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A.D. No. B85-05959-99964 S.S. No. ~~ B.O. No . 64 C-7'\

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF LAPEER

IMLAY CITY COMMUNITY SCHOOLS,

Employer-Appellant,

v

CALVIN MERILLJ.. T .

Claimant-Appellee

MICHIGAN EMPLOYMENT SECURITY COMMISSION,

Appellee. ~~~~~~~~~------------/ DANIEL G. BERK (P10727) Attorney for Employer-Appellant ·

FRANK J. KELLEY, ATTORNEY GENERAL FOR THE STATE OF MICHIGAN By: DENNIS J. GRIFKA (P23048)

ASSISTANT ATTORNEY GENERAL Attorneys for Michigan Employment Security Commission

0 P I N ·r 0 N

.. Case No. 86 011243 AE(B) HON. NORMAN A. BAGULEY

This case involves an appeal from the Michigan Employment Security

Commission's aecisiory granting the Appellee- Claimant unemployment benefits under

Section 29 of the Michigan Employment Security Act (MCL 421.29; MSA 17.531).

The Appellant, Imlay City Schools employed Mr. Merillat from September, 1983

through June of 1984 as a teacher . The Claimant had a probationary status

meaning he had not obtained rJghts. under the Teacher Tenure Act. Under the

facts as supported by the record in this case, the Claimant fell into disfavor

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with the _principal in the school for which he worked. On February 17, 1984,

there was an eyaluation of the Claimant•s work performance by the high school

principal Richard McFall pursuant to contract requirements. ~ation

reflected an unsatisfactory performance on the part of the Claimant. At the

close of the evaluation, McFall made the recommendation that Claimant•s contract

not be renewed for the 1984-1985 school year by the Board of Education.

Upon review of this evaluation by the Claimant, and his ~dvisor, the

Claimant requested . that he be allowed to resigri rather -than let the recom­

mendation go to the Board of Education. While the principal, never gave

advice as to what the Claimant should do, he djd state according to Claimant,

~if he was me, he would not apply for a Board of Education job~.

The Claimant submitted his resignation i~ writing on February 24, 1984. He

gave as the reason for his -resignation, 11 1 intend to return to the southern part

of Michigan and enter business · there 11• The principal never initiated the idea

of resignation nor did he affirmatively require a resignation on the threat

of termination. Moreover, the principal had no power to terminate the

·Plaintiff; only to recommend to the School Board based on an evaluation prepared

by himself. There exists a grievance procedure for contesting such evaluations

as the one in question, as well as any decision by the School Board to deny

contract renewal. The Claimant knew about this procedure, but chose not to pur-

.sue such a course of action.

The Claimant was classified as a first y~ar probationary teacher under

his contract. His performance was initi~lly satisfactory. However, per­

formance became unsatisfactory on later evaluations. The Claimant was

reprimanded for a violation of a school-wide directive in January of 1984.

On September 12, 1984, the Claimant filed for unemployment b~nefits. On

his application, he indicated 11Quit 11 as the_ reason for unemployment.

The employer, Imlay City Schools, has maintained throughout these pro­

ceedi ngs that the Claimant voluntarily quit rather than go before the Board of

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Education , and that Section 29(1)(a) of the Michigan Employment Security Act

disqualified the Claimant from unemployment benefits .

In it's initial determination , the Michigan Employment Security

Commiss ion determined the following :

"Claimant was given the opt i on of quitt~ng or being termi nated for inability to meet work standards and using poor judgment. In as much as the employer initiated the separation it is determined not to const i tute misconduct under the Act".

(M.E.S.C. determination 10/9/84) ·.f '

The employer requested a redetermination which was affirmed on the bas is

that the emplJyer present~d the Claimant with the option of quit or be

discharged. The employer proceeded to appeal to the M.E .S.C. referee,

·Robert D. Coon. on. April 26, 1985 the referee issued a redetermination

which contained the fallowing determination :

"Arguing on behalf of the employer ~ppellant, the employer's counsel pointed out that where a tenured teacher fails to avail himself under the Teacher Tenure Act and enters into a settlement agreement, resulting in his or her dismissal, the separatio~ is ·voluntary. Additionally, the employer's counsel urged that where an employee's supervisor comments that a dismissal might occur and the employee elects to terminate the employ­ment relationship, the separation has been viewed as a voluntary leaving without good cause attributable to the employer.

