## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Sus tatia v. Sh annon , 2012 IL App (2d) 101230

Appellate Court Caption EL I Z AB ETH SU S T ATIA, Plaintiff-Appellant, v. CATHERI NE M. SHANNON, Direc tor of the Depa rtment of L abor, T HE DEPARTMENT OF L AB OR, and WES T SUBURB AN BA NCORP, I

NC., DefendantsAppellee s.

District & N o. Second District Docke t No. 2-10-1230

Rule 23 Order

filed Rule 23 Order withdrawn Opinion filed Dec ember 30, 2011

Fe bruar y 15, 2012
Fe bruar y 15, 2012

Held (Note : Thi s syl lab us

con s ti tut es no par t of the opi nio n of the cour t but has bee n pre

par ed by the R epo 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

. ) T h e Depa rtment of L abor’ s denial of plaintiff’s complaint alleg ing t h at her former employ er improperly denied her reque st for unpaid leave to addre ss a domestic v i olence issue pursuant to the Victim’s Economic Security and Safety Act was aff irmed wher e the finding that plaintiff was not cre dible was not ag ainst the manifest weig ht of the evidenc e and the finding that plaintiff was not on valid leave for pur poses of the A ct was not clear ly

err oneous.

Dec ision Under
Review Appea l from the Circuit Court of Kane County
, No. 09-MR-307; the H on. Michae l J . Colwell, J udg e, pre siding.J udg ment Affir med.

Counsel on Appea l Charles Dr ake B outwell, of Northbr ook, for a ppellant.

Michae l Resis and Allison L

. Chaplick, both of Smit hAmundsen L L C, of Chicag o, and J eff

rey A. Risch, of Smit hAmundsen L L C, of St. Charles, for a ppellee West Suburban B ancor p, Inc.

L isa Madig an, Attorney Gene ral, of Chicag o (Michae l A. Sco d ro , Solicitor Gene ral, a

nd Clifford W. Ber low, Assistant Attorney Gene ral, of counse l), for othe r appe llees.

Panel PRES I DI NG J USTI CE J ORGENSEN delivere d the judgme nt of the court, with opinion.
J ustices B owman and Z enoff concur red in the judg ment and opinion.

OP INION

¶ 1 Plaintiff, Eliz abeth Sustatia, f iled a complaint with de fenda nt the Depa

rtment of L abor (De partment), alleg ing that her former empl o y er , defe ndant West Suburban Ba ncorp, Inc. (bank)
, improperly denied her reque st for unpaid leave to addre ss a domestic violence issue under the Victim’s Economic Security and Safety Act (the Act) (820 I L CS 180/ 1 et seq. (West 2008)). Def

endant Catherine M. Shannon, the Depa rtm en t ’s Direc tor (Dire ctor), adopted a nd upheld the administrative law judg e’s ( AL J ’s) finding s and re commendations

an d d en i ed plaintiff’s complaint. On administrative revie w, the trial court aff irmed t h e Depa rtment’s order

. Plaintiff appea ls, chall e n g in g th e D ep a r tm e nt’s finding s that she did not: (1) take valid leave under the Act; and (2) provide sufficie nt c orrobor ating documents. For the following rea sons, we af firm.

¶ 2 I . BA CKGROUND ¶ 3 Fr om Octobe r 2 0 0 2 t o August 16, 2006, plaintiff worke d for the bank as a per sonal banker

. On April 28, 2006, plaintiff informed the bank that she would miss work on May 8, 2006, to attend cour

t in the criminal prosec ution of Tora nce H ender son, her boy friend, f or domestic battery

. ¶ 4 The domestic battery char g es arose from a Dec ember 6, 2005, incident with H ender son, with whom plaintiff had lived since September 2002. Hender son attacke d plaintiff in their

-2-Aurora residenc e by sitti ng on top of her and tr y i n g to strang le her. T.H. (ag e nine at the

time), plaintiff and Hende rson’s son, witnessed the attack. Plaintiff soug ht treatment that day
at Dre y er Medica l Center with Drs. Richard Kelly and Ashok J ag asia; she wa s al s o subsequently treated by Elaine Br odermus, a licensed clinical social worke r. The following day
, Dec ember 7, 2005, plaintiff repor ted the attack to the Aurora police depar tment, and on Dec ember 22, 2005, the State filed a complaint ag ainst Hende rson, cha rg ing him with two
counts of domestic batt e r

y ( 7 20 I L CS 5/12-3.2(a) (1), (a) (2) (West 2004)). Prior to the attack, 1

on October 26, 2005, Hende rson had filed an emer g ency petition for custody of T.H. Plaintiff testified that, s o m e time afte r the domestic battery complaint was filed, plaintiff and Hende rson ag ree d that Hende rson would drop the pending custody petition if plaintiff would drop or not proce ed with the domestic battery case

