Chicago Transit Authority v. Doherty

                                             Fourth Division
                                             August 21, 1997










No. 1-96-3776

CHICAGO TRANSIT AUTHORITY,              )    APPEAL FROM THE
                                        )    CIRCUIT COURT OF
          Plaintiff-Appellant,          )    COOK COUNTY.
                                        )
   v.                                   )
                                        )
LYNN DOHERTY, DIRECTOR, ILLINOIS        )
DEPARTMENT OF EMPLOYMENT SECURITY       )
BOARD OF REVIEW, and its members        )
individually, ROLAND W. LEWIS,          )
JOHN G. CASHMAN, STANLEY V. MUCHA,      )
GARY J. SULLIVAN, JON R. WALKER,        )
and WILLIAM GRIFFIN, JR.,               )
                                        )
          Defendants-Appellees,         )
                                        )
and                                     )
                                        )
CHICAGO TRANSIT AUTHORITY,              )
                                        )
          Plaintiff-Appellant,          )
                                        )
     v.                                 )
                                        )
LYNN DOHERTY, DIRECTOR, ILLINOIS        )
DEPARTMENT OF EMPLOYMENT SECURITY       )
BOARD OF REVIEW, and its members        )
individually, ROLAND W. LEWIS,          )
JOHN G. CASHMAN, STANLEY V. MUCHA,      )
GARY J. SULLIVAN, JOHN R. WALKER,       )
and BRYANT ASKEW,                       )    HONORABLE
                                        )    LESTER A. BONAGURO,
          Defendants-Appellees.         )    JUDGE PRESIDING.


     PRESIDING JUSTICE WOLFSON delivered the opinion of the
court:
     In 1993 the Chicago Transit Authority (CTA) conducted a
"summer student program."  The CTA hired full-time college
students to work on a temporary basis during the summer months.
The purpose was to cover temporary vacancies that occur during
the summer because of vacations and sick leave taken by full-time
permanent bus operators.  In that way, college students obtain
summer employment and the CTA keeps the buses running.
     The question in this case is whether two college students,
once the program ended, were entitled to receive unemployment 
compensation benefits.  We hold, under the circumstances of this
case, they were not.
FACTS
     The plaintiff in this case is the Chicago Transit Authority
(CTA).  The defendants are Lynn Doherty, Director of the Illinois
Department of Employment Security Board of Review; individual
Board of Review members Ronald Lewis, John G. Cashman, Stanley
Mucha, Gary Sullivan, and Jon Walker; and individual claimants
William Griffin, Jr. (Griffin) and Bryant Askew (Askew).
     In order to be considered for the "summer student program,"
applicants had to be full-time college students who either were
registered for classes or were intending to register for classes
in the fall semester.  The program ran until September 30.  All
student participants were informed of the program requirements
and the length of the program.
Askew
     Askew participated in the 1993 summer student program.  When
Askew was first interviewed and hired by the CTA, he was a full-
time student at Illinois State University in Normal, Illinois.  
     Before he started working, Askew signed an agreement which
said:
          "I understand that I am being hired by the Chicago
     Transit Authority as a temporary employee to work in
     place of permanent employees who are vacationing or are
     otherwise absent from duty. 
          I further realize that this temporary employment
     will continue only as long as the Authority's needs
     require, but will not extend beyond September 30, 1993.
          I also attest to the fact that I am presently a
     full-time student enrolled in an approved institution,
     that I am eligible to return to school, and that I will
     be registering for the next academic term immediately
     following this employment.  I do not desire any
     employment with the Chicago Transit Authority beyond
     September 30, 1993.
          I am willing to accept employment with the Chicago
     Transit Authority under these conditions."  (Emphasis
     added.)
