Lester v. DEPARTMENT OF EMPLOYMENT SEC.

• Decision Date: 17 November 2004
• Docket Number: No. 1-03-1479.,1-03-1479.
• Citation: 289 Ill.Dec. 343,354 Ill. App.3d 51,819 N.E.2d 1143
• Parties: Susan B. LESTER, Plaintiff-Appellant, v. The DEPARTMENT OF EMPLOYMENT SECURITY, an Administrative Agency in the State of Illinois; The Director of the Department of Employment Security; The Board of Review, an Administrative Agency in the State of Illinois; and Purity Supermarketing, Inc., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

819 N.E.2d 1143

354 Ill. App.3d 51

289 Ill.Dec. 343

Susan B. LESTER, Plaintiff-Appellant, v. The DEPARTMENT OF EMPLOYMENT SECURITY, an Administrative Agency in the State of Illinois; The Director of the Department of Employment Security; The Board of Review, an Administrative Agency in the State of Illinois; and Purity Supermarketing, Inc., Defendants-Appellees.

No. 1-03-1479.

Appellate Court of Illinois, First District, Third Division.

November 17, 2004.

John P. Madden, O'Malley & Madden, P.C., Chicago, for Appellant.

Lisa Madigan, Attorney General, Chicago (Carol A. Cera, of counsel), for Dept. of Employment Security, et al.

Timothy M. Kelly, Christina D. Daskas, Beerman Swerdlove Woloshin, Chicago, for Purity Supermarketing, Inc.

Justice SOUTH delivered the opinion of the court:

Plaintiff Susan Lester filed a claim for unemployment benefits with the Illinois Department of Employment Security (IDES). After her claim was denied by an adjudicator and a referee, plaintiff appealed to the Board of Review (Board), which affirmed these decisions, stating that plaintiff was ineligible for benefits because she failed, without good cause, to accept suitable work offered by her former employer under section 603 of the Illinois Unemployment Insurance Act (Act) (820 ILCS 405/603 (West 2000)). On administrative review, the circuit court affirmed the Board's decision. On appeal, plaintiff contends that the circuit court erred in affirming the Board's decision, as the Board's decision was based on manifestly erroneous factual findings and errors of law.

The following facts are undisputed. Plaintiff worked as a diverting coordinator for Purity Supermarketing, Inc. (Purity), for 7 1/2 years. She worked out of a regional office located in a Kmart store 1.3 miles from her home. On May 23, 2001, her position was eliminated for financial reasons. Prior to her termination, she had taken maternity leave, but she had returned to work in April 2001 and was working 35 hours per week at a salary of $70,200 per year. Between April and May 23, 2001, there was not enough work for plaintiff due to changes within the Kmart structure and her hours gradually diminished until she was only working three days per week at a lower salary. Upon plaintiff's termination, Purity gave her severance pay from May 23, 2001, through September 23, 2001, totaling $25,800. On July 18, 2001, Daniel Davis, director of partnership programs for Purity, offered plaintiff a position at Purity's other headquarters working out of a Dominick's supermarket, which was located 30 miles from her home. The offer included an annual salary of $70,200, plus benefits. Plaintiff refused the position.

On November 6, 2001, plaintiff filed for unemployment insurance. In her application for benefits, plaintiff stated that, although she felt she was competent to fill the job offered to her, she refused it because the salary was insufficient, as her workload would have increased two to three times, required farther travel to and from work, required her to supervise a staff, and did not include guaranteed quarterly bonuses. Karen McGrath, Purity's human resource representative, filed a response that the job offered to plaintiff was not substantially different from her former position, e.g., it was within 30 minutes of her old office, required 40 hours of work per week, paid $70,200 per year, plus two quarterly bonuses, and included insurance and all other benefits. In addition, McGrath stated that $50,000 to $60,000 per year was the standard salary for similar employment.

An IDES claims adjudicator denied plaintiff's claim for unemployment insurance pursuant to section 603 of the Act, finding that the work offered to plaintiff was suitable and her refusal of work was without good cause. The adjudicator specifically found that plaintiff's refusal of work stemmed from her belief that the offered salary and bonus was insufficient, even though it was comparable to her former salary and was reasonable for prevailing wages in the industry and location.

Plaintiff filed a motion for reconsideration, arguing that the new position would have increased her work hours from 35 to at least 40 hours per week, required her to act as a manager, as she was told that she would be the "lead person," with one to two people working for her, her distance from work would have increased, and her work load would have increased by two to three times. The adjudicator denied the motion for reconsideration.

Plaintiff then appealed to an IDES referee. During a telephone hearing on January 11, 2002, plaintiff testified that the position Davis offered her based out of Dominick's at $70,200, plus benefits, was similar to her former position out of Kmart, except that it required her to work five days, at least 40 hours per week, and to manage at least one person. Plaintiff told Davis that she wanted her bonus rolled into her salary and a salary adjustment because of her experience, since she would have increased management responsibilities and she would have to travel farther to and from work. Davis denied her request.

Davis testified that he was the director of partnership programs at Purity. Purity valued plaintiff's work at Kmart and needed someone strong in the lead coordinator's position at Dominick's, so it offered her the job. The position included an annual salary of $70,200 and guaranteed third — and fourth-quarter bonuses of $4,000 each, even though a typical lead coordinator at Purity would only earn a maximum of $54,000 per year. In addition, one person would work under plaintiff. Davis then read and summarized the duties of the lead coordinator and diverting coordinator positions, stating that the only difference between them was that the lead coordinator served as the primary liaison between the company's diverting supervisor and the partnership account. Since a typical lead coordinator's maximum salary was $54,000, the $72,000 offer was extremely generous.

Plaintiff responded that there may have been a misunderstanding because she interpreted "lead coordinator" to be a management position.

The referee affirmed the adjudicator's decision, finding that the work offered to plaintiff was suitable and her refusal of work was without good cause. Plaintiff was offered a comparable salary and benefits, the distance of travel was not excessive, the area she would have been assigned to was local and accessible by local highways, her travel time would have been less than one hour, and the added responsibility of liaison would not have been unduly burdensome, as plaintiff had experience in the field and was considered competent.

Plaintiff appealed the referee's decision to the Board. Plaintiff argued that she refused the job because: she was told the new position was a management position; several people would have reported to her; she would have been responsible for the total "volume" at the account; her bonuses would have been based on the performance of all Purity employees at the account; and there would have been no salary increase.

The Board affirmed the referee's decision. On administrative review, the circuit court affirmed the decision of the Board.

On appeal, plaintiff contends that the circuit court erroneously accepted the Board's decision, which was based on manifestly erroneous factual findings and errors of law. Plaintiff specifically contends that she lost her former job through no fault of her own, she had been out of work for only a short time when she refused the job, she rejected Davis's offer in good faith, as she did not have the management skills necessary to perform the job, and the new position would have increased her work volume and hours without increased pay.

This court's function on review is to determine whether the...