ILLINOIS OFFICIAL REPORTS
Appellate Court
Woods v. Illinois Department of Employment Security, 2012 IL App (1st) 101639
Appellate Court ASHA WOODS, Plaintiff-Appellant, v. ILLINOIS DEPARTMENT OF
Caption EMPLOYMENT SECURITY; DIRECTOR OF ILLINOIS
DEPARTMENT OF EMPLOYMENT SECURITY; BOARD OF
REVIEW OF THE DEPARTMENT OF EMPLOYMENT SECURITY;
and LEBER ENTERPRISES, INC., c/o ADP BENEFITS, Defendants-
Appellees.
District & No. First District, Fifth Division
Docket No. 1-10-1639
Rule 23 Order filed March 9, 2012
Rule 23 Order
withdrawn April 5, 2012
Opinion filed April 27, 2012
Held The Board of Review’s decision finding that plaintiff was ineligible for
(Note: This syllabus unemployment benefits based on her poor attendance and failure to
constitutes no part of follow proper procedures was affirmed, since the Board’s determination
the opinion of the court that her misconduct was connected with her work and disqualified her for
but has been prepared unemployment benefits was not clearly erroneous.
by the Reporter of
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Cook County, No. 09-L-51296; the
Review Hon. Elmer James Tolmaire, III, Judge, presiding.
Judgment Affirmed.
Counsel on Eugene Christopher Edwards, of Legal Assistance Foundation of
Appeal Metropolitan Chicago, of Chicago, for appellant.
Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
Solicitor General, and Evan Siegel, Assistant Attorney General, of
counsel), for appellees.
Panel JUSTICE McBRIDE delivered the judgment of the court, with opinion.
Justices J. Gordon and Howse concurred in the judgment and opinion.
OPINION
¶1 Plaintiff Asha Woods filed a complaint for administrative review seeking to reverse a
decision by the Board of Review of the Illinois Department of Employment Security (Board)
that she was ineligible to receive unemployment benefits because she was discharged for
misconduct connected with her work. On appeal, plaintiff contends that the Board
misinterpreted the statutory section regarding ineligibility based on misconduct; that as a
matter of law, she was not discharged for misconduct; and that the Board’s decision was
against the manifest weight of the evidence and clearly erroneous. For the reasons that
follow, we affirm.
¶2 Plaintiff was employed by Leber Enterprises, Inc. (Leber), a recruitment and placement
agency that assigned plaintiff to a position as a temporary customer support specialist for a
company called Pay Cycle in August 2008. Plaintiff worked at Pay Cycle for about six
months, until she was discharged in February 2009. Following her termination from
employment at Pay Cycle, plaintiff filed a claim for unemployment benefits. An Illinois
Department of Employment Security (IDES) claims adjudicator denied plaintiff’s claim,
finding that she was disqualified under section 602(A) of the Illinois Unemployment
Insurance Act (Act) (820 ILCS 405/602(A) (West 2008)), which provides that individuals
discharged for misconduct are ineligible to receive unemployment benefits. The claims
adjudicator found that plaintiff was discharged because of her poor attendance and failure
to follow proper call-off procedures.
¶3 Plaintiff appealed, and a telephone hearing was held before an IDES referee.
¶4 At the telephone hearing, Leber’s managing director, Angela Fabris, testified that
plaintiff was discharged for violation of attendance policies. Fabris stated that in total,
between August and February, plaintiff was late for work six times and absent seven times.
-2-
Fabris testified that Leber had provided plaintiff with a policy handbook that indicated,
among other things, that an employee must notify both Leber and an on-site supervisor when
taking time off from work. According to Fabris, despite this policy, plaintiff contacted Leber
only four of the times she called off work.
¶5 Fabris testified that an on-site supervisor spoke with plaintiff and counseled her about
her work attendance. In addition, Fabris stated that at Pay Cycle’s request, she attempted to
give plaintiff verbal warnings about her attendance, but plaintiff would not return her
telephone messages. Accordingly, Fabris sent plaintiff an e-mail. In the e-mail, Fabris related
to plaintiff that she wanted to “share some feedback” regarding her performance at Pay
Cycle. In particular, Fabris noted reports that plaintiff had been arriving late without calling
Leber or Pay Cycle and had been taking more frequent breaks and longer lunches than what
she was reporting on her time sheet. Although she wrote in the e-mail that plaintiff’s job was
not in jeopardy, Fabris testified that “the point” of her e-mail was to bring up issues of
tardiness, attendance, and long breaks. Fabris explained that she worded the e-mail positively
because she wanted plaintiff to improve.
¶6 Plaintiff sent a reply e-mail to Fabris two days later. The entirety of plaintiff’s e-mail was
as follows: “This e-mail contains numerous false accusations that I already spoke to [a
manager at Pay Cycle] about. My reply serves as acknowledgment that this e-mail was
received only.”
