                                                                     FIFTH DIVISION
                                                                     April 14, 2006



No. 1-05-1737


ROSE L. MANNING,                                       )      Appeal from the
                                                       )      Circuit Court of
      Plaintiff-Appellant,                             )      Cook County.
                                                       )
v.                                                     )
                                                       )
THE DEPARTMENT OF EMPLOYMENT                                  )
SECURITY, an Administrative Agency;                    )
BRENDA RUSSELL, Director of the                        )
Illinois Department of Employment Security;            )
BOARD OF REVIEW OF THE ILLINOIS                        )
DEPARTMENT OF EMPLOYMENT                               )
SECURITY, an Administrative Agency;                    )
and, DRS. MORAN & MORAN, S.C.,                         )
an Illinois Corporation and Employer,                  )      Honorable
                                                       )      Alexander P. White,
      Defendants-Appellees.                            )      Judge Presiding.



      PRESIDING JUSTICE GALLAGHER delivered the opinion of the court:

      Plaintiff, Rose Manning, appeals from an order of the trial court affirming the

decision of the Board of Review of the Illinois Department of Employment Security

(Board), which denied plaintiff's claim for unemployment insurance benefits. On appeal

plaintiff contends that the Board erred in finding that she was discharged for misconduct

involving a hostile voice-mail message to her coworker. We affirm.

      Plaintiff was employed by Drs. Moran & Moran, S.C., as a medical assistant from

October 7, 1998, to May 18, 2004, when she was discharged for leaving a hostile,

intimidating and vulgar message on a coworker's home voice-mail. Subsequently,

plaintiff sought unemployment insurance and a claims adjudicator denied her
unemployment benefits noting that plaintiff was discharged because of "unprofessional

conduct." Plaintiff filed an application for reconsideration of the claims adjudicator's

determination, and the claims adjudicator denied the application. Plaintiff appealed to

the Illinois Department of Employment Security (Department).

       A referee for the Department held a telephone hearing at which plaintiff and Dr.

Michael Milani, who identified himself as a physician and also "one of the employers,"

testified that he became aware of plaintiff's misconduct because "[t]he other employees

[sic] that received the phone call brought to the attention of *** one of the *** nurses and

then the office manager who brought it to the physician's attention."

       Milani testified that he met plaintiff on May 14, 2004, to question her about the

incident. Plaintiff told Milani that she relied on a coworker Tiffany Swanson to drive her

to work because she had lost her driver's license. She stated that on May 13, 2004,

Swanson left work without plaintiff in order to pick up her child. Later that night, plaintiff

called Swanson. An excerpt from plaintiff's message to Swanson was played during the

hearing.

                     "(inaudible) fucking word. That was very uncalled for

              and it is very fucking childish for you to fuck off. Yes,

              (inaudible) and you are the (inaudible) and (inaudible) and I

              have been trying every goddamn thing I can to try to get you

              and me to work on time. I changed my schedule. I

              (inaudible) telling fucking George every day. I have to put up

              with those fucking bitches in the back there, telling me what

              to fuck to do and you telling me what to do, everybody
1-05-1737

             fucking telling me what do to [sic]. Nobody gives me any

             fucking consideration here. I have been trying everything I

             can to try to keep you (inaudible)..."

Milani stated that, after hearing the message, he felt that the message was hostile,

intimidating and vulgar, and that this kind of language was not permissible in the work

place. Milani testified that the message had been taken off of Swanson's personal cell

phone voice-mail and that he was not sure whether Swanson was working when the

message was sent.

      Milani further testified that Dr. George Moran, one of the employers at the office,

prepared two letters regarding the incident, one dated May 13, 2004 and one dated May

14, 2004. The May 13 letter reported that plaintiff was "slamming exam room doors and

swearing under her breath" because she was upset that Swanson could not wait to give

her a ride home.

      The May 14 letter reported that Swanson had complained about an "intimidating"

phone call left on her home answering service by plaintiff and that Swanson shared this

message with the office manager. Plaintiff claimed that the message was in response

to being left stranded at work as well as receiving many inflammatory phone calls at

home from Swanson. The letter further stated that office management told plaintiff that

the message was interpreted as        mean-spirited and instrumental in creating

workplace hostility. Milani testified that Swanson was warned about her conduct as

well, but that she still worked at the firm. When asked whether he had ever given

plaintiff a warning about leaving emotional messages on people's voice-mail, Milani



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responded "I think it is just kind of assumed that there is no violence tolerated in the

work place." On May 18, 2004, plaintiff was discharged for making a "hostile and

intimidating and vulgar phone call" to one of the other employees.

