Plaintiff Appellee Loses Case of Improperly Denying Leave Under the Victim’s Economic Security and Safety Act Says Chicago Employment Lawyer

Chicago, IL (Law Firm Newswire) April 13, 2012 – This case was full of twists and turns. Ultimately, the plaintiff did not provide required proof to substantiate her leave claim.

“In, SUSTATIA v. SHANNON the plaintiff-appellee filed a complaint with the Department of Labor, suggesting her employer, West Suburban Bancorp, inappropriately denied her request for unpaid leave to deal with a domestic violence situation. The defendant implemented the administrative law judge’s decision, denying the complaint. On review, the trial court affirmed the department’s order. The plaintiff appealed that she did not offer enough corroborating evidence and did not take a valid leave under the Act. The appellate court affirmed the lower court’s findings,” explained Timothy Coffey, a Chicago employment lawyer and principal attorney for The Coffey Law Office, P. C., an employment litigation firm, dedicated to representing employees in the workplace.

From 2002 to 2006, the plaintiff worked as a personal banker. In May 2006, she advised the bank she would miss May 8, 2006 for criminal court proceedings in a domestic battery case against her boyfriend. The plaintiff told her supervisor and a human resources officer about the proceeding. The human resources officer said she needed a letter from her lawyer or other court documents, and a sworn statement proving the court date was related to the domestic violence incident and that she appeared.

Plaintiff contacted a social worker dealing with the boyfriend, asking for a letter excusing her from work for going to court. He prepared the letter, which was given to the bank’s vice president of human resources. She indicated it was not sufficient to satisfy the Act. Plaintiff was told to get a letter from her attorney or the court. Plaintiff asked the same social worker for a revised letter, asking for extra days off. The first human resources officer accepted the letter as proper certification of the court date, but asked for a sworn statement.

In court, the boyfriend suggested the plaintiff did not respond when her name was called as a witness. They wanted the case dropped so she could get custody of her son. The court entered a nolle prosequi order, because the plaintiff did not appear and the state could not proceed. Plaintiff and her boyfriend left court. Plaintiff went to an appointment with the social worker. The plaintiff then swore her May 8th absence from work was related to the court proceedings and she was going for medical attention and counseling.

The bank’s vice president of human resources wanted to know how anyone knew where they were, as the plaintiff stated the social worker was not in court on the 8th of May. The bank then reversed its decision that she was entitled to leave, and instead, the day would be marked as a paid vacation. The plaintiff continued to pursue the issue, and the bank kept asking for proof. No proof was forthcoming and the plaintiff was suspended August 15th, 2006 for insubordination and misconduct, and fired August 16th, 2006 for the same reasons – the inability to validate the court appearance.

Plaintiff filed a complaint that stated the bank violated the Act by denying her statutory rights by reversing leave approval and then harassing her. The Department found cause that the statute had been violated. Plaintiff then filed an amended complaint, stating she was fired for taking leave under the Act and in retaliation for taking leave, discriminated against, harassed and denied her rights.

An administrative law judge issued recommendations on August 1, 2008, finding there was no violation of the Act and the plaintiff’s complaint should be denied. His findings were based on a negative assessment of plaintiff’s credibility, and the fact she did not provide supporting evidence. The bank went with the administrative law judge’s findings and denied the plaintiff’s complaint. She appealed to the circuit court, which upheld the bank’s decision. She appealed to the superior court. The superior court rejected the plaintiff’s argument that she was not on valid leave under the Act. In essence the plaintiff’s statement of facts did not comply with Rule 342(h)(6), and the woman’s counsel was told to avoid such violations in the future. In other words, the statement of facts was argumentative.

In an administrative review case, the standard of review depends on what is in dispute: the facts, the law, or a mixed question of fact and law. (Marconi v. Chicago Heights Police Pension Board, 225 Ill.2d 497, 532 (2006) (per curiam)). The court will reverse the agency’s decision only if it is has the firm conviction a mistake was committed (id. at 395 (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). They also reverse rulings on questions of fact, only if they are against the manifest weight of the evidence. Carpetland U.S.A., Inc. v. Illinois Department of Employment Security, 201 Ill.2d 351, 369 (2002).

The bottom line under the provisions of the Act is that an employee must provide an employer with at least 48 hours’ advance notice of their intention to take a leave, and the employer may not take any action if the employee provides certification of the reason and nature of the leave within a reasonable time period. In this instance the plaintiff did not respond to being called to the stand to testify and thus the issuance of a nol. pros, which is tantamount to a motion to dismiss. People v. Watson, 394 Ill. 177, 179 (1946); see also People v. Daniels, 187 Ill.2d 301, 312 (1999).

In her appeal, the plaintiff virtually ignores the legitimate purpose question, and instead, makes much of her attempts to certify her leave and the bank’s actions regarding her documentation, or lack thereof. Given the plaintiff’s lack of credibility, the appeal court found the original decision to deny the claim was not against the weight of the evidence, and rejected the plaintiff’s claims, and chose not to address her remaining complaints.

While this case was full of twists and turns, the major point to be taken from it is that if an employee does have a valid reason to take leave according to the Act, they must provide the relevant certification and documentation in a timely manner.

Timothy Coffey is a Chicago employment lawyer and principal attorney for The Coffey Law Office, P. C., an employment litigation firm dedicated to representing employees in the workplace. To learn more or to contact a Chicago employment attorney, visit Employmentlawcounsel.com.

THE COFFEY LAW OFFICE, P.C.
351 W. Hubbard Street, Suite 602
Chicago, IL 60654
Call: 312.627.9700

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