¶7 Fabris testified that after the exchange of e-mails, plaintiff called off work four more
times and was late to work once and that that was when attendance became an issue. Pay
Cycle related to Fabris that plaintiff was not receptive to feedback and the attendance issue
had gotten worse, so they decided to end the assignment. Fabris explained that Pay Cycle’s
work was slowing down and the company chose to let plaintiff go because she was “the one
that was having the most issues and wasn’t following policy.”
¶8 Fabris called plaintiff and left her a message, indicating that she “had to end her
assignment.” Plaintiff called Fabris back, and during the ensuing telephone conversation,
Fabris told plaintiff that her discharge was due to “a combination of attendance and tardiness,
production was slowing, they had to pick their best people to keep and since she was having
so many issues, she was the one to like get let go.” According to Fabris, plaintiff indicated
she understood.
¶9 Plaintiff testified at the telephone hearing that no on-site supervisor ever counseled her
regarding attendance. She asserted that Fabris only made two attempts to contact her by
telephone and noted that she did respond to Fabris’ e-mail. Plaintiff acknowledged that she
had been absent from work seven times. Referencing a document that Fabris had attached
to her e-mail to plaintiff, plaintiff noted that Pay Cycle’s call-off policy was that employees
were required to call a particular telephone number one hour before the start of their shifts.
Plaintiff produced telephone records showing that she called that number on at least five
mornings. She also testified that on two other dates, she was absent from work because she
was sick. According to plaintiff, on the day following those sick days, she faxed
documentation of her illness to Leber, which forwarded the notice to an on-site supervisor
at Pay Cycle.
-3-
¶ 10 Plaintiff also produced a policy document indicating that employees would receive a
documented verbal warning upon a sixth unplanned, unapproved absence; would receive a
written warning for a seventh unplanned, unapproved absence within 90 days of the verbal
warning; and, at the manager’s discretion, would be subject to termination for any additional
unplanned and unapproved absences. Plaintiff stated that she never received a verbal or
written warning from Pay Cycle or Leber. She noted that Fabris’ e-mail did not include any
kind of warning regarding attendance but, instead, indicated that her job was not in jeopardy.
¶ 11 Plaintiff disputed the content of the telephone conversation she had with Fabris.
According to plaintiff, Fabris told her she was going to be laid off due to the peak season
being over and Pay Cycle’s corresponding need for fewer staff members. Plaintiff stated that
Fabris made no mention of attendance or performance during that conversation or at any
other time. She stated that the only time attendance issues came up was in the e-mail from
Fabris, but maintained that she had responded to the e-mail and disputed its “numerous false
accusations.”
¶ 12 Following the telephone hearing, the IDES referee affirmed the claims adjudicator’s
denial of plaintiff’s claim for unemployment benefits. In the course of doing so, the referee
stated that absences and tardiness can cause disruption to the general operations of any
business, that an employer has a right to expect its workers to report to work as scheduled,
and that an employer has a right to expect prompt notification of an absence. With regard to
plaintiff, the referee found that she failed to demonstrate she was dependable, that her
absences and tardiness had become excessive, and that her conduct amounted to misconduct
as contemplated under section 602(A) of the Act. 820 ILCS 405/602(A) (West 2008). Based
upon a preponderance of the evidence, the referee found that plaintiff was discharged for
misconduct in connection with her work and was thus disqualified from receiving benefits.
¶ 13 Plaintiff appealed to the Board, which affirmed the referee’s decision. The Board found
the record adequate, determined that the referee’s decision was supported by the record and
the law, and incorporated the referee’s decision as part of its own. Plaintiff thereafter filed
a complaint for administrative review. The circuit court affirmed, finding that the Board’s
decision was not clearly erroneous.
¶ 14 On appeal, plaintiff contends the Board’s decision that she was discharged for
misconduct was based on a misinterpretation of section 602(A), was against the manifest
weight of the evidence, was clearly erroneous, and was incorrect as a matter of law.
¶ 15 Ultimately, plaintiff’s appeal centers around a legal issue, i.e., whether misconduct must
be the sole cause of an employee’s discharge in order for her to be disqualified for benefits
under section 602(A). Plaintiff has cited no authority directly on point, and our research has
revealed no cases clarifying the issue. That said, the language of the statute speaks for itself.
Section 602(A) provides that an individual is ineligible to receive benefits if she was
“discharged for misconduct connected with [her] work.” 820 ILCS 405/602(A) (West 2008).
It does not indicate that the reason for discharge must be “only” or “solely” misconduct, and
we decline to read such a requirement into the statute. See Land v. Board of Education, 202
Ill. 2d 414, 426 (2002) (“where the language of a statute is clear and unambiguous, a court
must give it effect as written, without reading into it exceptions, limitations, or conditions
-4-
that the legislature did not express”).
