United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO
EXCLUDE EVIDENCE [#16]
GERSHWIN A. DRAIN United States District Judge.
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.
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
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.
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.
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
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
LAW & ANALYSIS
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[.]
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.”)
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 ...