4/December 2006—MDC Court
Michigan Supreme
Lansing, Michigan
Chief Justice: Justices:
Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED JULY 30, 2008
PATRICIA D. BRACKETT,
Plaintiff-Appellee,
v No. 135375
FOCUS HOPE, INC., and ACCIDENT
FUND INSURANCE COMPANY OF
AMERICA,
Defendants-Appellants.
BEFORE THE ENTIRE BENCH
CORRIGAN, J.
This case requires us to consider whether plaintiff’s refusal to attend an
employer-mandated event constituted “intentional and wilful misconduct” under
MCL 418.305, thereby barring her recovery of benefits under the Worker’s
Disability Compensation Act, MCL 418.101 et seq. The magistrate found that
plaintiff willfully refused to attend the event, despite having been informed that
the event was essential in promoting the employer’s goal of racial reconciliation.
In light of that finding, we conclude that plaintiff’s refusal to attend the mandatory
event constituted intentional and willful misconduct, thereby barring workers’
compensation benefits under MCL 418.305. We thus reverse the judgment of the
Court of Appeals.
I. FACTS AND PROCEDURAL HISTORY
Defendant Focus Hope, Inc., hired plaintiff as a full-time employee in
January 2001. Defendant’s cofounder and chief executive officer, Eleanor
Josaitis, told plaintiff that the mission of Focus Hope is to seek racial equality and
reconciliation. Josaitis further explained that the most important function of the
year is the Martin Luther King, Jr., birthday celebration, and that each employee
was expected to attend the event. If the employee had a legitimate excuse for not
attending, the employee was to inform the human resources department.
The King Day event was ordinarily held in Detroit, but in 2002, Josaitis
decided to hold it in Dearborn. Plaintiff told her immediate supervisor, David
Lepper, that she would not attend the event in Dearborn because she and her
family had bad experiences there as African-Americans and because she believed
the history of race relations in Dearborn was not in keeping with Dr. King’s
aspirations. Lepper advised plaintiff that she would be docked one day’s pay for
refusing to attend. Plaintiff did not tell Josaitis or the human resources department
of her decision not to attend.
After the King Day event, Josaitis met with plaintiff, Lepper, and a human
resources manager. Josaitis asked plaintiff why she had not attended the King Day
celebration. Plaintiff explained that she believed the site of the event in Dearborn
was not appropriate. Josaitis responded that plaintiff had been informed when she
2
was hired that attendance at the King Day event was mandatory, and that the
purpose of Focus Hope was to promote acceptance and tolerance. Josaitis advised
plaintiff that she would be docked for two days’ pay. Subsequently, some of
plaintiff’s job responsibilities were taken away.
Plaintiff and Josaitis then exchanged memos explaining their respective
positions. Josaitis wrote in her memo that plaintiff’s failure to attend the King
Day event had reduced her confidence in plaintiff’s commitment to Focus Hope’s
goals. Josaitis explained:
The purpose of the Civil Rights movement was to change the
negative perception and prejudice of any individual towards another,
based on race, gender, religion, color, or creed through the use of
non-violent action. Father [William] Cunningham and I started
Focus: HOPE based on this same philosophy that Dr. King gave his
life for. Just as I stated to you in your orientation, I expect Every
Focus: HOPE Colleague to abide by these same principles.
To harbor such feelings of the past without thinking how our
MLK mandatory staff development day helps to move Focus: HOPE
into the future, reduces my confidence in your commitment to help
us fulfill our mission statement.
In her memo, plaintiff admitted that she understood that attendance at the
King Day event was mandatory, but stated that she “felt offended by the
celebration being in a city that I do not frequent and that I would be extremely
uncomfortable celebrating Martin Luther King’s birthday [in].” She added, “I did
not attend the celebration and expressed [in the meeting] that I spent it with my
family and with no regrets accepting the day off with no pay!” Plaintiff then
3
wrote, “I do not accept [Josaitis’s] judging and wrongfully degrading my character
as a [sic] ‘untrustworthy person.’”
Plaintiff claims that a second meeting occurred in which Josaitis allegedly
reiterated her disappointment in plaintiff, shook her finger in plaintiff’s face, and
said that plaintiff did not deserve to receive a paycheck from Focus Hope. When
plaintiff asked if she was being fired, Josaitis shrugged her shoulders and let her
out of the office. Josaitis testified that she remained calm and that she did not yell
or threaten to fire her.
