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SECOND DIVISION

December 17, 2002

No. 1-00-3776

JUSTICE CAHILL delivered the opinion of the court:

Plaintiff Stephanie Oleszczuk appeals from an order of the circuit court confirming a decisionof the Board of Review of the Department of Employment Security (Board of Review or Board)which denied her application for unemployment benefits. Plaintiff claims that her behavior does notamount to misconduct as that word is defined in the Unemployment Insurance Act (the Act) (820ILCS 405/602(A) (West 1998)). She also claims that the circuit court's decision was contrary to lawbecause it was not based upon the findings of the Board and that the referee failed to properlydevelop the record at the administrative hearing. We agree with the argument of plaintiff about themeaning of "misconduct" under the Act. We reverse and remand with instructions.

The record shows that on September 8, 1990, plaintiff was hired by Coaster of America asa customer service representative. On December 1, 1999, Coaster sent her to a two-day trainingsession in Los Angeles, California, to learn a new computer system. She was fired forinsubordination two days after she returned from training.

Plaintiff then applied for unemployment compensation benefits. These were denied on theground that she had been fired for misconduct within the meaning of section 602(A) of the Act (820ILCS 405/602(A) (West 1998)). Plaintiff filed an appeal with her local Illinois Department ofEmployment Security office. She alleged in her appeal that after she returned from the trainingsession, her office manager, Barbara Melendez, was not receptive to learning about the newcomputer system from plaintiff and refused to cooperate with her. On the day she was fired, plaintiffheard Melendez tell clients that plaintiff had gone to California for a free vacation and did not attendthe training session. Plaintiff also denied that she had ever shouted at her supervisors. A claimsadjudicator affirmed the denial of benefits and the matter was set for a hearing before a referee.

At the hearing, Melendez testified that she had fired plaintiff: (1) for insubordination fortelling Melendez that plaintiff had not learned certain tasks regarding shipping and credits at thetraining session in California because "things were down in California" and "she, you know, couldn'tteach me how to do that"; and (2) for yelling at Melendez. In plaintiff's presence, Melendez hadcalled Margie, a member of the training staff in California, and learned that plaintiff had been taughtthe various tasks that she had denied learning. During the call, plaintiff started "yelling, saying thatshe did have notes." When asked by the referee to clarify what she meant, Melendez responded:

"She said she had notes on how to learn it, but she never showed me thosenotes and she told me that when she was there that the things were down and that shecouldn't learn how to do it. And Margie, you know, confirmed that she was taughthow to do it."

Melendez admitted that plaintiff had never received warnings about her conduct or behavior at work.

Plaintiff testified that after she returned from California, she conducted a training session toteach other employees the new system. In the middle of the session, although plaintiff was teachinga different task at that time, Melendez asked her to teach her how to do "shipping." Plaintiffresponded that she wanted to keep to her curriculum and would teach Melendez the task at the sametime that she taught the other employees. When the referee asked plaintiff whether she had toldMelendez that she did not learn "shipping" because the systems were down in California, plaintiffresponded:

"There were certain things, systems that they were working on in California, yes. And yes I did tell her that, you know, we did learn what they could show us inCalifornia. I didn't say it was completely down, no."

The hearing referee then asked plaintiff what happened when Melendez made a conference call toMargie. Plaintiff responded:

"[W]hat happened was basically she told Margie that I didn't learn anything out inCalifornia; Margie said yes I did. And it went from there where basically it was, itsounded like I didn't learn at all anything from L.A., which I did -- I had my notes andeverything with me."

Plaintiff stated that, although she became upset during the conversation, she never yelled atMelendez. She was fired immediately after the telephone call.

The hearing referee issued a written decision, adopted by the Board, stating in her findingsof fact:

"The employer sent the claimant for training in California. Upon the claimant'sreturn, the employer asked the claimant to show her what she had learned. Theclaimant informed the employer that she had not learned specific tasks. Theemployer called the training site and was told that the claimant had been taught thetasks. The claimant then yelled at the employer and was discharged forinsubordination."

