Update: April 21, 2009
The State of Georgia has decided not to prosecute fraud. What type of government is this that allows fraud to be perpetrated? The Government of Georgia has given this company a license to fraud. I received this letter dated February 27, 2009:
State of Georgia
Governor's Office of Consumer Affairs
2 Martin Luther King, Jr., Drive, SE, Suite 356
Atlanta, Georgia 30334-4600
404-651-8600
RE: Reference File Number 230366
"...Thank you for sending us the information regarding your complaint against Joseph & Stephens Associates. As we do not have jurisdiction in matters of this nature beyond a facilitation process, and as this process has taken place, we are closing the file...Although we cannot take further action on your behalf at this point, we are retaining your complaint in our files for future reference..."
Sincerely,
Faye Allen
Customer Service Representative
Update: January 10, 2009
On January 10, 2009 I received correspondence from the State of Georgia, Governor's Office of Consumer Affairs. The letter states in part
"...Our office has received the enclosed complaint from Mr. Fred L. Nance Jr. regarding your debt collection practices for an account numbered xxxxxxxxx9116 indicating Bank of America as the original creditor. The consumer is alleging harassment and/or inappropriate communications from your company, and particularly that you are not contacting the correct party...
The Georgia Governor's Office of Consumer Affairs enforces the Fair Business Practices Act...which prohibits unfair and deceptive practices in the context of consumer transactions. Our enforcement powers allow us to conduct civil or criminal investigations, issue subpoenas, assess civil penalties up to $2,000 per day for violations, and pursue violators in court...
This letter serves as notice that a violation of the Fair Debt Collection Practices Act...is also a violation of the Georgia Fair Business Practices Act...
Please also review your records and provide to this office a written response to the specific allegations of this consumer within ten business days. If the matter has been resolved, state the precise manner in which it was resolved...."
October 20, 2008
Joseph & Stephens Associates
5150 Stilesboro Road, Suite 610
Kennesaw, Georgia 30152
Re: Bank of America 4673671189116
Joseph & Stephens Associates:
Please be advised: During the first week of October 2008, Mr. Steve Larrimore called me threatening and intimidating me and my family with litigation regarding this account. Mr. Larrimore informed me he had reason to believe I owed a debt for this account. I informed Mr. Larrimore I did not have nor have I ever had an account with the Bank of America. I asked Mr. Larrimore to give me some details about this debt, and why he believed I owed this debt. Mr. Larrimore refused to elaborate on the account, stating since I did not want to take ownership of the debt he would start litigation against me. I informed Mr. Larrimore since he was not going to discuss this alleged debt with me, that he should call me anymore. Mr. Larrimore informed me I would be receiving litigation paperwork in the mail at the end of October 2008.
On or about October 14, 2008 I received a letter of settlement on this account suggesting I owed a current amount of $4,838.38. The letter states a settlement offer of $3,139.04 with a settlement date of October 24, 2008. On or about October 16, 2008 my daughter received the same letter at her address. I do not live with my daughter. On October 20, 2008 I called and left a message for Mr. Larrimore. Mr. Larrimore returned my call and refused to give me any information on this account, which he is charging me with being delinquent. Mr. Larrimore informed me that since I did not take ownership the litigation proceedings have gone forward against me.
Wherefore the foregoing, if I receive any litigation papers in the mail or by any other means of delivery I will proceed with a counterclaim stating threats, intimidation and defamation of character to start. I will be seeking damages for legal fees, court costs and any and all other remedies the court of jurisdiction deems necessary and appropriate for the willful, nefarious and deliberate acts complained.
Respectfully submitted,
Fred Nance Jr.
cc:
Court of Jurisdiction
http://clickforjusticeandequality2.blogspot.com/
http://click.townhall.com/
http://frednance.newsvine.com/
http://clickforjusticeandequality.wordpress.com/
Monday, October 20, 2008
Tuesday, September 23, 2008
Bush team, Congress haggle over $700B bailout
Bush team, Congress haggle over $700B bailout - Yahoo! News
Is this bailout appropriate? Who is responsible? Where is the accountability? Who is to blame? If these questions are not answered, why are we bailing the "rich" out of their greed?
Is this bailout appropriate? Who is responsible? Where is the accountability? Who is to blame? If these questions are not answered, why are we bailing the "rich" out of their greed?
FBI - Most Wanted - The FBI's Ten Most Wanted Fugitives
FBI - Most Wanted - The FBI's Ten Most Wanted Fugitives
If you have any information about these people, please contact your local FBI office.
If you have any information about these people, please contact your local FBI office.
Illinois Courts: South Holland Police Department Discriminatory Practices and Disparate Treatment
Update: October 10, 2008
The Honorable Judge William H. Hooks dismissed the charges in this case. The Assistant States Attorney issued a recommendation to dismissal because the complaining witness was not in court. South Holland Police Department's Officer Burrow star #129 did not show up for this court appearance. This is a victory against Tyranny and Discriminatory Practices.
Update: September 23, 2008
On September 15, 2008 I received the following correspondence from AAA my auto insurance company. I applaud AAA's courage in addressing this issue in behalf of its client/consumer Fred Nance Jr. The letter, in part, states:
AAA
September 12, 2008
Re:
Insured: Fred Nance Jr.
Claim #: 3007042
Claimant: Rose Bradford
Date of Accident: 8/13/2008
Your Claim #: 13A399586
Dear State Farm:
"This will acknowledge receipt of your claim for damages to your vehicle arising out of the above captioned accident. After a careful examination of the facts, it appears that there is sufficient negligence on the part of your insured and that is a bar to any recovery from our insured. Payment under our insured's policy is dependent upon legal liability imposed by law. In view of the facts revealed by our investigation, we feel that this is a case where there is no legal liability on the part of our insured. Therefore, we regret to advise you that we will be unable to make any payment to you on this claim."
Sincerely,
Vicky Hughes
Claims Representative
cc:
State Farm
Fred Nance Jr.
September 12, 2008
On or about September 12, 2008, I received the following correspondence from the Illinois Office of the Clerk of the Circuit Court of Cook County
Dear Fred Nance Jr.:
Re:
Ticket Citation Number YM-575-749
Your traffic case(s), listed above is/are scheduled to take place on October 10, 2008 in room CL04, at 1:30 p.m. The hearing(s) will take place at 50 West Washington Street, Chicago, Illinois 60602.
Sincerely,
Dorothy Brown
Clerk of the Circuit Court of Cook County, Illinois
Update: September 9, 2008
As I left my home on September 9, 2008 I noticed that the Village of South Holland has now put up "no parking" signs where this accident occurred. What is the Village of South Holland proclaiming now? Should they have issued the driver "who caused the accident" a ticket, which was the driver of Unit 2? Why have they put a "no parking" sign up now? It appears the Village of South Holland has reviewed my "motion to substitute the judge...." below. In the "motion" below I cite legal authorities suggesting the driver of Unit 2 is guilty of violating.
Update: August 29, 2008
On August 29, 2008, my case was adjudged by the Honorable Judge John Turner in Markham Courtroom 098. Judge John Turner addressed an individual who had some relationship with him where he stated he was going to transfer the case to the Honorable Presiding Judge Ronald C. Riley. The prosecutor for Courtroom 098 went over the South Holland Police Officer who wrote the ticket to discuss the ticket. The prosecutor came back to Judge Turner and told him that the South Holland Police Officer was not going to prosecute the case. Judge Turner dismissed the case.
Judge Turner and the prosecutor did not do that for me. Judge Turner granted my request for a "substitution of Judge" as a matter of right. Judge Turner forwarded my motion below to the Presiding Judge, the Honorable Ronald C. Riley, to make a decision on my request for a "Change of Venue."
Judge Riley's personal secretary informed me that when Judge Riley returns on Tuesday, September 2, 2008, he will sign my request and send my motion with the ticket to the Clerk of the Court, the Honorable Dorothy Brown, for disposition. Judge Riley's secretary reports it will be my responsibility to follow-up with the results of the Change of Venue. Judge Riley's secretary suggested I call Ms. Dorothy Brown's office to find out if they have received my paperwork. Judge Riley's secretary reports that if Ms. Dorothy Brown's office does not receive my paperwork I should contact the Clerk of the Court for the Markham Courthouse.
While awaiting my case to be heard by Judge Turner, I had the opportunity to see the South Holland Police Department at work in the courtroom, supporting my motion to transfer my case to another venue. Officer Johnson, Star #128, of the South Holland Police Department demonstrated the South Holland Police Department's lack of integrity, honesty and professionalism. Officer Johnson is white. The people he wrote tickets against were all black.
I saw Officer Johnson address about 6 cases. He won 4 and lost 2, partially. Judge Turner found a hispanic woman guilty because Officer Johnson stated she did not stop at a stop sign. Officer Johnson stated in testimony that he knew the lady did not stop for the stop sign because her car did not "rock" at the stop sign. Officer Johnson did not testify the woman did not come to a complete stop, and then proceed beyond the stop sign. Officer Johnson testified the woman's car did not "rock" and Judge Turner found the woman guilty of not stopping for a stop sign.
About the other 3 cases won, they resulted from Officer Johnson reporting using his radar gun to determine the speed of a car, where apparently there was no obstruction of sight even though Officer Johnson testified he had to make U-turns to get behind the vehicles.
Officer Johnson lost 2 cases. Officer Johnson testified that he determined a car was going too fast because "his" odometer stated he was traveling at 48 miles per hour. For whatever reason, Officer Johnson did think he needed to use an instrument that determines the speed of a vehicle. Judge Turner dismissed this case.
Officer Johnson wrote another ticket on a young black woman for not having her rear lights working. The young black woman informed Judge Turner that when she was stopped by Officer Johnson, she got out of her, told her husband who was sitting in the passenger seat of the car, to step on the brakes so that she and Officer Johnson could see her that her rear lights work. Officer Johnson testified in open court that the rear lights worked.
The young black woman told Judge Turner that she then asked Officer Johnson why was he giving her a ticket for not having rear lights. The young black woman told Judge Turner that Officer Johnson told her to "deal with it in court." In my case, Officer Burrow told me to take care of my issues in court also when I challenged receiving a ticket.
Judge Turner ruled against Officer Johnson for this ticket against the young black woman. The spectators in the courtroom started clapping and talking to each other about the lack of integrity, honesty and professionalism of Officer Johnson. Judge Turner cleared all spectators out of his courtroom after this outburst. No one could observe any further proceedings for the 9:00 a.m. call in the Markham Illinois Courtroom 098.
Officer Johnson gave the young black woman a ticket knowing she did not violate any rule of the road for Illinois. After stopping this woman Officer Johnson found her license plate sticker had expired. Judge Turner found this lady guilty of not having an updated sticker. The fine started at $135.00 and that was just for being in the courtroom.
Before the 10:30 a.m. call began at 12:10 p.m., the court clerk gave a summary of what to expect in the courtroom. She reported that the court makes it decision by a "preponderance" of the evidence, and not "beyond a reasonable doubt." A traffic offense is considered to be a "criminal" offense.
According to Black's Law Dictionary, a "preponderance of evidence" is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it. A preponderance of evidence is generally used for civil cases.
According to Black's Law Dictionary, "beyond a reasonable doubt" in evidence means fully satisfied, entirely convinced, satisfied to a moral certainty; and phrase is the equivalent of the words clear, precise and indubitable. In criminal cases, the accused's guilt must be established "beyond a reasonable doubt" , which means that facts proven must, by virtue of their probative force, establish guilt.
If this criteria is not met, then entities like the South Holland Police Department can continue to violate the constitutional and other legal rights of people. If an entity like the South Holland Police Department is not held to a professional standard of honesty and integrity, it can only lead to anarchy.
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT – SIXTH MUNICIPAL DISTRICT
TRAFFIC COURT
THE PEOPLE OF THE STATE OF ILLINOIS
the Village of South Holland and Rose Bradford et. al.
Traffic complaint #YM 575749, Room 098
Plaintiff,
vs.
Fred Nance Jr., Defendant.
NOTICE OF MOTION FOR SUBSTITUTION OF JUDGE
AND CHANGE OF VENUE
PLEASE TAKE NOTICE, on August 29, 2008 at approximately 10:30 am, or as soon thereafter as defendant may be heard, defendant shall appear before the Honorable Judge in Room 098 at the Markham Courthouse, Markham, Illinois, and then and there present defendant’s motion.
___________________________
Fred L. Nance Jr., ABD, MA, CADC, NCRS
CERTIFICATE OF SERVICE
I, Fred L. Nance Jr., certify that I caused the above Notice, attached Motion and Affidavit to be served in “open” Traffic Court, Room 098 on August 29, 2008 to the plaintiff(s) and/or their representative(s).
Respectfully submitted,
Fred L Nance Jr., ABD, MA, CADC, NCRS
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT – SIXTH MUNICIPAL DISTRICT
TRAFFIC COURT
THE PEOPLE OF THE STATE OF ILLINOIS
the Village of South Holland and Rose Bradford et. al.
Traffic complaint #YM 575749, Room 098
Plaintiff,
vs.
Fred Nance Jr., Defendant.
MOTION FOR SUBSTITUTION OF JUDGE
AND CHANGE OF VENUE
Now Comes, Fred L Nance Jr., respectfully requesting a Substitution of Judge as a matter of right pursuant to 735 ILCS 5/2 1001 (a)(2)(i)(ii)(iii); and for cause 725 ILCS 5/114 5 (a); and Change of Venue pursuant to 735 ILCS 5/2 1001.5 (a).
Defendant submits an Affidavit to support this motion.
Respectfully submitted,
Fred L Nance Jr., ABD, MA, CADC, NCRS
STATE OF ILLINOIS
SS.
COUNTY OF COOK
A F F I D A V I T
1. I, the Defendant Fred Nance Jr. and Unit 1 driver (Defendant), respectfully request this Honorable Court transfer this matter to the First Municipal District Traffic Center of Cook County at the Daley Center for trial.
2. On August 13, 2008 a traffic accident occurred in the County of Cook, South Holland Illinois.
3. On August 29, 2008 Defendant is scheduled for a traffic court hearing in Room 098 in the Illinois Markham Courthouse.
4. The Defendant strongly believes the Illinois Markham court, any Illinois Markham courtroom and the South Holland police department is prejudiced toward him, demonstrated by disparate treatment and discriminatory practices toward the Defendant in the past and in this present matter.
5. The Defendant received a “Certificate of Extension” for four (4) years when renewing his driver’s license on September 1, 2007. As this court knows, this is given to drivers who have first-rate driving records.
6. The Defendant is a defensive driver.
7. In 1988 convicted felon Judge Paul Foxgrover convicted the Defendant of “upgraded” criminal charges in a Markham Courtroom because the Defendant would not cooperate with police investigations of others who had no relationship to the defendant, such as wearing a wire, along with other vicarious disparities, such as the Markham Courthouse State’s Attorney alleged that the Defendant was a convicted felon with a handgun when the Defendant was not a convicted felon (Case #88CR04675). At the time of this Defendant’s trial in case #88CR04675, the Defendant accused Judge Paul Foxgrover of taking his money, which was taken by Country Club Hills police officers and given to Judge Foxgrover for “safe-keeping” at the time of Defendant’s arrest in case #88CR04675.
8. In addition, convicted felon Judge Paul Foxgrover allowed the Illinois Markham Assistant State’s Attorney to prosecute me knowing the “ineffective assistance of counsel”, such as attorney Daniel Gallagher being an alcoholic and the attorney I replaced him with William Swano who was being investigated in the Greylord scandal, which led to Swano’s indictment and suspension at bar. The Defendant did not know about Gallagher, Swano and Foxgrover’s conviction until he received notice from a 3rd attorney he hired who filed a “petition for post conviction relief.” See Petition for Post Conviction Relief filed February 25, 1992 in case number 88CR4675.
9. Trial Judge Paul Foxgrover’s misconduct for “theft of funds”, which led to his indictment and removal from the bench, in unrelated cases during the same time period that he heard the Defendant’s cases bore on the quality of the court’s ability to be fair and impartial and denied the Defendant due process of law and a fair trial as guaranteed by the 14th and 6th Amendments of the United States Constitution. See Petition for Post Conviction Relief filed February 25, 1992 in case number 88CR4675, paragraphs 9 & 10, page 3.
10. When incarcerated regarding case #88CR4675 on January 16, 1992 at the age of 42-years-old the Defendant did not have a high school diploma. The Defendant received his G.E.D. in the Cook County jail while awaiting placement in the Illinois Department of Corrections (IDOC).
11. While incarcerated the Defendant began college. Upon release from IDOC, the Defendant achieved his Bachelor degree in Social Science and a Master degree in Community Counseling from Roosevelt University.
12. The Defendant will receive his PhD in Human Services with a focus on Social Policy Analysis and Planning in the Fall/Winter session of 2008 from Walden University. The Defendant has been going to school for the past 16 years.
13. In the instant matter, due to the Defendant’s familiarity with the South Holland police department, the Defendant filing complaints against the South Holland police department, posting the complaints on the Defendant’s websites/blogs, and the relationships of the South Holland police department with the Markham court officials, that is, Cook County Sheriff police and officials and sitting Judge in Room 098, the Defendant strongly believes he will not get a fair hearing, nor will he be heard, and the verbal evidence below, which will be presented by the Defendant, will not be given any weight toward his innocence.
14. The testimony here, given by the Defendant regarding the present traffic charge of “Fail to reduce speed to avoid accident” will demonstrate the Defendant, beyond a reasonable doubt, is not guilty.
15. The testimony here will demonstrate Unit 2’s negligence and total disregard for Illinois’ Rules of the Road, and illustrate Unit 2 being responsible for the accident on August 13, 2008.
16. It is the contention of the Defendant that Unit 2 caused the accident of August 13, 2008. At the time of the accident, Unit 2 informed the officer on the scene that there were no injuries to the individuals in her car. See Illinois Traffic Crash Report (A no injury/drive away).
17. On August 13, 2008 I, Fred Nance Jr., was involved in an automobile accident in the Village of South Holland Illinois. I asked the driver of the other car for their information, that is, driver’s license and insurance card. The driver of Unit 2 refused to give me the information.
18. 625 ILCS 5/11-403 (from Ch. 95 ½, par. 11-403) Sec. 11-403. Duty to give information and render aid. The driver of any vehicle involved in a motor vehicle accident resulting in…damage to any vehicle which is driven or attended by any person shall give the driver’s name, address, registration number and owner of the vehicle the driver is operating and shall upon request and if available exhibit such driver’s license to the person struck or the driver or occupant of or person attending any vehicle collided with and shall render to any person….
19. I called the South Holland Police Department. Officer K. Burrow Star #129 responded to the call I made to the South Holland Police Department.
20. When Officer Burrow arrived upon the scene I gave him my driver’s license and insurance card. Officer Burrow asked me for my phone number. Officer Burrow wrote my phone number on my insurance card. This was inappropriate.
21. Officer Burrow issued me a ticket, which states “Fail to reduce speed to avoid accident.” There could not be a reduction in speed because both cars could not have been going more than 5 miles an hour because of the stop-and-go of vehicles before the accident.
22. I explained to Officer Burrow the following about the car accident: As I came around the bend in the road on Thornwood drive approaching the stop sign, a Dodge Caravan was stopped at the turn in the bend.
23. 625 ILCS 5/11 1301 (from Ch. 95 1/2, par. 11 1301) Sec. 11 1301. Stopping, standing or parking outside of business or residence district. (a) “…no person shall stop, park or leave standing any vehicle, whether attended or unattended, upon the roadway when it is practicable to stop, park or so leave such vehicle off the roadway, but in every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicle shall be available from a distance of 200 feet in each direction upon such highway.
24. Unit 2 continued to stop her vehicle when it was not practicable or appropriate to stop or park her vehicle.
25. Unit 2 did not have its emergency blinkers on. Unit 1 could not go around Unit 2 at the time because another car was coming in the opposite direction.
26. When the other car went by, Unit 1 was about to turn out and pass the parked/stopped Unit 2. Unit 1 blew its horn.
27. Unit 2 began to move. Unit 1 turned back behind Unit 2. Unit 1 began to move. Unit 1 was traveling 5 miles an hour. There was 5-10 feet between Unit 1 and Unit 2 when Unit 2 began to move.
28. Unit 2 moved a few feet and stopped again. Unit 1 stopped its car. Unit 1 blew its horn for the second time. Unit 2 started moving again. Unit 1 began to move, traveling 0-5 miles an hour, to turn out to pass Unit 2. All of sudden, Unit 2 came to a dead stop again. Unit 1 was traveling 0-5 miles an hour.
29. 625 ILCS 5/11-1416 (from Ch. 95 1/2, par. 11-1416) Sec. 11-1416. No person shall willfully and unnecessarily hinder, obstruct or delay, or willfully and unnecessarily attempt to delay, hinder or obstruct any other person in lawfully driving or traveling along or upon any highway within this State…so as to interfere with the effective movement of traffic.
30. Unit 2 willfully and unnecessarily hindered, obstructed and delayed my traveling along a highway in this State and interfered with the effective movement of traffic.
31. 625 ILCS 5/11-804 (from Ch. 95 ½, par. 11-804) Sec. 11-804. (c) No person may stop or suddenly decrease the speed of a vehicle without first giving an appropriate signal in the manner provided in this Chapter to the driver of any vehicle immediately to the rear when there is opportunity to give such a signal.
32. The driver of Unit 2 could have put her blinkers on suggesting she was going to pause, delay or stop her vehicle, which she had time to do. The driver of Unit 2 never gave an appropriate signal suggesting she would pause, delay or stop her vehicle or suddenly decrease her speed.
33. The driver of Unit 2 caused the accident with her negligent driving pausing, delaying, and stopping her car when the driver of Unit 1 began to safely pass Unit 2 on the left side at a speed of 0-5 miles an hour.
34. 625 ILCS 5/11-703 (from Ch. 95 ½, par. 11-703) Sec. 11-703. Overtaking a vehicle on the left. The following rules govern the overtaking and passing of vehicles proceeding in the same direction, subject to those limitations, exceptions, and special rules otherwise stated in this Chapter: (a) The driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass to the left thereof at a safe distance…(b) Except when overtaking and passing on the right is permitted, the driver of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle on audible signal and shall not increase the speed of his vehicle until completely passed by the overtaking vehicle.
35. Unit 2 was about 30 from the stop sign when she stopped her car, causing the accident. The Defendant took photos of the accident scene with my cell phone, which is available for review.
36. 625 ILCS 5/11 1303 (from Ch. 95 1/2, par. 11 1303) Sec. 11 1303. Stopping, standing or parking prohibited in specified places. (a) Except when necessary to avoid conflict with other traffic, or in compliance with law or the directions of a police officer or official traffic control device, no person shall: (2) Stand or park a vehicle, whether occupied or not, except momentarily to pick up or discharge passengers; (d) within 30 feet upon the approach to any flashing signal, stop sign….
37. The driver of Unit 2 reports she never stopped her car before impact.
38. How could Unit 1 hit Unit 2 in the angle of impact if Unit 2 was not stopped? See Illinois Traffic Crash Report attached.
39. The only way impact could have taken place, in the angle of impact, is that Unit 2 had to be stopped. Unit 2 was stopped at least 30 feet from the upcoming stop sign.