Plaintiff claimed that Josaitis’s alleged comments traumatized her. Plaintiff
left work and never returned. Her psychologist opined that plaintiff suffered a
major depression precipitated by work events and that she is unable to work. A
defense psychiatrist found no evidence of a continuing mental disability and
opined that plaintiff could return to work without restrictions.
The workers’ compensation magistrate credited the testimony of plaintiff
and her psychologist. The magistrate found that plaintiff’s mental disability arose
from actual employment events and that plaintiff’s perception of those events was
reasonable.1 Although the magistrate found that plaintiff had willfully refused to
attend the King Day event, and that her disability had resulted from that willful
1
The magistrate reached this conclusion in spite of his “personal” view that
“the reaction of Ms. Brackett to these events and her reasonable perceptions
thereof (i.e., experiencing a major depressive episode causing disability for more
than two years) is excessive bordering on outlandish.”
4
refusal, the magistrate nonetheless rejected the defense argument that plaintiff’s
misconduct barred her recovery of benefits under MCL 418.305. The magistrate
stated that “[t]he kind of ‘misconduct’ plaintiff engaged in here is a far cry from
the alleged misconduct [i.e., sexual harassment] alleged in Daniel [v Dep’t of
Corrections, 468 Mich 34; 658 NW2d 144 (2003)], and for that reason I decline to
follow” Daniel.
The Workers’ Compensation Appellate Commission (WCAC) affirmed. It
chastised defendant as “insensitive” for failing to recognize that plaintiff’s
agreement to attend King Day celebrations would not require her to attend such
events in Dearborn. Thus, the WCAC found “absolutely no merit to defendants’
claim that plaintiff’s behavior should disqualify her for benefits pursuant to the
doctrine set forth in” Daniel.
The Court of Appeals denied leave to appeal for lack of merit,2 but this
Court remanded the case to the Court of Appeals for consideration as on leave
granted, in light of Daniel.3 On remand, the Court of Appeals affirmed the
WCAC decision.4 The Court of Appeals determined that sufficient evidence
supported the finding that plaintiff’s conduct was a “far cry” from the misconduct
in Daniel. Citing Andrews v Gen Motors Corp, 98 Mich App 556; 298 NW2d 309
2
Unpublished order of the Court of Appeals, entered April 28, 2006
(Docket No. 266018).
3
477 Mich 922 (2006).
4
Unpublished opinion per curiam of the Court of Appeals, issued October
23, 2007 (Docket No. 274078).
5
(1980), the Court of Appeals concluded that plaintiff’s conduct fell within the
realm “in which a claimant perhaps violates a workplace rule or expectation but is
not precluded by § 305 from recovering benefits for a resulting injury.”5
Defendants again applied for leave to appeal to this Court. We scheduled
the case for oral argument on the application, directing the parties to address
“whether plaintiff’s injury resulted from her willful misconduct.”6
II. STANDARD OF REVIEW
In the absence of fraud, this Court must consider the WCAC’s findings of
fact conclusive if any competent evidence in the record supports them. MCL
418.861a(14); Mudel v Great Atlantic & Pacific Tea Co, 462 Mich 691, 698; 614
NW2d 607 (2000). We review de novo questions of law, including statutory
interpretation. Karaczewski v Farbman Stein & Co, 478 Mich 28, 32; 732 NW2d
56 (2007); Daniel, supra at 40.
III. ANALYSIS
MCL 418.305 provides: “If the employee is injured by reason of his
intentional and wilful misconduct, he shall not receive compensation under the
provisions of this act.” “This provision has remained essentially unchanged since
it was first adopted by the Legislature in 1912 as part of the original workers’
compensation legislation. See 1912 (1st Ex Sess) PA 10, part 2, § 2.” Daniel,
5
Id. at p 2.
6
480 Mich 1147-1148 (2008).
6
supra at 41. The question here is whether plaintiff’s refusal to attend an
employer-mandated event, a refusal that the magistrate specifically found to be
“willful,” constitutes “intentional and wilful misconduct” that bars recovery of
workers’ compensation benefits.
