Wise v. The Department of Employment Security

Rule 23 order filed 2015 IL App (5th) 130306
November 25, 2014;
Motion to publish granted NO. 5-13-0306
January 12, 2015.
IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT
________________________________________________________________________

CLARA E. WISE, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Madison County.
)
v. )
)
THE DEPARTMENT OF EMPLOYMENT )
SECURITY; THE BOARD OF REVIEW OF THE )
DEPARTMENT OF EMPLOYMENT SECURITY; ) No. 12-MR-256
JAY ROWELL, Director of Employment Security; )
WILLIAM H. McCLUSKY, MARILYN S. ORSO, )
WILLIAM J. NOLAN, DAVID A. BONOMA, and )
TUMIA ROMERO, Members of the Board of Review; )
and CASINO QUEEN, INC., ) Honorable
) Barbara L. Crowder,
Defendants-Appellants. ) Judge, presiding.
________________________________________________________________________

JUSTICE CHAPMAN delivered the judgment of the court, with opinion.
Justices Welch and Schwarm concurred in the judgment and opinion.

OPINION

¶1 The plaintiff, Clara E. Wise, was discharged from her employment with Casino

Queen for insubordination. The Department of Employment Security denied the

plaintiff's claim for unemployment insurance benefits. On a petition for administrative

review, the circuit court reversed the final administrative decision, finding that there was

no harm to the employer. The defendants, Casino Queen, Inc., the Department of
1
Employment Security and its director, the Board of Review of the Department of

Employment Security (Board of Review or Board), and members of the Board of

Review, appeal. They argue that the circuit court incorrectly concluded that the decision

of the Board of Review was clearly erroneous. We reverse the decision of the circuit

court and reinstate the decision of the Board of Review.

¶2 On November 19, 2011, the plaintiff was employed by Casino Queen as a cook

and buffet station attendant. That day, she was working at the barbecue station. Betty

Stanek, the plaintiff's supervisor, checked the temperatures of the items on the barbecue

station buffet line and discovered that the temperatures of two of those items−the

coleslaw and tuna salad−were too high. Stanek instructed the plaintiff to get more ice

and water to put under the pans containing the coleslaw and tuna salad in order to keep

them cooled to a safe temperature. The plaintiff told Stanek that she would not get the

ice and water because she was tired of doing other people's jobs. According to Stanek,

another employee volunteered to get the ice. According to the plaintiff, she asked

another employee to get the ice while she went to the cooler to replenish the coleslaw.

¶3 Stanek placed the plaintiff on suspension. Two days later, the plaintiff met with

Kim Cushon, Casino Queen's employee relations manager. The plaintiff admitted to

Cushon that the incident occurred. In a written statement, she likewise acknowledged

telling Stanek that she would not comply with the request because getting the water and

ice was "pantry work." Cushon made the decision to discharge the plaintiff for

insubordination.

¶4 The plaintiff filed a claim for unemployment benefits, which was denied. She
2
requested an administrative appeal of that decision. A hearing referee held a telephone

hearing at which Stanek, Cushon, and the plaintiff testified.

¶5 Stanek testified that at the beginning of her shift, she checked the temperature of

the food on the plaintiff's line. The coleslaw was 54 degrees and the tuna salad was 49

degrees. Both were too warm. Stanek stated that she lifted up the food pans and saw that

there was not enough ice or water under the pans to keep the dishes cooled to the proper

temperature. Stanek directed the plaintiff to add water and ice. Stanek testified that the

plaintiff refused to do so, saying that she was "tired of doing everybody's job around

here."

¶6 Stanek further testified that instead of getting the water and ice, the plaintiff left

and told another employee (Kim Tucker, who worked in the pantry) to get the ice.

Tucker then came back to the barbecue station and told Stanek that getting the ice was

not her job. According to Stanek, the attendant at a neighboring station (Kim Baker) then

volunteered to get the water and ice. Stanek acknowledged that the plaintiff had no

previous incidents of insubordination.

¶7 The plaintiff admitted in her testimony that when Stanek asked her to put ice under

the two dishes, she told Stanek, "I'm not doing that, *** that's not my job, that's pantry

work." She testified that this was just a "figure of speech." She explained that on many

previous occasions, she had said she was not going to do other people's jobs, but she

always did whatever was asked of her even if she felt it was someone else's job.

However, she further acknowledged that instead of getting the water and ice as requested,

she left her station. She explained that she then went to the pantry, where Tucker
3
worked, to refill the coleslaw, and asked Tucker to get more ice.

