## I LLINOIS 

## O FFICIAL 

## R EPORTS Appellate Court

Abbott Industr

ies, Inc. v . Department

of Employment Security , 2011 IL App (2d) 100610

Appellate Court Caption ABBOTT INDUSTRI ES, INC., Plaintiff-Appellee, v. TH E DEPARTMENT OF EMPLOYMENT SECURI TY; BOARD OF REVIEW OF THE DEPAR TMENT OF EMPLOYMEN T SECURITY; and DIRECTOR OF THE DEPAR TMEN T OF EMPLOYMENT SECURITY, Defend ants-App ellants (Cy nthia M. Mitchel l, Defendant).

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

Filed June 20, 2011

Held ( Note: T

his syll abu s constitutes no part of

the opinion of the court but has been prepared by th e Reporter of Decisions for the conven ie nce of the reader. ) Board of Review’s determination that claimant was en titled to unemployment

benefits, despite the absences, tardiness and recent poor grades in her plumbing apprentice training prog ram that resulted in the
te rmination of her e

mploy ment, wasimproper

ly r everse d by

the tria l court, since her low grades an d absen ces were not due to intentional misc ond uct

and the B oard’s c onclusion was clea

rly errone ous, especia lly in the abs ence of

any evidenc e that cla

imant set out to violat

e her employer’s r

ules regarding g

rades and attendance and a r e cord showing claimant was unable to comply with her employer’srules due to the need to care for her mother.

Decision Under Review App ea l from the Circuit Court of Du Page County , No. 09–MR–938; the Ho n. Ken neth L. P opejo y, Judge, presi ding.

Judgment Reversed.-2-

Counsel on Appeal Lisa Madigan, Attorney

General, of Chicago (Michae l A. Sc odro, SolicitorGenera

l, and Ann

C. Maskaleris, Assistant Attorney Genera l, of counse l), for a ppellant s.

Jason Mar

tin L oeb ach and John J. Chitkowski , both

of Chitkowski Law Offices, of Lisle, for

appellee.

Panel JUSTICE SCHOSTOK delivered the judgment of t he co urt, with opinion. Justices Burke and Hudson concurred in the judgment and opinion.

OPINION

¶ 1 On M ay 11, 2009, the B oard of Review of the I llinois Depart ment of

Employmen t Security (Depar tment) de termined that th e claimant , Cy nthia Mitchell, wasentitled t o unemployment

benefits because her a

b sences, tardiness, and recent poor g rades in her apprentice training program were not due to intentional misconduct. Theemploy er, Abbo tt Indu stries, Inc., filed an action for a dministrative review. In May 2010, the circuit court reversed the Board of

Review’s decision and denied Mitchell benefits, and the Department appealed. We affir

m the decision of the Board of Review and re verse the judgment of the circuit c ourt.

¶ 2 BACKGROUND ¶ 3 The following facts come from the testimony and exhibits presented at the Fe bruary 24, 2009, heari ng before

a Depar tment ref eree. Mitchell be gan wor

king for Abbott I ndustrie s,

a plumbing company located in Bensenville, as an apprentice plumber in June 2006. She was enrolledin a five-ye ar federal Department of L abor apprent

icesh ip trainin g prog

ram, pursuant to which she attended school and worked as an apprentice plumber in order to get her plumber’s license. Thef ederal program, under whic h Mitchell held a provisional apprentice plumber’s license, required Mitchell to maintain at least an average g

rade of C in her courses(a 2.0 g

rade point avera

ge) du ring ea ch six-month

grading pe riod. However, Abbott Industries paid for Mitchell’s course s and had i ts own requirements for continued employ ment, which included a grade point avera ge of 2.5 or hig her and not receiving any grades of D or below. Abbott Industries also had a n attendance policy

stating that employee s

were expected to attend s chool for eight ho urs per w eek and

be avail able to wo

rk up to another 32 hours per week on contractor assignments. Abbott Industries advised newly hired apprentice plumbers

of these polic ies and r equirem

ents duri ng their

orienta tion. Mitch

ell signed a form acknowledging

t hat she w as awar

e that Abb ott Industries d id not toler

ate-3-

excessive absenteeism, tardiness, or no call/no show. ¶ 4 Mitchell

was absent or worked

less than a full eight-hour day on 25 o ccasio ns dur ing a 51-week period in 2008. On December 14, 2008, Mitchell r

eceive d her g

rades f or the mos t recent six-month period. The grade point average was 2.14, and Mitchell had three Ds. L ori Abbott, the owner of