Our fundamental obligation when interpreting a statute is to discern the
legislative intent that may reasonably be inferred from the words expressed in the
statute. Koontz v Ameritech Services, Inc, 466 Mich 304, 312; 645 NW2d 34
(2002). An undefined statutory term must be accorded its plain and ordinary
meaning. MCL 8.3a; People v Thompson, 477 Mich 146, 151; 730 NW2d 708
(2007). A lay dictionary may be consulted to define a common word or phrase
that lacks a unique legal meaning. Id. at 151-152. A legal term of art, however,
must be construed in accordance with its peculiar and appropriate legal meaning.
MCL 8.3a; Mayberry v Gen Orthopedics, PC, 474 Mich 1, 7; 704 NW2d 69
(2005). In this case, we need not determine whether the statutory phrase
“intentional and wilful misconduct” is a common phrase or a legal term of art
because the terms in the phrase are similarly defined in both a lay dictionary and a
legal dictionary.
“Intentional” is defined as “done with intention or on purpose.” Random
House Webster’s College Dictionary (1991). “Willful” is defined as “deliberate,
voluntary, or intentional.” Id. “Willful implies opposition to those whose wishes,
suggestions, or commands ought to be respected or obeyed: a willful son who
ignored his parents’ advice.” Id. “‘“[W]illful” means action taken knowledgeably
7
by one subject to the statutory provisions in disregard of the action’s legality. No
showing of malicious intent is necessary. A conscious, intentional, deliberate,
voluntary decision properly is described as willful, “regardless of venial
motive.”’” People v Hegedus, 432 Mich 598, 605 n 7; 443 NW2d 127 (1989)
(citations omitted). “Misconduct” is defined as “improper behavior.” Random
House Webster’s College Dictionary (1991). Therefore, conduct is “intentional
and wilful misconduct” if it is “improper” and done “on purpose” despite the
knowledge that it is against the rules.
Likewise, Black’s Law Dictionary (7th ed) defines “intentional” as “[d]one
with the aim of carrying out the act,” and it defines “willful misconduct of
employee” as “[t]he deliberate disregard by an employee of the employer’s
interests, including its work rules and standards of conduct, justifying a denial of
unemployment compensation if the employee is terminated for the misconduct.”
And, indeed, in the past, our Court has approached the definition of “willful
misconduct” with this understanding. In Detwiler v Consumers Power Co, 252
Mich 79; 233 NW 350 (1930), this Court defined “willful misconduct” as an
employee’s “obstinate or perverse opposition to the will of the employer.”
In Detwiler, the plaintiff’s husband was killed in a freight elevator accident
at work. Another employee had “cautioned” the decedent against using the
elevator because it was dangerous, but the employer had no rule barring its use.
This Court rejected the employer’s argument that the decedent’s use of the
elevator constituted intentional and willful misconduct:
8
Assuming, but not deciding, that wilful misconduct might
consist in wilful violation of a rule made for the employee’s own
safety or the safety of others, the record shows no such rule. A rule,
to be effective as such, must be prescribed by a power having
authority to make rules and it must be enforced with diligence.
If it be conceded, for sake of argument, that the instruction or
caution here was duly authorized, as contended by the employer, still
it appears that it was not enforced, obedience was not required, and
it is unavailing in respect of wilful misconduct. It was well said in
Haffemayer v. United Keanograph Film Co., 1 Cal. Ind. Acc.
Comm. Dec. (No. 24, 1915) 58, as reported in 8 N.C.C.A. 891:
“To disregard the instructions of an employer, where such
instructions are given merely in the form of cautions, and where
repeated violations of such instructions are known and permitted
without penalty and without positive insistence upon obedience,
does not constitute such obstinate or perverse opposition to the will
of the employer as amounts to wilful misconduct. To hold otherwise
would be to open the door for employers to impose numbers of
safety rules upon their employees with a tacit understanding that
such rules need not, so far as the employers were concerned, be
regarded if the employees chose to do otherwise, but that if an
employee was injured while disobeying any such instructions he
should be deprived of compensation. An employer can not be
allowed to impose two standards of care upon his employees, one for
the ordinary conduct of his business and the other as a test of
liability under the workmen’s compensation * * * act in case of
accident.” [Id. at 81-82 (emphasis added).]
