Nichols v. Department of Employment Sec.

• Decision Date: 22 August 1991
• Docket Number: No. 1-90-0094,1-90-0094
• Citation: 218 Ill.App.3d 803,161 Ill.Dec. 475,578 N.E.2d 1121
• Parties: , 161 Ill.Dec. 475 Albert NICHOLS, Plaintiff-Appellant, v. DEPARTMENT OF EMPLOYMENT SECURITY, an Administrative Agency of Illinois; Director of Illinois Department of Employment Security; Board of Review, an Administrative Agency in the State of Illinois; and CHA/Martin Boyer Co., Employer, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1121

578 N.E.2d 1121

218 Ill.App.3d 803, 161 Ill.Dec. 475

Albert NICHOLS, Plaintiff-Appellant, v. DEPARTMENT OF EMPLOYMENT SECURITY, an Administrative Agency of Illinois; Director of Illinois Department of Employment Security; Board of Review, an Administrative Agency in the State of Illinois; and CHA/Martin Boyer Co., Employer Defendants-Appellees.

No. 1-90-0094.

Appellate Court of Illinois,

First District, Fourth Division.

Aug. 22, 1991.

Legal Assistance Foundation of Chicago, Chicago (James A. Latturner, Julian Henriques, Jr. and Theodora M. Rand, of counsel), for plaintiff-appellant.

Roland W. Burris, Atty. Gen., Chicago (Rosalyn B. Kaplan, Asst. Atty. Gen.), for defendants-appellees.

Justice McMORROW delivered the opinion of the court:

Plaintiff, Albert Nichols (Nichols) appeals from the order of the circuit court affirming the decision of the Board of Review (the Board) of the Illinois Department of Employment Security (the Department) that he is ineligible for unemployment insurance benefits because he was discharged for misconduct connected with his work. Plaintiff contends that the circuit court's ruling was erroneous as a matter of law and contrary to the manifest weight of the evidence.

The facts of record are as follows. Plaintiff had been employed intermittently as a janitor at the Hilliard Center, a property of the Chicago Housing Authority (CHA), between 1968 and 1980, from which time he worked continuously until his discharge in October 1988. On August 29 1988, the CHA sent a "final disciplinary notice" to plaintiff advising him that his termination from CHA employment was being sought because (1) his conduct did not conform to CHA policies and practices and (2) his work performance was unsatisfactory. Specifically, the notice stated that on August 20, 1988, plaintiff had refused a direct assignment from his immediate supervisor to mow the grass, following which plaintiff left work for the day. In addition, it was noted that since June 1988, when a 60-day probation for excessive absenteeism ended, he had been absent from work a total of 35 hours for sick leave and 10 1/2 hours without pay in addition to 16 hours annual leave time. The disciplinary notice further advised plaintiff that because of his refusal to perform an assigned task and because he had ignored repeated warnings regarding his abuse of leave privileges, he was suspended effective August 29, 1988, pending termination proceedings.

A pre-termination meeting was held on September 12, 1988. In attendance were plaintiff, maintenance supervisor Harry Green, the assistant manager of the Hilliard Center, and three union representatives. Regarding the events of August 20, Green stated that when he arrived at work at 8 a.m., he asked Sylvester Johnson, a maintenance employee who acted as a weekend supervisor, if everyone was present for work. Johnson stated that he had assigned plaintiff to help him cut the grass but plaintiff had refused and left the CHA premises. Green and plaintiff had conversation approximately 30 minutes later in which plaintiff acknowledged that he refused to cut the grass and had not signed in for work. Green noted that in late June 1988 he removed plaintiff from a 60-day probation and that he had repeatedly warned plaintiff, both verbally and in writing, about his poor attendance and performance. Green explained that because of plaintiff's poor attendance record and his refusal to follow his supervisor's directive he believed that suspending plaintiff pending termination was appropriate.

Johnson stated that he had been told by the building manager that the grass was to be cut that day. He assigned plaintiff to first mop the stairwells in one of the buildings and then to assist him in cutting the grass. Plaintiff told him that Green had not assigned him to cut grass that year and that he would not cut the grass. Johnson advised plaintiff that if he refused, he may as well not work that day, whereupon plaintiff left.

Plaintiff did not dispute Johnson's statement, but maintained that the reason Green had not assigned him to grass cutting was because Green knew he had had a prior accident with the lawnmower. Green denied that that was the reason for not assigning plaintiff to cut grass. He stated that there were other people who cut the grass better and, so, he usually assigned those people to do it.

