FIFTH DIVISION 
July 27, 2007 

No. 1-06-2298 

JANIE LIVINGSTON,

v.

THE DEPARTMENT OF 
EMPLOYMENT SECURITY; 
DIRECTOR OF EMPLOYMENT SECURITY; 
THE BOARD OF REVIEW;
and LAKEVIEW NURSING AND 
REHABILITATION c/o 
PERSONNEL PLANNERS, 

 Honorable 
 Sheldon Gardner,
Judge Presiding. 


JUSTICE GALLAGHER delivered the opinion of the court: 
Plaintiff Janie Livingston appeals from the denial of her 
claim for unemployment insurance benefits under the Unemployment 
Insurance Act (Act) (820 ILCS 405/100 et seq. (West 2004)). 
Defendant Lakeview Nursing and Rehabilitation (Lakeview) 
discharged plaintiff from her job as a certified nursing 
assistant after she allegedly slapped the face of an elderly 
resident, Dolores Johnson. 

On appeal, plaintiff contends that she neither slapped 
Johnson nor willfully engaged in work-related misconduct. We 
affirm. 

Plaintiff worked for Lakeview for 25 years, from June 1980 
until her discharge in September 2005.1 

A telephone hearing was held on November 23, 2005. During 
the telephone hearing, four witnesses testified. 

Melissa Casillas of Lakeview's human resources department 
testified that plaintiff worked as a certified nursing assistant 
from June 7, 1980, until she was discharged on September 15, 
2005. 

Mary Langel, Lakeview's director of nursing, testified that 
she discharged plaintiff on September 15, 2005. Langel told 
plaintiff that the reason for her discharge was that on September 
5, plaintiff had abused a resident, Dolores Johnson, by slapping 
Johnson's face. Langel did not witness the incident. When the 
referee asked Langel what plaintiff said after Langel told her 
she had slapped a resident, Langel testified: 


"She said that she did not slap her. 
That she did put her hand--face, tell her 
that she couldn't behave that way. The 
resident was angry with [plaintiff] because 
she didn't want to get up. 

* * * 

She said that she put her hand on the 
resident's face and said you can't do that. 
We don't act like that, or something to those 
words." 

Langel testified that plaintiff demonstrated what she had 
done, and that plaintiff's remarks to her were a basis for 
discharge because the way plaintiff placed her hand on the 
resident's face and scolded her was inappropriate. Langel 
testified: 

"She put her hand on her face kind of 
like holding her face, you know what I mean? 
And she said you can't act that way or we 
don't act this way, something to that respect 
[sic]." 

Langel testified further that plaintiff had been previously 
warned about inappropriate treatment of a resident in August 
2005. Langel explained that plaintiff worked the night shift, 
and that when the day shift arrived, they found that a resident 
had been tied to the bed. When Langel asked plaintiff about 
that, plaintiff replied that the resident had probably done it 
herself. Langel testified that plaintiff had been there "a very 
long time" and that, therefore, Langel decided to move plaintiff 
to another floor where the residents were more alert and 
oriented, and to observe plaintiff closely. 

Gwendolyn King testified that she was a certified nursing 
assistant and that she witnessed the slapping incident, which she 
said occurred in Dolores Johnson's room at approximately 7 a.m. 
on September 11, 2005. King had just left the lunch room near 
Johnson's room and was taking a resident to the bathroom. When 
King passed by Johnson's door, King heard Johnson arguing loudly 
and yelling, "'[S]top it, stop doing that.'" Johnson was sitting 
in her wheelchair. To King's knowledge, plaintiff did not have a 
hearing problem. Johnson was loud with "a lot of" the staff. 
Johnson was yelling. Plaintiff was not yelling. King did not 
hear plaintiff say anything, but whatever Johnson had said 
"apparently made [plaintiff] angry" because as King passed by the 
door, she saw plaintiff's hand come down and slap Johnson across 
the face. King testified that she actually saw plaintiff slap 
Johnson. King also heard the slap. Johnson, who was "very much" 
mentally competent, appeared "dumbfounded." King reported the 
incident to her charge nurse. Although King only saw plaintiff 
coming and going because they worked different shifts, King 
recognized plaintiff and had said good morning to her in the hall 
just before the incident occurred. King did not see a bruise on 
Johnson from the slap. Johnson had a little redness to the side 
of her cheek, but Johnson always had pink cheeks anyway. 