Abbott Industries, testified at the hearing that Mitchell received the Ds forb ei ng ab se nt fr om or ta rd y to sc ho ol an d n ot tu rn in g i n h er ho me wo rk pr om pt ly. O n December

20, 2008, A

bbott I ndustrie s fired Mi tchell. Abbott told the Department that the firing was based on Mitchell’s poor gra des and poor attendance. ¶ 5 At the hearing, Mitchell stated that she believed that she had been fired bec ause of her low grades and had

not under stood until t

he hear ing that her atte ndance was also a

basis for the termination. Mitchell testified that, before December 2008, Abbott had spoken with her

once regardi ng her gra des, d uring h er firs t six -mont h gr ading per iod. Her school would notify students and emplo ye

rs if stu dents were on academic probation beca use of grades or attendance. During the first fou r grad ing per iods, Mitch

ell was never on academic probation, believedthat her

grade s had bee

n close to a 3.0 average, and had r

eceived regular raises that

were tied to her grades. The 2.14 gr ade point average in the fifth g rading period represented her lowest grades ever. ¶ 6 Mitchell

also testified that Abbott spoke with her on o nly one occ asi on regarding

her absences from

work. At t

hat time, Mitchell to ld Abbott that her absences were ca used by her mother’s health problems and the f act th at she was the primary caretaker for her mother. According to Mitchell, Abbott seemed com passiona te and und

erstand ing during this conversation and did no t warn Mit chell tha t she was in dan ger of b ein g fi red . In response to the referee’s questions, Mitch ell testified that her mother was disabled and that no other family members were a

vailable to care for her , as Mitchell’s par ents were divorced and her sibl ings were in

the military and awa

y at colleg e. Mitchell disputed Abbott’s account of her absences and tardiness. Mitchell recalled being abse nt from work occasional ly, but not 25 times in a 51-week period, and didno t r ec al l b ei ng la te to wo rk ev er , s ayi ng th at so me da ys 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 severaloccasions about her grades at

school and her att

endanc e at work . Accor

ding to A bbott, she “continu ally told” Mitchell that Mitchell’ s grade s needed to come up. She agreed

that Mitchell was not

on academic probation, which would happen if her g rades dropped below a 2.0 grade point
average. Abbott also testified gener ally that she o ffere d Mitchell help but th at Mitche

ll did
nottake her u p o n the offer. Abbott did not dispute Mitchell’s characterization of the conversation about her absences at work, but testified t hat there wa s more than one conversation on the subject. Abbott also testifiedthat Mitch ell’s att endanc e proble

ms caused her business to suffer. ¶ 8 The refe ree issued a decision finding that Mitchell was not eligible f or un em pl oym en t benefit s, because

she volunt

arily left the job withoutgood cause attributable to the employ er. Mitchell appealed the referee’s decision to the Depar tment’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 th at the fa

cts of the case did not raise an issue of-4-

voluntary leaving under section 601(A) of the I llinois Unemployment

Insurance Act(Act) (820 IL CS 405/601(A) (West 2008) ). When an employee ha s 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 employ er’s termination of her may be viewed as a vo lu ntary leaving rather than a

discharge. Horton v. Department of Emplo yment Se curity , 335 I

ll. App. 3d 537, 541 (2002). The Board of Review found that here, however, Mitchell’s g rades were high enough to retain her provision al licens e because her gr ade point averag e for the