40. The driver of Unit 2 got out of her car. The Unit 2 driver had her cell phone in her hand.
41. The driver of Unit 2 had been on her cell phone during these events of pausing, delaying and stopping her vehicle.
42. The driver of Unit 2 lives in the complex which we were driving. The Unit 2 driver called her husband to come to the scene of the accident.
43. When the husband came over to talk to her about the accident she informed him she was talking on her cell phone to someone when the accident occurred.
44. The Unit 2 driver did not have an earpiece for her cell phone. She was talking on the cell phone and caused the accident.
45. I took pictures of the accident scene, that is, the position of the cars involved, where the cars had damage, the area between Unit 2 and the stop sign, and the area of space Unit 1 described above where the stop-and-go action occurred.
46. When Unit 1 objected to this ticket and refused to accept it from Officer Burrow, Officer Burrow through it in the car window of Unit 1.
47. Unit 1 informed Officer Burrow he had a AAA bond card, as Unit 1 told Officer Burrow to give him his driver’s license.
48. Unit 1 informed Officer Burrow that when he decided to write him a ticket he was supposed to ask Unit 1 if he had a bond card before taking his driver’s license. Officer Burrow told Unit 1 do not tell him how to do his job.
49. Unit 1 informed Officer Burrow if he was doing his job he would not have taken Unit 1 driver’s license before asking him if he had a bond card. Unit 1 informed Officer Burrow he knew his rights.
50. Officer Burrow told Unit 1 he would have come to the police station if he wanted his driver’s license because Unit 1 was causing a disturbance.
51. Unit 1’s wife drove up on the scene at this time. Unit 1 told Officer Burrow he was not going to the South Holland Police Department to get his driver’s license.
52. Officer Burrow decided to take Unit 1’s bond card but would not give him his driver’s license stating he had to check out if he could accept Unit 1’s bond card.
53. Unit 1 went to his car to get paper and pen to write information about this incident.
54. After making Unit 1 wait for several minutes, Unit 1 had to go to Officer Burrow’s police car, and wait again before he gave him his driver’s license.
55. The Defendant has been designated Unit 1 on Officer Burrow’s Illinois Traffic Crash Report.
56. Officer Burrow reports “…The driver of Unit 2 stated that she was driving slowly (never stopping) when her vehicle was struck from behind by Unit 1….”
57. Unit 1 and Unit 2’s approach/distance to the stop sign was 170 feet from the curve where Unit 1 first encountered Unit 2 stopped in traffic. Unit 2 stopped her vehicle 3 different times approaching this stop sign. Unit 2 stopped her vehicle approximately 30 feet at a time, finally stopping approximately 30 feet from the stop sign before impact of the 2 vehicles.
58. The Defendant (Unit 1) could not have hit Unit 2 if Unit 2 did not stop her vehicle. Unit 1 never took his eyes off of Unit 2’s process. Unit 2 stopped her vehicle 3 different times before Unit 1 attempted to pass Unit 2. Unit 1 and Unit 2’s approach/distance to the stop sign was 170 feet.
59. 625 ILCS 5/11-409 (from Ch. 95 ½, par. 11-409) Sec. 11-409. False motor vehicle accident reports or notices. Any person who provides information in an oral written report required by this Code with knowledge or reason to believe that such information is false shall be guilty of a Class C misdemeanor.
60. On August 26, 2008 Unit 1 received notice from the Law offices of J. Richard Hisaw and Associates, located at 222 North LaSalle Street, Suite 2100, Chicago Illinois 60601, stating their office has been retained by the driver of Unit 2, Rose Bradford, et. al.
61. A Change of Venue will not cause undue burden on this case and will not pose a problem for Unit 1’s request because Unit 2 retained lawyers who have their office location nearer to the Daley Center than the Markham Courthouse.
62. United States Supreme Court Justice Louis D. Brandeis once stated, “Crime is contagious. If the government becomes the lawbreaker, it breeds contempt for the law.”
63. A statement of Montesquier De L’Espirit Des Lois was used in U.S. v. Jannottie, 673 F2d 578, 614 (3rd 1982) “There is no more cruel tyranny than that which is exercised under cover of law, and with the colors of justice.”
64. Thomas Jefferson once stated “Experience hath shown that even under the best forms of government those entrusted with power have, in time, and by slow operation, perverted it into tyranny.”
65. Therefore, the Defendant Fred Nance Jr. who is Unit 1 driver, respectfully request this Honorable Court transfer this matter to the First Municipal District Traffic Center of Cook County at the Daley Center, Chicago Illinois because no social change or preconceived notions toward the defendant/Unit 1 have occurred in the Markham Courthouse or Courtrooms; and with the police officers in the surrounding south suburbs of Chicago.
Respectfully submitted,
Fred L Nance Jr.
cc:
http://clickforjusticeandequality2.blogspot.com/
http://clickforjusticeandequaltiy.wordpress.com/
http://click.townhall.com/
http://www.frednance.newsvine.com/
The Honorable Judge William H. Hooks dismissed the charges in this case. The Assistant States Attorney issued a recommendation to dismissal because the complaining witness was not in court. South Holland Police Department's Officer Burrow star #129 did not show up for this court appearance. This is a victory against Tyranny and Discriminatory Practices.
Update: September 23, 2008
On September 15, 2008 I received the following correspondence from AAA my auto insurance company. I applaud AAA's courage in addressing this issue in behalf of its client/consumer Fred Nance Jr. The letter, in part, states:
AAA
September 12, 2008
Re:
Insured: Fred Nance Jr.
Claim #: 3007042
Claimant: Rose Bradford
Date of Accident: 8/13/2008
Your Claim #: 13A399586
Dear State Farm:
"This will acknowledge receipt of your claim for damages to your vehicle arising out of the above captioned accident. After a careful examination of the facts, it appears that there is sufficient negligence on the part of your insured and that is a bar to any recovery from our insured. Payment under our insured's policy is dependent upon legal liability imposed by law. In view of the facts revealed by our investigation, we feel that this is a case where there is no legal liability on the part of our insured. Therefore, we regret to advise you that we will be unable to make any payment to you on this claim."
Sincerely,
Vicky Hughes
Claims Representative
cc:
State Farm
Fred Nance Jr.
September 12, 2008
On or about September 12, 2008, I received the following correspondence from the Illinois Office of the Clerk of the Circuit Court of Cook County
Dear Fred Nance Jr.:
Re:
Ticket Citation Number YM-575-749
Your traffic case(s), listed above is/are scheduled to take place on October 10, 2008 in room CL04, at 1:30 p.m. The hearing(s) will take place at 50 West Washington Street, Chicago, Illinois 60602.
Sincerely,
Dorothy Brown
Clerk of the Circuit Court of Cook County, Illinois
Update: September 9, 2008
As I left my home on September 9, 2008 I noticed that the Village of South Holland has now put up "no parking" signs where this accident occurred. What is the Village of South Holland proclaiming now? Should they have issued the driver "who caused the accident" a ticket, which was the driver of Unit 2? Why have they put a "no parking" sign up now? It appears the Village of South Holland has reviewed my "motion to substitute the judge...." below. In the "motion" below I cite legal authorities suggesting the driver of Unit 2 is guilty of violating.
Update: August 29, 2008
On August 29, 2008, my case was adjudged by the Honorable Judge John Turner in Markham Courtroom 098. Judge John Turner addressed an individual who had some relationship with him where he stated he was going to transfer the case to the Honorable Presiding Judge Ronald C. Riley. The prosecutor for Courtroom 098 went over the South Holland Police Officer who wrote the ticket to discuss the ticket. The prosecutor came back to Judge Turner and told him that the South Holland Police Officer was not going to prosecute the case. Judge Turner dismissed the case.
Judge Turner and the prosecutor did not do that for me. Judge Turner granted my request for a "substitution of Judge" as a matter of right. Judge Turner forwarded my motion below to the Presiding Judge, the Honorable Ronald C. Riley, to make a decision on my request for a "Change of Venue."
Judge Riley's personal secretary informed me that when Judge Riley returns on Tuesday, September 2, 2008, he will sign my request and send my motion with the ticket to the Clerk of the Court, the Honorable Dorothy Brown, for disposition. Judge Riley's secretary reports it will be my responsibility to follow-up with the results of the Change of Venue. Judge Riley's secretary suggested I call Ms. Dorothy Brown's office to find out if they have received my paperwork. Judge Riley's secretary reports that if Ms. Dorothy Brown's office does not receive my paperwork I should contact the Clerk of the Court for the Markham Courthouse.
While awaiting my case to be heard by Judge Turner, I had the opportunity to see the South Holland Police Department at work in the courtroom, supporting my motion to transfer my case to another venue. Officer Johnson, Star #128, of the South Holland Police Department demonstrated the South Holland Police Department's lack of integrity, honesty and professionalism. Officer Johnson is white. The people he wrote tickets against were all black.
I saw Officer Johnson address about 6 cases. He won 4 and lost 2, partially. Judge Turner found a hispanic woman guilty because Officer Johnson stated she did not stop at a stop sign. Officer Johnson stated in testimony that he knew the lady did not stop for the stop sign because her car did not "rock" at the stop sign. Officer Johnson did not testify the woman did not come to a complete stop, and then proceed beyond the stop sign. Officer Johnson testified the woman's car did not "rock" and Judge Turner found the woman guilty of not stopping for a stop sign.
About the other 3 cases won, they resulted from Officer Johnson reporting using his radar gun to determine the speed of a car, where apparently there was no obstruction of sight even though Officer Johnson testified he had to make U-turns to get behind the vehicles.
Officer Johnson lost 2 cases. Officer Johnson testified that he determined a car was going too fast because "his" odometer stated he was traveling at 48 miles per hour. For whatever reason, Officer Johnson did think he needed to use an instrument that determines the speed of a vehicle. Judge Turner dismissed this case.
Officer Johnson wrote another ticket on a young black woman for not having her rear lights working. The young black woman informed Judge Turner that when she was stopped by Officer Johnson, she got out of her, told her husband who was sitting in the passenger seat of the car, to step on the brakes so that she and Officer Johnson could see her that her rear lights work. Officer Johnson testified in open court that the rear lights worked.
The young black woman told Judge Turner that she then asked Officer Johnson why was he giving her a ticket for not having rear lights. The young black woman told Judge Turner that Officer Johnson told her to "deal with it in court." In my case, Officer Burrow told me to take care of my issues in court also when I challenged receiving a ticket.
Judge Turner ruled against Officer Johnson for this ticket against the young black woman. The spectators in the courtroom started clapping and talking to each other about the lack of integrity, honesty and professionalism of Officer Johnson. Judge Turner cleared all spectators out of his courtroom after this outburst. No one could observe any further proceedings for the 9:00 a.m. call in the Markham Illinois Courtroom 098.
Officer Johnson gave the young black woman a ticket knowing she did not violate any rule of the road for Illinois. After stopping this woman Officer Johnson found her license plate sticker had expired. Judge Turner found this lady guilty of not having an updated sticker. The fine started at $135.00 and that was just for being in the courtroom.
Before the 10:30 a.m. call began at 12:10 p.m., the court clerk gave a summary of what to expect in the courtroom. She reported that the court makes it decision by a "preponderance" of the evidence, and not "beyond a reasonable doubt." A traffic offense is considered to be a "criminal" offense.
According to Black's Law Dictionary, a "preponderance of evidence" is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it. A preponderance of evidence is generally used for civil cases.
According to Black's Law Dictionary, "beyond a reasonable doubt" in evidence means fully satisfied, entirely convinced, satisfied to a moral certainty; and phrase is the equivalent of the words clear, precise and indubitable. In criminal cases, the accused's guilt must be established "beyond a reasonable doubt" , which means that facts proven must, by virtue of their probative force, establish guilt.
If this criteria is not met, then entities like the South Holland Police Department can continue to violate the constitutional and other legal rights of people. If an entity like the South Holland Police Department is not held to a professional standard of honesty and integrity, it can only lead to anarchy.
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT – SIXTH MUNICIPAL DISTRICT
TRAFFIC COURT
THE PEOPLE OF THE STATE OF ILLINOIS
the Village of South Holland and Rose Bradford et. al.
Traffic complaint #YM 575749, Room 098
Plaintiff,
vs.
Fred Nance Jr., Defendant.
NOTICE OF MOTION FOR SUBSTITUTION OF JUDGE
AND CHANGE OF VENUE
PLEASE TAKE NOTICE, on August 29, 2008 at approximately 10:30 am, or as soon thereafter as defendant may be heard, defendant shall appear before the Honorable Judge in Room 098 at the Markham Courthouse, Markham, Illinois, and then and there present defendant’s motion.
___________________________
Fred L. Nance Jr., ABD, MA, CADC, NCRS
CERTIFICATE OF SERVICE
I, Fred L. Nance Jr., certify that I caused the above Notice, attached Motion and Affidavit to be served in “open” Traffic Court, Room 098 on August 29, 2008 to the plaintiff(s) and/or their representative(s).
Respectfully submitted,
Fred L Nance Jr., ABD, MA, CADC, NCRS
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT – SIXTH MUNICIPAL DISTRICT
TRAFFIC COURT
THE PEOPLE OF THE STATE OF ILLINOIS
the Village of South Holland and Rose Bradford et. al.
Traffic complaint #YM 575749, Room 098
Plaintiff,
vs.
Fred Nance Jr., Defendant.
MOTION FOR SUBSTITUTION OF JUDGE
AND CHANGE OF VENUE
Now Comes, Fred L Nance Jr., respectfully requesting a Substitution of Judge as a matter of right pursuant to 735 ILCS 5/2 1001 (a)(2)(i)(ii)(iii); and for cause 725 ILCS 5/114 5 (a); and Change of Venue pursuant to 735 ILCS 5/2 1001.5 (a).
Defendant submits an Affidavit to support this motion.
Respectfully submitted,
Fred L Nance Jr., ABD, MA, CADC, NCRS
STATE OF ILLINOIS
SS.
COUNTY OF COOK
A F F I D A V I T
1. I, the Defendant Fred Nance Jr. and Unit 1 driver (Defendant), respectfully request this Honorable Court transfer this matter to the First Municipal District Traffic Center of Cook County at the Daley Center for trial.
2. On August 13, 2008 a traffic accident occurred in the County of Cook, South Holland Illinois.
3. On August 29, 2008 Defendant is scheduled for a traffic court hearing in Room 098 in the Illinois Markham Courthouse.
4. The Defendant strongly believes the Illinois Markham court, any Illinois Markham courtroom and the South Holland police department is prejudiced toward him, demonstrated by disparate treatment and discriminatory practices toward the Defendant in the past and in this present matter.
5. The Defendant received a “Certificate of Extension” for four (4) years when renewing his driver’s license on September 1, 2007. As this court knows, this is given to drivers who have first-rate driving records.
6. The Defendant is a defensive driver.
7. In 1988 convicted felon Judge Paul Foxgrover convicted the Defendant of “upgraded” criminal charges in a Markham Courtroom because the Defendant would not cooperate with police investigations of others who had no relationship to the defendant, such as wearing a wire, along with other vicarious disparities, such as the Markham Courthouse State’s Attorney alleged that the Defendant was a convicted felon with a handgun when the Defendant was not a convicted felon (Case #88CR04675). At the time of this Defendant’s trial in case #88CR04675, the Defendant accused Judge Paul Foxgrover of taking his money, which was taken by Country Club Hills police officers and given to Judge Foxgrover for “safe-keeping” at the time of Defendant’s arrest in case #88CR04675.
8. In addition, convicted felon Judge Paul Foxgrover allowed the Illinois Markham Assistant State’s Attorney to prosecute me knowing the “ineffective assistance of counsel”, such as attorney Daniel Gallagher being an alcoholic and the attorney I replaced him with William Swano who was being investigated in the Greylord scandal, which led to Swano’s indictment and suspension at bar. The Defendant did not know about Gallagher, Swano and Foxgrover’s conviction until he received notice from a 3rd attorney he hired who filed a “petition for post conviction relief.” See Petition for Post Conviction Relief filed February 25, 1992 in case number 88CR4675.
9. Trial Judge Paul Foxgrover’s misconduct for “theft of funds”, which led to his indictment and removal from the bench, in unrelated cases during the same time period that he heard the Defendant’s cases bore on the quality of the court’s ability to be fair and impartial and denied the Defendant due process of law and a fair trial as guaranteed by the 14th and 6th Amendments of the United States Constitution. See Petition for Post Conviction Relief filed February 25, 1992 in case number 88CR4675, paragraphs 9 & 10, page 3.
10. When incarcerated regarding case #88CR4675 on January 16, 1992 at the age of 42-years-old the Defendant did not have a high school diploma. The Defendant received his G.E.D. in the Cook County jail while awaiting placement in the Illinois Department of Corrections (IDOC).
11. While incarcerated the Defendant began college. Upon release from IDOC, the Defendant achieved his Bachelor degree in Social Science and a Master degree in Community Counseling from Roosevelt University.
12. The Defendant will receive his PhD in Human Services with a focus on Social Policy Analysis and Planning in the Fall/Winter session of 2008 from Walden University. The Defendant has been going to school for the past 16 years.
13. In the instant matter, due to the Defendant’s familiarity with the South Holland police department, the Defendant filing complaints against the South Holland police department, posting the complaints on the Defendant’s websites/blogs, and the relationships of the South Holland police department with the Markham court officials, that is, Cook County Sheriff police and officials and sitting Judge in Room 098, the Defendant strongly believes he will not get a fair hearing, nor will he be heard, and the verbal evidence below, which will be presented by the Defendant, will not be given any weight toward his innocence.
14. The testimony here, given by the Defendant regarding the present traffic charge of “Fail to reduce speed to avoid accident” will demonstrate the Defendant, beyond a reasonable doubt, is not guilty.
15. The testimony here will demonstrate Unit 2’s negligence and total disregard for Illinois’ Rules of the Road, and illustrate Unit 2 being responsible for the accident on August 13, 2008.
16. It is the contention of the Defendant that Unit 2 caused the accident of August 13, 2008. At the time of the accident, Unit 2 informed the officer on the scene that there were no injuries to the individuals in her car. See Illinois Traffic Crash Report (A no injury/drive away).
17. On August 13, 2008 I, Fred Nance Jr., was involved in an automobile accident in the Village of South Holland Illinois. I asked the driver of the other car for their information, that is, driver’s license and insurance card. The driver of Unit 2 refused to give me the information.
18. 625 ILCS 5/11-403 (from Ch. 95 ½, par. 11-403) Sec. 11-403. Duty to give information and render aid. The driver of any vehicle involved in a motor vehicle accident resulting in…damage to any vehicle which is driven or attended by any person shall give the driver’s name, address, registration number and owner of the vehicle the driver is operating and shall upon request and if available exhibit such driver’s license to the person struck or the driver or occupant of or person attending any vehicle collided with and shall render to any person….
19. I called the South Holland Police Department. Officer K. Burrow Star #129 responded to the call I made to the South Holland Police Department.
20. When Officer Burrow arrived upon the scene I gave him my driver’s license and insurance card. Officer Burrow asked me for my phone number. Officer Burrow wrote my phone number on my insurance card. This was inappropriate.
21. Officer Burrow issued me a ticket, which states “Fail to reduce speed to avoid accident.” There could not be a reduction in speed because both cars could not have been going more than 5 miles an hour because of the stop-and-go of vehicles before the accident.
22. I explained to Officer Burrow the following about the car accident: As I came around the bend in the road on Thornwood drive approaching the stop sign, a Dodge Caravan was stopped at the turn in the bend.
23. 625 ILCS 5/11 1301 (from Ch. 95 1/2, par. 11 1301) Sec. 11 1301. Stopping, standing or parking outside of business or residence district. (a) “…no person shall stop, park or leave standing any vehicle, whether attended or unattended, upon the roadway when it is practicable to stop, park or so leave such vehicle off the roadway, but in every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicle shall be available from a distance of 200 feet in each direction upon such highway.
24. Unit 2 continued to stop her vehicle when it was not practicable or appropriate to stop or park her vehicle.
25. Unit 2 did not have its emergency blinkers on. Unit 1 could not go around Unit 2 at the time because another car was coming in the opposite direction.
26. When the other car went by, Unit 1 was about to turn out and pass the parked/stopped Unit 2. Unit 1 blew its horn.
27. Unit 2 began to move. Unit 1 turned back behind Unit 2. Unit 1 began to move. Unit 1 was traveling 5 miles an hour. There was 5-10 feet between Unit 1 and Unit 2 when Unit 2 began to move.
28. Unit 2 moved a few feet and stopped again. Unit 1 stopped its car. Unit 1 blew its horn for the second time. Unit 2 started moving again. Unit 1 began to move, traveling 0-5 miles an hour, to turn out to pass Unit 2. All of sudden, Unit 2 came to a dead stop again. Unit 1 was traveling 0-5 miles an hour.
29. 625 ILCS 5/11-1416 (from Ch. 95 1/2, par. 11-1416) Sec. 11-1416. No person shall willfully and unnecessarily hinder, obstruct or delay, or willfully and unnecessarily attempt to delay, hinder or obstruct any other person in lawfully driving or traveling along or upon any highway within this State…so as to interfere with the effective movement of traffic.
30. Unit 2 willfully and unnecessarily hindered, obstructed and delayed my traveling along a highway in this State and interfered with the effective movement of traffic.
31. 625 ILCS 5/11-804 (from Ch. 95 ½, par. 11-804) Sec. 11-804. (c) No person may stop or suddenly decrease the speed of a vehicle without first giving an appropriate signal in the manner provided in this Chapter to the driver of any vehicle immediately to the rear when there is opportunity to give such a signal.
32. The driver of Unit 2 could have put her blinkers on suggesting she was going to pause, delay or stop her vehicle, which she had time to do. The driver of Unit 2 never gave an appropriate signal suggesting she would pause, delay or stop her vehicle or suddenly decrease her speed.
33. The driver of Unit 2 caused the accident with her negligent driving pausing, delaying, and stopping her car when the driver of Unit 1 began to safely pass Unit 2 on the left side at a speed of 0-5 miles an hour.
34. 625 ILCS 5/11-703 (from Ch. 95 ½, par. 11-703) Sec. 11-703. Overtaking a vehicle on the left. The following rules govern the overtaking and passing of vehicles proceeding in the same direction, subject to those limitations, exceptions, and special rules otherwise stated in this Chapter: (a) The driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass to the left thereof at a safe distance…(b) Except when overtaking and passing on the right is permitted, the driver of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle on audible signal and shall not increase the speed of his vehicle until completely passed by the overtaking vehicle.
35. Unit 2 was about 30 from the stop sign when she stopped her car, causing the accident. The Defendant took photos of the accident scene with my cell phone, which is available for review.
36. 625 ILCS 5/11 1303 (from Ch. 95 1/2, par. 11 1303) Sec. 11 1303. Stopping, standing or parking prohibited in specified places. (a) Except when necessary to avoid conflict with other traffic, or in compliance with law or the directions of a police officer or official traffic control device, no person shall: (2) Stand or park a vehicle, whether occupied or not, except momentarily to pick up or discharge passengers; (d) within 30 feet upon the approach to any flashing signal, stop sign….