The Detwiler Court’s adoption of the “obstinate and perverse opposition to
the will of the employer” definition is useful in according meaning to the entire
statutory phrase “intentional and wilful misconduct.” Under this standard, § 305
bars an employee from recovering benefits for misconduct that is both (1)
intentional, i.e., deliberate or nonaccidental, and (2) willful, i.e., obstinately or
perversely opposed to the employer’s will. An employer’s work rule must be
clearly established and consistently enforced in order for the employee to
9
understand the mandatory nature of the rule and for its violation to constitute
intentional and willful misconduct. Detwiler, supra at 81-82.
The Detwiler analysis is consistent with our recent decision in Daniel. In
Daniel, the Department of Corrections suspended the plaintiff, a probation officer,
for sexually harassing female attorneys. After returning to work, the plaintiff
suffered a mental disability because he felt harassed by his supervisor and the
female attorneys. This Court concluded that the plaintiff was injured by reason of
his intentional and willful misconduct. Daniel, supra at 44. Further, this Court
rejected the Court of Appeals majority’s conclusion that the misconduct did not
rise to a sufficient level of moral turpitude to be “‘intentional and wilful.’” Id. at
45.
Similarly, the facts found by the magistrate and the WCAC in this case
establish that plaintiff’s refusal to attend the King Day event constituted
intentional and willful misconduct. Attending this event was a mandatory
requirement for Focus Hope employees. Josaitis personally interviews every
prospective employee and impresses on them the necessity to attend the King Day
event. The magistrate specifically found that plaintiff’s refusal to attend the event
was willful. Plaintiff did not challenge this finding, and the WCAC did not disturb
it. This finding is supported by evidence in the record. Therefore, we must treat
as conclusive the WCAC’s finding that plaintiff’s refusal to attend was willful.
Mudel, supra. Plaintiff’s deliberate and categorical refusal to attend this
mandatory function constituted insubordination.
10
In concluding that plaintiff’s misconduct was not excluded by MCL
418.305, the Court of Appeals agreed with the WCAC that, unlike the sexual
harassment in Daniel, plaintiff’s conduct perhaps violated a workplace rule but
was insufficiently serious to preclude benefits under § 305. The Court of Appeals
cited Andrews, in which the Court of Appeals stated that misconduct must involve
some unspecified degree of “moral turpitude” in order to bar recovery. The
Andrews Court relied on Crilly v Ballou, 353 Mich 303, 327; 91 NW2d 493
(1958), in which this Court asserted in dictum that the statute excluded from
coverage “acts of a degree of moral turpitude,” equating intentional and willful
misconduct with acts of a “gross and reprehensible nature.”
The dictum in Crilly essentially engrafts a “moral turpitude” requirement
onto § 305. The dictum is thus inconsistent with the plain statutory language,
Detwiler, and Daniel. The text of § 305 does not create a sliding scale of “moral
turpitude” that tribunals may assess in deciding whether to apply the statutory
exclusion. Rather, the statute simply excludes benefits where the injuries arose by
reason of the employee’s intentional and willful misconduct. Moreover, this Court
in Daniel rejected the Court of Appeals majority’s conclusion in that case that the
misconduct did not rise to a level of moral turpitude that was intentional and
willful. We held that the plaintiff’s repeated acts of sexual harassment were
voluntary and went beyond negligence or gross negligence.
The same analysis applies here. Plaintiff willfully refused to attend her
employer’s most important function. She did so in the face of an express
11
requirement that she attend, and did so even though the location of the event was
an essential part of her employer’s overall mission. Plaintiff’s refusal to follow
her employer’s clearly expressed rule constituted an “obstinate or perverse
opposition to the will of the employer.” She was disciplined for this misconduct.
As in Daniel, it is undisputed that her mental disability flows directly from the
employer-imposed discipline for misconduct.
IV. RESPONSE TO THE DISSENT
The dissent contends that plaintiff was “selectively singled out for harsh
punishment” because approximately 50-60 other employees allegedly refused to
attend the event in Dearborn. But neither the magistrate nor the WCAC found that
plaintiff was singled out for punishment, and the record does not support such a
finding. Plaintiff presented no evidence other than her own vague, contradictory,
and—by her own admission—speculative testimony to suggest that other
employees refused to attend the event but were not punished.
