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06/23/94 STEVEN B. LACHENMYER v. LOLETA A.

June 23, 1994

STEVEN B. LACHENMYER, PLAINTIFF-APPELLANT,
v.
LOLETA A. DIDRICKSON, DIRECTOR OF STATE OF ILLINOIS DEPARTMENT OF EMPLOYMENT SECURITY; STATE OF ILLINOIS DEPARTMENT OF EMPLOYMENT SECURITY BOARD OF REVIEW; AND ARCHER-DANIELS MIDLAND CORP., DEFENDANTS-APPELLEES.



Appeal from Circuit Court of Champaign County. No. 92L1137. Honorable George S. Miller, Judge Presiding.

Released for Publication July 25, 1994. As Corrected September 6, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Honorable James A. Knecht, J., Honorable Robert W. Cook, J., Honorable Carl A. Lund, J.

The opinion of the court was delivered by: Knecht

JUSTICE KNECHT delivered the opinion of the court:

Plaintiff, Steven B. Lachenmyer, brought an action for administrative review pursuant to the Administrative Review Law (Review Law) (Ill. Rev. Stat. 1991, ch. 110, par. 3-101 et seq.) in the circuit court of Champaign County after his award of unemployment benefits was reversed by the Illinois Department of Employment Security Board of Review (the Board). The decision by the Board was affirmed by the circuit court. Plaintiff appeals, claiming the Board lacked jurisdiction to review the decision and was arbitrary and capricious in failing to rule on his objections to its jurisdiction; the Board denied him due process; the Board improperly found him to have committed "misconduct"; and the circuit court erred in failing to default defendant Archer-Daniels Midland Corp. (ADM) in the administrative review proceedings. We affirm.

FACTS

From December 19, 1990, to March 20, 1991, plaintiff was employed by ADM as a staff auditor. On February 16 and 17, 1991, while on an out-of-town auditing assignment, plaintiff was involved in two separate incidents in which he swore at a fellow auditor and shoved another auditor into a wall. These incidents were later reported to the plaintiff's supervisor, who issued a verbal warning to plaintiff on February 19 about his behavior. Specifically, plaintiff wastold his acts of pushing, shoving and cursing colleagues was unacceptable conduct which would result in termination of employment for wilful misconduct if ever repeated. Plaintiff was urged to learn to get along with co-workers. Following this meeting, plaintiff publicly apologized to the co-workers involved in the previous incidents.

In March 1991, plaintiff was on another out-of-town auditing assignment. Plaintiff was observed by his audit manager as he threw a work paper folder at the lead auditor, who was plaintiff's direct supervisor on the job. Upon returning to ADM headquarters, the audit manager reported the incident to plaintiff's supervisor. On March 20, 1991, the supervisor conducted a review with plaintiff regarding his conduct toward coworkers and discharged plaintiff from ADM.

On March 21, 1991, plaintiff filed a claim for unemployment benefits with defendant, Illinois Department of Employment Security (IDES). On April 1, 1991, the Frick Company, (Frick), an authorized agent of ADM, sent a letter to IDES regarding plaintiff's possible ineligibility to receive unemployment benefits due to discharge for unsatisfactory work performance. IDES acknowledged receipt of the protest on April 6 and issued a response on that date, finding ADM's protest sufficient as an allegation of discharge for misconduct under section 602 of the Unemployment Insurance Act (Act) (Ill. Rev. Stat. 1991, ch. 48, par. 432(A)). Plaintiff was interviewed by a claims adjudicator for IDES on April 8, and on April 9 IDES issued him notice of his eligibility for benefits beginning March 24, 1991. The record does not indicate any notice was sent to ADM or its agent Frick, however.

On July 20, 1991, Frick's unemployment claims specialist wrote to IDES indicating ADM had been assessed for plaintiff's benefits but no notice of a determination had been received by ADM. An internal IDES memorandum dated September 12, 1991, stated an "employer decision" was needed by September 19, 1991. On September 18, IDES sent a notice of plaintiff's eligibility for benefits to ADM and confirmed ADM's party status. The determination set forth an appeal date of October 18, 1991.

On October 18, ADM sent a letter of appeal to IDES stating plaintiff was "discharged due to unacceptable performance and behavior. Despite prior warnings, the claimant continued to act in a manner which he knew would jeopardize his employment." ADM requested a hearing. A hearing was held by an IDES referee, who affirmed the decision of the claims adjudicator granting benefits to plaintiff on November 21, 1991.

ADM sent a letter of appeal to the Board on December 19, 1991. Written arguments were submitted to the Board and on August 7, 1992, the Board reversed the decision of the referee. Plaintiff later filed a complaint for administrative review seeking review of the Board's reversal of the grant of unemployment insurance benefits. The circuit court affirmed the Board's decision. This appeal followed.

ANALYSIS

Plaintiff's first claim of error is ADM did not file a timely appeal with IDES and the Board failed to rule on this objection. He claims the Board's failure to rule on the jurisdictional question was arbitrary and capricious as section 2720.335 of title 56 of the Illinois Administrative Code (56 Ill. Adm. Code § 2720.335 (1992)) requires the Board to set forth in writing the factual and legal basis for its decision. Plaintiff argued the issue before both the referee and the Board but failed to get a specific determination of the issue. Where the Board explicitly states it has reviewed the entire record in reaching its decision, a claimant has no basis for contending the Board failed to consider a particular matter. A specific evidentiary finding is not necessary when there is evidence in the record to support the finding. (See Nichols v. Department of Employment Security (1991), 218 Ill. App. 3d 803, 811, 578 N.E.2d 1121, 1127-28, 161 Ill. Dec. 475.) ...


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