Grafner v. Department of Employment Security

914 N.E.2d 520, 393 Ill. App. 3d 791
CourtAppellate Court of Illinois
DecidedAugust 6, 2009
Docket1-08-1858
StatusPublished
Cited by20 cases

This text of 914 N.E.2d 520 (Grafner 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
Grafner v. Department of Employment Security, 914 N.E.2d 520, 393 Ill. App. 3d 791 (Ill. Ct. App. 2009).

Opinions

JUSTICE GALLAGHER

delivered the opinion of the court:

Plaintiff Ellen Grafner appeals the trial court’s decision affirming the decision of the Board of Review (Board) of the Illinois Department of Employment Security (Department) that denied Grafner unemployment compensation benefits under section 601(A) of the Illinois Unemployment Insurance Act (Act) (820 ILCS 405/601(A) (West 2004)) relating to her prior employment at defendant St. Bartholomew parish (the Parish). Grafner first contends on appeal that St. Bartholomew’s nonattorney representative and employee engaged in the unauthorized practice of law during the Department’s administrative hearing by examining and cross-examining witnesses and making a closing remark. Grafner also claims that Father Malave’s testimony on behalf of St. Bartholomew was not credible, considering no written agreement existed that Grafner was hired to work until June 30, 2007, he never contacted Grafner when she did not appear for work after January 7, 2007, and he still hoped that Grafner would act as the Parish’s interim musician even though a member of the choir complained about Grafner. For the reasons stated below, we affirm.

BACKGROUND

Grafner began working for St. Bartholomew as a part-time musician on November 30, 2006. Grafner played music for two hours a week, which included choir rehearsal on Thursday nights and one mass on Sunday mornings. Grafner’s last day of work was on January 7, 2007.

Grafner filed for unemployment compensation benefits (benefits) on January 7, 2007. Grafner alleged that she was entitled to benefits because she was hired to work for the Parish during the Christmas season only, which ended with the mass of the Epiphany on January 7, 2007. St. Bartholomew took the position that Grafner voluntarily quit because she was not getting along with the choir and work as a musician remained available for Grafner.

The Department’s claim adjudicator rendered a decision on July 11, 2007, regarding Grafner’s benefits claim. The claim adjudicator held that Grafner was ineligible for benefits because she left work voluntarily without good cause attributable to the employer. The claim adjudicator determined that Grafner failed to exhaust reasonable alternatives to correct the situation before leaving her employment with the Parish.

Grafner filed an application for reconsideration of the claims adjudicator’s determination on July 12, 2007. Grafner in her application for reconsideration stated in part:

“I told [the pastor] I was looking for full-time employment and would help out for those weeks ending at New Year’s. He stated he had someone else who was the interim full-time person. I played for 1 mass on Sunday and Christmas Day 2 — masses and 1 mass each Sunday in December. Also, the evening of November 30, 2006 the pastor informed the 7-people in the choir that I was just helping out and that he was going to interview other people and ‘see what else is out there.’ I had a conversation with the Pastor Rev. Jason and said I needed more work. Fr. Jason said that he was not going to interview and hire a full-time person until July 2007. Rev. Jason was also looking for a music director who could speak Spanish. I WAS NEVER INTERVIEWED, NEVER HIRED for the position. NEVER SUBMITTED A RESUME TO FR. JASON.”

Grafner requested a hearing before an administrative law judge, also known as the hearing referee (Referee). A telephone hearing was conducted on August 12, 2007. During the hearing, an attorney represented Grafner. A nonattorney representative, Michael Johnson of NSN Employer Services, represented St. Bartholomew. At the beginning of the hearing, the Referee denied Grafner’s motion requesting that St. Bartholomew’s representative be prohibited from representing the employer because he was unauthorized to practice law.

The Referee identified the issue as “whether the claimant voluntarily left her job for reasons attributable to the employer.” During the hearing, Grafner testified that her original agreement with the Parish was that she would stay through the Christmas season, which concluded on the Feast of the Three Kings Epiphany on January 7. Grafner stated that no contract existed with the Parish regarding her employment, and it was just part-time work to come in and help the full-time person.

At the end of Grafner’s testimony, the Referee asked St. Bartholomew’s representative whether he wanted to question Grafner or to proceed with the questioning of his witness. The representative did not question Grafner and the Referee then questioned Father Malave.

During his testimony, Father Malave stated that the Parish wanted to hire a part-time musician from November to the end of June, at which time the Parish would hire a full-time musician. Father Malave stated that his hope was to have someone from the end of November to the end of June to build consistency with the Parish’s choir, the music program and for the people attending Sunday mass. Father Malave testified that no written agreement with Grafner regarding her employment duration existed. Grafner informed Father Malave in December that she was not feeling comfortable with the choir, that she was not enjoying her stay with the Parish and that she would be finishing up on January 7, 2007. Grafner told Father Malave that she did not feel connected, she did not feel like the choir appreciated her and she did not feel like she was successful with the choir.

Father Malave also testified that when Grafner started working, the Parish was looking for an interim director through June 30 and Grafner could have stayed employed until June 30. Father Malave stated that from the very first meeting the hope was that Grafner would have stayed through the end of June instead of having to find someone else to take over again and cause chaos with the choir.

St. Bartholomew’s representative did not question Father Malave at this point.

Upon Grafner’s attorney’s questioning of Father Malave, he stated that he never wrote a letter asking Grafner or telling her that he expected her to stay until June 30. Father Malave also testified that a choir member informed him that Grafner was not a comfortable fit with the choir, and he responded that Grafner was in place until June 30. Father Malave stated that another part-time musician could have been called if Grafner was not hired, but the other part-time musician was not really an option. The Parish’s representative then questioned Father Malave as to whether a written agreement existed that Grafner’s employment would only last until January of 2007. Father Malave’s response was no.

Following Father Malave’s testimony, Grafner testified that she did not discuss with Father Malave that he wanted or expected her to stay until June 30, 2007. Grafner also testified that if she had been told that the Parish wanted her to stay after January 7, 2007, she would have formally interviewed for the position because she needed the work and money.

The Parish’s representative then asked Grafner whether she told Father Malave that she wanted to leave because she was not getting along with the choir. Grafner responded no and that the original agreement was until January 7.

The Parish’s representative did not make a closing remark.

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Grafner v. Department of Employment Security
914 N.E.2d 520 (Appellate Court of Illinois, 2009)

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Bluebook (online)
914 N.E.2d 520, 393 Ill. App. 3d 791, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grafner-v-department-of-employment-security-illappct-2009.