Plaintiff initially testified that “50 to 60” of her colleagues “had adverse
opinions about that particular site.” She later claimed that “there was like 80
people. [Eighty to ninety] people or something that didn’t attend. I forgot the
people – the numbers, but there was more than myself – then I was called by
Human Resources.” Still later, on cross-examination, plaintiff contended that she
“was the only person out of 80” to be questioned about her failure to attend, then
added, “I think there was two of us.” When asked how she knew this, plaintiff
12
responded, “I guess it’s speculation.” Plaintiff did not present testimony from or
even identify any of the other employees who allegedly refused to attend.
Even if plaintiff had shown that other employees did not attend the event,
she offered no proof that any such employees failed to provide a legitimate excuse
to the human resources department before the event, as defendant required, and
that those employees then went unpunished despite their disobedience. Thus, the
dissent’s assertion that plaintiff was “singled out for harsh punishment” is wholly
unsupported in the record.
Next, the dissent contends that “the ‘harm’ that Ms. Brackett suffered was
not caused by the initial response by her supervisor, but by the director’s harsh
personal censure of Ms. Brackett.” Post at 3. This hyperbolic criticism of Ms.
Josaitis has no basis in the record or in the findings of the magistrate and the
WCAC. The lower tribunals simply did not find that Josaitis engaged in a “harsh
personal censure.” It is most regrettable that our dissenting colleagues have
chosen to lob these unfounded accusations.
Moreover, the dissent’s unfounded accusations do not reflect plaintiff’s
documented, ongoing insubordination in which she continued to oppose the
mandatory attendance at the King Day event. In her memo to Josaitis following
the initial meeting, plaintiff expressed no remorse. On the contrary, plaintiff
continued to insist that she should not be required to attend the event in Dearborn
because she “felt offended by the celebration being in a city that I do not frequent”
and in which she “would be extremely uncomfortable celebrating Martin Luther
13
King’s birthday.” Plaintiff admitted that she had “no regrets accepting the day off
with no pay!” And referring to Josaitis, plaintiff stated, “I do not accept her
judging and wrongfully degrading my character as a [sic] ‘untrustworthy person.’”
The dissent’s excessive criticism of Josaitis thus appears quite shortsighted where
plaintiff (1) violated Focus Hope’s rule by refusing to join the King Day
celebration, (2) admitted her knowledge that attendance was mandatory, and (3)
continued to express her lack of remorse for skipping the event.
And as the dissenting justices invent unfounded criticisms of the cofounder
of Focus Hope, they fail to give effect to the magistrate’s findings that plaintiff
“actually did willfully not attend the Defendant’s M L King Day Celebration” and
that “[s]he actually did suffer disciplinary action on account thereof.” (Emphasis
added.) The dissent’s effort to disconnect plaintiff’s misconduct from her
resulting disability is therefore unavailing and contrary to the magistrate’s own
findings.
Next, the dissent endorses the Court of Appeals assertion that plaintiff’s
“pre-arranged non-attendance” was not misconduct. Post at 5. But Focus Hope
required employees to provide a legitimate excuse to the human resources
department, and it is undisputed that plaintiff did not inform the department of her
absence before the event. Although plaintiff did inform Lepper, her immediate
supervisor, of her decision not to attend, plaintiff knew that she was violating a
rule because Lepper told her that she would be docked a day’s pay. The dissent
does not explain how plaintiff’s acceptance of a penalty for violating the rule
14
excuses or negates her violation of the rule, nor does the dissent explain how the
fact that plaintiff was ultimately docked for two days’ pay rather than one negates
the existence of the rule. The rule existed and was violated regardless whether
plaintiff was docked for one day or two days.
It is important to recall that plaintiff was not fired for her refusal to attend
the King Day event. Rather, plaintiff claims that she remains indefinitely unable
to work because of a major depressive episode arising from the events surrounding
her punishment, including having her pay docked for two days instead of one. We
note that the magistrate himself found plaintiff’s alleged reaction to these events to
be “excessive bordering on outlandish.”
The dissent accuses the majority of concluding that plaintiff’s misconduct
in this case was “equivalent” to the misconduct that occurred in Daniel. Post at 1-
2, 6. But we have expressed no such view. A claimant’s misconduct does not
have to be “equivalent” to the misconduct that occurred in Daniel in order to bar
the plaintiff from recovering workers’ compensation benefits. Rather, under MCL
418.305, the plaintiff is barred from recovering benefits if the misconduct was
“intentional and wilful.” The statute does not require equivalence to the
misconduct in Daniel.
