B. o. No. 56 STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF INGHAM OPINION OF THE COURT

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1 A-D No- B s.s. No B. o. No. 56 ~" 1./vu STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF INGHAM LANSING INSURANCE AGENCYJ APPELLANTJ v BOBBI WEBBER AND MICHIGAN EMPLOYMENT SECURITY COMMISSIONJ APPELLEES ~/ THEODORE w. SWIFT P21213 ATTORNEY FOR EMPLOYER-APPELLANT PHILIP s. CORNELL P27124 ATTORNEY FOR APPELLEE BoBBI WEBBER FRANK J. KELLEY; ATTORNEY GENERAL OF THE STATE OF MICHIGAN E. J. SETLOCK P20234 AssiSTANT ATTORNEY GENERAL ATTORNEYS FOR APPELLEE MicHIGAN EMPLOYMENT SECURITY CoMMissioN DocKET No AA OPINION OF THE COURT THIS APPEAL IS BROUGHT PURSUANT TO MCLA ; MSA THE APPELLANT SEEKS TO CHALLENGE THE FINDINGS OF THE MICHIGAN EMPLOYMENT SECURITY CoMMissiON BACKGROUND THE APPELLEE WAS EMPLOYED BY THE APPELLANT FROM AUGUST 14J 1975 UNTIL NoVEMBER 20J DURING THE COURSE OF HER EMPLOYMENT THE APPELLEE DISCUSSED THE POSSIBILITY OF A SALES POSITION WITH APPELLANT MR DUCHENEJ THE AGENCY MANAGERJ INDICATED THAT A COURSE WAS BEING OFFEREO AT MICHIGAN STATE UNIVERSITY WHICH WOULD PREPARE HER FOR THE STATE EXAMINATION MR DUCHENE THEN SECURED THE NECESSARY PAPER WORK AND APPELLEE WAS ENROLLED APPELLEE ATTENDED CLASSESJ PASSED THE STATE EXAMINATION ANDJ UPON RECEIVING

2 HEK LICENSE TURNED IT OVER TO THE AGENCY THE LICENSE WAS NEVER PROCESSED AFTER REPEATED CONVERSATIONS WITH MR- DUCHENE APPELLEE CONTACTED THE COMPANY PRESIDENT. MR GooDELL IN THE COURSE OF THEIR CONVERSATION, MR GooDELL INFORMED APPELLEE THAT HE FEARED SHE MAY BE RAPED OR HARRASSED IF SENT OUT ON SALES APPELLEE THEN SUBMITTED TriO-WEEKS WRITTEN NOTICE TO QUIT HER EI"IPLOYMENT SHORTLY THEREAFTER: APPELLEE FILED A D I SCRIM INA TI ON COMPLAINT WITH THE STATE CIVIL RIGHTS COMMISSION APPELLEE THEN FILED A CLAIM FOR UNEMPLOYMENT COMPENSATION WITH THE MICHIGAN EMPLOYMENT SECURITY COMMISSION BASED UPON THE INFORMATION THEN AVAILABLE THE CoMMISSION DETERMINED THAT APPELLEE VOLUNTARILY LEFT HER JOB AND WAS THEREBY DISQUALIFIED FROM PARTI CIPATION FOR A SPECIFIED PERIOD OF TIME APPELLEE APPEALED THIS DETERMINA TION THE REFEREE WHO HEARD THE APPEAL OVERTURNED THE INITIAL DECISION IN A REPORT DATED JUNE 1, ON NoVEMBER 18; 1977 THE STATE CIVIL RIGHTS CoMMISSION ISSUED AN ORDER DISMISSING APPELLEE'S SEXUAL DISCRIMINATION COMPLAINT APPELLEE DID NOT