. On Dec ember 13, 2005, plai n t i ff and T.H. moved out of the Aurora home. On Fe bruar y 6, 2006, Hende rson withdrew his custody petition. The hea

ring on the domestic batter y case was set f

or May 8, 2006. ¶ 5 On April 28, 2006, plaintiff infor med her supervisor, Da

wn Oles, and a member of the bank’s human resour ces depar tment, Kelly Pilch, of the May 8 court proce eding

. P i l ch informed plaintiff that, to qualify for leave under the Act, she would have to provide a letter from her attorney or other suitable court documents stating that the court date was related to the Dec ember 6, 2005, domestic violence incident and corr oborating her appea ranc e. Pilch subsequently
, on May 2, reque sted that plaintiff provide corr oborating evidenc e and a sworn statement; Pilch later, on May 15, p ro v i d ed a form to be used as the sworn statement; plaintiff submitted the statement on May 23. ¶ 6 Plaintiff contac ted Robert L abak, a licensed clinical social worke r who was treating T.H

. and subsequently
, on May 4, 2006, beg an trea ting plaintiff, reque sting a letter excusing her from work for the court hear ing. L abak prepa red a letter (L abak letter No. 1), dated May 2, 2006, reque sting that plaintiff be excused to a ttend the court hear ing, which was “esse ntial
to expedite the resolution of sever al key issues impacting the psy cholog ical well-be ing of her

son for whom I continue to provide outpatient treatment.” Plaintiff provided the letter to the bank’s vice president of human resour ces, Mary Ellen Condon, who responde d that the letter

was insuffi cient to satisfy the Act. Condon instructed plaintiff that she could provide a letter from either

her a ttorney or the c ourt. ¶ 7 On May 5, 2006, three day s befor e the hearing, plaintiff reque sted that L abak provide a revised letter including reque sts for additional day s off of work. L abak draf ted a second letter (L abak letter No. 2), dated May 5, 2006, reque sting that plaintiff, whom he ref err ed to as his patient, be excused from work on May 8 “to appea r at a schedule d court date” related to “an incident of domestic violence that occur red in Dec ember of 2005” and that plaintiff also be excused on May 1 0 an d 1 1

. A May 15, 2006, letter from Pilch to plaintiff acknow ledg ed

rec eipt of L abak letter No. 2 (on May 11, 2006) and noted that the bank acce pted it as proper

cer tification of the May 8 co u rt d at e. Pilch also reque sted that plaintiff sign a sworn statement (a

draf t of which wa s included with the letter)

.

As to T .H., a sub sequen t Depa rt m ent of Chil dre n and Family Ser vi ce s in v esti gatio n re sul te d 1 in an “ unf

ound ed” re por t o f a ll eged ch il d ab use or negle ct

.
-3-¶ 8 Plaintiff testified that, on May 8, 2006, she arr ived at the courthouse at 8:40 or 8:45 a .m.

At court, plaintiff knew only Hende rson

. T h e y d is c u s sed their ag ree ment: that plaintiff would
not pursue the criminal case beca use Hende rson had dropped the custody case

. Plaintiff stated that she spoke with Assistant S tate’s Attorne y Mike Fisher

about dropping the case : “I asked what it was that I neede d to do to m ake sure that there wouldn’t be any char g es ag ainst [Henderson] a

nd if I could drop the case .” Acc ording to pla intiff, Fisher stated that only the State could drop the case

. She related this information to Hende rson, who sat next to her in the courtroom, and Hende rson sug g ested that plaintiff not respond when her name

was called as a witness. Plaintiff further testified that she waited outside the courtroom in the afte rnoon whe n the case was called. The court entere d a nolle prosequiorder , noting in its written order that it was g ranting the State’s nolle prosequi motion due to plaintiff’s failure
to appea r as a witness and the State’s inability to proce ed without her testimony