The dissent states that we have “nonsensically” concluded that an
employee’s intentional and willful misconduct bars workers’ compensation
benefits “regardless of whether the rule is controversial and whether it is properly
and uniformly enforced.” Post at 6. As we have explained above, however, there
15
is no evidence that Focus Hope did not properly or uniformly enforce its rule.
Other than her own admitted speculation, plaintiff presented no evidence that other
employees failed to attend the event, failed to inform the human resources
department, and then went unpunished for their misconduct.
Moreover, MCL 418.305 contains no exception that would allow
employees to intentionally and willfully violate employer rules that a workers’
compensation tribunal or appellate court later deems “controversial.” The dissent
has invented this exception out of whole cloth. It is not clear on what authority the
dissent would permit tribunals or courts to find that an employer’s rule is
“controversial” and to then disregard the plain language of MCL 418.305 on the
basis of that finding. Nor is it clear whether or how the dissent believes that a
tribunal or court would possess the institutional capacity to decide on a principled
basis what is or is not “controversial.” And even if the Legislature had adopted a
“controversial” rule exception in MCL 418.305, the dissenting justices do not
explain why they find it “controversial” to celebrate Dr. King’s birthday in a way
that promotes Focus Hope’s goal of racial reconciliation.
Finally, the dissent fundamentally distorts the nature of Focus Hope’s rule
by questioning whether “there was a well-established work rule to hold the event
in Dearborn, as opposed to Detroit.” Post at 3. But plaintiff concedes that when
she was hired, she was told by Josaitis that all employees were expected to attend
the King Day celebration, and that this celebration was the most important event
of the year for Focus Hope. Plaintiff accepted her position with full knowledge
16
that she was required to attend the event. In 2002, Josaitis held the event in
Dearborn to further Focus Hope’s goals of racial reconciliation and healing past
wounds. During her testimony, Josaitis quoted the Focus Hope mission statement,
which provides:
Recognizing the dignity and beauty of every person, we
pledge intelligent and practical action to overcome racism, poverty
and injustice. And to build a metropolitan community where all
people may live in freedom, harmony, trust and affection. Black and
white, yellow, brown and red from Detroit and its suburbs of every
economic status, national origin and religious persuasion we join in
this covenant.
Josaitis testified that “every single person that comes to Focus Hope, the first
question that they’re asked is do you have any philosophical difference with that
mission statement. That mission statement is on the back of all of our business
cards, it hangs on every wall.”
Josaitis testified that the mission statement fit into the King Day celebration
because “Martin Luther King was a man that was trying to build bridges. . . . So,
on Dr. King day we always came together to talk about the history of civil rights
and where we were going into the future.” She further explained that “every
single person that comes to work for Focus Hope goes through a two-hour
orientation with me and then they go through an orientation with the Human
Resources Department and every single person is told that it is mandatory and why
it is so important.” (Emphasis in original.) It is undisputed that plaintiff went
through this orientation.
17
Focus Hope’s mission statement articulates goals and ideals that are not
limited to the geographical boundaries of one city. Indeed, the mission statement
expressly refers to “Detroit and its suburbs” and to the “metropolitan community.”
(Emphasis added.) Plaintiff had full notice of the mission statement when she
agreed to work for Focus Hope, and the 2002 celebration was held in Dearborn to
advance those goals. Therefore, the dissent’s effort to confine Focus Hope’s
celebration of Dr. King’s birth to a Detroit-only venue is wholly unconvincing.
V. CONCLUSION
For these reasons, we hold that plaintiff’s injury arose out of her intentional
and willful misconduct in refusing to attend an employer-mandated event. We
reaffirm the holding in Daniel and reject the insertion of a “moral turpitude”
requirement into the text of MCL 418.305. Accordingly, the judgment of the
Court of Appeals is reversed.
Maura D. Corrigan
Clifford W. Taylor
Robert P. Young
Stephen J. Markman
18
STATE OF MICHIGAN
SUPREME COURT
PATRICIA D. BRACKETT,
Plaintiff-Appellee,
v No. 135375
FOCUS HOPE, INC., and ACCIDENT
FUND INSURANCE COMPANY OF
AMERICA,
Defendants-Appellants.
