Arroyo v. Doherty

Fourth Division
May 28, 1998

No. 1-97-3985

ABIGAIL ARROYO, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellant, ) COOK COUNTY.
)
v. )
)
LYNN DOHERTY, Director, Illinois )
Department of Employment Security; )
ILLINOIS DEPARTMENT OF EMPLOYMENT )
SECURITY; BOARD OF REVIEW, Illinois )
Department of Employment Security; )
and WALLY'S KOSHER DELI, ) HONORABLE
) LESTER A. BONAGURO,
Defendants-Appellees. ) JUDGE PRESIDING.

JUSTICE WOLFSON delivered the opinion of the court:
Was Abigail Arroyo (Arroyo) fired from her job as a cashier
at Wally's Kosher Deli or did she quit? She was denied
unemployment benefits because the Department of Employment
Security Board of Review decided she left her job without good
cause. The Circuit Court upheld the Board's finding. We believe
the record demonstrates she was fired. For that reason we
reverse the Board's finding and remand for a new hearing into
whether she was fired for misconduct that makes her ineligible
for benefits.
FACTS
In 1995, Arroyo began working as a cashier at Wally's Kosher
Deli (the deli). While employed at the deli, Arroyo became
pregnant. On June 14, 1996, approximately eight months into her
pregnancy, Arroyo experienced complications and was admitted to
Illinois Masonic Hospital, where she gave birth to a still-born
child. Arroyo was discharged from the hospital on June 18, 1996,
with orders from her doctor to refrain from work for six weeks.
On July 23, 1996, Arroyo returned to the deli to get her
last paycheck and inform her employers, the deli's owners Harry
Friedman and Steve Brin, she could resume work. Brin told Arroyo
she was fired.
Arroyo filed for unemployment benefits, and the deli filed
its objections. Specifically, Brin alleged:
"The claimant, Abigail Arroyo was on our schedule to
work as of 6/14/96, she again appeared at our store to
pick up last check for the week of 6/3/96 on July
24th[,] 1996. We did not hear from Miss Arroyo for
almost 40 days[.] If someone who is employed by you
does not tell us [sic] what happened to themselves
[sic] for 40 days we assume they have terminated
voluntarily. She was a no show for more than 1 month."
(Emphasis added.)
The claims adjudicator interviewed Arroyo. The notes from
this interview indicate Arroyo called Brin on June 15 and June
24, 1996. The notes also show Arroyo said, "I kept in contact
with him [Brin]." The claims adjudicator interviewed Brin as
well. The notes from this interview echo Brin's earlier claim
that he did not hear from Arroyo during her absence.
On August 16, 1996, the claims adjudicator found Arroyo
eligible for benefits from July 28 to August 10, 1996 (13 days)
because she had not engaged in any misconduct. The deli
appealed. The appeal fact sheet from the claims adjudicator's
finding noted the "NATURE OF APPEAL" as "MC" (presumably
"misconduct") and the "SECTION OF LAW/RULE" as "602(A)."
However, the notice of hearing described one of the issues on
appeal as follows:
"WHY WAS CLAIMANT SEPARATED FROM EMPLOYMENT WITH THE
ABOVE EMPLOYER? IF DISCHARGED, WAS IT FOR MISCONDUCT
IN CONNECTION WITH THE WORK? IF CLAIMANT LEFT
VOLUNTARILY, WAS IT FOR GOOD CAUSE ATTRIBUTABLE TO THE
EMPLOYER? SEE IUIA [Illinois Unemployment Insurance
Act] SEC. 601 AND 602." (Emphasis added.)
On October 1, 1996, the parties appeared before referee
William P. Naurich for a hearing. At the beginning of the
hearing, the referee said, "Since it [the hearing] arises under
602(A) of the Act, I'll be asking Mr. Friedman questions first."
When asked whether he claimed Arroyo was discharged or quit,
Friedman said, "My contention was that she didn't show up."
However, he immediately changed his contention: "She was dis--
discharged." Later, he said, "The reason [she was discharged]
was is [sic] that she didn't show up to work for the last six
weeks."
