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Figueroa v. Doherty

February 09, 1999

WALTER FIGUEROA, PLAINTIFF-APPELLANT,
v.
LYNN DOHERTY, DIRECTOR; ILLINOIS) DEPARTMENT OF EMPLOYMENT SECURITY;) ROLLAND W. LEWIS, JOHN G. CASHMAN,) STANLEY V. MUCHA, GARY J. SULLIVAN, JON) R. WALKER, MEMBERS, BOARD OF REVIEW OF) DEPARTMENT OF EMPLOYMENT SECURITY;) BOARD OF REVIEW, ILLINOIS DEPARTMENT OF ) EMPLOYMENT SECURITY; SAINT JOSEPH) HOSPITAL METRO CHICAGO HEALTH, EMPLOYER,) DEFENDANTS-APPELLEES.



The opinion of the court was delivered by: Justice McNULTY

Appeal from the Circuit Court of Cook County 96 L 51079 Honorable Lester A. Bonaguro, Judge Presiding

St. Joseph Hospital and Home Health Care Center fired Walter Figueroa on January 22, 1996. A referee for the Illinois Department of Employment Security (IDES) denied Figueroa's claim for benefits. The Board of Review and the circuit court affirmed the referee's decision. Figueroa appeals.

Figueroa began working in the hospital's food service department in 1977. On January 15, 1996, Maria Sandoval, another hospital employee, called Figueroa at work. Figueroa left the department a few minutes later. A co-worker, Tom Barliss, went to the supervisor, Ray Rees, to report that he saw Figueroa take some lemons from the refrigerator. Rees found Figueroa and Sandoval in the hallway. Sandoval held a bag of lemons. Rees notified security. The hospital fired Figueroa one week later.

Figueroa applied for unemployment benefits. The hospital faxed to the claims adjudicator a statement of its contention that Figueroa stole the lemons. Figueroa denied the charge. The hospital did not permit the adjudicator to contact Sandoval. The adjudicator ruled Figueroa eligible for benefits and the local office upheld the decision. On the hospital's appeal, the referee held a hearing de novo.

Figueroa, appearing without counsel, brought an interpreter to the hearing to translate the proceedings into Spanish for him. At the outset of the hearing the referee asked Figueroa four questions in English about his address and social security number. Figueroa responded "Yes" to all four questions. After introduction of the parties and swearing of the witnesses, including Figueroa, the referee said: *fn1

"[Y]ou seem to understand what I am saying.

[Figueroa]: A little.

R[eferee]: A little yeah. Okay if you understand what's going on then just listen if you don't understand what there saying indicate to your interpreter that you don't understand it, and I will let you whisper in his ear. I don't want to go back and forth okay. We don't have the time for that. *** If there is any real problem we'll stop and let you go."

The hospital presented an affidavit from Barliss, who swore he saw Figueroa take "a handful" of lemons from the refrigerator. The affidavit does not clarify whether he saw whole lemons or lemon slices. Rees testified that when he found Figueroa and Sandoval in the hall he asked where she got the lemons. She said they were hers. He asked Figueroa where he put the lemons he took from the refrigerator. Figueroa showed Rees a container holding 8 to 10 lemon wedges. The hospital's attorney asked Rees a series of questions to clarify the testimony and establish that taking lemons violated hospital rules.

The referee then asked the interpreter to ask whether Figueroa had any cross-examination for Rees. After a brief Discussion in Spanish between Figueroa and the interpreter, the transcript shows the following:

"R: He has no questions.

INTERP: She asked a couple of questions, but he is not sure that she understood everything that is going on. So he INAUDIBLE.

R: Okay you might just very briefly explain to him Mr. Rees has testified to the fact that there was a witness that saw him take out 5 lemons from the refrigerator and give them to another employee. *** Okay just briefly tell him what the jest of his testimony."

While Figueroa was still stating his question in Spanish, the hospital objected that he seemed to be testifying rather than questioning. The transcript shows that the interpreter answered:

"He is saying ah that what based on what he could understand ah, there are several INAUDIBLE at this point of what Mr. Rees says that at one point he sold Mr. Figueroa 5 lemons, and INAUDIBLE there was a handful and another person ah, there was 5 or 6 left in a plastic bag. He is saying and wondering why he was able to count the lemons since they were inside a plastic bag.

R: Alright that's his ...


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