{ "id": 4273622, "name": "MARLENE ODIE, Plaintiff-Appellant, v. THE DEPARTMENT OF EMPLOYMENT SECURITY et al., Defendants-Appellees", "name_abbreviation": "Odie v. Department of Employment Security", "decision_date": "2007-11-30", "docket_number": "No. 1-06-3058", "first_page": "710", "last_page": "715", "citations": [ { "type": "official", "cite": "377 Ill. App. 3d 710" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "368 Ill. App. 3d 181", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4266562 ], "year": 2006, "pin_cites": [ { "page": "189" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/368/0181-01" ] }, { "cite": "68 Ill. App. 3d 264", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3305765 ], "year": 1979, "pin_cites": [ { "page": "270", "parenthetical": "\"misconduct\" occurs where an employee breaches safety rules and endangers human life" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/68/0264-01" ] }, { "cite": "375 Ill. App. 3d 710", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4271305 ], "year": 2007, "pin_cites": [ { "page": "716" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/375/0710-01" ] }, { "cite": "365 Ill. App. 3d 553", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 2528404 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "665" }, { "page": "667-68" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/211/0663-01" ] }, { "cite": "344 Ill. App. 3d 533", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3778470 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "528" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/344/0533-01" ] } ], "analysis": { "cardinality": 604, "char_count": 11701, "ocr_confidence": 0.789, "pagerank": { "raw": 1.0554313377815176e-07, "percentile": 0.5552315984445425 }, "sha256": "7f28a8b4dd198c69b49554ae202895da330f467e267dcb8fb6b6995996cf49a8", "simhash": "1:fdbd36df0023c75c", "word_count": 1854 }, "last_updated": "2023-07-14T17:30:19.728803+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MARLENE ODIE, Plaintiff-Appellant, v. THE DEPARTMENT OF EMPLOYMENT SECURITY et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE TULLY\ndelivered the opinion of the court:\nPlaintiff Marlene Odie appeals from an order of the circuit court of Cook County affirming the denial of her claim for benefits under the Illinois Unemployment Insurance Act (Act) (820 ILCS 405/602(A) (West 2004)) by the Board of Review (Board). The Board found that she was ineligible for benefits based on misconduct in connection with her work. On appeal, plaintiff contends that she did not intentionally commit the act for which she was terminated and, thus, she was unjustly denied unemployment benefits.\nThe record shows that at the time of plaintiffs discharge, she had been employed as a certified nursing assistant at the William Dawson Nursing Center (Dawson), a residence primarily for individuals who require skilled nursing care, for over 17 years. On July 23, 2005, plaintiff was assigned to monitor approximately 25 residents in Dawson\u2019s dayroom and to provide assistance as necessary, which required that she be awake and alert. That day, without reporting to anyone that she was doing so, plaintiff took extra-strength Tylenol, which she believed caused drowsiness, for a toothache. Plaintiff then fell asleep for about 10 to 20 minutes between 4 and 5 p.m.\nWhile plaintiff was asleep, a resident began shouting for help. A visitor who shook plaintiff to wake her stated that plaintiff responded, \u201cyeah she do that all the time,\u201d said something about being there too long, then went back to sleep. Plaintiff acknowledged telling the visitor that the resident yelled all the time, but indicated that she then went over to assist the resident. Following the incident, plaintiff told administrator Pamela Orr that she had fallen asleep due to taking the medication.\nPlaintiff knew that sleeping on the job was a violation of company policy and constituted grounds for termination. Although plaintiff had not been previously warned about sleeping while on duty, she acknowledged knowing that her job was in jeopardy due to previous written warnings for tardiness, negligence, failure to follow procedures, and a suspension for providing poor nursing care.\nFollowing an investigation conducted by Orr, which included speaking to visitors and staff members who were on duty at the time of the incident, plaintiff was discharged on July 27, 2005, for misconduct, i.e., sleeping while on duty and her discourteous response to the family member who tried to wake her. Plaintiff filed a grievance with her union, which upheld the discharge.