most recent grading period

was 2.14, higher

than the r equired 2.0 aver age. T hus, Abbot

tIndustries

was not forc ed to discharge Mitchell f

or failu re to maintain a necessary license, and the termi natio n coul d not be con strue d as a v olun tary leavi ng. ¶ 10 T he Board o f Revie w then co nsidere d the othe r basis on

which Mitc

hell coul d be disqualif ie d from rec eiving benefits under the Act, i.e. , whether Mitchell had committed misconduct

within the meaning of

section 6 02(A) of

the Act ( 820 I

LCS 405 /602(A) (

West 2008)). The Board of Review noted that “misc onduct” s ufficie nt to disqualify a worke

r from receiving benefits is defined in t he statute as “the deliberate and willful violation of a

reasona ble rule or policy”of the employer
, where the violation harmed the employ er 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 g rades w ere ca

used by circumst ances be yond her con

trol:
“In this case the claimant worked to the best of her ability but was unable to meet the standards required by

the employer. Althoug

h 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 re fusal to f ollow instr

uctions. T he claima nt credi bly testifi ed that she had informed the employ er of her family situation which caused her absences from wor

k. There was n o eviden ce adduced to support a conclusion that the claimant acted in a deliberate manner to violate the e mployer’s rules.” The Board o f Review

accord ingly reversed the decision of

the ref eree a nd held tha

t Mitchell was qualified to r

eceive unemploy

ment bene

fits. ¶ 11 Abbott Industries appealed the B oard of Review’s decision to the circuit court, filing an action for administrative review. After briefing and a hearing, the circuit court r eversed the Board of Review and held that Mitche ll wa s disqualif ied from r

eceiving benefits, bec ause she had committed misconduct. Explaining its ruling, the circuit court stated, “The claimant

was awa re of the employ er’s r ules against being absent from work, a nd she could not make arrangements for someone e lse to take care of

her mothe

r, so she d id deliber ately an d w il lf ul ly, qu ot e, ha d t o t ak e d ays off to ha ndle cer tain situa tions, end of quote.” Mitchell timely appealed.

¶ 12 ANA LYSIS ¶ 13 This appeal p

resents only

one substa

ntive issue

for dete rmination : wheth erMitch ell’s absences and poor grades constituted misconduct under the statut e such tha t she is ineligib le for unemployment benefits. B efore we examine this issue, however, we pause to conside r-5-

th e a pp ro pr ia te st an da rd of re vi ew to ap pl y.

¶ 14 Standard of Review ¶ 15 In review ing 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 c laim, not the decision of the referee

or the circuit

court. Sudzus v. Department of Emplo yment Se curity , 393 Ill. App. 3d 814, 819 (2009). We apply differing standards of review dependi ng on the type of issue for which review is sought. When we review factual findings of the Board of Review, we

deem thos e findi ngs prima faci e correct and will r everse only if they are ag ainst

the manifest weight of the evidence. Id. (citing City of Bel videre v. Illinois S

tate Labor Rela tions Board , 181 Ill. 2d 191, 204-05 (1998)). Where, on the other hand, the issue is the correctness of the age ncy’s conclusions of law, our rev iew is de novo

. Id. Finally, wher e the determination is a mixed question of fact and

law, we a pply the “cle arly

errone ous” standard and

will reve rse only if

our review of the record and the age ncy’s dete rmination leaves us with the “definite and firm conviction” that

the decision was a mistake. (Inter nal quotation marks omitted.) Id. at 820 (quoting AFM Messenger Ser vice, Inc. v. D epartme nt of Emplo yment Se curity , 198 Ill. 2d 380, 393 (2001)). ¶ 16 “The que stion of wh ether a n employ ee was * ** termina

ted for mi sconduc t in connection withhis work involves a mixed question of law and fact, to which we

