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Asha Woods v. Illinois Department of Employment Security; Director of Illinois Department

April 27, 2012

ASHA WOODS,
PLAINTIFF-APPELLANT,
v.
ILLINOIS DEPARTMENT OF EMPLOYMENT SECURITY; DIRECTOR OF ILLINOIS DEPARTMENT
OF EMPLOYMENT SECURITY; BOARD OF REVIEW OF THE DEPARTMENT OF EMPLOYMENT SECURITY; AND LEBER ENTERPRISES, INC. C/O ADP BENEFITS,
DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County No. 09 L 51296 Honorable Elmer James Tolmaire, III, Judge Presiding.

The opinion of the court was delivered by: Justice McBRIDE

JUSTICE McBRIDE delivered the judgment of the court, with opinion. Justices J. Gordon and Howse concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiff Asha Woods filed a complaint for administrative review seeking to reverse a decision by the Board of Review of the Illinois Department of Employment Security (Board) that she was ineligible to receive unemployment benefits because she was discharged for misconduct connected with her work. On appeal, plaintiff contends that the Board misinterpreted the statutory section regarding ineligibility based on misconduct; that as a matter of law, she was not discharged for misconduct; and that the Board's decision was against the manifest weight of the evidence and clearly erroneous. For the reasons that follow, we affirm.

¶ 2 Plaintiff was employed by Leber Enterprises, Inc. (Leber), a recruitment and placement agency that assigned plaintiff to a position as a temporary customer support specialist for a company called Pay Cycle in August 2008. Plaintiff worked at Pay Cycle for about six months, until she was discharged in February 2009. Following her termination from employment at Pay Cycle, plaintiff filed a claim for unemployment benefits. An Illinois Department of Employment Security (IDES) claims adjudicator denied plaintiff's claim, finding that she was disqualified under section 602(A) of the Illinois Unemployment Insurance Act (Act) (820 ILCS 405/602(A) (West 2008)), which provides that individuals discharged for misconduct are ineligible to receive unemployment benefits. The claims adjudicator found that plaintiff was discharged because of her poor attendance and failure to follow proper call-off procedures.

¶ 3 Plaintiff appealed, and a telephone hearing was held before an IDES referee.

¶ 4 At the telephone hearing, Leber's managing director, Angela Fabris, testified that plaintiff was discharged for violation of attendance policies. Fabris stated that in total, between August and February, plaintiff was late for work six times and absent seven times. Fabris testified that Leber had provided plaintiff with a policy handbook that indicated, among other things, that an employee must notify both Leber and an on-site supervisor when taking time off from work. According to Fabris, despite this policy, plaintiff contacted Leber only four of the times she called off work.

¶ 5 Fabris testified that an on-site supervisor spoke with plaintiff and counseled her about her work attendance. In addition, Fabris stated that at Pay Cycle's request, she attempted to give plaintiff verbal warnings about her attendance, but plaintiff would not return her telephone messages. Accordingly, Fabris sent plaintiff an e-mail. In the e-mail, Fabris related to plaintiff that she wanted to "share some feedback" regarding her performance at Pay Cycle. In particular, Fabris noted reports that plaintiff had been arriving late without calling Leber or Pay Cycle and had been taking more frequent breaks and longer lunches than what she was reporting on her time sheet. Although she wrote in the e-mail that plaintiff's job was not in jeopardy, Fabris testified that "the point" of her e-mail was to bring up issues of tardiness, attendance, and long breaks. Fabris explained that she worded the e-mail positively because she wanted plaintiff to improve.

¶ 6 Plaintiff sent a reply e-mail to Fabris two days later. The entirety of plaintiff's e-mail was as follows: "This e-mail contains numerous false accusations that I already spoke to [a manager at Pay Cycle] about. My reply serves as acknowledgment that this e-mail was received only."

¶ 7 Fabris testified that after the exchange of e-mails, plaintiff called off work four more times and was late to work once, and that that was when attendance became an issue. Pay Cycle related to Fabris that plaintiff was not receptive to feedback and the attendance issue had gotten worse, so they decided to end the assignment. Fabris explained that Pay Cycle's work was slowing down and the company chose to let plaintiff go because she was "the one that was having the most issues and wasn't following policy."

¶ 8 Fabris called plaintiff and left her a message, indicating that she "had to end her assignment." Plaintiff called Fabris back, and during the ensuing telephone conversation, Fabris told plaintiff that her discharge was due to "a combination of attendance and tardiness, production was slowing, they had to pick their best people to keep and since she was having so many issues, she was the one to like get let go." According to Fabris, plaintiff indicated she understood.

¶ 9 Plaintiff testified at the telephone hearing that no on-site supervisor ever counseled her regarding attendance. She asserted that Fabris only made two attempts to contact her by telephone and noted that she did respond to Fabris' e-mail. Plaintiff acknowledged that she had been absent from work seven times. Referencing a document that Fabris had attached to her e-mail to plaintiff, plaintiff noted that Pay Cycle's call-off policy was that employees were required to call a particular telephone number one hour before the start of their shifts. Plaintiff produced telephone records showing that she called that number on at least five mornings. She also testified that on two other dates, she was absent from work because she was sick. According to plaintiff, on the day following those sick days, she faxed documentation of her illness to Leber, which forwarded the notice to an on-site supervisor at Pay Cycle.

¶ 10 Plaintiff also produced a policy document indicating that employees would receive a documented verbal warning upon a sixth unplanned unapproved absence; would receive a written warning for a seventh unplanned unapproved absence within 90 days of the verbal warning; and, at the manager's discretion, would be subject to termination for any additional unplanned and unapproved absences. Plaintiff stated that she never received a verbal or written warning from Pay Cycle or Leber. She noted that Fabris' e-mail did not include any kind of warning regarding attendance, but instead, indicated that her job was not in jeopardy.

ΒΆ 11 Plaintiff disputed the content of the telephone conversation she had with Fabris. According to plaintiff, Fabris told her she was going to be laid off due to the peak season being over and Pay Cycle's corresponding need for fewer staff members. Plaintiff stated that Fabris made no mention of attendance or performance during that conversation or at any other time. She stated that the only time attendance issues came up was in the ...


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