. Plaintiff and Hende rson left the courthouse at 1:30 p.m. Plaintiff testified that, later that day
, she attended an appointment with L abak. ¶ 9 On May 23, 2006, plaintiff signe d a form that was draf ted by Condon, swea

ring that her May 8 absenc e from work was related to her participation in court proce eding s perta ining to

an act of sexual or d o m estic violence and that she was seeking medical attention or counseling as a result. Plaintiff was absent from work on J une 21, 2006. In a letter dated the

same day to L abak (and copying plaintiff), Condon reque sted clar ification as to how L abak was able to corr oborate plaintiff’ s May 8 court appear ance

. On either J uly 7 (per Condon)

or J uly 10 (per plaintiff), plaintiff informed Condon that L abak was not pr esent in c ourt on May 8. ¶ 10 On J uly 17, 2006, Condon, via a letter, informed plaintiff that, as a re sult of her fa ilure
to provide acc eptable corr oborating evidenc e, the bank wa s r ev er sing its position that plaintiff was entitled to leave under the Act on May 8, 2006, and that it would instead code that date as a paid vaca

tion day

. (Howe ver, plaintiff continued to pursue the matter as leave under the Act.) Condon also noted that she had not rec eived any response from L abak to her
reque st for clar ification and noted that plaintiff herse lf had informed Condon that L abak was

n o t prese nt at court on May 8, so he could not corr oborate plaintiff’s prese nce. She aga i n reque sted corr oboratingevidenc e. ¶ 11 I n a letter dated J une 27, 2006 (L abak letter No. 3), L abak responde d to Condon’s J une 21 letter, but plaintiff ref

used to permit L abak to rele ase the letter to the bank. In that letter, which plaintiff subsequently att ache d to her complaint, L abak stated that he could authenticate plaintiff’s attendanc e at the court date beca use he saw her as a patient “later that evening for a documente d appointment wher ein she spoke cre dibly of the specific s of the emotional experience .” Plaintiff testified that she did not turn in the letter to the bank beca use it did not ref

er to any court rec ord or document that L abak revie wed and he was not in court. “He could not corr oborate that I was ther e.” ¶ 12 On Aug ust 9, 2006, via letter, Condon ag ain reque sted from plai n t i ff co rr o b o ra t i n g

ev i d en ce o f t he court date and noted that she had not rec eived a response from L abak. Condon reque sted that plaintiff repor t to Condon’s office on August 14, 2006, at 9 a.m. with

corr oboratingevidenc e.

-4-¶ 13 Plaintiff did not report to work or Condon’s office on August 14, 2006. O n August 15,

2006, plaintiff was suspended for insubordination and misconduct for failure to provide
appro p ri at e validation of her court appea ranc e. On August 16, 2006, the bank terminated plaintiff’s employ

ment due to insubordination and misconduct for fa i l u re to follow
manag ement’s direc tions to provide written corr oboration to validate the court appea ranc e. ¶ 14 On Au gu s t 1 5
, 2 0 0 6
, p ri o r to her termination, plaintiff filed a complaint with th e Depa rtment, alleg ing a violation of the Act. Specifica lly
, she argued that the bank denied her statutory rig hts by retroa ctively reve rsing leave approva l and by hara ssing her. On September 22, 2006, the Depa

rtment found rea sonable ca u se for plaintiff’s claim that the statute had been violated. On May 1, 2007, plaintiff filed an amende d complaint with the Depa rtment, arguing that she was discharg ed as a result of taking leave under the Act and/or in reta liation for s u ch l eave

. She also alleg ed that the bank hara ssed her, discriminated ag ainst her, and d en i ed her rig hts under the statute, in that the bank: repe atedly reque sted information th at plaintiff did not have; retroa ctively withdrew its approva l and then suspended her for taking leave on May 8; discharg ed her for taking leave on that date; and reta liated ag ainst h er by discharg ing he r. ¶ 15 Hea

ring s wer e held in J une and J uly 2007. On August 1, 2008, the AL J issued his f inal

re co m m endations to the Direc tor in which he rec ommended that there be a findin g o f n o violation of the Act and that plaintiff’s complaint be denied. The ALJ found that both plaintiff and T.H. wer e victims under the Act and that pl aintiff met the statute’s notice require ments. Howeve r, the AL J further found that: (1) based in part on his neg ative
assessment of plaintiff’s cre dibilit y , plaintiff was not on valid leave under the Act; (2) plaintiff did not provide corr oborating evidenc e under t h e Ac t ; and (3) althoug h the bank committed improper actions (spec ifically
, its construction of “cor robora ting evidenc e” was

unrea sonable), they did not constitute violations of the statute beca use the bank did require

