4/December 2006—MDC Michigan Supreme Court Lansing, Michigan
Chief Justice: Justices: Clifford W. Taylor Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly 

# Opinion

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 whet her plaintiff’s refusal to attend an employer-mandated event constituted “int entional and wilful misconduct” under MCL 418.305, thereby barri ng her recovery of ben efits under the Worker’s Disability Compensati on Act, MCL 418.101 et seq . The magistrate found that plaintiff willfully refused to attend the ev ent, despite having be en informed that the event was essential in promoting th e 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 pl aintiff as a full- time employee in January 2001. Defendant’s cofound er and chief executive officer, Eleanor Josaitis, told plaintiff that the mission of Focus Hope is to seek racial equality and reconciliation. Josaitis furth er explained that the most important function of the year is the Martin Luther King, Jr., birthday celebra tion, 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. Plainti ff told her immediate supervisor, David Lepper, that she would not attend the event in Dearborn b ecause she and her family had bad experiences there as Afri can-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 Jo saitis 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

2was hired that attendance at the King Day event was mandatory, and that the purpose of Focus Hope was to promote acceptance and to lerance. 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 exchange d memos explaining their respective positions. Josaitis wrote in her memo that plaintiff’s failure to attend the King Day event had reduced her c onfidence in plaintiff’s co mmitment to Focus Hope’s goals. Josaitis explained: The purpose of the Civil Rights movement was to change the negative perception and prej udice of any individual towards another, based on race, gender, religion, co lor, or creed th rough the use of non-violent action. Father [Wi lliam] Cunningham and I started Focus: HOPE based on this same ph ilosophy that Dr. King gave his life for. Just as I st ated to you in your orientation, I expect Every Focus: HOPE Colleague to ab ide by these same principles. To harbor such feelings of the past without thinking how our MLK mandatory staff development da y 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 ad mitted that she understood that attendance at the King Day event was mandatory, but st ated 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 birt hday [in].” She added, “I did not attend the celebration and expressed [i n the meeting] that I spent it with my family and with no regrets accepting the day off with no pay!” Plaintiff then

3wrote, “I do not accept [Josaitis’s] judging and wrongfully degrading my character as a [sic] ‘untrust worthy person.’” Plaintiff claims that a second mee ting occurred in whic h 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, Jo saitis shrugged her sh oulders and let her out of the office. Josaitis testified that she remained calm and that sh e did not yell or threaten to fire her. Plaintiff claimed that Josaitis’s allege d comments traumatized her. Plaintiff left work and never return ed. Her psycholo gist opined that plaintiff suffered a major depression precipitated by work events and that sh e is unable to work. A defense psychiatrist found no evidence of a continui ng mental disability and opined that plaintiff could retur n to work with out restrictions. The workers’ compensation magistrat e credited the testimony of plaintiff and her psychologist. The ma gistrate found that plainti ff’s mental disability arose from actual employment events and that plaintiff’s percep tion 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 thes e events and her reasonable perceptions thereof (i.e., experiencing a major depre ssive episode causing disability for more than two years) is excessi ve bordering on outlandish.”

4refusal, the magistrate nonetheless rejecte d 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., se xual harassment] alleged in Daniel [ v Dep’t of
Corrections , 468 Mich 34; 658 NW2d 144 (2003)], and for th at reason I decline to follow” Daniel

. The Workers’ Compensation Appellate Commission (WCAC) affirmed. It chastised defendant as “i nsensitive” for failing to reco gnize that plaintiff’s agreement to attend King Day celebrations would not require h er to attend such events in Dearborn. Thus , the WCAC found “ab solutely no mer it to defendants’ claim that plaintiff’s behavior should di squalify her for benef its pursuant to the doctrine set forth in” Daniel

. The Court of Appeals denied leav e 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 determ ined that suffi cient evidence supported the finding that plaintiff’s co nduct 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 th at 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 a ppeal to this Court. We scheduled the case for oral argument on the applica tion, directing the parties to address “whether plaintiff’s injury resu lted from her willful misconduct.” 6
II. STANDARD OF REVIEW In the absence of fraud, this Court must consider the WC AC’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 revie w 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 comp ensation under the provisions of this act.” “This provision has remained essentially unchanged since it was first adopted by the Le gislature 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).