37. The driver of Unit 2 reports she never stopped her car before impact.
38. How could Unit 1 hit Unit 2 in the angle of impact if Unit 2 was not stopped? See Illinois Traffic Crash Report attached.
39. The only way impact could have taken place, in the angle of impact, is that Unit 2 had to be stopped. Unit 2 was stopped at least 30 feet from the upcoming stop sign.
40. The driver of Unit 2 got out of her car. The Unit 2 driver had her cell phone in her hand.
41. The driver of Unit 2 had been on her cell phone during these events of pausing, delaying and stopping her vehicle.
42. The driver of Unit 2 lives in the complex which we were driving. The Unit 2 driver called her husband to come to the scene of the accident.
43. When the husband came over to talk to her about the accident she informed him she was talking on her cell phone to someone when the accident occurred.
44. The Unit 2 driver did not have an earpiece for her cell phone. She was talking on the cell phone and caused the accident.
45. I took pictures of the accident scene, that is, the position of the cars involved, where the cars had damage, the area between Unit 2 and the stop sign, and the area of space Unit 1 described above where the stop-and-go action occurred.
46. When Unit 1 objected to this ticket and refused to accept it from Officer Burrow, Officer Burrow through it in the car window of Unit 1.
47. Unit 1 informed Officer Burrow he had a AAA bond card, as Unit 1 told Officer Burrow to give him his driver’s license.
48. Unit 1 informed Officer Burrow that when he decided to write him a ticket he was supposed to ask Unit 1 if he had a bond card before taking his driver’s license. Officer Burrow told Unit 1 do not tell him how to do his job.
49. Unit 1 informed Officer Burrow if he was doing his job he would not have taken Unit 1 driver’s license before asking him if he had a bond card. Unit 1 informed Officer Burrow he knew his rights.
50. Officer Burrow told Unit 1 he would have come to the police station if he wanted his driver’s license because Unit 1 was causing a disturbance.
51. Unit 1’s wife drove up on the scene at this time. Unit 1 told Officer Burrow he was not going to the South Holland Police Department to get his driver’s license.
52. Officer Burrow decided to take Unit 1’s bond card but would not give him his driver’s license stating he had to check out if he could accept Unit 1’s bond card.
53. Unit 1 went to his car to get paper and pen to write information about this incident.
54. After making Unit 1 wait for several minutes, Unit 1 had to go to Officer Burrow’s police car, and wait again before he gave him his driver’s license.
55. The Defendant has been designated Unit 1 on Officer Burrow’s Illinois Traffic Crash Report.
56. Officer Burrow reports “…The driver of Unit 2 stated that she was driving slowly (never stopping) when her vehicle was struck from behind by Unit 1….”
57. Unit 1 and Unit 2’s approach/distance to the stop sign was 170 feet from the curve where Unit 1 first encountered Unit 2 stopped in traffic. Unit 2 stopped her vehicle 3 different times approaching this stop sign. Unit 2 stopped her vehicle approximately 30 feet at a time, finally stopping approximately 30 feet from the stop sign before impact of the 2 vehicles.
58. The Defendant (Unit 1) could not have hit Unit 2 if Unit 2 did not stop her vehicle. Unit 1 never took his eyes off of Unit 2’s process. Unit 2 stopped her vehicle 3 different times before Unit 1 attempted to pass Unit 2. Unit 1 and Unit 2’s approach/distance to the stop sign was 170 feet.
59. 625 ILCS 5/11-409 (from Ch. 95 ½, par. 11-409) Sec. 11-409. False motor vehicle accident reports or notices. Any person who provides information in an oral written report required by this Code with knowledge or reason to believe that such information is false shall be guilty of a Class C misdemeanor.
60. On August 26, 2008 Unit 1 received notice from the Law offices of J. Richard Hisaw and Associates, located at 222 North LaSalle Street, Suite 2100, Chicago Illinois 60601, stating their office has been retained by the driver of Unit 2, Rose Bradford, et. al.
61. A Change of Venue will not cause undue burden on this case and will not pose a problem for Unit 1’s request because Unit 2 retained lawyers who have their office location nearer to the Daley Center than the Markham Courthouse.
62. United States Supreme Court Justice Louis D. Brandeis once stated, “Crime is contagious. If the government becomes the lawbreaker, it breeds contempt for the law.”
63. A statement of Montesquier De L’Espirit Des Lois was used in U.S. v. Jannottie, 673 F2d 578, 614 (3rd 1982) “There is no more cruel tyranny than that which is exercised under cover of law, and with the colors of justice.”
64. Thomas Jefferson once stated “Experience hath shown that even under the best forms of government those entrusted with power have, in time, and by slow operation, perverted it into tyranny.”
65. Therefore, the Defendant Fred Nance Jr. who is Unit 1 driver, respectfully request this Honorable Court transfer this matter to the First Municipal District Traffic Center of Cook County at the Daley Center, Chicago Illinois because no social change or preconceived notions toward the defendant/Unit 1 have occurred in the Markham Courthouse or Courtrooms; and with the police officers in the surrounding south suburbs of Chicago.
Respectfully submitted,
Fred L Nance Jr.
cc:
http://clickforjusticeandequality2.blogspot.com/
http://clickforjusticeandequaltiy.wordpress.com/
http://click.townhall.com/
http://www.frednance.newsvine.com/
Tuesday, September 09, 2008
Illinois Village of South Holland: Discriminatory Practices 2nd letter
Update: September 9, 2008
On August 27, 2008 I updated my request to view the water bills of other residents in South Holland, being more "specific" as requested by the attorneys for the Village of South Holland. On September 9, 2008 I received another letter of denial stating in part "...Please be advised that pursuant to 5 ILCS 140/7b, the Village of South Holland will not provide information to you on individual water bills because this is an invasion of the individual's privacy...." This is absurd. The Village of South Holland could have "blacken" out the names of these individuals, leaving the addresses clear.
I called the attorney who signed this letter, who is Timothy Lapp. I asked him how was I supposed to examine documents to see if I am being discriminated against by the Village of South Holland. Lapp told me that I would have to ask my neighbors or the people of the addresses I submitted to write a letter giving me permission to review their water bills. In other words, Lapp told me I was not going to get anything to assess if I am being discriminated against by the Village of South Holland. This is what I requested and the words I used:
I, Fred Nance Jr., respectfully request to inspect the following records of the South Holland Water Department to determine if similarly situated residents of South Holland are receiving "Water Shut-Off Notices" due to being late for 1 month's billing cycle and the current month. The following water bills are requested for a 6-month period, February 2008 to July 2008: 17258 Thornwood Drive, 17245 Evans Avenue, 17234 Evans Avenue, 17309 Parkside, 528 Thornwood Dr., 548 Thornwood Dr., 620 Thornwood Dr., 636 173rd St., 17249 Langley, 17233 School St., and 17160 School St.
Update: August 18, 2008
On or about August 14, 2008 I received a letter from the South Holland Attorney law firm of Hiskes, Dillner, O'Donnell, Marovich and Lapp. Their letter dated August 13, 2008 states, in part, "...Your request is denied since specific documents are not requested...." They also go on with how the South Holland "water billing" system is automated. I guess this will excuse the behavior of the Village of South Holland. Nevertheless, the statement issued in this letter will not suffice. I have gotten bills totaling what they believe is their cap where Village residents receive "shut-off" notices. I did not receive "shut-off" notices for these bills. I will submit another request through the Freedom of Information Act with more "specific" details of documents. The "first" request is below.
August 6, 2008
Mr. Don DeGraff, Mayor of South Holland
16226 Wausau Ave.
South Holland, Illinois 60473
Re: Water Shut-Off Notice
Mr. DeGraff:
On August 5, 2008 I received a “water shut-off notice” for a past due amount of $59.93 and a current amount of $50.97. On August 6, 2008 I filed with the Village of South Holland a request for public records under the provisions of the Freedom of Information Act (F.O.I.A.). This appears to be discriminatory, intimidating and threatening practice.
This request states: “I respectfully request the Village of South Holland Illinois give access to Fred Nance Jr. to inspect the records of the Water Department for the purpose of assuring equal access and for determining if discriminatory practices are occurring with residents of the Village of South Holland in receiving “water shut-off notices” due to being late for 1 month’s billing without receiving a regular bill with the past (1 month’s billing) and the current (1 month) charge.”
On December 2, 2005 I wrote a letter to Mayor DeGraff about this same practice. The mayor failed to respond to my correspondence. The letter stated in part “…On December 2, 2005, I received “a bright red letter” stating, “Water Shut-off Notice” from the Village of South Holland. It reports I have a past due balance of $36.73, and a current balance of $33.68. The notice states, in part, “If the Total Now Due is not paid in full by the 20th of the month, your water service will be automatically suspended within 48 hours without further notice.” Sir, the current balance of $33.68 is not due until December 20, 2005, yet your letter infers we owe this balance now… The Village of South Holland reports my past due balance of $36.73 is from October 21, 2005 to November 20, 2005. The Village of South Holland reports my current balance is $33.68. This $33.68 must cover the period of November 21, 2005 to December 20, 2005. The Village of South Holland has determined my family deserves a “Water Shut-off Notice” because of the above. I am sure everyone living in South Holland with similar water bills has not received a “Water Shut-off Notice.” This “Water Shut-off Notice” is not signed.”
I request a response to my letter of December 2, 2005 and this correspondence, and access to the records requested through Freedom of Information Act.
Thank you.
Fred Nance Jr.
cc:
http://clickforjusticeandequality2.blogspot.com/, http://clickforjusticeandequality.wordpress.com/, www.frednance.newsvine.com/
On August 27, 2008 I updated my request to view the water bills of other residents in South Holland, being more "specific" as requested by the attorneys for the Village of South Holland. On September 9, 2008 I received another letter of denial stating in part "...Please be advised that pursuant to 5 ILCS 140/7b, the Village of South Holland will not provide information to you on individual water bills because this is an invasion of the individual's privacy...." This is absurd. The Village of South Holland could have "blacken" out the names of these individuals, leaving the addresses clear.
I called the attorney who signed this letter, who is Timothy Lapp. I asked him how was I supposed to examine documents to see if I am being discriminated against by the Village of South Holland. Lapp told me that I would have to ask my neighbors or the people of the addresses I submitted to write a letter giving me permission to review their water bills. In other words, Lapp told me I was not going to get anything to assess if I am being discriminated against by the Village of South Holland. This is what I requested and the words I used:
I, Fred Nance Jr., respectfully request to inspect the following records of the South Holland Water Department to determine if similarly situated residents of South Holland are receiving "Water Shut-Off Notices" due to being late for 1 month's billing cycle and the current month. The following water bills are requested for a 6-month period, February 2008 to July 2008: 17258 Thornwood Drive, 17245 Evans Avenue, 17234 Evans Avenue, 17309 Parkside, 528 Thornwood Dr., 548 Thornwood Dr., 620 Thornwood Dr., 636 173rd St., 17249 Langley, 17233 School St., and 17160 School St.
Update: August 18, 2008
On or about August 14, 2008 I received a letter from the South Holland Attorney law firm of Hiskes, Dillner, O'Donnell, Marovich and Lapp. Their letter dated August 13, 2008 states, in part, "...Your request is denied since specific documents are not requested...." They also go on with how the South Holland "water billing" system is automated. I guess this will excuse the behavior of the Village of South Holland. Nevertheless, the statement issued in this letter will not suffice. I have gotten bills totaling what they believe is their cap where Village residents receive "shut-off" notices. I did not receive "shut-off" notices for these bills. I will submit another request through the Freedom of Information Act with more "specific" details of documents. The "first" request is below.
August 6, 2008
Mr. Don DeGraff, Mayor of South Holland
16226 Wausau Ave.
South Holland, Illinois 60473
Re: Water Shut-Off Notice
Mr. DeGraff:
On August 5, 2008 I received a “water shut-off notice” for a past due amount of $59.93 and a current amount of $50.97. On August 6, 2008 I filed with the Village of South Holland a request for public records under the provisions of the Freedom of Information Act (F.O.I.A.). This appears to be discriminatory, intimidating and threatening practice.
This request states: “I respectfully request the Village of South Holland Illinois give access to Fred Nance Jr. to inspect the records of the Water Department for the purpose of assuring equal access and for determining if discriminatory practices are occurring with residents of the Village of South Holland in receiving “water shut-off notices” due to being late for 1 month’s billing without receiving a regular bill with the past (1 month’s billing) and the current (1 month) charge.”
On December 2, 2005 I wrote a letter to Mayor DeGraff about this same practice. The mayor failed to respond to my correspondence. The letter stated in part “…On December 2, 2005, I received “a bright red letter” stating, “Water Shut-off Notice” from the Village of South Holland. It reports I have a past due balance of $36.73, and a current balance of $33.68. The notice states, in part, “If the Total Now Due is not paid in full by the 20th of the month, your water service will be automatically suspended within 48 hours without further notice.” Sir, the current balance of $33.68 is not due until December 20, 2005, yet your letter infers we owe this balance now… The Village of South Holland reports my past due balance of $36.73 is from October 21, 2005 to November 20, 2005. The Village of South Holland reports my current balance is $33.68. This $33.68 must cover the period of November 21, 2005 to December 20, 2005. The Village of South Holland has determined my family deserves a “Water Shut-off Notice” because of the above. I am sure everyone living in South Holland with similar water bills has not received a “Water Shut-off Notice.” This “Water Shut-off Notice” is not signed.”
I request a response to my letter of December 2, 2005 and this correspondence, and access to the records requested through Freedom of Information Act.
Thank you.
Fred Nance Jr.
cc:
http://clickforjusticeandequality2.blogspot.com/, http://clickforjusticeandequality.wordpress.com/, www.frednance.newsvine.com/
Monday, August 18, 2008
Illinois' South Holland Police Department: Discriminatory Practices, Harassment and Retaliation
Update: August 18, 2008
On Saturday, August 16, 2008 at approximately 10:20 pm, I picked up a copy of the South Holland Traffic Crash Report. To my amazement Officer Burrow added another traffic charge. The additional charge is "Improper overtaking/passing...." I do not have an additional ticket for this charge. Officer Burrow may have stepped over the line with this one. There is no end to the discriminatory practices and retaliation of the South Holland Police Department. They will not prevail. I have submitted all documentation to my insurance agent, along with the photos taken at the scene. I will litigate this issue to the full extent of the law.
August 13, 2008
Mr. Warren Millsaps
Chief of Police, South Holland
16220 Wausau Ave.
South Holland, Illinois 60473
Mr. Millsaps:
On August 13, 2008 I, Fred Nance Jr., was involved in an automobile accident. Officer K. Burrow Star #129 responded to the call I made to the South Holland Police Department. When Officer Burrow arrived upon the scene I gave him my driver’s license and insurance card. Officer Burrow asked me for my phone number. Officer Burrow wrote my phone number on my insurance card. This was inappropriate. Officer Burrow issued me a ticket, which states “Fail to reduce speed to avoid accident.” There was no reduction in speed needed for this incident. We were only driving about 5 miles an hour. This is a bogus ticket.
I explained to Officer Burrow the following about the car accident: As I came around the bend in the road on Thornwood drive approaching the stop sign, a Dodge Caravan was stopped at the turn in the bend. The Dodge did not have its emergency blinkers on. I could not go around the Dodge at the time because another car was coming in the opposite direction.
When the other car went by, I was about to turn out and pass the “parked” Dodge. I blew my horn. The Dodge began to move. I turned back behind the Dodge. I began to move. The Dodge stopped again. I stopped my car. I blew my horn for the second time. The Dodge started moving again. I started moving again to turn out to pass the Dodge. All of sudden, the Dodge came to a dead stop again. This is when the front bumper passenger side of my vehicle hit the rear driver’s side bumper of the Dodge. The Dodge was about 30 to 40 feet from the stop sign. I took photos of the accident scene with my cell phone.
The driver of the Dodge got out of her car. This driver had her cell phone in her hand. The driver of the Dodge had been on her cell phone during these events. The driver of the Dodge lives in this complex. The driver of Dodge called her husband to come to the scene of the accident. When the husband came over to talk to her about the accident she informed him she was talking on her cell phone to someone when the accident occurred. The driver of the Dodge did not have an earpiece for her cell phone. She was talking on the cell phone and caused the accident.
I took pictures of the accident scene, that is, the position of the cars involved, where the cars had damage, the area between the Dodge and the stop sign, and the area of space I described above where the stop-and-go action occurred. The pictures will be faxed with this letter to South Holland Police Department Chief Millsaps.
When I objected to this ticket and refused to accept it from Officer Burrow, Officer Burrow through it in my car window. I informed Officer Burrow I had a AAA bond card, as I told him to give me my driver’s license. I informed Officer Burrow that when he decided to write me a ticket he was supposed to ask me if I had a bond card before taking my driver’s license. Officer Burrow told me don’t tell him how to do his job. I informed Officer Burrow if he was doing his job he would not have taken my driver’s license before asking me if I had a bond card. I informed Officer Burrow I know my rights.
Officer Burrow told me I would have come to the police station if I wanted my driver’s license because I was causing a disturbance. My wife drove up at this time. I told Officer Burrow I was not going to the South Holland Police Department to get my driver’s license. Officer Burrow decided to take my bond card but would not give me my driver’s license stating he had to check out if he could accept my bond card. I went to my car to get paper and pen to write information about this incident. After making me wait for several minutes, I had to go to Officer Burrow’s police car, and wait again before he gave me my driver’s license.
Officer Burrow should have given both drivers a ticket, if he was going to issue tickets. Officer Burrow was not on the scene when the accident occurred. The only person giving Officer Burrow information about this accident was the driver of the Dodge Caravan and me. If Officer Burrow says he got information from someone else, he is lying.
I called the duty officer, Lt. Becka. I informed Lt. Becka of the issues, stating Officer Burrow wrote me a bogus ticket retaliating and threatening me because of my complaints about the South Holland Police Department and him in past writings. I asked Lt. Becka how did he spell his name for the record. Lt. Becka immediately told me that I should know how to spell his name since I have written his name in past complaints.
On March 18, 2005 I was involved in a 3-car accident where there were no tickets given by the officer for the South Holland Police Department. I complained because the driver that caused the accident was “white” and should have received a ticket. My car and the other driver of the 3rd car are “black.” The “white” police officer for the South Holland Police Department decided not to issue the “white” female driver a ticket. When the case was settled the “white” driver was found negligent and the cause of the accident. I filed a formal complaint about this issue with the South Holland Police Department. I never received a reply from the South Holland Police Department on the complaint written on or about March 18, 2005.
This is part of what I wrote to Chief Millsaps on or about March 18, 2005:
On March 18, 2005 I was involved in a three-car accident at 170th and Langley. Involved in the car accident was a white woman (Denise Lenting) and her passenger (Bonita Vasquez) driving a Toyota Camry, license plate number 3472264; a black woman (Mary Ambrose) and her son (Sullivan Ambrose age 14) driving a Lexus, license plate number 2720486; and my car (Fred Nance, a black man) driving a Nissan Altima, license plate number 1268347.
There was an outside witness to the accident, Ms. Laura Clemons, license plate number C936809, telephone number 708-331-2291. As the Toyota came off of Langley to proceed onto 170th Street, Ms. Clemons blew her car horn continuously attempting to alert the Toyota driver to the oncoming traffic, the Lexus and Nissan. The Toyota ignored the warning.
The Lexus and Nissan driver gave the above information to Officer Kremski (white). Officer Kemski ignored the information about Ms. Clemons stating that if she was a witness she should have stayed on the scene. I asked him why would she have to stay on the scene if she gave her information up freely to be contacted by SHPD. I asked Officer Kremski doesn’t he do an investigation into the facts of the matter. He informed me that he only questions people on the scene about car accidents.
I asked him why didn’t he issue tickets so that a fact-finder, such as the courts, could get testimony and seek all witnesses. Officer Kremski informed me that because of his past experiences with traffic court and people not showing up has discouraged him from giving tickets at the scene of accidents. This is ludicrous.
The South Holland police officer involved in the March 18, 2005 issue was Kremski, ID #106. I have written about this police officer many times coming to my house harassing and intimidating me (see documents I submitted to you on February 11, 2005). As with Officer Kremski, I have written many times about Officer Burrow harassing and intimidating me coming to my home.
Therefore, I am submitting this as a formal complaint against the South Holland Police Department. The ticket I received was bogus and I should not have received it especially, if Officer Burrow was not going to issue the other driver a ticket.
Respectfully submitted,
Fred Nance Jr.
cc:
http://clickforjusticeandequality2.blogspot.com/
http://clickforjusticeandequality.wordpress.com/
http://click.townhall.com/
http://frednance.newsvine.com/
This case was also dismissed, after I wasted my day and time going to court for it. Chief Millsaps never answered this letter.
January 2, 2008
Mr. Warren Millsaps
Chief of Police, South Holland
16220 Wausau Ave.
South Holland, Illinois 60473
Re: Racial Profiling – Harassment – Intimidation
Mr. Millsaps:
I, Fred L Nance Jr., am an African American. The racial profiling by the South Holland Police Department (SHPD) continues. On December 31, 2007, Officer Pedric of the SHPD issued a traffic citation to me for improper lane usage on Cottage Grove. This ticket was bogus and inappropriate.
As you know, there is only one lane of travel in each direction of travel going North and South on Cottage Grove between 170th Street and 162nd Street. If a person wants to make a left turn, they must cross the double lines and enter the lane for turning. If a person decides, after crossing the double lines to make this left turn, they want to return to the lane of original travel, they must cross the double lines again to enter their original lane of travel.
Officer Pedric, who is white, decided to stop me and tell me I misused the turning lane to pass another car on the road. This is not true. After entering the turning lane, I decided to get back into the original lane of travel. Officer Pedric did not ask me why I entered the turning lane in the first place. Officer Pedric told me I entered the turning lane to pass the car in front of me.
I was traveling North on Cottage Grove from 170th Street, when a car turned into Cottage Grove from a side street in front of me. This car turned into Cottage Grove where I would have had an accident if I did not go into the turning lane. After going into the turning lane, I came out of the turning lane and re-entered my original lane of travel proceeding on my course. This is when Officer Pedric came upon me with his squad car and stopped me. Officer Pedric did not stop the other car that was driven by the “white” driver.
While Officer Pedric was writing my traffic citation, 2 other squad cars appeared on the scene. It is my belief because of previous written complaints about racial profiling and disparate/indifferent treatment of African Americans by SHPD, I was targeted by SHPD. I asked Officer Pedric for the other “white” Officers names and badge numbers. Officer Pedric refused to give me their names and badge numbers. I wrote the officers license plates numbers and car identification numbers down. They are Car #14 M146676 and Car #10 M153782, both “white” officers.
I went to SHPD on December 31, 2008 (a few hours after the incident) to report this incident. I asked to speak to the duty commander. I was informed he or she was out in the street on duty. I left a message requesting a call. I never received a call from the duty commander or SHPD.
Therefore, I am suggesting SHPD targets African Americans for traffic citations, especially those who complain about their other “professional” practices. I am suggesting Officer Pedric called in my name and I am in their system marked as a person of interest if I am ever stopped or approached about any police matters in South Holland. I am suggesting SHPD has a monthly ticket quota to assist in municipal revenue. I am suggesting SHPD does not adhere to public policy regarding racial profiling and harasses its citizens through intimidation, coercion and threats.
