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Alternative Staffing, Inc v. Illinois Department of Employmentsecurity

December 21, 2012

ALTERNATIVE STAFFING, INC.,
PLAINTIFF-APPELLANT,
v.
ILLINOIS DEPARTMENT OF EMPLOYMENTSECURITY, AN ADMINISTRATIVE AGENCY OF THE STATE OF ILLINOIS; JAY ROWELL, DIRECTOR OF EMPLOYMENT SECURITY; AND ELIZABETH ARMSTRONG, CLAIMANT,
DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. No. 11 L 050643 Honorable Margaret A. Brennan, Judge Presiding.

The opinion of the court was delivered by: Justice Cunningham

JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Presiding Justice Hoffman and Justice Rochford concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiff Alternative Staffing, Inc. (Alternative Staffing), discharged its employee, defendant Elizabeth Armstrong (Armstrong), for misconduct, and Armstrong applied for unemployment insurance benefits. Armstrong's claim with the Illinois Department of Employment Security (IDES) was initially denied, but on appeal, the Board of Review ultimately found her eligible for unemployment benefits, and the circuit court of Cook County affirmed that decision. Alternative Staffing now challenges that ruling on appeal.

¶ 2 Alternative Staffing maintains that Armstrong engaged in misconduct where she repeatedly arrived late for work and performed poorly, and that the Board failed to look at the series of violations and instead focused on only one " 'final' or 'triggered' event" in determining that Armstrong did not willfully or deliberately violate its policy. Alternative Staffing further maintains that the Board failed to determine whether Armstrong's testimony at the telephone hearing was credible.

¶ 3 On January 11, 2010, Armstrong was hired by Alternative Staffing as its payroll administrator. On October 28, 2010, she was terminated for misconduct. She then sought, and was ultimately awarded, unemployment insurance benefits.

¶ 4 The record shows that on April 1, 2010, Armstrong received a memorandum from her manager, Julie Tracey (Manager Tracey), informing her that the swipe card issued to her was for the time clock system which would be effective April 5, 2010, that her start time on Monday was 8 a.m. until further notice, and that she was considered to be an hourly employee. In the memorandum, Manager Tracey further stated that it had become apparent that Armstrong was not content with her current assignment as payroll administrator, that her work performance had been less than what was anticipated when she was hired, and that she was being placed on probation. Armstrong was further admonished that if there was no immediate and dramatic turnaround in her performance within the next 30 working days, Alternative Staffing would have no other option but to terminate her employment. Armstrong wrote on the memorandum document that "[m]y discontentment is due to the fact that there is not enough work to be done in a 40 hour week." She signed and dated this statement April 2, 2010.

¶ 5 The record further shows that on May 24, 2010, Armstrong was given an employee warning notice detailing Armstrong's nine tardy/late infractions as follows:

April 26, 2010, scheduled for 8 a.m., arrived at 8:09 a.m. April 27, 2010, scheduled for 7 a.m., arrived at 7:23 a.m. May 3, 2010, scheduled for 8 a.m., arrived at 8:27 a.m. May 4, 2010, scheduled for 7 a.m., arrived at 7:15 a.m. May 10, 2010, scheduled for 8 a.m., arrived at 8:15 a.m. May 11, 2010, scheduled for 7 a.m., arrived at 7:24 a.m. May 17, 2010, scheduled for 8 a.m., arrived at 8:37 a.m. May 18, 2010, scheduled for 7 a.m., arrived at 7:42 a.m. May 24, 2010, scheduled for 8 a.m., arrived at 8:21 a.m.

Armstrong was warned that the "[n]ext occurrence will result in a 1 week suspension without pay," and Armstrong signed this notice on the date it was issued.

¶ 6 On July 20, 2010, Armstrong was issued another employee warning notice which she also signed. According to this notice, Armstrong was scheduled to arrive at work at 8 a.m. on July 19, 2010, but did not arrive until 8:50 a.m. It was also noted that Armstrong had called and informed Manager Tracey that she would be arriving late because she had overslept, and that Armstrong was advised that Alternative Staffing would suspend her for the next five Fridays. Armstrong was also notified that the next infraction would result in termination.

¶ 7 On September 15, 2010, Armstrong was issued another employee warning notice, which she signed. This notice was precipitated by a payroll error Armstrong made on September 10, 2010, which resulted in five employees receiving an incorrect payment amount. On September 15, 2010, Armstrong made another payroll error for a client which resulted in an incorrect pay amount for two employees. Armstrong was again advised that a further infraction would result in termination of employment. On this notice, Armstrong wrote that she "understood" that she should "slow down to get my work more accurate [sic]," and that she had been told previously to "speed up."

¶ 8 On October 14, 2010, Armstrong received an employee warning notice relating to her 33-minute tardiness on October 11, 2010. She was also advised that she had been repeatedly warned and reprimanded for excessive tardiness. On October 26, 2010, Armstrong was issued another employee warning notice, following her late arrival at 8:20 a.m., when she was scheduled to arrive at 8 a.m.

¶ 9 On October 28, 2010, Alternative Staffing issued a letter terminating Armstrong's employment based on her repeated tardiness and poor performance. Alternative Staffing noted that Armstrong had been late nine times in one month, and again on July 20, 2010, October 14, 2010,*fn1 and October 26, 2010. Alternative Staffing also provided that Armstrong's ...


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