Acevedo v. DEPARTMENT OF EMPLOYMENT SEC.

• Decision Date: 07 August 2001
• Docket Number: No. 1-99-3049.,1-99-3049.
• Citation: 258 Ill.Dec. 12,324 Ill. App.3d 768,755 N.E.2d 93
• Parties: Ernesto ACEVEDO, Petitioner-Appellee, v. The DEPARTMENT OF EMPLOYMENT SECURITY; Director of the Department of Employment Security; and Board of Review of the Department of Employment Security, Respondents-Appellants (Standard Window Cleaning Company, c/o Martin Boyer, Respondent).
• Court: United States Appellate Court of Illinois

755 N.E.2d 93

324 Ill. App.3d 768

258 Ill.Dec. 12

Ernesto ACEVEDO, Petitioner-Appellee, v. The DEPARTMENT OF EMPLOYMENT SECURITY; Director of the Department of Employment Security; and Board of Review of the Department of Employment Security, Respondents-Appellants (Standard Window Cleaning Company, c/o Martin Boyer, Respondent).

No. 1-99-3049.

Appellate Court of Illinois, First District, Second Division.

August 7, 2001.

James E. Ryan, Attorney General, Joel Bertocchi, Solicitor General, and Bonnie Gershkon, Assistant Attorney General, Chicago, for Appellant.

Presiding Justice CAHILL delivered the opinion of the court:

Respondents appeal from an order of the circuit court of Cook County reversing the decision of the Board of Review of the Illinois Department of Employment Security (the Board). The Board ruled that petitioner, Ernesto Acevedo, was ineligible for unemployment compensation benefits because he voluntarily left his employment without good cause attributable to his employer, Standard Window Cleaning Company (Standard). Respondents claim that the denial of benefits was supported by the manifest weight of the evidence and that the decision of the circuit court should be reversed. Petitioner has not filed a brief in response. We may consider the issue raised under the standards set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill.2d 128, 133, 345 N.E.2d 493, 495 (1976). We reverse the trial court and remand with directions.

The record shows that petitioner was employed by Standard as a window washer and was paid at the hourly rate of $13.90. He worked for that company about six months and claimed that he left when his supervisor, Richard Fiore, told him that he had no work for him and reduced his hours from 40 per week to 13 to 20 hours.

Petitioner filed a claim for benefits under the Illinois Unemployment Insurance Act (Act) (820 ILCS 405/100 et seq. (West 1998)). Standard, through its representative, questioned petitioner's eligibility for benefits under section 601(A) of the Act (820 ILCS 405/601(A)(West 1998)), which relates to voluntary leaving without good cause attributable to the employing unit. The claims adjudicator found that petitioner left work because he was laid off, that his voluntary leaving was with good cause and that he was eligible for benefits.

Standard appealed that determination, claiming that petitioner had refused an offer of work and did not report for work from August 3 through August 5, 1998. The referee heard testimony on the matter in the course of a hearing conducted by telephone on November 17, 1998. Standard's representative presented the testimony of Fiore by telephone. Petitioner did not appear.

Fiore testified that defendant last worked for him on July 29, 1998, and did not report or call in from July 29 through July 31, 1998. Fiore explained that for a short period of time the company was changing computers and work tickets, that work was not being scheduled as it wanted, and that it was working slowly to ensure that all of its customers were served. Fiore stated that there was work for petitioner on the days he was absent and that he tried to contact him at home. He also asked other employees about petitioner and was told that petitioner might be working for another company. Fiore asked these employees to aid in his retrieval of $1,000 worth of company equipment from petitioner, but it was never returned. Fiore further testified that he continued to put petitioner's name on the work schedule and reported him as a "no call" and "no show" for three consecutive days. Fiore kept petitioner's partner working without him.

The referee found that petitioner had voluntarily left his job on July 28, 1998, when he stopped reporting to work. The referee noted that Standard had no subsequent contact with petitioner, despite efforts to locate him, and that there was work available for petitioner when he left. The referee found the testimony of the employer to be credible and concluded that petitioner had left his job voluntarily and without good cause attributable to the last employing unit. The referee further concluded that there was no evidence showing that the work was unsuitable or that a permissible exception applied, and imposed the disqualification of benefits set out in section 601(A) of the Act. Petitioner appealed that decision to the Board of Review. He argued that he did not quit, but was laid off because there was no work for him to do. After reviewing the entire record, the Board found that the referee's decision was supported by evidence in the record and the law and affirmed the denial of benefits.

Petitioner then filed a pro se complaint for administrative review of the Board's decision, and after a hearing, the circuit court issued a written order reversing the Board's decision. In its order, the court noted that petitioner's working hours had been reduced from 40 to 20 hours per week and that it was understandable that he was unable to support himself and his family after such a dramatic reduction. The court further noted that neither the referee nor the Board found that the reduction was temporary, and stated that an employee should not be expected to work indefinitely at drastically reduced hours for fear of jeopardizing his unemployment benefit rights. The court then held that since the employer had 40 hours of work for two full-time employees, it should be required to maintain the hours of one worker and lay off the other so that he could collect unemployment benefits while undertaking a job search. The court also ruled that an interpretation of the Act that would allow employers to avoid its effect by "drastically reducing work hours in the hope that an employee will voluntarily leave and become ineligible for benefits should not be countenanced."

Respondents have appealed.

Under the Act, a person may receive unemployment benefits provided that he meets the eligibility requirements of section 500 and is not subject to the exemptions or disqualifications set out in the statute. Caterpillar, Inc. v. Doherty, 299 Ill.App.3d 338, 342, 233 Ill.Dec. 889, 701 N.E.2d 1163, 1166 (1998). The burden of proving eligibility rests with the claimant. The Act is to be liberally construed to favor the awarding of benefits to accomplish the primary purpose of alleviating economic distress caused by involuntary unemployment. Chicago Transit Authority v. Doherty, 291 Ill.App.3d 909, 912-13, 225 Ill.Dec. 876, 684 N.E.2d 867, 870 (1997).

The Board of Review is the trier of fact in a case involving a claim for unemployment benefits, and its findings of fact are considered prima facie true and correct. Chicago Transit Authority v. Didrickson, 276 Ill.App.3d 773, 776, 213 Ill.Dec. 398, 659 N.E.2d 28, 31 (1995). The function of the reviewing court is limited to ascertaining whether the decision of the Board is against the manifest weight of the evidence. Hoffmann v. Lyon Metal Products, Inc., 217 Ill.App.3d 490, 497, 160 Ill.Dec. 384, 577 N.E.2d 514, 518-19 (1991). That an opposite conclusion may be reasonable is insufficient. Jackson v. Department of Labor, 168 Ill.App.3d 494, 499, 119 Ill.Dec. 537, 523 N.E.2d 5, 8 (1988).

Here, the Board found that the referee's decision was supported by the record and the law and incorporated that decision in affirming the denial of benefits. The denial of benefits was based on section 601(A) of the Act, which provides in part that a claimant "shall be ineligible for benefits for the week in which he has left work voluntarily without good cause attributable to the employing unit." 820 ILCS 405/601(A) (West 1998). "Good cause" for leaving has, in turn, been interpreted as that which justifies an employee to leave the ranks of the...