Opinion
No. 1-04-0603
May 13, 2005.
Appeal from the Circuit Court of Cook County, No. 03 L 51113, Alexander P. White, Judge, presiding.
ORDER MODIFIED UPON DENIAL OF REHEARING
Plaintiff, Ora D. Milsap, appeals from an order of the circuit court upholding a decision of the Board of Review of the Department of Employment Security (Board) denying her application for unemployment benefits. On appeal, plaintiff claims that the behavior which resulted in her discharge did not amount to misconduct as defined in section 602A of the Unemployment Insurance Act (Act) (820 ILCS 405/602A (West 2002)), and that the Board's findings were against the manifest weight of the evidence. We reverse and remand with directions.
Plaintiff was employed by defendant, Metro One Telecommunications (Metro), as a customer service representative and telephone operator for approximately nine months until she was discharged on January 9, 2003, for insubordination. On January 10, 2003, plaintiff filed a claim for unemployment benefits. On January 24, 2003, a claims adjudicator determined that plaintiff was eligible for benefits because the actions which resulted in her discharge were not deliberate and willful.
Metro appealed the adjudicator's decision, and a telephonic hearing was held before a referee on May 16, 2003. The testimony at the hearing revealed that Kathleen Podgorniak, Metro's regional vice president and general manager, fired plaintiff on January 9, 2003, during a meeting with plaintiff, Dulcinea Smith and Samantha Carter. Metro's payroll policy was to pay overtime for hours worked in excess of 40 hours a week. Plaintiff, however, consistently claimed that overtime should be paid for working more than 8 hours per day.
Dulcinea Smith, Metro's store manager, testified that Galina Krumm, Metro's payroll clerk, came to her office and explained that plaintiff did not understand the payroll procedures and seemed "a little shooken up." Smith met with plaintiff and tried to explain the policy to her several times, but plaintiff would not let Smith talk, cut her off, and seemed very angry. Smith testified that plaintiff asked her to print out some laws and provide something in writing stating that she was being paid correctly. However, Smith did not have anything available in writing. Smith denied that plaintiff ever told her that she intended to go to the Department of Labor. After being unable to "get through" to plaintiff, Smith brought her to Podgorniak's office.
Podgorniak testified that she discharged plaintiff for insubordination because there had been a "pattern of problems" in trying to explain Metro's overtime policy to her. During the January 9, 2003, meeting held in Podgorniak's office, plaintiff started "yelling" and became "disruptive," "insubordinate" and "extremely disrespectful." According to Podgorniak, plaintiff continually raised her voice, cut Podgorniak off, and refused to listen to any of the information Podgorniak was trying to give her. Plaintiff also disrespected Metro's payroll personnel, Galina Krumm, during the meeting by insinuating that she was not doing her job correctly. Podgorniak noted that plaintiff was "just consistently argumentative about what we were trying to explain to her." Podgorniak instructed plaintiff to calm down and stated that they could not continue their conversation like this. When the conversation grew worse, Podgorniak decided to stop the meeting and discharge plaintiff.
Podgorniak noted that plaintiff had constantly complained and argued about the payroll policy and procedure since the beginning of her employment. When asked about the specifics of plaintiff's complaints, Podgorniak stated that plaintiff kept insisting that she wanted to be paid overtime for working more than 8 hours in a single day rather than for working more than 40 hours a week. Podgorniak testified that management had explained Metro's overtime policy and Illinois law to plaintiff several times; however, plaintiff continued to disagree with the policy and raised the same questions over and over again. Podgorniak denied that plaintiff ever mentioned that she was going to the Department of Labor prior to her termination, and denied that she ever discussed the Labor Board with plaintiff during the meeting. Podgorniak testified that she was not aware of plaintiff taking any action with the Department of Labor after her termination. However, Podgorniak noted that she believed plaintiff had called Lynn Michelson, Metro's vice president of human resources, and "mentioned something about Labor policy or something, or something she was going to talk to about that."
