                             ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




 Abbott Industries, Inc. v. Department of Employment Security, 2011 IL App (2d) 100610




Appellate Court              ABBOTT INDUSTRIES, INC., Plaintiff-Appellee, v. THE
Caption                      DEPARTMENT OF EMPLOYMENT SECURITY; BOARD OF
                             REVIEW OF THE DEPARTMENT OF EMPLOYMENT SECURITY;
                             and DIRECTOR OF THE DEPARTMENT OF EMPLOYMENT
                             SECURITY, Defendants-Appellants (Cynthia M. Mitchell, Defendant).



District & No.               Second District
                             Docket No. 2–10–0610


Filed                        June 20, 2011


Held                         Board of Review’s determination that claimant was entitled to
(Note: This syllabus         unemployment benefits, despite the absences, tardiness and recent poor
constitutes no part of the   grades in her plumbing apprentice training program that resulted in the
opinion of the court but     termination of her employment, was improperly reversed by the trial
has been prepared by the     court, since her low grades and absences were not due to intentional
Reporter of Decisions for    misconduct and the Board’s conclusion was clearly erroneous,
the convenience of the       especially in the absence of any evidence that claimant set out to violate
reader.)                     her employer’s rules regarding grades and attendance and a record
                             showing claimant was unable to comply with her employer’s rules due
                             to the need to care for her mother.


Decision Under               Appeal from the Circuit Court of Du Page County, No. 09–MR–938;
Review                       the Hon. Kenneth L. Popejoy, Judge, presiding.



Judgment                     Reversed.
Counsel on                 Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
Appeal                     Solicitor General, and Ann C. Maskaleris, Assistant Attorney General,
                           of counsel), for appellants.

                           Jason Martin Loebach and John J. Chitkowski, both of Chitkowski Law
                           Offices, of Lisle, for appellee.


Panel                      JUSTICE SCHOSTOK delivered the judgment of the court, with
                           opinion.
                           Justices Burke and Hudson concurred in the judgment and opinion.




                                            OPINION

¶1          On May 11, 2009, the Board of Review of the Illinois Department of Employment
        Security (Department) determined that the claimant, Cynthia Mitchell, was entitled to
        unemployment benefits because her absences, tardiness, and recent poor grades in her
        apprentice training program were not due to intentional misconduct. The employer, Abbott
        Industries, Inc., filed an action for administrative review. In May 2010, the circuit court
        reversed the Board of Review’s decision and denied Mitchell benefits, and the Department
        appealed. We affirm the decision of the Board of Review and reverse the judgment of the
        circuit court.

¶2                                       BACKGROUND
¶3          The following facts come from the testimony and exhibits presented at the February 24,
        2009, hearing before a Department referee. Mitchell began working for Abbott Industries,
        a plumbing company located in Bensenville, as an apprentice plumber in June 2006. She was
        enrolled in a five-year federal Department of Labor apprenticeship training program,
        pursuant to which she attended school and worked as an apprentice plumber in order to get
        her plumber’s license. The federal program, under which Mitchell held a provisional
        apprentice plumber’s license, required Mitchell to maintain at least an average grade of C in
        her courses (a 2.0 grade point average) during each six-month grading period. However,
        Abbott Industries paid for Mitchell’s courses and had its own requirements for continued
        employment, which included a grade point average of 2.5 or higher and not receiving any
        grades of D or below. Abbott Industries also had an attendance policy stating that employees
        were expected to attend school for eight hours per week and be available to work up to
        another 32 hours per week on contractor assignments. Abbott Industries advised newly hired
        apprentice plumbers of these policies and requirements during their orientation. Mitchell
        signed a form acknowledging that she was aware that Abbott Industries did not tolerate

