FIFTH DIVISION July 27, 2007
No. 1-06-2298
JANIE LIVINGSTON, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. ) v. ) ) THE DEPARTMENT OF ) EMPLOYMENT SECURITY; ) DIRECTOR OF EMPLOYMENT SECURITY; ) THE BOARD OF REVIEW; ) and LAKEVIEW NURSING AND ) REHABILITATION c/o ) PERSONNEL PLANNERS, ) Honorable ) Sheldon Gardner, Defendants-Appellees. ) Judge Presiding.
JUSTICE GALLAGHER delivered the opinion of the court:
Plaintiff Janie Livingston appeals from the denial of her
claim for unemployment insurance benefits under the Unemployment
Insurance Act (Act) (820 ILCS 405/100 et seq. (West 2004)).
Defendant Lakeview Nursing and Rehabilitation (Lakeview)
discharged plaintiff from her job as a certified nursing
assistant after she allegedly slapped the face of an elderly
resident, Dolores Johnson.
On appeal, plaintiff contends that she neither slapped 1-06-2298
Johnson nor willfully engaged in work-related misconduct. We
affirm.
Plaintiff worked for Lakeview for 25 years, from June 1980
until her discharge in September 2005.1
A telephone hearing was held on November 23, 2005. During
the telephone hearing, four witnesses testified.
Melissa Casillas of Lakeview's human resources department
testified that plaintiff worked as a certified nursing assistant
from June 7, 1980, until she was discharged on September 15,
2005.
Mary Langel, Lakeview's director of nursing, testified that
she discharged plaintiff on September 15, 2005. Langel told
plaintiff that the reason for her discharge was that on September
5, plaintiff had abused a resident, Dolores Johnson, by slapping
Johnson's face. Langel did not witness the incident. When the
referee asked Langel what plaintiff said after Langel told her
she had slapped a resident, Langel testified:
"She said that she did not slap her.
That she did put her hand--face, tell her
1 The record reflects several different dates in September
2005 for the date of the incident and the date plaintiff was
discharged.
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that she couldn't behave that way. The
resident was angry with [plaintiff] because
she didn't want to get up.
* * *
She said that she put her hand on the
resident's face and said you can't do that.
We don't act like that, or something to those
words."
Langel testified that plaintiff demonstrated what she had
done, and that plaintiff's remarks to her were a basis for
discharge because the way plaintiff placed her hand on the
resident's face and scolded her was inappropriate. Langel
testified:
"She put her hand on her face kind of
like holding her face, you know what I mean?
And she said you can't act that way or we
don't act this way, something to that respect
[sic]."
Langel testified further that plaintiff had been previously
warned about inappropriate treatment of a resident in August
2005. Langel explained that plaintiff worked the night shift,
and that when the day shift arrived, they found that a resident
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had been tied to the bed. When Langel asked plaintiff about
that, plaintiff replied that the resident had probably done it
herself. Langel testified that plaintiff had been there "a very
long time" and that, therefore, Langel decided to move plaintiff
to another floor where the residents were more alert and
oriented, and to observe plaintiff closely.
Gwendolyn King testified that she was a certified nursing
assistant and that she witnessed the slapping incident, which she
said occurred in Dolores Johnson's room at approximately 7 a.m.
on September 11, 2005. King had just left the lunch room near
Johnson's room and was taking a resident to the bathroom. When
King passed by Johnson's door, King heard Johnson arguing loudly
and yelling, "'[S]top it, stop doing that.'" Johnson was sitting
in her wheelchair. To King's knowledge, plaintiff did not have a
hearing problem. Johnson was loud with "a lot of" the staff.
Johnson was yelling. Plaintiff was not yelling. King did not
hear plaintiff say anything, but whatever Johnson had said
"apparently made [plaintiff] angry" because as King passed by the
door, she saw plaintiff's hand come down and slap Johnson across
the face. King testified that she actually saw plaintiff slap
Johnson. King also heard the slap. Johnson, who was "very much"
mentally competent, appeared "dumbfounded." King reported the
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incident to her charge nurse. Although King only saw plaintiff
coming and going because they worked different shifts, King
recognized plaintiff and had said good morning to her in the hall
just before the incident occurred. King did not see a bruise on
Johnson from the slap. Johnson had a little redness to the side
of her cheek, but Johnson always had pink cheeks anyway.