I have contested this ticket and will appear in a court of law. Contesting this ticket will cost me employment hours/work days and will become a financial burden to litigate. This financial burden is meant to create disparity and indifferent treatment toward African Americans in South Holland, Illinois.
Racism is alive and well in South Holland, Illinois, and in many other parts of Illinois. Illinois may be the most racist State in the Union. The South Holland Police Department is not racially motivated toward equality for all just because they hire African Americans on its police force. I am suggesting they hire African Americans on their police force for political purposes and because of present laws regarding hiring quotas for African Americans.
Fred L Nance Jr., ABD, MA, CADC, NCRS
cc:
Mr. DeGraff, Mayor Village of South Holland
http://clickforjusticeandequality.blogspot.com/
http://click.townhall.com/
P.S.
See other complaints about the South Holland Police Department on my website at http://clickforjusticeandequality.blogspot.com/
On Saturday, August 16, 2008 at approximately 10:20 pm, I picked up a copy of the South Holland Traffic Crash Report. To my amazement Officer Burrow added another traffic charge. The additional charge is "Improper overtaking/passing...." I do not have an additional ticket for this charge. Officer Burrow may have stepped over the line with this one. There is no end to the discriminatory practices and retaliation of the South Holland Police Department. They will not prevail. I have submitted all documentation to my insurance agent, along with the photos taken at the scene. I will litigate this issue to the full extent of the law.
August 13, 2008
Mr. Warren Millsaps
Chief of Police, South Holland
16220 Wausau Ave.
South Holland, Illinois 60473
Mr. Millsaps:
On August 13, 2008 I, Fred Nance Jr., was involved in an automobile accident. Officer K. Burrow Star #129 responded to the call I made to the South Holland Police Department. When Officer Burrow arrived upon the scene I gave him my driver’s license and insurance card. Officer Burrow asked me for my phone number. Officer Burrow wrote my phone number on my insurance card. This was inappropriate. Officer Burrow issued me a ticket, which states “Fail to reduce speed to avoid accident.” There was no reduction in speed needed for this incident. We were only driving about 5 miles an hour. This is a bogus ticket.
I explained to Officer Burrow the following about the car accident: As I came around the bend in the road on Thornwood drive approaching the stop sign, a Dodge Caravan was stopped at the turn in the bend. The Dodge did not have its emergency blinkers on. I could not go around the Dodge at the time because another car was coming in the opposite direction.
When the other car went by, I was about to turn out and pass the “parked” Dodge. I blew my horn. The Dodge began to move. I turned back behind the Dodge. I began to move. The Dodge stopped again. I stopped my car. I blew my horn for the second time. The Dodge started moving again. I started moving again to turn out to pass the Dodge. All of sudden, the Dodge came to a dead stop again. This is when the front bumper passenger side of my vehicle hit the rear driver’s side bumper of the Dodge. The Dodge was about 30 to 40 feet from the stop sign. I took photos of the accident scene with my cell phone.
The driver of the Dodge got out of her car. This driver had her cell phone in her hand. The driver of the Dodge had been on her cell phone during these events. The driver of the Dodge lives in this complex. The driver of Dodge called her husband to come to the scene of the accident. When the husband came over to talk to her about the accident she informed him she was talking on her cell phone to someone when the accident occurred. The driver of the Dodge did not have an earpiece for her cell phone. She was talking on the cell phone and caused the accident.
I took pictures of the accident scene, that is, the position of the cars involved, where the cars had damage, the area between the Dodge and the stop sign, and the area of space I described above where the stop-and-go action occurred. The pictures will be faxed with this letter to South Holland Police Department Chief Millsaps.
When I objected to this ticket and refused to accept it from Officer Burrow, Officer Burrow through it in my car window. I informed Officer Burrow I had a AAA bond card, as I told him to give me my driver’s license. I informed Officer Burrow that when he decided to write me a ticket he was supposed to ask me if I had a bond card before taking my driver’s license. Officer Burrow told me don’t tell him how to do his job. I informed Officer Burrow if he was doing his job he would not have taken my driver’s license before asking me if I had a bond card. I informed Officer Burrow I know my rights.
Officer Burrow told me I would have come to the police station if I wanted my driver’s license because I was causing a disturbance. My wife drove up at this time. I told Officer Burrow I was not going to the South Holland Police Department to get my driver’s license. Officer Burrow decided to take my bond card but would not give me my driver’s license stating he had to check out if he could accept my bond card. I went to my car to get paper and pen to write information about this incident. After making me wait for several minutes, I had to go to Officer Burrow’s police car, and wait again before he gave me my driver’s license.
Officer Burrow should have given both drivers a ticket, if he was going to issue tickets. Officer Burrow was not on the scene when the accident occurred. The only person giving Officer Burrow information about this accident was the driver of the Dodge Caravan and me. If Officer Burrow says he got information from someone else, he is lying.
I called the duty officer, Lt. Becka. I informed Lt. Becka of the issues, stating Officer Burrow wrote me a bogus ticket retaliating and threatening me because of my complaints about the South Holland Police Department and him in past writings. I asked Lt. Becka how did he spell his name for the record. Lt. Becka immediately told me that I should know how to spell his name since I have written his name in past complaints.
On March 18, 2005 I was involved in a 3-car accident where there were no tickets given by the officer for the South Holland Police Department. I complained because the driver that caused the accident was “white” and should have received a ticket. My car and the other driver of the 3rd car are “black.” The “white” police officer for the South Holland Police Department decided not to issue the “white” female driver a ticket. When the case was settled the “white” driver was found negligent and the cause of the accident. I filed a formal complaint about this issue with the South Holland Police Department. I never received a reply from the South Holland Police Department on the complaint written on or about March 18, 2005.
This is part of what I wrote to Chief Millsaps on or about March 18, 2005:
On March 18, 2005 I was involved in a three-car accident at 170th and Langley. Involved in the car accident was a white woman (Denise Lenting) and her passenger (Bonita Vasquez) driving a Toyota Camry, license plate number 3472264; a black woman (Mary Ambrose) and her son (Sullivan Ambrose age 14) driving a Lexus, license plate number 2720486; and my car (Fred Nance, a black man) driving a Nissan Altima, license plate number 1268347.
There was an outside witness to the accident, Ms. Laura Clemons, license plate number C936809, telephone number 708-331-2291. As the Toyota came off of Langley to proceed onto 170th Street, Ms. Clemons blew her car horn continuously attempting to alert the Toyota driver to the oncoming traffic, the Lexus and Nissan. The Toyota ignored the warning.
The Lexus and Nissan driver gave the above information to Officer Kremski (white). Officer Kemski ignored the information about Ms. Clemons stating that if she was a witness she should have stayed on the scene. I asked him why would she have to stay on the scene if she gave her information up freely to be contacted by SHPD. I asked Officer Kremski doesn’t he do an investigation into the facts of the matter. He informed me that he only questions people on the scene about car accidents.
I asked him why didn’t he issue tickets so that a fact-finder, such as the courts, could get testimony and seek all witnesses. Officer Kremski informed me that because of his past experiences with traffic court and people not showing up has discouraged him from giving tickets at the scene of accidents. This is ludicrous.
The South Holland police officer involved in the March 18, 2005 issue was Kremski, ID #106. I have written about this police officer many times coming to my house harassing and intimidating me (see documents I submitted to you on February 11, 2005). As with Officer Kremski, I have written many times about Officer Burrow harassing and intimidating me coming to my home.
Therefore, I am submitting this as a formal complaint against the South Holland Police Department. The ticket I received was bogus and I should not have received it especially, if Officer Burrow was not going to issue the other driver a ticket.
Respectfully submitted,
Fred Nance Jr.
cc:
http://clickforjusticeandequality2.blogspot.com/
http://clickforjusticeandequality.wordpress.com/
http://click.townhall.com/
http://frednance.newsvine.com/
This case was also dismissed, after I wasted my day and time going to court for it. Chief Millsaps never answered this letter.
January 2, 2008
Mr. Warren Millsaps
Chief of Police, South Holland
16220 Wausau Ave.
South Holland, Illinois 60473
Re: Racial Profiling – Harassment – Intimidation
Mr. Millsaps:
I, Fred L Nance Jr., am an African American. The racial profiling by the South Holland Police Department (SHPD) continues. On December 31, 2007, Officer Pedric of the SHPD issued a traffic citation to me for improper lane usage on Cottage Grove. This ticket was bogus and inappropriate.
As you know, there is only one lane of travel in each direction of travel going North and South on Cottage Grove between 170th Street and 162nd Street. If a person wants to make a left turn, they must cross the double lines and enter the lane for turning. If a person decides, after crossing the double lines to make this left turn, they want to return to the lane of original travel, they must cross the double lines again to enter their original lane of travel.
Officer Pedric, who is white, decided to stop me and tell me I misused the turning lane to pass another car on the road. This is not true. After entering the turning lane, I decided to get back into the original lane of travel. Officer Pedric did not ask me why I entered the turning lane in the first place. Officer Pedric told me I entered the turning lane to pass the car in front of me.
I was traveling North on Cottage Grove from 170th Street, when a car turned into Cottage Grove from a side street in front of me. This car turned into Cottage Grove where I would have had an accident if I did not go into the turning lane. After going into the turning lane, I came out of the turning lane and re-entered my original lane of travel proceeding on my course. This is when Officer Pedric came upon me with his squad car and stopped me. Officer Pedric did not stop the other car that was driven by the “white” driver.
While Officer Pedric was writing my traffic citation, 2 other squad cars appeared on the scene. It is my belief because of previous written complaints about racial profiling and disparate/indifferent treatment of African Americans by SHPD, I was targeted by SHPD. I asked Officer Pedric for the other “white” Officers names and badge numbers. Officer Pedric refused to give me their names and badge numbers. I wrote the officers license plates numbers and car identification numbers down. They are Car #14 M146676 and Car #10 M153782, both “white” officers.
I went to SHPD on December 31, 2008 (a few hours after the incident) to report this incident. I asked to speak to the duty commander. I was informed he or she was out in the street on duty. I left a message requesting a call. I never received a call from the duty commander or SHPD.
Therefore, I am suggesting SHPD targets African Americans for traffic citations, especially those who complain about their other “professional” practices. I am suggesting Officer Pedric called in my name and I am in their system marked as a person of interest if I am ever stopped or approached about any police matters in South Holland. I am suggesting SHPD has a monthly ticket quota to assist in municipal revenue. I am suggesting SHPD does not adhere to public policy regarding racial profiling and harasses its citizens through intimidation, coercion and threats.
I have contested this ticket and will appear in a court of law. Contesting this ticket will cost me employment hours/work days and will become a financial burden to litigate. This financial burden is meant to create disparity and indifferent treatment toward African Americans in South Holland, Illinois.
Racism is alive and well in South Holland, Illinois, and in many other parts of Illinois. Illinois may be the most racist State in the Union. The South Holland Police Department is not racially motivated toward equality for all just because they hire African Americans on its police force. I am suggesting they hire African Americans on their police force for political purposes and because of present laws regarding hiring quotas for African Americans.
Fred L Nance Jr., ABD, MA, CADC, NCRS
cc:
Mr. DeGraff, Mayor Village of South Holland
http://clickforjusticeandequality.blogspot.com/
http://click.townhall.com/
P.S.
See other complaints about the South Holland Police Department on my website at http://clickforjusticeandequality.blogspot.com/
Wednesday, August 06, 2008
Illinois Village of South Holland: Discriminatory Practices 1st letter
December 2, 2005
Mr. Don DeGraff, Mayor of South Holland
16226 Wausau Ave.
South Holland, Illinois 60473
Re: South Holland’s Harassment, Retaliation, and Discrimination: Here we go again
Mr. DeGraff:
Do you know what your departments are doing? Does the Village of South Holland believe they can keep on harassing, intimidating, and discriminating against my family and me? I will seek legal counsel to sue the Village of South Holland. The Village of South Holland is not demanding every citizen living in South Holland to be subject to this type of madness. This is intentional discrimination, harassment, and intimidation.
On December 2, 2005, I received “a bright red letter” stating, “Water Shut-off Notice” from the Village of South Holland. It reports I have a past due balance of $36.73, and a current balance of $33.68. The notice states, in part, “If the Total Now Due is not paid in full by the 20th of the month, your water service will be automatically suspended within 48 hours without further notice.” Sir, the current balance of $33.68 is not due until December 20, 2005, yet your letter infers we owe this balance now. How can the Village of South Holland make a statement as “Total Now Due” when it is not due until December 20, 2005? The Village of South Holland is bogus.
The Village of South Holland reports my past due balance of $36.73 is from October 21, 2005 to November 20, 2005. The Village of South Holland reports my current balance is $33.68. This $33.68 must cover the period of November 21, 2005 to December 20, 2005. The Village of South Holland has determined my family deserves a “Water Shut-off Notice” because of the above. I am sure everyone living in South Holland with similar water bills has not received a “Water Shut-off Notice.” This “Water Shut-off Notice” is not signed. I guess the same coward who sent the bogus, harassing, and intimidating letter about my car sent this letter. This coward has the same statement, as before, that is “Our records indicate….”
The Village of South Holland has targeted my family for harassment, intimidation, and discrimination. My regular bill issued on November 1, 2005 reports a balance of $53.83 and $36.73 due on November 20, 2005. We sent a check to the Village of South Holland on October 25, 2005 in the amount of $53.83. This left a balance of $36.73. This balance is 12 days late as of the date of this letter. I have not received a “regular” statement of the current amount owed of $33.68, as stated in the “Water Shut-off Notice.” Instead of receiving a “regular” statement with the past due balance and the current balance due, the Village of South Holland decided to punish, discriminate, harass, and intimidate me for publishing and posting my complaints against on my website.
It is real clear what the Village of South Holland has done. They believe if they continue to harass, intimidate, threaten, and discriminate against me I will move. I am not going anywhere.
We will pay $36.73 as we had planned on or about December 3, 2005. We will have a balance of $33.68. We refuse to be harassed, intimidated, and discriminated against by the Village of South Holland. The Village of South Holland’s “Water Shut-off Notice” states, in part, “If a shut-off occurs, to get your water service turned back on you must pay the Total Amount Due shown above, plus the $75 Turn-On Fee.” The Village of South Holland should get ready to shut my water off for the amount due of $33.68 on December 20, 2005.
I have been writing my Illinois State Representatives for months, Mr. James Meeks and Mr. David Miller for years about the issues I face daily with the Village of South Holland. It appears none of my Illinois State Representatives has responded to the Village of South Holland or me. If a constituent cannot get assistance from their State Representatives then someone else needs to have their seat. I am not an isolated incident with the Village of South Holland or of my Illinois State Representatives non-actions. Even Mr. Jesse White, the Illinois Secretary of State (read my letter of November 15, 2005 about the Village of South Holland posted on my website), has not responded to my previous letter faxed to his office, which impacts his office directly.
I will continue to publish and post my complaints against the Village of South Holland alerting my Illinois State Representatives. I will continue to inform the general public of the non-actions of my Illinois State Representatives. Voters need to know how they can be ignored because they attempt to fight for their Constitutional rights and Human Right to be left alone.
This would not be happening if my Illinois State Representatives acted. Their non-actions fuel the fires of ignorance. People, Mississippi is burning.
Respectfully submitted,
Fred L Nance Jr., ABD, MA, CADC, NCRS
cc:
Fax copies sent to the following:
Mr. Don DeGraff, Mayor of South Holland (hard copy mailed)
United States Senator Barack Obama
Illinois State Senator James Meeks
Illinois State Representative David Miller
Illinois Governor Rod Blagojevich
Illinois Secretary of State
http://clickforjusticeandequaltiy.blogspot.com/
P.S.
The Village of South Holland is so petty. This is all they can find on me. There is nothing to find.
This is a breakdown of my “Water” bill. The Village of South Holland bills its residents after usage. The bill will always be for the previous month.
For September 21, 2005 to October 20, 2005: Billing date November 1, 2005
Sewer Flat $ 0.38
Refuse Pickup 15.00
Sewer 3.29
Water 10.06
Total $36.73
For October 21, 2005 to November 20, 2000: Billing date December 1, 2005
· Sewer Flat $ 0.38
· Refuse Pickup 15.00
· Sewer 2.82
· Water 15.48
Total $33.68
The Village of South Holland is outrageous. Future vendors and business people beware. The World should know how they operate.
Mr. Don DeGraff, Mayor of South Holland
16226 Wausau Ave.
South Holland, Illinois 60473
Re: South Holland’s Harassment, Retaliation, and Discrimination: Here we go again
Mr. DeGraff:
Do you know what your departments are doing? Does the Village of South Holland believe they can keep on harassing, intimidating, and discriminating against my family and me? I will seek legal counsel to sue the Village of South Holland. The Village of South Holland is not demanding every citizen living in South Holland to be subject to this type of madness. This is intentional discrimination, harassment, and intimidation.
On December 2, 2005, I received “a bright red letter” stating, “Water Shut-off Notice” from the Village of South Holland. It reports I have a past due balance of $36.73, and a current balance of $33.68. The notice states, in part, “If the Total Now Due is not paid in full by the 20th of the month, your water service will be automatically suspended within 48 hours without further notice.” Sir, the current balance of $33.68 is not due until December 20, 2005, yet your letter infers we owe this balance now. How can the Village of South Holland make a statement as “Total Now Due” when it is not due until December 20, 2005? The Village of South Holland is bogus.
The Village of South Holland reports my past due balance of $36.73 is from October 21, 2005 to November 20, 2005. The Village of South Holland reports my current balance is $33.68. This $33.68 must cover the period of November 21, 2005 to December 20, 2005. The Village of South Holland has determined my family deserves a “Water Shut-off Notice” because of the above. I am sure everyone living in South Holland with similar water bills has not received a “Water Shut-off Notice.” This “Water Shut-off Notice” is not signed. I guess the same coward who sent the bogus, harassing, and intimidating letter about my car sent this letter. This coward has the same statement, as before, that is “Our records indicate….”
The Village of South Holland has targeted my family for harassment, intimidation, and discrimination. My regular bill issued on November 1, 2005 reports a balance of $53.83 and $36.73 due on November 20, 2005. We sent a check to the Village of South Holland on October 25, 2005 in the amount of $53.83. This left a balance of $36.73. This balance is 12 days late as of the date of this letter. I have not received a “regular” statement of the current amount owed of $33.68, as stated in the “Water Shut-off Notice.” Instead of receiving a “regular” statement with the past due balance and the current balance due, the Village of South Holland decided to punish, discriminate, harass, and intimidate me for publishing and posting my complaints against on my website.
It is real clear what the Village of South Holland has done. They believe if they continue to harass, intimidate, threaten, and discriminate against me I will move. I am not going anywhere.
We will pay $36.73 as we had planned on or about December 3, 2005. We will have a balance of $33.68. We refuse to be harassed, intimidated, and discriminated against by the Village of South Holland. The Village of South Holland’s “Water Shut-off Notice” states, in part, “If a shut-off occurs, to get your water service turned back on you must pay the Total Amount Due shown above, plus the $75 Turn-On Fee.” The Village of South Holland should get ready to shut my water off for the amount due of $33.68 on December 20, 2005.
I have been writing my Illinois State Representatives for months, Mr. James Meeks and Mr. David Miller for years about the issues I face daily with the Village of South Holland. It appears none of my Illinois State Representatives has responded to the Village of South Holland or me. If a constituent cannot get assistance from their State Representatives then someone else needs to have their seat. I am not an isolated incident with the Village of South Holland or of my Illinois State Representatives non-actions. Even Mr. Jesse White, the Illinois Secretary of State (read my letter of November 15, 2005 about the Village of South Holland posted on my website), has not responded to my previous letter faxed to his office, which impacts his office directly.
I will continue to publish and post my complaints against the Village of South Holland alerting my Illinois State Representatives. I will continue to inform the general public of the non-actions of my Illinois State Representatives. Voters need to know how they can be ignored because they attempt to fight for their Constitutional rights and Human Right to be left alone.
This would not be happening if my Illinois State Representatives acted. Their non-actions fuel the fires of ignorance. People, Mississippi is burning.
Respectfully submitted,
Fred L Nance Jr., ABD, MA, CADC, NCRS
cc:
Fax copies sent to the following:
Mr. Don DeGraff, Mayor of South Holland (hard copy mailed)
United States Senator Barack Obama
Illinois State Senator James Meeks
Illinois State Representative David Miller
Illinois Governor Rod Blagojevich
Illinois Secretary of State
http://clickforjusticeandequaltiy.blogspot.com/
P.S.
The Village of South Holland is so petty. This is all they can find on me. There is nothing to find.
This is a breakdown of my “Water” bill. The Village of South Holland bills its residents after usage. The bill will always be for the previous month.
For September 21, 2005 to October 20, 2005: Billing date November 1, 2005
Sewer Flat $ 0.38
Refuse Pickup 15.00
Sewer 3.29
Water 10.06
Total $36.73
For October 21, 2005 to November 20, 2000: Billing date December 1, 2005
· Sewer Flat $ 0.38
· Refuse Pickup 15.00
· Sewer 2.82
· Water 15.48
Total $33.68
The Village of South Holland is outrageous. Future vendors and business people beware. The World should know how they operate.
Tuesday, August 05, 2008
Justice Center: The Council of State Governments
August 5, 2008
CSG Justice Center Releases Innovative Web-Based Tool to Help State and Local Officials Improve Prisoner/Inmate Reentry.
The Council of State Governments Justice Center unveiled today a first-of-its-kind interactive online tool for state and local government professionals working to make prison and jail reentry safer and more successful. The tool was developed with support from the Bureau of Justice Assistance, U.S. Department of Justice, to familiarize state and local government officials with different assessment instruments used in corrections systems across the nation to gauge the risks and needs of someone admitted to prison or jail.
"The only way we can stop the cycle of recidivism is to start planning for an individual's return to the community from the very first step he or she takes into a prison or jail," said Justin Jones, Director of the Oklahoma Department of Corrections. "Prison and jail officials need the latest thinking on assessment tool options to inform prison and jail programming, as well as decisions about release and community supervision."
According to the Justice Center, such information is typically collected through a series of screenings, assessments, and evaluations conducted before sentencing and immediately after admittance to a correctional institution. This information should be updated periodically throughout the person's incarceration and during any community supervision. The information also should be used to make decisions about how to manage risk, deliver treatment and other services, and allocate resources.
"One reason this tool is so valuable is because it allows staff to search for key information at particular decision points (such as admission to a facility) or to search by topic areas (such as risk and security classifications, mental health, substance abuse, education, employment, housing, family relationships, and financial status)," said AT Wall, Director of the Rhode Island Department of Corrections. "Each of these categories includes descriptions of information to gather, examples of validated assessment instruments, resources and recommendations about prioritization, and suggestions for who should be charged with collecting each kind of data."
The online resource is part of a larger toolkit the Justice Center plans to release in fall 2008 that will include a policy guide and three case studies of the collective experiences of jurisdictions that applied the guide's recommendations to improve their assessment processes. The availability of the complete toolkit will be announced this fall in an upcoming issue of the Reentry Policy Council's newsletter.
CSG Justice Center Releases Innovative Web-Based Tool to Help State and Local Officials Improve Prisoner/Inmate Reentry.
