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Advanced Critical Transp., Inc. v. Ill. Dep’t of Emp’t Sec., 2015 IL App (1st) 133990-U (Ill. App., 2015)
2015 IL App (1st) 133990-U
for misconduct in connection with his work.
The Illinois Department of Employment
Security (IDES) initially denied his claim for
unemployment insurance benefits, but, on
appeal, the Board
ADVANCED CRITICAL TRANSPORT,
INC., Plaintiff-Appellant,
v.
ILLINOIS DEPARTMENT OF
EMPLOYMENT
SECURITY; DIRECTOR, ILLINOIS
DEPARTMENT OF
EMPLOYMENT SECURITY; BOARD OF
REVIEW, and
JAMES B. CADY, DefendantsAppellees.
Page 2
of Review (Board) reversed that decision and
found that he was eligible. The circuit court of
Cook County affirmed the Board’s decision on
administrative review, and plaintiff now
appeals that ruling.
¶ 3 The record shows that Cady was employed
by plaintiff as a registered nurse from June
14, 2010, until December 23, 2011, when he
was discharged for his conduct on December
21, 2011, while transporting a patient from
Gottlieb Hospital to Loyola Hospital. Cady
applied
for
unemployment
insurance
benefits, and plaintiff objected that he was
ineligible because he violated its policy to
perform his job responsibilities in a
professional, cheerful manner, and to
represent the best interests of plaintiff at all
times.
No. 1-13-3990
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT SIXTH
DIVISION
March 13, 2015
NOTICE: This order was filed under
Supreme Court Rule 23 and may not be cited
as precedent by any party except in the
limited circumstances allowed under Rule
23(e)(1).
Appeal from the Circuit Court of Cook
County.
¶ 4 In support of its objection, plaintiff
attached a letter from its nurse general
manager, James Erwin. He stated that he
spoke to Dr. Christine Murray, who reported
that Cady was “mouthing off, putzing around,
and generally argumentative, rude and
disrespectful.” On December 23, 2011, Erwin
contacted Cady who denied the allegations,
but noted that he might have been a “little
smart,” when the doctors kept changing their
orders regarding the patient transport. Erwin
noted, however, that the transport was done
without any detriment to the patient.
No. 13 L 50281
Honorable
Presiding.
Robert
Lopez-Cepero,
Judge
JUSTICE LAMPKIN delivered the judgment
of
the
court.
Presiding Justice Hoffman and Justice Hall
concurred in the judgment.
ORDER
¶ 5 Erwin further stated that he was contacted
by Jason Brandani, who is not further
identified in the record, and that Brandani
was then contacted by “Sue” from Loyola
Hospital emergency management services
(EMS), who is not identified further. Erwin
related that Brandani informed him that Sue
¶ 1 Held: Board’s decision to grant plaintiff’s
former employee unemployment insurance
benefits was not clearly erroneous; judgment
affirmed.
¶ 2 Plaintiff, Advanced Critical Transport,
Inc., discharged its employee, James B. Cady,
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Advanced Critical Transp., Inc. v. Ill. Dep’t of Emp’t Sec., 2015 IL App (1st) 133990-U (Ill. App., 2015)
told him that she was contacted by Gottlieb
Hospital regarding the transport by Cady at
issue. Sue did not identify the person from
Gottlieb Hospital who contacted her, but
noted that she was informed by the hospital
that the nurse was very rude to the
nurses involved in the transport. The doctor
indicated that Cady was “mouthing off,
putzing around, generally argumentative,
rude and disrespectful.” Erwin first testified
that Cady admitted this behavior, but
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under further questioning, he could not recall
the specific behaviors Cady admitted or
denied. Cady denied most of the accusations
made by the doctor, and noted that the doctor
kept changing orders. Erwin acknowledged
that Cady had not received any prior
warnings, but was discharged because his
behavior interfered with plaintiff’s ability to
do its business, as indicated in the call
plaintiff received that Gottlieb Hospital was
no longer going to use its services.
physician, condescending, and wearing just a
t-shirt with suspenders. Sue stated that
Gottlieb Hospital related to her that it did not
wish to use plaintiff for their transports, and
wanted to contact another company. Erwin
read this letter to Cady, who confirmed that
he can be sarcastic, but was surprised that his
sarcasm was unacceptable.
¶ 6 In the interview conducted on Cady’s
claim for benefits, Cady stated that he was
told that he was discharged for being rude to
the doctor. He explained that the EMS
dispatcher told him they had a critical patient
to transport, and when he went to pick up this
patient at Gottlieb Hospital, the doctor told
him the patient was unstable and to get him
out of here. Cady told the doctor that he could
not transfer an unstable patient and must
first make sure he is stabilized. Cady worked
for 45 minutes to ensure that the patient was
stable, and then had the patient transferred to
Loyola Hospital. When Erwin told Cady that
the doctor from the hospital reported that he
was condescending, Cady denied the
allegation, and said the doctors were trying to
get rid of a patient. The claims adjudicator
found that Cady’s actions were not deliberate
or willful, and that he was entitled to benefits.
