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STATE OF MICHIGAN
COURT OF APPEALS


SHIRLEY NEAL, Plaintiff-Appellee/Cross-Appellee, v LIGHT CORPORATION, Defendant-Appellant, and MICHIGAN EMPLOYMENT SECURITY COMMISSION, Defendant-Appellee/Cross-Appellant.

UNPUBLISHED December 1, 1998

No. 202007 Muskegon Circuit Court LC No. 96-335076 AE

Before: Whitbeck, P.J., and Cavanagh and Neff, JJ. PER CURIAM. Defendants appeal by leave granted a circuit court order reversing the decision of the Michigan Employment Security Board of Review (the "Board of Review") that plaintiff was not entitled to unemployment benefits because she was discharged for "misconduct" within the meaning of the Michigan Employment Security Act (the "MESA"), MCL 421.29(1)(b); MSA 17.531(1)(b). We reverse. I. Basic Facts And Procedural History A. The Alleged Misconduct Defendant Light Corporation ("Light") employed plaintiff Shirley J. Neal from December 5, 1988, until November 4, 1994, at which time Light discharged her for misconduct. The day before her discharge, plaintiff's supervisor asked plaintiff to shut down her foaming machine, the position in which she performed the majority of her work, and assist the others in packing because they were shorthanded in that department. Plaintiff refused to do so and, although her supervisor repeated the -1

work order several more times, plaintiff still refused to comply. While it is unclear precisely when plaintiff indicated that she could not perform the work because of pain and discomfort in her arms and elbow,1 it is undisputed that at some point plaintiff stated that the reason for her refusal was related to a medical condition. It is undisputed that plaintiff's physician diagnosed plaintiff with carpal tunnel syndrome earlier that year and placed her on a medical restriction until about two weeks prior to her discharge. It is also undisputed, however, that Light submitted a medical report dated November 16, 1994, indicating that plaintiff was able to work with no restrictions. Following her refusal to accept the packing assignment,2 plaintiff's supervisor sent her home for the day. Light held a review meeting the following morning to discuss plaintiff's conduct. At the review meeting, plaintiff explained to her supervisor and the human resource manager that she had refused to comply with the work order because of a medical condition. Following the review meeting, Light discharged plaintiff for misconduct. B. The Denial Of Unemployment Benefits Light subsequently contested the payment of unemployment benefits to plaintiff on the basis that she was disqualified because she was terminated for misconduct within the meaning of the statute. Defendant Michigan Employment Security Commission (the "MESC") denied unemployment benefits in its determination of the claim and again on redetermination. C. Plaintiff's Administrative Appeal Plaintiff appealed the denial of benefits in accordance with MESC administrative procedures and a hearing was held on this appeal in January of 1995 in the Muskegon office of the MESC before an administrative law judge (the "ALJ"). In February of 1995, the ALJ issued his findings of fact, conclusions of law and reasons in support (the "ALJ's Decision"). Interestingly, while the ALJ did note the conflicting testimony concerning whether plaintiff raised the issue of her medical condition before or after her suspension, he did not make a specific credibility determination. Rather, he stated that, "There are no third party witnesses presented by the parties, and the referee finds it difficult to resolve the credibility issue presented by this conflicting testimony."3 The ALJ went on to resolve this apparent dilemma by stating: The referee is of the opinion, however, that even if the claimant did not raise the health issue until the point that she was suspended, the appropriate response on the part of the employer was not to follow through with the suspension, but to again refer the claimant to medical services to determine whether there was merit to her contentions that her wrists and elbows were so aggravated as to preclude her from performing the packing duties. The ALJ found that the misconduct disqualification imposed against plaintiff was not supported by a preponderance of evidence on the record. The ALJ concluded by stating:

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Although the employer is apparently convinced that the claimant arrived at work with a resolve not to be reassigned to the packing area, the employer has presented no competent witness testimony in this regard.[4] What is confirmed on the record is that the claimant clearly does have legitimate and well established medical problems with her wrists and elbows, and it is not unreasonable to conclude that these problems might preclude the claimant from performing responsibilities as a packer. While the Referee would agree that there is no evidentiary support for the claimant's contentions that the employer has other motives for her discharge,[5] the Referee does believe that the claimant's refusal of the work assignment does not constitute misconduct on her part. D. Light's Appeal To The Board Of Review Light appealed the ALJ's Decision to the Board of Review and, in April of 1996, the Board of Review reversed that Decision, thereby denying unemployment benefits to plaintiff. The Board of Review determined (the "Board of Review's Decision") that the evidence did not establish that plaintiff had a medical restriction at the time of her discharge because she was given a written medical release from the physician without restrictions. Thus, the Board of Review concluded that plaintiff failed to perform a reasonable request by her employer without adequate justification. The Board of Review reasoned that if plaintiff required further medical treatment, she should have notified her supervisor immediately and not waited until she was discharged to raise the issue. In May of 1996, plaintiff submitted a request for rehearing before the Board of Review that the Board of Review denied. E. Plaintiff's Appeal To The Circuit Court In July of 1996, plaintiff appealed the Board of Review's Decision as of right to the Muskegon Circuit Court. After a hearing, the circuit court reversed the Board of Review's Decision. The circuit court determined (the "Circuit Court's Decision") that the ALJ was the finder of fact and applied the substantial evidence test to the ALJ's Decision. The circuit court stated that there was clear and uncontradicted evidence of plaintiff's medical condition and the allegations of plaintiff's use of profanity and disruption at work were not corroborated by the evidence. The circuit court thus held that plaintiff was not discharged from employment because of misconduct under

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