Q: Can I sue for wrongful termination and/or pain and suffering?

A: Many layers of different Federal and State law here. First, the decision of the ALJ cannot be used to establish liability in a civil action over termination, but because you are Union, you don't have that anyway. Nor is it useful in your grievance, some of the reasoning could help you but the decision itself is not applicable. Next, as a union member, you have your rights only under your CBA or MOU. You said you have a grievance pending, that is your exclusive remedy for a contract violation. The only way around the exclusivity rule is if your termination violated some state or federal law affecting employment- prohibited discrimination, or some other form of prohibited retaliation. You don't get "wrongful termination" because you have a union and they are your exclusive representative. You need to speak with an employee's rights attorney for a proper evaluation because there could be more facts you haven't stated that would affect this opinion, it is not for you to rely on. You need to consult an attorney in your local area that practices this kind of law. Thank you for using Justia Ask a Lawyer.

A: Sorry to hear you lost your job and had to fight the employer over unemployment benefits. You should consult with an Illinois attorney to better understand your options, and make sure you lean on your union to help you. In Illinois, unemployment decisions are not admissible as evidence in court.

See Wittenberg v. Wheels, Inc., 963 F. Supp. 654 (N.D. Ill. 1997)

"...plaintiff argues that, "at the very least, a genuine issue of fact exists as to whether plaintiff was fired for her alleged insubordination or in retaliation for ... seeking vindication of the statutory rights to which she was entitled." (Plaint. Resp., at 10). To support this argument, Wittenberg relies in part on a decision by the Board of Review of the Illinois Department of Employment Security ("IDES") in regard to her claim for benefits. In that decision, the Board of Review concluded that Wittenberg had not been discharged for "misconduct" as that term is defined by § 602 of the Illinois Unemployment Insurance Act, 820 ILCS 405/602. Defendant has moved to strike plaintiff's references to the Board of Review's decision. Because the question of the admissibility of the Board of Review decision may be dispositive of the motion for summary judgment, the court will consider the motion to strike at this juncture.

The decision of the Board of Review is hearsay. It cannot be considered by the court in deciding whether a genuine issue of material fact exists unless it fits under one of the hearsay exceptions set out in Federal Rule of Evidence 803. The only exception found in Rule 803 that is arguably applicable to the Board of Review decision is that which allows courts to receive into evidence "factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness." Fed.R.Evid. 803(8) (C). In this case, several considerations suggest that the Board of Review's decision is not admissible under the hearsay exception of Rule 803(8) (C).

First of all, as defendant points out, claims for benefits under the Illinois Unemployment Insurance Act are considered only in informal administrative proceedings. See 820 ILCS 405/702; 820 ILCS 405/800. Regulations promulgated pursuant to the Act indicate that hearings before IDES referees are not conducted in conformity with the technical rules of evidence. 56 Ill. Admin. Code § 2720.250. This suggests a lack of trustworthiness of the conclusions reached as a result of these proceedings.

Second, § 1900(B) of the Illinois Unemployment Insurance Act expressly provides that decisions of benefits hearings are not admissible in any other action:

No finding, determination, decision, ruling or order (including any finding of fact, statement or conclusion made therein) issued pursuant to this Act shall be admissible or used in evidence in any action other than the one arising out of this Act, nor shall it be binding or conclusive except as provided in this Act, nor shall it constitute res judicata, regardless of whether the actions were between the same or related parties or involved the same facts.

820 ILCS 405/1900(B).

Relying on § 1900(B), another federal court in Illinois has found that the findings of Illinois unemployment compensation proceedings are not admissible in federal civil actions. In Rekhi v. Wildwood Indus., Inc., 816 F. Supp. 1312 (C.D.Ill.1993) (Mihm, C.J.), aff'd, 61 F.3d 1313 (7th Cir.1995), the court considered a defendant's motion to strike a report of the findings of the Department of Employment Services. As with the Board of Review decision in this case, that report dealt with the issue of whether the plaintiff had been terminated for misconduct and was therefore ineligible for unemployment benefits. The court concluded that the report was not admissible and granted the defendant's motion to strike.[5]Id. at 1315...