RONALD G BERGLUND V DEPARTMENT OF ENERGY LABOR & ECONOMIC GROWTH
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STATE OF MICHIGAN
COURT OF APPEALS
RONALD G. BERGLUND,
UNPUBLISHED
July 21, 2011
Petitioner-Appellee,
v
No. 298227
Wayne Circuit Court
LC No. 08-119311-AE
INDUSTRIAL TECHNOLOGY INSTITUTE,
Respondent-Appellant,
and
DEPARTMENT OF ENERGY, LABOR &
ECONOMIC GROWTH, UNEMPLOYMENT
INSURANCE AGENCY,
Appellee.
Before: TALBOT, P.J., and HOEKSTRA and GLEICHER, JJ.
PER CURIAM.
Industrial Technology Institute, d/b/a Michigan Manufacturing and Technology Center
(hereinafter “ITI”), appeals the circuit court order reversing the decision of the Employment
Security Commission Board of Review, which upheld the denial of unemployment benefits to
Ronald Berglund by the Unemployment Insurance Agency. We reverse.
This appeal arises from the termination of Berglund’s employment for using ITI’s
equipment to print materials unrelated to his employment and for using his computer to access
inappropriate websites. ITI argues that the circuit court erred in reversing the decisions of an
administrative law judge (hereinafter “hearing referee”) and the board of review because those
decisions were supported by competent, material, and substantial evidence. We agree.
In its review of an administrative decision on a claim for unemployment benefits:
The circuit court . . . may review questions of fact and law on the record
made before the referee and the board of review . . . but the court may reverse an
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order or decision only if it finds that the order or decision is contrary to law or is
not supported by competent, material, and substantial evidence on the whole
record. . . .1
“‘[W]hen reviewing a lower court’s review of agency action this Court must determine whether
the lower court applied correct legal principles and whether it misapprehended or grossly
misapplied the substantial evidence test to the agency’s factual findings.’”2
“[A]n individual is disqualified from receiving benefits if he or she . . . [w]as suspended
or discharged for misconduct connected with the individual’s work. . . .”3 “[P]rovisions
regarding the disqualification from benefits are to be construed narrowly.”4 “[T]he employer
bears the burden of proving misconduct.”5 Our Supreme Court has defined “misconduct” as
follows:
[C]onduct evincing such willful or wanton disregard of an employer’s
interest as is found in deliberate violations or disregard of standards of behavior
which the employer has the right to expect of his employee, or in carelessness or
negligence of such degree or recurrence as to manifest equal culpability, wrongful
intent or evil design, or to show an intentional and substantial disregard of the
employer’s interests or of the employee’s duties and obligations to his employer.6
The Court also specified what conduct does not comprise “misconduct” under the applicable
statutory provision7, stating:
[M]ere inefficiency, unsatisfactory conduct, failure in good performance
as the result of inability or incapacity, inadvertencies or ordinary negligence in
isolated instances, or good-faith errors in judgment or discretion are not to be
deemed “misconduct” within the meaning of the statute.8
1
MCL 421.38(1).
2
Motycka v Gen Motors Corp, 257 Mich App 578, 581; 669 NW2d 292 (2003), quoting Boyd v
Civil Serv Comm, 220 Mich App 226, 234; 559 NW2d 342 (1996).
3
MCL 421.29(1)(b).
4
Korzowski v Pollack Indus, 213 Mich App 223, 228; 539 NW2d 741 (1995).
5
Id.
6
Carter v Employment Security Comm, 364 Mich 538, 541; 111 NW2d 817 (1961), quoting
Boynton Cab Co v Neubeck, 237 Wis 249, 259-260; 296 NW 636 (1941).
7
MCL 421.29(1)(b).
8
Carter, 364 Mich at 541.
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The hearing referee found that at the time Berglund was placed on work probation he was
directed not to use ITI’s resources or equipment to further his outside employment. This finding
is supported by Human Resources Director Katrina Glowzinski’s testimony that Berglund was
told that he “was absolutely not to use our copiers, our printers, our computers to do his Central
Michigan teaching.” The hearing referee further found that Berglund downloaded materials
associated with his outside employment on September 13, 2007. Berglund admitted that he
printed a paper from a CMU student that had been emailed to him.
