Craig v. Department of Employment Security

2022 IL App (1st) 210475

• Court: Appellate Court of Illinois
• Decided: June 29, 2022
• Docket: 1-21-0475
• Status: Published

Opinion

2022 IL App (1st) 210475 No. 1-21-0475 and 1-21-0504 (cons.) Opinion filed June 29, 2022

THIRD DIVISION

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT

CALVIN CRAIG, ) Appeal from the Circuit Court ) of Cook County. ) Plaintiff-Appellee, ) ) v. ) No. 2020-L-050083 ) THE DEPARTMENT OF EMPLOYMENT ) The Honorable SECURITY, THE DIRECTOR OF ) Daniel P. Duffy, EMPLOYMENT SECURITY, THE BOARD ) Judge, presiding. OF REVIEW OF THE DEPARTMENT OF ) EMPLOYMENT SECURITY, and UNITED ) AIRLINES, INC., c/o UC Advantage Gracie ) Alexander, ) ) Defendants-Appellants. )

PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justices McBride and Burke concurred in the judgment and opinion.

OPINION

¶1 Plaintiff, Calvin Craig, filed for unemployment benefits, pursuant to the Unemployment

Insurance Act (Act) (820 ILCS 405/100 et seq. (West 2020)), with defendant, the Illinois

Department of Employment Security (IDES), after termination of his employment by

defendant United Airlines, Inc. (United). United filed a protest, claiming that plaintiff was

ineligible for benefits because he had been terminated due to misconduct under section 602A

of the Act (820 ILCS 405/602A (West 2020) (Section 602A)). IDES denied plaintiff’s No. 1-21-0475

application for benefits. Plaintiff appealed the decision. After a hearing by a referee over the

phone, the referee affirmed the decision of the claims adjudicator. Plaintiff appealed the

decision to the IDES Board of Review (Board), which affirmed the decision to deny him

benefits. Plaintiff then filed a complaint for administrative review with the Circuit Court of

Cook County. The trial court reversed the administrative decision and found that United did

not satisfy the elements necessary to establish that the conduct of plaintiff that led to his

termination constituted misconduct as defined in the Act. Thus, the Board’s decision to deny

plaintiff’s application for unemployment benefits was in error. 820 ILCS 405/602A (West

2020).

¶2 On this direct appeal, both defendants claim that the Board’s decision was not clearly

erroneous because plaintiff’s conduct, for which his employment was terminated, constituted

misconduct under Section 602A.

¶3 We agree and reverse the decision of the circuit court of Cook County.

¶4 BACKGROUND

¶5 Since there is no set of facts alleged by the pro se plaintiff in his brief, we will recount the

facts relevant to this appeal according to the trial court’s summary of facts, which plaintiff has

recited in adopting the trial court’s order as his appellant brief. Where the trial court’s summary

is insufficient or incomplete, we will indicate from where we have found the facts that we have

generated.

¶6 On July 25, 2019, 1 plaintiff tripped on the sidewalk outside Terminal 5 at O’Hare

International Airport and fell, injuring himself, while performing his duties as a lead branch

serviceman with United. Because he was injured in the fall and requested medical attention,

1 This date is given in the Board’s written administrative decision. 2 No. 1-21-0475

United’s policies subjected the plaintiff to a drug test. Five days later, United informed plaintiff

that his drug test showed a positive result for cocaine in his blood. An “investigatory review

meeting” was conducted on August 27, 2019, at which plaintiff’s union representative

presented logs of plaintiff’s attendance at a substance abuse center and multi-panel drug test

results over a period of several dates, demonstrating that plaintiff maintained a drug-free state

over a period of time after the accident and before the investigatory review meeting. 2

¶7 On September 9, 2019, after 20 years with United, plaintiff was terminated in a letter citing

violation of United’s “Working Together Guidelines.” According to the letter, those guidelines

