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04/08/88 Northern Service Center, v. the Board of Review

April 8, 1988

NORTHERN SERVICE CENTER, INC., PLAINTIFF-APPELLEE

v.

THE BOARD OF REVIEW, DEPARTMENT OF EMPLOYMENT SECURITY, DEFENDANT-APPELLANT (ROSE M. JOHNSON, DEFENDANT)



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

521 N.E.2d 664, 167 Ill. App. 3d 583, 118 Ill. Dec. 382 1988.IL.503

Appeal from the Circuit Court of Will County; the Hon. Thomas M. Ewert, Judge, presiding.

APPELLATE Judges:

JUSTICE SCOTT delivered the opinion of the court. STOUDER, P.J., and BARRY, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCOTT

Rose M. Johnson, hereinafter referred to as the claimant, was employed in June 1980 as a clerk/cashier in one of the stores owned and operated in Will County by the plaintiff, Northern Service Center, Inc. (hereinafter NSC). The nature of the business of the stores is that of a service station for motor vehicles. The places of business also engage in the sale of lottery tickets. Robert Georgantas, Sr., is president of NSC and his son, Robert Georgantas, Jr., is vice-president.

On October 17, 1983, the claimant suffered a heart attack and during her convalescence her employer, NSC, determined that it was necessary to fill her position at the business located in Lockport and her employment was terminated in February 1984. The claimant contacted the Illinois Department of Labor and was advised by Mr. Moynihan, an employee of the Department, that she could not be terminated during her sick leave. She was also advised by Mr. Moynihan to write her employer, NSC, in regard to her employment status. By correspondence dated April 6, 1984, the claimant was advised by NSC as to the requirements necessary to be fulfilled in order for her to return to work and the correspondence further contained a statement that NSC considered her status as that of being on sick leave.

On April 28, 1984, claimant returned to work after the employer, NSC, had received a release from her doctor.

On September 20, 1984, the claimant was informed by letter from her employer, Robert Georgantas, Jr., that she had been guilty of misconduct to the customers. At a meeting between plaintiff and Robert Georgantas, the latter refused to inform claimant of the specific instances of misconduct, nor would he reveal the names of those who had purportedly complained.

The claimant's employment with NSC was terminated on November 15, 1984, and thereafter she applied to the Illinois Department of Employment Security for unemployment insurance benefits. Claimant's request for benefits was denied by a claims adjudicator. The adjudicator's decision was based upon a determination that claimant was discharged for misconduct connected with her work. A determination of such misconduct supports a denial of benefits. Ill. Rev. Stat. 1983, ch. 48, par. 432.

The claimant appealed the adjudicator's decision and hearing was held on January 4, 1985. In the course of the hearing, Robert Georgantas, Jr., testified that claimant was discharged because she was rude to customers. The witness testified that he received complaints about claimant's conduct between the time period of August 1984 to the date she was discharged. The witness testified as to five incidents concerning customers' dissatisfaction with claimant's conduct. The testimony was that the first complaint was made on the phone and came from a black woman who complained that she had been called a "nigger son-of-a-bitch" when she was purchasing lottery tickets. The caller further stated that the claimant had thrown lottery tickets and money at her through the slot of the cubicle where claimant was stationed for the purpose of selling tickets. Another incident testified to was of the same nature but was related in person to Robert Georgantas, Jr., by a gentleman who claimed that a mistake had been made in his lottery tickets and when the error was called to claimant's attention she refused to remedy the mistake and threw the tickets at him. The third incident was a phone call made by a customer complaining of the claimant's rudeness. The fourth incident, also made by telephone, was from a black woman who also complained of rudeness and tickets being thrown at her. The fifth incident complained of was made by a regular customer who stated that when paying for work done on his daughter's car the claimant was extremely rude and "she [claimant] just -- she [ sic ] threw everything at me."

Prior to the witnesses' testimony concerning the fourth and fifth incidents, counsel for claimant objected to such testimony on the grounds that it was hearsay.

Claimant, testifying in her own behalf, categorically denied that she had ever been rude and denied that she had ever thrown tickets at anyone or made any racial remarks. The claimant testified that her discharge was an act of retaliation because she had contacted the Department of Labor when her employer attempted to discharge her while she was convalescing from her heart attack.

Further recitation of the testimony and the facts adduced therefrom during the hearing will be set forth as the same become pertinent ...


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