Braska v. Challenge Mfg. Co.

• Decision Date: 23 October 2014
• Docket Number: Docket Nos. 313932,315441,318344.
• Citation: 307 Mich.App. 340,861 N.W.2d 289
• Parties: BRASKA v. CHALLENGE MANUFACTURING CO. Kemp v. Hayes Green Beach Memorial Hospital. Kudzia v. Avasi Services, Inc.
• Court: Court of Appeal of Michigan — District of US

307 Mich.App. 340

861 N.W.2d 289

BRASKA

v.CHALLENGE MANUFACTURING CO.

Kemp

v.Hayes Green Beach Memorial Hospital.

Kudzia

v.Avasi Services, Inc.

Docket Nos. 313932

315441

318344.

Court of Appeals of Michigan.

Submitted Oct. 7, 2014, at Grand Rapids.

Decided Oct. 23, 2014, at 9:00 a.m.

Legal Aid of Western Michigan, Grand Rapids, (by D. Scott Stuart ) for Rick Braska.

Revision Legal, PLLC(by Eric W. Misterovich, St. Joseph), and Newburg Law, PLLC, Lansing (by Matthew R. Newburg ), for Jenine Kemp.

Schwartz Law Firm, PC, Farmington Hills (by Mary A. Mahoney ), for Stephen Kudzia.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Matthew Schneider, Chief Legal Counsel, and Susan Przekop–Shaw, Bradley A. Fowler, Peter Kotula, and Michael O. King, Jr., Assistant Attorneys General, for the Department of Licensing and Regulatory Affairs, Unemployment Insurance Agency.

Richard W. McHugh for the National Employment Law Project.

Steven M. Gray, Ann Arbor, for the Michigan Unemployment Insurance Project.

Daniel S. Korobkin, Michael J. Steinberg, and Kary L. Moss, Detroit, for the American Civil Liberties Union Fund of Michigan.

Before: BORRELLO, P.J., and SERVITTO and SHAPIRO, JJ.

Opinion

PER CURIAM.

In these consolidated appeals, the Department of Licensing and Regulatory Affairs, Unemployment Insurance Agency(Department), appeals by leave granted circuit court orders holding that claimants were entitled to unemployment benefits.In Docket No. 313932, the Department appeals a November 9, 2012Kent Circuit Court order reversing a decision of the Michigan Compensation Appellate Commission(MCAC) that claimantRick Braska was disqualified from receiving unemployment benefits.In Docket No. 315441, the Department appeals a March 5, 2013Ingham Circuit Court order reversing the decision of the MCAC that claimantJenine Kemp was disqualified from receiving unemployment benefits.In Docket No. 318344, the Department appeals a September 5, 2013Macomb Circuit Court order reversing the decision of the MCAC that claimantStephen Kudzia was disqualified from receiving unemployment benefits.The common issue presented in the three cases is whether an employee who possesses a registration identification card under the Michigan Medical Marihuana Act (MMMA)MCL 333.26421 et seq., is disqualified from receiving unemployment benefits under the Michigan Employment Security Act (MESA), MCL 421.1 et seq., after the employee has been fired for failing to pass a drug test as a result of marijuana use.¹For the reasons set forth in this opinion, we affirm the circuit court rulings that claimants were entitled to unemployment benefits.

I.BACKGROUND

A. BRASKA v. CHALLENGE MANUFACTURING CO(Docket No. 313932)

Braska began working for Challenge Manufacturing Company(Challenge) as a material handler and hi-lo operator in September 2009.On June 11, 2010, Braska injured his ankle and was sent to a medical center where he was required to take a drug test.Braska tested positive for marijuana and disclosed for the first time that he had obtained a medical marijuana card in May 2010 and regularly used medical marijuana for his chronic back pain.Challenge terminated Braska's employment for violation of the company's drug-free-workplace policy as set forth in the employee handbook.

Dr. Richard Rasmussen, certified as a medical review officer for drug tests, reviewed the “results verification record,” which was a printout of the laboratory results that was given to him.He signed the record on June 15, 2010.The results verification record showed that Braska tested positive for marijuana.There were 225 nanograms per milliliter of blood, which, according to Rasmussen, was “higher than the average.”According to Rasmussen and Dr. David Crocker, there are no objective standards to determine when someone is under the influence of marijuana.

Following his termination, Braska applied for unemployment benefits.On July 6, 2010, the Unemployment Insurance Agency(UIA) found that Braska was not fired for a deliberate disregard of his employer's interest.It concluded that Braska was not disqualified for unemployment benefits under MCL 421.29(1)(b) for engaging in misconduct.Challenge protested the determination, and the UIA modified its decision, finding that Braska was discharged for testing positive for marijuana.Although failing a drug test would ordinarily have disqualified Braska from receiving benefits under MCL 421.29(1)(m), the UIA determined that because Braska had a valid medical marijuana card, he was not disqualified for unemployment benefits under that provision.