The Council of State Governments Justice Center unveiled today a first-of-its-kind interactive online tool for state and local government professionals working to make prison and jail reentry safer and more successful. The tool was developed with support from the Bureau of Justice Assistance, U.S. Department of Justice, to familiarize state and local government officials with different assessment instruments used in corrections systems across the nation to gauge the risks and needs of someone admitted to prison or jail.
"The only way we can stop the cycle of recidivism is to start planning for an individual's return to the community from the very first step he or she takes into a prison or jail," said Justin Jones, Director of the Oklahoma Department of Corrections. "Prison and jail officials need the latest thinking on assessment tool options to inform prison and jail programming, as well as decisions about release and community supervision."
According to the Justice Center, such information is typically collected through a series of screenings, assessments, and evaluations conducted before sentencing and immediately after admittance to a correctional institution. This information should be updated periodically throughout the person's incarceration and during any community supervision. The information also should be used to make decisions about how to manage risk, deliver treatment and other services, and allocate resources.
"One reason this tool is so valuable is because it allows staff to search for key information at particular decision points (such as admission to a facility) or to search by topic areas (such as risk and security classifications, mental health, substance abuse, education, employment, housing, family relationships, and financial status)," said AT Wall, Director of the Rhode Island Department of Corrections. "Each of these categories includes descriptions of information to gather, examples of validated assessment instruments, resources and recommendations about prioritization, and suggestions for who should be charged with collecting each kind of data."
The online resource is part of a larger toolkit the Justice Center plans to release in fall 2008 that will include a policy guide and three case studies of the collective experiences of jurisdictions that applied the guide's recommendations to improve their assessment processes. The availability of the complete toolkit will be announced this fall in an upcoming issue of the Reentry Policy Council's newsletter.
Monday, June 16, 2008
Black in America: Illinois Department of Employment Security - The Mentor ABI Group, Center for Comprehensive Services
Update: July 24, 2008
This is what it is like being "Black in America."
America believes Blacks are not supposed to be intelligent. Blacks are not supposed to defend themselves from the onslaught of institutional racism and prejudice. Blacks are supposed to lie down and be walked on. Black truth does not matter, when the "establishment" uses their "unsupported" legal jargon, picking and choosing what language and testimony they want to use, which allows them to justify their indifferent decisions. The claimant is punished for being "Black in America."
On July 24, 2008 I received a copy of the State of Illinois, Department of Employment Security's decision in this matter. A decision made by J. Hunt Bonan, Stanley L. Drassler Jr., William J. Nolan, Constantine M. Zografopoulos, and Elwood Flowers Sr. denies the claimant her right to unemployment compensation. This "partial" panel determined that the claimant was not sick because she did not say she was sick but rather stated she was tired. This "partial" panel also states "...Accordingly, after a review of the record, including the testimony and the evidence presented before the Referee and the records of the Department of Employment Security, and due deliberation having been had thereon, we find that the Referee's decision is supported by the record and the law." This "partial" panel does not cite any case law in its decision, yet they report "...and the law". What law? There's no citation of law.
There was no consideration or mention of the "record" submitted by the claimant. This "partial" panel did make one reference of the claimant's submitted "record" in the beginning of their decision. This "partial" panel states "...We note that on page 24 of the "transcription of shorthand notes" is the notation, "Tape stopped. Did not get the answer." What does this have to do with this matter? If they make this note, why not note the other statements? This statement gives creditability to the transcription of the claimant.
The reason, "Black in America." Blacks will continue to be treated like this if no one objects. Blacks must stand up and fight institutional racism and prejudice. This "partial" panel may attempt to inform us that some of the individuals named here are black. How "black" are they? Are they prepared to lay their careers on the line for being "Black in America." I do not think so. Just because their color is black does not mean they are black.
You, the reader, can write about your "institutional" racism, prejudice and indifferent treatment. Start a "blog." It is easy. It is free. Write about your experiences with institutional racism, prejudice and indifferent treatment. There is power in numbers. Be real. Be "Black in America."
The claimant's statement below was not even considered in this matter. The final statement, in small print, of this "partial" panel's decision states "If you are aggrieved by this decision and want to appeal, you must file a complaint for administrative review and have summons issued in circuit court within 35 days from the above mailing date. You may only file your complaint in the circuit court of the county in which you reside or in which your principal place of business is located...."
Now the State of Illinois, Department of Employment Security wants a person who is seeking unemployment compensation to spend money to litigate in a court of law. Not only is this an outrage, it is a disgrace. If one did litigate, what would they litigate? There was no case law cited by this "partial" panel. This means when one litigates their case, they have no idea what case law they are litigating against.
For example, this "partial" panel speaks about hearsay evidence. They report "...The claimant's representative objects to some heresay testimony offered by the employer at the hearing. Hearsay is defined as a statement, including a document, made outside the hearing, offered to prove the truth of the matter asserted. If objected to, heresay may not be considered by the Referee or the Board of Review unless it falls within a recognized exception to the rule excluding heresay evidence. The fundamental basis for excluding heresay evidence is the lack of an opportunity to test the creditability of the statement through cross-examination. If no objection is made to the statement as being heresay, the statement will be admitted into evidence, however, it will only be given its natural probative value and the fact that it is a heresay statement may effect the weight that may be given to the statement. The claimant's representative made no objection." This is a bold face lie. As can be seen in the body of appeal below, the claimant's representative continually objected to the heresay evidence presented in this matter. Notwithstanding, there is no case law to support this "partial" panel. This is what happens when you are "Black in America."
I will write more on this subject and post their decision on the Internet.
STATE OF ILLINOIS
DEPARTMENT OF EMPLOYMENT SECURITY
APPEALS DIVISION
BOARD OF REVIEW
33 SOUTH STATE STREET, 9TH FLOOR
CHICAGO, ILLINOIS 60603
APPEAL OF DECISION
I, Randi, was an employee of The Mentor ABI Group, Center for Comprehensive Services. I was terminated from my employment on or about March 18, 2008. The employee warning notice, dated March 20, 2008, which determined my termination states in part “…Termination…attendance…staff did not work the second shift of her double that she agreed to work.”
Randi filed a timely unemployment insurance claim. According to the Illinois Department of Employment Security (IDES), “…The claimant was discharged from Center for Comprehensive Svcs because of an unauthorized absence of a scheduled work shift. The claimant had received prior warnings concerning her attendance.”
Randi filed a timely appeal. On May 23, 2008, a telephone hearing was conducted. The following individuals participated in this telephone hearing: Randi (employee), Michael Fowler (employer representative), Bradley Guthrie (employer representative), Ms. Himmel (employer representative) and David Ott (Illinois Department of Employment Security Hearing Referee and Administrative Law Judge). On or about May 28, 2008, Mr. David Ott issued a decision affirming the determination of the local office.
On June 15, 2008, Randi files a timely “Right of Further Appeal” on the decision of David W. Ott.
Randi employs and enjoins C.L.I.C.K. Services, NFP, specifically, Fred L Nance Jr. to advocate and write her appeal/opinion in this matter. This advocacy is part of this case and the appropriate paperwork is on file with the Illinois Department of Employment Security (IDES). I, Randi, also give C.L.I.C.K. Services, NFP, specifically, Fred L Nance Jr. permission to post this appeal/opinion on his website at http://clickforjusticeandequality2.blogspot.com/.
Individuals mentioned in this writing are: Randi is a black female. Mr. David Ott is a white male. Mr. Michael Fowler is a white male. Mr. Bradley Guthrie is a white male. Ms. Himmel is a white female. Rodrick is a black male.
Finding of Fact by IDES
Mr. Ott reports, in part: “The claimant was a life skills therapist from May 16, 2005 to March 18, 2008, her last day of work…The claimant had a history of attendance problems about which the employer warned her…On the final occasion that resulted in her discharge she was scheduled to work a double shift. She first had to drive a resident to a doctor’s appointment in Kentucky. When she returned she had to work at a residential facility 3:00 pm – 10:00 pm. When she did not report for work at the facility her supervisor called her cell phone, reaching her at another employer residential facility. She was cooking dinner for the residents. She said she did not report for work at her scheduled facility because she was tired from having to drive the resident to his doctor’s appointment. The supervisor told her the facility was understaffed so she had to report to the facility right away. When she asked what would happen if she did not report for work he said she would be disciplined. He again told her to report for work. Again she refused. He told her to leave the facility where she was, which she did…Insubordination is the refusal by an employee to comply with a reasonable directive of the employer. The claimant’s actions constituted insubordination. The supervisor’s request that she report for work was reasonable because the residential facility was understaffed. The claimant’s explanation that she was not going to work because she was tired was not a reasonable excuse for failing to follow her supervisor’s directive. She could not have been all that tired because she was helping out at another residential facility by cooking dinner…Another consideration here is that every employee must report to work unless she has permission to be off or if her absence was due to circumstances beyond her control…Therefore, her discharge was for misconduct within the meaning of Section 602A. She is not eligible for unemployment benefits because of the disqualification provision in Section 602A.”
The Testimony
Hearing Officer:
What happened after March 18 was she suspended without pay, what happened? (L. 77-78)
Ms. Kimmel:
When we conduct an investigation, we may pull someone off shift until we complete documentation. (L. 81-82)
Hearing Officer:
Go head Ms. Kimmel, you take them off the schedule during your investigation and then are they, are they, they are not being paid during that time. (L. 89-90)
Ms. Kimmel:
No, if someone is not working they are not paid, unless the investigation is unfounded. (L. 91-92)
Randi was never told she was under investigation before she was terminated. Randi should have been on schedule and being paid.
Ms. Kimmel:
On March 18th Randi was scheduled to work at a Woodlake Residence from the 3:00pm to 10:00pm which is indicated on the Woodlake schedule, Randi had pickup what is known as a Transport that morning to take one of our participants to a doctor’s appointment. Randi was still scheduled to work that evening at Woodlake, and she did not work that second shift. (L. 96-100)
Hearing Officer:
Why didn’t she work, I mean she didn’t show up or she said that she wasn’t going to work? (L. 101-102)
Ms. Kimmel:
Yes, she said that she was too tired to work, Mr. Brad Guthrie, the shift supervisor, contacted her and spoke with her at 7:00pm, on March 18th, and reminded her that she was still on the shift and that they needed her at Woodlake, that there were only two staff members working and that her presence was needed. Randi asked what would happen if she didn’t show up. He stated that it would most likely result in a write up, or some type of disciplinary action. Randi chose to not complete her shift. (L. 103-109)
Mr. Nance:
I just want to note that she said that Randi told her that she was too tired to work and that constitutes sick, and I want that on the record. (L. 112-113)
Ms. Kimmel was not present during the conversation between Mr. Guthrie and Randi. Ms. Kimmel’s testimony here is heresay.
Hearing Officer:
Mr. Nance let me explain something here, you are allowed to ask questions and make objections however, you can not testify because you are not under oath, if you want me to put you under oath, I will be glad to do so. (L. 114-116)
Mr. Nance:
Then put me under oath. (L. 117)
Hearing Officer:
OK, Mr. Nance do you solemnly swear or affirm that any testimony that you may give in this case will be the truth, the whole truth, and nothing but the truth? (L. 118-120)
Mr. Nance:
I do affirm I need to be under oath because I intend to site case law for Illinois. (L. 121)
Mr. Ott should have sworn me in when he swore in the other participants in this
matter.
Hearing Officer:
Now has she ever had any previous problems, meaning refusing to work her scheduled shift? (L. 126-127)
Ms. Kimmel:
Yes sir, she had multiple warnings regarding her attendance since September 12, 2005. (L. 128-128)
Randi has not refused to work. Ms. Kimmel did not answer the question.
Mr. Nance:
Mr. Ott, I want to object, they have a policy which states that the employees are allowed three unexcused absences within the year. (L. 130-131)
Hearing Officer:
Ok, that is between Randi and the employer. I am only determining if Randi will receive Unemployment benefits. (L. 132-133)
This is a biased and prejudicial statement by Mr. Ott. I thought the reason for
having this hearing was to assess the material facts, to get to the conclusion. This is a very important point I make about the employer’s unexcused absence policy.
Hearing Officer:
I see I also have something regarding an order here, on August 25, 2006; did she get a warning at this time? (L. 168-169)
Ms. Kimmel:
Yes, a written warning for not showing up for her 4pm-10:00pm shift on August 18, 2006, the Supervisor contacted her and was told by Ms. Nance that she would be there at 6:00pm, and she later called back and stated that she had a headache and would not be in. (L. 170-173)
Hearing Officer:
We will call it a sick call off. And then I have is February 12, 2008, what was that all about? (L. 174-175)
Ms. Kimmel:
Did not follow protocol when calling off. At that time Randi was what was known as a PRN employee. The attendance policy of PRN employee is responsible for finding coverage when they will not be in to work. Randi failed to find anyone to cover for her absence. (L. 176-179)
Hearing Officer:
How about you Mr. Nance, any questions for Ms. Kimmel. (L. 189)
Mr. Nance:
Yes, Ms. Kimmel do you have a policy that states that an employee are allowed three unexcused absences in a year? (L. 190-191)
Ms. Kimmel:
Yes sir (L. 192)
Mr. Nance:
Do you understand that Department of Labor Law states that a person does not have to produce a reason for being sick unless they are off seventy two (72) hours? (L. 193-195)
Ms. Kimmel:
I know what our attendance policy states. (L. 196)
Hearing Officer:
She is not responsibility for the Department of Labor; she is only responsible for the employer’s policy whether it is right or wrong. (L. 197-198)
This is a ludicrous statement from Mr. Ott. Every employer is responsible for following the laws of the Department of Labor. This is where Mr. Ott is biased and prejudiced toward Randi again. This call off is no different than the absence on March 18, 2008 where Randi stated she was sick from the 10-hour transport of the participant to Kentucky, to which Randi was terminated for being sick. Also, the employer’s policy here fly’s in the face of Labor laws. An employee should not have to find a replacement employee when they call off sick.
Hearing Officer:
Mr. Guthrie lets go to you testimony, what happen on March 18, 2008? (L. 200)
Mr. Guthrie:
Randi was scheduled, I called talked to Randi about seven o’clock to determine if she was coming to work her evening shift. She said that she was tired from doing the transport earlier. I told her that we were understaffed and that we needed her to come in. (L. 201-204)
Hearing Officer:
You just told me that she stated that she didn’t know that she was supposed to work that 3:00pm-11:00pm shift. How did you know that she knew that she was supposed to work that shift? (L. 210-212)
Mr. Guthrie:
We put the schedule out a week in advance. (L. 213)
Hearing Officer:
Then it was on the schedule then? (L. 214)
Randi reports later in this testimony that she did not know she was on the schedule to work this day because Randi did not come to work until March 18, 2008.Reportedly, this schedule did not come out until Friday, March 14, 2008. Randi never saw the schedule. Randi informs Mr. Guthrie she is sick here. An employee does not have the responsibility of caring about whether an employer is
understaffed. Is this supposed to make her not sick anymore?
Hearing Officer:
You said that you called her at 7:00pm which was four hours after her shift started, why did you call her? Because she wasn’t at work? (L. 216-217)
Here, Mr. Ott provides the employer’s representative with the answer.
Mr. Guthrie:
She wasn’t back from her transport yet. (L. 218)
Hearing Officer:
Oh, what made you call her? (L. 219)
Mr. Guthrie:
She was suppose to come in, from what I understood she was suppose to be back around 4:00 or 5:00pm. (L. 220-221)
These are unfair labor practices here. Mr. Guthrie admits Randi had not come back from her transport until 7:00 pm. Randi was required and she reported to the facility to pick up the participant for the transport at 7:00 am. Randi returned from her transport at 6:00 pm. Randi left the facility after dropping off the transport at 7:30 pm. It is understandable that Randi was tired, sick and frustrated from this transport. If you check the weather for this day, it was raining heavily, which made the transport more difficult and frustrating.
Hearing Officer:
I see, she still wasn’t back yet and you were concerned. Where did you call her then at seven pm? Where was she? (L. 222-223)
Mr. Guthrie:
She was at our other residence call Bridge House (L. 224)
Hearing Officer:
Was she working? (L. 225)
Mr. Guthrie:
Yes, she said that she was cooking dinner for the participants. (L. 226)
Hearing Officer:
I am a little confused, where she was supposed to work starting at 3:00pm is that where you called her, or are talking about a different residence? (L. 227-228)
Mr. Guthrie:
She was at a different residence. (L. 229)
Hearing Officer:
How did you know to call her there? (L. 230)
Mr. Guthrie:
Because she did a transport for Bridge House earlier, and I called her on her cell phone and she told me that she was there. (L. 231-232)
Hearing Officer:
Ok, you called her cell phone; I know that you said that she was cooking dinner. Was she actually working and on the clock, a being paid? (L. 233-234)
Mr. Guthrie:
Yes (L. 235)
Hearing Officer:
Did you ask her why she was working at the other location when she was supposed to be at your location. (L. 236-237)
Mr. Guthrie:
Yes, that is when she told me that she was cooking dinner. (L. 238)
Hearing Officer:
That explains why she was cooking at one residence, when she was scheduled to work at your residence? (L. 239-240)
Mr. Guthrie:
I don’t know that is why I asked her to come over. (L. 241)
Randi was not getting paid, as Mr. Guthrie states in L. 235. Randi was volunteering her services to assist the employee who was working because this employee stated to Randi she was alone working in this house, which this is the house where Randi got the transport. Also, Randi informs Mr. Ott later in this testimony that she was not being paid as Mr. Guthrie states. As a matter of fact, Randi did her paperwork regarding the transport, signed out (clocked out) and then started cooking for the participants. Why does Mr. Ott believe he gets an answer to find Randi wrong with the statement in L. 239-240? This does not explain why she was cooking in one residence and not working in another.
Hearing Officer:
She did say that she was not aware that she was scheduled to work at your residence, or that she was tired and didn’t want to work. I am trying to find out what the employer knows. She gave you an explanation as to why she was cooking at one resident when she was schedule to work at another resident? (L. 242-245)
Mr. Guthrie:
No, except that she was tired (L. 246)
Hearing Officer:
but if you are working at one residence, you are still tired see what I’m getting at, why my way of thinking if you are tired why would she be cooking at one residence instead of going home? Did she explain that? (L. 247-249)
Mr. Guthrie:
No (L. 250)
Hearing Officer:
Was she working some kind of a shift there, or did she just stop by to cook dinner for the residents as a favor, did she say what was she doing there? (L. 251-252)
Mr. Guthrie:
No, she returned from the transport and began cooking. (L. 253)
Hearing Officer:
Did she say what time she returned from the transport? (L. 254)
Mr. Guthrie:
No (L. 255)
Why is Mr. Ott leading the witness? It appears Mr. Ott leads the witness to get the witness to change his testimony about Randi’s absence. Mr. Ott’s conversation continues to justify Randi’s inability to perform her work because she is sick, which she claimed from the beginning. Mr. Ott asks Mr. Guthrie again was Randi working. This time Mr. Guthrie admits she was not working at the other site. Randi was merely cooking assisting the other employee. This evidence so far is overwhelmingly in Randi’s favor. How could Mr. Ott miss ruling in Randi favor?
In addition, there is very important information in Lines 255 through 358. It was too wordy to insert here in this document. I will be filing a copy of this transcription from shorthand notes taken on May 23, 2008 along with this appeal writing. You will be able to review the testimony from this copy.
Mr. Nance:
Mr. Guthrie, Is it normal for a person to go on a ten hour transport, a drive to another city, and come back and work another eight hour shift? Is that how you work your employees? (L. 359-361)
Mr. Guthrie:
I wouldn’t say that was normal, however, she was scheduled to work a sixteen hour shift. (L. 362-363)
Randi had no knowledge she was scheduled to work a 16-hour shift, especially after a transport from Illinois to Kentucky in hazardous and rainy weather.
Hearing Officer:
You said that you were on a ten hour trip and that you got back between 6:00 or 6:30pm. (L. 365-366)
Randi:
Yes sir, I got back, there was a flood in Carbondale and when I found out that I was scheduled for a double, most of the employees that were scheduled that night had call off. I was at Bridge House and there was a co-worker, April Heath working by herself. I got a call from Brad telling me that everybody had called off and that he needed me at Woodlake. There was already an employee name Shree and him there, I do not know Shree’s last name working. And April stated that she didn’t want to work by herself, we had some trouble clients at the time that would start fights, even though it was a high functioning house. After I got off the phone the first time, I told him that I was tired, I wasn’t aware that I was working a double. He asked me if I had seen the schedule, I said no I had not seen the schedule because I was out of town the week end when the schedule was put out. I told Brad that I would call him back and let him know if I would come over to Woodlake. I didn’t call him back, he called me. Mean while April asked if I would help fix dinner for the kids, Brad called me in the middle of fixing dinner, I told him that I was too tired to come over to Woodlake, he said OK, I asked him what would be the consequences, he said most likely it would be a write up, I said OK, I’m going to call Sherry, which is the Program Director, and I’m going home. I clocked out and went home. Technically I was not clocked in, we have to fill out a sheet when we do transport and write in the time. (L. 367-385)
Hearing Officer:
Right, did you put in for the time you were at Bridgeview or whatever house you were in? (L. 386-387)
Randi:
No sir, I ended my time at 6:30pm which was the time we got back from the transport. (L. 388-389)
Hearing Officer:
OK, did you call the Director like you said you would? (L. 390)
Randi:
Yes sir I did (L. 391)
Hearing Officer:
What did you say to the Director, and what did she say to you? (L. 392)
Randi:
She did not answer I left her a voice mail, and explain the situation to her and told her I was calling her because I did not want it to result in a write up. I was unaware that I was working a double. (L. 393-395)
Mr. Nance:
I want to make a statement about what the law is Mr. Ott. And what governs 602A can I do that please. (L. 433-434)
Hearing Officer:
I know what 602A is all about, I done probably thousands of cases involving that law. (L. 435-436)
Mr. Nance:
I am talking about the Appellate court case, I have a right to say this don’t I? (L. 437)
Hearing Officer:
If you have an Appellate Court case state it. (L. 438)
Mr. Nance:
602A, a deliberate and willful violation of a reasonable rule or policy of the employee unit, governing an individual behavior and the performance of her work, provided that such violation have harmed the employing unit or other employees or has been repeated by the individual despite a warning of explicit instruction from the employing unit, 820ILCS405/602A, West 1998. This deification of misconduct reflect a legislative intent that a person should receive unemployment benefits even though they were discharged for incapacity, carelessness, inadvertence, negligent, or inability to perform the assigned task. It has been held that the act denies unemployment benefits only if (a)The employee had a reasonable work rule, (b) which the employee deliberately, and willfully violated and (c) the violation either harm the employee or other employees or was repeated despite a warning of instruction to cease the conduct. A single flurry of temper between and employee or supervisor may be enough to warrant discharge in an at-will relationship, but not enough to deny unemployment benefits.