corr oborating evidenc e (showing that she prepa red for, attended, or p ar ticipated in the domestic batt er y proce eding ) and plaintiff did not provide it. The AL J also found that, beca use plaintiff did not preva il on her claim under the Act, the da

mag es and attorney fee s issues were moot. ¶ 16 The AL J ’s specific finding s conce rning plaintiff’s cre dibilit y wer e as follows. The AL J noted that, at the conclusion of the liability portion of the hear ing, he initially found plaintiff “g ener ally and overall cre dible[; ] howeve r, i n some are as, onl y by the s l i m m es t marg ins.” As to the attack, the AL J found plaintiff cre dible beca use there was other cre dible evidenc e, namely
, T.H.’s testimony
, to support her t es t i m o n y

. As to whether plaintiff prepa red for, attended, or participated in the domestic battery proce eding
, the AL J first found that plaintiff
was not a witness (as supported by p l ai n t i ff’s testimony and the nolle prosequi order) and that she did not attend the proce eding (as supported by plaintiff’s testimony). As to whether plaintiff prepa

red for or participa

ted in the proce eding
, the AL J found that plaintiff was not

cre dible. The AL J ’s somewhat positive assess m ent of plaintiff’s cre dibilit y during the liability portion of the hear ing “shifted substantially ag ainst her” during the damag es portion. The AL J noted that, during the liability portion, p l aint iff made inconsistent statements

conce rning her reporting o f m ed i cal conditions, such as bruising to her arms, and the y ear she obt ained a copy of t he domesti c battery case file (confusing 2006 and 2007). The AL J

-5-further found that, during

the damag es portion, plaintiff made oral chang es to a pre viously submitt ed affi d av i t conce rning place s of employ ment and the y ear she took rea l estate

course s (conf

using 2003 and 2007). The AL J found that (during both portions of the hear ing) plaintiff’s demea

nor during her principal testimony was substantially differ ent depending on the topic. The AL J found plaintiff nervous and (authe ntically ) imprecise or vague during her principal testimony
, but “unnatur ally prec ise” conce rning th e M ay 8, 2006, courthouse
events. Plaintiff “knew
, without hesitation, the name of the assig ned [a] ssist an t State’s Attorney [; ] she knew within a few minutes when court was in session and when it was not. This testimony did not compar e favor ably with [ p l ai n t i ff’s] g ener al inability to reme mber

corr ectly a specific y ear .” Finally
, the AL J fou nd that plaintiff’s demea nor substantially weig hed “a g ainst L abak L etter 3.” ¶ 17 On May 5, 2009, the Direc tor issued her final decision and order
, adopting and upholding the AL J ’s rec ommendations and d eny ing plaintiff’s complaint. Plaintiff soug ht adm i n i s t ra tive revie w in the circ uit court and, on October 4, 2010, the court aff irmed the Direc tor’s dec ision. P laintiff appe als.

¶ 18 I I . ANALYSI S ¶ 19 Plaintiff challeng es the Direc tor’s finding s that she: (1) was not on valid leave under the Act; and (2) did not provide sufficie nt corr oborating documents. For the following rea sons,

we r ejec t plaintiff’s first ar g ument and nee d not addre ss her sec ond claim.

¶ 20 A. Plaintiff’s Statement of F acts ¶ 21 Preliminaril y , we n o t e t h at p l ai n tiff’s statement of fac ts is argumentative. I llinois Supreme Court Rule 341(h)( 6) (ef f. Mar. 16, 2007) require s in part that a party ’s statement

o f fac ts contain “the fac ts nece ssary to an understanding of t he case, stated acc ura t el y an d fairly without arg

ument or comment.” Although our revie w of plaintiff’s statement of fac ts

reve als that it does not c omply with Rule 341(h)( 6), plaintiff’s violations of the rule do not hinder our revie w o f t he case

. We have disreg arde d arguments in plaintiff’s statement of fac ts and ca

ution plaintiff’s counsel to avoid such violations in future appea ls.

