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05/26/88 Renee C. Finik, v. the Department of

May 26, 1988

RENEE C. FINIK, PLAINTIFF-APPELLEE

v.

THE DEPARTMENT OF EMPLOYMENT SECURITY ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

524 N.E.2d 1148, 171 Ill. App. 3d 125, 121 Ill. Dec. 100 1988.IL.833

Appeal from the Circuit Court of Cook County; the Hon. Lucia T. Thomas, Judge, presiding.

APPELLATE Judges:

JUSTICE LINN delivered the opinion of the court. McMORROW and JOHNSON, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINN

Defendant, Illinois Department of Employment Security, appeals from an order of the circuit court of Cook County which reversed its determination that plaintiff, Renee Finik, was ineligible to receive unemployment benefits because she voluntarily terminated her employment with Lane-Bee Discount without good cause. In this appeal defendant contends that the court erred in finding that the employer's appeal of the claims adjudicator's decision was untimely, and, secondly, that the court's reversal of defendant's ineligibility determination was against the manifest weight of the evidence. Plaintiff has not filed a brief in response; however, we may consider the issues presented for review under the standards set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

Background

The record shows that plaintiff was employed by Lane-Bee Discount from September 1983 until September 17, 1984. By agreement she worked on a part-time basis so that she would be able to care for her five-year-old son when he returned from school at mid-day. On September 17, 1984, plaintiff, who was then pregnant with her second child, left work at 2 p.m., as was her pattern. About three hours later, however, she telephoned her immediate supervisor, Telford Lane, and told him that she would not be returning to work. Her stated reason for leaving was that her employer was "prejudiced against pregnant women."

Plaintiff thereafter filed a claim for benefits under the Illinois Unemployment Insurance Act (Ill. Rev. Stat. 1983, ch. 48, par. 300 et seq.). She asserted that after she had informed her employer of her pregnancy and the accompanying restrictions on lifting which were imposed by her doctor, her employer told her that she would not get any special privileges because of her condition; that she was instructed to climb ladders and lift boxes which contained four-gallon bottles; that her supervisor embarrassed her in front of customers; and that she was also told that her employer wanted her to work nights. The claims adjudicator found her eligible for benefits based on the employer's request that she perform heavy lifting chores which were prohibited by her pregnancy. The employer disputed this finding, contending that plaintiff quit for reasons not attributable to the employer, and requested that the adjudicator reconsider her determination. The original finding was affirmed, however, and the employer then sought a hearing before the referee.

Pursuant to this request, a hearing took place on December 3, 1984. Plaintiff appeared pro se with her husband, and the employer was represented in person by its claims representative, Carlyle Bascom, and via telephone by its manager, Telford Lane. Lane was sworn by the referee and denied plaintiff's assertions that she had been ordered to perform heavy lifting chores after she had informed him that she was pregnant and was restricted from this type of activity. He also stated that she had never been ordered to perform heavy lifting work throughout her employment and that her duties were comprised of cashiering and light stock work. He further stated that he and others assisted her with heavy containers. He denied telling her that he would not give her any special privileges because of her condition, that he had ordered her to climb ladders and lift heavy boxes, or that he threatened to transfer her to the night shift. With regard to a change in her working hours, he suggested that the latter was available if that would facilitate her child-care problems, but she told him that her husband did not want her to work in the evening. Lane also denied that he had embarrassed plaintiff in front of any customers or that he was prejudiced against her because she was pregnant. He stated that on the day she terminated her employment, she was assigned to clean the hair-color section, which was made up of two-ounce bottles. He observed that she had put the bottles in backwards, and, when he questioned her about it, she said she did not know why she had put them up in that manner. She asked him if she were going to be discharged because of it. He said that she was not. He then noted that she had previously asked him to discharge her on previously occasions but that he had refused to do so because he had no reason to take this action.

Plaintiff asserted that Lane was lying on behalf of the employer and asserted that the day she quit she had been on a ladder for at least four hours. She also accused him of reprimanding her in front of the customers. Lane reasserted that plaintiff had never done any heavy lifting in her employment and stated that she had never brought in a statement from her doctor indicating that she was being injured by any lifting duties associated with her work. At that point plaintiff produced an undated letter from her obstetrician which stated that plaintiff was under his care and that he had advised her to avoid strenuous exercise and heavy lifting because the fertility drug she had taken subjected her to an added risk of miscarriage. Lane stated that he had never been furnished with such a letter and repeated that there was no overly strenuous exercise or heavy lifting involved in her job. Plaintiff retorted that she had told Lane that she was going to get a letter from her doctor, and had also invited him to call her physician, but that he did not.

Plaintiff's husband interjected that he had called Lane a few days before the day plaintiff quit and asked why she was required to do heavy lifting; he also requested him to give her some leeway. Lane denied making any comments on lifting and under questioning by Mr. Bascom stated that plaintiff always called him or other employees to assist her with heavy lifting chores on in getting merchandise up to the front of the store.

The referee concluded that the evidence did not establish that plaintiff had left work voluntarily with good cause attributable to the employing unit, and thus she was disqualified from benefits under section 601(Ill. Rev. Stat. 1983, ch. 48, par. 431) of the Act. In reaching this Conclusion, the referee found that there was no showing that plaintiff's work was unsuitable and noted that job dissatisfaction did not constitute good cause for leaving.

Plaintiff appealed this decision to the Board of Review. She contended that Lane's statements at the hearing were fallacious and reasserted her claim that she had been required to do work which was prohibited by her pregnancy. The Board adopted the findings of fact of the referee and concluded that the evidence failed to establish that plaintiff was harassed at work or that she had substantiated her claim of prejudice. The Board concluded that ...


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