                                                      FOURTH DIVISION
                                                    November 18, 2010


No. 1-09-2781

BARBARA L. PHISTRY,                     )   Appeal from the
                                        )   Circuit Court of
                Plaintiff-Appellee,     )   Cook County.
                                        )
v.                                      )
                                        )
THE DEPARTMENT OF EMPLOYMENT            )   No. 09 L 50687
SECURITY; DIRECTOR, THE DEPARTMENT      )
OF EMPLOYMENT SECURITY; BOARD OF        )
REVIEW;                                 )
                                        )
                Defendants-Appellants   )
                                        )
                                        )
                                        )
(EUGENE C. DECKER,                      )   Honorable
                                        )   Elmer James Tolmaire III,
                Defendant).             )   Judge Presiding.


     PRESIDING JUSTICE GALLAGHER delivered the opinion of the

court:

     Defendants, the Department of Employment Security

(Department), Director of the Department, and Board of Review

(Board), appeal from an order of the circuit court of Cook

County, reversing the ruling of the Board that plaintiff, Barbara
Phistry, was ineligible for unemployment benefits from Dr. Eugene

C. Decker (employer), under section 602(A) of the Illinois

Unemployment Insurance Act (Act) (820 ILCS 405/602(A) (West

2008)) due to misconduct in connection with her work.        On appeal,

defendants claim that plaintiff committed misconduct when she

made personal charges on her employer's credit card without his

permission.   Plaintiff has not filed a brief in response;

however, we may proceed under the principles set forth in First
1-09-2781



Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d

128, 133 (1976).

     The record shows that plaintiff was employed as the full-

time office manager for the dental office of Dr. Eugene C. Decker

from 2001 until her termination in September 2008.   Following her

termination, plaintiff filed a claim for unemployment benefits,

to which her employer objected.   A Department claims adjudicator

ruled that plaintiff was ineligible for benefits because she was

terminated for misconduct connected with her work.

     Plaintiff then filed an administrative appeal, and a

Department referee conducted a telephone hearing where both

plaintiff and the employer testified.   During that hearing, Dr.

Decker stated that plaintiff was an authorized user of three

office credit cards.    The office had no written policy regarding

the employees’ use of credit cards, and although Dr. Decker did

not inform plaintiff that the cards were only to be used for

office-related purchases, he considered it "common sense" and an
"unspoken policy" that the cards were to be limited to office-

related purchases.

     On September 16, 2008, while Dr. Decker was on vacation, he

received an e-mail message stating that he had earned points on

one of the office credit cards for using it at a restaurant that

he did not patronize.   Upon further investigation, Dr. Decker

learned that plaintiff had made unauthorized personal charges on




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the card over a 30-day period in August and September totaling

$1,131.90.

     When Dr. Decker returned from vacation on September 29,

2008, he confronted plaintiff about the charges.    She initially

denied making them, but then admitted to doing so.    Plaintiff

told him that she did not tell him about the purchases because

she had not seen him and that she intended to repay the money.

Dr. Decker, however, related that he had seen plaintiff since she

made the purchases in August and that he was available by cell

phone and email during his vacation.    He also stated that his

business never recovered the money from plaintiff’s purchases.

     During the hearing, plaintiff testified that she did not

realize that she was not permitted to use the credit cards for

personal purchases and that she did not contact Dr. Decker

regarding the purchases in question because he was on vacation

and she did not want to disturb him.    She related her prior use

of an office credit card to have an office birthday party for her
sister, who was also an employee, and that Dr. Decker refused her

offer for reimbursement.    Plaintiff also stated that she had used

an office credit card a few years ago to rent a carpet cleaner

for her residence, and when she informed Dr. Decker about it

afterwards, he did not indicate that he found her use of the card

improper.    Dr. Decker, however, did not recall these events.




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1-09-2781



       In regard to the spending that caused her termination,

plaintiff stated that she charged the personal items because she

and her children had nothing to wear to her mother’s wake.      She

also stated that she continued working during the period her

mother was ill and died, and that she did not remember to inform

Dr. Decker of her purchases on the business credit card.

       The referee found that plaintiff had used the office credit

card for personal use before and that Dr. Decker did not request

her to reimburse the company for the debt.    The referee then

concluded that plaintiff was not disqualified for benefits based

on misconduct, where it had become common practice to make

personal purchases with the office credit card, such that no

reasonable rule existed prohibiting personal purchases.    The

referee also concluded that Dr. Decker was not harmed because he

indicated that he would use plaintiff's purchases as a tax write

off.

       On review, the Board concluded that plaintiff was ineligible
for unemployment benefits because she was terminated for

misconduct in connection with her work.    The Board found that

although no formal policy existed for company credit card usage,

plaintiff's examples of past use did not constitute implied

permission to use the credit card for personal purchases.    It

also concluded that plaintiff's actions were willful in that she

made multiple charges over a 30-day period and never asked




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1-09-2781



permission to do so.   It also found that the employer had been

harmed because Dr. Decker lost trust in his employee, never

recovered the funds charged to the account, and incurred the cost

of training a new office manager.