¶ 22 B. Standa rds of Review ¶ 23 J u d icial revie w of a Depa rtment decision conce rning t h e Ac t i s go v er n ed b y t h e Administrative Review L aw (735 I L CS 5/ 3-101 et seq. (West 2010)). 820 I L CS 180/ 35(a) (West 2010). I n a proce eding for administrative re v i ew, we revie w the decision of the

2 administrative agen cy , rathe r t han that of t he circuit court. W ade v. City of North Chicago Police Pe nsion Board , 226 I ll. 2d 485, 504 (2007). ¶ 24 I n an administrative r eview c ase, the standard of revie w depends on what is in dispute:

T he off ic e of the Att orn ey Gene ra l m ay int er vene, as it has done her e, on the Depa rt m ent ’s 2 beh al f in cas es of genera l publ ic import anc e, if the Depa rt m ent so cer ti fi es. 820 I LCS 180/ 35( a) (3) (W est 201 0).

-6-the fa cts, the law, or a mix ed question of f

act a nd law. Marconi v. Chicago Heights Police Pension Board
, 225 I ll. 2d 497, 532 (2006) ( per curiam ). Whe re t h e h i s t orica l fac ts are admitted or established, the controlli ng rule of law is undisputed, and the issue i s wh et her the fac ts satisfy the statutory standard, the case prese nts a mix ed question of fac t and law, for which the standard of revie w is “cle arly err oneous” ( AFM Messe nger Servic e, Inc. v. Departme nt of Employme nt Security
, 198 I ll. 2d 380, 391-94 (2001)) ; we will reve rse the
ag ency ’s decision only if we are “ ‘left with the definite and firm conviction that a mistake has been committed’ ” ( id. at 395 (quoting United States v. United States Gypsum Co.
, 333 U.S. 364, 395 (1948)) ). Howeve r, wher e the historical fac ts are admitted or established, but there is a dispute as to whether the g overning leg al provisions wer e interpre ted corr ectly by the administrative body
, the case prese nts a purely leg al question, for which our revie w is de

novo

. Hossfeld v. Illinois State Board of Elections
, 238 I ll. 2d 418, 423 (2010). Fur ther, we revie w de novo questions of statutory construction. Y oung-Gibson v. Board of

Education of the City of Chicago
, 2011 I L App (1st) 103804, ¶ 39. We reve rse ruling s on questions of fac t only if they are ag ainst the manifest weig ht of the evidenc e. Carpetland U.S.A., In c. v. Illinois Department of Employme nt Security , 201 I ll. 2d 351, 369 (2002).

¶ 25 C. The Act ¶ 26 Th e Ac t , wh i ch beca me eff ective on August 25, 2003 (Pub. Act 93-591 (ef f. Aug . 25, 2003) (adding 820 I L CS 180)), was enac ted to: ( 1) promote the State’s interest in r educing domestic or sexual violence by enabling victims to maintain financ ial independe nce to leave abusive situations and to reduc e the economic conseque nces of such violence to employ ers and employ ees; and (2) protec t the employ ment and civil rig ht s o f employ ees or their families who are victims of domestic or sexual violence. 820 I L CS 180/15(1), (2) (W est 2010). ¶ 27 Un d er the Act, employ ed victims of domestic or sexual violence and employ ee s wi t h family or household member s who are victims of such violence may “take unpaid leave to seek medical help, leg al assistance
, counseling
, safe ty planning
, and other assistance without penalty from their employ ers.” 820 I L CS 180/15(3) (West 2008). An employ ee may take up to 12 wee ks of unpaid leave from work to addre ss domestic or sexual violence by
, inter alia
, “see king leg al assistance or reme dies to ensure the health and safe ty of the employ ee or the employ ee’ s family or household member, including prepa ring for or participa

ting in any civil or criminal leg al proceeding related t o or derived from domestic or sex ual vi olence .” 820 3 I L CS 180/ 20(a) (1)( E), (a )(2) (West 2008). ¶ 28 To take leave under the Act, the employ ee must, if prac ticable, provide the employ er w ith

T he oth er per m is si ble bas es ar e: (1) see king m edi cal at te nti on or re coveri ng fr om inj uri es 3

cau sed by the viole nc e ; ( 2 ) o b t ai nin g ser vices fr om a victi m ser vices organi zati on; (3) obt ai nin g psychol ogical or oth er cou nse li ng; and (4) par ti ci pat ing in saf et y pla nni ng, re loc at ing, or ta kin g ot her
act ion s to incr eas e t he e m plo yee’s (o r t he e m

plo yee’s fa m il y or househ old m ember’ s) saf et y fr om fut ure domesti c or sex ual viole nce or to ens ure eco nomic sec uri ty. 8 2 0 ILC S 1 8 0/2 0(a )( 1) (W est 2010 ).

