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05/02/96 KATTEN MUCHIN AND ZAVIS v. ILLINOIS

May 2, 1996

KATTEN MUCHIN AND ZAVIS, PLAINTIFF-APPELLANT,
v.
ILLINOIS DEPARTMENT OF EMPLOYMENT SECURITY, LOLETA DIDRICKSON, BOARD OF REVIEW AND ROY W. BENJAMIN, DEFENDANT-APPELLEES.



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

The Honorable Justice O'brien delivered the opinion of the court: Cahill, J., and Theis, J., concur.

The opinion of the court was delivered by: O'brien

JUSTICE O'BRIEN delivered the opinion of the court:

Plaintiff, the law firm of Katten Muchin and Zavis, appeals from a judgment of the circuit court of Cook County affirming the decision of the Illinois Department of Employment Security Board of Review (Board), which granted claimant Roy Benjamin's claim for unemployment insurance benefits. Plaintiff contends it discharged claimant for misconduct connected with his work, making him ineligible for benefits pursuant to section 602A of the Illinois Unemployment Insurance Act (Act), 820 ILCS 405/602A (West 1992).

Claimant worked for plaintiff as a paralegal in its docket department from October 8, 1990, to September 25, 1991. His dutiesincluded filing documents in court, preparing and processing docket calendars and forms, and responding to questions regarding court rules and procedures.

Claimant's personnel file contained a memorandum dated May 21, 1991, from his supervisor Ed Shealy stating that claimant did not comply with plaintiff's established docket procedures and behaved rudely to other staff members. The memorandum specifically detailed the manner in which he was to perform certain tasks. The file also contained a written response from claimant addressing each issue raised by Shealy and stating that claimant would correct his errors in the future.

The file contained three more memoranda from Shealy. The first, dated July 15, 1991, placed claimant on 30-days' probation for tardiness with a warning the firm would terminate him if he came in late even once during that period. The second, dated September 9, 1991, noted that Karen Martin, an assistant to Shealy, had told Shealy that as of 9:20 a.m. claimant had not arrived for work. The third, dated September 23, 1991, memorialized a conversation between Shealy and his staff in which they complained about claimant's poor work attitude, work product, and unwillingness to cooperate with department policy and procedures.

After his discharge, claimant applied for unemployment compensation benefits. On October 19, 1991, the claims adjudicator determined plaintiff had discharged claimant for misconduct connected with his work, specifically excessive tardiness, disregard for office and court procedures, and failure to complete work assignments. Accordingly, the claims adjudicator disallowed benefits under section 602A of the Act, which provides in relevant part:

"An individual shall be ineligible for benefits for the week in which he has been discharged for misconduct connected with his work *** For purposes of this subsection, the term 'misconduct' means the deliberate and willful violation of a reasonable rule or policy of the employing unit, governing the individual's behavior in performance of his work, provided such violation has harmed the employing unit or other employees or has been repeated by the individual despite a warning or other explicit instruction from the employing unit." 820 ILCS 405/602A (West 1992).

Claimant applied for reconsideration, but the claims adjudicator affirmed the decision.

On November 19, 1991, at an administrative hearing held before a referee, claimant testified that on May 21, 1991, he received a written warning regarding his failure to comply with plaintiff's establisheddocket procedures, and in July 1991 he received a verbal warning regarding his tardiness. He stated he corrected his behavior after receiving the warnings, and noted the absence of any documentary evidence he had violated any docket procedures after receipt of the warning memorandum in May 1991.

Shealy testified his two assistants were responsible for training claimant. One of the assistants, Karen Martin, told Shealy that claimant did not comply with office procedures, and he frequently arrived late to work. Shealy testified that on several occasions he had explained to claimant that claimant must comply with the department's procedures for the sake of his job. He also testified that on July 15, 1991, he verbally warned claimant he must not be late even once during the following 30-day period.

The referee affirmed the decision of the claims adjudicator, finding plaintiff discharged claimant for excessive tardiness and that claimant had received at least one prior warning regarding his tardiness. The referee concluded because the reasons for claimant's discharge were within his ability to control or avoid, claimant was discharged for misconduct connected with his work, making him ineligible for benefits under section 602A of the Act.

Claimant appealed the decision to the Board. The Board determined the term "misconduct", as used in section 602A, requires "a final willful or deliberate act which has harmed the employer [or] his or her co-workers or the recurrence of a violation of an employer's rule for which he or she has been previously warned." (Emphasis added.) The Board reversed the decision of the referee, finding "the evidence failed to establish a proximate cause or occurrence that resulted in the ...


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