       Plaintiff testified that she was given a letter stating that the office manager had

warned her about slamming a door and saying "swear words" under her breath as a

reason for discharge. She denied slamming doors or cursing under her breath. Plaintiff

admitted that on May 13, she left a message for Swanson and explained that Swanson

had called her five times that evening. Swanson first called "saying vulgar, dirty bad

words to [her]." Plaintiff stated that, after she hung up, Swanson continued calling her

but she did not "answer her back." When plaintiff did not answer, Swanson left a five-

minute message calling plaintiff "every name." Plaintiff did not save any of Swanson's

messages. Plaintiff testified that she waited and then called Swanson and left the

message.

       Plaintiff further testified that no one at her employer's office ever warned her

about leaving emotional messages on someone's personal voice-mail. She stated that

her work performance was "excellent" and that she had never been "written up" for

anything.

       Following the telephone hearing, the referee affirmed the claims adjudicator's

determination that plaintiff was ineligible for unemployment benefits due to misconduct.

The referee found that: (1) plaintiff had relied upon Swanson for transportation to work;

(2) on May 13, 2004, Swanson left plaintiff stranded at work; (3) plaintiff became upset,

cursing under her breath and slamming doors and she was asked to refrain from this



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conduct; (4) later that evening, Swanson telephoned plaintiff several times and,

according to plaintiff, left several insulting messages; (5) in response, plaintiff

telephoned Swanson and left a "vulgar message." The referee concluded that "the

testimony of record established that the [plaintiff] knew or should reasonably have

known that the message she left for her coworker constitute[d] a willful and deliberate

disregard of the employer's polices."

       Plaintiff appealed to the Board, which affirmed the referee's decision. The Board

found that the referee's decision was supported by the record and the law and

incorporated it as part of its decision. On administrative review, the trial court affirmed

the decision of the Board, finding that it is "not against the manifest weight of the

evidence nor *** contrary to law."

       On appeal, plaintiff contends that her voice-mail message to Swanson did not

constitute misconduct because it did not harm the employer or other employees and

she did not receive prior warnings.

       Initially, we must first determine the applicable standard of review. Plaintiff

argues that the Board's determination that plaintiff's voice-mail message to Swanson

constituted misconduct is a legal conclusion and must be reviewed de novo. The

Department contends that the Board's determination constituted a mixed question of law

and fact and should not be reversed unless it is clearly erroneous. We agree with the

Department.




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       In a case involving a claim for unemployment benefits, the Board is the trier of

fact and we must defer to its factual findings unless they are against the manifest weight

of evidence.

Jenkins v. Department of Employment Security, 346 Ill. App. 3d 408, 412 (2004); Horton

v. Department of Employment Security, 335 Ill. App. 3d 537, 540 (2002). When only a

legal question is involved, the standard of review is de novo. Wrobel v. Department of

Employment Security, 344 Ill. App. 3d 533, 536 (2003). However, when, as here, the

issue on appeal involves a mixed question of law and fact, deference will be given to the

agency's decision and we will only reverse when the Board's decision is "clearly

erroneous." AFM Messenger Service, Inc. v. Department of Employment Security, 198

Ill. 2d 380, 395 (2001); Horton, 335 Ill. App. 3d at 540-41. A mixed question of law and

fact is one that involves an examination of the legal effect of a given set of facts. AFM

Messenger Service, 198 Ill. 2d at 391.

       Here, we are presented with numerous questions that require application of

certain facts to determine their legal effect. For example, we must determine whether

the alleged conduct harmed the employer and whether a reasonable rule against the

alleged conduct can be inferred. Therefore, we will apply a "clearly erroneous"

standard. Having addressed the appropriate standard of review, we now turn to the

merits of plaintiff's claims.

       The Unemployment Insurance Act (Act) (820 ILCS 405/100 et seq (West 2004))

was enacted to provide economic relief to individuals who become involuntarily

unemployed. AFM, 198 Ill. 2d at 396; Jenkins, 346 Ill. App. 3d at 411. However, the



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individual claiming unemployment insurance benefits has the burden of establishing her

eligibility. Jenkins, 346 Ill. App. 3d at 411.

