Echols v. Department of Employment Security

                                             FOURTH DIVISION
                                             FEBRUARY 6, 1997













No. 1--95--0085

ANNIE R. ECHOLS,                      )  Appeal from the
                                      )  Circuit Court of
               Plaintiff-Appellee,    )  Cook County.
                                      )
v.                                    )                          
                                      )
THE DEPARTMENT OF EMPLOYMENT          )
SECURITY, DIRECTOR OF                 )
EMPLOYMENT SECURITY, and THE          )       No. 94 L 50700
BOARD OF REVIEW OF THE                )
DEPARTMENT OF EMPLOYMENT SECURITY,    )
                                      )
               Defendants-Appellants, )
                                      )
and                                   )
                                      )
VANCON MANAGEMENT SERVICES c/o        )
ROB WEST ASSOCIATES,                  )  Honorable
                                      )  Marilyn Rozmarek Komosa,
               Defendants.            )  Judge Presiding.


     JUSTICE CERDA delivered the opinion of the court:
     The Department of Employment Security, the Director of
Employment Security and the Board of Review of the Department of
Employment Security (Board) appeal from a decision of the circuit
court of Cook County, that reversed the Board's determination
that plaintiff, Annie R. Echols, was ineligible for unemployment
benefits.  Appellants contend that he Board's decision was
neither against the manifest weight of the evidence nor contrary
to law.  Although plaintiff has not filed a brief in this case,
we elect to reach the merits of the appeal under the principles
enunciated in First Capitol Mortgage Corp. v. Talandis
Construction Corp., 63 Ill. 2d 128, 133, 345 N.E.2d 493 (1976).  
     Plaintiff had been employed as a school bus driver.  She
worked seven or eight hours per day, five days per week, and
earned $8.89 per hour.  According to plaintiff's notice of claim,
her last applicable day of work was December 17, 1993, which was
the beginning of the school Christmas break.  On December 19,
1993, plaintiff filed a claim for unemployment benefits and began
looking for other work in the same wage range.  
     Plaintiff's employer, Vancom Management Services, contested
plaintiff's request for unemployment benefits on the ground that
she was not available for work because the period for which she
sought benefits was the school Christmas break.
     At the hearing subsequently held on this matter plaintiff
testified that she would have been willing to travel five to ten
miles in order to become reemployed.  She had her own car and
made personal inquiries at several local retail stores and
businesses.  She did not know what their rates of pay would have
been because each told her that they were not hiring.  She
testified that she would have accepted a job offering $6 per hour
and would have quit her bus-driving position had she found other
full time work.  She also stated that she would have preferred to
work for the bus company during the Christmas break but
acknowledged that only a few positions were available and
admitted that she had never worked during that period before.   
     The hearings referee found that plaintiff had performed an
adequate job search but had placed "unrealistic wage and travel
restrictions on her employability."  Plaintiff's request for
benefits was denied from December 19, 1993, through January 1,
1994.  Plaintiff filed an appeal from this ruling with the Board,
which adopted the decision of the referee without a hearing.
     Plaintiff filed a pro se complaint in administrative review. 
The trial court found that the record did not support the Board's
decision.  It specifically considered the question of plaintiff's
availability for work during the school Christmas break, an issue
raised by the Board, which noted that the issue was also before
the administrative authorities.  The trial court found that
plaintiff had expressed her willingness to accept a job at less
than her wage as a bus driver and had attempted to secure
employment at a number of different places, and that her search
within a 10-mile radius from her home was not unreasonable.  The
trial court also found that plaintiff's employer had work for
other employees but not for plaintiff and distinguished the case
on which the Board relied, Quincy School District No. 172 v.
Board of Review, 129 Ill. App. 3d 93, 96-98, 471 N.E.2d 1056
(1984), on the ground that here a private employer was involved. 
The trial court reversed the Board's decision, and the Board
appealed.  
     Appellants contend that the trial court should be reversed
because the Board's administrative decision was neither against
the manifest weight of the evidence nor contrary to law.  Section
500 of the Unemployment Insurance Act (Act) provides that an
unemployed individual shall be eligible to receive benefits if
the Director finds that she has registered for work, she has made
a claim for benefits, and she is able to work and is available
for work.  820 ILCS 405/500 (West l994).  Section 500(C)(2)
states in part that an individual "shall be considered to be
unavailable for work * * * on days which are holidays according
to the custom of his trade or occupation, if his failure to work
on such day is a result of the holiday."  820 ILCS 405/500(C)(2)
(West 1994).   
     The Quincy court in specifically considered whether the
period of school recess at Christmas should be treated as a
holiday "according to the custom of his trade or occupation"
under section 500(C)(2) of the Act in the context of a school bus
driver's claim for unemployment benefits.  The court stated:  
               "There is perhaps no more widely
          recognized holiday period than that of the
          Christmas recess period as observed in
          Illinois schools, although the precise dates
          of the recess may vary from year to year and
          between districts.  We therefore conclude
          that this period falls within the meaning of
          section 500(C)(2) of the Act, as holidays
          according to the custom of the trade or
          occupation***."     129 Ill. App. 3d at 98.  
Although the employer in the Quincy case was a school district
and was not a private employer, as in the case before us, it is
not distinguishable on that basis.  In both cases, the plaintiff
is a school bus driver.  The reason for the unemployment status
in both situations is the same; the Christmas holidays are
nonwork periods in that line of work.  Therefore, during the
Christmas recess plaintiff was unavailable for employment under
section 500(C)(2) of the Act and was not entitled to unemployment
compensation regardless of her attempts to locate work.  
     The judgment of the trial court is reversed.
     Reversed.
     WOLFSON, P.J., and BURKE, J., concur.