-7-at least 48 hours’ advanc e notice of his or her i n t ention to take such leave

. 820 I L CS

180/20(b) (West 2008). T h e s t at u te also contains a cer tification require ment, which is at issue in this appea l. “When an unschedule d absenc e occur s, the employ er may not take any action aga inst the employ ee if the employ ee, within a reason ab l e p er i od afte r t he absence
, provides cer

tificati o n ” as specifie d in the statute. Id. An employ er may require that the employ ee cer

tify that the employ ee or a family or household member is a victim of domestic

or sex ual vi olence and that the l eave is for a purpose enumerated in the statute

. 820 I L CS 180/20(c)( 1) (West 2010). I f so reque sted, the employ ee must provide the cer tification to his

or her employ er within a rea sonable period afte r it is reque sted. Id. An employ ee satisfies the

cer tification requir ement: “by providing to t he employ er a sworn statement of the employ ee, and upon obtaining suc h documents the e mploy ee sha ll provide: (A) doc umentation from an e mploy ee, a g ent, or voluntee r of a victim services

org anization, an att o rn ey , a member of the cler g y , or a medical or other profe ssional from whom the employ ee or t h e em p loy ee’ s family or household member has soug ht assistance in addre ssing domestic or sexual violence and the eff ects of the violence; (B ) a police or cour

t rec ord; or (C) other c orrobor ating evidenc e.” 820 I L CS 180/ 20(c) (2) ( West 2010). ¶ 29 An employ er may not “ interfe re with, r estrain, or deny the exercise of or the attempt to exercise any right provided under” the statute. 820 I L CS 180/20(f)( 1)(A) (West 2010). Fur ther, an empl oy er may not discharg e, hara ss, or otherwise discriminate ag ainst an employ ee with respe ct to compensation, terms, conditions, or privileg es of employ m ent beca use the individual e x erc ised his or her r ights unde r the statute or opposed any prac tice made unlawful by the statute. 82 0 I L C S 180/20(f)( 1)(B ) (West 2010). Specifica lly
, an employ er may n o t discriminate ag ainst an employ ee beca use, inter alia
, the individual “attende d, participated in, prepa red for, or reque sted leave to attend, participate in, or prepa re for a criminal or civil court proce eding rela ting to an incident of domestic or sexual violence of which the i ndividual o r a fa m i l y o r household member of the i ndividual was a victim.” 820 I L CS 180/ 30(a) (1)( B) (West 2008). ¶ 30 The Depa

rtment admi n i s t er s and enfor ces the Act and may , upon finding a violation,

awa rd damag es, equitable relief
, and attorney fee s and other costs. 820 I L CS 1 80/35(a)( 1) (West 2010).

¶ 31 D. Certification–L eg itimate Purpose ¶ 32 Under the Act’s cer tification require ment, an empl o y er may require that the employ ee certify that: (1) the empl o y ee o r a family or household member is a victim of domestic or sexual violence; and (2) the leave is for a purpose enume rated in the statute

. 820 I L CS 180/20(c)( 1) (West 2010). I t is undisputed that plaintiff was a victim of domestic violence. Thus, here , the threshold issue conc erningcer tification is whether

plaintiff’s leave wa s for

a permissible purpose. Specifica lly
, we fi rst addre ss the Direc tor’s finding that plaintiff’s

-8-absenc e from work on May 8, 2006, was not to seek “leg al assistance or reme dies to ensure

the health and safe ty of the employ ee or the employ ee’ s famil y or household member, including preparingfor or participating in any civil or criminal legal procee ding related to

or derive d

from domestic or sexual violence .” (Emphasis added.) 820 I L CS 180/20(a)( 1)(E)
, ( a) ( 2 ) ( West 2010); see also 820 I L CS 180/30(a)( 1)(B ) (West 2010) (prohibiting an emplo ye r from discriminating, including discharg ing, or reta liating ag ainst an individual beca use the individual “ attended, participated in, prepared for
, or reque sted leave to attend, participa te in, or prepa

re for a criminal or civil court procee ding relating to an incident of domestic or sexual v iolence of which the individual or a family or household membe r of the individual

was a victim
, or re q u est ed or took leave for any other rea son provided under Section 20” (empha sis added))

. ¶ 33 Aga i n , the question here is whether plaintiff’s alleg ed ac t i o n s o n M ay 8
, 2 0 0 6
, constituted the seeking of “lega l assistance or reme dies to ensure the health and safe ty of [pl aintiff] or [T.H.]
, including” attendance
, preparation for, or participation in “any civil or criminal leg al proce eding related to or derive d from domestic or sexual violence.” 820 I L CS 180/20(a)( 1)(E) (West 2010). Plaintiff testified that she and Hende rs o n agr eed that Hende rson would drop the pending custody petition if plaintiff dropped or did not proce ed with the domestic battery case

