Update: July 24, 2008
This is what it is like being “Black in America.”
America believes Blacks are not supposed to be intelligent. Blacks are not supposed to defend themselves from the onslaught of institutional racism and prejudice. Blacks are supposed to lie down and be walked on. Black truth does not matter, when the “establishment” uses their “unsupported” legal jargon, picking and choosing what language and testimony they want to use, which allows them to justify their indifferent decisions. The claimant is punished for being “Black in America.”
On July 24, 2008 I received a copy of the State of Illinois, Department of Employment Security’s decision in this matter. A decision made by J. Hunt Bonan, Stanley L. Drassler Jr., William J. Nolan, Constantine M. Zografopoulos, and Elwood Flowers Sr. denies the claimant her right to unemployment compensation. This “partial” panel determined that the claimant was not sick because she did not say she was sick but rather stated she was tired. This “partial” panel also states “…Accordingly, after a review of the record, including the testimony and the evidence presented before the Referee and the records of the Department of Employment Security, and due deliberation having been had thereon, we find that the Referee’s decision is supported by the record and the law.” This “partial” panel does not cite any case law in its decision, yet they report “…and the law”. What law? There’s no citation of law.
There was no consideration or mention of the “record” submitted by the claimant. This “partial” panel did make one reference of the claimant’s submitted “record” in the beginning of their decision. This “partial” panel states “…We note that on page 24 of the “transcription of shorthand notes” is the notation, “Tape stopped. Did not get the answer.” What does this have to do with this matter? If they make this note, why not note the other statements? This statement gives creditability to the transcription of the claimant.
The reason, “Black in America.” Blacks will continue to be treated like this if no one objects. Blacks must stand up and fight institutional racism and prejudice. This “partial” panel may attempt to inform us that some of the individuals named here are black. How “black” are they? Are they prepared to lay their careers on the line for being “Black in America.” I do not think so. Just because their color is black does not mean they are black.
You, the reader, can write about your “institutional” racism, prejudice and indifferent treatment. Start a “blog.” It is easy. It is free. Write about your experiences with institutional racism, prejudice and indifferent treatment. There is power in numbers. Be real. Be “Black in America.”
The claimant’s statement below was not even considered in this matter. The final statement, in small print, of this “partial” panel’s decision states “If you are aggrieved by this decision and want to appeal, you must file a complaint for administrative review and have summons issued in circuit court within 35 days from the above mailing date. You may only file your complaint in the circuit court of the county in which you reside or in which your principal place of business is located….”
Now the State of Illinois, Department of Employment Security wants a person who is seeking unemployment compensation to spend money to litigate in a court of law. Not only is this an outrage, it is a disgrace. If one did litigate, what would they litigate? There was no case law cited by this “partial” panel. This means when one litigates their case, they have no idea what case law they are litigating against.
For example, this “partial” panel speaks about hearsay evidence. They report “…The claimant’s representative objects to some heresay testimony offered by the employer at the hearing. Hearsay is defined as a statement, including a document, made outside the hearing, offered to prove the truth of the matter asserted. If objected to, heresay may not be considered by the Referee or the Board of Review unless it falls within a recognized exception to the rule excluding heresay evidence. The fundamental basis for excluding heresay evidence is the lack of an opportunity to test the creditability of the statement through cross-examination. If no objection is made to the statement as being heresay, the statement will be admitted into evidence, however, it will only be given its natural probative value and the fact that it is a heresay statement may effect the weight that may be given to the statement. The claimant’s representative made no objection.” This is a bold face lie. As can be seen in the body of appeal below, the claimant’s representative continually objected to the heresay evidence presented in this matter. Notwithstanding, there is no case law to support this “partial” panel. This is what happens when you are “Black in America.”
STATE OF ILLINOIS
DEPARTMENT OF EMPLOYMENT SECURITY
APPEALS DIVISION
BOARD OF REVIEW
33 SOUTH STATE STREET, 9TH FLOOR
CHICAGO, ILLINOIS 60603
APPEAL OF DECISION
I, Randi, was an employee of The Mentor ABI Group, Center for Comprehensive Services. I was terminated from my employment on or about March 18, 2008. The employee warning notice, dated March 20, 2008, which determined my termination states in part “…Termination…attendance…staff did not work the second shift of her double that she agreed to work.”
Randi filed a timely unemployment insurance claim. According to the Illinois Department of Employment Security (IDES), “…The claimant was discharged from Center for Comprehensive Svcs because of an unauthorized absence of a scheduled work shift. The claimant had received prior warnings concerning her attendance.”
Randi filed a timely appeal. On May 23, 2008, a telephone hearing was conducted. The following individuals participated in this telephone hearing: Randi (employee), Michael Fowler (employer representative), Bradley Guthrie (employer representative), Ms. Himmel (employer representative) and David Ott (Illinois Department of Employment Security Hearing Referee and Administrative Law Judge). On or about May 28, 2008, Mr. David Ott issued a decision affirming the determination of the local office.
On June 15, 2008, Randi files a timely “Right of Further Appeal” on the decision of David W. Ott.
Randi employs and enjoins C.L.I.C.K. Services, NFP, specifically, Fred L Nance Jr. to advocate and write her appeal/opinion in this matter. This advocacy is part of this case and the appropriate paperwork is on file with the Illinois Department of Employment Security (IDES). I, Randi, also give C.L.I.C.K. Services, NFP, specifically, Fred L Nance Jr. permission to post this appeal/opinion on his website at http://clickforjusticeandequality2.blogspot.com/.
Individuals mentioned in this writing are: Randi is a black female. Mr. David Ott is a white male. Mr. Michael Fowler is a white male. Mr. Bradley Guthrie is a white male. Ms. Himmel is a white female. Rodrick is a black male.