*** apply

the clea rly

erroneous standard of review.” Id. at 826. Abbott Industries argue s that the is sue is a legal one andso we sh ou ld ap pl y de novo review, citing older cases that rely on Grigoleit Co. v. Department

of Employ

ment Sec urity , 282 Ill. App . 3d 64, 71 (1996). See Wrobel v. Department

of Employ

ment Sec urity , 344 Ill. App. 3d 533, 536 (2003 ) (cit ing Grigoleit ); Caterpilla r, Inc. v. D epartme nt of Employ ment Sec urity , 313 Ill. App. 3d 645, 653 (2000) (citing Grigoleit

); Grigoleit, 282 I

ll. App. 3d at 71. We reject this argument. Since Grigoleit

was deci ded, the I

llino is Supreme

Court has c lari fied

the defin ition of mixe d questions of fact and law and repeatedly

affirmed the application of the “clearly erroneous” standard

to such questions. In City of Belvi dere , 181 I ll. 2d at 20 5, the supr

eme cour t explained

that a mixed questi on of fact and law i s one in wh ich the c ourt must de

termine w

hether a certain
set of facts is sufficient to produce a given le gal effect. I n AFM Messenger Service, 198 I ll. 2d at 391, the supreme court expanded upon that exp lanation and noted that the determination of whether the f acts in a particular case satisfied a given statutory

requirement

was an example

of a mixed question of fact and law. Id . (quo ting Pullman-Standard v. Swint
, 456 U.S. 273, 289 n.19 (1982)) . The que stion of wh ether, i n 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 r ecent

u nemployment

benefit cases in volving t he issue o f miscond

uct, whe re the c ourts hav e applied the “clearly

erroneous” standard. See Phistry v. Department of Empl o yment Se curity
, 405 Ill. A pp. 3d 604, 607 (2010 ); Sudzus , 393 Ill. App. 3d a t 819; Hurst v. Department of Employmen t

Security , 393 I

ll. App. 3d

323, 327 ( 2009); Manning v. Department of Employment

Security , 365 Ill. App. 3d 553, 557 (2006 ) (reje cti ng argument that determination of whether employ ee’s actions amounted to misconduct was legal conclusion-6-

subject to de novo review a

nd finding

that “cle arly

errone ous” standard applicable to mixed questions of

fact and law w as prope

r standa rd); Oleszczuk v. Department of Employment Security
, 336 I

ll. App. 3d

46, 50 (20 02); cf. Czajka v. Department of Employm ent Secu rity
, 387 Ill. App . 3d 16 8, 173 (2008 ) (cit ing Grigoleit but apply ing “cl early

erroneous” standard,
not de novo standar

d). To the extent that

this court’s previous decisionin Caterpillar , which reliedupon Grigoleit, is to the contrary, we de part from that position and hold that the question of

whether an employ ee committedmisconduct under the Act is a mixed question of fact and law subject to the “clearly erroneous” standard.

¶ 17 Did Mitche ll Commit Misc onduct? ¶ 18 We now turn to the quest ion of whe

ther the Board o f Re view 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 employ er or is repeated after a warning. 820 IL CS 405/602(A) (West 200 8). No dis p ute is r aised regarding the second and third require ments: the existence

and rea sonableness of Abbott I ndustrie s’ policie s rega

rding it s apprent ices’ grades and at

tendan ce, and the harm to Abbott Industries f lowing from the violation of those policies. Nor is there a ny q uestion th at Mitche

ll violate d Abbott I

ndustrie s’ policies throu gh her low grades and absences. The sole issue is whether Mitchell’s absence s and low grades were

“delibe rate an d willful”such that they constituted misconduct under the Act. The Board of Revi ew he ld that they were not, because they

were not the result of a deliber ate decision by

Mitchell t

o violate Abbott I ndustrie s’ rules. We examine w hether t his conclusi on was cl early

errone ous. ¶ 19 In construing the requirement that an employ ee’s violations of the employer’srules must be “deli berat e and willful,” courts have repeatedly held that this language reflects the General Assembly’s intent that only those who intentiona lly act co ntrary to their e mployers’ rules should be disqualified on the basis of misconduct, while those who have been discharg ed because of their inadver tent or ne glige

nt acts, o r their incapaci

ty o r inabilit y to perfor m their assigned tasks, should receive benefits. See Messer & Stilp, Ltd. v. Dep art ment of Employment