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     excessive absenteeism, tardiness, or no call/no show.
¶4        Mitchell was absent or worked less than a full eight-hour day on 25 occasions during a
     51-week period in 2008. On December 14, 2008, Mitchell received her grades for the most
     recent six-month period. The grade point average was 2.14, and Mitchell had three Ds. Lori
     Abbott, the owner of Abbott Industries, testified at the hearing that Mitchell received the Ds
     for being absent from or tardy to school and not turning in her homework promptly. On
     December 20, 2008, Abbott Industries fired Mitchell. Abbott told the Department that the
     firing was based on Mitchell’s poor grades and poor attendance.
¶5        At the hearing, Mitchell stated that she believed that she had been fired because of her
     low grades and had not understood until the hearing that her attendance was also a basis for
     the termination. Mitchell testified that, before December 2008, Abbott had spoken with her
     once regarding her grades, during her first six-month grading period. Her school would notify
     students and employers if students were on academic probation because of grades or
     attendance. During the first four grading periods, Mitchell was never on academic probation,
     believed that her grades had been close to a 3.0 average, and had received regular raises that
     were tied to her grades. The 2.14 grade point average in the fifth grading period represented
     her lowest grades ever.
¶6        Mitchell also testified that Abbott spoke with her on only one occasion regarding her
     absences from work. At that time, Mitchell told Abbott that her absences were caused by her
     mother’s health problems and the fact that she was the primary caretaker for her mother.
     According to Mitchell, Abbott seemed compassionate and understanding during this
     conversation and did not warn Mitchell that she was in danger of being fired. In response to
     the referee’s questions, Mitchell testified that her mother was disabled and that no other
     family members were available to care for her, as Mitchell’s parents were divorced and her
     siblings were in the military and away at college. Mitchell disputed Abbott’s account of her
     absences and tardiness. Mitchell recalled being absent from work occasionally, but not 25
     times in a 51-week period, and did not recall being late to work ever, saying that some days
     she did not show up to work but that when she was working she did not arrive late.
¶7        Abbott testified that she had spoken with Mitchell and warned her on several occasions
     about her grades at school and her attendance at work. According to Abbott, she “continually
     told” Mitchell that Mitchell’s grades needed to come up. She agreed that Mitchell was not
     on academic probation, which would happen if her grades dropped below a 2.0 grade point
     average. Abbott also testified generally that she offered Mitchell help but that Mitchell did
     not take her up on the offer. Abbott did not dispute Mitchell’s characterization of the
     conversation about her absences at work, but testified that there was more than one
     conversation on the subject. Abbott also testified that Mitchell’s attendance problems caused
     her business to suffer.
¶8        The referee issued a decision finding that Mitchell was not eligible for unemployment
     benefits, because she voluntarily left the job without good cause attributable to the employer.
     Mitchell appealed the referee’s decision to the Department’s Board of Review. On May 11,
     2009, the Board of Review reversed the referee’s decision.
¶9        The Board of Review began by noting that the facts of the case did not raise an issue of


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       voluntary leaving under section 601(A) of the Illinois Unemployment Insurance Act (Act)
       (820 ILCS 405/601(A) (West 2008)). When an employee has control over whether she
       obtains or maintains a license that is legally required for her job, and she does not obtain or
       maintain that license, her employer’s termination of her may be viewed as a voluntary
       leaving rather than a discharge. Horton v. Department of Employment Security, 335 Ill. App.
       3d 537, 541 (2002). The Board of Review found that here, however, Mitchell’s grades were
       high enough to retain her provisional license because her grade point average for the most
       recent grading period was 2.14, higher than the required 2.0 average. Thus, Abbott Industries
       was not forced to discharge Mitchell for failure to maintain a necessary license, and the
       termination could not be construed as a voluntary leaving.
¶ 10       The Board of Review then considered the other basis on which Mitchell could be
       disqualified from receiving benefits under the Act, i.e., whether Mitchell had committed
       misconduct within the meaning of section 602(A) of the Act (820 ILCS 405/602(A) (West
       2008)). The Board of Review noted that “misconduct” sufficient to disqualify a worker from
       receiving benefits is defined in the statute as “the deliberate and willful violation of a
       reasonable rule or policy” of the employer, where the violation harmed the employer or was
       repeated despite a warning. Id. The Board of Review found that Mitchell had not committed
       the type of intentional disobedience that would constitute misconduct, because her absences
       and low grades were caused by circumstances beyond her control:
               “In this case the claimant worked to the best of her ability but was unable to meet the
           standards required by the employer. Although the employer may well have been justified
           in discharging the claimant, it was not shown that the claimant’s drop in grade point
           average was the result of her wilful refusal to follow instructions. The claimant credibly
           testified that she had informed the employer of her family situation which caused her
           absences from work. There was no evidence adduced to support a conclusion that the
           claimant acted in a deliberate manner to violate the employer’s rules.”
       The Board of Review accordingly reversed the decision of the referee and held that Mitchell
       was qualified to receive unemployment benefits.
¶ 11       Abbott Industries appealed the Board of Review’s decision to the circuit court, filing an
       action for administrative review. After briefing and a hearing, the circuit court reversed the
       Board of Review and held that Mitchell was disqualified from receiving benefits, because
       she had committed misconduct. Explaining its ruling, the circuit court stated,
               “The claimant was aware of the employer’s rules against being absent from work, and
           she could not make arrangements for someone else to take care of her mother, so she did
           deliberately and willfully, quote, had to take days off to handle certain situations, end of
           quote.”
       Mitchell timely appealed.