. Plaintiff also said that, while at the courthouse on May 8, 2 0 0 6
, s h e s p o ke with prosec utor Fisher about dropping the case “to make sure that there wouldn’t be any char g es ag ainst” Hende rson. Subsequently
, when she was called as a w it n e ss in the case , plaintiff did not respond, and the court enter ed a nolle prosequi order (as a result of her failure to appea

r). The re is no sug g estion in the rec ord that the State e ver r efiled the char g es ag ainst Hende rson, and there fore he was eff ectively acquitted. See People v. W atson , 394 I ll. 177, 179 (1946); see also People v. Daniels
, 187 I ll. 2d 301, 312 (1999) (“[a] motion to nol-pros is compara

ble to a motion to dism iss”). ¶ 34 I n her briefs to this court, plaintiff all but ignor es the t h re s h o l d q u es tion of leg itimate
purpose and focuse s instead on her attempts to cer tify her leave and the bank’s actions

conce rning her documentation. To the extent that she attempts to addre ss the propriety of the leave ’s purpose, plaintiff challeng es the Direc tor’s fi n d ings that plaintiff’s testimony
, espec ially conce rning the alleg ed courthouse events, was not cre dible and thus that she was not on valid leave. ¶ 35 As to plaintiff’s cre dibilit y , we conclude that the Direc tor’s finding s wer e not ag ainst the manifest weig ht of the evidenc e. The Direc tor did not find cre dible plaintiff’s testimony that she was prese nt at t he courthouse on M ay 8, 2006. The Director specifica lly found t hat, at the hear ing, plaintiff made inconsistent statements about repor ting arm bruising to her health

car e providers; she m ade oral chang es t o a pre viously submitt ed af

fidavit, including about the jobs she had held and the y ear she took rea l estate course s; an d t h at her demea nor substantially differ ed when testifying about the courthouse events. As to her demea nor, the Direc tor found that, during her principal testimony
, plaintiff “wa s nervous and imprecise or vague, but the imprecision was more authent i c[ ; ] for example, there wer e times when [pl aintiff] was not sure which person at [t he bank ] did a particula r act.” Howeve r, when addre ssing the co u

r th o u s e e v e nts , th e D ir e c to r f ound, plaintiff “bec ame unnatura lly prec ise[;] for examp l e, she knew, without hesitation, the name of the assig ned [a] ssistant State’s

-9-Attorney [; ] she knew within a few minutes when court was in session and when it was not.

This testimony did not co m p ar e favor ably with [pl aintiff’s] g ener al inability to reme mber

corr ectly a spec ific y ear .” ¶ 36 Plaintiff argues t hat t he Director erre d in her cred i b i l i ty assessment. S he contends that her memory lapses wer e minor and involved matters of littl e import to the case and that the
y ear of the rea l estate course s specifie d in the aff idavit was an “irr el evant ty po.” She also

asser ts that her prec ise rec ollection of the events at the courthouse on May 8 and L abak letter No. 3 belie a finding that she was not there

. Also, plaintiff challeng es the Direc tor’s finding s

conce rning her testimony about her bruising, urg ing that these finding s wer e not consistent with the Direc tor’s findingthat Hende rson ac tually strang led plaintiff. ¶ 37 We reje ct plaintiff’s claims. As to the Direc tor’s finding s conce rning plaintiff’s bruising
, plaintiff mischara cter izes the finding s. The Direc tor doubted plaintiff’s cre dibilit y based, in part, on her “inconsistent statements” as to the “re porting ” of the bruises. The rec ord clea rly ref lects that plaintiff did not repor t her bruising to D r. Kelly on Dec ember 6, 2005, but did report it to Br odermus on Dec ember 9, 2005. Fur ther, this finding does not contra dict the Direc tor’s fi nding that plaintiff was actua lly strang led by Hende rson (upon which the Direc t o r fo und that there was “other supportive cre dible evidenc e, specific ally T.H.’s testimony ”), beca

use the strangulation would not nece ssarily have resulted in arm bruising. (Plaintiff essentially conce des as much in her reply brief, wher e she states that, in the “ca se of st rangulation, mo s t p eo p l e focus on their neck, not their arms.”) Further, the Direc tor’s finding s conce rning plaintiff’s demea nor wer e not unrea sonable and are supported by the

rec ord. We disag ree that the fac t that her testimony conce rning the alleg ed courthouse events was pre cise be lies a findingthat she wa s not a ctually there