¶ 16 In an appeal involving a claim for unemployment benefits, we defer to the Board’s
factual findings unless they are against the manifest weight of the evidence. Manning v.
Department of Employment Security, 365 Ill. App. 3d 553, 556 (2006). An administrative
agency’s findings of fact are against the manifest weight of the evidence only if the opposite
conclusion is clearly evident. City of Belvidere v. Illinois State Labor Relations Board, 181
Ill. 2d 191, 205 (1998). In our role as a reviewing court, we may not judge the credibility of
the witnesses, resolve conflicts in testimony, or reweigh the evidence. White v. Department
of Employment Security, 376 Ill. App. 3d 668, 671 (2007). If there is any evidence in the
record to support the Board’s decision, that decision is not contrary to the manifest weight
of the evidence and must be sustained on review. James L. Hafele & Associates v.
Department of Employment Security, 308 Ill. App. 3d 983, 986 (1999).
¶ 17 In this case, the Board acknowledged that Pay Cycle was reducing its staff due to
economic reasons, yet made a factual finding that plaintiff was discharged because her
tardiness and absences had become excessive. This factual finding has support in the record.
In six months of employment, plaintiff was late for work six times and called off work seven
times. At the telephone hearing, Fabris testified that plaintiff’s discharge was premised on
“a combination of her attendance, her tardiness and performance.” She stated that Pay Cycle
had asked her to warn plaintiff about her attendance. After she did so, the attendance issue
got worse, and Pay Cycle determined plaintiff was not receptive to feedback and decided to
end her assignment. Fabris testified that in the course of breaking this news to plaintiff, she
told plaintiff the discharge was due to “a combination of attendance and tardiness, production
was slowing, [Pay Cycle] had to pick their best people to keep and since she was having so
many issues, she was the one to like get let go.”
¶ 18 We defer to the Board’s finding that plaintiff was discharged because of attendance
issues. While some evidence exists that economic factors may have played a part in the
timing of plaintiff’s discharge from employment, a decision opposite to that of the Board is
not clearly evident. Evidence exists in the record to support the Board’s finding that plaintiff
was discharged due to her excessive tardiness and absences. Accordingly, the Board’s factual
findings are not against the manifest weight of the evidence.
¶ 19 Three main requirements must be met to establish misconduct under the Act. It must be
proven that (1) there was a deliberate and willful violation of a rule or policy of the
employing unit, (2) the rule or policy was reasonable, and (3) the violation either harmed the
employer or was repeated by the employee despite a previous warning or other explicit
instruction from the employing unit. 820 ILCS 405/602(A) (West 2008); Manning, 365 Ill.
App. 3d at 557. Whether an individual was properly terminated for misconduct in connection
with her work is a question that involves a mixed question of law and fact, to which we apply
the clearly erroneous standard of review. Hurst v. Department of Employment Security, 393
Ill. App. 3d 323, 327 (2009). An agency’s decision is considered to be clearly erroneous
where the entire record leaves the reviewing court with the definite and firm conviction that
a mistake has been made. AFM Messenger Service, Inc. v. Department of Employment
Security, 198 Ill. 2d 380, 395 (2001).
-5-
¶ 20 In this case, Leber presented evidence of the existence of a reasonable policy regarding
attendance at work. Leber also presented evidence that plaintiff was made aware of the
policy. Nevertheless, in the six months of her employment, plaintiff was late to work six
times and called off work seven times. Additionally, plaintiff received a warning in January
2009 regarding her attendance and was instructed that the proper call-in procedure was to call
both Pay Cycle and Leber. Plaintiff was absent on both February 10 and 11, 2009. Although
plaintiff presented evidence that she was absent due to illness on those days, she failed to
follow the proper procedure mentioned above to report those absences. These circumstances
support a finding that plaintiff deliberately and willfully violated a reasonable work rule or
policy.
¶ 21 As to the third element of misconduct, we note that IDES regulations indicate “harm”
includes damage or injury to other employees’ well-being or morale or to the employer’s
operations or goodwill. 56 Ill. Adm. Code 2840.25(b) (2012). The regulations explain that
“[a]bsences and tardiness always cause harm to the employer” “because absences and
tardiness cause disruption to the general operations of any business.” 56 Ill. Adm. Code
2840.25(b) (2012). In light of these regulations, we find that evidence of harm existed in the
record, even though Fabris did not testify as to this element.
¶ 22 After reviewing the entire record, we cannot say, definitively and firmly, that the Board
made a mistake. The Board’s determination that plaintiff’s excessive absences and tardiness
constituted misconduct connected with work so as to disqualify her for unemployment
benefits was not clearly erroneous.
¶ 23 For the reasons explained above, we affirm the judgment of the circuit court of Cook
County.
¶ 24 Affirmed.
-6-