Samantha Carter, Metro's assistant general manager, testified that she sat in on the meeting between Podgorniak and plaintiff. Carter noted that during the meeting, plaintiff was very argumentative and "wasn't receptive at all." Carter testified that plaintiff "became irrational and we just pretty much cut our ties because we couldn't get through to her at all." Carter also testified that during the conversation, plaintiff wanted to argue about Podgorniak's tone of voice rather than discuss the payroll issue.
Plaintiff testified that as soon as she walked into Podgorniak's office, Podgorniak began screaming and yelling at her because she had told Smith, in the previous meeting, that she was going to complain to the Department of Labor. According to plaintiff, she tried to explain her concerns regarding the overtime policy to Podgorniak. Podgorniak, however, kept "harping on the fact that I told [Smith] that I would talk to the labor board just to make sure that I am being paid correctly." After explaining the payroll policy, Podgorniak instructed plaintiff that she was never to speak to management, go to the payroll clerk, or call the corporate office again. Podgorniak then turned to Carter and Smith and stated: "I just want to get rid of her; I just want to get done because she's not the type of employee we want with our company that threatens to go to the Labor Board." Plaintiff noted that she had never received any written or verbal warnings regarding insubordination prior to January 9, 2003. After her termination, plaintiff filed a claim with the Department of Labor regarding Metro's overtime policy, which was still under investigation at the time of the hearing.
On May 19, 2003, the referee found that plaintiff had been discharged for misconduct and was, therefore, ineligible for unemployment benefits. In reaching her decision, the referee observed that:
"The claimant was repeatedly told by management to stop interrupting and yelling and allow management to speak. Management was attempting to explain the employer's overtime policy to the claimant but, because the claimant disagreed with the policy, she continued to argue with management. * * * When the claimant would not obey management's direction to calm down, stop yelling and allow management to speak, she was discharged. The claimant's actions were misconduct under the law."
Plaintiff appealed the referee's decision to the Board, alleging that the record failed to establish that she was ever insubordinate during her employment with Metro. The Board affirmed the denial of benefits on August 29, 2003, finding that the referee's decision was supported by the record and the law, and incorporating it as part of the Board's decision.
On September 12, 2003, plaintiff filed a pro se complaint for administrative review in the circuit court of Cook County. The circuit court affirmed the decision of the Board.
On appeal, plaintiff contends that she did not engage in misconduct as defined by section 602A of the Act, and that the referee's findings were against the manifest weight of the evidence. This court reviews the final decision of the administrative agency, rather than the circuit court's decision. Lehman v. Department of Children and Family Services, 342 Ill. App. 3d 1069, 1071 (2003).
The weight to be given the evidence and the credibility of witnesses are within the province of the administrative agency, and its findings and conclusions of fact are considered prima facie true and correct. Jackson v. Board of Review, 105 Ill. 2d 501, 513 (1985); Greenlaw v. Department of Employment Security, 299 Ill. App. 3d 446, 448 (1998). The function of the reviewing court is to determine whether the findings and decision of the Board are against the manifest weight of the evidence; the reviewing court may not reweigh the evidence. Jackson, 105 Ill. 2d at 513; Greenlaw, 299 Ill. App. 3d at 448.
However, mixed questions of law and fact that require an examination of the legal effect of a given set of facts are reviewed for clear error. Oleszczuk v. Department of Employment Security, 336 Ill. App. 3d 46, 50 (2002). This standard falls between the manifest weight and de novo standards of review and provides for the necessary deference to the agency's experience and expertise. Oleszczuk, 336 Ill. App. 3d at 50. Thus, an agency's decision will be deemed clearly erroneous only where a review of the record leaves the court with a definite and firm conviction that a mistake has been committed. Oleszczuk, 336 Ill. App. 3d at 50-51.
An employee who is discharged for "misconduct" as defined in section 602A of the Act is ineligible for unemployment benefits. Kiefer v. Department of Employment Security, 266 Ill. App. 3d 1057, 1060 (1994). The Act makes it clear that three requirements must be met before an employee may be disqualified from receiving benefits based on misconduct: (1) the employee must have violated a reasonable work rule or policy of the employer connected with the employee's work; (2) the violation must be deliberate and wilful; and (3) the violation must have harmed the employer or was repeated by the employee despite a warning or other explicit instruction from the employer. Kiefer, 266 Ill. App. 3d at 1061.