Security , 392 I

ll. App. 3d

849, 860 ( 2009); Wrobel , 3 44 Ill. Ap p. 3d at 537; Zuaznabar

v. Board of Review of the Department of Emplo yment Se curity , 257 I

ll. App. 3d 354, 357 (1993 ); Siler v. D epartme nt of Emplo yment Se curity , 192 Ill. App. 3d 971, 975 (1989). Abbott I

ndustrie s conced

es that “ misconduct und er the Act is limited to an employee’sintentional acts,” butargues that the Board of Revie w misapplied this definition. We theref ore look t o the evid ence in t he reco rd to see whether it leavesus with the

definite and firm conviction that the Board of Review

erred i n finding

that Mitch

ell did not commit intentiona

l miscondu ct. ¶ 20 In thi s case, the Board of Review found that ther e was no evidence that

Mitchell set

out to violate A

bbott I ndustrie s’ rules regarding g rades or absences. As to her grades, the re was

no testimony that Mitchell was deliberate ly refus ing to d o the work associated with her classes or in any other ma nner purposely r

efusing to put fort

h a good-fa ith effor

t in those classes

. The only

evidenc e about th

e reaso n for Mitchell’s low grade s w as Ab bott’s-7-

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 hea rsay, it was not objecte d to, and thus it can be considered for its natural prob ative value. Village Discount Outlet v. Department

of Employment

Security
, 384 Ill. App. 3d 522, 525 (2008).) Thus, there wa s no evidence of intentional misconduct in connection with Mitchell’s grades apart from the issue of whether her abse nces cou ld be said to be intent

ional. We therefore turn to that question. ¶ 21 Abbott

Indu stries ar

gues tha t Mitchell ’s absences wer e intentio nal beca

use sh e consciou sly

chose to care for her mother instead of coming to w o rk. The circuit court ad opted this same approach, stating that Mitchell “deliberately and willfully ‘had to take day s off to handle certain situations.’ ” (The circuit court was a pparently quoting

Mitchell or her attorney.) Howeve

r, this approach rests on a misunderstanding of what constitutes an intentional act. The Board of Review found that Mitchell’s absences were ca used by the fa

ct that she was the primary ca

retaker for her

ill mother. This finding was based on undisputed evidence: Abbott Industries offered no contrary evidence and

did not sug gest tha

t Mitchell

was being untruthful when she described her mother’s ill health as the reason for her absence s. Her mother’s ill health was a circumstance bey ond Mitche

ll’s contr ol. There is no suggestion

in the record that any

of Mitche ll’s abse nces wa s not absol

utely necessary in order
to provide for her mother’s care. To the contr ary , Mitchell

testified without contradiction that there were no other family members availabl e to provide such car e. I ndeed, in the same
passa ge 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 Mitche ll’s abs ences were due to a factor beyond her control–her

mother’sill health

–and an in ability

–her ina bility to find anyone else

to care for h er mother. Neither of these can support a finding of deliberate and willful violation o f Abbott Industries’ attendance

policy. To the contra

ry , court s have held that, when an employee is unable to conform to her employer’sexpectat

ions despi te her g ood-faith effor

ts, she is eligible for benefits. For instance, an employee was eligible for benefits despite being firedfor falling asleep for 30 minutes during a meeting, where there

was no evidence that she intended to sleep: she was simply unable to remain a wake. Washington v. Board of Review
, 211 Ill. App. 3d 663, 669 (1991). Likewise, in Wrobel , the reviewing court held that an employee who was fire d for bein g late t o work af ter rep eated w arning s was nev erthele ss eligible for bene fits, bec ause his f

