Law firm's appeal of unemployment benefits to worker who allegedly gave partner 'the finger' dismissed as untimely

By Ann Maher | Dec 17, 2014

The Fifth District Appellate Court has ruled against Blake Law Group in its appeal of an unemployment claim awarded to a former secretary who was let go after working for a month due to alleged misconduct that included giving a partner "the middle finger."

The Belleville-based firm argued that allowing benefits for former employee Kristen E. Auth was against the manifest weight of evidence.

But the Fifth District ruled Dec. 12 that Blake's appeal of a St. Clair County circuit court judgment upholding an Illinois Department of Employment Security Board of Review's decision for Auth, was not timely filed, and it therefore has no jurisdiction over the matter.

Auth worked from Jan. 30, 2012 until she was terminated Feb. 28, 2012, court records state. She filed a claim with the Illinois Department of Employment Security the next day.

Blake protested, but a claims adjudicator determined that Auth was eligible for benefits. Blake then pursued an administrative appeal, and after a hearing at that level, a referee determined Auth used her middle finger and that her discharge constituted disqualifiying misconduct, according to the Fifth District ruling.

After that finding, Auth appealed to the department's Board of Review. The Board determined that Auth's "poor work performance and poor office demeanor did not rise to the level of disqualifying misconduct under section 602(a) of the Act," and therefore found her eligible for unemployment benefits, the ruling states.

The Board further found that the "preponderance" of evidence did not establish that Auth's alleged conduct in giving the finger constituted a willful and deliberate violation of her employer's rules and/or policies.

"The Board took into account that there was conflicting evidence about whether the incident happened and also took into account that the circumstances alleged were more indicative of an argumentative incident rather than misconduct," the ruling states.

"As observed by the Board: 'while the employer may very well have made a justifiable business decision to discharge the claimant, such does not automatically trigger misconduct.'"

Justice Judy Cates authored the Rule 23 order and Justices Richard Goldenhersh and Melissa Chapman concurred.

Blake appealed the Board of Review's decision, and the case went to the circuit court for review.

On May 2, 2013, Circuit Judge Robert Haida found that the Board's decision that Auth's conduct did not rise to the level of misconduct was not against the manifest weight of the evidence, and denied Blake's petition for administrative review.

On May 10, 2013, Haida entered an amended order to "correct an error." The May 2 order had incorrectly described the Board's decision as affirming the findings of the referee. The May 10 order omitted that description.

On June 4, 2013, Blake filed a motion to reconsider, which according to the Fifth District, was one day late.

"We agree that the motion for reconsideration would be timely if we were to use the date of the amended May 10 order, but the amended May 10 order was not a new judgment reopening the 30-day window," Cates wrote.

"In this instance, the final judgment was entered on May 2. For purposes of appeal, a judgment is considered final if it terminates the litigation between the parties on the merits or disposes of the rights of the parties.

"The May 2 order did just that–it affirmed the Board's decision and denied employer's petition for reversal, thus concluding the litigation. Employer therefore had until June 3, 2013, to either file a notice of appeal or file a motion to reconsider directed against the judgment. Unfortunately, employer's motion to reconsider was filed June 4, one day late."


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