\nPlaintiff then filed a claim for unemployment insurance. An Illinois Department of Employment Security (IDES) claims adjudicator denied plaintiffs claim for unemployment insurance pursuant to section 602(A) of the Act, finding that the reason for which plaintiff was discharged, i.e., sleeping on the job while a resident was shouting for assistance, was within her control to avoid, and she was thus discharged for misconduct connected with her work. Plaintiff filed an application for reconsideration of the claims adjudicator\u2019s decision.\nOn November 28, 2005, an IDES referee conducted a telephone hearing on the matter. After hearing testimony from plaintiff and Orr, the referee affirmed the adjudicator\u2019s decision. The referee found that plaintiffs action of falling asleep on the job after taking Tylenol, while she was supposed to be monitoring the safety of the residents and was awakened by visitors, without telling her employer that she was taking medication, and while having prior on-the-job warnings and knowing her job was in jeopardy, exhibited a deliberate and wilful disregard of the employer\u2019s interests. The referee then concluded that plaintiff was discharged for misconduct connected with her work, as she had failed to offer competent evidence to explain her actions, and was ineligible for unemployment benefits.\nThe Board subsequently affirmed the referee\u2019s decision, finding that it was supported by the record and the law. The Board further incorporated the referee\u2019s decision as part of its own decision.\nOn March 23, 2006, plaintiff filed a complaint for administrative review. In support of her complaint, she filed, through counsel, a memorandum alleging that the decisions of the IDES referee and the Board were against the manifest weight of the evidence. She specifically alleged that pursuant to Wrobel v. Department of Employment Security, 344 Ill. App. 3d 533 (2003), and Washington v. Board of Review, 211 Ill. App. 3d 663 (1991), falling asleep while on duty does not constitute deliberate and wilful misconduct rendering her ineligible for unemployment insurance. The circuit court affirmed the decision of the Board.\nOn appeal, plaintiff contends that the sole question before this court is whether she engaged in deliberate and wilful misconduct by falling asleep while on duty. She maintains that pursuant to Wrobel and Washington, her actions were unintentional and, therefore, did not constitute misconduct under section 602(A) of the Act justifying the denial of unemployment benefits.\nWhen considering a decision under the Administrative Review Law (735 ILCS 5/3\u2014101 et seq. (West 2004)), we review the agency\u2019s determination and not that of the circuit court. Ford Motor Co. v. Motor Vehicle Review Board, 338 Ill. App. 3d 880, 891 (2003). The administrative agency\u2019s findings of fact are deemed prima facie true and correct. City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 205 (1998). Where, as here, the issue involves an examination of the legal effect of a given set of facts, a mixed question of law and fact is involved, and the agency\u2019s determination should be affirmed unless it is found to be clearly erroneous. AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 391 (2001). This standard is met only where upon review of the entire record, the reviewing court is \u201c left with the definite and firm conviction that a mistake has been committed.\u2019 [Citation.]\u201d AFM Messenger Services, Inc., 198 Ill. 2d at 395.\nIndividuals who are discharged for misconduct are ineligible to receive unemployment benefits under the Act. 820 ILCS 405/602(A) (West 2004); Manning v. Department of Employment Security, 365 Ill. App. 3d 553, 557 (2006). Misconduct is established where it is shown that: (1) a deliberate and wilful violation of a work rule or policy occurs; (2) the employer\u2019s rule or policy is reasonable; and (3) the violation either harms the employer or was repeated by the employee despite previous warnings. 820 ILCS 405/602(A) (West 2004); Manning, 365 Ill. App. 3d at 557. Wilful misconduct stems from an employee being aware of,, and consciously disregarding, a company rule. Livingston v. Department of Employment Security, 375 Ill. App. 3d 710, 716 (2007).\nWe note, initially, that plaintiff does not contest the establishment of the reasonableness of the employer\u2019s rule or policy, nor the harm caused to the employer by the violation. She solely contends that no evidence was presented to establish that she committed a wilful and deliberate act by falling asleep while on duty. For the reasons that follow, we find that the contrary decision of the Board was not clearly erroneous and that the cases upon which plaintiff relies, Washington and Wrobel, are distinguishable from the case at bar.