"The Referee is of the opinion here that the circumstances depicted upon this record may be distinguished from those relied upon by the em­ployer. The Claimant was not a tenured teacher and had only such rights afforded him under the prov i sions of a contract between he and the school

· system. The Claimant's supervisor,, the school principal, had held that post seven years when he advised the Claimant, a probationary teacher that he was recommending .to the School Board that the C1aimant, a probationary teacher not be offered a new contract. Such a representation reduced to writing in the form of a recommendation is beyond the casual , verbal reference that th.e Claimant might be subjected to dismissal". (Referee decision, 6/19/85, p.38)

Emphasis was also placed on the Claimant ' s belief that the Board of Education

merely acted p.s a "rubber stamp"· of th·e principal's recommendation,

therefore, making pursuance of an appeal .or ·grievance futile.

Appeal to the M.E.S.C. Board of Review was made by the employer, which af­

firmed t he Referee 's decision. The . Board of Review split with two members

i n f avor of affi rmance. There was one dissenter who indicated the Claimant

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should have been disqualified for voluntarily terminating his employment. This

appeal followed.

The following issue encompasses this appeal :

Is the Michigan Employment Security Commission's determination that Claimant's termination of employment was not a voluntary leaving without good cause attributable to his employer, supported by material, competent and substantial evidence in conformity with the law of Michigan?

The appellee correctly points out the limitation of a reviewing

court in an appeal of ~n administrative agency decisio~. As stated by the

Michigan Supreme Court:

"Our function as a reviewing court is limited to a determination of whether the findings of the M.E.S.C. are supported by competent 7 material and substantial evidence on the whole ·record. MCL 421 . 28; MSA 17.540. This Court cannot substitute it's own 'judgment for that of the administrative . agen~y if there is substantial evidence which supports the agency". Smith v. Employment Commission 7 420 Mich 231, 256; 301 NW2d 285 (1981).

The basis of such a standard of review undoubtedly reflects judicial

deference to the agency in the fields of it's expertise . This case involves the

application and interpretation of a statute to the factual development of this . ' case, looking at the record and the applicable law .

The statute in question, MCL 421.29 (1)(a); MSA .17.53l(l)(a) provides :

. "(1) An individual shall be disqualified for benefits in all cases in which he or she:

(a) Has left work voluntarily without good cause attributable to the employer."

At the Referee's hearing and in the subsequent majority opinion

of the Board of Review, the Agency was of the opinion that the Claimant,

Calvin Merillat was discharged from employment by. his employer.

It is clear to this court this is erroneous based on the facts of the

record. The Claimant was informed of an unsatisfactory evaluation and

· possibility of a recommendation of nonrenewal of his contract to the ~

School Board. The Claimant testified that he fully knew of the grievance

procedure and his right to pursue it. However, he chose not to elect to do so.

It is obvious that the employer took no formal steps in discharging · the

Claimant. Instead, it compiled an evaluation of job performance which was con-. testable through an appeal and grievance procedure. The individual responsible

for preparing this evaluation, Mr. McFall, had no power to .fire the Claimant,

and Claimant knew this. Upon learning of the unsatisfactory evalu~tion~

Claimant initiated the option of resignation. Claimant voluntarily chose to -resign upon weighing his options and reflecting on his own feelings. As he had

stated to the Commission•s . claims examiner on October 23, 1984: "I had been

thinking about res·igning prior to our (Mr. McFall's and my) conversation ••

Finally, the Claimant issued a resignation to the employer, and continued

to work out the duration of his contract. Moreover, the Claimant's appli­

cation for benefits evidences that the Claimant "Quit". This is note-. . .

worthy, as the application also allowed the Claimant to check off "Fired"

as a reason for leaving his employment. After review of the above facts

this ~curt cannot see how the administrative agency below could treat

this case as anything other than a voluntary leaving of employment. Thus,

the analysis for misconduct under MCL 421.29(l)(b);MSA 17.53l(l)(b) was uncal led

for. Thus, the ruling of the agency was ilearly erroneous.

Remaining is the question: Was the voluntary leaving of employment with

good cause attributable to the employer? Upon review of the recor.d and appli ­

cable law, it is obvious that the Michigan Employment Security Commission

committed clear error in rendering it's opinion. · The lack of substantial ev i­

dence to support its conclusion and Michigan case law dictate a different

result, as expounded by Boar~ of Review Member Viventi in his dissent.

Under MCL 421.29(l)(a); MSA 17.53l(l)(a) the standard for "good cause''

compelling an employee to terminate his or her 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 Sharehouse, ·

390 NL'2d 252 (1986) It is in e~idence thdt Inc., 151 Mich App 39l,396; " ·

while the claimant did receive an unsatisfactory evaluation and was told of . .

the principal's purported future- recommendation, he ·had been contemplating

. resignation before this time. Moreover, the claimant knew Mr. McFall had no "I

firing power, and those with such power, the School Board, never spoke to

claimant, or took formal action to fire him. This court can only construe

the unsatisfactory evaluation and the future · recommendation as criticism of

job performance.

