## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Walls v. Departm ent of Em ploym ent Security , 2013 IL App (5th) 130069

Appellate Court Caption J OSHUA A. WAL L S, Plaintiff-Appellant, v. THE DEPARTMENT OF EMPL OYMENT SECURI TY, B oard of Review, De fenda

nt-Appellee

.

District & N o. Fifth District Docke t No. 5-13-0069

Rule 23 Order

filed Motion to publ ish

g rante d Opinion filed J uly 17, 2013

August 16, 2013 August 16, 2013

Held (Note : This sy ll abus

con st it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by the Rep o rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Plaintiff coal miner was proper ly denied unemploy ment benef

its beca use he left work without g ood cause attribut ab l e to his employ er, notwithstanding his contentions t h at he was not provided proper safe ty equipment when he went into the mines, since plaintiff did not repor t the alleg ed violations until afte r he quit and he failed to exercise options other than quittingto resolve his conc erns a bout safety

.

Dec ision Under Review Appea l from the Circuit Court of Saline County
, No. 12-MR-56; the Hon. Todd D. L amber

t, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l J oshua Walls, of Eldorado, a ppellant pro se

.

L isa Madig an, At torney Gene ral, of Chicag o (Michae l A. Scodro, Solicito r Ge n era l, and J an E. Hughes, Assistant Attorney Gene ral, of counsel), f

or appe llee.

Panel PRES I DI NG J USTI CE SPOMER delivere d the j u d gment of the court, with opinion.
J ustices Chapman a

nd Cates conc urre d in the judgme nt and opinion.

OP INION

¶ 1 The plaintiff, J oshua A. Walls, filed a complaint for administrative revie w of a dec ision of the I llinois Depa

rtment of Employ

ment Security Board of Review (B oard)

. The Boa rd deter mined that, pursuant to section 601(A) of the Unemploy ment Insuranc e Act (Ac t) (820 I L CS 405/601(A) (West 2010)), the plaintiff was disqualified from rec eiving unemploy ment benef its beca use he voluntarily left work without g o o d cause attributable to his employer. Fr om the circ uit court’s orde r, the plaintiff appea ls. F or the rea sons that f ollow, w e af

firm.

¶ 2 BA CKGROUND ¶ 3 The plaintiff was employed by Big Buc k Construction, Inc. (B ig Buc k), as a miner fr om April 2011 to April 2012, at which time he left Big Buc k. After he left Big Buc k, the plaintiff filed a claim with the I llinois Depa rtment of Employ

ment Security (IDES) f

o r u n e mp loy ment benef its, stating that he left his job b ec au s e h e believed that Big Buc k was asking its employees to work in unsafe conditions. Specifica lly
, the plaintiff alleg ed that he was asked
to g o down into the mines without proper safe ty equipment, namely
, a text er and a spotter. 1 The plaintiff also repo rt ed this information to the fede ral Mine Safety and Hea lth Adm inistration (MSHA). Big Buc k filed a response that stated that it was aware t h at t h e plaintiff had reported the alleg ed safety violations to the M SHA but noted that t he MS HA did not find any

safe ty violations following an inspe ction. ¶ 4 A claims adjudicator deter mined that the plaintiff was ineligible for un em p l o y m en t benef its, pursuant to section 60 1 (A ) of the Act (820 I L CS 405/601(A) (West 2010)). The claims adjudicator stated: “Since the employer was awa re of the conditions and had the ability to control the conditions or acts, the claimant’s rea son for leaving is attributable to the

A te xte r is a device u s e d t o s e n d te xt m ess ages to and fr om the m ine
, and a spo tt er is a 1 device th atte st s f

or m ethan e.

-2-employer. Howeve r, beca use the conditions or acts wer e not serious violations of the orig inal hiring agree ment or did not cre ate a substantially less favor able work situation, the claimant left work voluntarily without g ood cause attrib uta b le to the employ er.” The plaintiff appea led the dec ision of the claims adjudicator to the I DES. ¶ 5 On J une 13, 2012, a ref ere e with the I DES held a telephone hearing. Ad m i t t ed i n t o evidenc e was the plaintiff’s appea l letter as well as a fede ral Depa rtment of L abor publication titled “Miners’ Rights.” The plaintiff, who was repr esente d by counsel, testified that he had been a labore r in the coal mine with Big Buc k for a littl e over a y ear

. He testified that he did
not g ive adva nced notice when he quit his job and informed the owner of Big Buc k, J im Suits
, that he was quitting due to his safe ty conce rns. The plaintiff testified that he had share d his conce rns wit h Suits and others at Big Buck at least si x or seven t i m es , an d that he had been asked to g o down into the mines without a spotter or proper ly functioning text er about six or seven times. The last time that he was asked to g o into t h e mine without the proper safe ty equipment, he waited until a week afterwa rds and then qui t his job and reported his