In Oleszczuk, the plaintiff was discharged for insubordination because she yelled at her manager after being accused of lying about whether or not she learned certain tasks at a training session. See Oleszczuk v. Department of Employment Security, 336 Ill. App. 3d 46 (2002). The plaintiff applied for unemployment compensation benefits and was denied by the referee and Board because she had been fired for misconduct. Oleszczuk, 336 Ill. App. 3d at 49. The circuit court affirmed the decision. Oleszczuk, 336 Ill. App. 3d at 49. In reversing the circuit court order, we held that: "[a] single flurry of temper between a worker and a supervisor may be enough to warrant discharge in an at-will relationship. But it is not enough to deny unemployment benefits." Oleszczuk, 336 Ill. App. 3d at 52. We have held that "arguing with a supervisor without using abusive language or threats is not sufficient to establish discharge for misconduct under the Act." Oleszczuk, 336 Ill. App. 3d at 52.
In Gee v. Board of Review, 136 Ill. App. 3d 889 (1985), the plaintiff asked her supervisor if she could leave work an hour early. When the supervisor refused, the plaintiff, who had previously received verbal warnings about loud outbursts in the office, "became irate, yelled and insisted that she would leave early." Gee, 136 Ill. App. 3d at 891. She was then discharged for insubordination. According to the supervisor, the plaintiff's disruptive behavior was a repetitive situation and she had previously been given five verbal warnings, including a final warning a week before her termination. Gee, Ill. App. 3d at 891-92. The referee and Board found that the plaintiff was discharged for misconduct, and the circuit court reversed the Board's decision. Gee, Ill. App. 3d at 893-94. In affirming the circuit court, we concluded that the plaintiff's acts did not "rise to the level of justification for discharge due to misconduct so as to deprive plaintiff of her statutory right for unemployment compensation where she merely argued with her supervisor in his office without using abusive language or threatening to disobey a work order." Gee, 136 Ill. App. 3d at 896. We held that "[b]eing argumentative is not sufficient for discharge for misconduct." Gee, 136 Ill. App. 3d at 896.
Here, similar to Oleszczuk and Gee, the record reflects that plaintiff was discharged for insubordination after she became irate and argued with Podgorniak regarding Metro's overtime policy. Even accepting as true that plaintiff was discharged after a "pattern of problems" in trying to explain Metro's overtime policy to her, arguing with a manager, without using abusive language or threats, does not constitute misconduct as defined by section 602A of the Act, therefore, we cannot deny the plaintiff her unemployment insurance benefits. See Oleszczuk, 336 Ill. App. 3d at 52; Gee, 136 Ill. App. 3d at 896. Nothing in the record suggests that plaintiff used abusive, derogatory or defamatory language while arguing with her managers; or made threats to disobey a work order. Instead, the evidence in this case shows that plaintiff, who did not understand or accept Metro's policy, was merely arguing with Podgorniak about the number of overtime hours she had actually worked and been paid for. While plaintiff's "pattern of problems" understanding or accepting Metro's overtime policy may have been sufficient to warrant discharge in an at-will relationship, plaintiff's conduct does not constitute misconduct as defined by Section 602A of the Act, so she has a statutory right to her unemployment benefits. See Oleszczuk, 336 Ill. App. 3d at 52; Gee, 136 Ill. App. 3d at 896.
In light of our holding that plaintiff's conduct does not constitute misconduct as defined by section 602A of the Act (820 ILCS 405/602A (West 2002)), we need not consider defendant's second contention that the overwhelming weight of the evidence showed that she was actually terminated for threatening to report her employer to the Department of Labor rather than for insubordination.
Accordingly, we reverse the order of the circuit court and the decision of the Board and remand with directions that the Board comply with this order. See Oleszczuk, 336 Ill. App. 3d at 52.
Reversed and remanded with directions.
NEVILLE, J., with CAMPBELL, P.J., and GALLAGHER, J., concurring.