The employer’s policies are very confusing, first, they say that you are allowed three unexcused absences in a year, However, Ms. Kimmel only sites one in 05, two in 06 and one in 08. And all with the exception of the one in 9/12/05, I give her that, all the others were sick call off. Yet they want to use that as a vehicle to terminate Randi. I think we are dealing with mixed questions of law also. Mixed question of law are fact question that requires an examination of legal effect of a given set of facts are reviewed for clear error, a standard in between the manifest weight and de novo standards. (L. 439-460)
Hearing Office:
That is more for the Board of Review or the Circuit Court not so much for me. (L. 461)
Mr. Nance:
Deference to the agency expertise is inappropriate here, where the department is charged with determining whether the employee behavior that led to her termination amounted to misconduct. (L. 462-464)
Hearing Officer:
That is covered when an appeal is given to the Circuit Court. (L. 465)
Mr. Nance:
I have a problem. This company has a policy, that I think flies in the face of the laws for the Department of Labor. When they say that when Randi calls in sick, she is supposed to call around to find someone to take her place? (L. 466-468)
Hearing Officer:
That wasn’t a problem at the end. That was not one of the problems which led to her termination. (L. 469-470)
Mr. Nance:
That is what they site sir. Let me tell you about February 12, 2008 warning. (L. 471)
Hearing Officer:
That was not a reason for her discharge, her failure to secure replacement was not a basic for her discharge, as I understood the testimony today. (L. 472-473)
Mr. Nance:
Ms. Kimmel stated that it was a part of it. (L. 474)
Hearing Officer:
That was prior warnings I just went into the background of the warnings. (L. 475)
Mr. Nance:
OK, the last day of work March 18, 2008, Ms. Kimmel admitted that Randi told her as well as Mr. Guthrie that she was too tired to work, that constitute being sick. (L. 476-478)
Hearing Officer:
But she was cooking dinner. (L. 479)
Mr. Nance:
Yes, she was cooking dinner. However, she was assisting a co-worker, that was having a hard time with a participant. Randi stated that she clocked out at 6:30pm, and that she was not on the clock. I suggest that Randi already knew that she was tired and sick after that twelve hour ride in the storm, and that she had notified the appropriate authority, Brad gave her the choice of coming to Woodlake or going home. I am suggesting what the company did by stating the March 18 incident, that they violated the Department of Labor Law by attempting to force Randi to work after reporting in that she was too tired to work a double shift. It takes seventy- two hours before presenting a doctor’s statement. All the employee is required to do is call in, and state that they will not be coming to work they do not have to give a reason. That is the Department’s Law. All employers must follow the rules/laws established by the Department of Labor, they may write their own policy, however, it must line up with the Department of Labor laws. One more issue. This March 20, 2008, that Mr. Fowler, let me go back to February 12, for this same incident, there was two warnings for the same incident. May I suggest that someone attempted to correct something and that Randi was not present and that she never saw the warning because it states that she refused to sign the warning? Someone signed the warning it looks like Mr. Fowler, one he signed on February 14th and one he signed on February 15th for the February 12th incident. Sir, there is something inappropriate about the documents. And what he puts on the second document February 15th, he states that she did not follow protocol when calling off shift that is all he stated, no facts were mentioned. At the bottom of the warning he stated staff will find courage or follow protocol when calling off shift. Earlier you stated that finding coverage was not part of the discharge, however, it must be a factor in the reasoning for the discharge if they are presenting it as evidence. Even though they didn’t talk about it, it is presented as evidence against Randi. Why did Mr. Fowler have to write? I would like to redirect, May I. (L. 480-508)
Hearing Officer:
After you have finished questioning Randi. (L. 509)
Mr. Nance:
I am finish questioning Randi. (L. 510)
Hearing Officer:
Does anyone else wish to question Randi? (L. 511)
All:
No (L. 512)
Don’t you find it strange that the employer’s representatives did not want to
question Randi? I think it is, even though Mr. Ott is doing very well protecting the
employer.
Hearing Officer:
Mr. Nance you wanted to ask Mr. Fowler some follow up question? (L. 513)
Mr. Nance:
Yes, Mr. Fowler on February 12th you wrote two warnings against Randi the first one dated and signed by you February 14th, stated that staff did not follow protocol when calling off shift, staff had a dispute with supervisor the night before and gave no reason for calling off shift. Mr. Fowler are you saying that your employee has to give you a reason for calling off shift? (L. 514-518)
Mr. Fowler:
Yes (L. 519)
Mr. Nance:
Are you also saying, at the bottom of the warning where it states improvement required staff will find coverage and/or follow protocol when calling off shift. Mr. Fowler, are you saying that when they call off sick they have to find someone to cover for them when calling off sick? (L. 520-523)
Mr. Fowler:
Yes (L. 524)
Mr. Nance:
Mr. Fowler on February 12th you signed another warning against Randi, and dated it February 15th, on which you wrote as fact,” did not follow protocol when calling off shift”. And, improvement required,” staff will find coverage”. Why did you find it necessary to write two warnings? (L. 525-528)
Mr. Fowler:
I actually took that out. The first one I took out of the file. (L. 529)
Mr. Nance:
You took that out; actually you did not take it out of the file because it was given to me and the Judge as evidence. OK, if you took the February 12th out then the one for February 15th the one remaining in the file “states did not follow protocol when calling off shift” what are we suppose to think regarding that statement, there are no facts there? Mr. Fowler did you ever present Randi with the warning? When you wrote employee correction action, do you let the employees know that they are being disciplined? Do you let them see the corrective action? (L. 530-537)
Mr. Fowler:
Yes (L. 538)
Mr. Nance:
Did Randi see the write up for February 15, and/or the write up for February 12th? (L. 539-540)
Mr. Fowler:
No (L. 541)
Mr. Nance:
Don’t you think that it is inappropriate for you to write a warning on an employee and not show them what is written on them? (L. 542-543)
Mr. Fowler:
It is the same warning. (L. 544)
Mr. Nance:
It is not, it can’t be the same warning when I have two different dates. (L. 545)
Mr. Fowler:
I just took out a part. (L. 546)
Mr. Nance:
Is that normal procedure of your company to add and/or remove facts from the warning without letting the employee know anything about it? (L. 547-548)
Mr. Fowler:
No (L. 549)
Mr. Nance:
Then why did you do it? (L. 550)
Mr. Fowler:
I am not sure; I didn’t think that it was needed. (L. 551)
Mr. Nance:
Did you do this just to get rid of Randi (L. 552)
Mr. Fowler:
No (L. 553)
Hearing Officer:
The prior warning in February is not critical to this decision, at least not in the detail that you are going into. There was a warning regarding not calling off on a shift is really all that concern me. (L. 554-556)
Mr. Nance:
Mr. Ott this is for you, how can you say that a prior warning is not material fact? (L. 557)
Hearing Officer:
It is relative (L. 558)
Mr. Nance:
Now, a bogus employee warning is always a material fact, because through this testimony, an employer cannot change a document without letting the employee know it. (L. 559-561)
Hearing Officer:
I know of no ruling like that (L. 562)
Mr. Nance:
The Appellate Court will not allow that, even though we are not sitting in the Appellate Court and I’m trying not to go there. This has got to be a bias hearing you can’t tell me that you are going to reject testimony. (L. 563-565)
Hearing Officer:
I can reject testimony that is not relative to my decision. (L. 566)
Mr. Nance:
Aren’t you also required to accept testimony that refutes the charge against the individual. (L. 567-568)
Hearing Officer:
Yes (L. 569)
Mr. Ott tells us here that he has made a decision before he has heard all the
testimony. Mr. Ott states that prior warnings are not material fact but he will use it in his decision making. (L. 554-556) Mr. Ott is applying a double standard for
Randi. Mr. Ott is making the ceiling is too high for Randi. Randi will not be able to
reach it.
Hearing Officer:
I am going back to Mr. Guthrie, Mr. Guthrie Randi stated that she was unaware that she was to work the second shift the 3-11pm shift on March 18th. Did she tell you that if she know about it. (L. 589-591)
Mr. Guthrie:
She said that she didn’t know about it. (L. 592)
Hearing Officer:
How did you know then that she knew about having to work. (L. 593)
Mr. Guthrie:
Well there is a schedule book at Bridge House and she could have look at it then. (L. 594-595)
Hearing Officer:
Was she working at Bridge House when the schedule was posted. (L. 596)
Mr. Guthrie:
She was cooking there she could have looked at it then. (L. 597)
The employer’s representative here is inconsistent with his testimony. From the testimony here, Mr. Guthrie suggests Randi should have known at this instance she was supposed to work a double shift. Before he talked about how she should have known before her transport, to which Randi had not been to work. The employer’s representatives have suggested from the onset that Randi knew she was supposed to work a double when she asked for the transport, which is not true.
Mr. Nance:
Mr. Guthrie, you stated that the schedules come out in advance? (L. 604)
Mr. Guthrie:
They are general put out a week in advance. (L. 605)
Mr. Nance:
When did this schedule come out? (L. 606)
Mr. Guthrie:
I don’t know, I don’t make up the schedule (L. 607)
Mr. Nance:
All you know is that you probably saw Randi’s name on a schedule for that house? (L. 608-609)
Mr. Guthrie:
Yes (L. 610)
Mr. Nance:
Was Randi scheduled to work Monday night, March 18th was a Tuesday that is the day she went on the transport, she also stated that she did not work the weekend because she was out of town, so her first day back was Tuesday. That was the first day she saw the schedule. What would make you think that she would look at the schedule to check if she was scheduled for a double on March 18th? (L. 611-615)
Mr. Guthrie:
It is the employee responsibility to know when they work and what shift they are working for the week. (L. 616-617)
Hearing Officer:
Mr. Guthrie, Somebody told the local Unemployment Office that Ms. Nance had agreed to work the double shift before March 18th. Do you know anything about that? (L. 618-620)
Mr. Guthrie:
No (L. 621)
Hearing Officer:
What about you Mr. Fowler? (L. 622)
Mr. Fowler:
I spoke to Randi about it, that is the reason that her shift was to end at 10:00pm, otherwise the shift would end at ll:00pm. (L. 623-624)
Hearing Officer:
When did you talk to her about the double? (L. 625)
Mr. Fowler:
It was the week prior when she signed up for the transport. (L. 626)
Hearing Officer:
Was that the time when you talked to her about the 3:00pm-10:00pm shift and she agreed to work the shift? (L. 627-628)
Mr. Fowler:
Yes (L. 629)
The employer’s representatives did not answer Mr. Ott’s question. (L. 618-620)
Hearing Officer:
Randi, Mr. Fowler stated that he talked to you about a week before about working the double shift. Did he do that? (L. 638-639)
Randi:
No sir, he called me Friday morning to confirm the transport. Sherry Dordie had call me and ask if I wanted to do the transport, I said yes that was what I was going to do. He said “OK, I take you off the schedule”; oh I see you are scheduled for a double”. I told him that I would do the transport but I would not work a double. (L. 640-643)
Hearing Officer:
OK, that takes care of that. When you say Friday morning you are talking about March 14th? (L. 644-645)
Randi:
Yes sir. (L. 646)
Hearing Officer:
Any other question for Randi? (L. 647)
Mr. Nance:
Randi, how would you know that you were to work a double if you weren’t there? (L. 648-649)
Randi:
I wouldn’t (L. 650)
Mr. Nance:
You didn’t work Monday? (L. 651)
Randi:
No sir (L. 652)
Mr. Nance:
So you didn’t work March 17th to see the schedule? (L. 653)
Randi:
No, after talking to Mike Fowler he didn’t tell me that I was scheduled to work any other time except to work the transport Tuesday morning. (L. 654-655)
Mr. Nance:
When did that question come out? (L. 656)
Randi:
I will assume Friday afternoon since I talked to Mr. Fowler Friday morning. (L. 657)
Hearing Officer:
Is there anything else Mr. Nance, I am about to close this hearing. (L. 661)
Mr. Nance:
It appears that Mr. Fowler makes arbitrary decisions without informing anyone about the changes. He stated that he changed the time on the schedule; however, he never said that he informed Randi of the change. He changed the notice February 12th he just changes it. How could you believe anything he said because in this hearing he stated that he never informed anyone of changes made in the schedule or warning. It is my contention that Mr. Fowler created all the facts in this matter for the sole purpose of terminating Randi. (L. 662-668)
Hearing Officer:
Why would he want to terminate her? (L. 669)
Mr. Nance:
It is in a letter that I wrote you, regarding another employee. (L. 670)
Hearing Officer:
I am closing this hearing. They employer’s witnesses may now go about their business, Thank You. (L. 671-672)
Randi’s Argument
I, Fred L Nance Jr., advocate for Randi and under the guidance of Randi, presents the following narrative in support of Randi’s claim for unemployment benefits.
The primary purpose of the Act is to provide compensation benefits to unemployed individuals to alleviate their economic distress caused by involuntary unemployment, not to benefit those who are unemployed because of their own misdeeds. Miller v. Department of Employment Security, 245 Ill. App. 3d 520, 522 (1993). Receiving unemployment insurance benefits in this state is a conditional right, and the claimant bears the burden of proving his eligibility for those benefits. Miller, 245 Ill. App. 3d at 522. There was no misdeed committed by Randi. This is clearly an erroneous decision by Mr. David Ott, Administrative Law Judge for the Illinois Department of Employment Security.
Mr. David Ott did not consider any mitigating factors on this issue. Nor did he give any credence to the “entire” testimony given by the parties. This decision by Mr. Ott demonstrates bias and prejudice toward Randi and her claim for unemployment benefits. In addition, Randi provided information and testimony bringing the employer’s supervisor Mr. Michael Fowler’s integrity and honesty in to question. Mr. Fowler wrote the employee warning notice that initiated Randi termination, suggesting misconduct on the part of Randi. There was no misconduct by Randi.
IDES’s local office states “The claimant was discharged from Center for Comprehensive Svcs because of an unauthorized absence of a scheduled work shift….” Mr. Ott turns the determination of the local office upside down when his opening statement of the issue is “Was the claimant discharged for misconduct connected with work as defined in Section 602A of the Illinois Unemployment Insurance Act?” and again when he suggest Randi was terminated because of insubordination. What is Randi defending? Is this a “catch all” tactic of Mr. Ott or IDES? This is a discriminatory practice by IDES or its administrative law judge.
Nevertheless, Section 602A of the Act defines misconduct as: the deliberate and willful violation of a reasonable rule or policy of the employing unit, governing the individual’s behavior in performance of her work, provided that such violation has harmed the employing unit or other employees or has been repeated by the individual despite a warning or other explicit instruction from the employing unit. 820 ILCS 405/602(A) (West 1998)
This definition of misconduct reflects a legislative intent that persons should receive unemployment benefits even though they were discharged for incapacity, carelessness, inadvertence, negligence or inability to perform assigned tasks. Washington v. Board of Review, 211 Ill. App. 3d 663, 667, 570 N.E.2d 566 (1991). It has been held that the Act denies an employee benefits only if (1) the employer had a reasonable work rule (2) which the employee deliberately and willfully violated, and (3) the violation either harmed the employer or other employees, or was repeated by the employee despite a warning or instruction to cease the conduct. DeBois v. Department of Employment Security, 274 Ill. App. 3d 660, 664, 653 N.E.2d 1336 (1995), citing Kiefer v. Department of Employment Security, 266 Ill. App. 3d 1057, 1061, 640 N.E.2d 1252 (1994), and Zuaznabar v. Board of Review of the Department of Employment Security, 257 Ill. App. 3d 354, 356, 628 N.E.2d 986 (1993). Therefore, this three-prong test for misconduct is that the employer meets all 3 standards. Mr. Ott does not include this “entire” definition in his “conclusion.” When Mr. Ott states he is not concerned with prior warnings in making his decisions, he throws these cases out the window.
Mr. Ott reports that Randi had a history of attendance problems about which the employer warned her, even though he was not concerned with prior warnings and they would not be used in his decision. The employer’s “Personnel/Attendance policy regarding unexcused absences is an unreasonable work rule. The policy states “…Employees are allowed three unexcused absences in a year. The year will be defined by the first occurrence of an unexcused absence.” Randi stated in her hearing that this policy is ambiguous due to other language following it, which could be construed as being confusing. According to the employer’s records of Randi’s absences submitted, Randi had unexcused absences on the following dates: 9/12/05, 11/16/05, 3/13/06, 8/25/06/ 9/22/06, 12/17/07, 2/12/08 and 3/18/08. Randi has not violated the employer’s unexcused absence policy. In addition, on March 18, 2008 Randi was not aware she had to work 2 shifts, which is the employer’s basis for Randi’s termination.
In addition to the above unreasonable work rule, the employer has another unreasonable work rule embodied within their Personnel/Attendance policy, which Mr. Ott conveniently left out of his “findings of fact.” The unreasonable work rule of the employer is “…staff are responsible for finding a replacement for their shift and informing their supervisor who will be covering their shift in the event of their absence.” The employer attempts to find Randi liable for not finding this replacement on 2/12/08 when it states in her “employee warning notice”, section “Improvement Required, “…Staff will find coverage…when calling off shift.” Mr. Ott sanctions this “unreasonable work rule” when he states in his “findings of fact” “…The claimant had a history of attendance problems….” What attendance problems? Randi has not violated the employer’s unexcused absence policy, even though Mr. Ott states this will not be considered in his decision making.
Randi did not deliberately and willfully violate the employer’s unexcused absence rule. On March 18, 2008 Randi informed Bradley Guthrie, Shift Supervisor of Woodlake residential, that she was tired from doing the 11 ½ hour transport earlier and didn’t want to work at Woodlake. When Randi stated she was tired from her 11 ½ hour transport, it constituted an illness or being sick. To suggest an employee cannot be sick and refuse to work violates the laws of the Department of Labor. To suggest that an employee calling in sick must find a replacement for her absence is not only an unreasonable work rule but it also violates the laws of the Department of Labor.
In addition, on or about March 14, 2008 Randi had informed Mr. Fowler when she confirmed her scheduled transport to Kentucky for March 18, 2008 that she did not know she was “scheduled” to work a double shift that day, and refused scheduling a double shift with Mr. Fowler. At that time, Mr. Fowler stated he would remove Randi from the double shift. Mr. Ott states, in part, that Randi was scheduled to work a double shift, which the 2nd shift was 3:00 pm to 10:00 pm. Mr. Ott conveniently leaves out of his “findings of fact” that Randi did not return from the transport until 6:30 pm; that Randi stated the transport was 11 ½ hours; that the drive involved being in heavy rain and inclimate weather.
Mr. Ott states in his conclusion “…Insubordination is the refusal by an employee to comply with a reasonable directive of the employer. The claimant’s actions constituted insubordination.” Randi’s actions did not rise to the level of insubordination. Randi merely stated facts when she said she told Mr. Fowler do not put her on the schedule to work a double shift on the day she does the Kentucky transport, which was the day in question here, March 18, 2008. This discussion with Mr. Fowler, at best, could be called constructive argument.
A single flurry of temper between a worker and a supervisor may be enough to warrant discharge in an at-will relationship. But it is not enough to deny unemployment benefits. The courts have held that arguing with a supervisor without using abusive language or threats is not sufficient to establish discharge for misconduct under the Act. Gee v. Board of Review of the Department of Labor, 136 Ill. App. 3d 889, 896, 483 N.E.2d 1025 (1985), citing Sheff v. Board of Review, Illinois Department of Labor, 128 Ill. App. 3d 347, 470 N.E.2d 1044 (1984).
Mr. Ott suggest in his conclusion that the employer’s request that Randi report for work was reasonable because the residential facility was understaffed. If this was a reasonable request for Randi, would it not be a reasonable request to other staff who called off from that facility because of the inclimate weather? In Randi’s testimony she states that most of the staff who called off, called off because of a flood in the Carbondale, Illinois area. This flood also affected Randi, especially during the transport. The employer’s request for Randi to work was not reasonable but discriminatory. Evidently, this request to work was not made to the other employees who called off.
The record (telephone interview conducted by Mr. Ott) will demonstrate the evidence (employee warning notices) sent to Randi, included the schedule for Woodlake residence but not the Bridge house residence. The Woodlake schedule showed 4 staff on shift, yet there were only 2 working. There were only 2 people on the schedule to work at the Bridge house residence, but only 1 employee showed up for the shift. Randi stayed at the Bridge house residence to help out her co-worker April Heath, because she was the only staff on shift and requested Randi’s assistance in cooking dinner for the residents. Randi was not on the employer’s time, she was not clocked in, nor did she record those hours on her transport time sheet for pay, as Mr. Guthrie states in his testimony. Randi was doing the employer a “favor” by assisting her colleague when she was cooking while the colleague attended to a disruptive client.
Therefore, Mr. Ott’s statement “…She could not have been all that tired because she was helping out at another residential facility by cooking dinner…” has no validity to suggest Randi was not tired or sick, but rather, demonstrates Randi’s loyalty to her peers and this employer in times of stress and difficulty. I would like to see Mr. Ott go on a 100 mile/11 ½ -hour transport/trip with a mentally challenged client, and then come back to do an 8-hour shift with similar clients. If he could perform this task, then I guess we could call the employer’s scheduling of Randi for this double shift, on this day, a “reasonable” directive. There is no mention of the employee who went on the transport with Randi. Did this employee have a reasonable directive to work a double shift also? Is the treatment of Randi indifferent or racially motivated?
I believe it would be appropriate to address the 3rd prong of the DeBois test now. Did Randi’s refusal to work harm the employer or other employees, or was it repeated by her despite warnings or instructions to cease this conduct. Randi did not violate this prong of the DeBois test. By Mr. Ott’s stating the employer’s residential facility was understaffed suggests the employer’s residential facility was already compromised. Randi never knew she was supposed to work at Woodlake until Mr. Guthrie called her because she believed she had an agreement with her supervisor Mr. Fowler that he had taken her off the double shift because of the transport, so how could she be aware that she was imposing harm to her employer. Lets not leave out Mr. Ott’s statement that he will not consider “repeated warnings…” in his decision making. Mr. Ott discourages this prong of the test.
In addition, Mr. Ott states in his “conclusion” that “…The claimant’s explanation that she was not going to work because she was tired was not a reasonable excuse for failing to follow her supervisor’s directive. When Randi said she was tired, it is supported by the Washington court when it said the definition of misconduct reflects a legislative intent that persons should receive unemployment benefits even though they were discharged for incapacity, carelessness, inadvertence, negligence or inability to perform assigned tasks. Randi was not terminated because of misconduct or an unauthorized absence. If Randi was terminated for anything justifiable, it may be because of her carelessness, negligence or inability to perform assigned tasks; which the latter may be more appealing in this instant matter.
After the hearing, on or about May 26, 2008 at approximately 8:45 am Fred L Nance Jr. called Mr. Ott leaving a message stating “Rodrick text messaged Randi at 7:25 pm on May 23, 2008 stating, “So why did you pull that card.” Fred requested Mr. Ott give a return call acknowledging receipt of this call. Mr. Ott called Fred on May 26, 2008 acknowledging receipt of this call and its message.
On May 23, 2008, during the telephone hearing, Fred made reference to Mr. Fowler’s indifferent treatment and discrimination against Randi. Fred stated, Randi informed him that Mr. Fowler and Rodrick had a sexual relationship; and that, Rodrick had many more absences than Randi that Mr. Fowler had not reported to their employer as he did against Randi. Fred suggested this indifferent treatment and discrimination was a direct result of the intimate and sexual relationship Mr. Fowler had with Rodrick. Therefore, the call Randi received from Rodrick is construed as harassment and retaliatory for her testimony in this instance. Randi expressed to Fred a fear for her safety.
