Adams v. Ward

• Citation: 565 N.E.2d 53,206 Ill.App.3d 719
• Decision Date: 26 November 1990
• Docket Number: No. 1-89-3022,1-89-3022
• Parties: , 151 Ill.Dec. 782 Charles ADAMS, Plaintiff-Appellee, v. Sally WARD, Director, Department of Employment Security et al., Defendants-Appellants (Wm. Wrigley, Jr. Company, Defendant).
• Court: United States Appellate Court of Illinois

Page 53

565 N.E.2d 53

206 Ill.App.3d 719, 151 Ill.Dec. 782

Charles ADAMS, Plaintiff-Appellee, v. Sally WARD, Director, Department of Employment Security et

al., Defendants-Appellants (Wm. Wrigley, Jr.

Company, Defendant).

No. 1-89-3022.

Appellate Court of Illinois,

First District, Sixth Division.

Nov. 26, 1990.

Rehearing Denied Jan. 15, 1991.

Neil F. Hartigan, Asst. Atty. Gen., Robert J. Ruiz, Sol. Gen. (John A. Morrissey, Rosalyn B. Kaplan, of counsel), for defendants-appellants.

Eugene C. Edwards, Carl K. Turpin, Cook County Legal Assistance Fund, Inc., Harvey, for plaintiff-appellee.

Presiding Justice LaPORTA delivered the opinion of the court:

Plaintiff Charles E. Adams was fired from his job and then refused unemployment insurance benefits on the ground that he was discharged for misconduct, as defined by the Unemployment Insurance Act. The circuit court reversed that decision, finding the employer had no articulated "reasonable rule" governing plaintiff's conduct, plaintiff did not act with "willfulness" or "deliberateness" and the employer had suffered no harm, as required by the newly-modified Act. Defendant, the Department of Employment Security Board of Review (Board), appealed, contending Adams was properly denied benefits.

We affirm the trial court decision and find that the 1988 modification of the Act requires that employers meet a new requirement, a proof of actual harm suffered, to comply with the Act's definition of "misconduct."

Adams of Calumet City was fired from his job November 28, 1988 after he admitted he threw out two company uniforms which he said were on the floor already in a pile of trash. Adams had worked at Wm. Wrigley Jr. Company since December 1985, primarily as a parts cleaner. When a hand injury left him unable to continue in his regular job, Adams began working as a janitor for the company. His duties included cleaning locker rooms where employees changed out of dirty uniforms after working with printers ink. Though employees were to place the dirty uniforms in separate laundry bins, two were left on the floor on November 23, 1988. Adams threw the uniforms into a dumpster along with the trash. The uniforms were later retrieved by another employee and, on the next work day, Adams was fired.

Adams sought unemployment benefits for November 27, 1988 through December 10, 1988. On January 5, 1989, a claim's adjudicator denied Adams benefits, finding Adams negligently destroyed company property and his action was within his control to avoid. Adams appealed to a hearing referee, who reversed the decision of the claims adjudicator.

Adams testified before the hearing referee that on November 23, 1988 he was cleaning a locker room and came across two ink-stained uniforms in a pile of trash on the floor. He swept the uniforms up with the trash and later emptied the trash into a gondola. A printing operations supervisor, Ed Kozlowski, testified before the hearing referee that he later removed the uniforms from the trash after another employee told him of Adams' conduct. That employee was never identified or produced at subsequent hearings. The next business day, Kozlowski questioned Adams about the incident and then fired Adams.

Only the hearing referee heard testimony. No witnesses to Adams' actions were produced before the referee. Adams testified that he admitted to Kozlowski at the time that he had indeed thrown the uniforms away. He testified that the uniforms were already in a pile of trash and he believed they were to be thrown away. He testified that when he threw the uniforms away, other uniforms were already in the trash though he had not placed them there. He admitted he knew of the company policy of keeping a separate bin for ink-covered uniforms intended to be laundered.

Kozlowski testified before the referee that when he questioned Adams, Adams admitted throwing uniforms out in the past. But at that same hearing, Kozlowski later changed his statement, saying Adams admitted only throwing out the two uniforms the previous working day. Kozlowski also testified that Adams told him at the time that he was not going to be picking up "after a bunch of babies." Adams was not asked whether he made such a statement but he did deny that he had thrown uniforms away in the past.

Adams testified that before he threw the uniforms away, he was never warned or disciplined for poor work performance. Defendant contends plaintiff was warned because his supervisor spoke to him after the uniform incident, but did not fire him until the next working day.