Finding of Fact by IDES
Mr. Ott reports, in part: “The claimant was a life skills therapist from May 16, 2005 to March 18, 2008, her last day of work…The claimant had a history of attendance problems about which the employer warned her…On the final occasion that resulted in her discharge she was scheduled to work a double shift. She first had to drive a resident to a doctor’s appointment in Kentucky. When she returned she had to work at a residential facility 3:00 pm – 10:00 pm. When she did not report for work at the facility her supervisor called her cell phone, reaching her at another employer residential facility. She was cooking dinner for the residents. She said she did not report for work at her scheduled facility because she was tired from having to drive the resident to his doctor’s appointment. The supervisor told her the facility was understaffed so she had to report to the facility right away. When she asked what would happen if she did not report for work he said she would be disciplined. He again told her to report for work. Again she refused. He told her to leave the facility where she was, which she did…Insubordination is the refusal by an employee to comply with a reasonable directive of the employer. The claimant’s actions constituted insubordination. The supervisor’s request that she report for work was reasonable because the residential facility was understaffed. The claimant’s explanation that she was not going to work because she was tired was not a reasonable excuse for failing to follow her supervisor’s directive. She could not have been all that tired because she was helping out at another residential facility by cooking dinner…Another consideration here is that every employee must report to work unless she has permission to be off or if her absence was due to circumstances beyond her control…Therefore, her discharge was for misconduct within the meaning of Section 602A. She is not eligible for unemployment benefits because of the disqualification provision in Section 602A.”
The Testimony
Hearing Officer: What happened after March 18 was she suspended without pay, what happened? (L. 77-78)
Ms. Kimmel: When we conduct an investigation, we may pull someone off shift until we complete documentation. (L. 81-82)
Hearing Officer: Go head Ms. Kimmel, you take them off the schedule during your investigation and then are they, are they, they are not being paid during that time. (L. 89-90)
Ms. Kimmel: No, if someone is not working they are not paid, unless the investigation is unfounded. (L. 91-92)
Randi was never told she was under investigation before she was terminated. Randi should have been on schedule and being paid.
Ms. Kimmel: On March 18th Randi was scheduled to work at a Woodlake Residence from the 3:00pm to 10:00pm which is indicated on the Woodlake schedule, Randi had pickup what is known as a Transport that morning to take one of our participants to a doctor’s appointment. Randi was still scheduled to work that evening at Woodlake, and she did not work that second shift. (L. 96-100)
Hearing Officer: Why didn’t she work, I mean she didn’t show up or she said that she wasn’t going to work? (L. 101-102)
Ms. Kimmel: Yes, she said that she was too tired to work, Mr. Brad Guthrie, the shift supervisor, contacted her and spoke with her at 7:00pm, on March 18th, and reminded her that she was still on the shift and that they needed her at Woodlake, that there were only two staff members working and that her presence was needed. Randi asked what would happen if she didn’t show up. He stated that it would most likely result in a write up, or some type of disciplinary action. Randi chose to not complete her shift. (L. 103-109)
Mr. Nance: I just want to note that she said that Randi told her that she was too tired to work and that constitutes sick, and I want that on the record. (L. 112-113)
Ms. Kimmel was not present during the conversation between Mr. Guthrie and Randi. Ms. Kimmel’s testimony here is heresay.
Hearing Officer: Mr. Nance let me explain something here, you are allowed to ask questions and make objections however, you can not testify because you are not under oath, if you want me to put you under oath, I will be glad to do so. (L. 114-116)
Mr. Nance: Then put me under oath. (L. 117)
Hearing Officer: OK, Mr. Nance do you solemnly swear or affirm that any testimony that you may give in this case will be the truth, the whole truth, and nothing but the truth? (L. 118-120)
Mr. Nance: I do affirm I need to be under oath because I intend to site case law for Illinois. (L. 121)
Mr. Ott should have sworn me in when he swore in the other participants in this
matter.
Hearing Officer: Now has she ever had any previous problems, meaning refusing to work her scheduled shift? (L. 126-127)
Ms. Kimmel: Yes sir, she had multiple warnings regarding her attendance since September 12, 2005. (L. 128-128)
Randi has not refused to work. Ms. Kimmel did not answer the question.
Mr. Nance: Mr. Ott, I want to object, they have a policy which states that the employees are allowed three unexcused absences within the year. (L. 130-131)
Hearing Officer: Ok, that is between Randi and the employer. I am only determining if Randi will receive Unemployment benefits. (L. 132-133)
This is a biased and prejudicial statement by Mr. Ott. I thought the reason for
having this hearing was to assess the material facts, to get to the conclusion. This is a
very important point I make about the employer’s unexcused absence policy.
Hearing Officer: I see I also have something regarding an order here, on August 25, 2006; did she get a warning at this time? (L. 168-169)
Ms. Kimmel: Yes, a written warning for not showing up for her 4pm-10:00pm shift on August 18, 2006, the Supervisor contacted her and was told by Ms. Nance that she would be there at 6:00pm, and she later called back and stated that she had a headache and would not be in. (L. 170-173)
Hearing Officer: We will call it a sick call off. And then I have is February 12, 2008, what was that all about? (L. 174-175)
Ms. Kimmel: Did not follow protocol when calling off. At that time Randi was what was known as a PRN employee. The attendance policy of PRN employee is responsible for finding coverage when they will not be in to work. Randi failed to find anyone to cover for her absence. (L. 176-179)
Hearing Officer: How about you Mr. Nance, any questions for Ms. Kimmel. (L. 189)
Mr. Nance: Yes, Ms. Kimmel do you have a policy that states that an employee are allowed three unexcused absences in a year? (L. 190-191)
Ms. Kimmel: Yes sir (L. 192)
Mr. Nance: Do you understand that Department of Labor Law states that a person does not have to produce a reason for being sick unless they are off seventy two (72) hours? (L. 193-195)
Ms. Kimmel: I know what our attendance policy states. (L. 196)
Hearing Officer: She is not responsibility for the Department of Labor; she is only responsible for the employer’s policy whether it is right or wrong. (L. 197-198)
This is a ludicrous statement from Mr. Ott. Every employer is responsible for following the laws of the Department of Labor. This is where Mr. Ott is biased and prejudiced toward Randi again. This call off is no different than the absence on March 18, 2008 where Randi stated she was sick from the 10-hour transport of the participant to Kentucky, to which Randi was terminated for being sick. Also, the employer’s policy here fly’s in the face of Labor laws. An employee should not have to find a replacement employee when they call off sick.