“insist on” a drug-free workplace. The letter further stated that plaintiff “failed to be a

responsible corporate citizen and abide by all state, federal, and local laws.” Plaintiff’s last day

of work was July 25, 2019, when he claimed he tripped. 3

¶8 Plaintiff applied for unemployment benefits with IDES September 8, 2019. 4 In the process

of applying for unemployment benefits, plaintiff filled out a “Misconduct Questionnaire” to

provide details on the reason for his discharge from employment. On the questionnaire,

plaintiff answered the question, “What reason were you given for the discharge?” with “[D]id

not comply with company policies.” Plaintiff answered the question: “Was there a company

policy or rule concerning the last act/circumstance that caused your discharge?” with “Yes.”

Plaintiff answered the question, “What was the policy/rule or expected conduct/performance?”

with “felled [sic] drug test.” Plaintiff answered the question “Were you aware that you could

be discharged for not complying with the rule or policy?” with “Yes.” According to the claim

adjudication summary for plaintiff’s case, his claim was denied September 26, 2019.

2 According to the termination letter plaintiff would subsequently receive on September 8, 2019. 3 According to the Notice of Claim to Benefit Chargeable to Employer received by United. 4 According to the Notice of Claim to Benefit Chargeable to Employer received by United. 3 No. 1-21-0475

¶9 Plaintiff appealed the decision and subsequently participated in an unemployment hearing

by telephone with an administrative law judge (referred to as a referee) and representatives of

United on October 18, 2019. 5 During the hearing, the referee established, by questioning

plaintiff’s supervisor, that United had a zero-tolerance drug policy, which was conveyed to

employees during yearly training. The policy required drug testing based on reasonable

suspicion (such as via visible impairment) or after any injury. A positive test would result in

an employee’s removal from service, pending an investigatory meeting, at which point

termination might occur. The referee inquired of plaintiff’s supervisor whether a violation of

the policy was a safety issue that harmed United. The supervisor confirmed that statement,

adding that plaintiff’s job is dangerous and safety-sensitive. The referee’s written decision

affirmed the adjudicator’s decision that plaintiff’s actions constituted misconduct, and he was

therefore not eligible for unemployment benefits.

¶ 10 According to a Notice of Pending Appeal, plaintiff appealed the referee’s decision to the

Board on October 25, 2019. The Board reviewed the evidence without any further hearings

and affirmed the referee’s decision. In explaining how the requisite elements to establish

misconduct are satisfied by the facts of this case, the Board stated as follows:

“The claimant was discharged after he tested positive for cocaine during a post-injury

drug test, which was issued pursuant to the employer’s policy. The claimant admitted

that he had used cocaine shortly before submitting to the test. In testing positive for

cocaine or in having cocaine in his system in the workplace, the claimant violated the

employer’s reasonable rules or policies. This violation was within the claimant’s ability

to control or avoid. Such conduct harms the employer’s interest in safety and in

5 According to the transcript of the unemployment hearing. 4 No. 1-21-0475

maintaining a drug-free workplace. The claimant’s decision to use cocaine was a

‘deliberate’ and ‘willful’ violation of the employer’s policy so that it can be concluded

that the claimant was discharged for ‘misconduct connected with’ the work as that term

has been used in section 602A of the Act.”

¶ 11 Plaintiff filed a pro se complaint for administrative review with the circuit court of Cook

County on February 4, 2020. On April 9, 2021, the trial court entered an order reversing the

administrative decision. The trial court found that the Board’s finding that plaintiff violated a

reasonable rule of his employer was without foundation in the record because United failed to

meet its burden of production by failing to produce the rule or policy that plaintiff violated.

The trial court further found that even if the Board had had an adequate foundation for its

finding that a reasonable rule had been violated, the Board’s findings of harm were in error.

The trial court found that the Board’s finding of harm to United’s interest in safety was

“speculative and without evidentiary support” and that the Board’s finding of harm to United’s

interest in a drug-free workplace allowed harm to be established merely by showing violation

of its drug policy, which, if accepted, would circumvent the requirement of showing harm

altogether.