Plaintiff testified that she did not slap Johnson and that 
she only "touched her face." Plaintiff testified: 

"I took my index finger and I touched 
her on the face, said that's not nice to do. 
It's not nice to fight people when they're 
trying to get you up for breakfast." 

When asked if it was necessary to touch Johnson's face, 
plaintiff testified: 

"Well she had made a brace at me with 
both her hands and she had a very unusual 
look on her face. And I was trying to calm 
her down." 

When asked if she thought it was necessary to touch Johnson 
to calm her down, plaintiff testified, "No." Plaintiff testified 
that she needed to calm Johnson down because Johnson looked like 
she was going to hit plaintiff. Plaintiff testified that usually 
she and Johnson talked during the night, and that she usually 
tapped Johnson's jaw. Plaintiff admitted that it was "not 
really" appropriate for her to touch Johnson on the face. 
Plaintiff did so to calm her down and keep her "low key." 
Plaintiff talked to her at the same time. Plaintiff testified, 
"I don't think I did wrong." Plaintiff agreed that she was not 
supposed to touch a patient unless it was necessary for the 
patient's care. Plaintiff testified that by touching Johnson she 
was caring for her, but plaintiff admitted that it was neither 
necessary nor appropriate to touch Johnson in that way to care 
for her. Plaintiff testified that she knew she should not touch 
Johnson unless it was necessary and that it was not necessary in 
this case. Plaintiff did not think that she had done anything 
wrong. Johnson was being a little combative, but plaintiff did 
not report that to the nurse. Plaintiff tried to do the job that 
she was assigned to do. Plaintiff remembered that she told the 
local office that she had tapped Johnson on the jaw with her 
index finger and that she was aware of the policy. 

King then testified that she saw plaintiff slap Johnson 
"with the back of her hand." King testified further, "Cause she 
was standing sideways so she just took it back and just kind of 
like slapped her." 

Plaintiff then testified again that she did not slap 
Johnson. 

On November 28, 2005, the referee stated in a written 
decision that the issue was whether plaintiff was discharged for 
misconduct connected with work within the meaning of section 
602(A) of the Act. 820 ILCS 405/602(A) (West 2004). The referee 
found that plaintiff was discharged because she had "slapped a 
patient on the face, contrary to the employer's known rules." 
The referee stated that plaintiff was not eligible for 
unemployment insurance benefits because she knew that it was 
improper to slap a patient on the face but did so anyway, and her 
conduct was within her control. Plaintiff filed a pro se appeal 
in which she argued that she did not slap the patient, and that 
after 25 years of work at the same place, she would know better. 

The Board of Review of the Department of Employment Security 
(Board) affirmed the referee's decision. The Board found that 
the referee's decision was supported by the record and the law. 
The Board incorporated the referee's decision as part of the 
Board's decision. 

Plaintiff sought administrative review in the circuit court. 
See 735 ILCS 5/3-101 et seq. (West 2004). 

The circuit court entered an order affirming the Board's 
decision. The record does not contain a transcript of any of the 
proceedings in the circuit court. Plaintiff has appealed from 
the circuit court's order. 

On appeal, plaintiff contends that she did not slap Johnson 
or willfully engage in work-related misconduct. Plaintiff argues 
that she "[a]t best" "violated a reasonable rule of the nursing 
home regarding inappropriate touching of the resident, by using 
bad judgment." Plaintiff asserts that she considered the 
touching to be a form of care to "calm down a highly agitated 
resident," and an attempt to help the resident, not a deliberate, 
willful violation of a rule. Plaintiff concludes that the 
manifest weight of the evidence does not show deliberate, willful 
conduct on her part. 

The Board responds that its decision denying unemployment 
insurance benefits should be affirmed because its finding that 
plaintiff slapped a patient was not against the manifest weight 
of the evidence, and its conclusion that the slap constituted 
work-related misconduct was not clearly erroneous. 

We have reviewed the record and find no basis to disturb the 
judgment of the circuit court. 

