"It is well established that when hearsay evidence is admitted without an objection, it is to be considered and given its natural probative value."
How later courts described this case
- "It is well established that when hearsay evidence is admitted without an objection, it is to be considered and given its natural probative value."
Written by the judges who cited it.
The opinion
FOURTH DIVISION
July 31, 2008
No. 1-07-1337
VILLAGE DISCOUNT OUTLET, ) Appeal from the Circuit Court
) of Cook County, Illinois.
Plaintiff-Appellant, )
)
v. ) No. 06 L 51203
)
THE DEPARTMENT OF EMPLOYMENT )
SECURITY, an Administrative Agency in the State )
of Illinois; DIRECTOR OF THE DEPARTMENT )
OF EMPLOYMENT SECURITY; THE BOARD )
OF REVIEW, an Administrative Agency in the )
State of Illinois, DARRELL L. CARDEN, ) Honorable Sheldon Gardner,
) Judge Presiding.
Defendants-Appellees. )
JUSTICE MURPHY delivered the opinion of the court:
Plaintiff Village Discount Outlet (Village Discount) appeals from the order of the circuit
court affirming the decision of defendant the Board of Review (the Board) of the Illinois
Department of Employment Security (Department) granting unemployment benefits to a former
Village Discount employee, Darrell L. Carden. On appeal, Village Discount contends that the
Department's decision was against the manifest weight of the evidence because it improperly
found that a witness' testimony about a videotape was hearsay. Alternatively, Village Discount
contends that due process requires that we remand this matter to the Department to allow Village
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Discount to introduce the tape into evidence. We affirm.
Because the parties do not dispute much of the facts and even agree on the applicable law,
only a summary recitation of the facts is required.
Darrell Carden was an employee of Village Discount, which operates drop-off facilities
and thrift stores for various charities. Village Discount accused Carden of setting aside donations
intended for Village Discount and taking them for himself or giving them to relatives. Village
Discount alleged that these actions were observed by investigators and captured on videotape.
The Department concedes that these actions, if proven, constitute theft from an employer which
would justify the denial of unemployment benefits for misconduct.
Sometime in June 2006 Carden was placed on disciplinary leave pending investigation
for theft of company merchandise. On July 13, 2006, a Department representative interviewed
Carden. The Department representative was unable to obtain a statement from a representative of
Village Discount and subsequently granted Carden unemployment benefits.
Village Discount subsequently challenged the determination and a telephone hearing was
conducted by a Department referee. Neither party was represented by counsel. Carden
represented himself and Village Discount was represented by Tom Foley, a regional manager.
Neither party submitted exhibits.
Foley testified that, in response to complaints, Village Discount set up surveillance.
Foley further testified that "we had Mr[.] Carden himself on video taking merchandise from the
site." Foley testified that he had seen the videotapes. Foley further testified that "in one case in
particular," Carden set aside a large television and directed attendants to load the items into a
relative's car.
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Carden denied taking any items from Village Discount and denied responsibility for any
other improper conduct.
The referee concluded that Carden was disqualified from receiving benefits because he
had been terminated for misconduct. Carden appealed to the Board.
The Board found that no further evidentiary proceedings were necessary and made its
determination based on the record developed by the referee. The Board's decision outlines the
definition of hearsay and observes that hearsay will not be considered if the opposing party
objects. However, the Board noted, in the absence of an objection, hearsay will be admitted into
evidence but will be given only "its natural probative value." The Board concluded, stating:
"The evidence offered by the employer's witness was
hearsay. There is not sufficient independent first hand evidence
before us to establish that the claimant actually committed the
actions that caused his discharge."
Village Discount filed a complaint for administrative review in the circuit court. The
circuit court affirmed the holding of the Board. Village Discount timely appeals.
Village Discount first contends that the Board erred when it ruled that Foley's testimony
was hearsay. The Department responds that the Board never made such a ruling. We find that it
is unnecessary to address this aspect of the conflict and will assume for the purposes of our
disposition that when the Board stated that the evidence was hearsay it was referring, inter alia,
to the testimony regarding the videotape.
The Board is the trier of fact in cases involving claims for unemployment compensation,
and we review the findings of the Board rather than the referee or the circuit court. See Greenlaw
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v. Department of Employment Security, 299 Ill. App. 3d 446, 448 (1998); Richardson Borthers v.