       Individuals who are "discharged for misconduct" are ineligible to receive

unemployment benefits under the Act. 820 ILCS 405/602(A) (West 2004); Arroyo v.

Doherty, 296 Ill. App. 3d 839, 844 (1998). Three elements must be proven to establish

misconduct under the Act: (1) that there was a "deliberate and willful violation" of a rule

or policy; (2) that the rule or policy of the employing unit was reasonable; and (3) that

the violation either has harmed the employer or was repeated by the employee despite

previous warnings. 820 ILCS 405/602(A) (West 2004); Arroyo, 296 Ill. App. 3d at 845.

       In determining whether an employer was harmed, the employee's conduct should

be viewed in the context of potential harm, and not in the context of actual harm.

Greenlaw v. Department of Employment Security, 299 Ill. App. 3d 446, 448 (1998).

Additionally, an employer is not required to prove the existence of a reasonable rule by

direct evidence, and a court may find the existence of a reasonable rule "by a

commonsense realization that certain conduct intentionally and substantially disregards

an employer's interests." Greenlaw, 299 Ill. App. 3d at 448. Standards of behavior that

an employer has a right to expect constitute a reasonable rule or policy. Bandemer v.

Department of Employment Security, 204 Ill. App. 3d 192, 195 (1990). Such a rule or

policy does not need to be written or otherwise formalized. Caterpillar, Inc. v.

Department of Employment Security, 313 Ill. App. 3d 645, 654 (2000).

       In the present case, although the voice-mail message to Swanson may not have

directly harmed the employer, it was potentially harmful to its interests because the use



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of hostile and intimidating language to a coworker could adversely affect the work

environment. See Greenlaw, 299 Ill. App. 3d at 448. The evidence at the Department's

phone hearing established that on May 13, 2004, prior to leaving the voice-mail, plaintiff

became upset at work because Swanson left her stranded and she began cursing under

her breath and slamming doors. Later that day, plaintiff left a message on the personal

voice-mail of Swanson. In this message, plaintiff repeatedly used abusive language

and stated that she was angry toward Swanson and other nurses at the office. Milani

testified that he thought the message was hostile, intimidating and vulgar and that his

office did not permit the type of language used in plaintiff's message.

       Although it appears that the vulgar message was left on Swanson's voice-mail

after business hours, the incident from which it arose began at work and included the

disruption of slamming doors and swearing. Additionally, several profane comments in

the message related to coworkers and the work environment. Clearly this incident had

the potential to affect employee morale and cooperation and ultimately harm the

employer. See Greenlaw, 299 Ill. App. 3d at 448.

       Moreover, although there was no written policy concerning the use of abusive

language towards coworkers, commonsense implies that the use of hostile, intimidating

and vulgar language "intentionally and substantially disregards an employer's interests."

Greenlaw, 299 Ill. App. 3d at 448-49 (holding that the plaintiff violated the standard of

behavior an employer has a right to expect where the plaintiff told her supervisor to "

'kiss my grits' "). Furthermore, misconduct may be found even if the abusive conduct

occurred off work premises. See Caterpillar, 313 Ill. App. 3d at 654 (holding that



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"common sense implies the existence of a policy against employees continually making

unwanted contact with a coworker at work and outside of work regarding their romantic

relationship"). Therefore, under the facts as presented, we cannot say that the Board

was clearly erroneous in determining that plaintiff violated a reasonable rule. See

Bandemer, 204 Ill. App. 3d at 195.

       Plaintiff maintains that Caterpillar, 313 Ill. App. 3d at 654, where the plaintiff

made unwanted contact with a coworker both at work and outside work, and Greenlaw,

299 Ill. App. 3d at 448-49, where the plaintiff told her supervisor to "kiss my grits" at

work, are distinguishable from the case at bar. While we agree that there are some

factual differences between those cases and the present case, we base our decision on

the rationale of these cases which held that a plaintiff may be discharged if she violates

a standard of behavior an employer has a right to expect.

       Accordingly, the judgment of the circuit court of Cook County is affirmed.

       Affirmed.

       O'MARA FROSSARD and NEVILLE, JJ., concur.




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