          Askew resigned from the CTA effective October 1, 1993.  The
record does not tell us whether he sought further employment with
the CTA.  Askew did not return to Illinois State in the fall of
1993 because the university had cancelled his major.  Once Askew
left the CTA, he looked for other work.  The record shows that
Askew planned to go to the University of Illinois Chicago in the
winter of 1994.
     Askew applied for unemployment insurance benefits after he
resigned from the CTA. 
     The claims adjuster found Askew departed from the CTA
because his temporary employment ended.  The reason Askew left
was held to be attributable to the employer.  Askew was available
for work and was actively seeking employment.  The adjuster
decided Askew was eligible for benefits for the period.
     The CTA appealed this decision.  On March 8, 1994, a hearing
was held before a referee.  The referee affirmed the adjuster's
decision.  The Board of Review affirmed the referee's decision
and allowed Askew to claim benefits from October 24, 1993, until
December 4, 1993.
Griffin
     Griffin participated in the 1993 summer student program.  He
signed the same agreement as Askew.  At some point, either right
before the program began or during the summer, Griffin passed a
make-up exam and received his associates degree from Truman
College.  Griffin did not return to college in the fall.  He
resigned from the program on September 30, 1993.  At some point
after that, Griffin sought further employment with the CTA.  On
December 7, 1993, the CTA rehired Griffin as a part-time bus
driver.  The CTA did not discharge Griffin from the summer
program because of misconduct.
     Griffin applied for unemployment insurance benefits after he
resigned from the CTA. 
     The claims adjuster found Griffin was ineligible for
benefits because he left the program voluntarily.  Griffin
appealed this decision.  A hearing was held before a referee on
March 2, 1994.  The referee decided Griffin was entitled to
unemployment benefits.  The CTA appealed.  The Board of Review
held a hearing on September 8, 1994.  The Board affirmed the
referee's findings and allowed Griffin to collect benefits
covering the period from October 10, 1993, to October 23, 1993.
     The CTA consolidated the appeals to the circuit court of the
decisions granting benefits to Askew and Griffin.  On September
27, 1996, the circuit court held a hearing concerning these
cases.  The trial court affirmed both decisions by the Board of
Review.
DECISION
     The scope of review in cases like this is established.
The Board is the trier of fact and its factual findings are
treated as prima facie true and correct.  Grant v. Board of
Review, 200 Ill. App. 3d 732, 734, 558 N.E.2d 438 (1990).  A
court should not disturb those factual findings unless they are
contrary to the manifest weight of the evidence.  Miller v.
Department of Employment Security, 245 Ill. App. 3d 520,
521-22, 615 N.E.2d 35 (1993).  A reviewing court may not
substitute its judgment for that of the administrative agency. 
Popoff v. Department of Labor, 144 Ill. App. 3d 575, 577, 494 N.E.2d 1266 (1986). 
     The claimant bears the burden of proving eligibility.
Pearson v. Board of Review, 194 Ill. App. 3d 1064, 1068, 551 N.E.2d 1021 (1990).  But the Unemployment Insurance Act (the Act)
(820 ILCS 405/100 et seq.) (West Supp. 1997), must be liberally
interpreted to favor the awarding of benefits (Adams v. Ward, 206
Ill. App. 3d 719, 723, 565 N.E.2d 53 (1990)) to accomplish its
primary purpose of alleviating economic distress caused by
involuntary unemployment.  Miller, 245 Ill. App. 3d at 522.      
     We have examined the record concerning each claimant to
determine whether the Board's conclusions are against the
manifest weight of the evidence.
   1. Bryant Askew 
     The CTA contends there are three reasons why Askew was not 
eligible to receive benefits.
     One reason is that Askew was a full-time student when he
applied for the summer employment.  The Act requires that a
claimant be "available for work."  820 ILCS 405/500(C) (West
Supp. 1997) (Section 500(C)).  Someone is unavailable for work
"when his principal occupation is that of a student in attendance
at, or on vacation from, a public or private school."  Section
500(C)(4).