¶ 12 Defendant IDES filed a notice of appeal on April 27, 2021 and United filed a separate

notice of appeal on May 3, 2021. This timely appeal followed.

¶ 13 ANALYSIS

¶ 14 I. Standard of Review

¶ 15 In an administrative review proceeding, this court reviews the Board’s decision, not the

trial court’s decision. Livingston v. Department of Employment Security, 375 Ill. App. 3d 710,

714 (2007). The Board is the trier of fact, and its “purely factual findings are ‘prima facie true

5 No. 1-21-0475

and correct.’ ” Livingston, 375 Ill. App. 3d at 714 (quoting Horton v. Department of

Employment Security, 335 Ill. App. 3d 537, 540 (2002), and citing 735 ILCS 5/3-110 (West

2004), and 820 ILCS 405/1100 (West 2004)). A court conducting administrative review will

not reweigh the evidence or substitute its judgment for that of the administrative agency.

Horton, 335 Ill. App. 3d at 540.

¶ 16 “The question of whether an employee was properly terminated for misconduct in

connection with his work involves a mixed question of law and fact, to which we apply the

clearly erroneous standard of review.” Hurst v. Department of Employment Security, 393 Ill.

App. 3d 323, 327 (2009). The Board’s decision will be found “clearly erroneous” only where

the reviewing court, on the entire record, is “ ‘left with the definite and firm conviction that a

mistake has been committed.’ ” (Internal quotation marks omitted.) Horton, 335 Ill. App. 3d

at 540-41 (quoting AFM Messenger Service, Inc. v. Department of Employment Security, 198

Ill. 2d 380, 395 (2001)).

¶ 17 II. The Board’s Finding of Misconduct

¶ 18 In the case at bar, the question before the agency, which we review, was not whether

plaintiff’s discharge was legal or reasonable, nor whether plaintiff’s actions were reasonable

or advisable, it was whether plaintiff was rendered ineligible for unemployment benefits

because the conduct for which plaintiff was discharged from employment with United

constitute misconduct as defined in Section 602A. Petrovic v. Department of Employment

Security, 2016 IL 118562, ¶ 25. Only the question of misconduct is before this court in this

appeal.

¶ 19 The purpose of the Act is to relieve the economic insecurity and hardship caused by an

involuntary loss of employment. 820 ILCS 405/100 (West 2020). The Act was enacted to

6 No. 1-21-0475

benefit persons who become unemployed through no fault of their own. Messer & Stilp, Ltd.

v. Department of Employment Security, 392 Ill. App. 3d 849, 856 (2009). The Act is to be

liberally construed to favor the awarding of benefits to accomplish its primary purpose of

alleviating economic distress caused by involuntary unemployment. Acevedo v. Department of

Employment Security, 324 Ill. App. 3d 768, 771 (2001). Receipt of unemployment benefits is

conditioned on eligibility under the Act, and plaintiff has the burden of proving that he satisfies

the eligibility requirements. Childress v. Department of Employment Security, 405 Ill. App. 3d

939, 943 (2010).

¶ 20 Under section 602, a discharged employee is ineligible for unemployment benefits if that

employee was discharged for misconduct. Misconduct is defined as:

“[T]he 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 405/602A (West 2020).

¶ 21 To establish misconduct, three elements must be shown: (1) a deliberate and willful

violation occurred, (2) the violation was of a reasonable rule or policy of the employing unit,

governing the individual’s behavior in the performance of his work, and (3) the employing unit

was harmed or that the violation was repeated, despite a warning or other explicit instruction.

Garner v. Department of Employment Security, 269 Ill. App. 3d 370, 374 (1995). All three

elements must be shown to establish misconduct. Plaintiff does not dispute that the violation

was willful and deliberate, so we address only the second and third elements.

