Stevens v. Department of Employment Security

2021 IL App (1st) 191965-U

• Court: Appellate Court of Illinois
• Decided: February 16, 2021
• Docket: 1-19-1965
• Status: Unpublished

Opinion

2021 IL App (1st) 191965-U No. 1-19-1965 Order filed February 16, 2021 First Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ JEFFREY J. STEVENS, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. ) v. ) ) No. 19 L 50383 DEPARTMENT OF EMPLOYMENT SECURITY, ) DIRECTOR OF EMPLOYMENT SECURITY; BOARD ) OF REVIEW; and EDWARD D. JONES & COMPANY ) C/O EQUIFAX (TALX UCM SERVICES), ) Honorable ) Daniel P. Duffy, Defendant-Appellee. ) Judge, presiding.

JUSTICE PIERCE delivered the judgment of the court. Justices Hyman and Coghlan concurred in the judgment.

ORDER

¶1 Held: The Board of Review’s decision upholding the denial of plaintiff’s unemployment benefits is affirmed where the record supported a finding that plaintiff voluntarily left employment without good cause attributable to the employer.

¶2 Plaintiff Jeffrey J. Stevens appeals pro se from the circuit court’s order affirming a decision

of the Board of Review (Board) of the Department of Employment Security (Department). The No. 1-19-1965

Board’s decision affirmed a referee’s dismissal of plaintiff’s appeal from a claims adjudicator’s

denial of unemployment benefits. On appeal, plaintiff argues that the Board’s finding that he was

not entitled to unemployment benefits because he voluntarily left work without good cause

attributable to his employer, Edward D. Jones and Company (Edward Jones), was erroneous where

the facts showed Edward Jones terminated him, and thus he was eligible for benefits. We affirm.

¶3 The record reveals that plaintiff started work at Edward Jones in October 2018, but stopped

coming to work on February 4, 2019, due to a poor working relationship with his supervisor, Jeff

Stonecliffe. Plaintiff communicated with Thomas Korte from Edward Jones’s human resource

department between February 4, 2019 and February 15, 2019, but did not return to work. Korte

then discharged plaintiff over the phone on February 15, 2019.

¶4 On February 20, 2019, plaintiff filed a claim for unemployment benefits with the

Department. The application listed the reason for separation as “Discharged (Fired)” by Edward

Jones. In plaintiff’s application, he stated that Korte discharged him on February 15, 2019, after

plaintiff complained about Stonecliffe’s “belittling and condescending” manner. As the reason for

discharge, plaintiff stated that Korte “explained *** that Edward Jones felt that it wasn’t a good

fit.”

¶5 On March 4, 2019, Edward Jones filed a response contending that plaintiff “voluntarily

quit without notice” and said he “just couldn’t work here anymore.” In a fax dated March 5, 2019,

Christopher Sans Souci, an unemployment insurance consultant, stated on behalf of Edward Jones

that Korte did not discharge plaintiff and “was trying to coach” plaintiff and Stonecliffe on how to

“improve the relationship.”

-2- No. 1-19-1965

¶6 On March 7, 2019, a Department claims adjudicator denied plaintiff’s claim. The claims

adjudicator based the decision on the parties’ written submissions because the parties did not

respond to her attempts to contact them by telephone. In the determination, the claims adjudicator

stated that though Edward Jones had the ability to control the conditions at issue, plaintiff did not

exhaust his options for resolving the situation, and therefore left voluntarily without good cause

attributable to Edward Jones.

¶7 On March 11, 2019, plaintiff appealed from the claims adjudicator’s denial. Plaintiff

attached materials to the appeal, including emails and a physician’s note.

¶8 In an email to Greg Klaus of Edward Jones’s human resources department, dated February

5, 2019, plaintiff stated that working with Stonecliffe had become “unbearable.” Plaintiff asked

for help to “rectify the situation” and relayed that he told Stonecliffe he would not return to work

until he discussed “things with the appropriate person.” In response, Klaus wrote to plaintiff that

he forwarded the email to Korte.

¶9 In an email to Korte dated February 8, 2019, plaintiff listed “concerns” regarding

Stonecliffe’s “belittling” and “condescending” behavior, including Stonecliffe becoming

“extremely frustrated” when plaintiff asked for help. Plaintiff cited “several” instances of belittling

or condescending behavior. Plaintiff stated that he needed time away to address his excessive

stress, and that Korte informed plaintiff that he could take personal leave using sick days and

vacation days if Stonecliffe approved.