6supra at 41. The question here is whet her plaintiff’s refusal to attend an employer-mandated event, a refusal that the magistrate specifically found to be “willful,” constitutes “intentional and wilf ul misconduct” that bars recovery of workers’ compensation benefits. Our fundamental obligation when interpreting a stat ute is to discern the legislative intent that ma y 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 mu st 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 consu lted to define a co mmon word or phrase that lacks a unique legal meaning. Id . at 151-152. A legal term of art, however, must be construed in accordan ce with its peculiar and a ppropriate 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 ph rase 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 res pected or obeyed: a willful son who ignored his parents’ advice.” Id . “‘“[W]illful” me ans action taken knowledgeably

7by one subject to the statutor y provisions in disregard of the action’s legality. No showing of malicious intent is necessary. A consciou s, intentional, deliberate, voluntary decision pr operly 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 “impr oper” and done “on purpose” despite the knowledge that it is against the rules. Likewise, Black’s Law Dic tionary (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 condu ct, justifying a denial of unemployment compensation if the employee is terminated for the misconduct.” And, indeed, in the past, our Court ha s approached the d efinition 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 oppos ition to the will of the employer.”
In Detwiler , the plaintiff’s husband was kille d in a freight elevator accident at work. Another empl oyee had “cautioned” the d ecedent against using the elevator because it was dangerous, but the employer had no rule barring its use. This Court rejected the employer’s argum ent that the deced ent’s use of the elevator constituted intenti onal and willful misconduct:

8Assuming, 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 ar gument, that the instruction or caution here was duly auth orized, 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 po sitive 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, bu t that if an employee was injured while disobeyi ng any such instructions he should be deprived of compensa tion. An employer can not be allowed to impose two standards of care upon his employees, one for the ordinary conduct of his busin ess and the other as a test of liability under the workmen’s comp ensation * * * act in case of accident.” [ Id . at 81-82 (emphasis added).] The Detwiler Court’s adoption of the “obstin ate and perverse opposition to the will of the employer” d efinition is useful in accord ing meaning to the entire statutory phrase “intentional and wilful mi sconduct.” Under this standard, § 305 bars an employee from recovering benefits for misconduct that is both (1) intentional, i.e., deliberate or nonaccident al, and (2) willful, i.e., obstinately or perversely opposed to the em ployer’s will. An employ er’s work rule must be clearly established and consistently en forced in order for the employee to

9understand the mandatory na ture 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 suspende d 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 th at the plaintiff was injured by reason of his intentional and willful misconduct. Daniel , supra at 44. Furth er, this Court rejected the Court of Appeal s majority’s conclusion that the misconduct did not rise to a sufficient level of moral turp itude to be “‘intentional and wilful.’” Id . at 45. Similarly, the facts found by the ma gistrate and the WCAC in this case establish that plaintiff’s refusal to attend the King Da y 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 th is finding, and the WC AC did not disturb it. This finding is supported by eviden ce in the record . Therefore, we must treat as conclusive the WCAC’s finding that plaintiff’s refus al to attend was willful. Mudel , supra . Plaintiff’s deliberate and cate gorical refusal to attend this mandatory function constitute d insubordination.