¶ 22 A. The Commonsense Exception

7 No. 1-21-0475

¶ 23 Prior to Petrovic, there existed a robust commonsense exception, allowing for a finding

of misconduct without establishing the formal elements of misconduct, but only in the case

of “acts of misconduct that are so serious and so commonly accepted as wrong that

employers need not have rules covering them.” (Internal quotation marks omitted.) Petrovic,

2016 IL 118562 ¶ 35. Petrovic abrogated this exception except in instances “where the

employee’s conduct would otherwise be illegal or constitute a prima facie intentional tort.”

Petrovic, 2016 IL 118562 ¶ 36. In the case at bar, neither the State nor United claim that

plaintiff’s behavior was a prima facie tort, but United asserts that the behavior was illegal

and a violation of their company policy. Plaintiff does not dispute that using cocaine was

illegal and a violation of the company policy. That act was outside of the workplace;

however, United correctly cites Eastham v. Housing Authority, 2014 IL App (5th) 130209,

¶ 18, for the proposition that behavior outside the workplace can represent misconduct if

there is sufficient nexus between that behavior and the workplace. United further cites to

McAllister v. Board of Review of the Department of Employment Security, 263 Ill. App. 3d

207 (1994), which is factually similar to the case at bar. In McAllister, the terminated

employee was found to be ineligible for unemployment benefits after he had used cocaine

outside of the workplace and subsequently tested positive for cocaine during work hours in a

safety-sensitive position. McAllister, 263 Ill. App. 3d at 213. While Eastham did not find that

drug use outside the workplace always represented an activity with sufficient nexus with the

workplace, it noted in McAllister that there is a sufficient nexus existing between a safety-

sensitive job and drug use outside the workplace. Eastham, 2014 IL App 5th 130209 ¶ 23.

Similarly, in the case at bar, plaintiff engaged in illegal activity with sufficient nexus with his

workplace and thus engaged in misconduct. Petrovic, 2016 IL 118562 ¶ 36. The plaintiff

8 No. 1-21-0475

stated in the questionnaire that he did not comply with company policy, which demonstrates

that he knew that the use of cocaine violated his company policy of zero tolerance. The

plaintiff was asked in the questionnaire, “[W]as there a company policy or rule concerning

the last act/circumstance that caused your discharge [?]” He answered, “yes,” again showing

that he had full knowledge that he violated the zero-tolerance drug policy of United. The

plaintiff was further asked, “[W]ere you aware that you could be discharged for not

complying with the rule or policy?” The plaintiff answered, “yes,” again showing that he was

aware that the use of the cocaine could result in his discharge. Further, the plaintiff admitted

to using cocaine shortly before submitting to the drug test in which he tested positive for

cocaine. We cannot say that the Board’s decision that plaintiff was ineligible for

unemployment benefits for conduct constituting misconduct under Section 602A of the Act

was made in error. Thus, we affirm the Board’s decision and reverse the decision of the

circuit court of Cook County.

¶ 24 CONCLUSION

¶ 25 The evidence in the case at bar showed that plaintiff engaged in illegal activity by using

cocaine outside of his place of employment, which has a sufficient nexus between that behavior

and the workplace, as he had a safety-sensitive job working on airplanes. We conclude that the

Board was not in error when it decided that plaintiff was ineligible for unemployment benefits

because plaintiff was terminated for conduct constituting misconduct under Section 602A of

the Act. Accordingly, we affirm the Board’s decision and reverse the decision of the circuit

court of Cook County.

¶ 26 Affirmed.

9 No. 1-21-0475

2022 IL App (1st) 210475

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 2020-L- 050083; the Hon. Daniel P. Duffy, Judge, presiding.

Attorneys Rachel S. Nevarez, Kelly N. Flavin, and Richard J. Leamy Jr., of for Weidner & McAuliffe, Ltd., of Chicago, for appellant United Appellant: Airlines, Inc.

Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz, Solicitor General, and Maura Forde O’Meara, Assistant Attorney General, of counsel), for other appellants.

Attorneys Calvin Craig, of Country Club Hills, appellee pro se. for Appellee: