APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
519 N.E.2d 1054, 166 Ill. App. 3d 438, 116 Ill. Dec. 839 1988.IL.155
Date Filed: February 9, 1988; December 15, 1987, nunc pro tunc
Appeal from the Circuit Court of Cook County; the Hon. Marilyn R. Komosa, Judge, presiding.
JUSTICE STAMOS delivered the opinion of the court. SCARIANO, P.J., and BILANDIC, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STAMOS
The Board of Review for the Illinois Department of Employment Security (Board) appeals an order of the circuit court of Cook County which reversed the Board's decision that plaintiff, Loretta Wright, was ineligible to receive unemployment benefits.
The record reveals that plaintiff worked as a garage cashier for Augustana Hospital (employer) for approximately seven months. On March 28, 1985, plaintiff was discharged from her position for excessive tardiness. Thereafter plaintiff filed a claim for unemployment benefits. The claims adjudicator determined that plaintiff was ineligible for unemployment benefits because she had been discharged for misconduct. Ill. Rev. Stat. 1985, ch. 48, par. 432.
Plaintiff appealed the determination of the claims adjudicator and an administrative hearing was conducted by a referee. At the hearing, plaintiff appeared pro se, and the employer appeared through Thomas Scalise (Scalise), who had been plaintiff's supervisor. Plaintiff testified that she began working for the employer on August 27, 1984. Initially, plaintiff was a temporary employee and was subject to a 90-day probationary period, but she became a permanent employee on December 23, 1984.
After December 1984, plaintiff was scheduled to begin work at 7 a.m. each day. On March 28, 1985, plaintiff's car would not start and she had to take a bus to work. The bus was delayed, and plaintiff arrived at work at 7:05 a.m. She was unable to advise her employer of her tardiness because she was already on the bus. Plaintiff acknowledged that she had been warned in February 1985 about arriving late for work.
Scalise testified that on February 13, 1985, plaintiff received a written warning indicating that she had been late for work on five occasions since August 27, 1984. On each of those occasions, plaintiff received a verbal reprimand. The dates on which plaintiff had been tardy were recited, but there was no indication of the reasons for her tardiness or of how late she had been on each occasion. The written warning advised plaintiff that it was her "final warning" and that her employment would be terminated for the next offense. When she arrived five minutes late for work on March 28, 1985, plaintiff was discharged. Scalise acknowledged that the "final warning" given in February 1985 was the first and only written warning received by plaintiff. Although the warning form provided spaces to indicate a "first warning" and "second warning," no such documents were produced at the administrative hearing.
The hearing referee affirmed the determination of the claims adjudicator, finding that plaintiff had been discharged for excessive tardiness. The referee concluded that, after her warning, plaintiff's tardiness on March 28, 1985, was misconduct and that plaintiff was disqualified from unemployment benefits. (Ill. Rev. Stat. 1985, ch. 48, par. 432.) Plaintiff appealed the referee's decision to the Board. The Board affirmed the decision of the hearing referee, finding that plaintiff was disqualified from benefits because she had violated a reasonable rule of the employer and her conduct constituted misconduct.
Plaintiff thereafter filed a complaint for administrative review of the Board's decision. (Ill. Rev. Stat. 1985, ch. 110, par. 3-101 et seq.) The circuit court reversed the Board's decision, holding that the plaintiff's conduct did not demonstrate a deliberate violation of the employer's rule. The circuit court concluded that the Board's decision was contrary to Illinois law. The Board has appealed, contending that its decision was in accordance with the law and was supported by the manifest weight of the evidence.
The function of a reviewing court is to ascertain whether the findings and decisions of the administrative agency are against the manifest weight of the evidence. (Eastman Kodak Co. v. Fair Employment Practices Comm'n (1981), 86 Ill. 2d 60, 426 N.E.2d 877; Clarke v. Board of Review (1985), 131 Ill. App. 3d 317, 475 N.E.2d 942.) The Board argues that the plaintiff's conduct disqualified ...