stating for purposes of entitlement to unemployment benefits, part-time work is not per se unsuitable
How later courts described this case
- stating for purposes of entitlement to unemployment benefits, part-time work is not per se unsuitable
- offer of unskilled position to skilled claimant was unsuitable where it paid him 30% less an hour than he previously earned and he had been unemployed for only 12 weeks
Written by the judges who cited it.
The opinion
JUSTICE LINDBERG, dissenting:
I dissent. The majority concludes that employment at K-Mart was unsuitable for this claimant on two grounds: (1) based upon his prior experience and training he was a skilled employee required to perform unskilled tasks at K-Mart, and (2) he was subjected to a substantial reduction in pay as defined by the Department’s guidelines.
I conclude that the finding of the adjudicator, the Board of Review and the circuit court that the K-Mart job was suitable employment under the statute was not against the manifest weight of the evidence. First, the claimant failed to establish he was a skilled employee. In fact, the K-Mart work was the same as he had been doing for the past three years. Second, the claimant waived any issue of the disparity in hourly wage rates when he failed to initially raise the issue with the adjudicator. While he complained of low pay in his motion for reconsideration, he failed to pursue the issue in his appeal to the Board of Review. The issue of rate of pay upon which the majority relies was never before the hearing officer and, so far as the record discloses, was raised for the first time on appeal to this court.
The record demonstrates that the claimant was not a skilled employee. He testified that he held a bachelor’s degree in physical education and held a teaching certificate while in college in 1975. No further evidence was presented by the claimant that related to his educational qualifications or their relationship to his employment.
Further, the claimant presented no evidence of his work history before August 1978. At that time he:
“just started working a regular service station type job pumping gas and fixing tires and that kind of work and within five months in January [1979], I was asked to take the responsibility of the manager’s job of the station which I did. My work week consisted of about 55-60 hours every week — six days a week and I did this for about a year and a half [until March 1980].”
The claimant presented no evidence to establish the nature of this new responsibility from which it could be concluded that he did anything other than continue to pump gas and fix flats.
In April 1980 he took a job in Roscoe, Illinois, which was also six days per week. He testified that:
“I took that responsibility and tried to start a tire store, but the tire store fizzled out. It didn’t get off the ground and the tire store closed.”
Contrary to his assertion on appeal, there was no evidence that he was the manager of the store. Further, the claimant presented no evidence that he performed the work of a skilled employee in that job.
In April 1981 he lost the job at the tire store. Thereafter, he filed this claim for unemployment compensation, performed undescribed tasks in the remodeling of an apartment building on a part-time basis and accepted the part-time employment with K-Mart at issue in this case. His testimony discloses that one of his disappointments with the part-time employment at K-Mart was that he performed oil changes and fixed flat tires “which I had been doing for the past three years.” The record fully supports the conclusion of the Board of Review that the K-Mart job was suitable employment based upon the claimant’s prior training and experience. I would not conclude that the additional work of mopping floors and cleaning bathrooms requires a conclusion contrary to that of the fact finders below.
The majority also heavily relies upon the disparity between the claimant’s prior rate of pay and his K-Mart rate of pay. It is noteworthy that among the numerous allegations originally made by the claimant to the adjudicator, none addressed his rate of pay. He first claimed his pay was too low in his application for reconsideration of the adjudicator’s decision. A very careful reading of the record before the Board of Review fails to disclose that he pursued the issue that his pay was too low vis-a-vis his rate of pay. The testimony instead relates to the inadequacy of the hours he worked in his third and last week which was 17Vz hours instead of the 20 to 24 he allegedly was promised. However, even in this regard it was claimant who insisted on not working Sunday mornings because it conflicted with his Sunday-school teaching. Those lost hours may have increased his weekly hours to the 20-24 hours promised him.
In sum, there is virtually no evidence to support a reversal of the findings by the adjudicator upon reconsideration, the Board of Review or the circuit court that the K-Mart position was suitable employment for this claimant. On the other hand, the record is replete with evidence that the claimant did not want to work with mechanics who drank liquor at lunch, were unprofessional and lacking in customer loyalty and created an adverse environment for his Christian development. The record discloses that his only complaint to a representative of the employer was having to work on a Sunday morning, and he was granted the relief he sought. Otherwise he made no effort to have the employer adjust his employment grievances which dealt with his perception of the unsuitability of his co-employees, the evening and Sunday work schedule and unlikelihood that he would advance. The decision below should be affirmed.