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Dorota Lojek v. the Illinois Department of Employment

January 18, 2013

DOROTA LOJEK,
PLAINTIFF-APPELLEE,
v.
THE ILLINOIS DEPARTMENT OF EMPLOYMENT SECURITY, AND THE DIRECTOR OF ILLINOIS DEPARTMENT OF EMPLOYMENT SECURITY BOARD OF REVIEW, DEFENDANTS- APPELLANTS. (ABM JANITORIAL SERVICES NORTH CENTRAL, INC. )
DEFENDANT.)



Appeal from the Circuit Court of Cook County. No. 11 L 51207 Honorable Robert Lopez-Cepero, Judge Presiding.

The opinion of the court was delivered by: Justice R. Gordon

JUSTICE R. GORDON delivered the judgment of the court, with opinion. Presiding Justice Lampkin and Justice Hall concurred in the judgment and opinion.

OPINION

¶ 1 After plaintiff Dorota Lojek's employment with defendant ABM Janitorial Services (ABM) ended after 22 years on the job, she applied to the Illinois Department of Employment Security (IDES) for unemployment insurance benefits pursuant to the Illinois Unemployment Insurance Act (the Act) (820 ILCS 405/100 et seq. (West 2010)). The claims adjudicator determined that plaintiff was ineligible for benefits. Plaintiff appealed the adjudicator's decision to a hearing referee. The hearing referee held a telephone hearing, during which he heard the testimony of plaintiff's supervisor and the testimony of plaintiff, who required the assistance of an interpreter. The hearing referee determined that plaintiff voluntarily terminated her employment with ABM and was therefore ineligible for unemployment insurance benefits. 820 ILCS 405/601(A) (West 2010). The IDES Board of Review (the Board) affirmed the hearing referee's decision. Plaintiff filed a complaint for administrative review in the trial court, and the trial court reversed the decision of the Board. IDES appealed the trial court's order, and, for the following reasons, we reverse the order of the trial court and reinstate the Board's decision.

¶ 2 BACKGROUND

¶ 3 The following facts are undisputed. In 2011, plaintiff was employed with ABM, a company that provides janitorial services. Roosevelt University is one of ABM's clients, and ABM assigned plaintiff to serve in a supervisory role at Roosevelt. On May 2, 2011, Mariola Scarlech, plaintiff's supervisor, discharged plaintiff from her supervisory position at Roosevelt. Scarlech informed plaintiff that ABM was terminating plaintiff from her position at Roosevelt because a Roosevelt employee had complained to ABM that plaintiff and two other employees were observed smoking cigarettes and drinking alcohol in the dean's office on April 27, 2011. ABM transferred plaintiff to a different work site*fn1 unaffiliated with Roosevelt University. Plaintiff worked at the new site for one day, then never returned to work.

¶ 4 Plaintiff claimed that ABM did not prove that she was smoking a cigarette or drinking alcohol in the dean's office; however, in her testimony, plaintiff admitted to smoking in the dean's office. Plaintiff also claimed that she stopped working because she was transferred to a location that aggravated her existing health problems; however, plaintiff never provided any documentation of these problems.

¶ 5 I. The IDES Claim

¶ 6 On May 15, 2011, plaintiff filed a claim with IDES seeking unemployment insurance benefits from defendant ABM. ABM contested plaintiff's eligibility for unemployment insurance benefits on the ground that it had discharged plaintiff for misconduct. In its response to plaintiff's claim, defendant ABM stated that plaintiff had been videotaped smoking and drinking in the office of the dean of Roosevelt University, and that this conduct violated Roosevelt's and ABM's rules of employee conduct.

¶ 7 In response to ABM's challenge, the claims adjudicator conducted a telephone interview with plaintiff to determine whether she was eligible for unemployment insurance benefits. The claims adjudicator's summary of the telephone interview*fn2 included the following statements from plaintiff: Plaintiff admitted that she smoked a cigarette "one time" in the dean's office, and that she knew that smoking in the building where she was working was against company policy. On the day that she smoked in the dean's office, plaintiff was not feeling well and was "feeling 'low.' " Although she normally went outside to smoke, her personal problems on that day led her to smoke in the dean's office. Plaintiff knew of ABM's and Roosevelt's "no smoking" policy, and she denied intentionally violating the policy. Plaintiff denied drinking alcohol in the dean's office and asserted that she had received no prior warnings or write-ups while working for ABM.

¶ 8 The claims adjudicator found that ABM fired plaintiff for misconduct connected with her work, resulting from the violation of a known and reasonable company rule. As a result, the claims adjudicator concluded that plaintiff was ineligible for unemployment insurance benefits.

¶ 9 II. Appeal To The Hearing Referee

¶ 10 Plaintiff filed a notice of reconsideration and appeal to a hearing referee, arguing (1) that ABM had provided "no proof of [her] alleged misconduct," and (2) that ABM fired her because it wanted to cut down on its expenses by firing employees with high wages. The hearing referee granted plaintiff an appeal, and issued a notice to the parties stating that they would have the opportunity to present evidence at a hearing conducted over the telephone. The hearing notice included a list of issues to be determined at the hearing, including: "Why was [plaintiff] separated from employment with [ABM]? If discharged, was it for misconduct in connection with the work? If [plaintiff] left voluntarily, was it for good cause attributable to the employer? See 820 ILCS 405/602A and 601A [(West 2010)]."

¶ 11 On July 14, 2011, the hearing referee conducted the telephone hearing. Plaintiff testified on her own behalf with the assistance of a Polish interpreter. Scarlech, plaintiff's supervisor at ABM, testified on behalf of ABM. Melissa Rogers served as ABM's "employer representative."

¶ 12 A. The Supervisor's Testimony

¶ 13 Mariola Scarlech, plaintiff's supervisor, testified to the following. Scarlech was ABM's project manager for Roosevelt University, and plaintiff was the on-site "lead person"*fn3 at Roosevelt. On April 29, 2011, Scarlech received an email from a Roosevelt employee requesting that plaintiff be terminated from her position at Roosevelt because she had been observed smoking a cigarette and drinking alcohol in the dean's office on April 28, 2011. On May 1, Scarlech spoke to plaintiff via telephone, and plaintiff admitted that she smoked a cigarette and drank alcohol in the dean's office with two other ABM employees. Plaintiff told Scarlech that she was willing to be demoted in exchange for continuing employment with ABM. Scarlech contacted representatives of Roosevelt University and asked whether they would allow plaintiff to continue working there if she were demoted, and they ...

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