¶ 12                                      ANALYSIS
¶ 13       This appeal presents only one substantive issue for determination: whether Mitchell’s
       absences and poor grades constituted misconduct under the statute such that she is ineligible
       for unemployment benefits. Before we examine this issue, however, we pause to consider

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       the appropriate standard of review to apply.

¶ 14                                      Standard of Review
¶ 15        In reviewing a decision by an administrative agency, we must review the final decision
       of that agency. Thus, we review the decision by the Board of Review, which made the
       Department’s final determination regarding Mitchell’s claim, not the decision of the referee
       or the circuit court. Sudzus v. Department of Employment Security, 393 Ill. App. 3d 814, 819
       (2009). We apply differing standards of review depending on the type of issue for which
       review is sought. When we review factual findings of the Board of Review, we deem those
       findings prima facie correct and will reverse only if they are against the manifest weight of
       the evidence. Id. (citing City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d
       191, 204-05 (1998)). Where, on the other hand, the issue is the correctness of the agency’s
       conclusions of law, our review is de novo. Id. Finally, where the determination is a mixed
       question of fact and law, we apply the “clearly erroneous” standard and will reverse only if
       our review of the record and the agency’s determination leaves us with the “definite and firm
       conviction” that the decision was a mistake. (Internal quotation marks omitted.) Id. at 820
       (quoting AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d
       380, 393 (2001)).
¶ 16        “The question of whether an employee was *** terminated for misconduct in connection
       with his work involves a mixed question of law and fact, to which we *** apply the clearly
       erroneous standard of review.” Id. at 826. Abbott Industries argues that the issue is a legal
       one and so we should apply de novo review, citing older cases that rely on Grigoleit Co. v.
       Department of Employment Security, 282 Ill. App. 3d 64, 71 (1996). See Wrobel v.
       Department of Employment Security, 344 Ill. App. 3d 533, 536 (2003) (citing Grigoleit);
       Caterpillar, Inc. v. Department of Employment Security, 313 Ill. App. 3d 645, 653 (2000)
       (citing Grigoleit); Grigoleit, 282 Ill. App. 3d at 71. We reject this argument. Since Grigoleit
       was decided, the Illinois Supreme Court has clarified the definition of mixed questions of
       fact and law and repeatedly affirmed the application of the “clearly erroneous” standard to
       such questions. In City of Belvidere, 181 Ill. 2d at 205, the supreme court explained that a
       mixed question of fact and law is one in which the court must determine whether a certain
       set of facts is sufficient to produce a given legal effect. In AFM Messenger Service, 198 Ill.
       2d at 391, the supreme court expanded upon that explanation and noted that the
       determination of whether the facts in a particular case satisfied a given statutory requirement
       was an example of a mixed question of fact and law. Id. (quoting Pullman-Standard v. Swint,
       456 U.S. 273, 289 n.19 (1982)). The question of whether, in a particular case, the facts found
       by the Board of Review amount to misconduct under the statutory definition of that term is
       similarly a mixed question of fact and law. This is the approach taken in more recent
       unemployment benefit cases involving the issue of misconduct, where the courts have
       applied the “clearly erroneous” standard. See Phistry v. Department of Employment Security,
       405 Ill. App. 3d 604, 607 (2010); Sudzus, 393 Ill. App. 3d at 819; Hurst v. Department of
       Employment Security, 393 Ill. App. 3d 323, 327 (2009); Manning v. Department of
       Employment Security, 365 Ill. App. 3d 553, 557 (2006) (rejecting argument that
       determination of whether employee’s actions amounted to misconduct was legal conclusion

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       subject to de novo review and finding that “clearly erroneous” standard applicable to mixed
       questions of fact and law was proper standard); Oleszczuk v. Department of Employment
       Security, 336 Ill. App. 3d 46, 50 (2002); cf. Czajka v. Department of Employment Security,
       387 Ill. App. 3d 168, 173 (2008) (citing Grigoleit but applying “clearly erroneous” standard,
       not de novo standard). To the extent that this court’s previous decision in Caterpillar, which
       relied upon Grigoleit, is to the contrary, we depart from that position and hold that the
       question of whether an employee committed misconduct under the Act is a mixed question
       of fact and law subject to the “clearly erroneous” standard.

