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Ginez v University of Michigan Medical Center 14.11

Section 29(1)(i)

THEFT, Definition of theft

CITE AS: Ginez v University of Michigan Medical Center, Washtenaw Circuit Court No. 98-10274-AE (April 21, 1999).

Appeal pending: No

Claimant: Purificacion O. Ginez

Employer: University of Michigan Medical Center

Docket No. B98-01381-147739W

CIRCUIT COURT HOLDING: Claimant is not subject to disqualification under Section 29(1)(i) unless the common law elements of theft are established.

FACTS: Claimant worked for the employer from 1979 to November 10, 1997. On November 7, 1997 at the end of her shift she experienced an asthma attack. Claimant went to a "satellite" pharmacy near her ward for medication. The pharmacy belonged to the employer. Though the pharmacy was closed, claimant knew where the medication was kept and prepared an inhaler for her use. Her supervisor approached and asked if she was acting appropriately. Claimant felt she was acting appropriately because she had been allowed to use inhalers from the pharmacy in the past. Her supervisor had no knowledge of that, and checked with a nurse manager. The employer's policy was that employees in similar situations should seek treatment in an emergency room. Claimant used the inhalant and left the unused portion. As a result, the employer suspended, then ultimately discharged her.

DECISION: Claimant is not disqualified from receiving benefits under Section 29(1)(i).

RATIONALE: Theft is not defined in the M.E.S. Act. Black's Law Dictionary defines "theft" as a "popular name for `larceny'." Larceny is prohibited by MCL 750.356 et seq, but is not defined by that statute and the elements must be found in common law. The elements of larceny are laid out in People v Gimotty, 216 Mich App 254, 257-258 (1996), as the "taking and carrying away of the property of another, done with felonious intent and without the owner's consent." The court found the claimant took the inhaler with the intent to deprive the employer of some value. The issue was whether the employer consented to the claimant's use of the inhaler; if so, then her actions cannot be considered theft. While the employer had a policy disallowing such actions, the claimant's supervisor was not aware of that policy. The court concluded the "record does not contain substantial and competent evidence of the elements of theft, nor is there an articulated finding on these questions." The court rejected the Board's additional rationale that a disqualification was justified "because the product taken was a prescription drug in a hospital setting."


21, 16, d23: B

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