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Elizabeth Sustatia v. Catherine M. Shannon

February 15, 2012


Appeal from the Circuit Court of Kane County. No. 09-MR-307 Honorable Michael J. Colwell, Judge, Presiding.

The opinion of the court was delivered by: Presiding Justice Jorgensen

PRESIDING JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices Bowman and Zenoff concurred in the judgment and opinion.


¶ 1 Plaintiff, Elizabeth Sustatia, filed a complaint with defendant the Department of Labor (Department), alleging that her former employer, defendant West Suburban Bancorp, Inc. (bank), improperly denied her request for unpaid leave to address a domestic violence issue under the Victim's Economic Security and Safety Act (the Act) (820 ILCS 180/1 et seq. (West 2008)). Defendant Catherine M. Shannon, the Department's Director (Director), adopted and upheld the administrative law judge's (ALJ's) findings and recommendations and denied plaintiff's complaint. On administrative review, the trial court affirmed the Department's order. Plaintiff appeals, challenging the Department's findings that she did not: (1) take valid leave under the Act; and (2) provide sufficient corroborating documents. For the following reasons, we affirm.


¶ 3 From October 2002 to August 16, 2006, plaintiff worked for the bank as a personal banker. On April 28, 2006, plaintiff informed the bank that she would miss work on May 8, 2006, to attend court in the criminal prosecution of Torance Henderson, her boyfriend, for domestic battery.

¶ 4 The domestic battery charges arose from a December 6, 2005, incident with Henderson, with whom plaintiff had lived since September 2002. Henderson attacked plaintiff in their Aurora residence by sitting on top of her and trying to strangle her. T.H. (age nine at the time), plaintiff and Henderson's son, witnessed the attack. Plaintiff sought treatment that day at Dreyer Medical Center with Drs. Richard Kelly and Ashok Jagasia; she was also subsequently treated by Elaine Brodermus, a licensed clinical social worker. The following day, December 7, 2005, plaintiff reported the attack to the Aurora police department and, on December 22, 2005, the State filed a complaint against Henderson, charging him with two counts of domestic battery (720 ILCS 5/12-3.2(a)(1), (a)(2) (West 2004)).*fn1 Prior to the attack, on October 26, 2005, Henderson had filed an emergency petition for custody of T.H. Plaintiff testified that, some time after the domestic battery complaint was filed, plaintiff and Henderson agreed that Henderson would drop the pending custody petition if plaintiff would drop or not proceed with the domestic battery case. On December 13, 2005, plaintiff and T.H. moved out of the Aurora home. On February 6, 2006, Henderson withdrew his custody petition. The hearing on the domestic battery case was set for May 8, 2006.

¶ 5 On April 28, 2006, plaintiff informed her supervisor, Dawn Oles, and a member of the bank's human resources department, Kelly Pilch, of the May 8 court proceeding. Pilch informed plaintiff that, to qualify for leave under the Act, she would have to provide a letter from her attorney or other suitable court documents stating that the court date was related to the December 6, 2005, domestic violence incident and corroborating her appearance. Pilch subsequently, on May 2, requested that plaintiff provide corroborating evidence and a sworn statement; Pilch later, on May 15, provided a form to be used as the sworn statement; plaintiff submitted the statement on May 23.

¶ 6 Plaintiff contacted Robert Labak, a licensed clinical social worker who was treating T.H. and subsequently, on May 4, 2006, began treating plaintiff, requesting a letter excusing her from work for the court hearing. Labak prepared a letter (Labak letter No. 1), dated May 2, 2006, requesting that plaintiff be excused to attend the court hearing, which was "essential to expedite the resolution of several key issues impacting the psychological well-being of her son for whom I continue to provide outpatient treatment." Plaintiff provided the letter to the bank's vice president of human resources, Mary Ellen Condon, who responded that the letter was insufficient to satisfy the Act. Condon instructed plaintiff that she could provide a letter from either her attorney or the court.

¶ 7 On May 5, 2006, three days before the hearing, plaintiff requested that Labak provide a revised letter including requests for additional days off of work. Labak drafted a second letter (Labak letter No. 2), dated May 5, 2006, requesting that plaintiff, whom he referred to as his patient, be excused from work on May 8 "to appear at a scheduled court date" related to "an incident of domestic violence that occurred in December of 2005" and that plaintiff also be excused on May 10 and 11. A May 15, 2006, letter from Pilch to plaintiff acknowledged receipt of Labak letter No. 2 (on May 11, 2006) and noted that the bank accepted it as proper certification of the May 8 court date.

Pilch also requested that plaintiff sign a sworn statement (a draft of which was included with the letter).

¶ 8 Plaintiff testified that, on May 8, 2006, she arrived at the courthouse at 8:40 or 8:45 a.m. At court, plaintiff knew only Henderson. They discussed their agreement: that plaintiff would not pursue the criminal case because Henderson had dropped the custody case. Plaintiff stated that she spoke with Assistant State's Attorney Mike Fisher about dropping the case: "I asked what it was that I needed to do to make sure that there wouldn't be any charges against [Henderson] and if I could drop the case." According to plaintiff, Fisher stated that only the State could drop the case. She related this information to Henderson, who sat next to her in the courtroom, and Henderson suggested that plaintiff not respond when her name was called as a witness. Plaintiff further testified that she waited outside the courtroom in the afternoon when the case was called. The court entered a nolle prosequi order, noting in its written order that it was granting the State's nolle prosequi motion due to plaintiff's failure to appear as a witness and the State's inability to proceed without her testimony. Plaintiff and Henderson left the courthouse at 1:30 p.m. Plaintiff testified that, later that day, she attended an appointment with Labak.

¶ 9 On May 23, 2006, plaintiff signed a form that was drafted by Condon, swearing that her May 8 absence from work was related to her participation in court proceedings pertaining to an act of sexual or domestic violence and that she was seeking medical attention or counseling as a result. Plaintiff was absent from work on June 21, 2006. In a letter dated the same day to Labak (and copying plaintiff), Condon requested clarification as to how Labak was able to corroborate plaintiff's May 8 court appearance. On either July 7 (per Condon) or July 10 (per plaintiff), plaintiff informed Condon that Labak was not present in court on May 8.

¶ 10 On July 17, 2006, Condon, via a letter, informed plaintiff that, as a result of her failure to provide acceptable corroborating evidence, the bank was reversing its position that plaintiff was entitled to leave under the Act on May 8, 2006, and that it would instead code that date as a paid vacation day. (However, plaintiff continued to pursue the matter as leave under the Act.) Condon also noted that she had not received any response from Labak to her request for clarification and noted that plaintiff herself had informed Condon that Labak was not present at court on May 8, so he could not corroborate plaintiff's presence. She again requested corroborating evidence.

ΒΆ 11 In a letter dated June 27, 2006 (Labak letter No. 3), Labak responded to Condon's June 21 letter, but plaintiff refused to permit Labak to release the letter to the bank. In that letter, which plaintiff subsequently attached to her complaint, Labak stated that he could authenticate plaintiff's attendance at the court date because he saw her as a patient "later that evening for a documented appointment wherein she spoke credibly of the specifics of the emotional experience." Plaintiff testified that she did not turn in the letter to the bank ...

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