¶ 10 In an email to Korte dated February 11, 2019, plaintiff relayed that he spoke with “HR”

regarding leave and was told medical leave was unavailable. Plaintiff acknowledged that he could

-3- No. 1-19-1965

use personal leave with Stonecliffe’s approval, but thought it was “unreasonable” for him to use

“vacation/sick time given the circumstances.”

¶ 11 Plaintiff emailed Korte on February 12, 2019, and attached a note from Dr. Peter Jurgen

Kiefer from that day. Dr. Kiefer opined that plaintiff “should remain out of work until the hostile

work environment is addressed and improved” because he had “excessive stress” due to “being

belittled and condescended to on a daily basis.”

¶ 12 On March 27, 2019, a Department referee held a telephone hearing on plaintiff’s appeal.

Plaintiff and two representatives from Edward Jones, including Korte, appeared.

¶ 13 In response to questioning from the referee, plaintiff stated that he notified Edward Jones

when he did not come to work on February 5, 6, and 7, 2019. He also did not go to work on

February 8. Korte asked him to come in and work through the issues, but plaintiff said he did not

feel well enough. Plaintiff also did not go to work or call anyone at Edward Jones on February 9

because he was waiting for Korte to reply. He again did not return to work on February 11, then

went to the doctor on February 12. Prior to February 12, no doctor advised him to leave work. He

did not intend to quit. No one from Edward Jones told plaintiff there was no leave available on

February 7 or 8, and he learned there was no leave available during the February 15 conversation

in which Korte terminated him.

¶ 14 The referee asked plaintiff to describe Stonecliffe’s behavior. Plaintiff replied that

Stonecliffe assigned “too much work” that he expected to be “done too fast,” and had

“condescending and belittling outbursts” on a “regular basis.” Plaintiff described a specific

incident where Stonecliffe “rush[ed] through” showing plaintiff how to set up “calendar

reminders.” When plaintiff asked to see something again, Stonecliffe started explaining "the basics

-4- No. 1-19-1965

of online banking” even though Stonecliffe knew plaintiff had worked in banking and mortgage

for 25 years. According to plaintiff, the stress he experienced from dealing with Stonecliffe was

the only reason he stopped going to work. He was awaiting Korte’s response when Korte fired

him.

¶ 15 Korte also responded to questioning from the referee. The first time Korte spoke to plaintiff

after February 4, 2015, was on February 7, when plaintiff explained that he was “very stressed

out” due to “being belittled” by Stonecliffe during “periods of sudden condescending outbursts.”

Plaintiff did not say when he would return to work, but did say he planned on going to the doctor

and wanted voluntary leave. Korte and plaintiff next spoke on February 8, where plaintiff repeated

his concerns and said he wanted 30 days of leave. Korte said he would reach out to plaintiff with

“a decision on the next steps,” but that plaintiff needed to come back to the branch to “work

through” his concerns. Plaintiff refused, and also did not return to work from February 11 through

February 15. Edward Jones did not give plaintiff a written warning before February 15. Continuing

work was available had plaintiff returned.

¶ 16 The referee asked whether plaintiff been “discharged” or “resign[ed]?” Korte responded,

“He was discharged.” The discharge occurred in a phone call on February 15, 2019, between Korte

and plaintiff. During that call, Korte told plaintiff there was “no leave available in his situation,”

the position was “not a good fit for him,” and Edward Jones was “moving forward with

separation.” Korte initially stated that he did not think plaintiff had any remaining sick or vacation

time as of February 15, 2019, but later corrected himself and stated that plaintiff had “some”

vacation time remaining, though Korte was unsure how many days remained.

-5- No. 1-19-1965

¶ 17 On March 28, 2019, the referee affirmed the claims adjudicator’s denial. She concluded

that the evidence did not show that plaintiff left work for good cause attributable to the employer,

and was therefore ineligible for unemployment benefits. She found that plaintiff resigned when he

stopped reporting to work without leave available, and that plaintiff failed to show “specific

examples” of the supervisor’s conduct that would cause “a reasonable person to leave his job.”