¶8 The plaintiff testified that when she returned from getting more coleslaw, she saw

that Kim Baker, the neighboring station attendant, was putting ice under the items in her

line. According to the plaintiff, Tucker arrived at this point carrying additional ice. The

plaintiff apologized, told Tucker she did not know Baker was going to get ice, and asked

her to leave the additional ice at the plaintiff's station so it would be available if needed

later.

¶9 Kim Cushon, the employee relations manager who decided to discharge the

plaintiff, testified that she did not witness the incident herself, but read a write-up of the

events prepared by Stanek. Cushon further testified that when she discussed the incident

with the plaintiff, the plaintiff did not deny that it happened.

¶ 10 The referee issued a decision upholding the denial of benefits. He expressly found

that (1) the plaintiff told her supervisor that she was not going to get the ice and then left

her work area and told another employee to get the ice; (2) there was no compelling

reason for the plaintiff to refuse to follow her supervisor's instruction; (3) the plaintiff

was aware that Casino Queen had a rule against insubordination; (4) the rule was

reasonable; and (5) the plaintiff's refusal to get the ice was an act that harmed her

employer.

¶ 11 The Board of Review considered the record without taking additional evidence.

The Board likewise found that the plaintiff told her supervisor she would not comply with

the request to get more ice, left her station, and told another employee to perform the

task. The Board further found that the plaintiff's failure to comply with her supervisor's
4
request "constituted a deliberate and willful violation of the employer's policy concerning

employee behavior which caused the employer harm."

¶ 12 The plaintiff filed a petition for review under the Administrative Review Law (735

ILCS 5/3-101 et seq. (West 2012)). The circuit court reversed the final decision of the

Board of Review, finding that there was no evidence that the plaintiff's refusal to comply

with her supervisor's direction harmed her employer. The court focused on cases which

hold that merely being argumentative is generally insufficient to amount to misconduct

within the meaning of the applicable statute. See, e.g., Oleszczuk v. Department of

Employment Security, 336 Ill. App. 3d 46, 52 (2002); Gee v. Board of Review of the

Department of Labor, 136 Ill. App. 3d 889, 896 (1985). This appeal followed.

¶ 13 Before considering the defendants' contentions, we briefly address the plaintiff's

contention that we should dismiss this appeal for lack of jurisdiction. Her argument is

based on the timing of the defendants' notices of appeal. The circuit court entered

judgment on May 13, 2013. The Department of Employment Security, Board of Review,

and individual defendants (administrative defendants) timely mailed their notice of

appeal on June 12, 2013. Casino Queen filed a notice of joinder in the administrative

defendants' appeal on June 19. In the recent case of Shaw v. Department of Employment

Security, 2013 IL App (1st) 122676, a panel of the First District Appellate Court held that

the Department of Employment Security does not have standing to file an appeal without

the employer's participation in the appeal because the employer is the real party in

interest. Following this rationale, the plaintiff contends that the timely appeal filed by the

administrative defendants in this case was a "legal nullity." Thus, she argues, Casino
5
Queen's notice to join the appeal was the only notice of appeal. She further argues that

because this notice was filed more than 30 days after entry of the circuit court's judgment,

it was untimely and could not confer jurisdiction. However, shortly after the plaintiff

filed her brief with this court, the First District vacated its opinion in Shaw pursuant to a

motion for rehearing. Shaw v. Department of Employment Security, 2013 IL App (1st)

122676, vacated upon grant of motion for reh'g; see Shaw v. Illinois Department of

Employment Security, 2014 IL App (1st) 122676-U. This leaves no authority to support

the plaintiff's contention that we lack jurisdiction over this appeal. We will therefore turn

now to the merits of the defendants' appeal.

¶ 14 On appeal from a decision involving unemployment insurance benefits, this court

reviews the final decision of the Board of Review, not the decision of the referee or the

decision of the circuit court. Walls v. Department of Employment Security, 2013 IL App

(5th) 130069, ¶ 14. We consider the purely factual findings of the Board of Review to be

prima facie true and correct, and our review of such findings is limited to determining

whether they are against the manifest weight of the evidence. However, we apply a de

novo standard of review to the Board's conclusions of law. Czajka v. Department of

Employment Security, 387 Ill. App. 3d 168, 173 (2008).

¶ 15 The Board's ultimate determination that a claimant is not eligible for benefits

presents a mixed question of fact and law. We will reverse this determination only if it is

clearly erroneous. Farris v. Department of Employment Security, 2014 IL App (4th)

130391, ¶ 35. That standard is met when a thorough review of the record gives the

reviewing court " 'the definite and firm conviction that a mistake has been committed.' "
6
AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380,

393 (2001) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395

(1948)).

