for a better paying job with benefits and no travel with Wal-Mart. Applicable Law Under Section 29(1)(a) of the Michigan Employment Security Act an individual who voluntary leaves his or her work is disqualified from receiving unemployment benefits unless the individual left such work with good cause attributable to the employer or the employing unit. The term " voluntary' connotes a choice between alternatives which ordinary persons would find reasonable." Clarke v. North Detroit General Hospital, 179 Mich App 511 (1989) aff'd 437 Mich 280 (1991). A voluntary leaving is one, which is unrestrained, volitional, and freely chosen. Tomei v. General Motors, 194 Mich App 180 (1992). The applicable standard to be utilized in determining whether a voluntary leaving was with good cause attributable to the employer is that of a reasonable individual. Under that standard, "good 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 (1986). The burden of establishing whether the leaving was voluntary or involuntary with cause attributable to the employer is on the claimant. Carswell, supra; Cooper v. University o(michigan, 100 Mich App 99 (1980). While the Claimant-Appellant raises two issues in her appellate brief, this Court is of the opinion that the one issue raised, specifically "Whether Claimant-Appellant Shirley Mullins should be disqualified from receiving benefits pursuant to Section 29(5) of the Act, where it appears that it is undisputed that she left her part-time position with Golden 3

6 Home Health Care in order to accept full-time work with Wal-Mart", was not decided by the Administrative Law Judge or the Board of Review and therefore is not properly before this Court for consideration. In this Court's opinion, the issue to be decided is whether the Claimant-Appellant should receive unemployment benefits pursuant to Section 29(1)(a), where she was employed in two part-time jobs concurrently and subsequently quit one in order to accept a full-time job with the other employer. Section 29(1)(a) of the Employment Security Act unambiguously provides: "An individual is disqualified from receiving benefits if he or she: (a) Left work voluntarily without good cause attributable to the employer or employing unit." MCL (1)(a). This Court agrees with both AU Ratliff and Mark Kaufmann, dissenting member of the Board of Review panel, that the factual situation involved in this matter was quite similar and came within the meaning of Dickerson v. Norwell Health Care. Inc., Kent County Circuit Court, Docket No AE. The court in Dickerson held" a claimant who had simultaneous full-time and part-time employment, who left the part-time job for disq~alifying reasons and later unexpectedly lost the full-time job for non-disqualifying ~ reasons is not disqualified from receiving benefits under Section 29(1)(a) of the Act. The court indicated that the claimant can be construed to have left work within the meaning of Section 29(1)(a) of the Act, only if quitting resulted in total unemployment, not one less job." In reviewing the Certified Record of Proceedings in this matter it was noted that there was testimony from the claimant and the employer's own witness who both indicated that claimant left the part-time job in order to continue her full-time work with Wal-Mart. It is noted that Administrative Law Judge Ratliff found both witnesses to be credible, accordingly, this Court must give due deference to the AU's finding of credibility. Here, there is no dispute that Claimant-Appellant did not leave her full-time job at Wal-Mart 4

7 voluntarily. It is also undisputed that at the time she became unemployed, and thus eligible to receive unemployment benefits, the employer was Wal-Mart. Conclusion True adherence to the "plain meaning" of Section 29(10(a), the intent of the Legislature when it enacted the Michigan Employment Security Act and an adoption of the holding in Dickerson, compels this Court to REVERSE the decisions of the Board of Review and find the Claimant-Appellant entitled to unemployment compensation benefits. Accordingly, this Court directs the Unemployment Insurance Agency to award benefits to Claimant-Appellant, Shirley Mullins. IT IS SO ORDERED. This Order resolves the last pending claim and hereby closes the case PSISHWIN A. DRAXl\~ HON. GERSHWIN A. DRAIN ;;:~ ~ \