Scott v. Department of Employment Security

2020 IL App (1st) 192279-U

• Court: Appellate Court of Illinois
• Decided: December 21, 2020
• Docket: 1-19-2279
• Status: Unpublished

Opinion

2020 IL App (1st) 192279-U No. 1-19-2279 December 21, 2020 First Division

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ NACOLE SCOTT, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. ) v. ) ) THE DEPARTMENT OF EMPLOYMENT SECURITY, ) No. 19 L 50510 THE DIRECTOR OF EMPLOYMENT SECURITY, THE ) BOARD OF REVIEW, and ABM INDUSTRY GROUPS, ) LLC c/o EMPLOYERS EDGE ANGIE SAMOY, ) Honorable ) Daniel P. Duffy, Defendants-Appellees. ) Judge, presiding.

PRESIDING JUSTICE WALKER delivered the judgment of the court. Justices Hyman and Pierce concurred in the judgment.

ORDER

¶1 Held: The Board of Review’s denial of unemployment benefits is affirmed where plaintiff did not meet the eligibility requirements because she was not able to work during the benefit period due to a medical restriction.

¶2 Plaintiff Nacole Scott appeals pro se from an order of the circuit court of Cook County

affirming a final administrative decision by defendant, the Board of Review of the Department of No. 1-19-2279

Employment Security (Board). The Board found plaintiff ineligible for unemployment insurance

benefits because she was not able to work due to a medical restriction, and alternatively, she did

not actively seek employment during the benefit period. On appeal, plaintiff challenges the denial

of benefits, contending she was eligible for benefits as a seasonal employee. Plaintiff further argues

she was on medical leave under the Family and Medical Leave Act (FMLA) which prohibits

employers from retaliating against employees for being on medical leave. Plaintiff also argues the

Board erred in finding that she contacted only two prospective employers during the benefit period

where she contacted four. We affirm.

¶3 BACKGROUND

¶4 The record shows plaintiff was employed as a cleaner/housekeeper with ABM Industry

Groups, LLC (ABM) since July 2013. On December 30, 2018, plaintiff applied to the Department

of Employment Security (Department) for unemployment insurance benefits. Plaintiff reported

that her last day worked was November 20, 2018, when she was laid off for lack of work.

¶5 ABM protested plaintiff’s claim for benefits. Madison Apodaca, a claims specialist with

Employers Edge, ABM’s authorized agent, submitted a written response indicating plaintiff’s last

day of work was January 25, 2019. Plaintiff began an unpaid medical leave of absence on January

29, 2019, and was expected to return to work on February 19, 2019. An extension of the leave of

absence required a new doctor’s note. Apodaca questioned whether plaintiff met the eligibility

requirements for unemployment benefits. ABM asked the Department to determine whether

plaintiff was able and available to work, and actively seeking employment, and to issue a decision

regarding her eligibility pursuant to section 500C of the Unemployment Insurance Act (Act) (820

ILCS 405/500C (West 2018)). Attached to the written protest was a physician’s note indicating

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plaintiff was having surgery on January 29, 2019, and she would be “unable to work” from that

date through February 19, 2019.

¶6 On February 25, 2019, the Department sent plaintiff a “Notice of Interview” informing her

there was a question regarding her eligibility for benefits based on whether she was able and

available to work. The Department instructed plaintiff to submit a record of her work search since

January 27, 2019 prior to her interview.

¶7 On March 6, 2019, a Department claims adjudicator conducted an initial telephone

interview with plaintiff to assess her eligibility for benefits. During the interview, plaintiff stated

she worked for AMB from July 2013 until January 22, 2019, and typically worked 40 hours per

week. Plaintiff also stated she was not able or available to work, nor did she actively seek work,

from January 22 to February 25 because she was on a medical leave of absence. Plaintiff had

surgery on January 29 and was released to return to work on February 25. Plaintiff did not return

to work on that date because ABM did not have any openings. Plaintiff returned to work on March

4 when an opening became available. Plaintiff “looked at a few job opportunities” while she was

recovering from surgery. Plaintiff submitted a return to work verification from her doctor dated

February 15 indicating that she could return to work without restrictions on February 25. Plaintiff

also submitted a handwritten list of jobs she searched for from January 7 to February 12. The

adjudicator noted that plaintiff’s eligibility for benefits after February 25 was not reviewed because

plaintiff failed to submit a record of her work search efforts after that date.

