McAllister v. Board of Review of Dept. of Employment Sec.

• Decision Date: 06 May 1994
• Docket Number: 1-92-4461,Nos. 1-92-4283,s. 1-92-4283
• Citation: 200 Ill.Dec. 257,263 Ill.App.3d 207,635 N.E.2d 596
• Parties: , 200 Ill.Dec. 257, 9 IER Cases 852 Lonnie McALLISTER, Plaintiff-Appellee, v. The BOARD OF REVIEW OF The DEPARTMENT OF EMPLOYMENT SECURITY, et al., Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 596

635 N.E.2d 596

263 Ill.App.3d 207, 200 Ill.Dec. 257,

9 IER Cases 852

Lonnie McALLISTER, Plaintiff-Appellee, v. The BOARD OF REVIEW OF The DEPARTMENT OF EMPLOYMENT SECURITY, et al., Defendants-Appellants.

Nos. 1-92-4283, 1-92-4461.

Appellate Court of Illinois First District, Sixth Division.

May 6, 1994.

William H. Farley, Jr., Gen. Atty., and Jodi G. Eisenstadt, Associate Atty., for Chicago Transit Authority.

Roland W. Burris, Atty. Gen., and Rosalyn B. Kaplan, Sol. Gen., for the Board of Review and the Director of the Illinois Dept. of Employment Sec.

Depaul Legal Clinic, Chicago (Alicia Alvarez, of counsel), for plaintiff-appellee.

Justice GIANNIS delivered the opinion of the court:

Defendants appeal from an order of the circuit court of Cook County reversing the decision of the Illinois Department of Employment Security Board of Review (Board) which had denied plaintiff's claim for unemployment insurance benefits. Defendants contend that the circuit court erred in reversing the decision where it was neither against the manifest weight of the evidence nor clearly erroneous.

Plaintiff was employed as a bus operator for the Chicago Transit Authority (CTA) from December 4, 1972, until he was suspended from his employment on April 15, 1991, after urine and blood tests revealed that he had consumed cocaine. His claim for unemployment insurance benefits was denied by the Board, which found that plaintiff's behavior constituted misconduct under the provisions of the Unemployment Insurance Act (Act). 820 ILCS 405/602 (West 1992).

At an administrative hearing on July 23, 1991, plaintiff testified that on Wednesday, April 10, 1991, after allowing all passengers to disembark at the bus terminal at Madison Street and Austin Avenue, he pulled the bus around to the other side of the terminal in order to use the bathroom. CTA policy requires a driver to secure the bus by placing the gear in neutral and applying the hand brake. Plaintiff testified that he failed to comply with this policy because he was in a hurry. When he came out of the bathroom, plaintiff saw the bus slowly moving forward until it struck a guard rail. He testified that he did not violate CTA policy intentionally, but hurried to the bathroom because he was behind schedule. A short time later, he reported the incident to Mr. Fletcher, his designated "point man," whose office was located at Madison Street and Kedzie Avenue. Fletcher advised him to report the incident at the end of the day. At the end of the day, plaintiff completed an accident report and submitted it to Superintendent Rolland. He also submitted to blood and urine tests.

Plaintiff testified that he had never consumed illegal substances during work hours, nor had he ever worked under the influence of any illegal substances. He stated that the reason his medical tests indicated the presence of cocaine was that he had consumed cocaine after work six days earlier. During the administrative hearing, the following excerpt from the CTA employee handbook was read into evidence:

"14A, personal conduct. The following acts are not permissible. Subsection A, use or possession of intoxicating liquor, controlled substances, or narcotics of any kind from the time an employee reports for work until the conclusion of the employee's work day. Or reporting for work in an apparent condition due to the use of same.

Further, an employee may not have a controlled substance or narcotics of any kind in his or her system from the time an employee reports for work, until the conclusion of the employee's work day. Use of illegal drugs is forbidden."

Isaac Clark, a superintendent for the CTA testified that the impact with the guard rail was the only reason plaintiff was asked to submit to blood and urine tests.