A memorandum from the acting manager of labor relations regarding the termination recommendation contained a list of plaintiff's work history. Between 1980 and 1988, the CHA disciplined plaintiff 11 times for poor attendance, tardiness, and poor work performance. The memorandum stated that despite the imposition of progressive disciplinary measures short of termination, plaintiff had failed to modify his behavior. Termination based on insubordination and a poor work record was recommended.

Green's recommendation to terminate plaintiff's employment was upheld and plaintiff was subsequently notified that he was discharged for insubordination and excessive absenteeism. Plaintiff then submitted an application for unemployment insurance benefits. Thereafter he and Green both gave statements to the Department regarding the reasons for his discharge. The statements were essentially the same as their statements at the pre-termination meeting. The claims adjudicator found that plaintiff was discharged for misconduct connected with his work and denied plaintiff's claim for benefits on that ground. Plaintiff sought reconsideration of the determination, asserting that he had injured his back at work on four occasions. He alleged that the CHA was aware of his injuries and were firing him because he had sued the CHA twice. The denial of his claim was reversed; but, after further reconsideration, the original determination denying his claim was affirmed. The claim adjudicator noted that although plaintiff maintained that he refused to cut the grass for reasons relating to his health, he had produced no medical evidence in support of his assertion that he was physically unable to cut the grass.

Following the denial of his claim, plaintiff appealed, pro se, and a hearing was held before a referee. Plaintiff testified that prior to signing in for work on August 20, he made some joking remarks to Johnson which "rubbed him the wrong way" and resulted in an argument. Plaintiff claimed that he was unable to cut grass because of the injuries to his back and ankle from pushing the mower out onto the lawn and pushing heavy containers of garbage. He stated that he believed that it was his joking or "jiving" that prompted Johnson to "get back at him" by directing him to assist in mowing the grass.

Johnson denied that the joking between him and plaintiff got out of hand, stating that it was something they did every morning. He knew that plaintiff had been off from work due to an injury, but he did not know the nature of it, nor did he know of any physical problems which would prevent plaintiff from cutting grass. Jackson described the lawn mower as a multi-purpose vehicle which was convertible into a snow blower or compactor. The vehicle is motor driven and does not require much physical exertion to run.

There was no dispute at the hearing that plaintiff submitted to the CHA a written release prepared by Dr. Kocalis, the physician for the Union and plaintiff's attending physician, on August 4, 1988. The release stated that plaintiff was physically able to return to work on August 9, 1988. Dr. Kocalis placed no restrictions on his activities; but plaintiff testified that both Dr. Kocalis and Dr. Javlin, the CHA physician, verbally told him that he should perform only light duties. Plaintiff testified that neither the release prepared by Dr. Kocalis nor any other doctor's statement mentioned light duty because there is no such thing as light duty in his job. He knew that when he returned to work, he would be required to perform the jobs he had performed prior to his medical leave, such as mopping, sweeping and garbage removal, but he did not expect to cut grass because he had not been assigned that task all year.

In his testimony, plaintiff referred to another doctor he had consulted regarding his back injury. He did not provide the physician's name and did not have a copy of any records from him, but he was "pretty sure" that this unidentified doctor had given him a letter restricting him to light duty. He stated that the original injury to his back occurred in 1982, that he had seen several doctors since that time and had given copies of all his medical records since 1980 to Green. He acknowledged, however, that the August 4 release from Dr. Kocalis was the only doctor's statement he received since January 1988 when he returned to work after a prior medical leave. He also testified that Dr. Javlin told him that he (Javlin) would not give plaintiff copies of his medical records unless he hired an attorney.

Ms. Kraly, a hearings representative of the CHA, testified that the only statement in the CHA's possession relating to plaintiff's ability to return to work in August 1988 was the full release from Dr. Kocalis. Plaintiff alleged that Ms. Kraly's statement was "a lie."

The referee noted that Green would be the person who had all of plaintiff's records and suggested that the hearing be continued to have Green "clear this up." Kraly advised the referee that she did not know when Green was scheduled to return to work and would call the CHA to obtain that information. Plaintiff, however, interjected that Green never took more than one week of vacation at a time and would be back on the following Monday.

When the hearing resumed and Green did not appear, the referee stated that his decision would be written on the evidence of record. The referee found that the release issued by Dr. Kocalis contained no restrictions, and that no other documents were presented supporting plaintiff's contrary assertion that he was...