. As the Dire ctor e x plained, this testimony was in contra st to the rema inder of plaintiff’s testimony

. We also cannot conclude that the Dire ctor e rre d in finding tha t plaintiff’s “demeanor weig hed subst antially ag ainst” L abak letter No. 3 and that the fac t that she did not provide the letter to the bank befor e her suspension or termination weig hed ag ainst her. The letter ref err ed o n l y t o plaintiff’s “attenda nce” at the “cour

t date” and did not specify the nature of plaintiff’s alleg ed actions
at the courthouse. (Ind eed, by ref err ing to plaintiff’s attendanc e, it literally contra dicted plaintiff’s testimony that she did not attend the hear ing.) I n s u m , we fi nd no err or in the Di re ctor’s assessment that L abak letter No. 3 was of littl e, if any , value in corr obora t i n g plaintiff’s prese nce at the courthouse on May 8. Finally
, we also reje ct plaintiff’s argument that her memory lapses and ty pog raphic al err ors wer e minor and irrele vant. The Direc tor did
not find them very signific ant, but did fac tor them into her overa ll assessment of plaintiff’s

cre dibilit y , as was proper

. “[B]eca use t he we i ght of t he evidence and t he credibility of t he witnesses are within the province of the [age ncy], there need only be some competent

ev id e nce in the rec ord to support its finding s.” Iwanski v. Streamwood Police Pension Board
, 232 I ll. App. 3d 180, 184 (1992). In summary , the Director’s finding that plaintiff was not

cre dible (spec ifically
, that she was not at the courthouse on May 8, 2006) was not ag ainst the manifest weig h t o f t h e evidenc e. Acc ording ly
, her finding that plaintiff was not on valid leave under the Act wa s not clear ly err oneous.

-10-¶ 38 E. Certification–Sufficiency of Corrobor ating Documents ¶ 39 Plaintiff’s rema ining (and primary ) arguments on appea l addre ss her eff orts to doc ument the validity of her leave : she contends that she wa s t er m i n ated for failing to provide

corr oborating evidenc e, a failure that was cause d by the bank’s interfe r e n c e w it h her statutory rig hts when it g ave her improper leg al advic e t h at L abak could not corr oborate her leave

. Specifica lly
, she argues that the bank’s actions cause d her to f ail to give to the bank L abak letter No. 3 (whe rein L abak stated that he saw plai n tiff as a patient on the evening of May 8 and that she spoke about attending a court date) an d t hat the Direc tor err ed in failing to consider that letter as corr oborating evidenc e. Plaintiff also arg ues that the bank provided her

a draf t sworn statement that sug g ested that leave was available only for individuals who particip a t ed in a hearing and did not mention that one can t ake leave to attend or prepare for a hear ing. See 820 I L CS 180/20(a) (1)( E), 30(a) (1)( B) (West 2010)

. She complains that the bank sug g ested that it woul d ac ce p t o n ly a court order or a letter from her attorney as

cer tification of her

rig ht to leave, which clea rly contra dicted the a cce ptable for ms of proof listed in the statute. See 820 I L CS 180/ 20(c) (2) ( West 2010). ¶ 40 We need not addre ss plaintiff’s rema ining arg uments

. A s to the cer

tification requir ement, ag ain, the statute states that an employ er may require that t h e em p l oy ee cer tify that the employ ee was a victim of dom estic or sexual violence, which i s not at issue her e, and that the leave is for a purpose en u m er at ed in the statute, which we resolved above ag ainst plaintiff. 820 I L CS 180/20(c)( 1) (West 2010). Be cause plai n t i ff was not entitled to leave under the Act ( i.e.
, she did not miss work for a statutorily enumer ated purpose)
, we need not addre ss the propriety of the bank’s actions with respe ct to plaintiff’s eff orts to document her

rea sons for taki ng the leave

. That is, plaintiff’s failure to establish that she was entitled to leave under the Act pre cludes re cover y reg ardle ss of the bank’ s actions in this case.

¶ 41 I I I . CONCL USI ON ¶ 42 For the fore g oing rea sons, the judgme nt of the circ uit court of Kane County is a ffirme d.

¶ 43 Affir

med.

-11-