Figueroa v. Doherty
Case Date: 02/09/1999
Court: 1st District Appellate
Docket No: 1-97-2338
SECOND DIVISION February 9, 1999 No. 1-97-2338 Plaintiff-Appellant, v. LYNN DOHERTY, Director; ILLINOIS DEPARTMENT OF EMPLOYMENT SECURITY; ROLLAND W. LEWIS, JOHN G. CASHMAN, STANLEY V. MUCHA, GARY J. SULLIVAN, JON R. WALKER, Members, Board of Review of Department of Employment Security; BOARD OF REVIEW, Illinois Department of Employment Security; SAINT JOSEPH HOSPITAL METRO CHICAGO HEALTH, Employer, Defendants-Appellees. Court of Cook County 96 L 51079 Honorable Lester A. Bonaguro, Judge Presiding. JUSTICE McNULTY delivered the opinion of the court: St. Joseph Hospital and Home Health Care Center fired Walter Figueroa on January 22, 1996. A referee for the Illinois Department of Employment Security (IDES) denied Figueroa's claim for benefits. The Board of Review and the circuit court affirmed the referee's decision. Figueroa appeals. Figueroa began working in the hospital's food service department in 1977. On January 15, 1996, Maria Sandoval, another hospital employee, called Figueroa at work. Figueroa left the department a few minutes later. A coworker, Tom Barliss, went to the supervisor, Ray Rees, to report that he saw Figueroa take some lemons from the refrigerator. Rees found Figueroa and Sandoval in the hallway. Sandoval held a bag of lemons. Rees notified security. The hospital fired Figueroa one week later. Figueroa applied for unemployment benefits. The hospital faxed to the claims adjudicator a statement of its contention that Figueroa stole the lemons. Figueroa denied the charge. The hospital did not permit the adjudicator to contact Sandoval. The adjudicator ruled Figueroa eligible for benefits and the local office upheld the decision. On the hospital's appeal, the referee held a hearing de novo. Figueroa, appearing without counsel, brought an interpreter to the hearing to translate the proceedings into Spanish for him. At the outset of the hearing the referee asked Figueroa four questions in English about his address and social security number. Figueroa responded "Yes" to all four questions. After introduction of the parties and swearing of the witnesses, including Figueroa, the referee said:(1) The hospital presented an affidavit from Barliss, who swore he saw Figueroa take "a handful" of lemons from the refrigerator. The affidavit does not clarify whether he saw whole lemons or lemon slices. Rees testified that when he found Figueroa and Sandoval in the hall he asked where she got the lemons. She said they were hers. He asked Figueroa where he put the lemons he took from the refrigerator. Figueroa showed Rees a container holding 8 to 10 lemon wedges. The hospital's attorney asked Rees a series of questions to clarify the testimony and establish that taking lemons violated hospital rules. The referee then asked the interpreter to ask whether Figueroa had any cross-examination for Rees. After a brief discussion in Spanish between Figueroa and the interpreter, the transcript shows the following: While Figueroa was still stating his question in Spanish, the hospital objected that he seemed to be testifying rather than questioning. The transcript shows that the interpreter answered: The referee asked no questions of either witness about Figueroa's statement that Rees had sold him the five lemons. Figueroa began his testimony in Spanish. The transcript shows the following: Figueroa then presented a notarized document from Sandoval stating that Figueroa never sold or gave her any lemons. The interpreter added: The referee asked no questions to clarify Figueroa's testimony. The hospital's attorney summarized the hospital's views and then the interpreter translated Figueroa's summary as follows: The referee sought no clarification of Figueroa's testimony or argument. Although Figueroa seemed to think he had been accused of entering an area where he did not belong, the referee did not clarify the charges for Figueroa or ask him any questions concerning his insistence that he belonged in the area where Rees met him. The referee found that Barliss saw Figueroa take five lemons from the refrigerator and Figueroa gave the lemons to Sandoval. The referee decided that this constituted unauthorized removal of hospital property, a kind of misconduct that disqualified Figueroa from receiving benefits. Figueroa appealed from the referee's decision, arguing that the referee After he filed the appeal, an attorney prepared a brief on Figueroa's behalf. The Board of Review held that the "record adequately sets forth the evidence so that no further evidentiary proceedings are deemed necessary." The Board found that the hospital lost the use of five lemons, so it affirmed the referee's decision. The circuit court upheld the findings and decision of the Board. The court found that the transcript of the hearing did not support Figueroa's argument that he needed an interpreter, so the interpreter's failure to translate all proceedings word for word did not deprive Figueroa of a fair hearing. On appeal Figueroa again argues that the referee did not give him a fair hearing. IDES counters that Figueroa waived all due process claims by failing to raise them before the Board of Review. Figueroa, somewhat informally, described the inadequate procedures as a basis for his appeal to the Board. We find that Figueroa adequately preserved the issue. See Balmoral Racing Club, Inc. v. Illinois Racing Board, 151 Ill. 2d 367, 397, 603 N.E.2d 489 (1992). Moreover, "the general rule that an appellate court should confine itself to issues raised in earlier proceedings is not a rigid or inflexible one, and, where injustice might otherwise result, a reviewing court may consider questions of law not passed upon by an administrative agency." Wadlington v. Mindes, 45 Ill. 2d 447, 453, 259 N.E.2d 257 (1970). Figueroa's claims that IDES did not provide him a fair hearing warrant consideration even if he has waived them. The Unemployment Insurance Act provides that a "Referee *** shall afford the parties reasonable opportunity for a fair hearing." 820 ILCS 405/801A (West 1996). The hearing must accord with fundamental principles of due process. Flores v. Board of Review, 74 Ill. App. 3d 667, 670, 393 N.E.2d 638 (1979). Fundamental due process rights may require a court to permit an interpreter to translate courtroom proceedings. "This is so because inherent in [the] nature of justice is the notion that those involved in litigation should understand and be understood." 75 Am. Jur. 2d Trial |