Hearing Officer: Mr. Guthrie lets go to you testimony, what happen on March 18, 2008? (L. 200)
Mr. Guthrie: Randi was scheduled, I called talked to Randi about seven o’clock to determine if she was coming to work her evening shift. She said that she was tired from doing the transport earlier. I told her that we were understaffed and that we needed her to come in. (L. 201-204)
Hearing Officer: You just told me that she stated that she didn’t know that she was supposed to work that 3:00pm-11:00pm shift. How did you know that she knew that she was supposed to work that shift? (L. 210-212)
Mr. Guthrie: We put the schedule out a week in advance. (L. 213)
Hearing Officer: Then it was on the schedule then? (L. 214)
Randi reports later in this testimony that she did not know she was on the schedule
to work this day because Randi did not come to work until March 18, 2008.
Reportedly, this schedule did not come out until Friday, March 14, 2008. Randi
never saw the schedule. Randi informs Mr. Guthrie she is sick here. An employee
does not have the responsibility of caring about whether an employer is
understaffed. Is this supposed to make her not sick anymore?
Hearing Officer: You said that you called her at 7:00pm which was four hours after her shift started, why did you call her? Because she wasn’t at work? (L. 216-217)
Here, Mr. Ott provides the employer’s representative with the answer.
Mr. Guthrie: She wasn’t back from her transport yet. (L. 218)
Hearing Officer: Oh, what made you call her? (L. 219)
Mr. Guthrie: She was suppose to come in, from what I understood she was suppose to be back around 4:00 or 5:00pm. (L. 220-221)
These are unfair labor practices here. Mr. Guthrie admits Randi had not come back from her transport until 7:00 pm. Randi was required and she reported to the facility to pick up the participant for the transport at 7:00 am. Randi returned from her transport at 6:00 pm. Randi left the facility after dropping off the transport at 7:30 pm. It is understandable that Randi was tired, sick and frustrated from this transport. If you check the weather for this day, it was raining heavily, which made the transport more difficult and frustrating.
Hearing Officer: I see, she still wasn’t back yet and you were concerned. Where did you call her then at seven pm? Where was she? (L. 222-223)
Mr. Guthrie: She was at our other residence call Bridge House (L. 224)
Hearing Officer: Was she working? (L. 225)
Mr. Guthrie: Yes, she said that she was cooking dinner for the participants. (L. 226)
Hearing Officer: I am a little confused, where she was supposed to work starting at 3:00pm is that where you called her, or are talking about a different residence? (L. 227-228)
Mr. Guthrie: She was at a different residence. (L. 229)
Hearing Officer: How did you know to call her there? (L. 230)
Mr. Guthrie: Because she did a transport for Bridge House earlier, and I called her on her cell phone and she told me that she was there. (L. 231-232)
Hearing Officer: Ok, you called her cell phone; I know that you said that she was cooking dinner. Was she actually working and on the clock, a being paid? (L. 233-234)
Mr. Guthrie: Yes (L. 235)
Hearing Officer: Did you ask her why she was working at the other location when she was supposed to be at your location. (L. 236-237)
Mr. Guthrie: Yes, that is when she told me that she was cooking dinner. (L. 238)
Hearing Officer: That explains why she was cooking at one residence, when she was scheduled to work at your residence? (L. 239-240)
Mr. Guthrie: I don’t know that is why I asked her to come over. (L. 241)
Randi was not getting paid, as Mr. Guthrie states in L. 235. Randi was volunteering her services to assist the employee who was working because this employee stated to Randi she was alone working in this house, which this is the house where Randi got the transport. Also, Randi informs Mr. Ott later in this testimony that she was not being paid as Mr. Guthrie states. As a matter of fact, Randi did her paperwork regarding the transport, signed out (clocked out) and then started cooking for the participants. Why does Mr. Ott believe he gets an answer to find Randi wrong with the statement in L. 239-240? This does not explain why she was cooking in one residence and not working in another.
Hearing Officer: She did say that she was not aware that she was scheduled to work at your residence, or that she was tired and didn’t want to work. I am trying to find out what the employer knows. She gave you an explanation as to why she was cooking at one resident when she was schedule to work at another resident? (L. 242-245)
Mr. Guthrie: No, except that she was tired (L. 246)
Hearing Officer: but if you are working at one residence, you are still tired see what I’m getting at, why my way of thinking if you are tired why would she be cooking at one residence instead of going home? Did she explain that? (L. 247-249)
Mr. Guthrie: No (L. 250)
Hearing Officer: Was she working some kind of a shift there, or did she just stop by to cook dinner for the residents as a favor, did she say what was she doing there? (L. 251-252)
Mr. Guthrie: No, she returned from the transport and began cooking. (L. 253)
Hearing Officer: Did she say what time she returned from the transport? (L. 254)
Mr. Guthrie: No (L. 255)
Why is Mr. Ott leading the witness? It appears Mr. Ott leads the witness to get the witness to change his testimony about Randi’s absence. Mr. Ott’s conversation continues to justify Randi’s inability to perform her work because she is sick, which she claimed from the beginning. Mr. Ott asks Mr. Guthrie again was Randi working. This time Mr. Guthrie admits she was not working at the other site. Randi was merely cooking assisting the other employee. This evidence so far is overwhelmingly in Randi’s favor. How could Mr. Ott miss ruling in Randi favor?
