MARIE SKLADANOWSKI V CLEAR CHANNEL RADIO
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STATE OF MICHIGAN
COURT OF APPEALS
MARIE SKLADANOWSKI,
UNPUBLISHED
December 14, 2006
Plaintiff-Appellee,
v
No. 261004
Wayne Circuit Court
LC No. 04-411807-CZ
CLEAR CHANNEL RADIO,
Defendant-Appellant.
Before: Cavanagh, P.J., and Markey and Meter, JJ.
PER CURIAM.
Defendant appeals as of right from the trial court’s order vacating an arbitration award for
defendant and directing the arbitrator to enter an award in favor of plaintiff in this case involving
the Family and Medical Leave Act (“FMLA”), 29 USC 2601 et seq. We affirm in part, reverse
in part, and remand this case for further proceedings.
“We review de novo a trial court's decision regarding an order to enforce, vacate, or
modify an . . . arbitration award.” Tokar v Albery, 258 Mich App 350, 352; 671 NW2d 139
(2003). According to MCR 3.602(J)(1)(C), a reviewing court should vacate an arbitration award
if it finds that the arbitrator exceeded his or her powers. Arbitrators exceed their powers when
they act in contravention of controlling principles of law. Saveski v Tiseo Architects, Inc, 261
Mich App 553, 554; 682 NW2d 542 (2004). If it clearly appears from the face of the award that
the arbitrator was led to the wrong conclusion through an error of law and that, but for the error,
a substantially different award would have been made, the award and decision should be vacated.
Saveski, supra at 555.
Plaintiff, a former saleswomen for defendant, resigned from her employment with
defendant because defendant concluded that she would not be paid commissions for accounts she
had previously procured1 if she took a leave of absence under the FMLA to complete an adoption
1
Defendant’s practice is to pay commissions to its salespeople not immediately after a sale is
procured, but after it is “aired and billed.” Therefore, weeks or months can pass between the
time a salesperson procures work and the time a salesperson is fully compensated for the
procurement.
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of a child. Plaintiff thereafter sought payment for the sales she procured before her resignation
and made a demand for arbitration.2 The arbitrator ruled in favor of defendant, concluding, in
part, that defendant breached no contract and therefore was not obligated to make any payments
to plaintiff.
In our opinion, it is clearly apparent from the face of the arbitration award that the
arbitrator was led to a wrong conclusion through an error of law and that, but for the error, a
substantially different award would have been made. Id. Indeed, the parties do not dispute that a
valid agreement was in place whereby plaintiff would be paid commissions for procured work
after the work was “aired and billed.” Defendant indicated, however, that if plaintiff took a leave
of absence under the FMLA, she would forfeit earned commissions during that period.
Defendant relied on a provision of the FMLA stating that leave granted to an employee “may
consist of unpaid leave.” See 29 USC 2612(c).
The language of the FMLA relied on by defendant simply does not discuss employees
who are paid based on commissions. While the FMLA indicates that an employer should not
have to pay an employee for the work the employee misses while on leave, it certainly does not
provide a basis for refusing to pay commissions for sales that an employee has already earned
and is entitled to under a valid agreement with the employer.3 Defendant incorrectly concluded
that it could legitimately refuse to pay plaintiff her commissions while she was on FMLA leave.
The arbitrator erred in concluding that defendant did not owe plaintiffs commission
payments for work she procured that was aired and billed during the time designated for her
FMLA leave. Moreover, because plaintiff resigned her position only because of defendant’s
unequivocal assertion that it would not make commission payments to plaintiff during her
2
We note that, “[u]nder the doctrine of repudiation or anticipatory breach, if, before the time of
performance, a party to a contract unequivocally declares the intent not to perform, the innocent
party has the option to either sue immediately for the breach of contract or wait until the time of
performance.” Stoddard v Manufacturers National Bank of Grand Rapids, 234 Mich App 140,
163; 593 NW2d 630 (1999). Because defendant unequivocally declared the intent not to pay
plaintiff her legitimately earned commissions, plaintiff was not required to actually take the
FMLA leave and await the time for performance before seeking remedial action.
3
We note that this interpretation is supported by the purpose of the FMLA. “Enacted in 1993,
the FMLA represents an attempt to reconcile the demands of the workplace with the needs of
families.” Woodman v Miesel Sysco Food Service Company, 254 Mich App 159, 166; 657
NW2d 122 (2002) (citation and quotation marks omitted). “Thus, while Congress sought to
provide employees the right to take reasonable leave . . ., it also sought to do so in a manner that
accommodates the legitimate interests of employers.” Woodman, supra at 166 (citation and
quotation marks omitted). In this case, our interpretation of the FMLA properly balances the
interests of the employee and the employer. Plaintiff is paid for the work she did and is allowed
to take a leave of absence, while defendant is not required to pay her for the work she missed.
Under defendant’s interpretation, plaintiff would not be paid for the work she had already done,
and defendant would essentially receive a windfall.
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FMLA leave, plaintiff was also entitled to recover commission payments for work she procured
that was aired and billed after the time designated for her FMLA leave. Accordingly, we affirm
the trial court’s ruling with regard to defendant’s liability for the commission payments. The
arbitrator exceeded her authority by committing a clear error of law. Saveski, supra at 554-555.
However, we disagree with the court’s decision to simply accept, without inquiry, a
monetary figure in the schedule plaintiff provided to the court concerning the amount owed.
Therefore, a hearing on damages is appropriate. See MCR 3.602(J)(3).4 However, no damages
shall be awarded for periods beyond December 31, 2002, because plaintiff does not argue for
such damages on appeal.
Affirmed in part, reversed in part, and remanded for further proceedings in accordance
with this opinion. We do not retain jurisdiction.
/s/ Mark J. Cavanagh
/s/ Jane E. Markey
/s/ Patrick M. Meter
4
This court rule states that if an arbitration award is vacated because the arbitrator exceeded her
authority, “the court may order a rehearing before the arbitrator who made the award.” We
disagree with defendant that plaintiff’s apparent failure to provide authenticated documentation
of damages before the arbitrator is fatal to her current claim for damages. As noted by defendant
on appeal, “no transcript exists of the arbitration,” so this Court does not know, with certainty,
what occurred during the arbitration. However, it is clear to us that, given the arbitrator’s ruling,
the arbitrator ultimately did not even reach the issue of damages. Now that we have reversed the
arbitrator’s initial ruling, a hearing on damages has become pertinent and necessary.
-3-
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