APPEAL THAT ORDER - APPELLANT CHALLENGED THE FINDINGS MADE IN THE REPORT OF JUNE L 1977 BY PETITION TO THE MICHIGAN EMPLOYMENT SECURITY BoARD OF REVIEW ON JULY 28, 1978 THE BoARD AFFIRMED THE FINDINGS OF THE REFEREE APPELLANT CHALLENGES THIS DECISION AS: A BEING BARRED BY THE DOCTRINE OF RES JUDICATA; AND B AS BEING CONTRARY TO THE SUBSTANTIAL EVIDENCE RULE THE FIRST ISSUE TO BE DETERMINED IS WHETHER THE DOCTRINE OF RES JUDICATA CAN ATTACH TO THE ORDER ISSUED BY THE MICHIGAN EMPLOYMENT SECURITY CoMMISSION THE APPELLEES ARGUE THAT; (1) SINCE THE CIVIL RIGHTS Cow-1ISSION ORDER IS INVESTIGATORY. THE DOCTRINE DOES NOT APPLY; AND (2) IN ANY EVENT THE DECISION OF THE REFEREE WAS RENDERED PRIOR TO THE ORDER DISMISSING THE com PLAINT ISSUED BY THE CIVIL RIGHTS COMMISSION ALL LITIGATION MUST OF NECESSITY END AT SOME POINT IN TIME THE DOCTRINE OF RES JUDICATA IS FOUNDED UPON THIS NOTION THE BINDING EFFECT OF ADMINISTRATIVE RULINGS HAS BEEN DEALT WITH BY THE COURT OF APPEALS IN THE case of STRACHAN v MliruAL_AID_CLUB, 81 MicH APP 165: 265 NW2D 66 (1978). THE COURT HELD AT P~~~ THE DOCTRINE OF RES JUDICATA BECOMES APPLICABLE WHEN AN ADJUDICATORY PROCEEDING ON A CONTESTED ISSUE HAS PROGRESSED TO A FINAL DETERMINATION, AND ALL AVAILABLE COURSES OF APPEAL HAVE BEEN EXHAUSTED OR NOT PURSUED WITHIN THE PRESCRIBED TIME LIMITATIONS THEREAFTER, THAT ISSUE BECOMES SETTLED AND MAY NOT BE RELITIGATED BETWEEN THE SAME PARTIES IN A COLLATERAL PROCEEDING) ABSENT SOME COMPELLING EQUITY NOT HERE PERTINENT SEE~ V VI~ J~KIHU.J:X AV~BNG C.o MicH5/; 191 NW2D 515 Cl9 J GuRsTEN v KENNEY 375 M I ch NW2D 76,4 <1965). FURTHER. THIS DOCTRINE IS APPLICABLE TO ADMINISTRATIVE PROCEEDINGS THAT ARE ADJUDICATORY IN NATURE AND FROM WHICH - 2 -

3 AN APPEAL IS PROVIDED j WHERE THE LEGISLATURE INTENDS THAT THE TRIBUNAL'S JUDGMENT IS TO BE FINAL ABSENT AN APPEAL.S.!:N I.OR A.C.CQU.filS ANALYSTS U.eE.RA.lS_EEs_A~ v.g..l.r.:l_of D.EIBQJ.L 399 MrcH449, 457-4~8 : 249 N~QD 12L Cl976). ALL PROCEEDINGS INITIATED BY PLAINTIFF HAD THE PURPOSE OF SEEKING RELIEF FOR AN ALLEGED UNFAIR EMPLOYMENT PRACTICE, AS PROVIDED IN 3A OF THE MICHIGAN STATE FAIR EMPLOYMENT PRACTICES AcT, r1cla ET seq; MSA <1) ET seq- ANY RELIEF TO WHICH THE PLAINTIFF COULD ESTABLISH LEGAL ENTITLEMENT WAS OBTAINABLE FROM THE COMMISSION PURSUANT TO ITS LEGISLATIVELY CREATED POWERS MCLA 37.5(H); MSA 3 548(5) (H). HoWEVER, THE COMMISSION