Plaintiff testified that she did not slap Johnson and that
she only "touched her face." Plaintiff testified:
"I took my index finger and I touched
her on the face, said that's not nice to do.
It's not nice to fight people when they're
trying to get you up for breakfast."
When asked if it was necessary to touch Johnson's face,
plaintiff testified:
"Well she had made a brace at me with
both her hands and she had a very unusual
look on her face. And I was trying to calm
her down."
When asked if she thought it was necessary to touch Johnson
to calm her down, plaintiff testified, "No." Plaintiff testified
that she needed to calm Johnson down because Johnson looked like
she was going to hit plaintiff. Plaintiff testified that usually
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she and Johnson talked during the night, and that she usually
tapped Johnson's jaw. Plaintiff admitted that it was "not
really" appropriate for her to touch Johnson on the face.
Plaintiff did so to calm her down and keep her "low key."
Plaintiff talked to her at the same time. Plaintiff testified,
"I don't think I did wrong." Plaintiff agreed that she was not
supposed to touch a patient unless it was necessary for the
patient's care. Plaintiff testified that by touching Johnson she
was caring for her, but plaintiff admitted that it was neither
necessary nor appropriate to touch Johnson in that way to care
for her. Plaintiff testified that she knew she should not touch
Johnson unless it was necessary and that it was not necessary in
this case. Plaintiff did not think that she had done anything
wrong. Johnson was being a little combative, but plaintiff did
not report that to the nurse. Plaintiff tried to do the job that
she was assigned to do. Plaintiff remembered that she told the
local office that she had tapped Johnson on the jaw with her
index finger and that she was aware of the policy.
King then testified that she saw plaintiff slap Johnson
"with the back of her hand." King testified further, "Cause she
was standing sideways so she just took it back and just kind of
like slapped her."
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Plaintiff then testified again that she did not slap
Johnson.
On November 28, 2005, the referee stated in a written
decision that the issue was whether plaintiff was discharged for
misconduct connected with work within the meaning of section
602(A) of the Act. 820 ILCS 405/602(A) (West 2004). The referee
found that plaintiff was discharged because she had "slapped a
patient on the face, contrary to the employer's known rules."
The referee stated that plaintiff was not eligible for
unemployment insurance benefits because she knew that it was
improper to slap a patient on the face but did so anyway, and her
conduct was within her control. Plaintiff filed a pro se appeal
in which she argued that she did not slap the patient, and that
after 25 years of work at the same place, she would know better.
The Board of Review of the Department of Employment Security
(Board) affirmed the referee's decision. The Board found that
the referee's decision was supported by the record and the law.
The Board incorporated the referee's decision as part of the
Board's decision.
Plaintiff sought administrative review in the circuit court.
See 735 ILCS 5/3-101 et seq. (West 2004).
The circuit court entered an order affirming the Board's
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decision. The record does not contain a transcript of any of the
proceedings in the circuit court. Plaintiff has appealed from
the circuit court's order.
On appeal, plaintiff contends that she did not slap Johnson
or willfully engage in work-related misconduct. Plaintiff argues
that she "[a]t best" "violated a reasonable rule of the nursing
home regarding inappropriate touching of the resident, by using
bad judgment." Plaintiff asserts that she considered the
touching to be a form of care to "calm down a highly agitated
resident," and an attempt to help the resident, not a deliberate,
willful violation of a rule. Plaintiff concludes that the
manifest weight of the evidence does not show deliberate, willful
conduct on her part.
The Board responds that its decision denying unemployment
insurance benefits should be affirmed because its finding that
plaintiff slapped a patient was not against the manifest weight
of the evidence, and its conclusion that the slap constituted
work-related misconduct was not clearly erroneous.
We have reviewed the record and find no basis to disturb the
judgment of the circuit court.