¶8 The claims adjudicator issued a written determination finding the evidence showed plaintiff

had a medical restriction. The adjudicator found plaintiff failed to demonstrate she was able to

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work as required by section 500C of the Act. Consequently, plaintiff was ineligible for

unemployment insurance benefits from January 22 through February 25.

¶9 Plaintiff filed a written request for reconsideration of the claims adjudicator’s

determination and an appeal to the Department referee. Plaintiff stated she was able and available

to work January 26 because her surgery was January 29. She had a doctor’s appointment January

22 and was able to return to work the following day. Plaintiff stated she was released from her

doctor’s care and able to return to work on February 15.

¶ 10 After reconsideration, and based on her original findings and reasoning, the claims

adjudicator again concluded plaintiff was ineligible to receive benefits. Plaintiff’s appeal was then

filed with the Department referee for a telephone hearing.

¶ 11 The Department referee, also known as the Administrative Law Judge (ALJ), George

Irizarry conducted a telephone hearing to consider plaintiff’s appeal. Irizarry identified the benefit

period in question as January 22 through February 25, 2019. Plaintiff testified under oath that she

worked full-time the week of January 20 through 26, except for January 22 when she had a doctor’s

appointment. Her last day of work was January 28 and she had surgery on January 29. Plaintiff

testified she was not under a doctor’s care the entire time between January 22 and February 25,

but instead, she had doctor appointments. Plaintiff’s doctor did not restrict her from working for

an extended period but gave her one week of leave with restricted movement. She was able to

return to work on February 19. ABM did not offer her light duty work following her surgery.

¶ 12 Plaintiff also testified the hospital gave her a doctor’s note releasing her to return to work

without restrictions on February 15. Plaintiff hand-delivered the note to an unidentified secretary

in the ABM office. Plaintiff was able to work the week of February 17 through 23. She returned

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to work at ABM on February 25. Plaintiff was a “floater” at ABM and her work schedule varied

depending on whether work was available. Irizarry noted that plaintiff’s record of her work search

indicated that she made two contacts each day on January 22 and 23, but she did not indicate what

type of work she was searching for or the results of those contacts. Plaintiff testified she was always

looking for a better job. Plaintiff applied for unemployment because she had no benefits or sick

leave at ABM.

¶ 13 Reyna Ceja, vice president of human resources at ABM, testified that plaintiff’s last day of

work was January 25. Plaintiff did not provide ABM with a medical release that allowed her to

return to work on February 15. ABM received a doctor’s note dated February 15 stating that

plaintiff underwent a post-surgery evaluation that day, and she could return to work on February

25, which she did.

¶ 14 In her closing, plaintiff stated she had been searching for a new job because she did not

have insurance or sick leave at ABM. ABM initially told plaintiff that she was not eligible for

medical leave but approved her leave on January 25 after she fought for it. Plaintiff assumed ABM

would give her assistance for sick leave after they approved her leave under the FMLA. Plaintiff’s

“only purpose” for applying for unemployment was to pay her bills while she was on sick leave

for three weeks. Plaintiff stated “I’m not mad about any of it because I know from the 29th through

the 2nd…and if it goes to the 9th of February, the unemployment, I could not work. But anything

beyond those days, I was eligible to work if I hadn’t worked.”

¶ 15 Melissa Hill, a hearing representative with Employers Edge, argued in closing that plaintiff

was under a medical restriction, and according to her doctor’s notes, was unable to work from

January 29 to February 19. Work was available had plaintiff been able to work.

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¶ 16 ALJ Irizarry issued a written decision affirming the claims adjudicator’s determination

finding plaintiff not eligible for unemployment benefits. In his factual findings, Irizarry stated that

plaintiff’s last day worked was January 25, she had surgery on January 29, and thereafter she was

under her doctor’s care with medical restrictions that prevented her from seeking full-time

employment. Irizarry further found plaintiff was released to return to work on February 19 and

returned on February 25. Irizarry pointed out that plaintiff filed a work search record listing only

two prospective employers for January 22 and 23, which was part of the period under review.

Irizarry concluded that plaintiff did not meet the requirements of section 500C of the Act which

provides that an employee must be able to work and available for work during the benefit period

in question, and must contact several prospective employers each week looking for full-time work

without undue restrictions. Accordingly, plaintiff was not eligible to receive unemployment

benefits from January 22 through February 25.