The referee further found that plaintiff “did not take all steps to alleviate his complaints.”

¶ 18 On March 31, 2019, plaintiff appealed to the Board and attached the same materials, along

with a letter describing his arguments. Plaintiff also attached text message exchanges purportedly

between himself and Stonecliffe, dated February 5, 2019, in which plaintiff stated he was using a

sick day because he was “too stressed out.”

¶ 19 On June 7, 2019, the Board affirmed the referee’s decision. The Board found that plaintiff

believed Stonecliffe “became condescending,” but Edward Jones “took action to remedy the

situation.” Stonecliffe “continued to issue business directives.” Plaintiff did not feel that

Stonecliffe “accounted” for his concerns, then “stated” he would miss work because he was “ill

with stress.” Plaintiff wanted 30 days of leave without exhausting his paid sick time, but Edward

Jones’s policy did not permit this. After a two-week absence, Edward Jones terminated plaintiff

“because he had no leave available.” Plaintiff submitted a note from a doctor one week into his

absence that stated he “experienced stress” due to the work environment, but it did not contain a

“medical diagnosis.”

¶ 20 The Board concluded that plaintiff did not establish that Stonecliffe subjected him to

“abuse or hostility.” Instead, the evidence showed that Stonecliffe was “motivated by business

need,” and that Edwards Jones took steps to resolve the issue between plaintiff and Stonecliffe.

-6- No. 1-19-1965

The Board agreed with the referee that a reasonable person would not feel compelled to leave his

job based on the conditions plaintiff described, and instead would attempt to “work through the

issues.” The Board also found that the medical evidence plaintiff submitted did not justify a two-

week absence, and thus plaintiff was ineligible for the statutory medical exception.

¶ 21 On July 2, 2019, plaintiff filed a pro se complaint with the circuit court appealing the

Board’s decision. On September 25, 2019, the circuit court affirmed.

¶ 22 On appeal, plaintiff claims the Board erred in finding he was ineligible for unemployment

benefits because the facts demonstrate that Edward Jones terminated him, and he never voluntarily

left employment. 1

¶ 23 In an appeal from the denial of unemployment benefits, this court reviews the Board’s

decision, not that of the circuit court. Lojek v. Department of Employment Security, 2013 IL App

(1st) 120679, ¶ 31. The Board here found that plaintiff voluntarily left employment without good

cause attributable to the employer. Because this decision involves a review of the Board’s finding

of fact that plaintiff was not terminated and a question of law as to whether plaintiff established

good cause, this case presents a mixed question of law and fact. See Horton v. Department of

Employment Security, 335 Ill. App. 3d 537, 540-41 (2002) (citing AFM Messenger Service, Inc. v.

Department of Employment Security, 198 Ill. 2d 380, 395 (2001)). Mixed questions of law and fact

are reviewed under the clearly erroneous standard. AFM Messenger Service, Inc., 198 Ill. 2d at

395. The Board’s decision may be found clearly erroneous where the reviewing court is “left with

1 Plaintiff states in his pro se brief that he is appealing from a grant of summary judgment, but summary judgment is not at issue based on our review of the record.

-7- No. 1-19-1965

the definite and firm conviction that a mistake has been committed.” (Internal quotation marks

omitted.) Id.

¶ 24 The Unemployment Insurance Act states, in relevant part, that an employee shall be

“ineligible for benefits” for the week he or she left work “voluntarily without good cause

attributable” to the employer and “thereafter, until he or she has become reemployed.” 820 ILCS

405/601(A) (West 2018).

¶ 25 For purposes of the statute, “Good cause results from circumstances that produce pressure

to terminate employment that is both real and substantial and that would compel a reasonable

person under the circumstances to act [in] the same manner.” Childress v. Department of

Employment Security, 405 Ill. App. 3d 939, 943 (2010). Even where an employee has good cause

attributable to the employer for leaving employment, he must make reasonable efforts to resolve

the issue before leaving to qualify for unemployment benefits. See Lojek, 2013 IL App (1st)

120679, ¶ 36.