¶ 16 At issue in this appeal is whether the plaintiff's conduct constituted "misconduct"

as that term is defined in the Unemployment Insurance Act (Act) (820 ILCS 405/602(A)

(West 2012)). An employee who is discharged from her position due to misconduct is

not eligible to receive unemployment insurance benefits. 820 ILCS 405/602(A) (West

2012). The Act defines misconduct as "the deliberate and willful violation of a

reasonable rule or policy of the employing unit, governing the individual's behavior in

performance of his work, provided such violation has harmed the employing unit or other

employees or has been repeated by the individual despite a warning." 820 ILCS

405/602(A) (West 2012).

¶ 17 Courts interpreting this provision have held that a violation of a workplace rule is

deliberate and willful if the employee knows that her conduct violates the rule. Czajka,

387 Ill. App. 3d at 176. Here, the plaintiff was discharged for violating her employer's

rule against insubordination. The plaintiff admitted that she knew Casino Queen had a

rule against insubordination, and there is no real dispute that the rule is reasonable. In

addition, there is no dispute that the plaintiff was not warned previously about

insubordination. The only question is whether her conduct harmed her employer.

¶ 18 Courts of this state have held that this inquiry encompasses potential harm to the

employer as well as actual harm. Hurst v. Department of Employment Security, 393 Ill.

App. 3d 323, 329 (2009); Greenlaw v. Department of Employment Security, 299 Ill. App.
7
3d 446, 448 (1998). The plaintiff argues, however, that by the plain terms of the statute,

potential harm is not sufficient to disqualify her from receiving unemployment insurance

benefits. The weight of authority in Illinois holds otherwise. Hurst, 393 Ill. App. 3d at

329. As the Fourth District recently observed in rejecting a similar argument, the

interpretation urged by the plaintiff would "lead to absurd results." Farris, 2014 IL App

(4th) 130391, ¶ 40. The court observed that if actual harm were required for a finding of

misconduct, "an employee who steals cash from an office safe would not be guilty of

misconduct so long as the police eventually return the cash to the employer." Farris,

2014 IL App (4th) 130391, ¶ 40. We note, however, that where the potential for harm is

remote or speculative, this potential will not satisfy the requirement of harm to the

employer. See Czajka, 387 Ill. App. 3d at 180. We will therefore consider whether there

was a realistic potential for the employer to be harmed by the plaintiff's conduct. In

making this inquiry, we must keep in mind that while the claimant bears the burden of

proving she is eligible for unemployment insurance benefits, the Act must be liberally

construed in favor of giving benefits. Czajka, 387 Ill. App. 3d at 174.

¶ 19 The defendants argue that the Board of Review's decision is not clearly erroneous.

They further argue that the cases cited by the plaintiff and relied upon by the circuit court

are distinguishable from the case before us. We agree.

¶ 20 It is true, as the plaintiff correctly points out, that a single incident of argument

with a supervisor without more generally does not rise to the level of "misconduct" so as

to deprive a discharged employee of her right to unemployment benefits. As the First

District Appellate Court observed in Oleszczuk: "A single flurry of temper between a
8
worker and a supervisor may be enough to warrant discharge in an at-will relationship.

But it is not enough to deny unemployment benefits." Oleszczuk, 336 Ill. App. 3d at 52.

This case, however, involves more than merely argumentative behavior or a "single flurry

of temper"; it involves a direct refusal to comply with a supervisor's instruction.

Moreover, the instruction was to perform a task related to the safety of Casino Queen's

customers. These facts put the instant case in stark contrast to those cases cited by the

plaintiff for the proposition that merely being argumentative does not constitute

misconduct within the meaning of the statute.

¶ 21 In Oleszczuk, for example, the employer sent an employee to a two-day training

session to learn how to use a new computer system. Oleszczuk, 336 Ill. App. 3d at 47.

After returning, she passed on what she learned at the training session to her supervisor

and other employees. This led to a "heated dispute" between the employee and her

supervisor over "how much, or how well, she had learned certain subjects." Oleszczuk,

336 Ill. App. 3d at 51. The employee was then discharged for insubordination.

Oleszczuk, 336 Ill. App. 3d at 47.

¶ 22 In concluding that the employee's argumentative behavior did not constitute

misconduct, the First District emphasized the fact that there was no evidence that she had

disobeyed any reasonable work rule or failed to follow the directions of her supervisor.