In addition, there is very important information in Lines 255 through 358. It was too wordy to insert here in this document. I will be filing a copy of this transcription from shorthand notes taken on May 23, 2008 along with this appeal writing. You will be able to review the testimony from this copy.
Mr. Nance: Mr. Guthrie, Is it normal for a person to go on a ten hour transport, a drive to another city, and come back and work another eight hour shift? Is that how you work your employees? (L. 359-361)
Mr. Guthrie: I wouldn’t say that was normal, however, she was scheduled to work a sixteen hour shift. (L. 362-363)
Randi had no knowledge she was scheduled to work a 16-hour shift, especially after a transport from Illinois to Kentucky in hazardous and rainy weather.
Hearing Officer: You said that you were on a ten hour trip and that you got back between 6:00 or 6:30pm. (L. 365-366)
Randi: Yes sir, I got back, there was a flood in Carbondale and when I found out that I was scheduled for a double, most of the employees that were scheduled that night had call off. I was at Bridge House and there was a co-worker, April Heath working by herself. I got a call from Brad telling me that everybody had called off and that he needed me at Woodlake. There was already an employee name Shree and him there, I do not know Shree’s last name working. And April stated that she didn’t want to work by herself, we had some trouble clients at the time that would start fights, even though it was a high functioning house. After I got off the phone the first time, I told him that I was tired, I wasn’t aware that I was working a double. He asked me if I had seen the schedule, I said no I had not seen the schedule because I was out of town the week end when the schedule was put out. I told Brad that I would call him back and let him know if I would come over to Woodlake. I didn’t call him back, he called me. Mean while April asked if I would help fix dinner for the kids, Brad called me in the middle of fixing dinner, I told him that I was too tired to come over to Woodlake, he said OK, I asked him what would be the consequences, he said most likely it would be a write up, I said OK, I’m going to call Sherry, which is the Program Director, and I’m going home. I clocked out and went home. Technically I was not clocked in, we have to fill out a sheet when we do transport and write in the time. (L. 367-385)
Hearing Officer: Right, did you put in for the time you were at Bridgeview or whatever house you were in? (L. 386-387)
Randi: No sir, I ended my time at 6:30pm which was the time we got back from the transport. (L. 388-389)
Hearing Officer: OK, did you call the Director like you said you would? (L. 390)
Randi: Yes sir I did (L. 391)
Hearing Officer: What did you say to the Director, and what did she say to you? (L. 392)
Randi: She did not answer I left her a voice mail, and explain the situation to her and told her I was calling her because I did not want it to result in a write up. I was unaware that I was working a double. (L. 393-395)
Mr. Nance: I want to make a statement about what the law is Mr. Ott. And what governs 602A can I do that please. (L. 433-434)
Hearing Officer: I know what 602A is all about, I done probably thousands of cases involving that law. (L. 435-436)
Mr. Nance: I am talking about the Appellate court case, I have a right to say this don’t I? (L. 437)
Hearing Officer: If you have an Appellate Court case state it. (L. 438)
Mr. Nance: 602A, a deliberate and willful violation of a reasonable rule or policy of the employee unit, governing an individual behavior and the performance of her work, provided that such violation have harmed the employing unit or other employees or has been repeated by the individual despite a warning of explicit instruction from the employing unit, 820ILCS405/602A, West 1998. This deification of misconduct reflect a legislative intent that a person should receive unemployment benefits even though they were discharged for incapacity, carelessness, inadvertence, negligent, or inability to perform the assigned task. It has been held that the act denies unemployment benefits only if (a)The employee had a reasonable work rule, (b) which the employee deliberately, and willfully violated and (c) the violation either harm the employee or other employees or was repeated despite a warning of instruction to cease the conduct. A single flurry of temper between and employee or supervisor may be enough to warrant discharge in an at-will relationship, but not enough to deny unemployment benefits.