     The decision relied on by the CTA, Miller, 245 Ill. App. 3d
520.
denied benefits to a claimant who was attending school at the 
time he applied.  His principal occupation was that of a student. 
Miller was not, then, a member of the work force.  That is not
the case here.  Askew did not return to school in the fall.
     In a similar situation, we held section 500(C)(4) did not
apply to a claimant who began the CTA's summer program with the
intent to return to school, but changed her mind before
the program ended.  In Chicago Transit Authority v. Didrickson, 
276 Ill. App. 3d 773, 779, 659 N.E.2d 28 (1995), we held the
claimant was entitled to unemployment compensation because she
was a member of the work force, not a student, at the time she
applied for the benefits.  We reject the CTA's contention that
section 500(C)(4) renders Askew ineligible for unemployment
benefits.
     The CTA contends Askew is ineligible for benefits under
section 602(A) (820 ILCS 405/602(A) (West 1993)) because he was
"discharged for misconduct connected with his work."  The
"misconduct" claimed by the CTA is Askew's purportedly false
representation that he was a full-time student who would return
to school full-time in the fall of 1993. 
     We accept the Board's finding that Askew did not
intentionally lie on his application or in his hiring agreement.
In addition, for a claimant to be ineligible for benefits under
section 602(A) the cause of his discharge must be his
work-related misconduct.  Katten Muchin & Zavis v. Department of
Employment Security, 279 Ill. App. 3d 794, 799, 655 N.E.2d 403
(1996).  Also see Garner v. Department of Employment Security,
269 Ill. App. 3d 370, 374, 646 N.E.2d 3 (1995).  Askew was not
discharged because of the contents of his application or his
hiring agreement.  In fact, the CTA maintains Askew was not
discharged at all, that he left voluntarily.  We reject the CTA's
contention that section 602(A) bars Askew from receiving
benefits.       
     The CTA's remaining contention, however, has merit.
     Under the Act, a person is not eligible for benefits if he 
leaves his employment voluntarily.  That is:
          "An individual shall be ineligible for benefits
     for the week in which he has left work voluntarily
     without good cause attributable to the employing unit***"   
     820 ILCS 405/601(A) (West 1993). 
     We have been provided with some guidance on the meaning of
"good cause attributable to the employing unit."  It is "such
cause [which] justifies an employee in voluntarily departing the
ranks of the employed and in joining the ranks of the
unemployed."  Farmers Insurance Exchange v. Department of Labor,
186 Ill. App. 3d 493, 501, 542 N.E.2d 538 (1989), "Good cause
depends on the claimant's 'unique personal circumstances' and the
reasonableness of her actions."  Grant, 200 Ill. App. 3d at 734. 
The focus of the inquiry is on the conduct of the employer and
not the conduct of the employee.  Pearson, 194 Ill. App. 3d at
1069.
     The generality of the statute requires us to examine the
circumstances of each parting of the ways that causes a section
601(A) controversy.  There is "no hard and fast rule applicable
to all situations where temporary employment is involved." 
Calkins v. Board of Review, 141 Ill. App. 3d 36, 39, 489 N.E.2d 920 (1986).
     Askew was a temporary replacement worker.  Everyone
understood that.  His agreement with the CTA called for him to
leave the job September 30 to resume his college education.  He
left.  Was that a voluntary leaving?  The Board contends we
answered that question in Didrickson, 276 Ill. App. 3d 773.
     In Didrickson, the claimant took part in the 1992 CTA Summer
Student Program.  She had signed an agreement similar to the one
signed by Askew.  During the summer, while employed by the CTA,
the claimant decided not to return to school.  She told the CTA
she would not be returning to school.  She asked that she be kept
on as a permanent employee.  Despite having told her and other
temporary employees they could submit written applications for
permanent employment, the CTA did not respond to her written
requests to stay on the job.  When September 30 arrived without
any response from the CTA, the claimant resigned.  She said she
did so because she was told that was the only way to be
considered for permanent employment.  When no job offer was made,
the claimant applied for unemployment benefits.  The Board
granted her claim, but the circuit court reversed the Board. 