Board of Review of the Department of Employment Security, 198 Ill. App. 3d 422, 428 (1990).
On appeal, a reviewing court must determine whether the Board's findings of fact are sustained
by the evidence. Lester v. Department of Employment Security, 354 Ill. App. 3d 51, 55 (2004).
The Board's findings of fact are deemed prima facie true and correct and will be reversed only
where they are against the manifest weight of the evidence. Lester, 354 Ill. App. 3d at 55, citing
City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d, 191, 204-05 (1998).
However, determinations of law will be reviewed de novo. Belvidere, 181 Ill. 2d at 205.
Accordingly, we may review de novo the legal question of whether Foley's testimony
regarding the videotape was hearsay. Village Discount contends that the testimony was not
hearsay and directs our attention to People v. Tharpe-Williams, 286 Ill. App. 3d 605 (1997). In
Tharpe-Williams, the reviewing court was faced with the question of whether the testimony of
security guards regarding their observations, via closed circuit television, of a retail theft suspect
constituted inadmissible hearsay. Tharpe-Williams, 286 Ill. App. 3d at 608. The court
concluded that because a witness' statements about his observations with the aid of an object, i.e.
a video camera, do not rely on the credibility of someone other than the witness, there is no out-
of-court statement and therefore no hearsay. Tharpe-Williams, 286 Ill. App. 3d at 609.
Therefore, we must agree with Village Discount that, to the extent the Board ruled Foley's
testimony about his observations of the videotape constituted hearsay, the Board was incorrect as
a matter of law.
Our analysis, however, does not end with this relatively straightforward application of the
hearsay rule. The Board never ruled that the alleged hearsay statement was inadmissible. Rather,
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the Board ruled, correctly, that unobjected-to hearsay statements are admissible but given only
their "natural probative value." See Jackson v. Board of Review of the Department of Labor, 105
Ill. 2d 501, 508 (1985)("It is well established that when hearsay evidence is admitted without an
objection, it is to be considered and given its natural probative value.")
We turn, therefore, from the legal question of whether Foley's testimony constituted
hearsay to the factual question of the testimony's natural probative effect. In doing so, we must
also shift our standard of review from a de novo standard to the far more deferential manifest-
weight-of-the-evidence standard.
In considering the natural probative value of Foley's testimony, we believe it is
appropriate to note that, although not technically hearsay, it does suffer from numerous other
evidentiary problems that affect the weight it should be given. The Tharpe-Williams court
observed that although information obtained through a video camera was not hearsay, a proper
foundation must be laid for introduction of such evidence. Tharpe-Williams, 286 Ill. App. 3d at
609. In the case before us, no foundation was ever laid for the introduction of Foley's testimony
regarding his observations of the videotape. Foley never identified the date or time the videotape
was made and never described where or how the video camera was set up. In fact, we have
carefully reviewed Foley's testimony and note that it is difficult to determine whether Foley's
description of the "one case in particular" referred to things he had seen on a videotape,
information related to him by third parties, or a combination of both.
Moreover, as the Department correctly points out, Foley's description of a videotape that
was never introduced into evidence runs afoul of the best evidence rule. See Tharpe-Williams,
286 Ill. App. 3d at 610. The best evidence rule expresses a preference for the original of
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documentary evidence when the contents of the documentary evidence are sought to be proved.
Tharpe-Williams, 286 Ill. App. 3d at 610. However, as there was no objection on this basis at
the hearing, we believe that the proper result is, as with hearsay evidence, to consider the
evidence, but consider the evidentiary flaws as affecting its weight. See Jackson, 105 Ill. 2d at
508.
In sum, we find that the evidence presented by Village Discount was rife with evidentiary
flaws, which although perhaps not properly classified as hearsay, nevertheless affected the weight
to be accorded Foley's testimony. However, it is not our role to engage in an independent
weighing of that evidence. We cannot reverse simply because we disagree with the conclusions
the Board drew from the evidence. Rather, we will reverse only if, after viewing the evidence in
the light most favorable to the Board, no rational fact finder could agree with the decision.
Lester, 354 Ill. App. 3d at 55. Although another fact finder might have accorded greater weight
to Foley's testimony, we cannot conclude that no trier of fact would have adopted the position of
the Board. Therefore, we find no reason to disturb the findings of the Board, as they were not
against the manifest weight of the evidence.