The employer’s policies are very confusing, first, they say that you are allowed three unexcused absences in a year, However, Ms. Kimmel only sites one in 05, two in 06 and one in 08. And all with the exception of the one in 9/12/05, I give her that, all the others were sick call off. Yet they want to use that as a vehicle to terminate Randi. I think we are dealing with mixed questions of law also. Mixed question of law are fact question that requires an examination of legal effect of a given set of facts are reviewed for clear error, a standard in between the manifest weight and de novo standards. (L. 439-460)
Hearing Office: That is more for the Board of Review or the Circuit Court not so much for me. (L. 461)
Mr. Nance: Deference to the agency expertise is inappropriate here, where the department is charged with determining whether the employee behavior that led to her termination amounted to misconduct. (L. 462-464)
Hearing Officer: That is covered when an appeal is given to the Circuit Court. (L. 465)
Mr. Nance: I have a problem. This company has a policy, that I think flies in the face of the laws for the Department of Labor. When they say that when Randi calls in sick, she is supposed to call around to find someone to take her place? (L. 466-468)
Hearing Officer: That wasn’t a problem at the end. That was not one of the problems which led to her termination. (L. 469-470)
Mr. Nance: That is what they site sir. Let me tell you about February 12, 2008 warning. (L. 471)
Hearing Officer: That was not a reason for her discharge, her failure to secure replacement was not a basic for her discharge, as I understood the testimony today. (L. 472-473)
Mr. Nance: Ms. Kimmel stated that it was a part of it. (L. 474)
Hearing Officer: That was prior warnings I just went into the background of the warnings. (L. 475)
Mr. Nance: OK, the last day of work March 18, 2008, Ms. Kimmel admitted that Randi told her as well as Mr. Guthrie that she was too tired to work, that constitute being sick. (L. 476-478)
Hearing Officer: But she was cooking dinner. (L. 479)
Mr. Nance: Yes, she was cooking dinner. However, she was assisting a co-worker, that was having a hard time with a participant. Randi stated that she clocked out at 6:30pm, and that she was not on the clock. I suggest that Randi already knew that she was tired and sick after that twelve hour ride in the storm, and that she had notified the appropriate authority, Brad gave her the choice of coming to Woodlake or going home. I am suggesting what the company did by stating the March 18 incident, that they violated the Department of Labor Law by attempting to force Randi to work after reporting in that she was too tired to work a double shift. It takes seventy- two hours before presenting a doctor’s statement. All the employee is required to do is call in, and state that they will not be coming to work they do not have to give a reason. That is the Department’s Law. All employers must follow the rules/laws established by the Department of Labor, they may write their own policy, however, it must line up with the Department of Labor laws. One more issue. This March 20, 2008, that Mr. Fowler, let me go back to February 12, for this same incident, there was two warnings for the same incident. May I suggest that someone attempted to correct something and that Randi was not present and that she never saw the warning because it states that she refused to sign the warning? Someone signed the warning it looks like Mr. Fowler, one he signed on February 14th and one he signed on February 15th for the February 12th incident. Sir, there is something inappropriate about the documents. And what he puts on the second document February 15th, he states that she did not follow protocol when calling off shift that is all he stated, no facts were mentioned. At the bottom of the warning he stated staff will find courage or follow protocol when calling off shift. Earlier you stated that finding coverage was not part of the discharge, however, it must be a factor in the reasoning for the discharge if they are presenting it as evidence. Even though they didn’t talk about it, it is presented as evidence against Randi. Why did Mr. Fowler have to write? I would like to redirect, May I. (L. 480-508)
Hearing Officer: After you have finished questioning Randi. (L. 509)
Mr. Nance: I am finish questioning Randi. (L. 510)
Hearing Officer: Does anyone else wish to question Randi? (L. 511)
All: No (L. 512)
Don’t you find it strange that the employer’s representatives did not want to
question Randi? I think it is, even though Mr. Ott is doing very well protecting the
employer.
Hearing Officer: Mr. Nance you wanted to ask Mr. Fowler some follow up question? (L. 513)
Mr. Nance: Yes, Mr. Fowler on February 12th you wrote two warnings against Randi the first one dated and signed by you February 14th, stated that staff did not follow protocol when calling off shift, staff had a dispute with supervisor the night before and gave no reason for calling off shift. Mr. Fowler are you saying that your employee has to give you a reason for calling off shift? (L. 514-518)
Mr. Fowler: Yes (L. 519)
Mr. Nance: Are you also saying, at the bottom of the warning where it states improvement required staff will find coverage and/or follow protocol when calling off shift. Mr. Fowler, are you saying that when they call off sick they have to find someone to cover for them when calling off sick? (L. 520-523)
Mr. Fowler: Yes (L. 524)
Mr. Nance: Mr. Fowler on February 12th you signed another warning against Randi, and dated it February 15th, on which you wrote as fact,” did not follow protocol when calling off shift”. And, improvement required,” staff will find coverage”. Why did you find it necessary to write two warnings? (L. 525-528)
Mr. Fowler: I actually took that out. The first one I took out of the file. (L. 529)
Mr. Nance: You took that out; actually you did not take it out of the file because it was given to me and the Judge as evidence. OK, if you took the February 12th out then the one for February 15th the one remaining in the file “states did not follow protocol when calling off shift” what are we suppose to think regarding that statement, there are no facts there? Mr. Fowler did you ever present Randi with the warning? When you wrote employee correction action, do you let the employees know that they are being disciplined? Do you let them see the corrective action? (L. 530-537)
Mr. Fowler: Yes (L. 538)
Mr. Nance: Did Randi see the write up for February 15, and/or the write up for February 12th? (L. 539-540)
Mr. Fowler: No (L. 541)
Mr. Nance: Don’t you think that it is inappropriate for you to write a warning on an employee and not show them what is written on them? (L. 542-543)
Mr. Fowler: It is the same warning. (L. 544)
Mr. Nance: It is not, it can’t be the same warning when I have two different dates. (L. 545)
Mr. Fowler: I just took out a part. (L. 546)
Mr. Nance: Is that normal procedure of your company to add and/or remove facts from the warning without letting the employee know anything about it? (L. 547-548)
Mr. Fowler: No (L. 549)
Mr. Nance: Then why did you do it? (L. 550)
Mr. Fowler: I am not sure; I didn’t think that it was needed. (L. 551)
Mr. Nance: Did you do this just to get rid of Randi (L. 552)
Mr. Fowler: No (L. 553)
Hearing Officer: The prior warning in February is not critical to this decision, at least not in the detail that you are going into. There was a warning regarding not calling off on a shift is really all that concern me. (L. 554-556)
Mr. Nance: Mr. Ott this is for you, how can you say that a prior warning is not material fact? (L. 557)
Hearing Officer: It is relative (L. 558)
Mr. Nance: Now, a bogus employee warning is always a material fact, because through this testimony, an employer cannot change a document without letting the employee know it. (L. 559-561)
Hearing Officer: I know of no ruling like that (L. 562)
Mr. Nance: The Appellate Court will not allow that, even though we are not sitting in the Appellate Court and I’m trying not to go there. This has got to be a bias hearing you can’t tell me that you are going to reject testimony. (L. 563-565)
Hearing Officer: I can reject testimony that is not relative to my decision. (L. 566)
Mr. Nance: Aren’t you also required to accept testimony that refutes the charge against the individual. (L. 567-568)
Hearing Officer: Yes (L. 569)
Mr. Ott tells us here that he has made a decision before he has heard all the
testimony. Mr. Ott states that prior warnings are not material fact but he will use it
in his decision making. (L. 554-556) Mr. Ott is applying a double standard for
Randi. Mr. Ott is making the ceiling is too high for Randi. Randi will not be able to
reach it.