The hearing referee also found that on September 13, 2007, Berglund “visited a number
of web sites that were totally inappropriate to be visited” and that these websites included “some
that displayed nudity.” These findings are supported by the testimony of Berglund’s manager,
Jim Rice, that he saw an image of scantily dressed teenage girls on Berglund’s computer screen
at a website with a title of or involving the words teenagecheerleaders.com. Glowzinski testified
Berglund had accessed other websites including “[s]extelevision.net, swimsuit models, and
Victoria’s Secret.” Information Technology Manager Eric Fisher testified that Rice and another
ITI person examined the websites visited by Berglund’s computer and found that several
contained nudity and were considered pornographic. A Playboy website had been accessed on
the days investigated by Fisher. Glowzinski deemed the “sexy model” and “sex television”
websites as inappropriate. Although Berglund did not express an opinion about whether the
websites he viewed on September 13 or 14 were inappropriate, he admitted receiving and
keeping emails that he deemed inappropriate. He acknowledged that some of the emails he kept
were pornographic and that he “might have” instructed his computer to access a site like
sextv.com.
The hearing referee found that “in an eight hour day the records reflect some 3½ to 4
hours of visiting those types of sites,” which was consistent with testimony elicited from
Glowzinski, who stated that “inappropriate non-company” websites were open for 3½ to 4 hours.
Thus, the hearing referee’s finding is supported by competent, material, and substantial evidence.
From these findings, the hearing referee determined that Berglund was guilty of
misconduct. The hearing referee stated:
There is some diametrically opposed evidence from the respective parties,
however, the evidence provided by the employer where it is at odds with that of
the claimant, is deemed superior in weight, quality and credibility. Accordingly,
it is concluded based upon the believable evidence, that the claimant was guilty of
the violation of the probation and the violation of the directive as well as engaging
in the inappropriate computer use and is considered guilty of misconduct
connected with the employment for which he was discharged.
The board of review agreed.
The hearing referee and board of review did not err in determining that accessing
websites displaying nudity using ITI’s computer constituted “misconduct.” Berglund’s position
was that whatever he did, it did not affect his work performance at ITI. He emphasizes that
personal use of the work computer was allowed at ITI, and contends that his conduct did not
amount to “willful or wanton disregard of an employer’s interests as is found in deliberative
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violations or disregard of standards of behavior.”9 Berglund did acknowledge when testifying
that accessing websites of this nature leads to spam, pop ups, and cookies. He recalled “a big
incident” in which “we had lots of cookies coming through” and ITI had to change its filter “to
prevent these sorts of sites from being attached.” An employer has an interest in maximizing the
capability of its network. An employee who deliberately accesses websites that hinders the work
network’s capability harms the interests of the employer. Contrary to Berglund’s position that
his actions were immaterial, use of the employer’s computer equipment to access websites with
nudity is not the equivalent of keeping a magazine in a desk drawer.
The circuit court reversed the decisions of the hearing referee and board of review
because it believed that proof that the websites were inappropriate was lacking. The court
opined, “Although there was testimony regarding the alleged access of inappropriate sites, there
were no documents or exhibits entered into the record to support the allegation that the sites were
clearly or undoubtedly inappropriate. . . .” Contrary to the position of the circuit court, the
testimony alone provided competent, material, and substantial evidence to support the hearing
referee’s finding that the websites were inappropriate.
The circuit court also noted that there was inadequate evidence that Berglund was
“instructed not to access those sites.” Although the court is correct that there was no evidence
that Berglund was specifically warned not to access inappropriate websites, “misconduct” as
defined by our Supreme Court, does not require a warning.10
Finally, the circuit court noted, “[T]here is little to support the employer’s assertion that
Appellant was instructed not to print or use the employer’s resources for outside activities.” Yet,
Glowzinski testified that at a September 11 meeting Berglund was told that he “was absolutely
not to use our copiers, our printers, our computers to do his Central Michigan teaching.”
Glowzinski’s testimony provided competent, material, and substantial evidence to support the
hearing referee’s determination that Berglund had been directed not to use ITI’s resources for his
outside employment, and violated this directive when he printed his student’s paper.
Because the hearing referee’s findings, which were accepted by the board of review, are
supported by the evidence and reflect a correct application of the law, the circuit court erred in
overturning the board of review’s decision affirming the hearing referee’s denial of benefits.
9
Id.
10
Id.
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Accordingly, we reverse the circuit court’s decision and reinstate the board of review’s decision
upholding the denial of unemployment benefits to Berglund.
Reversed.
/s/ Michael J. Talbot
/s/ Joel P. Hoekstra
/s/ Elizabeth L. Gleicher
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