The court noted that the undisputed evidence showed that the plaintiff in that case

attended the training session as required. Oleszczuk, 336 Ill. App. 3d at 51. The court

then stated, "other than the irritation evidenced by the supervisor, the record is silent on

how the employer was harmed by the plaintiff's conduct." Oleszczuk, 336 Ill. App. 3d at
9
51-52. The court went on to note that "arguing with a supervisor without using abusive

language or threats is not sufficient to establish discharge for misconduct" within the

meaning of the Unemployment Insurance Act. Oleszczuk, 336 Ill. App. 3d at 52.

¶ 23 Gee likewise involved an argument between an employee and her supervisor with

no evidence that the employee disobeyed the supervisor's instructions. See Gee, 136 Ill.

App. 3d at 896. There, the employee testified that she told her supervisor she would

work through her lunch hour if she could leave an hour early. The supervisor agreed, but

then refused to allow her to leave early. She told him that this was not fair. She went

back to work, but then asked again if she could leave. When she did so, she was fired.

Gee, 136 Ill. App. 3d at 892. The supervisor testified that the plaintiff became "irate"

over not being allowed to leave early and that her behavior was disruptive to visitors and

other employees. Gee, 136 Ill. App. 3d at 891. However, he acknowledged that she did

not use abusive language and "did not say she would leave whether or not she had

permission." Gee, 136 Ill. App. 3d at 891. The First District explained that this conduct

did not "rise to the level of *** misconduct so as to deprive plaintiff of her statutory right

for unemployment compensation where she merely argued with her supervisor in his

office without using abusive language or threatening to disobey a work order."

(Emphasis added.) Gee, 136 Ill. App. 3d at 896.

¶ 24 Sheff v. Board of Review, Illinois Department of Labor, 128 Ill. App. 3d 347

(1984), another case cited by the plaintiff, likewise involved a heated dispute between an

employer and his supervisor. There, the plaintiff worked at a grocery store. Prior to the

date on which he was discharged, the plaintiff had complained about a reduction in his
10
hours. Sheff, 128 Ill. App. 3d at 349. On the day he was discharged, the plaintiff had an

argument with a fellow employee. Sheff, 128 Ill. App. 3d at 349. A conference was held

in the store manager's office at the plaintiff's request. Sheff, 128 Ill. App. 3d at 349-50.

At the conference, the employee stated that he was unhappy with his current duties.

According to the store manager, the plaintiff did not use foul or abusive language, but did

raise his voice "to twice his normal speaking voice." Sheff, 128 Ill. App. 3d at 350.

¶ 25 On appeal, this court agreed with the circuit court that the factual findings

underpinning the administrative decision to deny unemployment benefits were against the

manifest weight of the evidence. Sheff, 128 Ill. App. 3d at 350-51. We found that the

evidence showed that the plaintiff was fired because he protested the reduction in his

hours. Sheff, 128 Ill. App. 3d at 351. We went on to explain in dicta that, even assuming

the board of review's factual findings were correct, the actions relied upon by the

employer and board of review did not amount to misconduct as contemplated by the

Unemployment Insurance Act. Sheff, 128 Ill. App. 3d at 351-52. We explained that

arguing with a supervisor did not rise to the level of "misconduct" sufficient to deprive

the plaintiff of unemployment benefits because he "raised his voice in the privacy of the

manager's office" without using "abusive language or vilification of the manager" and did

not threaten the manager. Sheff, 128 Ill. App. 3d at 351-52.

¶ 26 None of these cases stand for the proposition that arguing with a supervisor can

only rise to the level of misconduct if the employer uses foul or abusive language. See,

e.g., Stovall v. Department of Employment Security, 262 Ill. App. 3d 1098, 1102-03

(1994) (rejecting an argument identical to the one raised by the plaintiff here and finding
11
misconduct where the employee argued with her supervisor, accused the supervisor of

lying, and told the supervisor she did not have to comply with her instructions); see also

Greenlaw v. Department of Employment Security, 299 Ill. App. 3d 446, 449 (1998)

(finding that an argument with a supervisor constituted misconduct where the employee

used abusive language and "that insubordinate conduct was compounded" by the

employee's refusal to comply with the instructions of two supervisors). As previously

discussed, the plaintiff here did not just argue with Stanek; she directly refused to comply

with an instruction. Although this fact is significant, it is not dispositive. The ultimate

question is whether the plaintiff's actions harmed or potentially harmed her employer.