Hearing referee Harry Robbin took testimony from Adams and two company employees, Ed Kozlowski, who was the printing operations supervisor, and Michael Aldridge, who was the personnel supervisor. In his findings of fact, Robbin said "claimant had accidentally thrown the entire bundle [of uniforms and trash] out. ... He had a good record and had not received any prior warning about his job performance." Robbin concluded in his decision February 3, 1989 that "the evidence did not establish a wrongful intentional course of conduct toward the employing unit."

The company appealed to the agency's Board, which reversed the decision of the hearing referee. The Board of Review found the record adequate and "no further evidentiary proceedings necessary." The Board found "claimant was discharged from his position doing clean up work for intentionally throwing two employees uniforms in the garbage but testified that they were very dirty [and] that he thought they were supposed to be [discarded]. However, a witness for the employer testified that he had heard that [Adams] threw the uniforms away because he is not going to be picking up after people."

Here, the Board of Review mistakenly interprets Kozlowski's testimony as hearsay. However, we make note that Kozlowski, testifying before the hearing referee, said Adams spoke to him directly and said he wouldn't pick up after "babies."

In its conclusion, the Board noted that Adams "intentionally injured the employer's interests by putting the uniforms in the garbage. Even though the uniforms were retrieved the employer was injured because it had to go through the trouble of recovering the uniforms and investigating this incident." We note that the record contains the following scenario: an employee reported to Kozlowski that Adams threw two uniforms into the trash dumpster, that Kozlowski retrieved the uniforms and that Kozlowski then spoke with Adams about the incident. The record is devoid of any further "investigation."

Adams sought review of the board decision by the circuit court, which heard arguments from both sides. The circuit court reversed the board decision. This is an appeal of the circuit court decision.

A reviewing court cannot reweigh the evidence. Its function is to determine whether the administrative agency's decision is against the manifest weight of the evidence. (Jackson v. Board of Review (1985), 105 Ill.2d 501, 513, 86 Ill.Dec. 500, 506, 475 N.E.2d 879, 885.) It is the decision of the Board, not the referee, which is reviewed by the court. (Gregory v. Bernardi (1984), 125 Ill.App.3d 376, 379, 80 Ill.Dec. 706, 710, 465 N.E.2d 1052, 1056.) No new or additional evidence in support of or in opposition to any finding, order, determination or decision of the administrative agency shall be heard by the court. The findings and conclusions of the administrative agency on questions of fact shall be held to be prima facia true and correct. (Ill.Rev.Stat.1987, ch. 110, par 3-110.) However a reviewing court is not bound to give the same deference to an agency's conclusions of law, such as its construction of a statute, as it gives to its findings of fact. Flex v. Illinois Department of Labor, (1984) 125 Ill.App.3d 1021, 1024, 81 Ill.Dec. 248, 251, 466 N.E.2d 1050, 1053.

Several Illinois cases hold unemployment insurance benefits are a conditional right and the burden of establishing eligibility rests with the claimant. (Collier v. Department of Employment Security (1987) 157 Ill.App.3d 988, 109 Ill.Dec. 755, 510 N.E.2d 623; Popoff v. Department of Labor (1986) 144 Ill.App.3d 575, 98 Ill.Dec. 939, 494 N.E.2d 1266.) Illinois courts have required that the Act be liberally interpreted to favor the awarding of benefits. Flex, 125 Ill.App.3d at 1024, 81 Ill.Dec. at 251, 466 N.E.2d at 1053.

Initially we must consider the effect of the modifications to the Unemployment Insurance Act. The Illinois Supreme Court first defined the term "misconduct" in 1985 to assist the Department of Labor and reviewing courts on questions of unemployment compensation. (Jackson v. Board of Review, (1985) 105 Ill.2d 501, 86 Ill.Dec. 500, 475 N.E.2d 879.) Prior to that time, each reviewing court provided its own definition, for the statute offered none.

Jackson defined misconduct as:

"willful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employer's duties and obligations to his employer."

Jackson, 105 Ill.2d at 511-512, 86 Ill.Dec. at 506, 475 N.E.2d at 885.

That same year, however, Public Act 85-956 was introduced and subsequently enacted effective January 1, 1988, providing modifications to Ill.Rev.Stat. (1987) ch. 48, par. 432(A). The changes include a one-sentence definition of misconduct similar to the one adopted by the court in Jackson.

The statute defines misconduct as:

"the deliberate and willful violation of a reasonable rule or policy of the employing unit, governing the individual's behavior in performance of his work, provided such violation has harmed the employing unit or other employees or has been repeated by the individual...