conce rns to the MSHA. When asked wh y h e did not repor t his conce rns to the MSHA sooner, the plaintiff responded that he did not want to los e his job for reporting the i ssues. The plaintiff acknow ledg ed that the Coal Mining Act (225 I L CS 7 0 5 / 1.01 to 39.1 (West 2010)) provided that an employee could not be discharg ed for repor ting safe ty violations, and
any repor ting would rema in confide ntial. However, he believed that someone at Big Buc k would find out that he repor ted his safe ty conce rns beca use that was “the way mines work.” He stated that the fi rs t time he was asked to g o into the mine without the proper safe ty equipment was a

bout six or seve n months before he lef t BigBuc k. ¶ 6 When questioned by his attorney , the plaintiff stated that both the text er and the spotter

wer e require d by law. He stated that he had an associate ’s degree in coal mining technology and p ar t o f t h e curr iculum was mining law, so he knew that the text er and spotter wer e require d in the coal mines. He also testif i ed t h at h e share d his safe ty conce rns with other members of

the cr ew a

nd Roge r Thomas, the mine c ontrac tor. ¶ 7 J im Suits
, the owner of Big Buc k, testified that he reme mbere d the plaintiff telling him about the broken text er on one specific occa sion. Suits testified that the par ticular text er in question would run out of battery power ever y few hours and the batterie s would have to be repla ced. That particula

r text er was only to be used in emer g ency situations for short periods of time. He stated that the plaintiff should have never g one into the mine without a working
text er and sp o t t er, and that he could not fire an employ ee if he refused to g o into the m ine beca use he did not have a t exter and spot ter. He testified that a min er s h o u l d not g o down into the mine without a text er and spotter, and that the miner has a rig ht to ref use to g o into
t h e m i n e if he fee ls conditions are unsafe

. Suits further testified that there wer e multipl e text ers and spotters that the plaintiff could have used instead of the broken text er. Suits then testified that afte r the plaintiff repor ted to the MSHA, the MSHA conducte d an investigation of t he mi ne and tested all of t he equipment. Suits stated t hat he was not cit ed fo r any thing

as a r esult of the inspec tion. ¶ 8 When questioned by the plaintiff’s c ounsel, Suits admitted that he did not ask spec ifically why the plaintiff was quitting h i s j o b
, just that he knew that the rea son he was quitting rel at ed to safe ty conce rns. He reiter ated that he would not have asked the plaintiff or any

-3-other c rewmember to g o down into the mines without the proper sa fety equipment. ¶ 9 In a decision dated J une 1 4
, 2 0 1 2
, t h e re fe re e aff irmed the decision of the claims adjudicator and conclude d t h at t h e plaintiff failed to establish, by a preponde ranc e of competent evidenc e, that he was require d to work in unsafe conditions. As such, the ref ere e deter mined that the p l ai n tiff voluntarily left work without g ood cause attributable to the employer and that he was thus ineligible to rec eive unemploy ment bene f

it s

. T h e plaintiff then
appea led to the B oard, a

rguing that he wa s require d to go into the mine without the prope r equipment and c ould not refuse to go down into the mine. ¶ 10 I n a d ecision dated August 22, 2012, the Boa rd aff irmed the decision of the re fe re e, finding that the rec ord adequately set forth the evidenc e so that no further evidentiar y proce eding s were deeme d nece ssary

. The Boa rd found that the pla intiff voluntarily left his job beca use he believed that the t exter was not working pr operly , but that the plaintiff had the “per missibl e option of ref

using to g o down into the mine with a non-func tioning text er” and that “the claimant’s safe ty did not hinge on quitting the job altog ether .” The plaintiff
appea led the dec ision of the Boa rd to the circ uit court of Saline County

. ¶ 11 In an order dated J anuar y 18, 2013, the circ uit court aff irmed the decision of the Boa rd. In its order
, the circ uit court found that the decision of the Boa rd was not clea

rly err oneous. Fr om that order, the plaintiff appe als.

¶ 12 ANALYSI S ¶ 13 On appea l, the plaintiff argues that the circ uit c ourt err ed when it a ffirme d the dec ision of the Boa

rd beca use the evidenc e showed that he was elig ible for unemploy ment benef

its, that he shou l d have been able to have a witness at the telephone hearing, rea d a statement from his witness, and enter the MSHA investigation repor t into evidenc e, and that Big Buc k

never contested his re ceivingunemploy ment benef

its. ¶ 14 On appea l from the circ uit court, we revie w the finding s of the Boa rd, not the ref

ere e or circ uit court. Abbott Industries, Inc. v. Departme nt of Employme nt Security
, 2 0 1 1 I L App (2d) 100610, ¶

15. Whether an e mploy ee le ft his place of employ ment without good c ause attributable to his employ er is a mix ed question of law and fac t, which we will only reve rse if it was clea

rly err oneous. Childress v. D epartment of Employm ent Sec urity , 405 I ll. App. 3d 939, 942 (2010). The decision by the Boa rd is clea rly err oneous when a review o f the

rec ord leave s the revie wing court with a definite and firm conviction that a mistake has been made. Id. at 942-43. ¶ 15 The Act states that an individual shall be ineligible for benef its if he or she has left work voluntarily without g ood cause att ri b u t able to the employing unit. 820 I L CS 405/601(A) (W es t 2010). “Good cause ” results from circumstance s that produce pressure to termin at e employ ment t h at i s b oth rea l and substantial and that would compel a rea sonable person under the circ umstances to act in the same m an n er. Colli er v. Departme nt of Employme nt Secu r i t y , 157 I ll. App. 3d 988, 992 (1987). When analy zing whether an employ ee left his position for g ood cause attributable to the emplo y er , t h e fo cu s is on the conduct of the employer. Pearson v. Board of R evie w of the Departme nt of Employme nt Se curity
, 194 I ll. App. 3d 1064, 1069 (1990). Howeve r, the employ ee must make a rea sonable eff ort to resolve