Village Discount alternatively contends that, if we do not reverse the Board's findings
outright, we should remand this matter for an additional hearing to allow Village Discount to
correct the evidentiary deficiencies in its case. Village Discount relies on Meneweather v. Board
of Review of the Department of Employment Security, 249 Ill. App. 3d 980 (1992). The
Department responds that its procedures comport with due process and argues: "Village
Discount's decision to place little effort into a process so critical to its former employee, and to
not take advantage of its opportunity to present its best evidence does not mean that the
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procedures afforded were insufficient."
In Meneweather, the reviewing court remanded an unemployment compensation case for
further proceedings after determining that the referee had failed to make adequate inquiry into the
claimant’s alcohol use before determining that her actions constituted misconduct.
Meneweather, 249 Ill. App. 3d at 985. In so doing, the Meneweather court noted that "no Illinois
case explicitly analyzes the extent of the referee's duty to solicit material evidence."
Meneweather, 249 Ill. App. 3d at 985. Since Meneweather was decided, we are aware of no case
that does so, nor will we attempt to definitively describe the scope of that duty here. Rather, we
will consider the record as a whole to determine whether the referee's conduct of the hearing
comported with basic notions of due process.
In the case before us, we cannot conclude that the referee failed to meet his duty to
conduct a fair hearing. Neither, party was represented by counsel, but the referee took an active
role in developing the evidence and fleshing out the positions of the parties. We note, for
example, that Village Discount would not have been able to present its earlier hearsay argument
if the referee had not actively solicited Foley's testimony that he had seen the videotape.
However, we do not believe that the duty of the referee to conduct a hearing that comports with
due process requires him to take such an active role that all evidentiary deficiencies in pro se
presentations are remedied. We will not convert the Meneweather analysis into a general savings
clause that allows a party a second bite at the apple every time they choose to appear at the initial
hearing without the benefit of counsel. Village Discount was given notice of the requirements
for admitting the tape into evidence at the hearing and elected, instead, to present only the
testimony of a supervisor who had been shown the tape. Village Discount must now live with
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the consequences of that decision. Therefore, we find that due process does not require remand
under the facts and circumstances of this case.
Accordingly, the judgment of the circuit court of Cook County is affirmed.
Affirmed.
NEVILLE, P.J., and O’BRIEN, J., concur.
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Please Use
REPORTER OF DECISIONS – ILLINOIS APPELLATE COURT
Following (Front Sheet to be Attached to Each Case)
Form:
Complete VILLAGE DISCOUNT OUTLET,
TITLE Plaintiff-Appellant,
of Case v.
THE DEPARTMENT OF EMPLOYMENT SECURITY, an Administrative Agency in the State
of Illinois; DIRECTOR OF THE DEPARTMENT OF EMPLOYMENT SECURITY; THE
BOARD OF REVIEW, an Administrative Agency in the State of Illinois, DARRELL L.
CARDEN,
Defendants-Appellees.
Docket No. Nos. 1-07-1337
Appellate Court of Illinois
COURT
First District, FOURTH Division
Opinion July 31, 2008
Filed (Give month, day and year)
JUSTICES JUSTICE MURPHY delivered the opinion of the court:
Neville, P.J. and O’Brien, J., concur [s]
dissent[s]
APPEAL from
the Circuit Lower Court and T rial Judge(s) in form indicated in the margin:
Ct. of Cook
County,
Chancery The Honorable Sheldon Gardner, , Judge Presiding.
Div.
Indicate if attorney represents APPELLANTS or APPELLEE S and include
attorneys of counsel. Indicate the word NONE if not represented.
For
APPELLANTS,
John Doe,
of Chicago.
Attorney for Plaintiff-Appellant: Graefe & Hansen, Ltd.
For 55 W. Monroe Street, Suite 3550
APPELLEES,
Smith and
Chicago, IL 60603
Smith of Phone: 312.236.0177
Chicago,
Joseph
Brown, (of
Attorneys for Defendants-Appellees: Lisa Madigan, Attorney General of the State of Illinois
Counsel) State Defendants-Appellees Michael A. Scodro, Solicitor General
The Department of Employment Jerald S. Post, Assistant Attorney General
Also add
attorneys
Security, its Director and its 100 W. Randolph Street, 12th Floor
for third- Board of Review Chicago, IL 60601
party Phone: 312.814.3312
appellants
or
appellees.
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