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05/06/94 LONNIE MCALLISTER v. BOARD REVIEW ILLINOIS

May 6, 1994

LONNIE MCALLISTER, PLAINTIFF-APPELLEE,
v.
THE BOARD OF REVIEW OF THE ILLINOIS DEPARTMENT OF EMPLOYMENT SECURITY, DIRECTOR OF ILLINOIS DEPARTMENT OF EMPLOYMENT SECURITY AND THE CHICAGO TRANSIT AUTHORITY, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County. Honorable Marilyn R. Komosa, Judge Presiding.

Giannis, McNAMARA, Rakowski

The opinion of the court was delivered by: Giannis

JUSTICE GIANNIS delivered the opinion of the court:

Defendants appeal from an order of the circuit court of Cook County reversing the decision of the Illinois Department of Employment Security Board of Review (Board) which had denied plaintiff's claim for unemployment insurance benefits. Defendants contend that the circuit court erred in reversing the decision where it was neither against the manifest weight of the evidence nor clearly erroneous.

Plaintiff was employed as a bus operator for the Chicago Transit Authority (CTA) from December 4, 1972, until he was suspended from his employment on April 15, 1991, after urine and blood tests revealed that he had consumed cocaine. His claim for unemployment insurance benefits was denied by the Board, which found that plaintiff's behavior constituted misconduct under the provisions of the Unemployment Insurance Act (Act). 820 ILCS 405/602 (West 1992).

At an administrative hearing on July 23, 1991, plaintiff testified that on Wednesday, April 10, 1991, after allowing all passengers to disembark at the bus terminal at Madison Street and Austin Avenue, he pulled the bus around to the other side of the terminal in order to use the bathroom. CTA policy requires a driver to secure the bus by placing the gear in neutral and applying the hand brake. Plaintiff testified that he failed to comply with this policy because he was in a hurry. When he came out of the bathroom, plaintiff saw the bus slowly moving forward until it struck a guard rail. He testified that he did not violate CTA policy intentionally, but hurried to the bathroom because he was behind schedule. A short time later, he reported the incident to Mr. Fletcher, his designated "point man," whose office was located at Madison Street and Kedzie Avenue. Fletcher advised him to report the incident at the end of the day. At the end of the day, plaintiff completed an accident report and submitted it to Superintendent Rolland. He also submitted to blood and urine tests.

Plaintiff testified that he had never consumed illegal substances during work hours, nor had he ever worked under the influence of any illegal substances. He stated that the reason his medical tests indicated the presence of cocaine was that he had consumed cocaine after work six days earlier. During the administrative hearing, the following excerpt from the CTA employee handbook was read into evidence:

"14A, personal conduct. The following acts are not permissible. Subsection A, use or possession of intoxicating liquor, controlled substances, or narcotics of any kind from the time an employee reports for work until the Conclusion of the employee's work day. Or reporting for work in an apparent condition due to the use of same.

Further, an employee may not have a controlled substance or narcotics of any kind in his or her system from the time an employee reports for work, until the Conclusion of the employee's work day. Use of illegal drugs is forbidden."

Isaac Clark, a superintendent for the CTA testified that the impact with the guard rail was the only reason plaintiff was asked to submit to blood and urine tests.

The referee found that the presence of the illegal drug in the plaintiff's system while on duty, regardless of whether he would have been deemed under the influence of the substance, was sufficient to constitute a violation of an employer policy which harmed the employing unit. The referee found that plaintiff was discharged for misconduct connected with work. The Board affirmed the referee's decision.

Plaintiff filed a complaint for administrative review, and after a hearing, the circuit court reversed the Board's decision stating as follows:

"There is no evidence that his appearance or his work was impacted or impaired as a result of the narcotics in his system, and in fact, he was told to continue on his schedule.

The Board found that the claimant was disqualified because of misconduct and that the employer was harmed by the fact that ...


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