Di Modica v. Department of Employment Security

517 N.E.2d 1197, 164 Ill. App. 3d 445, 115 Ill. Dec. 511, 1987 Ill. App. LEXIS 3583
CourtAppellate Court of Illinois
DecidedDecember 31, 1987
Docket2-87-0173
StatusPublished
Cited by5 cases

This text of 517 N.E.2d 1197 (Di Modica v. Department of Employment Security) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Di Modica v. Department of Employment Security, 517 N.E.2d 1197, 164 Ill. App. 3d 445, 115 Ill. Dec. 511, 1987 Ill. App. LEXIS 3583 (Ill. Ct. App. 1987).

Opinion

JUSTICE INGLIS

delivered the opinion of the court;

Plaintiff, Phyllis DiModica, filed a complaint with the circuit court of Stephenson County for review of an administrative decision of defendant, Board of Review of the Illinois Department of Employment Security (Board), declaring her ineligible for extended unemployment benefits for the period between April 25, 1982, and April 16, 1983. The circuit court reversed the Board’s decision, and defendants appeal. On appeal, defendants contend that the circuit court erred in reversing the Board’s decision because the evidence supported the Board’s conclusion that plaintiff failed to engage in a systematic and sustained effort to find work. We affirm the decision of the circuit court.

Plaintiff was employed by Micro Switch, Inc., of Freeport, Illinois, for over 11 years before she was laid off in July 1981. She worked as a silk-screener during her last seven years with the company, and her final rate of pay was $6.51 per hour. Plaintiff applied for extended unemployment benefits pursuant to section 409 of “An Act in relation to a system of unemployment insurance” (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 409) after her regular benefits expired in April 1982. Her request was originally denied for reasons unrelated to the instant case, but she continued to fill out claim forms and appealed the original ruling. In July 1982, plaintiff procured employment as a waitress. She held this job until October 29, 1982, and then worked as a waitress at a different location from November 4 until December 13, 1982. These waitress positions paid $2.01 and $2.25 per hour, respectively.

In January 1983, plaintiff once again started claiming extended benefits. She filed claims for each week from December 27, 1982, through April 16, 1983. During the two relevant periods for which plaintiff sought extended benefits, a total of 24 weeks, she contacted at least 84 prospective employers, according to her claim forms. Most of the 84 contacts plaintiff specifically mentioned on the claim forms were in-person contacts. On a number of the forms, plaintiff also mentioned that she had contacted or recontacted other employers by phone, but did not specifically list those employers.

On the claim forms filed between April and June 1982, plaintiff listed her minimum acceptable wage as $5.80 per hour. She reduced this figure to $4 per hour for the forms filed in 1983 and even listed a wage of $2.25 per hour on some of the forms. On February 22, 1985, a claims adjudicator ruled that plaintiff was not eligible for extended benefits for the period between April 25, 1982, and April 16, 1983, because of her undue wage restriction and her failure to conduct a systematic and sustained work search. In his findings, the claims adjudicator concluded that plaintiff engaged in a work search that was not calculated to return her to the work force because the minimum wage she was willing to accept was $5.80 per hour, but she sought work at places where she could not possibly receive this rate of pay.

Plaintiff’s appeal from the ruling of the claims adjudicator was heard by a hearing referee on April 25, 1985. Plaintiff testified that she had been advised by a State job service representative that $5.80 per hour was the minimum amount she would need in order to meet expenses and that is the reason she originally used this figure on the claim form. Plaintiff stated that she was willing to accept a job at a lower figure. Plaintiff also testified that she did not list every single contact with potential employers and was afraid she would be questioned by the State if she listed the same contacts over and over. On May 20, 1985, the referee affirmed the decision of the claims adjudicator. Plaintiff appealed further to the Board, which affirmed the referee’s decision on March 18, 1986. The circuit court, however, concluded that plaintiff was entitled to receive the benefits and that the decisions of the Board, the referee, and the claims adjudicator were against the manifest weight of the evidence.

Under section 409K(l)(b) of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 409K(l)(b)), an individual is ineligible for extended benefits for any week of unemployment in his or her eligibility period if he or she fails to engage actively in seeking work as prescribed in section 409K(5) (Ill. Rev. Stat. 1985, ch. 48, par. 409K(5)). Section 409K(5) states that an individual is actively engaged in seeking work during a week if he or she has engaged in a systematic and sustained effort to obtain work during that week and if the individual produces tangible evidence that he or she has engaged in such an effort. Ill. Rev. Stat. 1985, ch. 48, par. 409K(5).

In ruling that plaintiff was not entitled to extended benefits, the claims adjudicator concluded in part that plaintiff had a minimum wage demand of $5.80 per hour, which was an unreasonable wage demand, that most of the places in which she sought employment did not pay that amount, and that her work search was, therefore, not calculated to return her to the work place. It is difficult to imagine how the claims adjudicator could have concluded that plaintiff’s work search was not designed to return her to the work place when it did, in fact, return her to the work place for five months as a waitress. Moreover, although plaintiff did list a minimum acceptable wage of $5.80 per hour on many of her claim forms, it is obvious that she was willing to accept employment for a lesser figure since she actually did so by taking the two waitress positions which paid $2.01 and $2.25 per hour. The aforementioned findings of the claims adjudicator are plainly against the manifest weight of the evidence.

The claims adjudicator also found that plaintiff failed to engage in a systematic and sustained work search. In Clark v. Board of Review (1984), 126 Ill. App. 3d 559, the court held that plaintiff, an unemployed painter, had not engaged in a systematic and sustained effort to find work during a certain one-week period and was not eligible for extended unemployment benefits. According to plaintiffs testimony in Clark, he contacted three potential employers in person and three by telephone during the week in question. (126 Ill. App. 3d at 560.) The court agreed with the Board of Review’s determination that plaintiff’s efforts did not constitute a systematic and sustained work search. 126 Ill. App. 3d at 561.

The court in Clark also stated that an individual seeking extended benefits must attempt to find work outside his or her field after failing to find work within the field and noted that plaintiff failed to do so. (126 Ill. App. 3d at 562.) Additionally, the court pointed out that the plaintiff failed to substantiate his work search. 126 Ill. App. 3d at 562.

In the instant case, plaintiff, who had been a silk-screener, not only sought, but procured employment in another field. Furthermore, plaintiff did substantiate much of her work search on the claim forms, listing 84 prospective employers she had contacted. The only remaining factor is whether the number of contacts made was sufficient to constitute a systematic and sustained work search.

In Clark, the plaintiff made three in-person contacts and three telephone contacts to prospective employers during the week in question.

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Bluebook (online)
517 N.E.2d 1197, 164 Ill. App. 3d 445, 115 Ill. Dec. 511, 1987 Ill. App. LEXIS 3583, Counsel Stack Legal Research, https://law.counselstack.com/opinion/di-modica-v-department-of-employment-security-illappct-1987.