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08/09/89 Linda F. Rias, v. the Department of

August 9, 1989

LINDA F. RIAS, PLAINTIFF-APPELLEE

v.

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



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

543 N.E.2d 211, 187 Ill. App. 3d 328, 134 Ill. Dec. 928 1989.IL.1220

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

APPELLATE Judges:

JUSTICE WHITE delivered the opinion of the court. RIZZI and CERDA, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WHITE

Plaintiff Linda F. Rias filed a claim for unemployment compensation benefits after she was discharged by her employer, Admiral Maintenance Company, for fighting on the job. A claims adjudicator for defendant Illinois Department of Employment Security (the Department) denied plaintiff's claim for unemployment compensation benefits following a determination that plaintiff had violated a known and reasonable rule of her employer against fighting. Plaintiff appealed this determination and a hearing was held before a referee of the Department. The referee found that plaintiff fought only to defend herself from an unprovoked attack by a co-worker and that plaintiff was eligible to receive unemployment compensation benefits. Plaintiff's employer then appealed to the Board of Review (the Board), which held that plaintiff was discharged for misconduct connected with her work and was ineligible to receive unemployment compensation benefits. Plaintiff then filed a complaint in the circuit court of Cook County, Illinois, for administrative review of the Board's decision. Judge Lucia T. Thomas of the circuit court found that the decision of the Board was against the manifest weight of the evidence and that plaintiff was entitled to the unemployment compensation benefits. The Board, the Director of the Department, the Department, and plaintiff's employer (referred to collectively as the defendants) have appealed the decision of the circuit court. We affirm.

The evidence adduced at the hearing before the referee follows.

Plaintiff was employed by Admiral Maintenance Company from September 1983, until February 18, 1987. She was assigned to work at Loyola Hospital as a janitress. On February 18, 1987, plaintiff was returning from her locker after her break when she passed Sharon King, a co-worker, in the hallway. Sharon King turned to plaintiff and said, "Linda, you hit my arm." Plaintiff had not touched Sharon. Sharon had actually brushed against something that was sticking out of the pocket in plaintiff's smock. Plaintiff looked at Sharon, who then walked up to her and pushed her toward the wall. Plaintiff then said to Sharon, "hat do you want to make of it, I wasn't looking, what do you want to make of it" Sharon again pushed plaintiff toward the wall. Plaintiff did not have an opportunity to withdraw. Plaintiff hit Sharon in the face and a physical altercation ensued. After four or five minutes, a security officer intervened and stopped the fight. Plaintiff and Sharon King were suspended pending an investigation and were later discharged.

Plaintiff was given company rules and regulations when she was hired. She was aware that it was a violation of these rules and regulations to participate in any physical altercation at work.

At the Conclusion of the hearing, the referee found that plaintiff was physically attacked by a co-worker at work, without provocation. The referee also found that plaintiff was unable to withdraw and fought to defend herself. The referee noted that Admiral Maintenance Company did not present any testimony to contradict plaintiff's testimony that she fought in self-defense. The referee concluded that plaintiff did not willfully disregard her employer's interest and that plaintiff was eligible to receive unemployment benefits.

The Board elected not to hear additional evidence from the parties. It reviewed the record before the claims adjudicator and the referee and made the following findings:

"The evidence established that the claimant accidently [ sic ] brushed the shoulder of a co-worker on her last day of work and when the co-worker objected, the claimant replied 'do you want to make something of it' That [ sic ] the co-worker then pushed the claimant into the wall [ sic ] a fight ensued. The claimant contended that she was acting in self defense when she hit the co-worker in the face. The altercation took place in the corridor, which was the doorway of the hall. In response to the Referee's question, 'were you unable to withdraw' the claimant replied 'no, I wasn't.' Based on the totality of the evidence, the claimant could have withdrawn and avoided the physical conflict but chose to remain as a defiant gesture. As such, it must be held that she was a participant in the fight and was subject to the consequences as was [ sic ] stated in the employers [ sic ] known rules.

Accordingly, we conclude that the claimant was discharged for misconduct connected with the work and, therefore, was subject to a disqualification of benefits . . . under the provisions of Section 602A of the Illinois Unemployment Insurance Act."

It is well settled in Illinois that the findings and Conclusions of an administrative agency on questions of fact are prima facie true and correct. (Pesce v. Board of Review (1987), 161 Ill. App. 3d 879, 881, 515 N.E.2d 849; Profice v. Board of Review (1985), 135 Ill. App. 3d 254, 257, 481 N.E.2d 1229.) The function of a court of review is limited, therefore, to ascertaining whether the decision of the administrative agency is against the manifest weight of the evidence. (Ferretti v. Department of Labor (1987), 115 Ill. 2d 347, 353, 506 N.E.2d 560; Profice, 135 Ill. App. 3d at 257; Sheff v. Board of Review, Illinois Department of Labor (1984), 128 Ill. App. 3d 347, 350, 470 N.E.2d 1044.) Where it appears that the agency's findings are not supported by ...


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