It is particularly noteworthy there exists scant evidential ~upport

for the proposition the claimant was presented with a "resign or be fired"

option. To the contrary the record reflects the claimant initiated the

resignation idea when he inquired of Mr. McFall. Only after receiving a

neutral response from McFall, and reflecting on the advantages and dis­

advantages did the claimant tender his resignation. This provides a clear

distinction between the case and those cases ~elied upon by the appellant in

its brief on appeal. This case involved no coercion or duress placed on the

claimant by his employer to resign. Nor was the resignation option presented

to the claimant. Rather, this idea was solely that of the claimant. No threats

of the consequences of a firing were communicated to the claimant.

Instead, the option was the product of claimant's subjective belief of a I

school board's "rubber stamp" of the recommendation by the principal. There

exists on the record no ind~pendent evidence to affirm this as a fact or well

founded belief. Mr. McFall testified that he had never previously proposed to

make such a recommendation to the Board of Education. Thus, there was no prior

history upon which the claimant could possibly have based any kind of · legiti~ate.

conclusion as to how the Board would react to such a recommendation from the

school principal.

Finally, the resignation itself .stated the claimant's reason for ter-

minating his employment. It states, "I intend the return to the southern

part of Michigan and enter business there." Claimant's resignation is

devoid of any reference to his employer, his job performance, or the dif­

ferences between him and his supervisor, Mr. McFall. In summary, at best,

' the evidence supports the proposition that while the evaluation result did exist

a factor in the claimant's decision to resign, the evaluation re$ult can only be

seen as criticism of the employees performance. There were nq formal actions

taken to fire the claimant, the evaluator had no decision making authority with

reg~rd to such decisions. Claimant indicated his des.ire to move and enter busi­

ness elsewhere on the actual resignation prepared he prepared and submitted.

A review of the whole record clearly indicates the great weight of evidence

favors the contentions of the Appellee: the claimant voluntarily resigned ·

from his employment without good cause attributable to his employer. This

court views the evaluation and proposed recommendation as criticism of the

employe~'s work performance by ·.his supervisor. This case is controlled by the

Michi~an Court of Appeals cases of Butler v Newago, 115 Mich App 445; 320

NW2d 401 (1982J arid Carswell v Shar~ House, 151 Mich App 392, 390 NW2d 252

(1986). Carswe11, addressed the issue of voluntarily leaving employment.

There, the claimant's supervisor had given her two weeks notice as to ter­

mination of her employment. Upon being notified of this, the claimant

resigned. This was held to be a voluntary leaving by the court of appeals. /

There as here, the emphasis was placed on the lack of any legal, . economic,

or physical,pressure for clai~ant to leave the job • .

In Butler, supra, the claimant had been reprimanded by his superior and

was subsequently asked to take a lie detector test regarding a separate inci­

dent. He refused and for the above reasons he t~ndered his r~signation.

He later argued he should receive benefits. The Referee and Board of Review

.,.

denied benefits under Section 19(l)(a). They held that claimant had volur

tarily left his job noting he had not been fired but that he had access t c

grievance procedures to resolve his job dissatisfaction. The Circuit Cour

affirmed and claimant appealed. Affirming the decision of the Circuit Co '

Court of Appeals stated :

"We reject the claimants contention that he was somehow •compelled' by the 'iron hand of the tyrant [i.e. his employer]• to submit his resignation. The record simply does not support this interpetation _of the circumstances of the claimant's employment and resignation. In our view, an award of the re~uested benefits to the claimant would have thwarted the express and limited legislative policy to combat the burden of 'involuntary unemployment• •

. · Butler, supra, at 449 (1982)

As in Butler, a gri~v~nce procedure was available to the claimant.

However, cl aimant unilaterally chose not to pursue that course of action.

Similarly, the claimant was criticized and this led to his resignation.

However, no superior compelled him to resign, instead, the claimant prepar

his statement in writing, including his own personal reasons for resigning

tendered itlto his employer . It is obvious to this court the agency has m

such error as to warrant reversal. The conclusion that claimant did not vo

tarily leave his job is without substantial evidence and contrary to exist ·

1 aw. Under the facts and law, it is clearly be erroneous to attribute

claimant's voluntary leaving to his employer.

It is therefore the opinion of this court that the determination of the

Referee and Board of Review be reversed. The Claimant is barred by MCL

421.29(l)(a); MSA 17.531(1)(a) from receiving benefits under the Michigan

Employment Security Act.

Dated: August,;:~, 1988