     Plaintiff subsequently filed a complaint for administrative

review in the circuit court of Cook County.    That court reversed

the Board, finding that its decision was clearly erroneous.

Defendants now contest that ruling on appeal.    They maintain that

the Board’s decision finding plaintiff disqualified from

receiving unemployment benefits based on her misconduct under the

Act was not clearly erroneous.

     This court reviews the decision of the Board rather than the

circuit court or the referee.     Sudzus v. Department of Employment

Security, 393 Ill. App. 3d 814, 819 (2009).    The question of

whether an employee was terminated for misconduct under the Act

involves a mixed question of law and fact to which we apply the

"clearly erroneous" standard of review.     AFM Messenger Service,
Inc. v. Department of Employment Security, 198 Ill. 2d 380, 395

(2001); Oleszczuk v. Department of Employment Security, 336 Ill.

App. 3d 46, 50 (2002).   An agency decision will be deemed clearly

erroneous where a review of the record leaves the court with a

definite and firm conviction that a mistake has been committed.

AFM Messenger Service, 198 Ill. 2d at 395.    For the reasons that

follow, we find this is not such a case.




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1-09-2781



     Section 602(A) of the Act disqualifies a former employee

from receiving unemployment benefits if she was discharged for

misconduct connected with her work.    820 ILCS 405/602(A) (West

2008); Grigoleit Co. v. Department of Employment Security, 282

Ill. App. 3d 64, 68 (1996).   Misconduct is defined as (1) a

deliberate and willful violation of (2) a reasonable rule or

policy (3) that harms the employer or other employees or has been

repeated by the former employee despite a warning or other

explicit instructions from the employer.     Sudzus v. Department of

Employment Security, 393 Ill. App. 3d 814, 826 (2009); 820 ILCS

405/602(A) (West 2008).

     Conduct is deemed willful where it constitutes a conscious

act made in knowing violation of company rules.     Czajka v.

Department of Employment Security, 387 Ill. App. 3d 168, 176

(2008).   A reviewing court need not find direct evidence of a

rule or policy and, instead, may make a commonsense determination

that certain conduct intentionally and substantially disregards
an employer's interest.    Greenlaw v. Department of Employment

Security, 299 Ill. App. 3d 446, 448 (1998).

     Here, the record shows that plaintiff's conduct was willful

in that she used her position as the office manager to make

personal purchases on a business credit card over a 30-day period

without her employer’s permission.     Plaintiff acknowledges that

these purchases were intentional, and there is no evidence that




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1-09-2781



she acted with her employer's permission or to support her

contention that she acted with implied consent based on her two

prior uses of the card.           Those expenditures are factually

distinct from the case at bar, in that the expenditure for the

party for her sister and coworker was office related and the one

relating to her carpet cleaning was not confirmed by her

employer.

      The evidence further shows that plaintiff’s conduct harmed

the practice by the loss of trust that had been placed in her by

the employer, who also suffered a financial loss from plaintiff’s

purchases, and because he would have to absorb the cost of

training a new office manager.           We thus find that the Board's

decision finding plaintiff ineligible for benefits based on

misconduct connected with her work was not clearly erroneous (Ray

v. Department of Employment Security, 244 Ill. App. 3d 233, 236

(1993)), and we reverse the circuit court’s ruling to the

contrary.
      Reversed.

      O’BRIEN and O’MARA FROSSARD, JJ., concur.

             REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
                      (Front Sheet to be Attached to Each case)
_____________________________________________________________________________

BARBARA L. PHISTRY,

            Plaintiff-Appellee,

v.




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1-09-2781



THE DEPARTMENT OF EMPLOYMENT SECURITY, DIRECTOR OF THE DEPARTMENT
OF EMPLOYMENT SECURITY, and BOARD OF REVIEW,

             Defendants-Appellants

(EUGENE C. DECKER,

             Defendant).

_____________________________________________________________________________

                                      No. 1-09-2781

                                Appellate Court of Illinois
                               First District, Fourth Division

                               November 18, 2010
_____________________________________________________________________________

           PRESIDING JUSTICE GALLAGHER delivered the opinion of the court.

                    O’BRIEN and O’MARA FROSSARD , JJ., concur.

_____________________________________________________________________________

                       Appeal from the Circuit Court of Cook County.

                    Honorable James Tolmaire, III, Judge Presiding.
_____________________________________________________________________________

For APPELLANTS, Illinois Attorney General, Chicago, IL (Lisa Madigan, Michael A. Scodro,
Ann C. Chalstrom, of counsel)




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