¶ 17                             Did Mitchell Commit Misconduct?
¶ 18        We now turn to the question of whether the Board of Review erred in concluding that
       Mitchell did not engage in misconduct. As we have noted, the term “misconduct” is defined
       in the Act as (1) “the deliberate and willful violation” of (2) a reasonable rule or policy of the
       employer where (3) the violation harms the employer or is repeated after a warning. 820
       ILCS 405/602(A) (West 2008). No dispute is raised regarding the second and third
       requirements: the existence and reasonableness of Abbott Industries’ policies regarding its
       apprentices’ grades and attendance, and the harm to Abbott Industries flowing from the
       violation of those policies. Nor is there any question that Mitchell violated Abbott Industries’
       policies through her low grades and absences. The sole issue is whether Mitchell’s absences
       and low grades were “deliberate and willful” such that they constituted misconduct under the
       Act. The Board of Review held that they were not, because they were not the result of a
       deliberate decision by Mitchell to violate Abbott Industries’ rules. We examine whether this
       conclusion was clearly erroneous.
¶ 19        In construing the requirement that an employee’s violations of the employer’s rules must
       be “deliberate and willful,” courts have repeatedly held that this language reflects the General
       Assembly’s intent that only those who intentionally act contrary to their employers’ rules
       should be disqualified on the basis of misconduct, while those who have been discharged
       because of their inadvertent or negligent acts, or their incapacity or inability to perform their
       assigned tasks, should receive benefits. See Messer & Stilp, Ltd. v. Department of
       Employment Security, 392 Ill. App. 3d 849, 860 (2009); Wrobel, 344 Ill. App. 3d at 537;
       Zuaznabar v. Board of Review of the Department of Employment Security, 257 Ill. App. 3d
       354, 357 (1993); Siler v. Department of Employment Security, 192 Ill. App. 3d 971, 975
       (1989). Abbott Industries concedes that “misconduct under the Act is limited to an
       employee’s intentional acts,” but argues that the Board of Review misapplied this definition.
       We therefore look to the evidence in the record to see whether it leaves us with the definite
       and firm conviction that the Board of Review erred in finding that Mitchell did not commit
       intentional misconduct.
¶ 20        In this case, the Board of Review found that there was no evidence that Mitchell set out
       to violate Abbott Industries’ rules regarding grades or absences. As to her grades, there was
       no testimony that Mitchell was deliberately refusing to do the work associated with her
       classes or in any other manner purposely refusing to put forth a good-faith effort in those
       classes. The only evidence about the reason for Mitchell’s low grades was Abbott’s


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       testimony that they were the result of her absences and not turning in work promptly, which
       also related to her absences. (Although this statement was hearsay, it was not objected to, and
       thus it can be considered for its natural probative value. Village Discount Outlet v.
       Department of Employment Security, 384 Ill. App. 3d 522, 525 (2008).) Thus, there was no
       evidence of intentional misconduct in connection with Mitchell’s grades apart from the issue
       of whether her absences could be said to be intentional. We therefore turn to that question.
¶ 21       Abbott Industries argues that Mitchell’s absences were intentional because she
       consciously chose to care for her mother instead of coming to work. The circuit court
       adopted this same approach, stating that Mitchell “deliberately and willfully ‘had to take days
       off to handle certain situations.’ ” (The circuit court was apparently quoting Mitchell or her
       attorney.) However, this approach rests on a misunderstanding of what constitutes an
       intentional act. The Board of Review found that Mitchell’s absences were caused by the fact
       that she was the primary caretaker for her ill mother. This finding was based on undisputed
       evidence: Abbott Industries offered no contrary evidence and did not suggest that Mitchell
       was being untruthful when she described her mother’s ill health as the reason for her
       absences. Her mother’s ill health was a circumstance beyond Mitchell’s control. There is no
       suggestion in the record that any of Mitchell’s absences was not absolutely necessary in order
       to provide for her mother’s care. To the contrary, Mitchell testified without contradiction that
       there were no other family members available to provide such care. Indeed, in the same
       passage quoted above, the circuit court noted that the evidence showed that Mitchell “could
       not make arrangements for someone else to take care of her mother.”
¶ 22       The record thus establishes that Mitchell’s absences were due to a factor beyond her
       control–her mother’s ill health–and an inability–her inability to find anyone else to care for
       her mother. Neither of these can support a finding of deliberate and willful violation of
       Abbott Industries’ attendance policy. To the contrary, courts have held that, when an
       employee is unable to conform to her employer’s expectations despite her good-faith efforts,
       she is eligible for benefits. For instance, an employee was eligible for benefits despite being
       fired for falling asleep for 30 minutes during a meeting, where there was no evidence that she
       intended to sleep: she was simply unable to remain awake. Washington v. Board of Review,
       211 Ill. App. 3d 663, 669 (1991). Likewise, in Wrobel, the reviewing court held that an
       employee who was fired for being late to work after repeated warnings was nevertheless
       eligible for benefits, because his failure to ensure that at least one of his two alarm clocks
       would go off despite a power failure amounted to negligence, not intentional conduct.
       Wrobel, 344 Ill. App. 3d at 537. When an employee makes reasonable efforts to comply with
       her employer’s rules but is frustrated by events beyond her control, she has not shown the
       type of deliberate disregard for the rules that would constitute misconduct. London v.
       Department of Employment Security, 177 Ill. App. 3d 276, 278-79 (1988) (employee left for
       work early enough to get there on time but encountered unusually bad traffic due to
       construction). Here, as in those cases, there is no evidence that Mitchell took her employer’s
       attendance rules lightly or intentionally disregarded them. Rather, the record establishes that
       she was unable to comply with those rules due to the need to care for her mother and the lack
       of alternatives. Because this is not the type of deliberate and willful act contemplated by the
       legislature when it defined the term “misconduct,” the Board of Review’s conclusion that