This court reviews the Board's decision. Perto v. Board of
Review, 274 Ill. App. 3d 485, 491-92 (1995). The Board is the
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trier of fact. Nykaza v. Department of Employment Security, 364
Ill. App. 3d 624, 628 (2006). The Board's purely factual
findings are "prima facie true and correct" (see Horton v.
Department of Employment Security, 335 Ill. App. 3d 537, 540
(2002); 735 ILCS 5/3-110 (West 2004); 820 ILCS 405/1100 (West
2004)), are reviewed under the manifest weight of the evidence
standard (Carpetland U.S.A., Inc. v. Illinois Department of
Employment Security, 201 Ill. 2d 351, 369 (2002)), and will not
be reversed unless they are against the manifest weight of the
evidence (In re Austin W., 214 Ill. 2d 31, 56 (2005)).
"Courts may not consider evidence outside of
the record of the administrative appeal,
reweigh the evidence to determine where the
preponderance lies, or evaluate the
credibility of the witnesses." In re Austin
W., 214 Ill. 2d at 56.
If the facts are not in dispute, the plaintiff's eligibility
for unemployment insurance benefits is a question of law and is
reviewed de novo. International Union of Operating Engineers,
Local 48 v. Illinois Department of Employment Security, 215 Ill.
2d 37, 62 (2005). The Board's decisions involving purely
questions of law are reviewed de novo. Carpetland U.S.A., Inc.,
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201 Ill. 2d at 369.
If the Board's decision presents a mixed question of law and
fact, it is subject to an intermediate standard of review for
clear error. Carpetland U.S.A., Inc., 201 Ill. 2d at 369. A
mixed question of law and fact involves the legal effect of a set
of facts. Manning v. Department of Employment Security, 365 Ill.
App. 3d 553, 557 (2006); Moss v. Department of Employment
Security, 357 Ill. App. 3d 980, 984 (2005).
"Stated another way, a mixed question is one
in which the historical facts are admitted or
established, the rule of law is undisputed,
and the issue is whether the facts satisfy
the statutory standard, or whether the rule
of law as applied to the established facts is
or is not violated." Moss, 357 Ill. App. 3d
at 984.
A mixed question of law and fact is subject to an
intermediate standard of review, the "clearly erroneous" standard
of review. AFM Messenger Service, Inc. v. Department of
Employment Security, 198 Ill. 2d 380, 392 (2001); Manning, 365
Ill. App. 3d at 557; Moss, 357 Ill. App. 3d at 984; Chicago
Messenger Service v. Jordan, 356 Ill. App. 3d 101, 106 (2005).
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The "clearly erroneous" standard of review "is largely
deferential to the agency decision." Chicago Messenger Service,
356 Ill. App. 3d at 106-07.
"Under the clearly erroneous standard, we
give somewhat less deference to the agency
than we would if the decision related solely
to a question of fact, because the decision
is based on fact-finding that is inseparable
from the application of law to fact."
Carpetland U.S.A., Inc., 201 Ill. 2d at 369.
The Board's decision concerning a mixed question of law and
fact is clearly erroneous only if, based upon the entire record,
the court of review definitely and firmly believes that a mistake
has occurred. Carpetland U.S.A., Inc., 201 Ill. 2d at 369; AFM
Messenger Service, Inc., 198 Ill. 2d at 395; Chicago Messenger
Service, 356 Ill. App. 3d at 107; Horton, 335 Ill. App. 3d at
540. A court of review will not reweigh the evidence or
substitute its judgment for that of the Board. Horton, 335 Ill.
App. 3d at 540.
The facts, as stated above, were disputed. King testified
that the incident occurred on September 11, 2005, a different
date from the date specified by Langel. But King testified
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further that she knew who plaintiff and Johnson were, she heard
Johnson arguing and yelling, and she saw and heard plaintiff slap
Johnson. Plaintiff testified that she did not slap Johnson, she
only touched Johnson to calm her down. The Board's finding that
plaintiff had slapped Johnson, an elderly nursing home resident,
was not against the manifest weight of the evidence.
