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Wise v. The Department of Employment Security

Court of Appeals of Illinois, Fifth District

January 12, 2015

CLARA E. WISE, Plaintiff-Appellee,
v.
THE DEPARTMENT OF EMPLOYMENT SECURITY; THE BOARD OF REVIEW OF THE DEPARTMENT OF EMPLOYMENT SECURITY; JAY ROWELL, Director of Employment Security; WILLIAM H. McCLUSKY, MARILYN S. ORSO, WILLIAM J. NOLAN, DAVID A. BONOMA, and TUMIA ROMERO, Members of the Board of Review; and CASINO QUEEN, INC., Defendants-Appellants

Motion to publish granted January 12, 2015.

Rule 23 order filed November 25, 2014. Appeal from the Circuit Court of Madison County. No. 12-MR-256. Honorable Barbara L. Crowder, Judge, presiding.

SYLLABUS

The appellate court reinstated the decision of the Board of Review of the Department of Employment Security denying plaintiff's application for unemployment benefits after she was discharged from her position as a cook and buffet station attendant for refusing to follow her supervisor's instruction to get more ice and water to put under the coleslaw and tuna salad pans in order to keep them cooled to a safe temperature, since the trial court's finding that plaintiff's employer was not harmed by plaintiff's insubordination was clearly erroneous, especially when the incident took place in the presence of other employees and plaintiff's refusal to comply with the supervisor's safety-related instruction could have led the other employees to believe such instructions could be disregarded.

For Appellants: Linda Boachie-Ansah, Assistant Attorney General, Chicago, IL (attorney for The Dept. of Employment Security, etc.); Sean K. Cronin, Donovan, Rose, Nester, P.C., Belleville, IL (attorney for Casino Queen, Inc.).

For Appellee: Edward J. Szewczyk, Callis, Papa, Hale & Szewczyk, P.C., Granite City, IL.

JUSTICE CHAPMAN delivered the judgment of the court, with opinion. Justices Welch and Schwarm concurred in the judgment and opinion.

OPINION

Page 21

CHAPMAN, JUSTICE.

[¶1] The plaintiff, Clara E. Wise, was discharged from her employment with Casino Queen for insubordination. The Department of Employment Security denied the plaintiff's claim for unemployment insurance benefits. On a petition for administrative review, the circuit court reversed the final administrative decision, finding that there was no harm to the employer. The defendants, Casino Queen, Inc., the Department of Employment Security and its director, the Board of Review of the Department of Employment Security (Board of Review or Board), and members of the Board of Review, appeal. They argue that the circuit court incorrectly concluded that the decision of the Board of Review was clearly erroneous. We reverse the decision of the circuit court and reinstate the decision of the Board of Review.

[¶2] On November 19, 2011, the plaintiff was employed by Casino Queen as a cook

Page 22

and buffet station attendant. That day, she was working at the barbecue station. Betty Stanek, the plaintiff's supervisor, checked the temperatures of the items on the barbecue station buffet line and discovered that the temperatures of two of those items-the coleslaw and tuna salad-were too high. Stanek instructed the plaintiff to get more ice and water to put under the pans containing the coleslaw and tuna salad in order to keep them cooled to a safe temperature. The plaintiff told Stanek that she would not get the ice and water because she was tired of doing other people's jobs. According to Stanek, another employee volunteered to get the ice. According to the plaintiff, she asked another employee to get the ice while she went to the cooler to replenish the coleslaw.

[¶3] Stanek placed the plaintiff on suspension. Two days later, the plaintiff met with Kim Cushon, Casino Queen's employee relations manager. The plaintiff admitted to Cushon that the incident occurred. In a written statement, she likewise acknowledged telling Stanek that she would not comply with the request because getting the water and ice was " pantry work." Cushon made the decision to discharge the plaintiff for insubordination.

[¶4] The plaintiff filed a claim for unemployment benefits, which was denied. She requested an administrative appeal of that decision. A hearing referee held a telephone hearing at which Stanek, Cushon, and the plaintiff testified.

[¶5] Stanek testified that at the beginning of her shift, she checked the temperature of the food on the plaintiff's line. The coleslaw was 54 degrees and the tuna salad was 49 degrees. Both were too warm. Stanek stated that she lifted up the food pans and saw that there was not enough ice or water under the pans to keep the dishes cooled to the proper temperature. Stanek directed the plaintiff to add water and ice. Stanek testified that the ...


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