-4-the cause of his or her leaving
, when such eff ort is possible. 56 I ll. Adm. Code 2840.101(b) (2010); see Lojek v. Departme nt of Employme nt Security
, 2013 I L App (1st) 120679, ¶¶ 39- 40. Situations wher e an employ ee’ s depar ture is attributable to the em p l o y er include

scena rios wher e the employer has implemented a substantia l ch an ge in the conditions of employ ment. 56 I ll. Adm. Code 2840.101(c) ( 2010). ¶ 16 Foc using on B ig B uck’s a ctions, after the plaintiff complaine d to Suits on one spec ific

occa sion a

bout a malfunctioningtext er, Suits determined what the proble m w ith the text er

was and informed the plaintiff that the text er neede d to have the batterie s chang ed ever y few hours in order to function. Suits also stated that that particula r text er was to be used only in

emer g ency situations, and that there wer e o th er t ex ters that the plaintiff could have used. Suits further testified, and the Miners’ Rights publication verifie d, that Suits could not forc e

an employee to g o into the mine without proper safe ty equipment, nor could an employee be discharg ed for ref

using to g o into the mine without the proper safe ty equipment. Fur ther, the MSHA inspection reve aled no violation s. Even with one broken text er, Sui ts testified t hat there wer e other text ers available for the miners to use

. Thus, we see no substantial chang e in the plaintiff’s employ

ment that would war

rant his leavingfor g ood cause

. ¶ 17 Wit h respe ct to the plaintiff’s actions, Suits testified that the plaintiff could ref use to go down into the mine if he fe lt conditions were unsa fe or if he did not have the proper safe ty equipment. Suits also testified that he could not fire anyone for ref using to g o down into the mine for those rea sons. Howeve r, the plaintiff never ref used to g o into the mine. Whil e the plaintiff argues that he believed he would be fired if he ref used to g o into the mine without the proper equipment, the Miners’ Rights publication as well as the MSHA, about which the plaintif f t es t i fi ed to have lear

ned while obtaining his associate ’s degree , contra dict the plaintiff. Fur

ther, the plaintiff di d n o t re p o rt the alleg ed violations until after he quit. The plaintiff had rea sonable options, other than quitting, to resolve the issues about which he was

conce rned. The Boa

rd could have eas i l y found that a rea sonable person would have taken advanta g e of the rights under the MSHA and the Miners’ Rights publication befor e quitting the job. Thus, the B oard’ s determination wa s not clear ly err oneous. ¶ 18 Next, plaintiff argues t hat t he Board should have allowed h i m t o h av e a witness at the hearing, rea d a statement from the witness, and enter the repor t from the MSHA investigation into evidenc e. I ssues not raised befor e the ad m i nistrative ag ency are deeme d waived on administrative re view. Hurst v. Departme nt of Employment Security
, 393 I ll. App. 3d 323, 328 (2009). Her e, the plaintiff informed the ref ere e that he had a witnes s, but when the ref ere e called the witness, the witness did not answe r. Neither the plaintiff nor his attorney asked that the hearing be delayed so that the witness could be rea ched. Nor did the plaintiff
argue, at the hearing
, that the M SHA investiga tion repor t should have been s ubmitted and included in the rec ord. The plaintiff did not proper ly offe r the MSHA repor t as evidenc e. The plaintiff was provided with information, titled “Prepa ring for Your Appea l Hea ring ,” about the administrative appea l he aring and what proce dures he would need to f ollow in order to prese nt witnesses and evidenc e. Thus, the Boa rd did n o t er r when it did not consider evidenc e and a witnes s statement that wer e not proper ly admitted to the administrative
ag ency

. ¶ 19 Fi n al l y , the plaintiff argues that he should not have been denied benef its beca u s e Bi g

-5-Buc k never contested his filingfor une mploy ment benef

its. This is only partially true. Big Buc k, throug h J im Suits
, contested the plaintiff’s alleg ations reg arding the plai n tiff’s rea sons for quitt ing and argued that the pl aintiff did not have good cause attributable to Big Buc k. T h e decision to deny benef its is that of the administrative ag ency , not the empl o y er

. 8 2 0 I L CS 405/701, 702 (West 2010). There fore
, the Boa rd’s deter mination that the plaintiff was ineligible for benef

its even though Big Buc k did not formerl y co n t est the plaintiff’s application wa s not clear ly err oneous.

¶ 20 CONCLUSI ON ¶ 21 For the fore g oing rea sons, the judgme nt of the circ uit court of Saline County is a ffirme d.

¶ 22 Affir

med.

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