Even assuming that plaintiff touched instead of slapped
Johnson, plaintiff conceded that the touching was neither
necessary nor appropriate. She attributed it to bad judgment on
her part, not deliberate or willful misconduct. However, the
Board's conclusion that plaintiff was disqualified due to work-
related misconduct was not clearly erroneous or contrary to law.
Section 602(A) of the Act, entitled "Discharge for misconduct--
Felony," states in part:
"An individual shall be ineligible for
benefits for the week in which he has been
discharged for misconduct connected with his
work and, thereafter, until he has become
reemployed ***. *** For purposes of this
subsection, the term 'misconduct' means the
deliberate and willful violation of a
reasonable rule or policy of the employing
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unit, governing the individual's behavior in
performance of his work, provided such
violation has harmed the employing unit or
other employees or has been repeated by the
individual despite a warning or other
explicit instruction from the employing
unit." 820 ILCS 405/602(A) (West 2004).
See also Manning, 365 Ill. App. 3d at 557.
A reasonable rule concerns "standards of behavior which an
employer has a right to expect" from an employee. Bandemer v.
Department of Employment Security, 204 Ill. App. 3d 192, 195
(1990). Willful conduct stems from an employee's awareness of,
and conscious disregard for, a company rule. Wrobel v.
Department of Employment Security, 344 Ill. App. 3d 533, 538
(2003); Lachenmyer v. Didrickson, 263 Ill. App. 3d 382, 389
(1994). Harm need not be actual harm and can consist instead of
potential harm. Greenlaw v. Department of Employment Security,
299 Ill. App. 3d 446, 448 (1998); Brodde v. Didrickson, 269 Ill.
App. 3d 309, 311 (1995).
Here, it was not clearly erroneous or contrary to law for
the Board to conclude that plaintiff willfully and deliberately
violated a reasonable policy and caused potential harm to
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Lakeview.
Plaintiff was a certified nursing assistant who worked with
elderly nursing home residents. Plaintiff was seen slapping one
of the elderly nursing home residents. Plaintiff was aware of
the policy against inappropriate touching. Instead of making an
effort to comply with Lakeview's requirements, plaintiff went
ahead and slapped, or inappropriately touched, Johnson's face.
Johnson was elderly and was sitting in a wheelchair. Plaintiff's
conduct was conscious, willful, and deliberate.
At a minimum, a certified nursing assistant should not be
allowed to slap the face of an elderly resident of a nursing home
or inappropriately touch the face of an elderly resident of a
nursing home. Therefore, a policy prohibiting certified nursing
assistants from slapping, or inappropriately touching, the face
of an elderly resident of a nursing home is reasonable.
Plaintiff has conceded on appeal that the policy is reasonable.
Plaintiff's conduct was not repeated after a prior warning,
because she had not received any prior warning about slapping or
inappropriately touching patients. She had received a prior
warning about restraining a patient. But she had received no
prior warning specifically about slapping or inappropriately
touching a patient, which from plaintiff's own testimony that she
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usually tapped Johnson's jaw, appears not to have been a one-time
occurrence. Therefore, the issue boils down to harm.
Plaintiff's conduct caused actual harm to Lakeview. Another
certified nursing assistant, King, was required to take time away
from her duties with patients to report what she had seen and
heard. This temporarily hindered King's ability to do her job,
temporarily deprived Lakeview of King's services, and amounted to
actual harm within the meaning of section 602(A). See
Caterpillar, Inc. v. Department of Employment Security, 313 Ill.
App. 3d 645, 655 (2000). Furthermore, a nursing home has a duty
to provide an environment free from abuse. See Mason v.
Department of Public Health, 326 Ill. App. 3d 616, 620, 624
(2001) ("abusive and degrading treatment," "disparaging,
derogatory, humiliating, harassing, or offensive conduct by a
nursing home employee"); see also 210 ILCS 45/2-107, 1-103 (West
2004).
Even assuming that plaintiff's conduct did not cause actual
harm to Lakeview, potential harm may amount to misconduct. See
Greenlaw, 299 Ill. App. 3d at 448; Brodde, 269 Ill. App. 3d at
311. However, there is a split in the authorities as to whether
the prospect of future harm constitutes harm within the meaning
of section 602(A) of the Act.