Hearing Officer: I am going back to Mr. Guthrie, Mr. Guthrie Randi stated that she was unaware that she was to work the second shift the 3-11pm shift on March 18th. Did she tell you that if she know about it. (L. 589-591)
Mr. Guthrie: She said that she didn’t know about it. (L. 592)
Hearing Officer: How did you know then that she knew about having to work. (L. 593)
Mr. Guthrie: Well there is a schedule book at Bridge House and she could have look at it then. (L. 594-595)
Hearing Officer: Was she working at Bridge House when the schedule was posted. (L. 596)
Mr. Guthrie: She was cooking there she could have looked at it then. (L. 597)
The employer’s representative here is inconsistent with his testimony. From the testimony here, Mr. Guthrie suggests Randi should have known at this instance she was supposed to work a double shift. Before he talked about how she should have known before her transport, to which Randi had not been to work. The employer’s representatives have suggested from the onset that Randi knew she was supposed to work a double when she asked for the transport, which is not true.
Mr. Nance: Mr. Guthrie, you stated that the schedules come out in advance? (L. 604)
Mr. Guthrie: They are general put out a week in advance. (L. 605)
Mr. Nance: When did this schedule come out? (L. 606)
Mr. Guthrie: I don’t know, I don’t make up the schedule (L. 607)
Mr. Nance: All you know is that you probably saw Randi’s name on a schedule for that house? (L. 608-609)
Mr. Guthrie: Yes (L. 610)
Mr. Nance: Was Randi scheduled to work Monday night, March 18th was a Tuesday that is the day she went on the transport, she also stated that she did not work the weekend because she was out of town, so her first day back was Tuesday. That was the first day she saw the schedule. What would make you think that she would look at the schedule to check if she was scheduled for a double on March 18th? (L. 611-615)
Mr. Guthrie: It is the employee responsibility to know when they work and what shift they are working for the week. (L. 616-617)
Hearing Officer: Mr. Guthrie, Somebody told the local Unemployment Office that Ms. Nance had agreed to work the double shift before March 18th. Do you know anything about that? (L. 618-620)
Mr. Guthrie: No (L. 621)
Hearing Officer: What about you Mr. Fowler? (L. 622)
Mr. Fowler: I spoke to Randi about it, that is the reason that her shift was to end at 10:00pm, otherwise the shift would end at ll:00pm. (L. 623-624)
Hearing Officer: When did you talk to her about the double? (L. 625)
Mr. Fowler: It was the week prior when she signed up for the transport. (L. 626)
Hearing Office: Was that the time when you talked to her about the 3:00pm-10:00pm shift and she agreed to work the shift? (L. 627-628)
Mr. Fowler: Yes (L. 629)
The employer’s representatives did not answer Mr. Ott’s question. (L. 618-620)
Hearing Officer: Randi, Mr. Fowler stated that he talked to you about a week before about working the double shift. Did he do that? (L. 638-639)
Randi: No sir, he called me Friday morning to confirm the transport. Sherry Dordie had call me and ask if I wanted to do the transport, I said yes that was what I was going to do. He said “OK, I take you off the schedule”; oh I see you are scheduled for a double”. I told him that I would do the transport but I would not work a double. (L. 640-643)
Hearing Officer: OK, that takes care of that. When you say Friday morning you are talking about March 14th? (L. 644-645)
Randi: Yes sir. (L. 646)
Hearing Officer: Any other question for Randi? (L. 647)
Mr. Nance: Randi, how would you know that you were to work a double if you weren’t there? (L. 648-649)
Randi: I wouldn’t (L. 650)
Mr. Nance: You didn’t work Monday? (L. 651)
Randi: No sir (L. 652)
Mr. Nance: So you didn’t work March 17th to see the schedule? (L. 653)
Randi: No, after talking to Mike Fowler he didn’t tell me that I was scheduled to work any other time except to work the transport Tuesday morning. (L. 654-655)
Mr. Nance: When did that question come out? (L. 656)
Randi: I will assume Friday afternoon since I talked to Mr. Fowler Friday morning. (L. 657)
Hearing Officer: Is there anything else Mr. Nance, I am about to close this hearing. (L. 661)
Mr. Nance: It appears that Mr. Fowler makes arbitrary decisions without informing anyone about the changes. He stated that he changed the time on the schedule; however, he never said that he informed Randi of the change. He changed the notice February 12th he just changes it. How could you believe anything he said because in this hearing he stated that he never informed anyone of changes made in the schedule or warning. It is my contention that Mr. Fowler created all the facts in this matter for the sole purpose of terminating Randi. (L. 662-668)
Hearing Officer: Why would he want to terminate her? (L. 669)
Mr. Nance: It is in a letter that I wrote you, regarding another employee. (L. 670)
Hearing Officer: I am closing this hearing. They employer’s witnesses may now go about their business, Thank You. (L. 671-672)
Randi’s Argument
I, Fred L Nance Jr., advocate for Randi and under the guidance of Randi, presents the following narrative in support of Randi’s claim for unemployment benefits.