This court reviews the Board's decision. Perto v. Board of 
Review, 274 Ill. App. 3d 485, 491-92 (1995). The Board is the 
trier of fact. Nykaza v. Department of Employment Security, 364 
Ill. App. 3d 624, 628 (2006). The Board's purely factual 
findings are "prima facie true and correct" (see Horton v. 
Department of Employment Security, 335 Ill. App. 3d 537, 540 
(2002); 735 ILCS 5/3-110 (West 2004); 820 ILCS 405/1100 (West 
2004)), are reviewed under the manifest weight of the evidence 
standard (Carpetland U.S.A., Inc. v. Illinois Department of 
Employment Security, 201 Ill. 2d 351, 369 (2002)), and will not 
be reversed unless they are against the manifest weight of the 
evidence (In re Austin W., 214 Ill. 2d 31, 56 (2005)). 

"Courts may not consider evidence outside of 
the record of the administrative appeal, 
reweigh the evidence to determine where the 
preponderance lies, or evaluate the 
credibility of the witnesses." In re Austin 
W., 214 Ill. 2d at 56. 

If the facts are not in dispute, the plaintiff's eligibility 
for unemployment insurance benefits is a question of law and is 
reviewed de novo. International Union of Operating Engineers, 
Local 48 v. Illinois Department of Employment Security, 215 Ill. 
2d 37, 62 (2005). The Board's decisions involving purely 
questions of law are reviewed de novo. Carpetland U.S.A., Inc., 

If the Board's decision presents a mixed question of law and 
fact, it is subject to an intermediate standard of review for 
clear error. Carpetland U.S.A., Inc., 201 Ill. 2d at 369. A 
mixed question of law and fact involves the legal effect of a set 
of facts. Manning v. Department of Employment Security, 365 Ill. 
App. 3d 553, 557 (2006); Moss v. Department of Employment 
Security, 357 Ill. App. 3d 980, 984 (2005). 

"Stated another way, a mixed question is one 
in which the historical facts are admitted or 
established, the rule of law is undisputed, 
and the issue is whether the facts satisfy 
the statutory standard, or whether the rule 
of law as applied to the established facts is 
or is not violated." Moss, 357 Ill. App. 3d 
at 984. 

A mixed question of law and fact is subject to an 
intermediate standard of review, the "clearly erroneous" standard 
of review. AFM Messenger Service, Inc. v. Department of 
Employment Security, 198 Ill. 2d 380, 392 (2001); Manning, 365 
Ill. App. 3d at 557; Moss, 357 Ill. App. 3d at 984; Chicago 
Messenger Service v. Jordan, 356 Ill. App. 3d 101, 106 (2005). 

The "clearly erroneous" standard of review "is largely 
deferential to the agency decision." Chicago Messenger Service, 
356 Ill. App. 3d at 106-07. 

"Under the clearly erroneous standard, we 
give somewhat less deference to the agency 
than we would if the decision related solely 
to a question of fact, because the decision 
is based on fact-finding that is inseparable 
from the application of law to fact." 
Carpetland U.S.A., Inc., 201 Ill. 2d at 369. 

The Board's decision concerning a mixed question of law and 
fact is clearly erroneous only if, based upon the entire record, 
the court of review definitely and firmly believes that a mistake 
has occurred. Carpetland U.S.A., Inc., 201 Ill. 2d at 369; AFM 
Messenger Service, Inc., 198 Ill. 2d at 395; Chicago Messenger 
Service, 356 Ill. App. 3d at 107; Horton, 335 Ill. App. 3d at 
540. A court of review will not reweigh the evidence or 
substitute its judgment for that of the Board. Horton, 335 Ill. 
App. 3d at 540. 

The facts, as stated above, were disputed. King testified 
that the incident occurred on September 11, 2005, a different 
date from the date specified by Langel. But King testified 
further that she knew who plaintiff and Johnson were, she heard 
Johnson arguing and yelling, and she saw and heard plaintiff slap 
Johnson. Plaintiff testified that she did not slap Johnson, she 
only touched Johnson to calm her down. The Board's finding that 
plaintiff had slapped Johnson, an elderly nursing home resident, 
was not against the manifest weight of the evidence. 

