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Gee v. Board of Review

OPINION FILED SEPTEMBER 26, 1985.

PAULINE GEE, PLAINTIFF-APPELLEE,

v.

THE BOARD OF REVIEW OF THE DEPARTMENT OF LABOR ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. James C. Murray, Judge, presiding.

JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:

Plaintiff, Pauline Gee, brought an action for administrative review of a decision of the defendant, Board of Review of the Illinois Department of Labor (Board), which denied her unemployment insurance benefits. After a hearing, the trial court reversed the Board's decision. On appeal, the Board contends that it properly determined that plaintiff was ineligible to receive unemployment benefits due to her misconduct in connection with her work.

Plaintiff's complaint for administrative review alleged that the Board abused its discretion in failing to consider her evidence and rendered a decision contrary to law and contrary to the manifest weight of the evidence in finding her ineligible for benefits as a result of misconduct in connection with her employment by Certified Automotive (Certified).

The common-law record shows that plaintiff's claim for benefits alleged that Certified shortened her time, but that when she asked about it, she was told it was not her concern; that she did not get along with her supervisor; and that, when her supervisor asked her to work one Saturday and she could not, he discharged her. Certified responded that she was discharged for insubordination; that on the date of her discharge she asked her supervisor if she could leave work an hour early; that her supervisor informed her that she could if her duties were completed; however, when it later became apparent that she would not complete her duties, the supervisor told her that she would not be able to leave early; that plaintiff was terminated when she then became irate, yelled and insisted that she would leave early; and that she had received prior verbal warnings for loud outbursts in the office. The claims adjudicator then determined that plaintiff was discharged because she would not work on a Saturday and did not get along with her supervisor and that she was eligible for benefits because the reason for her discharge did not constitute a wanton or wilful disregard of the employer's interests.

Certified then filed a notice of appeal to the referee who conducted a hearing at which plaintiff appeared pro se. The employer was represented by counsel. Phil Cassata, plaintiff's former supervisor at Certified, testified that plaintiff's discharge was precipitated by the fact that she became adamant about leaving work early, thus ignoring warnings from previous outbursts. He further testified that he denied the request because they had work to complete before the day was finished. Plaintiff went back to work for 10 or 15 minutes, then became irate, returned to the witness, and started to disrupt other employees and visitors in the office. The witness testified that plaintiff did not say she would leave whether or not she had permission, nor did she use abusive language, but rather she kept insisting that she be allowed to leave in a high tone of voice which became disruptive to other people trying to conduct telephone conversations in the office. According to the witness, plaintiff's disruptive behavior was a repetitive situation, and he had previously given her about five verbal warnings, including a final warning approximately a week to 10 days before her dismissal, that further outbursts would not be tolerated and that she would be terminated.

Plaintiff, a former accounts receivable clerk for Certified, then testified that on the day of her discharge she told Cassata that she would work through her lunch hour if she could leave work an hour early; he agreed. She further testified that she planned to finish all her work before she left. When Cassata later refused to let her leave early, she told him that she did not think it was fair that he let her work through her lunch period, but then would not allow her to leave early. She thereafter went to his office to ask him if she could leave, but she denied using loud language. He then discharged her. Plaintiff further testified that she previously had problems with Cassata when she questioned him about a time shortage on her time card. According to plaintiff, he became rude, told her she had no right to question this matter and that in the future she should check out every time she went to the bathroom. When she later found a 3 1/2-hour shortage on her time card, she learned that Cassata had not properly signed her card. In addition, several days before her discharge Cassata asked her to work the following Saturday on three days' notice, although she rarely worked on Saturdays and had already made other plans.

The referee then read into the record a statement by Sarah Russo, an employee of the Gibbons Company, a service representative organization representing Certified. Russo's statement related that Cassata told plaintiff she could leave early if her duties were completed, but when he later told her she could not leave because her scheduled duties were not completed, plaintiff yelled and insisted that she was going to leave early. The statement further related that plaintiff received a prior verbal warning for loud outbursts in the office. The statement does not indicate whether Russo was present during any of these outbursts.

The referee then reversed the claims adjudicator's decision, ruling that plaintiff was disqualified for benefits because she was discharged for misconduct connected with work. The referee made the following findings of fact: on the day of her discharge plaintiff worked without stopping for lunch and requested permission to leave one hour early; when her supervisor refused the request, she returned to work, but then again requested to leave early, arguing that she deserved permission to leave because she had worked through her lunch period; when the supervisor again refused because there was too much work to be done, plaintiff resumed her argument, stating that it was unfair for her to work through her lunch period and then be required to complete the shift; the employer then discharged plaintiff for insubordination because she had been warned about such arguments previously.

The referee concluded that plaintiff's persistent arguments following her supervisor's lawful direction amounted to sufficient resistance to be construed as refusal to follow orders. The referee further defined insubordination as behavior which is a wilful and wanton violation of the employment relationship and exhibits a disregard of the employer's business interest. The referee then set out the following six points, stating that all six must be clearly established as factual before any form of behavior is determined to be an act of misconduct:

"1. The worker has been discharged or quit in lieu of discharge;

2. The discharge is due to worker's behavior for which the employer is not at fault;

3. There must be a direct `causal' relationship between the behavior and the discharge;

4. The behavior is connected with or has a demonstrable bearing on the work;

5. The behavior must be a wilful or wanton violation of the employment relationship or disregard of the ...


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