Friedman also noted Arroyo had received at least one warning
for failing to call when she expected to miss work. Friedman
admitted he eventually heard rumors from other deli employees
about Arroyo. However, Friedman said, "*** I didn't know that
she lost her baby for the first four weeks [of her absence], and
I figured that we were at least owed a phone call from he[r] to
tell us what the story was." Friedman repeated he did not hear
from Arroyo between June 16, 1996--when her mother left a voice
mail message that Arroyo was "not feeling well" and would not
work that day--and July 23, 1996--when Arroyo arrived at the deli
to retrieve her last paycheck.
The referee next questioned Arroyo. Arroyo said, "I--I
would say that I was discharged." She said Brin fired her, but
did not give any reasons. Arroyo speculated as to a possible
reason: "*** [T]hey [Friedman and Brin] had to hire their two
daughters." Arroyo conceded she waited six weeks before
returning to the deli, but insisted "*** I kept in contact with
them."
Arroyo said she told Brin about her health problems when she
returned and emphasized, "*** I called him before that" on June
19. Arroyo recounted a conversation with Brin:
"To call he said the 23rd when I picked up my check.
Call me in two weeks and see if I have anything open
for you. I said well I need my job Steve. I'm coming
back. I'm okay now. It was a very hard, tough thing
for me what happened to me."
The referee finally questioned Brin. Brin asserted he never
spoke with Arroyo on June 19, and actually did not speak with her
at all between June 13, the last day she worked at the deli, and
July 23, 1996, the day she came for her last paycheck. Brin said
he first heard about Arroyo's problems "through the grapevine"
four weeks after she stopped working. Brin admitted he hired
relatives to replace Arroyo, but noted "[t]hey are only here one
day a week." Brin noted Arroyo had at least one warning for a
"No call, no show." There is no evidence of a written company
policy concerning the consequences of a failure to call.
Near the end of the hearing, the following exchange occurred
between the referee and the deli's representative:
"THE REFEREE: I'll indicate I don't have any
further questions of either party. Since it's the
employer's appeal, Ms. Devanna, would you like an
opportunity for a closing statement?
MS. DEVANNA: No, just other then [sic] to say that
perhaps under the circumstances a 601(A) might be
appropriate.
THE REFEREE: Had they testified to that, but as
you know under the law, the employer must be aware
that's the reason.
MS. DEVANNA: (INAUDIBLE) because of her
circumstances, personally, I wouldn't want to see her
...
THE REFEREE: ... Ms. Devanna, had the employer
said that they--they were aware of that reason, I would
consider it ...
MS. DEVANNA: Okay.
THE REFEREE: But they didn't testify to that.
They said they never heard from her."
On October 2, 1996, the referee found Arroyo "***was absent
due to the stillborn birth and recovery for a period of six
weeks." The referee also found Arroyo had notified the deli of
her medical condition and her doctor's advice not to work during
her recovery. The referee concluded Arroyo was "discharged for
reasons other than misconduct" and 602(A) did not disqualify her
from receiving benefits.
The deli appealed this decision to the Board of Review,
contending:
"IN THIS MISCONDUCT CASE, THE CLAIMANT ABANDONED HER
JOB. WITHOUT NOTIFICATION TO THE EMPLOYER AS TO THE
REASON FOR, NOR THE LENGTH OF HER INTENDED ABSENCE, THE
CLAIMANT WAS NO CALL, NO SHOW, FOR SIX WEEKS."
(Emphasis added.)
The deli contended that Arroyo's testimony was contradictory as
to whether she notified the deli about her absence, but that the
deli owners testified consistently that Arroyo never called about
her absence.
On December 20, 1996, the Board of Review reversed the
referee's decision. The Board of Review said, "*** we do not
concur in the referee's analysis of the evidence presented to him
at the hearing, and replace all his findings with findings of
fact of our own, based on the evidence." Primarily, the Board of
Review disagreed with the referee's finding that Arroyo notified
the deli about her absence. According to the Board of Review,
after Arroyo's mother left a message on June 16, 1996:
"*** neither the claimant, nor anyone on her behalf,
notified the employer of her continuing absence or the
necessity therefor. All of the employer's
'information' regarding this unfortunate set of
circumstances came through the 'grape vine.' The
claimant contends she called the employer but: (a) her
evidence was vague and indefinite as to when such
contact occurred; and (b) she offered no corroboration,
such as an itemized telephone record or telephone bill
to support her contention.