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For example, in Bandemer, 204 Ill. App. 3d at 195, the
misconduct consisted of a sales manager's failure to notify the
store manager that she was sick and her failure to open the store
that day. The appellate court observed that potential customers
could not shop at the store and that the threat of future
financial loss was harmful to the employer.
In Winklmeier v. Board of Review of the Department of Labor,
115 Ill. App. 3d 154, 155-56 (1983), the misconduct consisted of
filing false medical claims, which could cause higher insurance
costs and financial loss to the employer.
By way of contrast, in Zuaznabar v. Board of Review of the
Department of Employment Security, 257 Ill. App. 3d 354, 356-57
(1993), which plaintiff cited, the misconduct consisted of
negligent and careless driving that did not actually harm the
employer.
In Kiefer v. Department of Employment Security, 266 Ill.
App. 3d 1057, 1062-63 (1994), the misconduct consisted of selling
insurance, which carried only a remote and speculative risk of
harm.
Kiefer and Zuaznabar are distinguishable from the present
case. In the present case, the misconduct was not merely
careless or negligent, unlike Zuaznabar, and did not carry merely
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a remote risk of harm to Lakeview, unlike Kiefer; rather, the
misconduct consisted of deliberately slapping (or deliberately
and inappropriately touching) the face of an elderly woman
sitting in a wheelchair. Plaintiff, a certified nursing
assistant at Lakeview for 25 years, was aware that her conduct
was inappropriate and in contravention of Lakeview's policy. The
misconduct in this case was willful and deliberate, and the
potential harm to Lakeview was not remote. The potential harm
caused by such conduct included Lakeview's potential exposure to
tort liability, and potential damage to Lakeview's reputation.
It was not clearly erroneous or contrary to law for the Board to
conclude that it was reasonable for a nursing home to require
that its certified nursing assistants not slap or inappropriately
touch the residents of the nursing home, and particularly elderly
residents in wheelchairs. This was neither an isolated
occurrence nor an accident: plaintiff's conduct was deliberate
and willful, in conscious contravention of Lakeview's policy
against inappropriate touching, and caused actual and potential
harm to Lakeview. The Board's conclusion that plaintiff had
committed disqualifying misconduct was not clearly erroneous or
contrary to law.
The cases plaintiff cited are distinguishable. We have
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already discussed Zuaznabar, 257 Ill. App. 3d at 356-57, in which
the misconduct consisted of careless and negligent driving.
In another case cited by plaintiff, Crowley v. Department of
Employment Security Board of Review, 190 Ill. App. 3d 900, 903-04
(1989), the alleged misconduct consisted of a bus driver's
refusal to discuss customer complaints when he was off duty and
not being paid. The appellate court held that this was not
misconduct because the bus driver was entitled to be compensated
for the time he spent off-duty discussing customer complaints,
and because the bus driver had "a justified, good-faith belief"
that his employer was violating a statute by not compensating him
for the off-duty meetings. In the present case, plaintiff
admitted that her conduct was neither necessary nor appropriate.
Therefore, she cannot reasonably contend that it was in good
faith. Even if she did act in good faith, her conduct was not
justified. The bus driver's conduct was justified because a
statute required that he be compensated for the time spent in the
off-duty meetings.
In Caterpillar, Inc. v. Fehrenbacher, 286 Ill. App. 3d 614,
622-23 (1997), the alleged misconduct, displaying a pro-union
sign in a truck, was not work-related because it did not occur at
the workplace, did not relate to the performance of the
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employee's job, and did not affect the performance of his work.
Here, plaintiff's conduct in slapping or inappropriately touching
Johnson's face was work-related because it occurred at the
workplace and related to plaintiff's performance of her job. We
have considered, and rejected, plaintiff's arguments and case
citations.
For the foregoing reasons, we affirm the judgment of the
circuit court and hold that plaintiff was not entitled to
unemployment insurance benefits.
Affirmed.
O'BRIEN, P.J., and O'MARA FROSSARD, J., concur.
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