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Profice v. Board of Review

OPINION FILED JULY 17, 1985.

ANITA A. PROFICE, PLAINTIFF-APPELLEE,

v.

BOARD OF REVIEW OF THE ILLINOIS DEPARTMENT OF LABOR, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Marilyn R. Komosa, Judge, presiding.

PRESIDING JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:

Plaintiff, Anita A. Profice, had been employed as a bus servicer by the Chicago Transit Authority (CTA) since July 1981. On February 20, 1983, she was dismissed for smoking marijuana on the job in violation of a work rule. She then filed a claim for unemployment compensation, which was denied by the claims adjudicator and referee for the Board of Review of the Illinois Department of Labor, defendant herein. The referee's decision was appealed by plaintiff to defendant which affirmed the decision. Plaintiff then filed a pro se complaint for administrative review of defendant's determination in the circuit court of Cook County. (Ill. Rev. Stat. 1983, ch. 110, par. 3-101 et seq.) After a hearing, the circuit court reversed defendant's decision. Defendant appeals, contending that the evidence supports its decision that plaintiff was guilty of misconduct on the job, and therefore, was not entitled to unemployment compensation benefits.

The record discloses that plaintiff worked for the CTA as a bus servicer from July 21, 1981, through February 20, 1983, at a final wage of $8.96 per hour. Her work shift began at 11:30 p.m. and ended at 8 a.m. About midnight on February 20, 1983, Mr. Kujall, a pump foreman for the CTA, went to the women's locker room looking for Ms. Allison, a co-employee of plaintiff. On the way to that room he observed plaintiff exiting the door to that location. Looking for Ms. Allison, Kujall knocked on the door. When the door opened, he smelled the aroma of marijuana smoke. Kujall then reported this to Mr. Custley, the supervisor. Kujall also instructed plaintiff and the co-worker to report to his office.

Plaintiff's supervisor testified that he also smelled the odor of marijuana smoke in the women's dressing room and found half a marijuana cigarette and drug paraphernalia on the locker-room bench. He stated that he was familiar with marijuana because he had 12 credit hours of police science. According to Custley, plaintiff and her co-worker denied smoking marijuana but permitted him to search their purses in lieu of being reported to the police. A quantity of marijuana was found in Ms. Allison's purse. Custley stated that, at that time, plaintiff and Ms. Allison appeared to be unfit for duty and had "glassy eyes." At that point, plaintiff and her co-worker agreed to sign a consent form for a blood test and urinalysis. Plaintiff's urinalysis subsequently tested positive for THC, which is the primary chemical element of marijuana. Custley further stated that only the day manager and the four women employees had keys to the women's locker room.

During the interview of plaintiff and Ms. Allison, plaintiff admitted that she had smoked marijuana, but she denied doing it on the job. When asked whether it was possible that marijuana could have been in her system prior to the start of work, she responded in the affirmative. Plaintiff further contended that "everyone" had access to the women's locker room and that she was forced to submit to the blood test and urinalysis.

Plaintiff's co-worker, Ms. Allison, testified that she and the plaintiff were not smoking marijuana at work. However, the co-worker admitted that the supervisor had found marijuana in her purse.

After hearing this evidence, defendant made the following findings of fact:

"The totality of the evidence established that the claimant [plaintiff] was under the influence of marijuana while at work and on duty on her last day of work in violation of employer rules. Her contention that she was forced to submit to a search and to blood and urine analysis is unsupported by the record. The claimant knew, or could reasonably have known that such behavior was detrimental to the employer's interest and would result in her discharge.

Accordingly, we conclude that the claimant was discharged for misconduct connected with the work, and, therefore, was subject to a disqualification of benefits from February 27, 1983 through March 12, 1983 and thereafter until she requalifies under the provisions of Section 602A of the Illinois Unemployment Compensation Act."

As stated above, after a hearing, the trial court reversed defendant's determination that plaintiff was ineligible for unemployment compensation benefits.

Defendant contends on appeal that the evidence supports its decision that plaintiff was guilty of misconduct connected with her work, and accordingly, she is not entitled to unemployment benefits. We agree with this contention.

Section 602A of the Unemployment Insurance Act states as follows:

"Discharge for misconduct - Felony. A. An individual shall be ineligible for benefits for the week in which he has been discharged for misconduct connected with his work and, thereafter, until he has become reemployed and has had earnings equal to or in excess of his current weekly benefit amount in each of four calendar weeks * * *." Ill. Rev. Stat. 1983, ch. 48, par. 432A.

The CTA rule, in question, prohibits the use or possession of intoxicating liquor or narcotics of any kind from the time an employee reports to work until the conclusion of the employee's workday. The rule also prohibits an employee from reporting to work ...


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