¶ 26 A claimant may also qualify for benefits if he is “deemed physically unable to perform his

or her work by a licensed and practicing physician.” 820 ILCS 405/601(B)(1) (West 2018). To

establish eligibility under this exception, a claimant must offer evidence that (1) health issues

justified him leaving work on the date of termination, (2) he informed the employer of the health

issues, and (3) he made himself available for other work that did not threaten his health. Lojek,

2013 IL App (1st) 120679, ¶ 42 (citing Nichols v. Department of Employment Security, 218 Ill.

App. 3d 803, 812 (1991)).

¶ 27 The record shows that plaintiff left work on February 4, 2019, without preapproved leave,

and did not return for two weeks, including for one week without any medical documentation.

-8- No. 1-19-1965

Plaintiff resisted using sick or vacation days for the leave he requested, and refused Korte’s request

that plaintiff return to work to resolve the issues with Stonecliffe. Korte then terminated plaintiff

in a phone call on February 15, 2019. The Board acknowledged that plaintiff initially left because

he felt Stonecliffe’s behavior was condescending and that Stonecliffe did not account for plaintiff’s

concerns, but found that Stonecliffe’s behavior was not hostile or abusive, and that Edward Jones

attempted to resolve the problem. In the Board’s estimation, a reasonable person would not have

felt compelled to leave employment due to Stonecliffe’s treatment, which was “motivated by

business need.” Instead, the Board believed a reasonable person would have worked to resolve the

issues with his or her supervisor. The Board also found that the doctor’s note from February 12,

2019, did not provide a specific medical diagnosis sufficient to make plaintiff eligible for the

statutory medical exception.

¶ 28 On this record, we cannot say the Board made a clear error in finding that plaintiff was not

terminated, and instead voluntarily left work without good cause attributable to Edward Jones.

Plaintiff argues that Korte’s testimony during the telephone hearing that he “discharged” plaintiff

establishes that plaintiff did not voluntarily leave employment. Korte’s testimony is not conclusive

of the issue, however, and the Board’s findings that plaintiff’s conduct amounted to voluntary

leaving is supported by the record. The law requires a claimant to take all available steps to resolve

issues with his employer before leaving employment. See Lojek, 2013 IL App (1st) 120679, ¶ 36.

Here, there is no dispute that Korte asked plaintiff to return to work to resolve the issues with

Stonecliffe, but plaintiff refused. This was sufficient grounds for the Board to conclude that

plaintiff was not terminated, but rather voluntarily left employment without good cause attributable

to his employer, and was thus ineligible for benefits. See id. ¶ 36; see also Walls v. Department of

-9- No. 1-19-1965

Employment Security, 2013 IL App (5th) 130069, ¶ 17 (claimant was not entitled to unemployment

benefits in part because he failed to exhaust available options to resolve his complaints before

refusing to work).

¶ 29 Plaintiff also contends that he did not voluntarily leave employment because he maintained

contact with Edward Jones during his absence and was expecting Korte to provide information

regarding leave options, not discharge him. We disagree. A reasonable person in plaintiff’s

position should have known his unilateral decision to leave work without preapproval, followed

by his continued absence and refusal to return to work for the limited purpose of resolving his

issues, could be interpreted as a voluntary leaving, regardless of the employer’s conduct after the

employee’s refusal to return. See Hamilton v. Board of Review of Department of Labor, 136 Ill.

App. 3d 50, 52-55 (1985) (employer was entitled to view claimant’s refusal to work mandatory

overtime without a medical diagnosis as a voluntary leaving such that claimant was ineligible for

unemployment benefits).

¶ 30 Finally, we find that the Board’s conclusion that plaintiff did not provide sufficient medical

evidence to qualify for the statutory exception was in accordance with law and did not constitute

clear error. The February 12, 2019 physician’s note did not diagnose plaintiff as “physically

unable” to work due to a medical condition, which the statute requires, and plaintiff supplied no

other medical evidence. See 820 ILCS 405/601(B)(1) (West 2018). Additionally, plaintiff did not

show that he made himself available to take on the other work that Korte testified was available,

which is also disqualifying. See Lojek, 2013 IL App (1st) 120679, ¶ 42.

- 10 - No. 1-19-1965

¶ 31 In sum, the Board’s decision was supported by the record, and thus did not constitute clear

error. Accordingly, we affirm the judgment of the circuit court of Cook County affirming the

decision of the Board.

¶ 32 Affirmed.

- 11 -