The referee concluded:

"Based on a preponderance of the evidence, the employer discharged theclaimant for misconduct. The employer testified that the claimant denied learningspecific tasks and then yelled at her after the employer confirmed the training agenda. The claimant did not provide testimony and evidence which would warrant a reversalof the local office determination. The claimant's actions constituted a deliberate andwillful disregard of the employer's interests. The employer discharged the claimantfor misconduct connected with the work. The claimant is, therefore disqualified forbenefits under Section 602A of the Act."

Plaintiff appealed the referee's decision to the Board of Review, asserting that she had learnedthe tasks at the California training session to the best of her ability. She contended that she had neverrefused to teach Melendez the new system, but that Melendez had refused to learn the new systemfrom her and told her that she would learn from another employee.

The Board affirmed the referee's decision, stating that "the Referee's decision is supportedby the record and the law. We *** incorporate it as part of our decision and affirm the denial ofbenefits as stated therein."

Plaintiff filed an appeal in the circuit court, asserting that the record and the law did notsupport the finding that she deliberately and willfully violated a reasonable employer rule. Shefurther contended that neither yelling, insubordination nor failing to learn certain tasks was asufficient ground for misconduct under section 602(A) of the Act (820 ILCS 405/602(A) (West1998)). Plaintiff also asserted that, because the referee failed to elicit evidence that would haveshown whether plaintiff willfully or deliberately violated a reasonable employer rule, the refereefailed to discharge her responsibility to develop the record and protect plaintiff's right to a full andfair hearing. Plaintiff claimed that, because the record was inadequate, the circuit court was requiredto remand the case to a different referee for a new hearing.

The circuit court affirmed the Board.

On appeal to this court, plaintiff asserts that the circuit court erred when it confirmed theBoard's decision on a ground independent of the Board's stated reasons for denying herunemployment compensation benefits. We agree. The trial court appears to have concluded fromthe record that plaintiff lied to her supervisor and that such behavior can be read as misconduct underthe Act. But the finding of the trial court, and the referee for that matter, is not relevant. Our reviewis limited to the propriety of the final agency decision. See Robbins v. Board of Trustees ofCarbondale Police Pension Fund, 177 Ill. 2d 533, 538, 687 N.E.2d 39 (1997) (a court's function onadministrative review is to determine whether the findings and decision of the agency are supportedby the evidence). We note, however, that the Board incorporated the decision of the referee "aspart" of its decision. Since there are no findings of fact or conclusions of law in the Board's decisionother than those of the referee, those findings of fact and conclusions of law are the only reviewablematters before us. There is no finding by the referee that the plaintiff lied to a supervisor.

Both parties set out the standards of review applicable to findings of fact and questions oflaw and suggest that we conduct a separate review of the facts against the manifest weight of theevidence standard, while reviewing legal conclusions based on those facts de novo. We believe thatboth parties overlook that the issue here is a mixed question of fact and law to which a clearlyerroneous standard applies. City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d191, 692 N.E.2d 295 (1998).

Mixed questions of law and fact-questions that require an examination of the legal effect ofa given set of facts-are reviewed for clear error, a standard in between the manifest weight and denovo standards. Belvidere, 181 Ill. 2d at 205. Applying a clearly erroneous standard to mixedquestions of law and fact provides the necessary deference to the agency's experience and expertise. Belvidere, 181 Ill. 2d at 205. Deference to agency expertise is appropriate here where theDepartment is charged with determining whether an employee's behavior that led to her terminationamounted to "misconduct." This is a fact-based inquiry, in which "misconduct" has a distinctmeaning in the unemployment context. See AFM Messenger Service, Inc. v. Department ofEmployment Security, 198 Ill. 2d 380, 391-92, 763 N.E.2d 272 (2001) (clearly erroneous standardapplied to Department's decision that employees were not independent contractors as that term isdefined in section 212 of the Act). An agency decision is clearly erroneous only where a review ofthe record leaves the court with a "definite and firm conviction that a mistake has been committed." AFM, 198 Ill. 2d at 395, quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 92L. Ed. 2d 746, 766, 68 S. Ct. 525, 542 (1948).