10In concluding that plaintiff’s misconduct was not excluded by MCL 418.305, the Court of Ap peals agreed with the WCAC that, unlike the sexual harassment in Daniel , plaintiff’s conduct perhaps violated a wor kplace rule but was insufficiently serious to preclude benefits under § 30 5. The Court of Appeals cited Andrews , in which the Court of Appeals st ated that misconduct must involve some unspecified degree of “moral turp itude” in order to bar recovery. The Andrews Court relied on Crilly v Ballou , 353 Mich 303, 327; 91 NW2d 493 (1958), in which this Cour t asserted in dictum that the statute excluded from coverage “acts of a degree of moral turp itude,” equating inte ntional and willful misconduct with acts of a “gross and reprehensible nature.” The dictum in Crilly essentially engrafts a “mo ral 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 tribuna ls may assess in deciding whether to apply the statutory exclusion. Rather, the statute simply ex cludes benefits where the injuries arose by reason of the employee’s inten tional 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 mo ral turpitude that was intentional and willful. We held that the plaintiff’s repeated acts of sexual harassment were voluntary and went beyond neg ligence or gross negligence. The same analysis applies here. Plai ntiff willfully refu sed to attend her employer’s most important function. She did so in the face of an express

11requirement 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 disc iplined 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 singl ed out for harsh punishment” because approximately 50-60 other em ployees allegedly refused to attend the event in Dearborn. But neither the magistrate nor the WCAC found that plaintiff was singled out fo r punishment, and the record does not support such a finding. Plaintiff presente d no evidence other than her own vagu e, 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 collea gues “had adverse opinions about that particular site.” She later claimed that “there was like 80 people. [Eighty to ninety] people or some thing that didn’t attend. I forgot the people – the numbers, but there was more than myself – then I was called by Human Resources.” Still lat er, on cross-examination, pl aintiff contended that she “was the only person out of 80” to be questioned about h er failure to attend, then added, “I think there was two of us.” When asked how she knew this, plaintiff

12responded, “I guess it’s speculation.” Plai ntiff did not present testimony from or even identify any of the other employ ees who allegedly refused to attend. Even if plaintiff had shown that oth er employees did not attend the event, she offered no proof th at any such employees failed to provide a leg itimate excuse to the human resources depart ment before the ev ent, as defendant required, and that those employees then went unpunishe d despite their disobe dience. Thus, the dissent’s assertion that plaintiff was “si ngled 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 s upervisor, but by the director’s harsh personal censure of Ms. Brackett.” Post at 3. This hyperb olic criticism of Ms. Josaitis has no basis in th e record or in th e findings of the magistrate and the WCAC. The lower tribunals simply did not find that Jo saitis engaged in a “harsh personal censure.” It is most regretta ble that our dissen ting colleagues have chosen to lob these unfounded accusations. Moreover, the dissent’s unfounded accu sations do not reflect plaintiff’s documented, ongoing insubordination in which she continued to oppose the mandatory attendance at the King Day even t. In her memo to Josaitis following the initial meeting, plaintiff expressed no remorse. On the contrary, plaintiff continued to insist that sh e should not be required to attend the event in Dearborn because she “felt offended by the celebration being in a c ity that I do not frequent” and in which she “would be extremely uncomfortable celebrating Martin Luther

13King’s birthday.” Plaintiff admitted th at she had “no regret s accepting the day off with no pay!” And referring to Josaitis , plaintiff stated, “I do not accept her judging and wrongfully degr ading 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 ru le by refusing to join the King Day celebration, (2) admitted her knowledge th at 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 a ttend the Defendant’s M L Ki ng Day Celebration” and that “[s]he actually did suffer disciplinary action on account thereof .” (Emphasis added.) The dissent’s effort to disc onnect plaintiff’s misconduct from her resulting disability is therefo re 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 pr ovide a legitimat e excuse to th e human resources department, and it is undisputed that plain tiff did not inform the department of her absence before the event. Although plaintiff did info rm Lepper, her immediate supervisor, of her decision not to attend, plaintiff knew that she was violating a rule because Lepper to ld her that she would be docked a day’s pay. The dissent does not explain how plain tiff’s acceptance of a penalty for violatin g the rule