***
*** In addition, there is likewise no evidence
that she was advised to leave her work by a licensed
and practicing physician."
After discussing the differences between section 601(A) and
section 602(A) of the Act, the Board of Review concluded Arroyo
voluntarily left the deli without good cause under section
601(A). The Board of Review found: "Section 602A of the Act does
not apply."
On January 24, 1997, Arroyo filed an administrative review
action in the circuit court of Cook County. On September 25,
1997, the circuit court upheld the Board of Review's decision.
While the trial court believed the referee was in a better
position than the Board of Review to judge the credibility of the
witnesses, the court lamented its deferential role:
"Unfortunately, at the present time, the Board of
Review is charged with the legal responsibility of
independent fact finder, and its factual determinations
may not be rejected by a reviewing court unless they
are against the manifest weight of the evidence."
Because some testimony supported the Board of Review's decision,
the court found this decision was not against the manifest weight
of the evidence. The court affirmed the Board of Review.
This appeal followed.
DECISION
The purpose of the Illinois Unemployment Insurance Act (the
Act) (820 ILCS 405/100 et seq. (West 1993)) is to provide
benefits to unemployed workers "to alleviate the hardships of
involuntary unemployment." Nichols v. Department of Employment
Security, 218 Ill. App. 3d 803, 809, 578 N.E.2d 1121 (1991).
However, a worker applying for such benefits has only a
conditional right to receive them: "The Act is not intended to
benefit those who are unemployed on account of their own
misdeeds." Nichols, 218 Ill. App. 3d at 809. The burden of
proving eligibility rests with the claimant. Collier v.
Department of Employment Security, 157 Ill. App. 3d 988, 991, 510 N.E.2d 623 (1987).
The Act offers judicial review in accord with the
Administrative Review Law. See 820 ILCS 405/1100 (West 1993).
While "[t]he findings and conclusions of the administrative
agency on questions of fact shall be held to be prima facie true
and correct" (735 ILCS 5/3-110 (West 1992 & Supp. 1997)), a
reviewing court may revisit the agency's conclusions of law de
novo (Nichols, 218 Ill. App. 3d at 809-10).
Our function with respect to the agency's fact findings is
to determine whether they were against the manifest weight of the
evidence. Abrahamson v. Department of Professional Regulation,
153 Ill. 2d 76, 88, 606 N.E.2d 1111 (1992); Grant v. Board of
Review, 200 Ill. App. 3d 732, 734, 558 N.E.2d 438 (1990). To
reverse the agency's decision as against the manifest weight of
the evidence, we must conclude:
"*** all reasonable and unbiased persons, acting within
the limits prescribed by law and drawing all inferences
in support of the finding, would agree that the finding
is erroneous [citations], and that the opposite
conclusion is clearly evident." O'Boyle v. Personnel
Board, 119 Ill. App. 3d 648, 653, 456 N.E.2d 998
(1983).
A reviewing court may not reweigh evidence, judge credibility of
witnesses, or resolve conflicts in testimony. Nichols, 218 Ill.
App. 3d at 809. If the record contains some competent evidence
to support the agency's decision, it should be affirmed.
Abrahamson, 153 Ill. 2d at 88.
The Act provides:
"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
***.
The provisions of this Section shall not apply to
an individual who has left work voluntarily:
1. Because he is deemed physically unable to
perform his work by a licensed and practicing physician
***, and he has notified the employing unit of the
reasons for his absence." 820 ILCS 405/601(A), 601(B)1
(West 1993).
The Act also provides:
"An individual shall be ineligible for benefits
for the week in which he has been discharged for
misconduct connected to his work ***. *** For purposes
of this subsection, the term 'misconduct' means
deliberate and wilful 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 or other explicit
instruction from the employing unit." 820 ILCS
405/602(A) (West 1993).