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       Mitchell was eligible for benefits was not clearly erroneous.
¶ 23       Abbott Industries cites Bochenek v. Department of Employment Security, 169 Ill. App.
       3d 507 (1988), in support of its argument that a pattern of absences can constitute
       misconduct. In that case, the plaintiff was fired for being tardy and absent despite repeated
       warnings over an 18-month period. The plaintiff testified that he had psychological problems
       including depression and delusions of grandeur that made it very difficult for him to get to
       work on time and work a full day. He also submitted his doctor’s statement that the plaintiff
       was diagnosed with schizo-affective disorder and was on medication. Despite stating that the
       plaintiff “was unable” to improve his attendance despite the warnings (id. at 508), the court
       held that his absenteeism and tardiness “had reached such a degree of recurrence as to be
       considered misconduct” and therefore affirmed the denial of benefits (id. at 509). In
       Bochenek, the plaintiff had been absent 7 days and late 9 days during the previous 81 work
       days since his last warning, thus displaying attendance problems on 16 (or approximately
       20%) of his most recent work days. Abbott Industries argues that Mitchell’s attendance
       record was even worse because she either was absent or worked less than eight hours on 25
       occasions in a 51-week period.
¶ 24       Leaving aside Abbott Industries’ faulty arithmetical skills (51 weeks of 5 work days each
       is 255 work days, and so 25 absences or partial days would be approximately 10%, or half
       the rate of the plaintiff in Bochenek), its reliance on the holding in Bochenek is misplaced.
       Bochenek was decided under the former common-law definition of “misconduct” contained
       in Jackson v. Board of Review of the Department of Labor, 105 Ill. 2d 501, 511-12 (1985),
       which included “carelessness or negligence of such degree or recurrence as to manifest ***
       wrongful intent.” (Internal quotation marks omitted.) This definition was superseded by the
       legislature’s enactment of the Act, which took effect on January 1, 1988, and under which
       “misconduct” must now be deliberate and willful. See Wrobel, 344 Ill. App. 3d at 537.
       Accordingly, Bochenek is neither controlling nor persuasive. And like the court in Wrobel,
       we will not “infer that an employee willfully and deliberately violated an employer’s
       attendance policy based on the number of infractions alone” (id. at 539), especially where,
       as here, it appears that the same lack of willfulness applied to each violation.
¶ 25       In affirming Mitchell’s eligibility for unemployment benefits, we do not mean to suggest
       that we are unsympathetic with Abbott Industries’ decision to fire Mitchell. The inability to
       measure up to an employer’s reasonable rules certainly may justify termination. However,
       the Act requires a different legal standard to be applied to the separate question of whether
       a terminated employee is eligible to receive unemployment benefits. To disqualify an
       employee from receiving benefits, “an employer must satisfy a higher burden than merely
       proving that an employee should have been rightly discharged.” Zuaznabar, 257 Ill. App. 3d
       at 359.
¶ 26       For the foregoing reasons, we affirm the decision of the Board of Review and reverse the
       judgment of the circuit court of Du Page County.
¶ 27       Reversed.




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