Section 602(A) of the Act defines misconduct as:

"the deliberate and willful violation of a reasonable rule or policy of the employingunit, governing the individual's behavior in performance of her work, provided thatsuch violation has harmed the employing unit or other employees or has beenrepeated by the individual despite a warning or other explicit instruction from theemploying unit." 820 ILCS 405/602(A) (West 1998).

This definition of misconduct reflects a legislative intent that persons should receiveunemployment benefits even though they were discharged for incapacity, carelessness, inadvertence,negligence or inability to perform assigned tasks. Washington v. Board of Review, 211 Ill. App. 3d663, 667, 570 N.E.2d 566 (1991). It has been held that the Act denies an employee benefits only if(1) the employer had a reasonable work rule (2) which the employee deliberately and willfullyviolated, and (3) the violation either harmed the employer or other employees, or was repeated bythe employee despite a warning or instruction to cease the conduct. DeBois v. Department ofEmployment Security, 274 Ill. App. 3d 660, 664, 653 N.E.2d 1336 (1995), citing Kiefer v.Department of Employment Security, 266 Ill. App. 3d 1057, 1061, 640 N.E.2d 1252 (1994), andZuaznabar v. Board of Review of the Department of Employment Security, 257 Ill. App. 3d 354,356, 628 N.E.2d 986 (1993).

When the facts of this case are reviewed under the generally accepted standard set out in theAct and DeBois, we do not understand how the conclusion reached by the referee and adopted bythe Board could be reached. The referee gives no hint of what reasonable work rule was implicated. No evidence of a reasonable work rule is referenced in the record. We could safely infer that if anemployee is directed to attend a training session, it would be a reasonable work rule to require thatemployee attend and show evidence of having learned something. It could be argued that such a ruleis so obvious it need not be stated. But there is uncontroverted evidence here that plaintiff didattend, and that she was communicating something of what she had learned to other employees whenthe confrontation with her supervisor occurred. What followed was a heated dispute about howmuch, or how well, she had learned certain subjects that were taught. The referee did not explainwhat reasonable work rule was violated by this conduct. In the absence of evidence of a reasonablework rule, or an explanation of what rule might be inferred, it is difficult to understand how thereferee then reached the next conclusion: that a rule was deliberately and willfully violated. Finally,other than the irritation evidenced by the supervisor, the record is silent on how the employer washarmed by the plaintiff's conduct or whether it was repeated conduct after a warning. There isevidence, however, that plaintiff had been employed by Coaster for nine years without receiving awarning about her behavior at work.

A single flurry of temper between a worker and a supervisor may be enough to warrantdischarge in an at-will relationship. But it is not enough to deny unemployment benefits. We haveheld that arguing with a supervisor without using abusive language or threats is not sufficient toestablish discharge for misconduct under the Act. Gee v. Board of Review of the Department ofLabor, 136 Ill. App. 3d 889, 896, 483 N.E.2d 1025 (1985), citing Sheff v. Board of Review, IllinoisDepartment of Labor, 128 Ill. App. 3d 347, 470 N.E.2d 1044 (1984). Because the record fails toreveal evidence that would meet the DeBois test or the clear wording of the Act, we must concludethat the order of the Board is clearly erroneous. AFM, 198 Ill. 2d at 395. Having done so, we neednot reach the other reasons plaintiff urges for reversal.

We reverse the order of the circuit court affirming the order of the Board. We remand withdirections to vacate the order of the Board and conduct a hearing on the amount of unemploymentbenefits to which plaintiff is entitled.

Reversed and remanded with directions.

McBRIDE, P.J., and BURKE, J., concur.