WEAVER, J. (dissenting).
I dissent from the decision of the majority of four (Chief Justice Taylor and
Justices Corrigan, Young, and Markman) to reverse the judgment of the Court of
Appeals on the ground that the plaintiff’s refusal to attend a mandatory employee
event constituted “intentional and wilful misconduct” under MCL 418.305,
thereby barring her recovery of benefits under the Worker’s Disability
Compensation Act, MCL 418.101 et seq.
The majority of four, in reversing the decisions reached by the magistrate,
the Workers’ Compensation Appellate Commission (WCAC), and the Court of
Appeals, has supplanted the very well-reasoned findings reached by the
aforementioned entities with its own nonsensical conclusion that the “intentional
and wilful misconduct” engaged in by the plaintiff in this case was equivalent to
the “intentional and wilful misconduct” that occurred in Daniel v Dep’t of
Corrections, 468 Mich 34; 658 NW2d 144 (2003). Having authored Daniel, I take
issue with the majority’s unfounded conclusion and instead agree that the
“plaintiff’s decision to not attend the Martin Luther King celebration in
Dearborn . . . was ‘a far cry’ from the probation officer’s sexual harassment in
Daniels [sic].”1 Consequently, I agree with the decision reached by the Court of
Appeals affirming the magistrate and WCAC’s award of benefits to the plaintiff.
A brief recitation of the facts illustrates the distinction between the
employee misconduct that occurred in Daniel2 and the employee action that
occurred here. The plaintiff, Patricia D. Brackett, worked for defendant Focus
Hope in Detroit. Focus Hope’s mission statement emphasizes the importance of
following the teachings of Martin Luther King, Jr. During her hiring interview,
Ms. Brackett was advised that she would be required to attend a Focus Hope event
on Martin Luther King, Jr., Day. Because the Martin Luther King Day
celebrations had always been held in Detroit, Ms. Brackett had no reason to
believe at the time she was hired that she would be required to attend the event in
the city of Dearborn. However, in 2002, the year that Ms. Brackett was employed
by Focus Hope, the director, Eleanor Josaitis, decided to hold the event not in
1
Brackett v Focus Hope, Inc, unpublished opinion per curiam of the Court
of Appeals, issued October 23, 2007 (Docket No. 274078) (emphasis added).
2
The claimant in Daniel was a male probation officer employed by the
Michigan Department of Corrections. The basis for denying workers’
compensation benefits to the claimant in Daniel was the probation officer’s blatant
and repeated sexual harassment of several female defense attorneys.
2
Detroit, but in Dearborn, in an effort to promote Focus Hope’s goal of racial
reconciliation. Ms. Brackett testified that the decision was a topic of open
discussion among Focus Hope employees. Approximately 50 to 60 Focus Hope
employees, including Ms. Brackett, who is African-American, believed the event
should not be held in Dearborn.
Speaking personally about her objections to holding the event in Dearborn,
Ms. Brackett testified that she voiced her concerns to her immediate supervisor
given her own family’s past experience in the community. Indeed, evidently the
Focus Hope director’s desire to hold the event in Dearborn, instead of Detroit, was
based in part on her decision to expand the scope of Focus Hope’s policy by
carrying Focus Hope’s message into a new realm, an area that Ms. Brackett
testified was “not a good fit” for her.
While the majority equates the “misconduct” that occurred here with the
sexual harassment misconduct that occurred in Daniel, it is not even clear that
there was a well-established work rule to hold the event in Dearborn, as opposed
to Detroit. Therefore, it cannot be said that Ms. Brackett violated a well-
established work rule.
Moreover, the “harm” that Ms. Brackett suffered in this case was not
caused by the initial response by her supervisor, but by the director’s harsh
personal censure of Ms. Brackett. Specifically, Ms. Brackett notified her
immediate supervisor that she objected to attending the event in Dearborn and her
supervisor told her she would be docked one day’s pay for her refusal to attend.
3
Ms. Brackett accepted this reprimand. It was not until after the Dearborn event
that Ms. Josaitis harshly censured Ms. Brackett for refusing to attend. Ms.
Brackett asserts that Ms. Josaitis and she had a “one-on-one” meeting, during
which time the director told Ms. Brackett she was disappointed by Ms. Brackett’s
lack of loyalty and that she had lost faith in her as a Focus Hope employee.
