Naritoku v. Soi Dep't of Emp't Sec.

2015 IL App (4th) 140387

CATHERINE A. NARITOKU, Plaintiff-Appellee, v. SOI DEPARTMENT OF EMPLOYMENT SECURITY;BOARD OF REVIEW OF SOI DEPARTMENT OF EMPLOYMENT SECURITY;and JAY ROWELL, Director of SOI Department of Employment Security, Defendants-Appellants,and PARENTECH, LLC, d/b/a REGENCY NURSING CARE RESIDENCE, Defendant.

NO. 4-14-0387

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

April 10, 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 Circuit Court of Sangamon County

No. 13MR91

Honorable Leslie J. Graves, Judge Presiding.

JUSTICE HOLDER WHITE delivered the judgment of the court.

Presiding Justice Pope and Justice Turner concurred in the judgment.

ORDER

¶ 1 Held: The appellate court reversed the decision of the circuit court and reinstated the decision of the Board of Review of the State of Illinois Department of Employment Security, finding the board's determination that plaintiff was ineligible for unemployment benefits was not clearly erroneous.

¶ 2 Plaintiff, Catherine A. Naritoku, is a former employee of Parentech, LLC's Regency Nursing Care Residence (Parentech), where she worked as a registered nurse from June 1, 2012, until her termination on July 30, 2012. Defendants are the Illinois Department of Employment Security (Department), the Board of Review (Board), and Jay Rowell, in his capacity as Director of the Department.

¶ 3 In July 2012, plaintiff's employment was terminated because she failed to administer medication to nursing-home residents. She filed a claim for unemployment benefits with the Department and Parentech objected on the grounds plaintiff was discharged due to employment-related misconduct, rendering her ineligible for unemployment benefits. A claims adjudicator found plaintiff eligible for benefits. The Department appealed the claims adjudicator's decision to a Department referee who, following a hearing, determined plaintiff was ineligible for unemployment benefits because her actions constituted misconduct within the meaning of section 602(A) of the Unemployment Insurance Act (Act) (820 ILCS 405/602(A) (West 2012)). Plaintiff appealed the referee's decision to the Board, which affirmed the referee's decision. Plaintiff then filed a complaint for administrative review in the circuit court, arguing carelessness and poor performance do not fall within the meaning of misconduct and her failure to timely administer medication did not result in harm to Parentech. The circuit court agreed and reversed the Board's decision.

¶ 4 The Department, its Director, and the Board appeal the circuit court's decision, arguing its determination that plaintiff committed misconduct in the course of her job was not clearly erroneous.

¶ 5 We reverse the circuit court's judgment and reinstate the Board's decision.

¶ 6 I. BACKGROUND

¶ 7 The record shows plaintiff was employed as a registered nurse at Parentech from June 1, 2012, until July 30, 2012, when she was discharged for violating its policy regarding the timely administration of medication. Plaintiff applied to the Department for unemployment benefits. In a misconduct questionnaire, plaintiff indicated she was terminated for violating Parentech's medication policy, which according to plaintiff, required medications to be deliveredwithin one hour of the scheduled dose. Parentech protested plaintiff's claim for benefits and provided the following reason for plaintiff's termination:

"On 07/30/12 Employee failed to pass 8:00 a.m. medications to a resident, then attempted to give them at 4 p.m. Employee attempted to give another resident an 8:00 a.m. medication at noon. She failed to administer several noon medications, however she signed the medications out as given. Employee had previously been retrained and placed on another shift due to a previous medication error."

¶ 8 The claims adjudicator initially determined plaintiff violated a known and reasonable company policy and was discharged for misconduct connected with her work. Consequently, the claims adjudicator found plaintiff ineligible for unemployment benefits under section 602(A) of the Act (820 ILCS 405/602(A) (West 2012)).

¶ 9 Plaintiff requested the claims adjudicator reconsider his decision. She explained she delivered some medications two hours late because she was attending to the needs of other residents and could not find some of the medications, which were located in the wrong drawer. On reconsideration, the claims adjudicator found plaintiff did not engage in a deliberate and willful violation of Parentech's policy, and therefore, her discharge was not based on misconduct. The claims adjudicator set aside the denial of benefits and found plaintiff eligible for unemployment benefits.

