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Abbott Industries, Inc v. the Department of Employment Security; Board of Review of the

June 20, 2011

ABBOTT INDUSTRIES, INC.,
PLAINTIFF-APPELLEE,
v.
THE DEPARTMENT OF EMPLOYMENT SECURITY; BOARD OF REVIEW OF THE DEPARTMENT OF EMPLOYMENT SECURITY; AND DIRECTOR OF THE DEPARTMENT OF EMPLOYMENT SECURITY, DEFENDANTS-APPELLANTS



Appeal from the Circuit Court of Du Page County. No. 09-MR-938 Honorable Kenneth L. Popejoy, (Cynthia M. Mitchell, Defendant). ) Judge, Presiding.

The opinion of the court was delivered by: Justice Schostok

JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices Burke and Hudson concurred in the judgment and opinion.

OPINION

On May 11, 2009, the Board of Review of the Illinois Department of Employment Security (Department) determined that the claimant, Cynthia Mitchell, was entitled to unemployment benefits because her absences, tardiness, and recent poor grades in her apprentice training program were not due to intentional misconduct. The employer, Abbott Industries, Inc., filed an action for administrative review. In May 2010, the circuit court reversed the Board of Review's decision and denied Mitchell benefits, and the Department appealed. We affirm the decision of the Board of Review and reverse the judgment of the circuit court.

BACKGROUND

The following facts come from the testimony and exhibits presented at the February 24, 2009, hearing before a Department referee. Mitchell began working for Abbott Industries, a plumbing company located in Bensenville, as an apprentice plumber in June 2006. She was enrolled in a five-year federal Department of Labor apprenticeship training program, pursuant to which she attended school and worked as an apprentice plumber in order to get her plumber's license. The federal program, under which Mitchell held a provisional apprentice plumber's license, required Mitchell to maintain at least an average grade of C in her courses (a 2.0 grade point average) during each six-month grading period. However, Abbott Industries paid for Mitchell's courses and had its own requirements for continued employment, which included a grade point average of 2.5 or higher and not receiving any grades of D or below. Abbott Industries also had an attendance policy stating that employees were expected to attend school for eight hours per week and be available to work up to another 32 hours per week on contractor assignments. Abbott Industries advised newly hired apprentice plumbers of these policies and requirements during their orientation. Mitchell signed a form acknowledging that she was aware that Abbott Industries did not tolerate excessive absenteeism, tardiness, or no call/no show.

Mitchell was absent or worked less than a full eight-hour day on 25 occasions during a 51-week period in 2008. On December 14, 2008, Mitchell received her grades for the most recent six-month period. The grade point average was 2.14, and Mitchell had three Ds. Lori Abbott, the owner of Abbott Industries, testified at the hearing that Mitchell received the Ds for being absent from or tardy to school and not turning in her homework promptly. On December 20, 2008, Abbott Industries fired Mitchell. Abbott told the Department that the firing was based on Mitchell's poor grades and poor attendance.

At the hearing, Mitchell stated that she believed that she had been fired because of her low grades and had not understood until the hearing that her attendance was also a basis for the termination. Mitchell testified that, before December 2008, Abbott had spoken with her once regarding her grades, during her first six-month grading period. Her school would notify students and employers if students were on academic probation because of grades or attendance. During the first four grading periods, Mitchell was never on academic probation, believed that her grades had been close to a 3.0 average, and had received regular raises that were tied to her grades. The 2.14 grade point average in the fifth grading period represented her lowest grades ever.

Mitchell also testified that Abbott spoke with her on only one occasion regarding her absences from work. At that time, Mitchell told Abbott that her absences were caused by her mother's health problems and the fact that she was the primary caretaker for her mother. According to Mitchell, Abbott seemed compassionate and understanding during this conversation and did not warn Mitchell that she was in danger of being fired. In response to the referee's questions, Mitchell testified that her mother was disabled and that no other family members were available to care for her, as Mitchell's parents were divorced and her siblings were in the military and away at college. Mitchell disputed Abbott's account of her absences and tardiness. Mitchell recalled being absent from work occasionally, but not 25 times in a 51-week period, and did not recall being late to work ever, saying that some days she did not show up to work but that when she was working she did not arrive late.

Abbott testified that she had spoken with Mitchell and warned her on several occasions about her grades at school and her attendance at work. According to Abbott, she "continually told" Mitchell that Mitchell's grades needed to come up. She agreed that Mitchell was not on academic probation, which would happen if her grades dropped below a 2.0 grade point average. Abbott also testified generally that she offered Mitchell help but that Mitchell did not take her up on the offer. Abbott did not dispute Mitchell's characterization of the conversation about her absences at work, but testified that there was more than one conversation on the subject. Abbott also testified that Mitchell's attendance problems caused her business to suffer.

The referee issued a decision finding that Mitchell was not eligible for unemployment benefits, because she voluntarily left the job without good cause attributable to the employer. Mitchell appealed the referee's decision to the Department's Board of Review. On May 11, 2009, the Board of Review reversed the referee's decision.

The Board of Review began by noting that the facts of the case did not raise an issue of voluntary leaving under section 601(A) of the Illinois Unemployment Insurance Act (Act) (820 ILCS 405/601(A) (West 2008)). When an employee has control over whether she obtains or maintains a license that is legally required for her job, and she does not obtain or maintain that license, her employer's termination of her may be viewed as a voluntary leaving rather than a discharge. Horton v. Department of Employment Security, 335 Ill. App. 3d 537, 541 (2002). The Board of Review found that here, however, Mitchell's grades were high enough to retain her provisional license because her grade point average for the most recent grading period was 2.14, higher than the required 2.0 average. Thus, Abbott Industries was not forced to discharge Mitchell for failure to maintain a necessary license, and the termination could not be construed as a voluntary leaving.

The Board of Review then considered the other basis on which Mitchell could be disqualified from receiving benefits under the Act, i.e., whether Mitchell had committed misconduct within the meaning of section 602(A) of the Act (820 ILCS 405/602(A) (West 2008)). The Board of Review noted that "misconduct" sufficient to disqualify a worker from receiving benefits is defined in the statute as "the deliberate and willful violation of a reasonable rule or policy" of the employer, where the violation harmed the employer or was repeated despite a warning. Id. The Board of Review found that Mitchell had not committed the type of intentional disobedience that would constitute misconduct, because her absences and low grades were caused by circumstances beyond her control:

"In this case the claimant worked to the best of her ability but was unable to meet the standards required by the employer. Although the employer may well have been justified in discharging the claimant, it was not shown that the claimant's drop in grade point average was the result of her wilful [sic] refusal to follow instructions. The claimant credibly testified that she had informed the employer of her family situation which caused her absences from work. There was no ...


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