Challenge appealed the redetermination, and a hearing was held before an administrative law judge (ALJ).At the hearing, the ALJ excluded from evidence the results verification record, as well as a “specimen result certification” that Rasmussen sent to Challenge, because of problems in the chain of custody of Braska's urine sample.At the conclusion of the hearing, the ALJ found that Braska was fired for testing positive for marijuana, not general misconduct.The ALJ noted that an employer is required to establish, as a foundational element to the admission of the results of a drug test, that the sample analyzed was the sample collected from the employee.In this case, Challenge failed to produce any witness to establish how the drug test was conducted and how the sample test was handled.According to the ALJ, in the absence of this foundational testimony, the test results were inadmissible hearsay, and disqualification from unemployment benefits could not be established without them.

Recognizing that there might be disagreement on the adequacy of the evidence presented by Challenge, the ALJ addressed the effect of Braska's possession of a medical marijuana card.The ALJ noted that it surpassed credulity to believe that Braska had the card but did not use medical marijuana and that Braska specifically did not ask for a retest when one was offered by Rasmussen.The ALJ found that there was no evidence that Braska had operated a hi-lo under the influence of marijuana.Therefore, the ALJ concluded that Braska was not disqualified from receiving unemployment benefits under § 29(1)(m).

Challenge appealed the ALJ's decision to the MCAC, and the MCAC reversed.The MCAC concluded that the only question governing the admission of a document in an administrative hearing is whether reasonable people would rely on the document.It found that all the documents offered by Challenge were reliable.The MCAC noted that the ALJ allowed Braska to collect unemployment benefits because he possessed a medical marijuana card.The MCAC concluded that this amounted to error, given that Challenge only needed to present evidence that Braska had tested positive on a drug test that was administered in a nondiscriminatory manner to disqualify Braska from receiving benefits.It ruled that the preponderance of the evidence established that Braska was disqualified from receiving benefits under § 29(1)(m).

Braska appealed the MCAC's decision in the circuit court, and the circuit court reversed on the ground that the MCAC's decision was not supported by competent, material, and substantial evidence.The court noted that the MCAC had failed to address the ALJ's interpretation and application of the MMMAandMESA, but the court declined to address those issues.This Court granted the Department's application for leave to appealthe circuit court's order.

B. KEMP v. HAYES GREEN BEACH MEMORIAL HOSPITAL(Docket No. 315441)

Kemp worked for Hayes Green Memorial Hospital (HGB) as a CT technician.HGB had a zero-tolerance drug policy.Employees were tested for drugs upon hire and then upon reasonable suspicion.In May 2011, a patient complained about Kemp, claiming that Kemp had inserted an IV line in the patient without using gloves, discussed the patient's insurance coverage in a crowded area, and told the patient about her family's drug use, including that she ate “special brownies.”

On June 2, 2011, following an investigation into the complaint, Jennifer Myers, the human resource manager for HGB, told Kemp that she needed to take a drug test.Kemp consented, and she wrote on the consent form that she used marijuana for medical reasons.At the meeting, Kemp showed no objective signs of intoxication.Kemp tested positive for marijuana and delta–9–tetrahydrocannabinol (THC).A second test confirmed the results.On June 8, 2011, Myers informed Kemp that she was terminated.The reason for the termination was the failed drug test.

Kemp suffered from lupus, neuropathy, and chronic pain in her hand.She obtained a medical marijuana card in December 2010 and it remained valid in May 2011, when she was terminated.According to Kemp, she was never under the influence of marijuana at work.She used marijuana between 6:00 p.m. and 7:00 p.m., and the effects were usually gone within two hours.Her shift at HGB was from 6:30 a.m. to 3:00 p.m.

Following her termination, Kemp applied for unemployment benefits.The UIA initially determined that, because Kemp was terminated for testing positive for an illegal substance, she was disqualified from receiving benefits under § 29(1)(m).The UIA reversed its decision after Kemp provided documentation that she possessed a medical marijuana card.HGB protested, and a hearing was held before an ALJ.The ALJ affirmed the UIA's redetermination that Kemp was not disqualified from receiving unemployment benefits.The ALJ explained that because marijuana was legally available to use for medical purposes, the issue whether Kemp's use of marijuana constituted misconduct or was illegal must include consideration of the MMMA.Because Kemp used marijuana for medical purposes, her use was lawful and, therefore, could not bar her receipt of benefits.

HGB appealed, and the MCAC reversed the ALJ's decision.The MCAC concluded that Kemp was disqualified from receiving unemployment benefits under § 29(1)(m).It reasoned that...