The house where Randi was cooking the food needed more than one staff person. This house is considered to be a “higher” functioning house by the employer. Nevertheless, the employer has a policy where even though the clients should be able to cook for themselves, there must be a staff person present. This would mean there would have to be at least 2 employees present or working in the house.
In conclusion, Mr. Fowler initiated and promoted this incident leading to Randi’s termination. Mr. Fowler’s integrity, judgment and motives are questionable here. The unexcused absence policies and procedures of the employer are not reasonable. They are subjective. Who was punished or written up when the house where Randi was fixing dinner did not show up? This house was understaffed. This charge against Randi by the employer is discriminatory and has elements of indifferent treatment.
The determination of the Local Office and Mr. Ott’s decision should be set aside. Randi should receive her unemployment benefits. Randi was unemployed from March 18, 2008 to May 12, 2008.
Respectfully submitted,
Randi
This is what it is like being "Black in America."
America believes Blacks are not supposed to be intelligent. Blacks are not supposed to defend themselves from the onslaught of institutional racism and prejudice. Blacks are supposed to lie down and be walked on. Black truth does not matter, when the "establishment" uses their "unsupported" legal jargon, picking and choosing what language and testimony they want to use, which allows them to justify their indifferent decisions. The claimant is punished for being "Black in America."
On July 24, 2008 I received a copy of the State of Illinois, Department of Employment Security's decision in this matter. A decision made by J. Hunt Bonan, Stanley L. Drassler Jr., William J. Nolan, Constantine M. Zografopoulos, and Elwood Flowers Sr. denies the claimant her right to unemployment compensation. This "partial" panel determined that the claimant was not sick because she did not say she was sick but rather stated she was tired. This "partial" panel also states "...Accordingly, after a review of the record, including the testimony and the evidence presented before the Referee and the records of the Department of Employment Security, and due deliberation having been had thereon, we find that the Referee's decision is supported by the record and the law." This "partial" panel does not cite any case law in its decision, yet they report "...and the law". What law? There's no citation of law.
There was no consideration or mention of the "record" submitted by the claimant. This "partial" panel did make one reference of the claimant's submitted "record" in the beginning of their decision. This "partial" panel states "...We note that on page 24 of the "transcription of shorthand notes" is the notation, "Tape stopped. Did not get the answer." What does this have to do with this matter? If they make this note, why not note the other statements? This statement gives creditability to the transcription of the claimant.
The reason, "Black in America." Blacks will continue to be treated like this if no one objects. Blacks must stand up and fight institutional racism and prejudice. This "partial" panel may attempt to inform us that some of the individuals named here are black. How "black" are they? Are they prepared to lay their careers on the line for being "Black in America." I do not think so. Just because their color is black does not mean they are black.
You, the reader, can write about your "institutional" racism, prejudice and indifferent treatment. Start a "blog." It is easy. It is free. Write about your experiences with institutional racism, prejudice and indifferent treatment. There is power in numbers. Be real. Be "Black in America."
The claimant's statement below was not even considered in this matter. The final statement, in small print, of this "partial" panel's decision states "If you are aggrieved by this decision and want to appeal, you must file a complaint for administrative review and have summons issued in circuit court within 35 days from the above mailing date. You may only file your complaint in the circuit court of the county in which you reside or in which your principal place of business is located...."
Now the State of Illinois, Department of Employment Security wants a person who is seeking unemployment compensation to spend money to litigate in a court of law. Not only is this an outrage, it is a disgrace. If one did litigate, what would they litigate? There was no case law cited by this "partial" panel. This means when one litigates their case, they have no idea what case law they are litigating against.
For example, this "partial" panel speaks about hearsay evidence. They report "...The claimant's representative objects to some heresay testimony offered by the employer at the hearing. Hearsay is defined as a statement, including a document, made outside the hearing, offered to prove the truth of the matter asserted. If objected to, heresay may not be considered by the Referee or the Board of Review unless it falls within a recognized exception to the rule excluding heresay evidence. The fundamental basis for excluding heresay evidence is the lack of an opportunity to test the creditability of the statement through cross-examination. If no objection is made to the statement as being heresay, the statement will be admitted into evidence, however, it will only be given its natural probative value and the fact that it is a heresay statement may effect the weight that may be given to the statement. The claimant's representative made no objection." This is a bold face lie. As can be seen in the body of appeal below, the claimant's representative continually objected to the heresay evidence presented in this matter. Notwithstanding, there is no case law to support this "partial" panel. This is what happens when you are "Black in America."
I will write more on this subject and post their decision on the Internet.
STATE OF ILLINOIS
DEPARTMENT OF EMPLOYMENT SECURITY
APPEALS DIVISION
BOARD OF REVIEW
33 SOUTH STATE STREET, 9TH FLOOR
CHICAGO, ILLINOIS 60603
APPEAL OF DECISION
I, Randi, was an employee of The Mentor ABI Group, Center for Comprehensive Services. I was terminated from my employment on or about March 18, 2008. The employee warning notice, dated March 20, 2008, which determined my termination states in part “…Termination…attendance…staff did not work the second shift of her double that she agreed to work.”
Randi filed a timely unemployment insurance claim. According to the Illinois Department of Employment Security (IDES), “…The claimant was discharged from Center for Comprehensive Svcs because of an unauthorized absence of a scheduled work shift. The claimant had received prior warnings concerning her attendance.”
Randi filed a timely appeal. On May 23, 2008, a telephone hearing was conducted. The following individuals participated in this telephone hearing: Randi (employee), Michael Fowler (employer representative), Bradley Guthrie (employer representative), Ms. Himmel (employer representative) and David Ott (Illinois Department of Employment Security Hearing Referee and Administrative Law Judge). On or about May 28, 2008, Mr. David Ott issued a decision affirming the determination of the local office.
On June 15, 2008, Randi files a timely “Right of Further Appeal” on the decision of David W. Ott.
Randi employs and enjoins C.L.I.C.K. Services, NFP, specifically, Fred L Nance Jr. to advocate and write her appeal/opinion in this matter. This advocacy is part of this case and the appropriate paperwork is on file with the Illinois Department of Employment Security (IDES). I, Randi, also give C.L.I.C.K. Services, NFP, specifically, Fred L Nance Jr. permission to post this appeal/opinion on his website at http://clickforjusticeandequality2.blogspot.com/.
Individuals mentioned in this writing are: Randi is a black female. Mr. David Ott is a white male. Mr. Michael Fowler is a white male. Mr. Bradley Guthrie is a white male. Ms. Himmel is a white female. Rodrick is a black male.
Finding of Fact by IDES
Mr. Ott reports, in part: “The claimant was a life skills therapist from May 16, 2005 to March 18, 2008, her last day of work…The claimant had a history of attendance problems about which the employer warned her…On the final occasion that resulted in her discharge she was scheduled to work a double shift. She first had to drive a resident to a doctor’s appointment in Kentucky. When she returned she had to work at a residential facility 3:00 pm – 10:00 pm. When she did not report for work at the facility her supervisor called her cell phone, reaching her at another employer residential facility. She was cooking dinner for the residents. She said she did not report for work at her scheduled facility because she was tired from having to drive the resident to his doctor’s appointment. The supervisor told her the facility was understaffed so she had to report to the facility right away. When she asked what would happen if she did not report for work he said she would be disciplined. He again told her to report for work. Again she refused. He told her to leave the facility where she was, which she did…Insubordination is the refusal by an employee to comply with a reasonable directive of the employer. The claimant’s actions constituted insubordination. The supervisor’s request that she report for work was reasonable because the residential facility was understaffed. The claimant’s explanation that she was not going to work because she was tired was not a reasonable excuse for failing to follow her supervisor’s directive. She could not have been all that tired because she was helping out at another residential facility by cooking dinner…Another consideration here is that every employee must report to work unless she has permission to be off or if her absence was due to circumstances beyond her control…Therefore, her discharge was for misconduct within the meaning of Section 602A. She is not eligible for unemployment benefits because of the disqualification provision in Section 602A.”
The Testimony
Hearing Officer:
What happened after March 18 was she suspended without pay, what happened? (L. 77-78)
Ms. Kimmel:
When we conduct an investigation, we may pull someone off shift until we complete documentation. (L. 81-82)
Hearing Officer:
Go head Ms. Kimmel, you take them off the schedule during your investigation and then are they, are they, they are not being paid during that time. (L. 89-90)
Ms. Kimmel:
No, if someone is not working they are not paid, unless the investigation is unfounded. (L. 91-92)
Randi was never told she was under investigation before she was terminated. Randi should have been on schedule and being paid.
Ms. Kimmel:
On March 18th Randi was scheduled to work at a Woodlake Residence from the 3:00pm to 10:00pm which is indicated on the Woodlake schedule, Randi had pickup what is known as a Transport that morning to take one of our participants to a doctor’s appointment. Randi was still scheduled to work that evening at Woodlake, and she did not work that second shift. (L. 96-100)
Hearing Officer:
Why didn’t she work, I mean she didn’t show up or she said that she wasn’t going to work? (L. 101-102)
Ms. Kimmel:
Yes, she said that she was too tired to work, Mr. Brad Guthrie, the shift supervisor, contacted her and spoke with her at 7:00pm, on March 18th, and reminded her that she was still on the shift and that they needed her at Woodlake, that there were only two staff members working and that her presence was needed. Randi asked what would happen if she didn’t show up. He stated that it would most likely result in a write up, or some type of disciplinary action. Randi chose to not complete her shift. (L. 103-109)
Mr. Nance:
I just want to note that she said that Randi told her that she was too tired to work and that constitutes sick, and I want that on the record. (L. 112-113)
Ms. Kimmel was not present during the conversation between Mr. Guthrie and Randi. Ms. Kimmel’s testimony here is heresay.
Hearing Officer:
Mr. Nance let me explain something here, you are allowed to ask questions and make objections however, you can not testify because you are not under oath, if you want me to put you under oath, I will be glad to do so. (L. 114-116)
Mr. Nance:
Then put me under oath. (L. 117)
Hearing Officer:
OK, Mr. Nance do you solemnly swear or affirm that any testimony that you may give in this case will be the truth, the whole truth, and nothing but the truth? (L. 118-120)
Mr. Nance:
I do affirm I need to be under oath because I intend to site case law for Illinois. (L. 121)
Mr. Ott should have sworn me in when he swore in the other participants in this
matter.
Hearing Officer:
Now has she ever had any previous problems, meaning refusing to work her scheduled shift? (L. 126-127)
Ms. Kimmel:
Yes sir, she had multiple warnings regarding her attendance since September 12, 2005. (L. 128-128)
Randi has not refused to work. Ms. Kimmel did not answer the question.
Mr. Nance:
Mr. Ott, I want to object, they have a policy which states that the employees are allowed three unexcused absences within the year. (L. 130-131)
Hearing Officer:
Ok, that is between Randi and the employer. I am only determining if Randi will receive Unemployment benefits. (L. 132-133)
This is a biased and prejudicial statement by Mr. Ott. I thought the reason for
having this hearing was to assess the material facts, to get to the conclusion. This is a very important point I make about the employer’s unexcused absence policy.
Hearing Officer:
I see I also have something regarding an order here, on August 25, 2006; did she get a warning at this time? (L. 168-169)
Ms. Kimmel:
Yes, a written warning for not showing up for her 4pm-10:00pm shift on August 18, 2006, the Supervisor contacted her and was told by Ms. Nance that she would be there at 6:00pm, and she later called back and stated that she had a headache and would not be in. (L. 170-173)
Hearing Officer:
We will call it a sick call off. And then I have is February 12, 2008, what was that all about? (L. 174-175)
Ms. Kimmel:
Did not follow protocol when calling off. At that time Randi was what was known as a PRN employee. The attendance policy of PRN employee is responsible for finding coverage when they will not be in to work. Randi failed to find anyone to cover for her absence. (L. 176-179)
Hearing Officer:
How about you Mr. Nance, any questions for Ms. Kimmel. (L. 189)
Mr. Nance:
Yes, Ms. Kimmel do you have a policy that states that an employee are allowed three unexcused absences in a year? (L. 190-191)
Ms. Kimmel:
Yes sir (L. 192)
Mr. Nance:
Do you understand that Department of Labor Law states that a person does not have to produce a reason for being sick unless they are off seventy two (72) hours? (L. 193-195)
Ms. Kimmel:
I know what our attendance policy states. (L. 196)
Hearing Officer:
She is not responsibility for the Department of Labor; she is only responsible for the employer’s policy whether it is right or wrong. (L. 197-198)
This is a ludicrous statement from Mr. Ott. Every employer is responsible for following the laws of the Department of Labor. This is where Mr. Ott is biased and prejudiced toward Randi again. This call off is no different than the absence on March 18, 2008 where Randi stated she was sick from the 10-hour transport of the participant to Kentucky, to which Randi was terminated for being sick. Also, the employer’s policy here fly’s in the face of Labor laws. An employee should not have to find a replacement employee when they call off sick.
Hearing Officer:
Mr. Guthrie lets go to you testimony, what happen on March 18, 2008? (L. 200)
Mr. Guthrie:
Randi was scheduled, I called talked to Randi about seven o’clock to determine if she was coming to work her evening shift. She said that she was tired from doing the transport earlier. I told her that we were understaffed and that we needed her to come in. (L. 201-204)
Hearing Officer:
You just told me that she stated that she didn’t know that she was supposed to work that 3:00pm-11:00pm shift. How did you know that she knew that she was supposed to work that shift? (L. 210-212)
Mr. Guthrie:
We put the schedule out a week in advance. (L. 213)
Hearing Officer:
Then it was on the schedule then? (L. 214)
Randi reports later in this testimony that she did not know she was on the schedule to work this day because Randi did not come to work until March 18, 2008.Reportedly, this schedule did not come out until Friday, March 14, 2008. Randi never saw the schedule. Randi informs Mr. Guthrie she is sick here. An employee does not have the responsibility of caring about whether an employer is
understaffed. Is this supposed to make her not sick anymore?
Hearing Officer:
You said that you called her at 7:00pm which was four hours after her shift started, why did you call her? Because she wasn’t at work? (L. 216-217)
Here, Mr. Ott provides the employer’s representative with the answer.
Mr. Guthrie:
She wasn’t back from her transport yet. (L. 218)
Hearing Officer:
Oh, what made you call her? (L. 219)
Mr. Guthrie:
She was suppose to come in, from what I understood she was suppose to be back around 4:00 or 5:00pm. (L. 220-221)
These are unfair labor practices here. Mr. Guthrie admits Randi had not come back from her transport until 7:00 pm. Randi was required and she reported to the facility to pick up the participant for the transport at 7:00 am. Randi returned from her transport at 6:00 pm. Randi left the facility after dropping off the transport at 7:30 pm. It is understandable that Randi was tired, sick and frustrated from this transport. If you check the weather for this day, it was raining heavily, which made the transport more difficult and frustrating.
Hearing Officer:
I see, she still wasn’t back yet and you were concerned. Where did you call her then at seven pm? Where was she? (L. 222-223)
Mr. Guthrie:
She was at our other residence call Bridge House (L. 224)
Hearing Officer:
Was she working? (L. 225)
Mr. Guthrie:
Yes, she said that she was cooking dinner for the participants. (L. 226)
Hearing Officer:
I am a little confused, where she was supposed to work starting at 3:00pm is that where you called her, or are talking about a different residence? (L. 227-228)
Mr. Guthrie:
She was at a different residence. (L. 229)
Hearing Officer:
How did you know to call her there? (L. 230)
Mr. Guthrie:
Because she did a transport for Bridge House earlier, and I called her on her cell phone and she told me that she was there. (L. 231-232)
Hearing Officer:
Ok, you called her cell phone; I know that you said that she was cooking dinner. Was she actually working and on the clock, a being paid? (L. 233-234)
Mr. Guthrie:
Yes (L. 235)
Hearing Officer:
Did you ask her why she was working at the other location when she was supposed to be at your location. (L. 236-237)
Mr. Guthrie:
Yes, that is when she told me that she was cooking dinner. (L. 238)
Hearing Officer:
That explains why she was cooking at one residence, when she was scheduled to work at your residence? (L. 239-240)
Mr. Guthrie:
I don’t know that is why I asked her to come over. (L. 241)
Randi was not getting paid, as Mr. Guthrie states in L. 235. Randi was volunteering her services to assist the employee who was working because this employee stated to Randi she was alone working in this house, which this is the house where Randi got the transport. Also, Randi informs Mr. Ott later in this testimony that she was not being paid as Mr. Guthrie states. As a matter of fact, Randi did her paperwork regarding the transport, signed out (clocked out) and then started cooking for the participants. Why does Mr. Ott believe he gets an answer to find Randi wrong with the statement in L. 239-240? This does not explain why she was cooking in one residence and not working in another.
Hearing Officer:
She did say that she was not aware that she was scheduled to work at your residence, or that she was tired and didn’t want to work. I am trying to find out what the employer knows. She gave you an explanation as to why she was cooking at one resident when she was schedule to work at another resident? (L. 242-245)
Mr. Guthrie:
No, except that she was tired (L. 246)
Hearing Officer:
but if you are working at one residence, you are still tired see what I’m getting at, why my way of thinking if you are tired why would she be cooking at one residence instead of going home? Did she explain that? (L. 247-249)
Mr. Guthrie:
No (L. 250)
Hearing Officer:
Was she working some kind of a shift there, or did she just stop by to cook dinner for the residents as a favor, did she say what was she doing there? (L. 251-252)
Mr. Guthrie:
No, she returned from the transport and began cooking. (L. 253)
Hearing Officer:
Did she say what time she returned from the transport? (L. 254)
Mr. Guthrie:
No (L. 255)
Why is Mr. Ott leading the witness? It appears Mr. Ott leads the witness to get the witness to change his testimony about Randi’s absence. Mr. Ott’s conversation continues to justify Randi’s inability to perform her work because she is sick, which she claimed from the beginning. Mr. Ott asks Mr. Guthrie again was Randi working. This time Mr. Guthrie admits she was not working at the other site. Randi was merely cooking assisting the other employee. This evidence so far is overwhelmingly in Randi’s favor. How could Mr. Ott miss ruling in Randi favor?
In addition, there is very important information in Lines 255 through 358. It was too wordy to insert here in this document. I will be filing a copy of this transcription from shorthand notes taken on May 23, 2008 along with this appeal writing. You will be able to review the testimony from this copy.
Mr. Nance:
Mr. Guthrie, Is it normal for a person to go on a ten hour transport, a drive to another city, and come back and work another eight hour shift? Is that how you work your employees? (L. 359-361)
Mr. Guthrie:
I wouldn’t say that was normal, however, she was scheduled to work a sixteen hour shift. (L. 362-363)
Randi had no knowledge she was scheduled to work a 16-hour shift, especially after a transport from Illinois to Kentucky in hazardous and rainy weather.
Hearing Officer:
You said that you were on a ten hour trip and that you got back between 6:00 or 6:30pm. (L. 365-366)
Randi:
Yes sir, I got back, there was a flood in Carbondale and when I found out that I was scheduled for a double, most of the employees that were scheduled that night had call off. I was at Bridge House and there was a co-worker, April Heath working by herself. I got a call from Brad telling me that everybody had called off and that he needed me at Woodlake. There was already an employee name Shree and him there, I do not know Shree’s last name working. And April stated that she didn’t want to work by herself, we had some trouble clients at the time that would start fights, even though it was a high functioning house. After I got off the phone the first time, I told him that I was tired, I wasn’t aware that I was working a double. He asked me if I had seen the schedule, I said no I had not seen the schedule because I was out of town the week end when the schedule was put out. I told Brad that I would call him back and let him know if I would come over to Woodlake. I didn’t call him back, he called me. Mean while April asked if I would help fix dinner for the kids, Brad called me in the middle of fixing dinner, I told him that I was too tired to come over to Woodlake, he said OK, I asked him what would be the consequences, he said most likely it would be a write up, I said OK, I’m going to call Sherry, which is the Program Director, and I’m going home. I clocked out and went home. Technically I was not clocked in, we have to fill out a sheet when we do transport and write in the time. (L. 367-385)
Hearing Officer:
Right, did you put in for the time you were at Bridgeview or whatever house you were in? (L. 386-387)
Randi:
No sir, I ended my time at 6:30pm which was the time we got back from the transport. (L. 388-389)
Hearing Officer:
OK, did you call the Director like you said you would? (L. 390)
Randi:
Yes sir I did (L. 391)
Hearing Officer:
What did you say to the Director, and what did she say to you? (L. 392)
Randi:
She did not answer I left her a voice mail, and explain the situation to her and told her I was calling her because I did not want it to result in a write up. I was unaware that I was working a double. (L. 393-395)
Mr. Nance:
I want to make a statement about what the law is Mr. Ott. And what governs 602A can I do that please. (L. 433-434)
Hearing Officer:
I know what 602A is all about, I done probably thousands of cases involving that law. (L. 435-436)
Mr. Nance:
I am talking about the Appellate court case, I have a right to say this don’t I? (L. 437)
Hearing Officer:
If you have an Appellate Court case state it. (L. 438)
Mr. Nance:
602A, a deliberate and willful violation of a reasonable rule or policy of the employee unit, governing an individual behavior and the performance of her work, provided that such violation have harmed the employing unit or other employees or has been repeated by the individual despite a warning of explicit instruction from the employing unit, 820ILCS405/602A, West 1998. This deification of misconduct reflect a legislative intent that a person should receive unemployment benefits even though they were discharged for incapacity, carelessness, inadvertence, negligent, or inability to perform the assigned task. It has been held that the act denies unemployment benefits only if (a)The employee had a reasonable work rule, (b) which the employee deliberately, and willfully violated and (c) the violation either harm the employee or other employees or was repeated despite a warning of instruction to cease the conduct. A single flurry of temper between and employee or supervisor may be enough to warrant discharge in an at-will relationship, but not enough to deny unemployment benefits.