The primary purpose of the Act is to provide compensation benefits to unemployed individuals to alleviate their economic distress caused by involuntary unemployment, not to benefit those who are unemployed because of their own misdeeds. Miller v. Department of Employment Security, 245 Ill. App. 3d 520, 522 (1993). Receiving unemployment insurance benefits in this state is a conditional right, and the claimant bears the burden of proving his eligibility for those benefits. Miller, 245 Ill. App. 3d at 522. There was no misdeed committed by Randi. This is clearly an erroneous decision by Mr. David Ott, Administrative Law Judge for the Illinois Department of Employment Security.
Mr. David Ott did not consider any mitigating factors on this issue. Nor did he give any credence to the “entire” testimony given by the parties. This decision by Mr. Ott demonstrates bias and prejudice toward Randi and her claim for unemployment benefits. In addition, Randi provided information and testimony bringing the employer’s supervisor Mr. Michael Fowler’s integrity and honesty in to question. Mr. Fowler wrote the employee warning notice that initiated Randi termination, suggesting misconduct on the part of Randi. There was no misconduct by Randi.
IDES’s local office states “The claimant was discharged from Center for Comprehensive Svcs because of an unauthorized absence of a scheduled work shift….” Mr. Ott turns the determination of the local office upside down when his opening statement of the issue is “Was the claimant discharged for misconduct connected with work as defined in Section 602A of the Illinois Unemployment Insurance Act?” and again when he suggest Randi was terminated because of insubordination. What is Randi defending? Is this a “catch all” tactic of Mr. Ott or IDES? This is a discriminatory practice by IDES or its administrative law judge.
Nevertheless, Section 602A of the Act 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 her work, provided that 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(A) (West 1998)
This definition of misconduct reflects a legislative intent that persons should receive unemployment benefits even though they were discharged for incapacity, carelessness, inadvertence, negligence or inability to perform assigned tasks. Washington v. Board of Review, 211 Ill. App. 3d 663, 667, 570 N.E.2d 566 (1991). It has been held that the Act denies an employee benefits only if (1) the employer had a reasonable work rule (2) which the employee deliberately and willfully violated, and (3) the violation either harmed the employer or other employees, or was repeated by the employee despite a warning or instruction to cease the conduct. DeBois v. Department of Employment Security, 274 Ill. App. 3d 660, 664, 653 N.E.2d 1336 (1995), citing Kiefer v. Department of Employment Security, 266 Ill. App. 3d 1057, 1061, 640 N.E.2d 1252 (1994), and Zuaznabar v. Board of Review of the Department of Employment Security, 257 Ill. App. 3d 354, 356, 628 N.E.2d 986 (1993). Therefore, this three-prong test for misconduct is that the employer meets all 3 standards. Mr. Ott does not include this “entire” definition in his “conclusion.” When Mr. Ott states he is not concerned with prior warnings in making his decisions, he throws these cases out the window.
Mr. Ott reports that Randi had a history of attendance problems about which the employer warned her, even though he was not concerned with prior warnings and they would not be used in his decision. The employer’s “Personnel/Attendance policy regarding unexcused absences is an unreasonable work rule. The policy states “…Employees are allowed three unexcused absences in a year. The year will be defined by the first occurrence of an unexcused absence.” Randi stated in her hearing that this policy is ambiguous due to other language following it, which could be construed as being confusing. According to the employer’s records of Randi’s absences submitted, Randi had unexcused absences on the following dates: 9/12/05, 11/16/05, 3/13/06, 8/25/06/ 9/22/06, 12/17/07, 2/12/08 and 3/18/08. Randi has not violated the employer’s unexcused absence policy. In addition, on March 18, 2008 Randi was not aware she had to work 2 shifts, which is the employer’s basis for Randi’s termination.
In addition to the above unreasonable work rule, the employer has another unreasonable work rule embodied within their Personnel/Attendance policy, which Mr. Ott conveniently left out of his “findings of fact.” The unreasonable work rule of the employer is “…staff are responsible for finding a replacement for their shift and informing their supervisor who will be covering their shift in the event of their absence.” The employer attempts to find Randi liable for not finding this replacement on 2/12/08 when it states in her “employee warning notice”, section “Improvement Required, “…Staff will find coverage…when calling off shift.” Mr. Ott sanctions this “unreasonable work rule” when he states in his “findings of fact” “…The claimant had a history of attendance problems….” What attendance problems? Randi has not violated the employer’s unexcused absence policy, even though Mr. Ott states this will not be considered in his decision making.
Randi did not deliberately and willfully violate the employer’s unexcused absence rule. On March 18, 2008 Randi informed Bradley Guthrie, Shift Supervisor of Woodlake residential, that she was tired from doing the 11 ½ hour transport earlier and didn’t want to work at Woodlake. When Randi stated she was tired from her 11 ½ hour transport, it constituted an illness or being sick. To suggest an employee cannot be sick and refuse to work violates the laws of the Department of Labor. To suggest that an employee calling in sick must find a replacement for her absence is not only an unreasonable work rule but it also violates the laws of the Department of Labor.
In addition, on or about March 14, 2008 Randi had informed Mr. Fowler when she confirmed her scheduled transport to Kentucky for March 18, 2008 that she did not know she was “scheduled” to work a double shift that day, and refused scheduling a double shift with Mr. Fowler. At that time, Mr. Fowler stated he would remove Randi from the double shift. Mr. Ott states, in part, that Randi was scheduled to work a double shift, which the 2nd shift was 3:00 pm to 10:00 pm. Mr. Ott conveniently leaves out of his “findings of fact” that Randi did not return from the transport until 6:30 pm; that Randi stated the transport was 11 ½ hours; that the drive involved being in heavy rain and inclimate weather.
Mr. Ott states in his conclusion “…Insubordination is the refusal by an employee to comply with a reasonable directive of the employer. The claimant’s actions constituted insubordination.” Randi’s actions did not rise to the level of insubordination. Randi merely stated facts when she said she told Mr. Fowler do not put her on the schedule to work a double shift on the day she does the Kentucky transport, which was the day in question here, March 18, 2008. This discussion with Mr. Fowler, at best, could be called constructive argument.