14excuses or negates her violation of the rule, nor does the disse nt explain how the fact that plaintiff was ultim ately docked for tw o 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 do cked for two days in stead of one. We note that the magistrate himself found plaint iff’s alleged reaction to these events to be “excessive bordering on outlandish.” The dissent accuses the majority of c oncluding that plaintiff’s misconduct in this case was “equivalent” to the misconduct th at 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 th e misconduct that occurred in Daniel in order to bar the plaintiff from recovering workers’ comp ensation benefits. Rather, under MCL 418.305, the plaintiff is barred from rec overing benefits if the misconduct was “intentional and wilful.” The statut e 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 work ers’ compensation benefits “regardless of wheth er the rule is controversial and whether it is properly and uniformly enforced.” Post at 6. As we have expl ained above, however, there

15is no evidence that Focus Hope did not properly or uniformly enforce its rule. Other than her own admitted speculation, plaintiff presen ted no evidence that other employees failed to attend the event, failed to inform the human resources department, and then went unp unished for their misconduct. Moreover, MCL 418.305 contains no exception that would allow employees to intentionally and willfully violate empl oyer 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 langua ge of MCL 418.305 on the basis of that finding. Nor is it clear wh ether 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 “c ontroversial.” 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-es tablished 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 Fo cus Hope. Plaintiff accepted h er position with full knowledge

16that she was required to attend the event. In 2002, Josaitis held the event in Dearborn to further Focus Ho pe’s goals of racial rec onciliation and h ealing past wounds. During her testimony, Josaitis quoted the Focus Hope mission statement, which provides: Recognizing the dignity and be auty of every person, we pledge intelligent and practical action to overcome racism, poverty and injustice. And to build a metropolita n community where all people may live in freedom, harmony, trust and affection. Black and white, yellow, brown and red from De troit 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 philo sophical difference with that mission statement. That mission statemen t is on the back of all of our business cards, it hangs on every wall.” Josaitis testified that the mission stat ement 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 fu rther explained that “ every single person that comes to work for Focus Hope go es through a two-hour orientation with me and th en they go through an or ientation with the Human Resources Department and every single pers on is told that it is mandatory and why it is so important.” (Emphasis in original .) It is undisputed that plaintiff went through this orientation.

17Focus Hope’s mission statement articul ates goals and ideals that are not limited to the geographical bo undaries of one city. Ind eed, the mission statement expressly refers to “Detroit and its suburbs ” and to the “ metropolitan community .” (Emphasis added.) Plaintiff had full no tice of the mission statement when she agreed to work for Focus Hope, and th e 2002 celebration was he ld in Dearborn to advance those goals. Therefore, the disse nt’s effort to conf ine Focus Hope’s celebration of Dr. King’s birth to a Detr oit-only venue is wh olly 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

18v S T A T E O F M I C H I G A N SUPREME COURT

PATRICIA D. BRACKETT, Plaintiff-Appellee, 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, an d Markman) to reverse the judgment of the Court of Appeals on the ground that th e plaintiff’s refusal to a ttend a mandatory employee event constituted “intentional and w ilful misconduct” under MCL 418.305, thereby barring her recovery of ben efits under the Worker’s Disability Compensation Act, MCL 418.101 et seq

. The majority of four, in reversing the decisions reach ed by the magistrate, the Workers’ Compensation Appellate Commission (WCAC), and the Court of Appeals, has supplant ed the very well-reasone d findings reached by the aforementioned entities with its own nonsensical conclusi on that the “intentional and wilful misconduct” engaged in by the pl aintiff in this case was equivalent to the “intentional and wilful mi sconduct” that occurred in Daniel v Dep’t ofCorrections, 468 Mich 34; 658 NW2d 144 (2 003). Having authored Daniel, I take issue with the majority’s unfounded conclusion an d instead agree that the “plaintiff’s decision to not attend the Martin Lut her 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 reach ed by the Court of Appeals affirming the magistrat e and WCAC’s award of be nefits to the plaintiff. A brief recitation of the facts illust rates the distinction between the employee misconduct that occurred in Daniel 2 and the employee action that occurred here. The plaintiff, Patricia D. Brackett, worked for defendant Focus Hope in Detroit. Focus Hope’s missi on statement emphasizes the importance of following the teachings of M artin Luther King, Jr. Du ring 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 be en 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. Ho wever, in 2002, th e year that Ms. Brackett was employed by Focus Hope, the director, Eleanor Josa itis, 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 o fficer employed by the Michigan Department of Corrections . The basis for denying workers’ compensation benefits to the claimant in Daniel was the probatio n officer’s blatant and repeated sexual harassment of sev eral female defense attorneys.