ailure to ensure that at least one of his two alarm clocks would go off despite a power failure amounted to negligence, n ot inte ntional c onduct. Wrobel
, 344 Ill. App. 3d at 537. When a

n employ ee make s reason able ef

forts to c omply

with her employer’s r

ules but is frustrated by e vents beyond her

control, she has not sho wn the type of d eliberate d isregard for the rules that would constitute misconduct. London v. Department

of Employ

ment Sec urity
, 177 Ill. App. 3d 276, 278-79 (1988) (employ ee left for work early e nough to get there on t ime but encounter ed unusua

lly b ad traf

fic due t o construction). Here, a s in those c ases, the re is no evidence that

Mitchell took her employer’ s attendance rules lig

htly or intenti onally

disreg arded th

em. Rather, the record establishes that she was unab le to comply with those rules due to the nee d to care for her mother and the lack of alterna tives. Because th

is is not the type of deliber ate and willful act contemplated by the l egislaturewhen it defined the term “misconduct,” the Board of Review’s conclusion tha t-8-

Mitchell w as elig ible for b enefits w as not cle arly errone ous. ¶ 23 Abbott I

ndustrie s cites Bochenek v. Department of Employm ent Secu rity , 169 Ill. App. 3d 507 (1988 ), in suppo rt o f its argume

nt that a p attern o f absenc es can c onstitute misconduct. In that case, the plaintiff was fired for being tardy and absent despite repeated warni ngs over

an 18-month period. The plaintiff testified that he had ps ychologic al proble ms including depression and

delusions of grandeur that made it ve

ry difficul t for him to

get to work on time and work a

full day. He a

lso submitted his doctor’s statement that the plaintiff

was diagnosed with schizo-affective disorder and w as on medication. Despite stating that the plaintiff “was una ble” to imp

rove his attenda

nce desp ite the wa

rnings ( id . at 508), the court held that his abse nteeism and tardiness “had reached such a degree of recur

rence as to be considered

misconduct” and the

refore affirme d the deni al of benefits ( id . at 509 ). In Bochenek
, the plaintiff hadbeen ab sent 7 day s and late 9 days during

the previous 81 work da ys since his last warning, thus display ing attenda

nce prob lems on 16 ( or appro ximately 20%) of his most recent work day s. Abbott Industries argue s that Mitchell’s attendance record was evenworse because she either was absent or worked less than eig ht hours on 25 occasions in a 51-week period. ¶ 24 Leaving aside

Abbott Industries’ faulty

arithmetical skills (51 weeks of 5 w or k d ays each is 255 work

days, and so 25 abse

nces or partial day s would be approximately 10%, or half the rate of

the plain tiff 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 neglig ence of

such deg ree or r ecurre nce as to manifest *** wrongful intent.” (Internal quotation marks omit

ted.) Thi s definition was superseded by the legislature’s enactment

of the Act, which took effect on January 1, 1988, and under which “miscond uct” must now be deliberate and willful. See Wrob el , 344 Ill. App. 3d at 537. Ac co rd in gl y, Bochenek

is neither controlling nor persuasive. And like the court in Wrobel
, we wi ll no t “ in fe r t ha t a n e mp lo ye e willf ully and deliberate

ly violated an employ

er’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 bene

fits, we do not mean to sugge st that we areunsy

mpathetic withAbbott I

ndustrie s’ decis ion to fire Mitchell. The inab ility

to

measure up to an employer’ s reasonable rules certainly may justify

termination. However, the Act requires a different leg al standard to be applied to the separate question of whethe r

a terminated employee

is eligible to receive unemploy ment benefits. To disqualify an employee from rec eiving b enefits, “an empl oye r must sati sfy

a highe r burden than mer ely proving that an employee

should have beenrightly discha rged.” Zuaznabar
, 257 Ill. App. 3d at 359. ¶ 26 For

the foregoing reasons, we affirm the decision of

the Board o f Review

and reve rse the ju dg me nt of

th e c ir cu it co ur t o f D u P ag e C ou nt y. ¶ 27 Reversed.