AFTER HEARING WITNESSES AND REVIEWING OTHER EVIDENCE,. ISSUED AN ORDER DISMISSING PLAINTIFF's COMPLAINT; AN ORDER FROM WHICH NO APPEAL WAS PERFECTED.... * * *.... * * AcCORDINGLY, WE CONCLUDE THAT THE COMMISSION'S ORDER OF DISMISSAL BECAME FINAL WHEN PLAINTIFF FAILED TO SEEK REVIEW WITHIN THE PRESCRIBED TIME PERIOD THE CIRCUIT COURT ORDER GRANTING AN ACCELERATED JUDGMENT WAS A PROPER RESOLUTION OF THIS CASE, ALBEIT BASED UPON THE RES JUDICATA EFFECT OF A PRIOR CIRCUIT COURT ORDER ON WHICH WE EXPRESS NO OPINION AS TO PROPRIETY NEVERTHELESS, SINCE THE COMMISSION's ORDER IS FINAL, PLAINTIFF IS PRECLUDED FROM FURTHER LITIGATION OF THE ISSUES DETEffi~INED BY THAT ORDER THE COURT ILLUSTRATES THAT ONCE AN ADMINISTRATIVE ORDER BECOMES FINAL, RES JUDICATA WILL ATTACH AT THAT POINT IT BECOMES BINDI NG ON THE PARTIES IN THE CASE AT BAR THE DECISION BY THE STATE CIVIL RIGHTS COMMISSION TO DISMISS THE DISCRIMINATION COMPLAINT WAS RENDERED ON NoVEMBER 18, APPELLEE HAD 30 DAYS WITHIN WHICH TO PERFECT AN APPEAL THE ORDER OF THE MICHIGAN EMPLOYMENT SECURITY CoMMISSION HAS YET TO BE FINALIZED SINCE APPELLEE CHOSE NOT TO APPEAL THE CIVIL RIGHTS COMMISSION ORDER, AND SINCE THE TIME PERIOD FOR FILING SUCH AN APPEAL HAS ELAPSED. THE ORDER OF THE STATE CIVIL RIGHTS.COMMISSION HAS BECOME FINAL THEREFORE, STRACHAN DICTATES THAT RES JUDICATA SHALL APPLY TO THAT DECISION THE MICHIGAN EMPLOYMENT SECURITY CoMMISSION IS BARRED FROM MAKING AN ACTUAL FINDING OF FACT THAT ACTIONABLE DISCRIMINATION HERE EXISTS THE SECOND ISSUE WHICH MUST BE DETERMINED IS WHETHER THE FINDINGS OF THE MICHIGAN EMPLOYMENT SECURITY CoMMISSION ARE FREE FROM MATERIAL ERRORS OF LAW THIS ISSUE IS PARTICULARLY IMPORTANT IN LIGHT OF STRACHAN THE REFEREE AT THE HEARING BELOW FOUND AT P 35 OF THE RECORD: EVEN WITHOUT THE FINDING OF A NEW CONTRACT, IT APPEARS UNCONTROVERTED THAT THE REASON THAT THE EMPLOYER FAILED TO APPLY FOR THE CLAIMANT AN - 3 -

4 AGENT's LICENSE, WAS BASED UPON THE FACT THAT SHE WAS A WOt~N~ AND IF SHE ATTEMPTED TO SELL INSURANCE, WOULD SOMEHOW ENCOUNTER DANGERS THAT WERE NOT COMMON TO MEN IT WOULD THEREFORE APPEAR THAT BASED UPON THE PROMISE MADE, AND THEN A RENEGING THEREON, IT CAN FURTHER BE SAID THAT THE CLAIMANT's QUITTING WAS NOT VOLUNTARY HER PATH AT THAT POINT WAS BLOCKED TO ANY ADVANCEMENT WITHIN THE EMPLOYER'S RANKS, AND THEREFORE, UNDER ALL OF THE CIRCUMSTANCES, WOULD APPEAR