\nIn Washington, an administrative secretary was assigned to provide support to her counterpart during an executive committee meeting, during which she stepped out of the room and took an aspirin for a headache. Upon her return, she fell asleep for 30 minutes. Plaintiff was immediately fired pursuant to her employer\u2019s policy against sleeping during work hours. Washington, 211 Ill. App. 3d at 665.\nThis court upheld the circuit court\u2019s determination that plaintiffs behavior did not constitute misconduct that would disqualify her from receiving unemployment benefits. In doing so, we specifically found that plaintiffs actions failed to show a deliberate and wilful violation of her employer\u2019s policy against sleeping on the job as plaintiff had never had a poor work performance review or fallen asleep during working hours, and she testified that she had fallen asleep because she had taken an aspirin for a headache, which explanation the Board never discredited, and there were no surrounding circumstances indicating that she purposely took a nap. Washington, 211 Ill. App. 3d at 667-68.\nHere, unlike Washington, plaintiff was aware that her job was in jeopardy due to several prior work infractions, and the referee and Board clearly discredited her explanation that she involuntarily fell asleep because she had taken Tylenol. Moreover, the surrounding circumstances indicated that plaintiff purposely took a nap, as her response to the visitor who woke her regarding the screaming resident was \u201cshe do that all the time,\u201d rather than alarm or embarrassment. Moreover, unlike the administrative assistant in Washington, plaintiffs responsibilities here, i.e., monitoring 20 to 30 nursing home residents who required skilled nursing care, demanded that she be awake and alert, and her failure to ensure that she remained in such a state constituted misconduct under the Act. See Granite City Steel Division of National Steel Corp. v. Board of Review of the Department of Labor, 68 Ill. App. 3d 264, 270 (1979) (\u201cmisconduct\u201d occurs where an employee breaches safety rules and endangers human life).\nWe also find that Wrobel, where this court reaffirmed Washington\u2019s holding that \u201cmisconduct\u201d was limited to intentional acts, is distinguishable from the case at bar. In Wrobel, this court found that plaintiff acted unconsciously when he overslept because his alarm clock did not sound due to a power failure, as nothing in the record suggested that plaintiff chose to sleep in, and, thus, his act of calling in \u201clate\u201d to work did not constitute misconduct under the Act. Wrobel, 344 Ill. App. 3d at 528.\nIn contrast to Wrobel, plaintiff here testified that she believed drowsiness was a side effect of taking Tylenol, yet she voluntarily took it during her shift without providing anyone with notice that she was going to do so. Thus, plaintiffs acts cannot be excused as unintentional, as they were in Wrobel. Accordingly, we conclude that the Board\u2019s decision to deny her claim for benefits under section 602(A) of the Act was not clearly erroneous.\nIn so finding, we note that plaintiff has waived several arguments, i.e., that the referee applied an outdated definition of misconduct and that the referee\u2019s/Board\u2019s decision included findings and misstatements of the record that were irrelevant to the issue of whether plaintiffs conduct was wilful and deliberate, by raising them for the first time on appeal. Arguments not presented at an administrative hearing or in the complaint for administrative review are waived on review. Sieron & Associates, Inc. v. Department of Insurance, 368 Ill. App. 3d 181, 189 (2006); North Avenue Properties, L.L.C. v. Zoning Board of Appeals, 312 111. App. 3d 182, 187 (2000).\nAccordingly, we affirm the order of the circuit court of Cook County.\nAffirmed.\nFITZGERALD SMITH, P.J., and O\u2019MARA FROSSARD, J., concur.\nThe record also refers to July 24, 2005, as the day of the subject incident.", "type": "majority", "author": "JUSTICE TULLY" } ], "attorneys": [ "Amy Marinacci and Timothy Huizenga, both of Legal Assistance Foundation, of Chicago, for appellant.", "Lisa Madigan, Attorney General, of Chicago (Gary Feinerman, Solicitor General, and Elaine Wyder-Harshman, Assistant Attorney General, of counsel), for appellees." ], "corrections": "", "head_matter": "MARLENE ODIE, Plaintiff-Appellant, v. THE DEPARTMENT OF EMPLOYMENT SECURITY et al., Defendants-Appellees.\nFirst District (5th Division)\nNo. 1\u201406\u20143058\nOpinion filed November 30, 2007.\nAmy Marinacci and Timothy Huizenga, both of Legal Assistance Foundation, of Chicago, for appellant.\nLisa Madigan, Attorney General, of Chicago (Gary Feinerman, Solicitor General, and Elaine Wyder-Harshman, Assistant Attorney General, of counsel), for appellees." }, "file_name": "0710-01", "first_page_order": 726, "last_page_order": 731 }