¶ 8 Cady testified that during the transfer in
question, the doctor kept changing the orders.
The doctor initially told him the patient he
was to transport was unstable, and when he
replied that he could not transport an
unstable patient, the doctor said the patient is
stable, but will not be much longer if he stays
here. Cady claimed that he had denied all of
the allegations made by the doctor regarding
his behavior, and told Erwin that he might
have been a “little smart, but [] tried to keep it
under control.” Cady did not recall exactly
what he said to the doctor, but explained that
he can be sarcastic even when he is not trying
to be. Cady testified that he was not “terribly
impressed” with the doctors trying to rush
him out the door with the patient, so he was
sure his attitude toward them was “a little less
than welcoming.” Cady did not recall
anything he did or said that was wrong or out
of line, and testified that he knew how his
attitude “can be,” but was trying to “keep [his]
tongue in line.”
¶ 7 Plaintiff appealed, and a hearing on the
merits of the claims adjudicator’s decision
was held before a referee. Erwin testified that
Cady was discharged for unprofessional and
sarcastic behavior on December 21, 2011,
which ultimately interfered with plaintiff’s
ability to do business with Gottlieb Hospital.
Erwin acknowledged that he did not have any
firsthand knowledge of the incident, but that
he had spoken with the doctor and two other
¶ 9 On September 28, 2012, the referee found
that Cady was not entitled to benefits and was
discharged for misconduct in connection with
his work. In its decision, the referee noted
that although the employer’s reports of Cady’s
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Advanced Critical Transp., Inc. v. Ill. Dep’t of Emp’t Sec., 2015 IL App (1st) 133990-U (Ill. App., 2015)
behavior might be given little weight due to
its hearsay nature, Cady’s admission of his
less than professional behavior and his
customary nature to be sarcastic gives more
weight to plaintiff’s reports than would
otherwise be given. The referee
connection with his work. The Board thus
found him eligible for benefits.
¶ 13 On March 19, 2013, plaintiff filed a
complaint for administrative review in the
circuit court of Cook County. Plaintiff later
filed a brief in support in which it alleged that
it received an
Page 5
found that plaintiff credibly testified about
the events which led to Cady’s discharge, and
that his actions constituted deliberate and
willful disregard of plaintiff’s interests.
Page 6
immediate complaint from its client
regarding Cady’s actions at Gottlieb Hospital,
and the client threatened to terminate any
business relationship with plaintiff. Thus,
plaintiff claimed, Cady’s actions were in direct
violation of plaintiff’s policy prohibiting
unprofessional behavior, a policy which
warned employees that a violation would
result in termination without any prior
warnings.
¶ 10 Plaintiff filed an appeal with the Board,
alleging that his actions were not deliberate
or willful. He further alleged that his actions
did not harm plaintiff.
¶ 11 On March 1, 2013, the Board set aside the
referee’s decision. In doing so, the Board
noted that an employee’s conduct may be
such that the employer may properly
discharge him, but such conduct might not
constitute misconduct in connection with the
work for the purpose of determining if he is
eligible for unemployment insurance benefits.
¶ 14 Plaintiff further alleged that the Board
ignored the admissions against interest made
by Cady, whose opinion that he was not
unprofessional was subjective and selfserving. Plaintiff maintained that Cady’s own
admissions that he was sarcastic, less than
welcoming, a little smart, and not terribly
impressed with the hospital personnel, and
the immediate reaction by the hospital,
showed that Cady’s actions did not represent
the best interests of the company as required
by its policy. Plaintiff further maintained that
Cady’s actions harmed plaintiff in that they
resulted in potential financial loss in possibly
losing Gottlieb Hospital as a client. The
circuit court found that the decision of the
Board was not clearly erroneous, and
affirmed its decision.
¶ 12 The Board observed that Cady was
discharged by plaintiff due to plaintiff’s belief
that he engaged in unprofessional and
sarcastic behavior while transporting a
patient on December 21, 2011. The Board
noted that the employer’s nurse manager,
Erwin, testified that Cady engaged in
unprofessional and sarcastic behavior at the
time in question, but that he did not recall the
specific behaviors that Cady admitted or
denied. Plaintiff did not present any witness
who had firsthand knowledge that Cady
engaged in unprofessional and sarcastic
conduct in transporting the patient, and Cady
denied that he did so. The Board found that
Cady’s testimony was “more credible and
competent” than Erwin’s testimony in light of
Erwin’s lack of firsthand knowledge of the
incident, and concluded that the evidence
adduced at the hearing did not establish that
Cady was discharged for misconduct in
¶ 15 On appeal, plaintiff first contends that
the circuit court erred in affirming the
administrative decision of the Board under
the clearly erroneous standard of review.