¶ 10 Parentech appealed the claims adjudicator's decision to a Department referee. The referee held a telephone hearing on September 14, 2012, where plaintiff and Parentech administrators Tony Twardowski and Chris Stock appeared and testified.

¶ 11 At the hearing, Twardowski testified plaintiff worked at the nursing home as a registered nurse from June 1, 2012, until July 30, 2012. On July 30, 2012, the director of nursing terminated plaintiff's employment because she failed to deliver the 8 a.m. and 12 p.m. medications. Plaintiff also falsified documents by signing her initials on a medication log to indicate she delivered the medications, when in fact she had not. According to Twardowski, falsifying documents is a separate ground for termination and is something Parentech takes "very, very critically" because it could result in liability. Twardowski further testified plaintiff was previously warned about her medication violations through a written warning on July 11, 2012. The warning informed plaintiff she failed to deliver the 6 a.m. medications, failed to compare medication labels, administered two doses of the wrong medication, and improperly signed a medication log to indicate the correct medications were given. In response to the referee's inquiry of whether he had anything further to state, Twardowski noted plaintiff received additional training at the time she was hired because this was her first position as a registered nurse. Although plaintiff was hired to work the night shift, she was transferred to the day shift because she was making too many errors and residents complained. By transferring her to the day shift, Parentech was able to closely monitor her performance. At the conclusion of Twardowski's testimony, plaintiff declined the opportunity to ask questions.

¶ 12 Plaintiff testified and confirmed she was discharged on July 30, 2012, because of a medication error. When asked for her version of events, plaintiff claimed she delivered all of the 8 a.m. medications and all but two of the 12 p.m. medications. She explained she started administering medications at noon to the residents in the dining room, but she was distracted by other matters that required immediate attention. Plaintiff testified one resident had to go to the hospital, another resident's wound vacuum needed a new canister and tubing, alarms weresounding, and she needed to return a physician's call. As a result, two medications—a diuretic and an antibiotic—were not administered. Plaintiff attempted to administer the diuretic but the resident refused to take the medication because it was late. Another resident did not receive an antibiotic because it was not located in the correct drawer. She elaborated:

"There's no reason why it should not have been [in the correct drawer], because the medications he was on were what we call stock medications.

***

Because his medications weren't in the drawer, I presumed he was supposed to get the stock medications, so I gave him the... you know, the regular house stock medications except for the, um, antibiotic."

Around 3 p.m., when plaintiff's shift ended, she found the antibiotic medication in the bottom drawer. Plaintiff informed a nurse from the next shift about the antibiotic and the nurse instructed plaintiff not to administer the antibiotic because the resident was scheduled to receive his next dose, which would result in him receiving a double dose. In response to the referee's inquiry regarding the medication logs, plaintiff said she circled the medications that were not delivered. When asked whether she had anything else to add, plaintiff admitted giving a hospice resident two doses of Ativan (a sedative) instead of morphine and was warned for delivering the wrong medication.

¶ 13 Following plaintiff's testimony, the referee allowed Twardowski to question her. In response to Twardowski's questions, plaintiff said she was aware of Parentech's policy requiring medications to be delivered within two hours of the scheduled dose and the purpose ofthe policy is to ensure medications maintain a therapeutic level in the blood. Plaintiff again acknowledged antibiotics are stock medications, which are located in emergency or convenience boxes to which she had access. When asked why she did not take antibiotics from the emergency box, plaintiff replied, "I was still giving medications." Although plaintiff was aware two nurse managers were on duty, she did not request their assistance because "[she] was not so far behind then."

¶ 14 The referee issued a written decision finding plaintiff ineligible to collect unemployment benefits pursuant to section 602(A) of the Act (820 ILCS 405/602(A) (West 2012)). In doing so, the referee found the following facts:

"The claimant was [a registered nurse] from June 1, 2012 to July 30, 2012 when the employer fired her because of a number of reasons relating to her administering medication to residents. The employer had warned her for violating the employer's medication procedures. *** The final incident that resulted in her discharge occurred on July 30 when she was to give residents meds at 8:00 AM and noon. *** The claimant said she gave

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