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. The courts have held that arguing with a supervisor without using abusive language or threats is not sufficient to establish discharge for misconduct under the Act. Gee v. Board of Review of the Department of Labor, 136 Ill. App. 3d 889, 896, 483 N.E.2d 1025 (1985), citing Sheff v. Board of Review, Illinois Department of Labor, 128 Ill. App. 3d 347, 470 N.E.2d 1044 (1984).
Mr. Ott suggest in his conclusion that the employer’s request that Randi report for work was reasonable because the residential facility was understaffed. If this was a reasonable request for Randi, would it not be a reasonable request to other staff who called off from that facility because of the inclimate weather? In Randi’s testimony she states that most of the staff who called off, called off because of a flood in the Carbondale, Illinois area. This flood also affected Randi, especially during the transport. The employer’s request for Randi to work was not reasonable but discriminatory. Evidently, this request to work was not made to the other employees who called off.
The record (telephone interview conducted by Mr. Ott) will demonstrate the evidence (employee warning notices) sent to Randi, included the schedule for Woodlake residence but not the Bridge house residence. The Woodlake schedule showed 4 staff on shift, yet there were only 2 working. There were only 2 people on the schedule to work at the Bridge house residence, but only 1 employee showed up for the shift. Randi stayed at the Bridge house residence to help out her co-worker April Heath, because she was the only staff on shift and requested Randi’s assistance in cooking dinner for the residents. Randi was not on the employer’s time, she was not clocked in, nor did she record those hours on her transport time sheet for pay, as Mr. Guthrie states in his testimony. Randi was doing the employer a “favor” by assisting her colleague when she was cooking while the colleague attended to a disruptive client.
Therefore, Mr. Ott’s statement “…She could not have been all that tired because she was helping out at another residential facility by cooking dinner…” has no validity to suggest Randi was not tired or sick, but rather, demonstrates Randi’s loyalty to her peers and this employer in times of stress and difficulty. I would like to see Mr. Ott go on a 100 mile/11 ½ -hour transport/trip with a mentally challenged client, and then come back to do an 8-hour shift with similar clients. If he could perform this task, then I guess we could call the employer’s scheduling of Randi for this double shift, on this day, a “reasonable” directive. There is no mention of the employee who went on the transport with Randi. Did this employee have a reasonable directive to work a double shift also? Is the treatment of Randi indifferent or racially motivated?
I believe it would be appropriate to address the 3rd prong of the DeBois test now. Did Randi’s refusal to work harm the employer or other employees, or was it repeated by her despite warnings or instructions to cease this conduct. Randi did not violate this prong of the DeBois test. By Mr. Ott’s stating the employer’s residential facility was understaffed suggests the employer’s residential facility was already compromised. Randi never knew she was supposed to work at Woodlake until Mr. Guthrie called her because she believed she had an agreement with her supervisor Mr. Fowler that he had taken her off the double shift because of the transport, so how could she be aware that she was imposing harm to her employer. Lets not leave out Mr. Ott’s statement that he will not consider “repeated warnings…” in his decision making. Mr. Ott discourages this prong of the test.
In addition, Mr. Ott states in his “conclusion” that “…The claimant’s explanation that she was not going to work because she was tired was not a reasonable excuse for failing to follow her supervisor’s directive. When Randi said she was tired, it is supported by the Washington court when it said the definition of misconduct reflects a legislative intent that persons should receive unemployment benefits even though they were discharged for incapacity, carelessness, inadvertence, negligence or inability to perform assigned tasks. Randi was not terminated because of misconduct or an unauthorized absence. If Randi was terminated for anything justifiable, it may be because of her carelessness, negligence or inability to perform assigned tasks; which the latter may be more appealing in this instant matter.
After the hearing, on or about May 26, 2008 at approximately 8:45 am Fred L Nance Jr. called Mr. Ott leaving a message stating “Rodrick text messaged Randi at 7:25 pm on May 23, 2008 stating, “So why did you pull that card.” Fred requested Mr. Ott give a return call acknowledging receipt of this call. Mr. Ott called Fred on May 26, 2008 acknowledging receipt of this call and its message.
On May 23, 2008, during the telephone hearing, Fred made reference to Mr. Fowler’s indifferent treatment and discrimination against Randi. Fred stated, Randi informed him that Mr. Fowler and Rodrick had a sexual relationship; and that, Rodrick had many more absences than Randi that Mr. Fowler had not reported to their employer as he did against Randi. Fred suggested this indifferent treatment and discrimination was a direct result of the intimate and sexual relationship Mr. Fowler had with Rodrick. Therefore, the call Randi received from Rodrick is construed as harassment and retaliatory for her testimony in this instance. Randi expressed to Fred a fear for her safety.
The house where Randi was cooking the food needed more than one staff person. This house is considered to be a “higher” functioning house by the employer. Nevertheless, the employer has a policy where even though the clients should be able to cook for themselves, there must be a staff person present. This would mean there would have to be at least 2 employees present or working in the house.
In conclusion, Mr. Fowler initiated and promoted this incident leading to Randi’s termination. Mr. Fowler’s integrity, judgment and motives are questionable here. The unexcused absence policies and procedures of the employer are not reasonable. They are subjective. Who was punished or written up when the house where Randi was fixing dinner did not show up? This house was understaffed. This charge against Randi by the employer is discriminatory and has elements of indifferent treatment.
The determination of the Local Office and Mr. Ott’s decision should be set aside. Randi should receive her unemployment benefits. Randi was unemployed from March 18, 2008 to May 12, 2008.