2Detroit, 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. B rackett, who is African-Am erican, 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 even t in Dearborn, instead of Detroit, was based in part on her deci sion to expand the scope of Focus Hope’s policy by carrying Focus Hope’s mess age into a new realm, an area that Ms. Brackett testified was “not a good fit” for her. While the majority equate s 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 sa id that Ms. Brackett violated a well

established work rule. Moreover, the “harm” th at 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. Sp ecifically, Ms. Brackett notified her immediate supervisor that sh e objected to attending th e event in Dearborn and her supervisor told her she woul d be docked one day’s pay fo r her refusal to attend.

3Ms. 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-on e” meeting, during which time the director told Ms. Brackett she was disappointed by Ms. Brackett’s lack of loyalty and that she had lost fa ith in her as a Focus Hope employee. In addition, instead of docking Ms. B rackett’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 doc ked two days’ pay. During this meeting, Ms. Brackett further alleges th at Ms. Josaitis shook her finger in Ms. Brackett’s face and told her th at she did not de serve a check from Focus Hope. When Ms. Brackett then as ked 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 jo b that day and has not returned since. She wa s deeply upset by the incident and a psychiatrist diagnosed her as suffering fr om disabling depression as a result of the harsh reprimand by the director. Given the fact that Ms. Brackett testif ied that 50 to 60 other Focus Hope employees did not attend the Martin Lu ther King Day celebration in Dearborn, and there was no evidence that these employees w ere 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

4had not been enforced by the employer.” Id . at 46-47. Because it appears that Ms. Brackett was selectively singled out fo r harsh punishment, it is questionable whether this work rule was st rictly enforced across the board.

All the lower tribunals that dealt w ith this case declin ed to deem Ms. Brackett’s decision not to attend the celebration in D earborn as “misconduct.” Although the magistrate found that Ms. Brackett “actually did willfully not attend the defendant’s M L King Da y celebration,” he made that determination in the context of discussing Ms. B rackett’s perceptions of workpl ace events. In deciding whether Ms. Brackett shou ld 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 wa s “a far cry” from that in Daniel . The WCAC specifically stated th at to call Ms. Brackett’s actions “misconduct” was “clearly unreasonable” because she should not have been expected to attend the celeb ration in Dearborn. The Co urt of Appeals agreed that Ms. Brackett’s “pre-arranged non-a ttendance” 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. Josa itis herself. Neither the open discussions among the employees of Focus Hope about the propriet y of holding the celebration in Dearborn nor Ms. Brackett’s discussion w ith her supervisor about

5the 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 ma gistrate did not find that Ms. Brackett was injured by Ms. Josaitis’s enforcement of the rule through the increas ed pay sanction. Rather, he found that she was injured by Ms. Josa itis’s expressed personal disappointment, lack of trust, and loss of confidence in Ms. Brackett. Thus, it is questionable whether Ms. Brackett’s ment al injury resulted from th e 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 “m isconduct” 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 rev erse and thereby deprive Ms. Brackett of disability benefits. The magistrate, th e 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 no nsensically concludes that an employee’s decision not to follow a work rule am ounts to so-called “intentiona l and wilful misconduct” and precludes workers’ compensation benef its regardless of wh ether the rule is controversial and whether it is properly and uniformly enforced. Consequently, I agree with the decision reach ed by the Court of Appe als affirming the magistrate and WCAC’s award of ben efits to the plaintiff. As a final point, I note that give n the vastly divergent factual scenarios presented in this case and in Daniel, the majority of four shou ld, at the very least,

6have granted the application for leave to appeal in order that th e parties and the Court would have the benefit of full br iefing and argument on this important question.

Elizabeth A. Weaver Michael F. Cavanagh Marilyn Kelly

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