In addition, instead of docking Ms. Brackett’s pay for only one day, which
was the accepted punishment dictated by Ms. Brackett’s supervisor, the director
informed Ms. Brackett that she would be docked two days’ pay. During this
meeting, Ms. Brackett further alleges that Ms. Josaitis shook her finger in Ms.
Brackett’s face and told her that she did not deserve a check from Focus Hope.
When Ms. Brackett then asked if she was being fired, Ms. Josaitis simply
shrugged her shoulders and left the room.
As a result of this confrontation, Ms. Brackett left the job that day and has
not returned since. She was deeply upset by the incident and a psychiatrist
diagnosed her as suffering from disabling depression as a result of the harsh
reprimand by the director.
Given the fact that Ms. Brackett testified that 50 to 60 other Focus Hope
employees did not attend the Martin Luther King Day celebration in Dearborn,
and there was no evidence that these employees were also singled out and
reprimanded in the same harsh manner as Ms. Brackett, it is questionable whether
Daniel even applies. Daniel states that “MCL 418.305 does not operate to
preclude benefits where an employee was injured while violating a work rule that
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had not been enforced by the employer.” Id. at 46-47. Because it appears that Ms.
Brackett was selectively singled out for harsh punishment, it is questionable
whether this work rule was strictly enforced across the board.
All the lower tribunals that dealt with this case declined to deem Ms.
Brackett’s decision not to attend the celebration in Dearborn as “misconduct.”
Although the magistrate found that Ms. Brackett “actually did willfully not attend
the defendant’s M L King Day celebration,” he made that determination in the
context of discussing Ms. Brackett’s perceptions of workplace events. In deciding
whether Ms. Brackett should be denied benefits under MCL 418.305, the
magistrate used the word “misconduct” in quotation marks and refused to follow
Daniel, ruling that the conduct at issue in this case was “a far cry” from that in
Daniel. The WCAC specifically stated that to call Ms. Brackett’s actions
“misconduct” was “clearly unreasonable” because she should not have been
expected to attend the celebration in Dearborn. The Court of Appeals agreed that
Ms. Brackett’s “pre-arranged non-attendance” was not misconduct. Brackett,
supra at 2.
Additionally, the magistrate found that Ms. Josaitis’s reaction amounted to
a “chastisement” of Ms. Brackett, whom she accused of having “broken trust”
with the organization and with Ms. Josaitis herself. Neither the open discussions
among the employees of Focus Hope about the propriety of holding the
celebration in Dearborn nor Ms. Brackett’s discussion with her supervisor about
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the one-day-pay sanction had prepared Ms. Brackett for Ms. Josaitis’ severe
criticism and loss of trust in her, which accompanied the decision to dock her two
days’ pay. Notably, the magistrate did not find that Ms. Brackett was injured by
Ms. Josaitis’s enforcement of the rule through the increased pay sanction. Rather,
he found that she was injured by Ms. Josaitis’s expressed personal disappointment,
lack of trust, and loss of confidence in Ms. Brackett. Thus, it is questionable
whether Ms. Brackett’s mental injury resulted from the proper enforcement of a
workplace rule.
Given the evidence tending to show that Ms. Brackett was singled out for
harsh criticism, and the fact that her “misconduct” here does not equate to the
“intentional and wilful” sexual harassment that occurred in Daniel, I dissent from
the majority of four’s decision to reverse and thereby deprive Ms. Brackett of
disability benefits. The magistrate, the WCAC, and the Court of Appeals all
concluded that the rule in Daniel should not be extended to this case. The
majority of four instead nonsensically concludes that an employee’s decision not
to follow a work rule amounts to so-called “intentional and wilful misconduct”
and precludes workers’ compensation benefits regardless of whether the rule is
controversial and whether it is properly and uniformly enforced. Consequently, I
agree with the decision reached by the Court of Appeals affirming the magistrate
and WCAC’s award of benefits to the plaintiff.
As a final point, I note that given the vastly divergent factual scenarios
presented in this case and in Daniel, the majority of four should, at the very least,
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have granted the application for leave to appeal in order that the parties and the
Court would have the benefit of full briefing and argument on this important
question.
Elizabeth A. Weaver
Michael F. Cavanagh
Marilyn Kelly
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