Section 601(A) and section 602(A) in effect create two
groups of claimants ineligible for benefits: those who left work
voluntarily without good cause (601(A)), and those who were fired
for misconduct (602(A)). Section 601(B), read in concert with
section 601(A), provides instances where the claimant has good
cause to leave. See Flex v. Department of Labor, 125 Ill. App.
3d 1021, 466 N.E.2d 1050 (1984). "Good cause" is a fact issue
focusing on the conduct of the employer. Pearson v. Board of
Review, 194 Ill. App. 3d 1064, 1069, 551 N.E.2d 1021 (1990). A
claimant's intent to leave is also a fact issue. Hawkins v.
Department of Employment Security, 268 Ill. App. 3d 927, 930, 645 N.E.2d 428 (1994); Dunn v. Department of Labor, 131 Ill. App. 3d
171, 174, 476 N.E.2d 77 (1985).
Arroyo asserts these sections are mutually exclusive:
Section 601(A) concerns voluntary leaving, and section 602(A)
concerns involuntary leaving, or discharge, for misconduct.
Arroyo contends the Board of Review overstepped its authority
when it based its ruling on section 601(A) after the referee
already had concluded this section was not raised by either
party. Without notice that this issue would arise before the
Board of Review and without an opportunity to be heard on this
issue, Arroyo contends she was deprived of due process.
Arroyo's due process contention must fail. The deli's
objections to Arroyo's benefits specifically mentioned voluntary
termination: "If someone who is employed by you does not tell us
[sic] what happened to themselves [sic] for 40 days we assume
they have terminated voluntarily." Additionally, while the
appeal fact sheet from the claim adjudicator's finding specified
section 602(A), the notice of hearing mentioned both section 601
and section 602.
Although Arroyo should have expected to address section
601(A), her failure to prepare a response to allegations of
voluntary leaving is understandable. "Whether an employee
voluntarily discontinued her employment is a question of intent
and is to be determined from the totality of the evidence
presented." Grigoleit Co. v. Department of Employment Security,
282 Ill. App. 3d 64, 69, 669 N.E.2d 105 (1996). Simply put, the
record contains no evidence to prove Arroyo intended to leave her
job at the deli.
Instead, the uncontroverted evidence shows Arroyo's mother
called the deli on the first night of Arroyo's hospitalization,
Arroyo's doctor advised her to minimize her activity, Arroyo came
back to the deli after six weeks, and the deli fired her.
Specifically, the referee asked Friedman, "Is it the employer's
contention the claimant was discharged from her job, or that she
quit?" Friedman responded: "My contention was that she didn't
show up." After the referee pursued an answer to his question,
Friedman soon admitted Arroyo was "dis--discharged." We take
Friedman at his word--she was discharged. In addition, the deli,
in its notice to the Board, referred to "misconduct," a section
602(A) descriptive term.
An important statutory issue arises: Can the Board of Review
rely on section 601(A)'s voluntary leaving provision when the
employee claiming unemployment benefits in fact was discharged?
Grigoleit Co., 282 Ill. App. 3d 64, indirectly addresses
this issue. In Grigoleit Co., an employer notified its
production staff they would have to work a certain Saturday. As
required, Karen Smith, a production staff member, reported to
work. When Smith's production line malfunctioned, Smith's
supervisor asked her to clean the work area. Smith refused,
saying she had come to run the production line and not to clean.
Smith left work early. The following Monday, the management
staff asked Smith for a written explanation of her conduct.
Smith submitted a letter, which the management staff judged
insufficient to retain Smith. Smith filed for unemployment
benefits.
The Board of Review decided the employer caused Smith's
separation from work, and thus 601(A) did not apply. The Board
considered Smith's case solely under section 602(A). Both the
trial and this court agreed with the Board's determination the
employer had discharged Smith, making section 601(A)
inapplicable. Grigoleit Co., 282 Ill. App. 3d at 70.