Then this court held she was entitled to benefits.
     We observed that nothing in section 601(A) disqualifies
employees hired for a specified term, "nor does the Act otherwise
exclude those workers who are hired for temporary positions and
find themselves unemployed upon the expiration of the employment
term."  Didrickson, 276 Ill. App. 3d at 777-78.
     We said in Didrickson: "The fact that a claimant's
unemployment has resulted from the termination of temporary
employment does not automatically render the separation a
voluntary leaving under section 601(A) of the Act."  Didrickson, 
276 Ill. App. 3d at 778.
     The fact that does matter, that controls the application of
section 601(A), is whether the decision to continue working is
solely that of the worker.  It is on this crucial point that the
facts of Didrickson and of this case diverge.
     Unlike the claimant in Didrickson, Askew did not indicate to
the CTA before September 30 that he wanted to stay on.  He did
not apply for continued employment.  He did not tell the CTA he
would not be returning to college.
     There is another important factual difference.  The 1993
agreement signed by Askew contained a sentence that was not in
the 1992 agreement signed by the claimant in Didrickson.
That sentence is:  "I do not desire any employment with the
Chicago Transit Authority beyond September 30, 1993."
     This case is close to Calkins, 141 Ill. App. 3d 36.  There,
a legal secretary had agreed to work for a specified number of
weeks while the employer's permanent secretary took a leave of
absence.  She understood her term of employment would end when
the regular secretary returned.  The temporary employee never
asked for additional employment before she left the job.  The
Court held section 601(A) was a bar to her claim for unemployment
benefits.
     We conclude Askew voluntarily left his job with the CTA on
September 30 within the meaning of section 601(A).  The fact that
he looked for other employment soon after he left the CTA does
not affect our decision.  It is the leaving on September 30 that
matters.  Before then, he did nothing to put the CTA on notice
that he wanted to stay on the job.  The Board's finding that
Askew was entitled to unemployment insurance benefits was against
the manifest weight of the evidence.
   2. William Griffin, Jr.
     The CTA's contentions concerning Griffin's claim are similar
to those made in Askew's case.
     The CTA claims Griffin misrepresented his status as a
student when he applied for the summer job.  We find, as we did
in Askew's case, there is no evidence Griffin was discharged for
alleged misconduct.  Section 602(A) does not apply.  See Katten
Muchin & Zavis, 279 Ill. App. 3d at 799.
     The CTA contends that Griffin was unavailable for work
because his principal occupation was that of a student, barring
him from unemployment benefits under section 500(C)(4).  Of
course, the CTA also claims Griffin never really intended to go
back to school.  Aside from noting that apparent inconsistency of
position, we find, as did the Board, the controlling fact is that
Griffin was not a student when he applied for benefits.  He was
available for work under section 500(C)(4).  See Didrickson, 276
Ill. App. 3d at 779.
     It is the CTA's other contention that stops Griffin from
receiving benefits.  He, like Askew, did not, before September 
30, tell the CTA he wanted to stay on, either as a temporary or
permanent employee.  He did not tell the CTA he was not returning
to school in the Fall.  His agreement, too, said: "I do not
desire any employment with the Chicago Transit Authority beyond
September 30, 1993."  It was not until shortly after September 30
that Griffin applied for reemployment with the CTA.
     For the same reasons we set out in Askew's case, we hold the
Board's decision to grant benefits to Griffin was against the
manifest weight of the evidence.
                          CONCLUSION
     The Board's findings that Bryant Askew and William Griffin,
Jr. were entitled to unemployment insurance benefits were against
the manifest weight of the evidence.  The circuit court decision

affirming the Board of Review is reversed.
     REVERSED.
     McNAMARA and CERDA, JJ., concur.