TO HAVE PLACED SOME PRESSURES ON THE CLAIMANT TO EITHER RESOLVE HERSELF TO STAGNATION, OR TO QUIT THIS DECISION IS BASED UPON THE FACT THAT THE EMPLOYER HAD PREVIOUSLY HELD OUT HOPE TO THE CLAIMANT, IN THE NATURE OF A PROMISE TO HER TO SEEK AN AGENT'S LICENSE ON HER BEHALF APPELLANT WOULD ARGUE THAT THIS FINDING SHOULD BE BARRED BY RES JUDICATA IT SHOULD BE NOTED THAT THE ORDER OF DISMISSAL RENDERED BY THE CIVIL RIGHTS CoMMISSION FOUND ONLY THAT THERE WAS INSUFFICIENT GROUNDS TO WARRANT A CHARGE OF DISCRIMINATION THIS IS CLEARLY A FINDING OF FACT As SUCH IT SHALL BE ACCORDED BINDING EFFECT APPELLANT FURTHER ARGUES THAT THE MICHIGAN EMPLOYMENT SECURITY CoMMISSION MADE THIS PRECISE FINDING OF FACT AT PAGE 35 OF THE RECORD, AND THAT THE STRACHAN HOLDING SHOULD FORBID IT ALTHOUGH THIS COULD BE VIEWED AS A FINDING OF DISCRIMINATION IN FACT, AS II APPLIES IN IT's PROPER CONTEXT, THE DETERMINATION MADE BY THE REFEREE DOES NOT VIOLATE THE LAW OF THE CASE THE REFEREE FOUND THAT APPELLEE DID NOT LEAVE HER POSITION VOLUNTARILY THIS WAS THE FINDING OF FACT UPON WHICH LIABILITY WAS PREMISED To REACH THIS FINDING ONE MUST LOOK TO APPELLEE's SUBJECTIVE BELIEFS II IS CLEAR THEN THAT THE REFEREE DID NOT DETERMINE THAI THERE WAS ACTIONABLE DISCRIMINATION RATHER, THE DECISION IS FOUNDED UPON APPELLEE's BELIEF THAT HER EMPLOYER HAD DISCRI MINATED AGAINST HER \_ Is IT NOT REASONABLE TO. f:iq.l.j?_3tl~j-lf_bpp.ellee FE!.,L_ SHE WAS BEING DISCRIMINATED AGAINST, WHICH BELIEF PROMPTED HER RESIGNATION, THAT HER LEAVING WAS NOT COMPLETELY VOLUNTARY? THIS COURT IS CONVINCED THAT IT IS THIS DETERMINATION IS A FAR CRY FROM A FINDING OF ACTIONABLE DISCRIMINATION, AND THAI IS THE ONLY HOLDING WHICH CAN BE BARRED BY RES JUDICATA THE FINDING MADE WAS CLEARLY RELEVANT TO THE ISSUE BEFORE THE REFEREE RES JUDICATA CANNOT BAR A FINDING THAI APPELLEE FELT SHE WAS A VICTIM OF SEXUAL DISCRIMINATION THE FINAL ISSUE TO BE DETERMINED IS WHETHER THE DECISION MADE BY THE MICHIGAN EMPLOYMENT SECURITY COMMISSION IS BASED UPON SUBSTANTIAL EVI DENCE THE STANDARD FOR REVIEW IN AN APPEAL FROM AN ADMINISTRATIVE BODY HAS BEEN WELL SETTLED THROUGH CASE LAW IN WILLIAMS V ARNOLD CLEANER ~J 25 MicH APP 672; 181 NW2D 625 (1970), THE CoURT OF APPEALS SETS FORTH THE ROLE OF THE COURT ON REVIEW AND NOTES AT P : THE FINAL ISSUE RAISED IS WHETHER THERE IS SUFFICIENT EVIDENCE TO SUPPORT A FINDING OF DISCHARGE FOR MISCONDUCT THE TESTIMONY WAS CONFLICTING BUT THERE WAS TESTIMONY TO SUPPORT EACH FINDING OF FACT BY THE REFEREE THE GENERAL SCOPE OF JUDICIAL REVIEW OF FACTUAL FINDINGS OF ADMINISTRATIVE TRIBUNALS - 4 -