¶ 27 We note that the Board of Review concluded that the plaintiff's actions harmed her

employer without providing any analysis. Nevertheless, our task is to determine whether,

considering the record as a whole, this conclusion was clearly erroneous. Applying this

standard of review, we cannot say that a review of the record leaves this court with the

firm impression that a mistake has been made. Indeed, we find ample support in the

record for the Board's conclusion.

¶ 28 Although there were some discrepancies in the testimony of the plaintiff and that

of her supervisor, Betty Stanek, the salient facts are not in dispute. Both Stanek and the

plaintiff testified that the plaintiff told Stanek she refused to get the water and ice because

it was not her job. Both further testified that, rather than getting the water and ice herself,

the plaintiff asked another employee to do so. In Stanek's write-up of the incident, she

indicated that to prevent the development of bacteria, the food items were required to be

kept at a temperature of 41 degrees or cooler. As previously stated, however, the
12
coleslaw and tuna salad were significantly warmer than this, at temperatures of 49

degrees and 54 degrees respectively.

¶ 29 The realistic potential for serious harm to result from the plaintiff's refusal to

comply with an instruction to remedy this situation is readily apparent. If the food had

remained at temperatures significantly above the safe range, customers could have eaten

it and become ill as a result. This possibility was not remote or speculative. Although

the plaintiff asked another employee to get the ice and water for her, she did not take any

steps to make sure that the task was actually performed. The plaintiff testified that she

got additional coleslaw from a cooler in the pantry and only discovered that both Tucker

and Baker were bringing ice when she returned. According to Stanek, Tucker did not get

the ice because it was not her job to do so. Moreover, Stanek testified that maintaining

the barbecue station−including keeping sufficient ice and water under the food items−was

part of the plaintiff's job. Even accepting the plaintiff's version of events, it was merely

fortuitous that another employee was willing to perform the task. See Farris, 2014 IL

App (4th) 130391, ¶ 39 (finding the potential harm to the employer sufficient to support a

finding of misconduct where it was "merely fortuitous" that no actual harm resulted from

an employee's violation of his employer's biosecurity procedures because he was

prevented from reentering a "clean area" without showering first).

¶ 30 In addition, the plaintiff's insubordination took place in front of other employees.

As such, her refusal to follow a safety-related instruction could have demonstrated to

other employees that such rules and instructions can be disregarded. See Brodde v.

Didrickson, 269 Ill. App. 3d 309, 311 (1995).
13
¶ 31 In sum, our review of the record as a whole does not leave this court with the firm

impression that the Board of Review made a mistake. As such, we agree with the

defendants that the circuit court erred in reversing the Board's determination. We thus

reverse the court's order and reinstate the administrative decision.

¶ 32 Circuit court reversed; administrative decision reinstated.

14
 2015 IL App (5th) 130306

NO. 5-13-0306

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT
_____________________________________________________________________________________

CLARA E. WISE, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Madison County.
)
v. )
)
THE DEPARTMENT OF EMPLOYMENT SECURITY; THE )
BOARD OF REVIEW OF THE DEPARTMENT OF )
EMPLOYMENT SECURITY; JAY ROWELL, Director of ) No. 12-MR-256
Employment Security; WILLIAM H. McCLUSKY, MARILYN )
ORSO, WILLIAM J. NOLAN, DAVID A. BONOMA, and )
TUMIA ROMERO, Members of the Board of Review; and )
CASINO QUEEN, INC., ) Honorable
) Barbara L. Crowder,
Defendants-Appellants. ) Judge, presiding.
_____________________________________________________________________________________

Rule 23 Order Filed: November 25, 2014
Motion to Publish Granted: January 12, 2015
Opinion Filed: January 12, 2015
_____________________________________________________________________________________

Justices: Honorable Melissa A. Chapman, J.

Honorable Thomas M. Welch, J., and
Honorable S. Gene Schwarm, J.,
Concur
_____________________________________________________________________________________

Attorneys Linda Boachie-Ansah, Assistant Attorney General, 100 W. Randolph Street, 12th
for Floor, Chicago, IL 60601 (attorney for The Dept. of Employment Security, etc.)
Appellants
Sean K. Cronin, Donovan, Rose, Nester, P.C., 201 S. Illinois Street, Belleville,
IL 62220 (attorney for Casino Queen, Inc.)
_____________________________________________________________________________________

Attorney Edward J. Szewczyk, Callis, Papa, Hale & Szewczyk, P.C., 1326 Niedringhaus
for Ave., P.O. Box 1326, Granite City, IL 62040
Appellee
_____________________________________________________________________________________