Plaintiff maintains in its opening brief that
the matter before the trial court involved a
pure question of law requiring de novo
review. In its reply brief, plaintiff seeks to
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Advanced Critical Transp., Inc. v. Ill. Dep’t of Emp’t Sec., 2015 IL App (1st) 133990-U (Ill. App., 2015)
extend the de novo review standard to this
court.
patient for transport, and admitted that he
was not impressed with the hospital staff
trying to rush him out of the hospital with an
unstable patient, and that he may have been a
little smart and unwelcoming to the hospital
staff in rushing him out. The record further
shows that plaintiff received complaints
regarding Cady’s demeanor and conduct from
hospital personnel.
¶ 16 We note, initially, that our review of an
administrative proceeding is limited to the
propriety of the Board’s decision, not that of
the circuit court. Odie v. Department of
Employment Security, 377 Ill. App. 3d 710,
713 (2007). The Board’s decision on whether
an
Page 8
Page 7
¶ 19 Plaintiff maintains that this conduct
showed that Cady is not entitled to benefits
because he violated its policy to perform his
job responsibilities in a professional and
cheerful manner, representing the best
interest of the company at all times. Cady,
however, denied Erwin’s allegations that he
was “mouthing off, putzing around, generally
argumentative, rude and disrespectful,” but
acknowledged that he was a “little smart,” has
a tendency to be taken as sarcastic, and was
not terribly impressed with the hospital staff.
employee was discharged for misconduct and
entitled to benefits is a mixed question of fact
and law which we review under the clearly
erroneous standard. Hurst v. Department of
Employment Security, 393 Ill. App. 3d 323,
327 (2009). A decision is clearly erroneous if
the record leaves the reviewing court with the
firm and definite conviction that a mistake
has been made. AFM Messenger Service, Inc.
v. Department of Employment Security., 198
Ill. 2d 380, 395 (2001). For the reasons which
follow, we do not find this to be such a case.
¶ 20 The Board, which is responsible for
weighing the evidence, evaluating the
credibility of the witnesses and resolving
conflicts in the testimony (Pesoli v.
Department of Employment Security, 2012
IL App (1st) 111835, ¶26), found Cady more
credible and competent than Erwin based on
Erwin’s lack of firsthand knowledge of the
incident. We find no reason to disturb that
determination where the information relied
upon by plaintiff for discharging Cady was
based on hearsay from Dr. Murray and others
whose identities and basis of information
were not revealed in the record. Lindsey v.
Board of Education of City of Chicago, 354
Ill. App. 3d 971, 987 (2004).
¶ 17 An employee who is discharged for
misconduct is ineligible for unemployment
insurance benefits under the Illinois
Unemployment Insurance Act (Act) (820
ILCS 405/602(A) (West 2012)). Misconduct,
under the Act, has been defined as a
deliberate and willful violation of an
employer’s reasonable rule or policy, provided
that the violation has harmed the employer or
other employees or has been repeated despite
a warning or other explicit instruction from
the employer. 820 ILCS 405/602(A) (West
2012).
¶ 18 The record in this case shows that on the
day in question Cady was asked to transport a
patient from Gottlieb Hospital to Loyola
Hospital. When the doctor told him the
patient was unstable, he informed the doctor
that he could not move an unstable patient.
The doctor then told him that the patient was
stable and would not be for much longer.
Cady then spent 45 minutes stabilizing the
¶ 21 We further observe that a single flurry of
temper has been deemed insufficient to deny
unemployment benefits and mere argument
without threats or abusive language
insufficient to establish discharge for
misconduct under the Act. Czajka v.
Department of Employment Security, 387 Ill.
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Advanced Critical Transp., Inc. v. Ill. Dep’t of Emp’t Sec., 2015 IL App (1st) 133990-U (Ill. App., 2015)
App. 3d 168, 176 (2008). Here, Cady denied
Erwin’s allegations of unprofessional conduct,
and although he admitted that he was a little
less than genteel given the circumstances, the
actions described are not of such a nature as
to make him ineligible for unemployment
insurance benefits. Czajka, 387 Ill. App. 3d at
176.
Page 9
¶ 22 Plaintiff argues, nonetheless that it was
harmed by Cady’s misconduct in the form of
potential financial loss. We find no credible
evidence of that in this record.
¶ 23 Erwin stated in his letter that he was
contacted by a Jason Brandani, who allegedly
told Erwin that he was contacted by “Sue”
from Loyola Hospital EMS, who allegedly told
Brandani that she was contacted by Gottlieb
Hospital with regard to the transport in
question by Cady. However, the identification
of the person who spoke to Sue, and allegedly
also told Brandani that Gottlieb Hospital did
not wish to use plaintiff for their transports
and wanted to contact another company was
not revealed. Thus, plaintiff’s claims
regarding harm stemming from Cady’s
conduct, either actual or potential, were
speculative and conjectural, and clearly
insufficient to establish the harm required
under the Act. Czajka, 387 Ill. App. 3d at 180.
¶ 24 We, therefore, conclude that the Board’s
decision that Cady was entitled to
unemployment insurance benefits was not
clearly erroneous, and we affirm the
judgment of the circuit court of Cook County
to that effect.
¶ 25 Affirmed.
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