5 IS THAT THE COURT ON APPEAL WILL NOT SUBSTITUTE ITS JUDGMENT ON THE FACTS FOR THAT OF THE FAcT FINDING TRIBUNAL KNlGHT-MORLEY CoRPORATION V [MPJ..QYt:1ENT SECUR u.i._lomm I s S-ION - ci95lj ~)50 M I CH 397; ~WfLL v E~MENT SECURITY COMMISSION (1952)~ 367 MrcH 415; DYNAMIC MAN~F~~T~RE~g~ INc v EMPLOYMENLS.E.C..I.LRliY. CoMMrss ION 1 3 ~ MicH 556. THE DECISION OF THE APPEAL BOARD WILL BE OVERTURNED ONLY WHEN IT IS CONTRARY TO LAW OR NOT SUPPORTED BY COMPETENT, MATERIAL AND SUB STANTIAL EVIDENCE ON THE WHOLE RECORD MCLA (STAT ANN 1968 REV. "17-540); LINSKI V EMPLOYMENT SECURITY CoMMISS.lQN (1959) ~~ MrcH 239; ~ v EM~LOYMENT SEcURITY ~ISSION (1959)~ 35 MICH 6T3. THE CASE ILLUSTRATES THAT THE SCOPE OF REVIEW IS VERY LIMITED IF THE REFEREE's FINDINGS ARE SUPPORTED BY EVIDENCE ON THE WHOLE RECORD~ THIS COURT IS NOT PERMITTED TO DISTURB SUCH FINDINGS APPELLANT IN HIS BRIEF POINTS TO SEVERAL SPECIFIC FINDINGS AND ARGUES THAT THEY ARE NOT BASED UPON SUBSTANTIAL EVIDENCE A COMPLETE REVIEW OF THE RECORD INDICATES.THAT EACH CHALLENGED FINDING IS BASED UPON SUBSTANTIAL EVIDENCE THE RECORD CONSISTS OF. - APPELLEE'S UNCONTROVERTED TESTIMONY APPELLANT WAS PRESENT AT THE HEARING BUT CHOSE TO REMAIN SILENT ON THE RECORD THE APPELLEE TESTIFIED THAT MR DucHENE GAVE HER THE FORMS TO ENROLL IN THE COURSE AT MICHIGAN STATE UNIVERSITY THERE IS FURTHER TESTIMONY INDICATING THAT APPELLANT SPOKE WITH MR DUCHENE SOME FIVE TIMES IN AN EFFORT TO GAIN HER SALES LICENSE EACH CONVERSATION ENDED WITH AN ASSURANCE THAT HE WOULD OBTAIN IT APPELLEE TESTIFIED THAT MR GOODELL INDICATED HE WAS AFRAID SHE WOULD BE RAPED IF ALLOWED TO SELL THIS TESTIMONY STANDS ALONE ON THE RECORD IN VIEW OF THE FOREGOING, THIS COURt CONCLUDES THAT THE FINDINGS MADE BY THE MICHIGAN EMPLOYMENT SECURITY CoMMISSION ARE SUPPORTED BY SUB STANTIAL EVIDENCE THEREFORE, IT IS THE OPINION OF THIS COURT THAT SINCE THE RECORD IS FREE FROM MATERIAL ERRORS OF LAW, AND SINCE THE FINDINGS ARE BASED UPON SUBSTANTIAL EVIDENCE, THE DECISION OF THE MICHIGAN EMPLOYMENT SECURITY COMMISSION MUST BE AFFIRMED AN ORDER MAY ENTER IN ACCORDANCE WITH THIS OPINION DATED. APRIL _1fu.H, /s/ ~s L. B~owN THOM S BROW, C I RCITIT JUDGf