Like Smith, Arroyo was fired for leaving work. While Smith
left work during her shift, and Arroyo did not come to work at
all, this distinction does not affect the obvious conclusion: if
a claimant is fired by her employer, she did not voluntarily
leave her position.
Other Illinois cases have addressed both section 601(A) and
section 602(A). See Chicago Transit Authority v. Didrickson, 276
Ill. App. 3d 773, 659 N.E.2d 28 (1995); County of Cook v.
Illinois Department of Labor, 123 Ill. App. 3d 68, 462 N.E.2d 576
(1984). See also Jones v. Department of Employment Security, 276
Ill. App. 3d 281, 285, 657 N.E.2d 1141 (1995)("*** given that
there was a leave of absence and that plaintiff [the claimant]
attempted to return to work but was discharged by [the employer]
upon her return, we find the termination of employment to have
been involuntary and attributable to the [employer].")
In Didrickson, a temporary summer employee sought
unemployment benefits. The court, after addressing section
601(A), simply observed:
"*** the record contains no allegations or evidence
that [the claimant] had committed misconduct connected
with the work. Therefore, Smith was not subject to the
disqualification imposed under section 602(A) of the
Act." Didrickson, 276 Ill. App. 3d at 779-80.
In County of Cook, the employer raised section 601(A),
section 602(A), and section 604, which governs unemployment
benefits during labor disputes, against a striking employee. The
court said:
"*** there was no misconduct and voluntary leaving as
asserted by the [employer]; therefore sections 601 and
602 of the Act were inapplicable and section 604 was
properly applied in making the determination of
eligibility." County of Cook, 123 Ill. App. 3d at 73.
These cases arose from fact contexts different than Arroyo's
case. While some scenarios exist in which voluntary leaving and
misconduct could serve as alternate reasons to deny unemployment
benefits, they would all bear some resemblance to Didrickson and
County of Cook: voluntary leaving with some expectation of
resuming work. Once an employee quits, an employer cannot
discharge her. Once an employee is fired, an employer cannot say
the employee quit.
The Board of Review did not apply section 602(A), and
instead relied on section 601(A), answering in the affirmative
the fact question of the claimant's intent to leave. However,
the Board's legal conclusion that section 602(A) did not apply
was wrong, and the fact question it did address was irrelevant.
The Board never considered whether the facts of Arroyo's case
showed any misconduct under section 602(A). Several cases would
have provided guidance: Garner v. Department of Employment
Security, 269 Ill. App. 3d 370, 374, 646 N.E.2d 3 (1995);
Zuaznabar v. Board of Review, 257 Ill. App. 3d 354, 357, 628 N.E.2d 986 (1993); Adams v. Wood, 206 Ill. App. 3d 719, 724-25,
565 N.E.2d 53 (1990); see Jackson v. Board of Review, 105 Ill. 2d 501, 511-12, 475 N.E.2d 879 (1985).
On the facts before the Board of Review, even if Arroyo did
not call the deli before July 23, 1996, she still may not have
engaged in disqualifying misconduct. That is a fact issue for
the Board to determine. The referee found Arroyo did not engage
in misconduct under section 602(A). While the referee's finding
does not bind the Board of Review, the Board must consider the
findings of the referee as part of the record. Gregory v.
Bernardi, 125 Ill. App. 3d 376, 381-82, 465 N.E.2d 1052 (1984);
see Adams, 206 Ill. App. 3d at 727 ("The referee, as the only one
taking testimony, was in the best position to judge witness
credibility.")
CONCLUSION
The Department of Employment Security Board of Review erred
in applying section 601(A) to this case. We further find the
Board incorrectly concluded section 602(A) did not apply. We
remand for a determination of whether Wally's Kosher Deli has
proved Arroyo engaged in misconduct under section 602(A),
sufficient to justify her discharge and therefore deny benefits.
See 735 ILCS 5/3-112 (West 1992 & Supp. 1997); cf. Kreiser v.
Police Board of City of Chicago, 69 Ill. 2d 27, 370 N.E.2d 511
(1977).
REVERSED AND REMANDED.
CERDA, P.J. and SOUTH, J., concur.