The employer’s policies are very confusing, first, they say that you are allowed three unexcused absences in a year, However, Ms. Kimmel only sites one in 05, two in 06 and one in 08. And all with the exception of the one in 9/12/05, I give her that, all the others were sick call off. Yet they want to use that as a vehicle to terminate Randi. I think we are dealing with mixed questions of law also. Mixed question of law are fact question that requires an examination of legal effect of a given set of facts are reviewed for clear error, a standard in between the manifest weight and de novo standards. (L. 439-460)
Hearing Office:
That is more for the Board of Review or the Circuit Court not so much for me. (L. 461)
Mr. Nance:
Deference to the agency expertise is inappropriate here, where the department is charged with determining whether the employee behavior that led to her termination amounted to misconduct. (L. 462-464)
Hearing Officer:
That is covered when an appeal is given to the Circuit Court. (L. 465)
Mr. Nance:
I have a problem. This company has a policy, that I think flies in the face of the laws for the Department of Labor. When they say that when Randi calls in sick, she is supposed to call around to find someone to take her place? (L. 466-468)
Hearing Officer:
That wasn’t a problem at the end. That was not one of the problems which led to her termination. (L. 469-470)
Mr. Nance:
That is what they site sir. Let me tell you about February 12, 2008 warning. (L. 471)
Hearing Officer:
That was not a reason for her discharge, her failure to secure replacement was not a basic for her discharge, as I understood the testimony today. (L. 472-473)
Mr. Nance:
Ms. Kimmel stated that it was a part of it. (L. 474)
Hearing Officer:
That was prior warnings I just went into the background of the warnings. (L. 475)
Mr. Nance:
OK, the last day of work March 18, 2008, Ms. Kimmel admitted that Randi told her as well as Mr. Guthrie that she was too tired to work, that constitute being sick. (L. 476-478)
Hearing Officer:
But she was cooking dinner. (L. 479)
Mr. Nance:
Yes, she was cooking dinner. However, she was assisting a co-worker, that was having a hard time with a participant. Randi stated that she clocked out at 6:30pm, and that she was not on the clock. I suggest that Randi already knew that she was tired and sick after that twelve hour ride in the storm, and that she had notified the appropriate authority, Brad gave her the choice of coming to Woodlake or going home. I am suggesting what the company did by stating the March 18 incident, that they violated the Department of Labor Law by attempting to force Randi to work after reporting in that she was too tired to work a double shift. It takes seventy- two hours before presenting a doctor’s statement. All the employee is required to do is call in, and state that they will not be coming to work they do not have to give a reason. That is the Department’s Law. All employers must follow the rules/laws established by the Department of Labor, they may write their own policy, however, it must line up with the Department of Labor laws. One more issue. This March 20, 2008, that Mr. Fowler, let me go back to February 12, for this same incident, there was two warnings for the same incident. May I suggest that someone attempted to correct something and that Randi was not present and that she never saw the warning because it states that she refused to sign the warning? Someone signed the warning it looks like Mr. Fowler, one he signed on February 14th and one he signed on February 15th for the February 12th incident. Sir, there is something inappropriate about the documents. And what he puts on the second document February 15th, he states that she did not follow protocol when calling off shift that is all he stated, no facts were mentioned. At the bottom of the warning he stated staff will find courage or follow protocol when calling off shift. Earlier you stated that finding coverage was not part of the discharge, however, it must be a factor in the reasoning for the discharge if they are presenting it as evidence. Even though they didn’t talk about it, it is presented as evidence against Randi. Why did Mr. Fowler have to write? I would like to redirect, May I. (L. 480-508)
Hearing Officer:
After you have finished questioning Randi. (L. 509)
Mr. Nance:
I am finish questioning Randi. (L. 510)
Hearing Officer:
Does anyone else wish to question Randi? (L. 511)
All:
No (L. 512)
Don’t you find it strange that the employer’s representatives did not want to
question Randi? I think it is, even though Mr. Ott is doing very well protecting the
employer.
Hearing Officer:
Mr. Nance you wanted to ask Mr. Fowler some follow up question? (L. 513)
Mr. Nance:
Yes, Mr. Fowler on February 12th you wrote two warnings against Randi the first one dated and signed by you February 14th, stated that staff did not follow protocol when calling off shift, staff had a dispute with supervisor the night before and gave no reason for calling off shift. Mr. Fowler are you saying that your employee has to give you a reason for calling off shift? (L. 514-518)
Mr. Fowler:
Yes (L. 519)
Mr. Nance:
Are you also saying, at the bottom of the warning where it states improvement required staff will find coverage and/or follow protocol when calling off shift. Mr. Fowler, are you saying that when they call off sick they have to find someone to cover for them when calling off sick? (L. 520-523)
Mr. Fowler:
Yes (L. 524)
Mr. Nance:
Mr. Fowler on February 12th you signed another warning against Randi, and dated it February 15th, on which you wrote as fact,” did not follow protocol when calling off shift”. And, improvement required,” staff will find coverage”. Why did you find it necessary to write two warnings? (L. 525-528)
Mr. Fowler:
I actually took that out. The first one I took out of the file. (L. 529)
Mr. Nance:
You took that out; actually you did not take it out of the file because it was given to me and the Judge as evidence. OK, if you took the February 12th out then the one for February 15th the one remaining in the file “states did not follow protocol when calling off shift” what are we suppose to think regarding that statement, there are no facts there? Mr. Fowler did you ever present Randi with the warning? When you wrote employee correction action, do you let the employees know that they are being disciplined? Do you let them see the corrective action? (L. 530-537)
Mr. Fowler:
Yes (L. 538)
Mr. Nance:
Did Randi see the write up for February 15, and/or the write up for February 12th? (L. 539-540)
Mr. Fowler:
No (L. 541)
Mr. Nance:
Don’t you think that it is inappropriate for you to write a warning on an employee and not show them what is written on them? (L. 542-543)
Mr. Fowler:
It is the same warning. (L. 544)
Mr. Nance:
It is not, it can’t be the same warning when I have two different dates. (L. 545)
Mr. Fowler:
I just took out a part. (L. 546)
Mr. Nance:
Is that normal procedure of your company to add and/or remove facts from the warning without letting the employee know anything about it? (L. 547-548)
Mr. Fowler:
No (L. 549)
Mr. Nance:
Then why did you do it? (L. 550)
Mr. Fowler:
I am not sure; I didn’t think that it was needed. (L. 551)
Mr. Nance:
Did you do this just to get rid of Randi (L. 552)
Mr. Fowler:
No (L. 553)
Hearing Officer:
The prior warning in February is not critical to this decision, at least not in the detail that you are going into. There was a warning regarding not calling off on a shift is really all that concern me. (L. 554-556)
Mr. Nance:
Mr. Ott this is for you, how can you say that a prior warning is not material fact? (L. 557)
Hearing Officer:
It is relative (L. 558)
Mr. Nance:
Now, a bogus employee warning is always a material fact, because through this testimony, an employer cannot change a document without letting the employee know it. (L. 559-561)
Hearing Officer:
I know of no ruling like that (L. 562)
Mr. Nance:
The Appellate Court will not allow that, even though we are not sitting in the Appellate Court and I’m trying not to go there. This has got to be a bias hearing you can’t tell me that you are going to reject testimony. (L. 563-565)
Hearing Officer:
I can reject testimony that is not relative to my decision. (L. 566)
Mr. Nance:
Aren’t you also required to accept testimony that refutes the charge against the individual. (L. 567-568)
Hearing Officer:
Yes (L. 569)
Mr. Ott tells us here that he has made a decision before he has heard all the
testimony. Mr. Ott states that prior warnings are not material fact but he will use it in his decision making. (L. 554-556) Mr. Ott is applying a double standard for
Randi. Mr. Ott is making the ceiling is too high for Randi. Randi will not be able to
reach it.
Hearing Officer:
I am going back to Mr. Guthrie, Mr. Guthrie Randi stated that she was unaware that she was to work the second shift the 3-11pm shift on March 18th. Did she tell you that if she know about it. (L. 589-591)
Mr. Guthrie:
She said that she didn’t know about it. (L. 592)
Hearing Officer:
How did you know then that she knew about having to work. (L. 593)
Mr. Guthrie:
Well there is a schedule book at Bridge House and she could have look at it then. (L. 594-595)
Hearing Officer:
Was she working at Bridge House when the schedule was posted. (L. 596)
Mr. Guthrie:
She was cooking there she could have looked at it then. (L. 597)
The employer’s representative here is inconsistent with his testimony. From the testimony here, Mr. Guthrie suggests Randi should have known at this instance she was supposed to work a double shift. Before he talked about how she should have known before her transport, to which Randi had not been to work. The employer’s representatives have suggested from the onset that Randi knew she was supposed to work a double when she asked for the transport, which is not true.
Mr. Nance:
Mr. Guthrie, you stated that the schedules come out in advance? (L. 604)
Mr. Guthrie:
They are general put out a week in advance. (L. 605)
Mr. Nance:
When did this schedule come out? (L. 606)
Mr. Guthrie:
I don’t know, I don’t make up the schedule (L. 607)
Mr. Nance:
All you know is that you probably saw Randi’s name on a schedule for that house? (L. 608-609)
Mr. Guthrie:
Yes (L. 610)
Mr. Nance:
Was Randi scheduled to work Monday night, March 18th was a Tuesday that is the day she went on the transport, she also stated that she did not work the weekend because she was out of town, so her first day back was Tuesday. That was the first day she saw the schedule. What would make you think that she would look at the schedule to check if she was scheduled for a double on March 18th? (L. 611-615)
Mr. Guthrie:
It is the employee responsibility to know when they work and what shift they are working for the week. (L. 616-617)
Hearing Officer:
Mr. Guthrie, Somebody told the local Unemployment Office that Ms. Nance had agreed to work the double shift before March 18th. Do you know anything about that? (L. 618-620)
Mr. Guthrie:
No (L. 621)
Hearing Officer:
What about you Mr. Fowler? (L. 622)
Mr. Fowler:
I spoke to Randi about it, that is the reason that her shift was to end at 10:00pm, otherwise the shift would end at ll:00pm. (L. 623-624)
Hearing Officer:
When did you talk to her about the double? (L. 625)
Mr. Fowler:
It was the week prior when she signed up for the transport. (L. 626)
Hearing Officer:
Was that the time when you talked to her about the 3:00pm-10:00pm shift and she agreed to work the shift? (L. 627-628)
Mr. Fowler:
Yes (L. 629)
The employer’s representatives did not answer Mr. Ott’s question. (L. 618-620)
Hearing Officer:
Randi, Mr. Fowler stated that he talked to you about a week before about working the double shift. Did he do that? (L. 638-639)
Randi:
No sir, he called me Friday morning to confirm the transport. Sherry Dordie had call me and ask if I wanted to do the transport, I said yes that was what I was going to do. He said “OK, I take you off the schedule”; oh I see you are scheduled for a double”. I told him that I would do the transport but I would not work a double. (L. 640-643)
Hearing Officer:
OK, that takes care of that. When you say Friday morning you are talking about March 14th? (L. 644-645)
Randi:
Yes sir. (L. 646)
Hearing Officer:
Any other question for Randi? (L. 647)
Mr. Nance:
Randi, how would you know that you were to work a double if you weren’t there? (L. 648-649)
Randi:
I wouldn’t (L. 650)
Mr. Nance:
You didn’t work Monday? (L. 651)
Randi:
No sir (L. 652)
Mr. Nance:
So you didn’t work March 17th to see the schedule? (L. 653)
Randi:
No, after talking to Mike Fowler he didn’t tell me that I was scheduled to work any other time except to work the transport Tuesday morning. (L. 654-655)
Mr. Nance:
When did that question come out? (L. 656)
Randi:
I will assume Friday afternoon since I talked to Mr. Fowler Friday morning. (L. 657)
Hearing Officer:
Is there anything else Mr. Nance, I am about to close this hearing. (L. 661)
Mr. Nance:
It appears that Mr. Fowler makes arbitrary decisions without informing anyone about the changes. He stated that he changed the time on the schedule; however, he never said that he informed Randi of the change. He changed the notice February 12th he just changes it. How could you believe anything he said because in this hearing he stated that he never informed anyone of changes made in the schedule or warning. It is my contention that Mr. Fowler created all the facts in this matter for the sole purpose of terminating Randi. (L. 662-668)
Hearing Officer:
Why would he want to terminate her? (L. 669)
Mr. Nance:
It is in a letter that I wrote you, regarding another employee. (L. 670)
Hearing Officer:
I am closing this hearing. They employer’s witnesses may now go about their business, Thank You. (L. 671-672)
Randi’s Argument
I, Fred L Nance Jr., advocate for Randi and under the guidance of Randi, presents the following narrative in support of Randi’s claim for unemployment benefits.
The primary purpose of the Act is to provide compensation benefits to unemployed individuals to alleviate their economic distress caused by involuntary unemployment, not to benefit those who are unemployed because of their own misdeeds. Miller v. Department of Employment Security, 245 Ill. App. 3d 520, 522 (1993). Receiving unemployment insurance benefits in this state is a conditional right, and the claimant bears the burden of proving his eligibility for those benefits. Miller, 245 Ill. App. 3d at 522. There was no misdeed committed by Randi. This is clearly an erroneous decision by Mr. David Ott, Administrative Law Judge for the Illinois Department of Employment Security.
Mr. David Ott did not consider any mitigating factors on this issue. Nor did he give any credence to the “entire” testimony given by the parties. This decision by Mr. Ott demonstrates bias and prejudice toward Randi and her claim for unemployment benefits. In addition, Randi provided information and testimony bringing the employer’s supervisor Mr. Michael Fowler’s integrity and honesty in to question. Mr. Fowler wrote the employee warning notice that initiated Randi termination, suggesting misconduct on the part of Randi. There was no misconduct by Randi.
IDES’s local office states “The claimant was discharged from Center for Comprehensive Svcs because of an unauthorized absence of a scheduled work shift….” Mr. Ott turns the determination of the local office upside down when his opening statement of the issue is “Was the claimant discharged for misconduct connected with work as defined in Section 602A of the Illinois Unemployment Insurance Act?” and again when he suggest Randi was terminated because of insubordination. What is Randi defending? Is this a “catch all” tactic of Mr. Ott or IDES? This is a discriminatory practice by IDES or its administrative law judge.
Nevertheless, Section 602A of the Act defines misconduct as: the deliberate and willful violation of a reasonable rule or policy of the employing unit, governing the individual’s behavior in performance of her work, provided that such violation has harmed the employing unit or other employees or has been repeated by the individual despite a warning or other explicit instruction from the employing unit. 820 ILCS 405/602(A) (West 1998)
This definition of misconduct reflects a legislative intent that persons should receive unemployment benefits even though they were discharged for incapacity, carelessness, inadvertence, negligence or inability to perform assigned tasks. Washington v. Board of Review, 211 Ill. App. 3d 663, 667, 570 N.E.2d 566 (1991). It has been held that the Act denies an employee benefits only if (1) the employer had a reasonable work rule (2) which the employee deliberately and willfully violated, and (3) the violation either harmed the employer or other employees, or was repeated by the employee despite a warning or instruction to cease the conduct. DeBois v. Department of Employment Security, 274 Ill. App. 3d 660, 664, 653 N.E.2d 1336 (1995), citing Kiefer v. Department of Employment Security, 266 Ill. App. 3d 1057, 1061, 640 N.E.2d 1252 (1994), and Zuaznabar v. Board of Review of the Department of Employment Security, 257 Ill. App. 3d 354, 356, 628 N.E.2d 986 (1993). Therefore, this three-prong test for misconduct is that the employer meets all 3 standards. Mr. Ott does not include this “entire” definition in his “conclusion.” When Mr. Ott states he is not concerned with prior warnings in making his decisions, he throws these cases out the window.
Mr. Ott reports that Randi had a history of attendance problems about which the employer warned her, even though he was not concerned with prior warnings and they would not be used in his decision. The employer’s “Personnel/Attendance policy regarding unexcused absences is an unreasonable work rule. The policy states “…Employees are allowed three unexcused absences in a year. The year will be defined by the first occurrence of an unexcused absence.” Randi stated in her hearing that this policy is ambiguous due to other language following it, which could be construed as being confusing. According to the employer’s records of Randi’s absences submitted, Randi had unexcused absences on the following dates: 9/12/05, 11/16/05, 3/13/06, 8/25/06/ 9/22/06, 12/17/07, 2/12/08 and 3/18/08. Randi has not violated the employer’s unexcused absence policy. In addition, on March 18, 2008 Randi was not aware she had to work 2 shifts, which is the employer’s basis for Randi’s termination.
In addition to the above unreasonable work rule, the employer has another unreasonable work rule embodied within their Personnel/Attendance policy, which Mr. Ott conveniently left out of his “findings of fact.” The unreasonable work rule of the employer is “…staff are responsible for finding a replacement for their shift and informing their supervisor who will be covering their shift in the event of their absence.” The employer attempts to find Randi liable for not finding this replacement on 2/12/08 when it states in her “employee warning notice”, section “Improvement Required, “…Staff will find coverage…when calling off shift.” Mr. Ott sanctions this “unreasonable work rule” when he states in his “findings of fact” “…The claimant had a history of attendance problems….” What attendance problems? Randi has not violated the employer’s unexcused absence policy, even though Mr. Ott states this will not be considered in his decision making.
Randi did not deliberately and willfully violate the employer’s unexcused absence rule. On March 18, 2008 Randi informed Bradley Guthrie, Shift Supervisor of Woodlake residential, that she was tired from doing the 11 ½ hour transport earlier and didn’t want to work at Woodlake. When Randi stated she was tired from her 11 ½ hour transport, it constituted an illness or being sick. To suggest an employee cannot be sick and refuse to work violates the laws of the Department of Labor. To suggest that an employee calling in sick must find a replacement for her absence is not only an unreasonable work rule but it also violates the laws of the Department of Labor.
In addition, on or about March 14, 2008 Randi had informed Mr. Fowler when she confirmed her scheduled transport to Kentucky for March 18, 2008 that she did not know she was “scheduled” to work a double shift that day, and refused scheduling a double shift with Mr. Fowler. At that time, Mr. Fowler stated he would remove Randi from the double shift. Mr. Ott states, in part, that Randi was scheduled to work a double shift, which the 2nd shift was 3:00 pm to 10:00 pm. Mr. Ott conveniently leaves out of his “findings of fact” that Randi did not return from the transport until 6:30 pm; that Randi stated the transport was 11 ½ hours; that the drive involved being in heavy rain and inclimate weather.
Mr. Ott states in his conclusion “…Insubordination is the refusal by an employee to comply with a reasonable directive of the employer. The claimant’s actions constituted insubordination.” Randi’s actions did not rise to the level of insubordination. Randi merely stated facts when she said she told Mr. Fowler do not put her on the schedule to work a double shift on the day she does the Kentucky transport, which was the day in question here, March 18, 2008. This discussion with Mr. Fowler, at best, could be called constructive argument.
A single flurry of temper between a worker and a supervisor may be enough to warrant discharge in an at-will relationship. But it is not enough to deny unemployment benefits. The courts have held that arguing with a supervisor without using abusive language or threats is not sufficient to establish discharge for misconduct under the Act. Gee v. Board of Review of the Department of Labor, 136 Ill. App. 3d 889, 896, 483 N.E.2d 1025 (1985), citing Sheff v. Board of Review, Illinois Department of Labor, 128 Ill. App. 3d 347, 470 N.E.2d 1044 (1984).
Mr. Ott suggest in his conclusion that the employer’s request that Randi report for work was reasonable because the residential facility was understaffed. If this was a reasonable request for Randi, would it not be a reasonable request to other staff who called off from that facility because of the inclimate weather? In Randi’s testimony she states that most of the staff who called off, called off because of a flood in the Carbondale, Illinois area. This flood also affected Randi, especially during the transport. The employer’s request for Randi to work was not reasonable but discriminatory. Evidently, this request to work was not made to the other employees who called off.
The record (telephone interview conducted by Mr. Ott) will demonstrate the evidence (employee warning notices) sent to Randi, included the schedule for Woodlake residence but not the Bridge house residence. The Woodlake schedule showed 4 staff on shift, yet there were only 2 working. There were only 2 people on the schedule to work at the Bridge house residence, but only 1 employee showed up for the shift. Randi stayed at the Bridge house residence to help out her co-worker April Heath, because she was the only staff on shift and requested Randi’s assistance in cooking dinner for the residents. Randi was not on the employer’s time, she was not clocked in, nor did she record those hours on her transport time sheet for pay, as Mr. Guthrie states in his testimony. Randi was doing the employer a “favor” by assisting her colleague when she was cooking while the colleague attended to a disruptive client.
Therefore, Mr. Ott’s statement “…She could not have been all that tired because she was helping out at another residential facility by cooking dinner…” has no validity to suggest Randi was not tired or sick, but rather, demonstrates Randi’s loyalty to her peers and this employer in times of stress and difficulty. I would like to see Mr. Ott go on a 100 mile/11 ½ -hour transport/trip with a mentally challenged client, and then come back to do an 8-hour shift with similar clients. If he could perform this task, then I guess we could call the employer’s scheduling of Randi for this double shift, on this day, a “reasonable” directive. There is no mention of the employee who went on the transport with Randi. Did this employee have a reasonable directive to work a double shift also? Is the treatment of Randi indifferent or racially motivated?
I believe it would be appropriate to address the 3rd prong of the DeBois test now. Did Randi’s refusal to work harm the employer or other employees, or was it repeated by her despite warnings or instructions to cease this conduct. Randi did not violate this prong of the DeBois test. By Mr. Ott’s stating the employer’s residential facility was understaffed suggests the employer’s residential facility was already compromised. Randi never knew she was supposed to work at Woodlake until Mr. Guthrie called her because she believed she had an agreement with her supervisor Mr. Fowler that he had taken her off the double shift because of the transport, so how could she be aware that she was imposing harm to her employer. Lets not leave out Mr. Ott’s statement that he will not consider “repeated warnings…” in his decision making. Mr. Ott discourages this prong of the test.
In addition, Mr. Ott states in his “conclusion” that “…The claimant’s explanation that she was not going to work because she was tired was not a reasonable excuse for failing to follow her supervisor’s directive. When Randi said she was tired, it is supported by the Washington court when it said the definition of misconduct reflects a legislative intent that persons should receive unemployment benefits even though they were discharged for incapacity, carelessness, inadvertence, negligence or inability to perform assigned tasks. Randi was not terminated because of misconduct or an unauthorized absence. If Randi was terminated for anything justifiable, it may be because of her carelessness, negligence or inability to perform assigned tasks; which the latter may be more appealing in this instant matter.
After the hearing, on or about May 26, 2008 at approximately 8:45 am Fred L Nance Jr. called Mr. Ott leaving a message stating “Rodrick text messaged Randi at 7:25 pm on May 23, 2008 stating, “So why did you pull that card.” Fred requested Mr. Ott give a return call acknowledging receipt of this call. Mr. Ott called Fred on May 26, 2008 acknowledging receipt of this call and its message.
On May 23, 2008, during the telephone hearing, Fred made reference to Mr. Fowler’s indifferent treatment and discrimination against Randi. Fred stated, Randi informed him that Mr. Fowler and Rodrick had a sexual relationship; and that, Rodrick had many more absences than Randi that Mr. Fowler had not reported to their employer as he did against Randi. Fred suggested this indifferent treatment and discrimination was a direct result of the intimate and sexual relationship Mr. Fowler had with Rodrick. Therefore, the call Randi received from Rodrick is construed as harassment and retaliatory for her testimony in this instance. Randi expressed to Fred a fear for her safety.
The house where Randi was cooking the food needed more than one staff person. This house is considered to be a “higher” functioning house by the employer. Nevertheless, the employer has a policy where even though the clients should be able to cook for themselves, there must be a staff person present. This would mean there would have to be at least 2 employees present or working in the house.
In conclusion, Mr. Fowler initiated and promoted this incident leading to Randi’s termination. Mr. Fowler’s integrity, judgment and motives are questionable here. The unexcused absence policies and procedures of the employer are not reasonable. They are subjective. Who was punished or written up when the house where Randi was fixing dinner did not show up? This house was understaffed. This charge against Randi by the employer is discriminatory and has elements of indifferent treatment.
The determination of the Local Office and Mr. Ott’s decision should be set aside. Randi should receive her unemployment benefits. Randi was unemployed from March 18, 2008 to May 12, 2008.
Respectfully submitted,
Randi
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