The referee found that the presence of the illegal drug in the plaintiff's system while on duty, regardless of whether he would have been deemed under the influence of the substance, was sufficient to constitute a violation of an employer policy which harmed the employing unit. The referee found that plaintiff was discharged for misconduct connected with work. The Board affirmed the referee's decision.

Plaintiff filed a complaint for administrative review, and after a hearing, the circuit court reversed the Board's decision stating as follows:

"There is no evidence that his appearance or his work was impacted or impaired as a result of the narcotics in his system, and in fact, he was told to continue on his schedule.

The Board found that the claimant was disqualified because of misconduct and that the employer was harmed by the fact that there was a narcotic in his system.

* * * * * *

The Court is going to reverse this decision on the basis that there was no harm to the employer established and there had been no previous warnings regarding narcotics in this particular case. Even if the rule had been violated, the other elements are missing."

Defendants contend that the Board correctly determined that plaintiff was discharged for misconduct and was, therefore, ineligible for unemployment benefits. Defendants assert that the cocaine found in plaintiff's system harmed the CTA by exposing it to the potential for increased liability should the bus have hit property or persons other than a CTA guard rail, by adding to public distrust of transit safety, thus jeopardizing revenue generated from fares, and by causing the CTA to be out of compliance with federal and state mandates designed to promote drug-free transit, thereby jeopardizing revenue derived from governmental sources.

In support of their argument that the decision of the Board should be affirmed, defendants cite an administrative rule which defines "harm" to the employer. Specifically, defendants refer to the following language:

"(c) damage or injury that could be reasonably foreseen to occur but for the individual being prevented from either carrying out his act or continuing to work." (56 Ill.Adm. Code § 2840.25, 17 Ill.Reg. 10270-74 (July 9, 1993).)

One of the examples listed under subsection (c) states:

"Federal law provides that a commercial carrier may not permit its vehicle to be operated by an individual if there is, within the individual's system, the presence of unlawful, controlled substances beyond a particular level. The presence of such a substance during working hours within the system of a commercial driver employed by the carrier constitutes harm to the carrier. To continue to employ the individual as a driver would result in the carrier's violating federal law." (56 Ill.Adm.Code § 2840.25(c)(3) (1993); 17 Ill.Reg. 10273

Defendants note that the CTA uses the same standard threshold contained in Federal regulations for determining whether an individual has tested positive for cocaine. See 49 C.F.R. §§ 40.29(e), 40.29(f).) Defendants argue that the amount of cocaine found in plaintiff's system after the urine test exceeded the threshold level.

Plaintiff asserts that the CTA's rule is unreasonable because it governs an employee's conduct away from his employment where such conduct does not affect his work performance. He also argues that off-duty drug use cannot be construed as willful or intentional conduct in the absence of evidence that it actually affected the employee's job performance, and he argues further that the CTA was not harmed by the residual traces of cocaine found in his system because he was not impaired or intoxicated. Finally, plaintiff suggests that even if his actions constituted misconduct, the misconduct was not connected with his work.

The Act defines misconduct as follows:

"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 despite a warning or other explicit instruction from the employing unit." 820 ILCS 405/602 (West 1992).

In a case involving a claim for unemployment benefits, the Board is the trier of fact and its findings of fact are considered prima facie true and correct. (735 ILCS 5/3-110 (West 1992); Grant v. Board of Review (1990), 200 Ill.App.3d 732, 734, 146 Ill.Dec. 475, 558 N.E.2d 438.) The function of a reviewing court in such a case is to determine whether the Board's findings were against the manifest weight of the evidence. (Jackson v. Board of Review (1985), 105 Ill.2d 501, 513, 86 Ill.Dec. 500, 475 N.E.2d 879; Nichols v. Department of Employment Security (1991), 218 Ill.App.3d 803, 809, 161 Ill.Dec. 475, 578 N.E.2d 1121.) A reviewing court should not substitute its judgment for that of the agency unless the record lacks...