                                                  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
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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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