¶ 17 Plaintiff appealed Irizarry’s decision to the Board with a short written argument. She

attached two return to work verification notes signed by doctors. The first was the original note

dated February 15 which stated she was having surgery on January 29 and unable to work from

that date until February 19. The second note was dated May 10, 2019, and provided she was unable

to work from January 29 to February 15 and could return to work February 16 with no restrictions.

Plaintiff also attached the handwritten list of her job search record.

¶ 18 The Board reviewed the record, including the transcript from the telephone hearing. It did

not consider plaintiff’s written argument submitted with her appeal because she did not certify in

writing that she had served it upon ABM as required by the Department’s regulations. The Board

found the record adequately set forth the evidence, and no further evidentiary proceedings were

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necessary. In its factual findings, the Board stated that plaintiff worked during the first week under

review, except for one day when she had a medical appointment. The following week, plaintiff

had surgery. Medical notes in the record stated plaintiff was ordered off work until February 19.

Another note stated plaintiff was released to return to work on February 25, and she returned to

ABM on that date. The Board further found plaintiff’s work search record showed that she made

three contacts during the five-week period under review. The Board pointed out that plaintiff had

told the claims adjudicator during her initial interview that she was medically unable to work

during the period under review and was released to return to work on February 25. Based on this

evidence, the Board found plaintiff had worked during the first week of the benefit period and was

not medically able to work during the remainder of the period. It further found plaintiff did not

actively seek work during the period because she contacted an insufficient number of prospective

employers. The Board concluded that pursuant to section 500C of the Act, as well as the

Department’s regulations, plaintiff was not eligible for benefits from January 22 through February

25 and affirmed the ALJ’s decision.

¶ 19 Plaintiff appealed the Board’s ruling to the circuit court of Cook County. The court held a

hearing and affirmed the Board’s decision denying plaintiff unemployment insurance benefits.

Plaintiff now appeals.

¶ 20 ANALYSIS

¶ 21 Plaintiff contends the Board erred when it did not consider that she was a seasonal

employee who was eligible for benefits because she could take off work during the period when

the season was slow. She further contends the Board did not recognize that she was on medical

leave under the FMLA which prohibits employers from retaliating against employees for being on

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medical leave. In addition, plaintiff argues the Board erred in finding that she contacted only two

prospective employers during the benefit period where she contacted four.

¶ 22 Defendants respond that plaintiff’s claim that she was a seasonal employee is forfeited

because she did not raise that argument before the Department. Defendants further argue that the

Board’s determination that plaintiff was not eligible for unemployment benefits was not clearly

erroneous. Defendants contend that the Board correctly found that plaintiff was not able to work

because she was on medical leave and restricted from returning to work until February 25.

Defendants assert that because plaintiff was medically not able to work, this court need not

consider the Board’s alternative finding that she was not actively seeking employment during the

benefit period. Nevertheless, defendants alternatively argue the Board correctly found that plaintiff

was not actively seeking work where she sought five positions on three days during the five-week

benefit period, and the work search record she submitted was woefully inadequate.

¶ 23 Initially, we point out that issues or arguments not presented at an administrative hearing

are forfeited and cannot be raised for the first time on administrative review. 735 ILCS 5/3-110

(West 2018); Carpetland U.S.A., Inc. v. Illinois Department of Employment Security, 201 Ill. 2d

351, 396-97 (2002). This court’s review is confined to the issues, arguments and evidence

presented before the Board. Texaco-Cities Service Pipeline Co. v. McGaw, 182 Ill. 2d 262, 278-

79 (1998).

¶ 24 Here, the record shows plaintiff never argued before the ALJ or the Board that she was

eligible for benefits as a seasonal employee. Nor did plaintiff raise any issue regarding a possible

violation of the FMLA or acts of retaliation by her employer. Accordingly, plaintiff has forfeited

these arguments and we decline to consider them on appeal. See Texaco-Cities, 182 Ill. 2d at 278.

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¶ 25 Plaintiff is challenging the denial of unemployment benefits. This court reviews the final

decision of the Board rather than that of the ALJ or the circuit court. Petrovic v. Department of

Employment Security, 2016 IL 118562, ¶ 22. The Board’s factual findings are considered prima

facie true and correct, and will not be disturbed unless they are against the manifest weight of the

evidence. 520 South Michigan Avenue Associates v. Department of Employment Security, 404 Ill.

