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Ablahad v. Cellco Partnership

United States District Court, E.D. Michigan, Southern Division

December 13, 2016



          GERSHWIN A. DRAIN United States District Judge.


         On December 17, 2015, Plaintiff Lawrence Ablahad filed an Amended Complaint alleging that his former employer, Defendant Cellco Partnership d/b/a Verizon Wireless, violated the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. (“FMLA”) when it terminated his employment for absences due to his mother's and his serious health condition.

         Presently before the Court is the Defendant's Motion to Exclude Evidence, filed on September 22, 2016. This matter is fully briefed and upon review of the parties' briefing, the Court concludes that oral argument will not aid in the disposition of this matter. Accordingly, the Court will resolve the instant motion on the briefs submitted. See E.D. Mich. L.R. 7.1(f)(2). For the reasons that follow, the Court will grant Defendant's Motion to Exclude Evidence.


         Defendant provides wireless products and services to retail customers. Plaintiff worked at Defendant's Roseville, Michigan retail store as a Solutions Specialist selling products and providing customer service. Beginning on September 4, 2014, Defendant approved intermittent FMLA leave so that Plaintiff could care for his mother's serious health condition. Defendant also approved Plaintiff for intermittent FMLA leave for his own serious health condition. Plaintiff claims he was terminated because of FMLA-covered work absences.

         Conversely, Defendant claims that Plaintiff's employment was terminated by his supervisor, Michael Orlando, because Plaintiff engaged in fraudulent and dishonest conduct, in violation of Defendant's Code of Conduct, by overestimating the value of cellular phones that customers traded-in. This conduct increased Plaintiff's sales commissions and the amount of trade-in credit due to customers. Defendant claims Plaintiff's actions caused significant financial harm. Plaintiff asserts that Defendant's reason for terminating his employment is pretext for discrimination.

         Plaintiff applied for Michigan unemployment benefits with the Michigan Employment Security Commission (“MESC”). Defendant opposed Plaintiff's unemployment claim because of Plaintiff's violation of Defendant's Code of Conduct and resulting financial harm suffered by Defendant. At the MESC hearing, Orlando provided testimony in support of Defendant's claim.

         Plaintiff was deposed on July 26, 2016. During his deposition, Plaintiff indicated that he intended to rely on the testimony given by Orlando during his unemployment proceedings. Defendant argues that Michigan statutory and case law prohibit the admission of such testimony in a subsequent civil proceeding.

         III. LAW & ANALYSIS

         Section 11 of the Michigan Employment Security Act (“MESA”), Mich. Comp. Laws § 421.1 et seq. governs the issue raised in Defendant's present motion. Section 11 states in relevant part:

Information obtained from any employing unit or individual pursuant to the administration of this act and determinations as to the benefit rights of any individual are confidential and shall not be disclosed or open to public inspection other than to public employees and public officials in the performance of their official duties under this act and to agents or contractors of those public officials[.]

         Mich. Comp. Laws § 421.11(b)(1). The Michigan Supreme Court has held that information obtained in an unemployment benefits hearing cannot be used in subsequent civil proceedings. See Storey v. Meijer, Inc., 421 Mich. 368; 429 N.W.2d 169, 173 (Mich. 1988) (“We find that §11(b)(1) clearly and unambiguously prohibits the use of MESA information and determinations in subsequent civil proceedings unless the MESC is a party to the complainant in the action.”); see also Brown v. Gojcaj Foods, Inc., No. 09-14537, 2011 WL 3958468, at *4 (E.D. Mich. Sept. 8, 2011) (concluding that “Plaintiff is prohibited from utilizing any materials provided to, and any statements made to the Michigan Unemployment Insurance Agency” because “[a]ny statements or representations to the [agency] are privileged, confidential, and inadmissible in any court proceeding.”)

         Relying on Sias v. General Motors Corp., 127 N.W.2d 357 (Mich. 1964), Plaintiff argues that Orlando's testimony from the unemployment benefits hearing is admissible for purposes of cross examination. However, Sias is not applicable because it analyzed a version of the MESA that no longer exists today. The plaintiff in Sias sued his former employer for slander after management told his former co-workers that he had been fired for stealing. Id. at 360. At trial, the court allowed the plaintiff's counsel to use the transcript from the plaintiff's MESC hearing to cross examine defense witnesses. The ...

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