Even assuming that plaintiff touched instead of slapped 
Johnson, plaintiff conceded that the touching was neither 
necessary nor appropriate. She attributed it to bad judgment on 
her part, not deliberate or willful misconduct. However, the 
Board's conclusion that plaintiff was disqualified due to work-
related misconduct was not clearly erroneous or contrary to law. 
Section 602(A) of the Act, entitled "Discharge for misconduct-Felony," 
states in part: 

"An individual shall be ineligible for 
benefits for the week in which he has been 
discharged for misconduct connected with his 
work and, thereafter, until he has become 
reemployed ***. *** For purposes of this 
subsection, the term 'misconduct' means the 
deliberate and willful violation of a 
reasonable rule or policy of the employing 
unit, governing the individual's behavior in 
performance of his work, provided 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 2004). 

See also Manning, 365 Ill. App. 3d at 557. 

A reasonable rule concerns "standards of behavior which an 
employer has a right to expect" from an employee. Bandemer v. 
Department of Employment Security, 204 Ill. App. 3d 192, 195 
(1990). Willful conduct stems from an employee's awareness of, 
and conscious disregard for, a company rule. Wrobel v. 
Department of Employment Security, 344 Ill. App. 3d 533, 538 
(2003); Lachenmyer v. Didrickson, 263 Ill. App. 3d 382, 389 
(1994). Harm need not be actual harm and can consist instead of 
potential harm. Greenlaw v. Department of Employment Security, 
299 Ill. App. 3d 446, 448 (1998); Brodde v. Didrickson, 269 Ill. 
App. 3d 309, 311 (1995). 

Here, it was not clearly erroneous or contrary to law for 
the Board to conclude that plaintiff willfully and deliberately 
violated a reasonable policy and caused potential harm to 
Lakeview. 

Plaintiff was a certified nursing assistant who worked with 
elderly nursing home residents. Plaintiff was seen slapping one 
of the elderly nursing home residents. Plaintiff was aware of 
the policy against inappropriate touching. Instead of making an 
effort to comply with Lakeview's requirements, plaintiff went 
ahead and slapped, or inappropriately touched, Johnson's face. 
Johnson was elderly and was sitting in a wheelchair. Plaintiff's 
conduct was conscious, willful, and deliberate. 

At a minimum, a certified nursing assistant should not be 
allowed to slap the face of an elderly resident of a nursing home 
or inappropriately touch the face of an elderly resident of a 
nursing home. Therefore, a policy prohibiting certified nursing 
assistants from slapping, or inappropriately touching, the face 
of an elderly resident of a nursing home is reasonable. 
Plaintiff has conceded on appeal that the policy is reasonable. 

Plaintiff's conduct was not repeated after a prior warning, 
because she had not received any prior warning about slapping or 
inappropriately touching patients. She had received a prior 
warning about restraining a patient. But she had received no 
prior warning specifically about slapping or inappropriately 
touching a patient, which from plaintiff's own testimony that she 
usually tapped Johnson's jaw, appears not to have been a one-time 
occurrence. Therefore, the issue boils down to harm. 

Plaintiff's conduct caused actual harm to Lakeview. Another 
certified nursing assistant, King, was required to take time away 
from her duties with patients to report what she had seen and 
heard. This temporarily hindered King's ability to do her job, 
temporarily deprived Lakeview of King's services, and amounted to 
actual harm within the meaning of section 602(A). See 
Caterpillar, Inc. v. Department of Employment Security, 313 Ill. 
App. 3d 645, 655 (2000). Furthermore, a nursing home has a duty 
to provide an environment free from abuse. See Mason v. 
Department of Public Health, 326 Ill. App. 3d 616, 620, 624 
(2001) ("abusive and degrading treatment," "disparaging, 
derogatory, humiliating, harassing, or offensive conduct by a 
nursing home employee"); see also 210 ILCS 45/2-107, 1-103 (West 
2004). 

Even assuming that plaintiff's conduct did not cause actual 
harm to Lakeview, potential harm may amount to misconduct. See 
Greenlaw, 299 Ill. App. 3d at 448; Brodde, 269 Ill. App. 3d at 
311. However, there is a split in the authorities as to whether 
the prospect of future harm constitutes harm within the meaning 
of section 602(A) of the Act. 

For example, in Bandemer, 204 Ill. App. 3d at 195, the 
misconduct consisted of a sales manager's failure to notify the 
store manager that she was sick and her failure to open the store 
that day. The appellate court observed that potential customers 
could not shop at the store and that the threat of future 
financial loss was harmful to the employer. 

In Winklmeier v. Board of Review of the Department of Labor, 
115 Ill. App. 3d 154, 155-56 (1983), the misconduct consisted of 
filing false medical claims, which could cause higher insurance 
costs and financial loss to the employer. 

By way of contrast, in Zuaznabar v. Board of Review of the 
Department of Employment Security, 257 Ill. App. 3d 354, 356-57 
(1993), which plaintiff cited, the misconduct consisted of 
negligent and careless driving that did not actually harm the 
employer. 

In Kiefer v. Department of Employment Security, 266 Ill. 
App. 3d 1057, 1062-63 (1994), the misconduct consisted of selling 
insurance, which carried only a remote and speculative risk of 
harm. 

Kiefer and Zuaznabar are distinguishable from the present 
case. In the present case, the misconduct was not merely 
careless or negligent, unlike Zuaznabar, and did not carry merely 
a remote risk of harm to Lakeview, unlike Kiefer; rather, the 
misconduct consisted of deliberately slapping (or deliberately 
and inappropriately touching) the face of an elderly woman 
sitting in a wheelchair. Plaintiff, a certified nursing 
assistant at Lakeview for 25 years, was aware that her conduct 
was inappropriate and in contravention of Lakeview's policy. The 
misconduct in this case was willful and deliberate, and the 
potential harm to Lakeview was not remote. The potential harm 
caused by such conduct included Lakeview's potential exposure to 
tort liability, and potential damage to Lakeview's reputation. 
It was not clearly erroneous or contrary to law for the Board to 
conclude that it was reasonable for a nursing home to require 
that its certified nursing assistants not slap or inappropriately 
touch the residents of the nursing home, and particularly elderly 
residents in wheelchairs. This was neither an isolated 
occurrence nor an accident: plaintiff's conduct was deliberate 
and willful, in conscious contravention of Lakeview's policy 
against inappropriate touching, and caused actual and potential 
harm to Lakeview. The Board's conclusion that plaintiff had 
committed disqualifying misconduct was not clearly erroneous or 
contrary to law. 

The cases plaintiff cited are distinguishable. We have 
already discussed Zuaznabar, 257 Ill. App. 3d at 356-57, in which 
the misconduct consisted of careless and negligent driving. 

In another case cited by plaintiff, Crowley v. Department of 
Employment Security Board of Review, 190 Ill. App. 3d 900, 903-04 
(1989), the alleged misconduct consisted of a bus driver's 
refusal to discuss customer complaints when he was off duty and 
not being paid. The appellate court held that this was not 
misconduct because the bus driver was entitled to be compensated 
for the time he spent off-duty discussing customer complaints, 
and because the bus driver had "a justified, good-faith belief" 
that his employer was violating a statute by not compensating him 
for the off-duty meetings. In the present case, plaintiff 
admitted that her conduct was neither necessary nor appropriate. 
Therefore, she cannot reasonably contend that it was in good 
faith. Even if she did act in good faith, her conduct was not 
justified. The bus driver's conduct was justified because a 
statute required that he be compensated for the time spent in the 
off-duty meetings. 

In Caterpillar, Inc. v. Fehrenbacher, 286 Ill. App. 3d 614, 
622-23 (1997), the alleged misconduct, displaying a pro-union 
sign in a truck, was not work-related because it did not occur at 
the workplace, did not relate to the performance of the 
employee's job, and did not affect the performance of his work. 
Here, plaintiff's conduct in slapping or inappropriately touching 
Johnson's face was work-related because it occurred at the 
workplace and related to plaintiff's performance of her job. We 
have considered, and rejected, plaintiff's arguments and case 
citations. 

For the foregoing reasons, we affirm the judgment of the 
circuit court and hold that plaintiff was not entitled to 
unemployment insurance benefits. 


Affirmed. 


O'BRIEN, P.J., and O'MARA FROSSARD, J., concur.