App. 3d 304, 312 (2010). Under this standard, the Board’s factual findings “must stand unless ‘the

opposite conclusion is clearly evident.’ ” Id. at 313 (quoting City of Belvidere v. Illinois State

Labor Relations Board, 181 Ill. 2d 191, 204 (1998)). Where the record contains any evidence that

supports the Board’s factual findings, they are not against the manifest weight of the evidence and

must be sustained. Woods v. Illinois Department of Employment Security, 2012 IL App (1st)

101639, ¶ 16.

¶ 26 It is the Board’s responsibility to weigh the evidence, determine the credibility of the

witnesses, and resolve conflicts in the testimony. Hurst v. Department of Employment Security,

393 Ill. App. 3d 323, 329 (2009). If the issue on review merely involves conflicting testimony and

witness credibility, the Board’s determination should be sustained. Id. at 318.

¶ 27 Here, the Board found that plaintiff was not eligible for benefits because she was not able

to work and did not actively seek work during the benefit period. Whether the facts satisfy the

statutory standard is a mixed question of fact and law that is reviewed under the clearly erroneous

standard. Leach v. Department of Employment Security, 2020 IL App (1st) 190299, ¶ 22. The

Board’s decision is clearly erroneous where the court reviews the record and definitively concludes

that a mistake has been made. Petrovic, 2016 IL 118562, ¶ 21.

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¶ 28 The purpose of the Act is to provide economic relief to persons who involuntarily become

unemployed. Petrovic, 2016 IL 118562, ¶ 23 (citing 820 ILCS 405/100 (West 2018)). To receive

unemployment benefits, a plaintiff must prove she satisfies the eligibility requirements under the

Act. Lojek v. Department of Employment Security, 2013 IL App (1st) 120679, ¶ 34. Section 500C

of the Act provides, in relevant part, that an unemployed individual is eligible to receive benefits

only if she “is able to work, and is available for work; provided that during the period in question

[s]he was actively seeking work and [s]he has certified such.” 820 ILCS 405/500C (West 2018).

The requirement of being “able to work” is defined in the Department’s regulations which provide

that “[a]n individual is able to work when he is physically and mentally capable of performing

work for which he is otherwise qualified.” 56 Ill. Adm. Code 2865.105(a) (2018). The regulation

further provides that when determining whether a person is able to work, “[t]he focus is upon the

individual’s condition, the employer’s willingness to hire him is not relevant.” 56 Ill. Adm. Code

2865.105(b) (2018).

¶ 29 Here, the record shows that the Board’s factual finding that plaintiff was not able to work

during the benefit period due to a medical restriction was not against the manifest weight of the

evidence. Plaintiff testified at the telephone hearing that she worked full-time the week of January

20 through 26, except for January 22 when she had a doctor’s appointment. Her last day of work

was January 28 and she had surgery on January 29. Ceja testified at the hearing that plaintiff’s last

day of work prior to her medical leave was January 25. The record contains two return to work

verifications from plaintiff’s doctors. The first verification, dated January 15, indicated plaintiff

was having surgery on January 29 and was “unable to work” from that date through February 19.

The second verification, dated February 15, indicated plaintiff underwent a post-surgery evaluation

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that day and could return to work on February 25 without restrictions. Ceja testified that plaintiff

returned to work on February 25. In its findings, the Board pointed out that plaintiff had told the

claims adjudicator during her initial interview that she was medically unable to work during the

period under review and was released to return to work on February 25. The Board found the

evidence showed that plaintiff worked during the first week of the benefit period and was not

medically able to work during the remainder of the period. Our review of the record reveals that

the Board’s finding that plaintiff was unable to work due to a medical restriction was not against

the manifest weight of the evidence. Woods, 2012 IL App (1st) 101639, ¶ 16.

¶ 30 Because plaintiff was medically unable to work during the benefit period, she did not

satisfy the eligibility requirements to receive benefits pursuant to section 500C of the Act. 820

ILCS 405/500C (West 2018). Hence, whether plaintiff conducted a sufficient search for work

during the benefit period is irrelevant, and we need not consider the Board’s alternative finding

that she did not actively seek employment.

¶ 31 The record thus shows that plaintiff failed to meet her burden of proving her eligibility for

benefits under the Act. Lojek, 2013 IL App (1st) 120679, ¶ 34. Based on the record, we find that

the Board’s determination that plaintiff was not eligible for unemployment benefits because she

was not able to work was not clearly erroneous. Leach, 2020 IL App (1st) 190299, ¶ 22.

¶ 32 CONCLUSION

¶ 33 For these reasons, we confirm the final administrative decision of the Board of Review,

and affirm the judgment of the circuit court.

¶ 34 Affirmed.

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