Farris v. The Department of Employment Security , 2014 IL App (4th) 130391 ( 2014 )

Illinois Official Reports
Appellate Court
Farris v. Department of Employment Security, 2014 IL App (4th) 130391
Appellate Court DONALD FARRIS, Plaintiff-Appellee, v. THE DEPARTMENT OF
Caption EMPLOYMENT SECURITY, an Administrative Agency in the State
of Illinois; THE DIRECTOR OF EMPLOYMENT SECURITY; and
THE BOARD OF REVIEW, an Administrative Agency of the State of
Illinois, Defendants-Appellants, and STROUT CROSSING, LLC,
Defendant.
District & No. Fourth District
Docket No. 4-13-0391
Filed March 11, 2014
Held The appellate court had jurisdiction to consider the Department of
(Note: This syllabus Employment Security’s appeal from the trial court’s reversal of the
constitutes no part of the Board of Review’s decision that plaintiff was not entitled to
opinion of the court but unemployment benefits because he was discharged for employment-
has been prepared by the related misconduct based on his violation of a biosecurity policy at the
Reporter of Decisions pig-breeding facility where he worked, even though plaintiff’s
for the convenience of employer did not participate in the trial court proceedings, since the
the reader.) Department is responsible for defending the Board’s decisions and
protecting against erroneous payouts from the unemployment fund,
and in plaintiff’s case, the fact that plaintiff’s employer was not
harmed by plaintiff’s violation of the biosecurity policy was due to the
fortuitous intervention of a supervisor who refused to allow plaintiff to
return to a “clean” area of the facility with contaminated clothing and
did not prevent the violation from being deemed misconduct under
section 602(A) of the Unemployment Insurance Act.
Decision Under Appeal from the Circuit Court of Greene County, No. 11-MR-40; the
Review Hon. James W. Day, Judge, presiding.
Judgment Circuit court reversed; Board confirmed.
Counsel on Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
Appeal Solicitor General, and John P. Schmidt, Assistant Attorney General, of
counsel), for appellants.
Richard N. Gillingham, of Carrollton, for appellee.
Panel JUSTICE STEIGMANN delivered the judgment of the court, with
opinion.
Justices Knecht and Turner concurred in the judgment and opinion.
OPINION
¶1 In January 2011, plaintiff, Donald Farris, was fired from his employment at a pig-breeding
facility owned by Strout Crossing, LLC (Strout), and operated by Pike Pig Systems, Inc.
(Pike), for violating a biosecurity policy designed to avoid bacterial contaminants from
entering the breeding facility and infecting the pigs. Plaintiff applied to the Department of
Employment Security (Department) for unemployment benefits. Strout objected on the ground
that plaintiff was discharged due to employment-related misconduct, rendering him ineligible
for unemployment benefits under section 602(A) of the Unemployment Insurance Act (820
ILCS 405/602(A) (West 2012)). A claims adjudicator agreed with Strout. Plaintiff appealed
the claims adjudicator’s decision to a Department referee who, following a hearing,
determined that plaintiff was eligible for unemployment benefits because his actions did not
constitute misconduct within the meaning of section 602(A) of the Act. Strout appealed the
referee’s decision to the Board of Review (Board), which reversed the referee’s decision and
found plaintiff ineligible for unemployment benefits. Plaintiff then filed a complaint for
administrative review in the circuit court, arguing that he was not guilty of employment-related
misconduct because his violation of the biosecurity policy did not result in harm to Strout. The
circuit court agreed and reversed the Board’s decision.
¶2 The Department, its Director, and the Board appeal from the circuit court’s decision,
arguing that plaintiff’s actions constituted misconduct within the meaning of section 602(A) of
the Act, even though those actions did not result in actual harm. We agree and reverse.
¶3 I. BACKGROUND
¶4 The following facts were gleaned from the record of administrative proceedings before the
Department’s local-office claims adjudicator, the Department referee, and the Board, as well
as the circuit court record. From December 2005 until January 2011, plaintiff worked as a
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farmhand in the breeding barn of Strout’s pork production facility. After his discharge in
January 2011, plaintiff applied to the Department for unemployment benefits.
¶5 A. Proceedings Before the Claims Adjudicator
¶6 Strout filed an objection to plaintiff’s claim with the claims adjudicator of the
Department’s local office on the ground that plaintiff was ineligible for unemployment
benefits under section 602(A) of the Act because he was discharged due to
employment-related misconduct.
¶7 Strout submitted a written statement of its biosecurity procedures, as contained in the
employee handbook, to the claims adjudicator. The handbook described biosecurity as “of the
upmost [sic] importance” to the company. The biosecurity policy designated the area of the
farm facility where the pigs were located as the “clean” area, and the other parts of the facility
as the “dirty” area. When employees who worked in the clean area arrived at work, they were
required to remove their clothing in the dirty area, take a shower, walk through the shower area
into the clean area, and put on clean clothes supplied by the farm. When leaving the clean area,
workers were required to remove their farm clothes, leave them behind in the clean area and
“shower through” to the dirty area, where they could put on their own clothes and leave at the
end of their shifts. According to the employee handbook, these showering procedures were
“the core of the personal biosecurity program” and necessary to prevent the spread of diseases,
which can be easily carried on shoes, clothing, fingernails, hair, and jewelry.
¶8 According to Strout’s written statement regarding the circumstances of plaintiff’s
termination on January 15, 2011, plaintiff’s supervisor, David Bishop of Pike, received a
phone call from a Pike supervisor asserting that he could not locate plaintiff and suggesting
that he might be sleeping in a bathroom in the dirty area of the facility. Bishop went to the farm
facility and heard what he perceived to be snoring coming from a bathroom in the dirty area.
Bishop knocked several times, and eventually heard a voice from inside say, “I’m taking a
crap.” The toilet then flushed and plaintiff exited the bathroom while still wearing his farm
clothes, which had been soiled with pig manure from activity inside the clean area. Bishop then
fired plaintiff for violating the farm’s biosecurity procedures.
¶9 In a misconduct questionnaire submitted to the claims adjudicator, plaintiff claimed that he
did not know about the biosecurity procedures that he violated. He further claimed that he
would have showered before returning to the clean area, but Bishop fired him before he had a
chance to do so.
¶ 10 The claims adjudicator determined that plaintiff was ineligible for unemployment benefits
under section 602(A) of the Act because he was discharged for misconduct connected with his
job. The claims adjudicator reasoned that plaintiff violated one of Strout’s known and
reasonable company rules.
¶ 11 B. Proceedings Before the Referee
¶ 12 Plaintiff appealed the claims adjudicator’s decision to a Department referee. In March
2011, the referee held a hearing over the telephone, in which plaintiff and Bishop participated
remotely via conference call. Bishop testified that plaintiff had been trained in the biosecurity
procedures, which were written in an employee handbook. The handbook stated that a gross or
intentional violation of the biosecurity procedures was grounds for immediate termination.
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¶ 13 According to Bishop, plaintiff was scheduled to work from 6 a.m. to 2:30 p.m. on January
15, 2011. Before Bishop arrived at the farm facility that morning, he received a phone call from
a supervisor who told him that he could not find plaintiff. After his arrival at approximately
7:40 a.m., Bishop heard noise coming from a bathroom. That bathroom was in the dirty area of
the farm, and it was often used by employees who did not work in the clean area. The clean
area contained two bathrooms. After Bishop knocked on the bathroom door, plaintiff
eventually emerged dressed in farm clothing containing pig-manure stains. Plaintiff told
Bishop that he had to use the bathroom. When Bishop asked plaintiff if he knew about the
biosecurity procedures, plaintiff said “yes” but stated that other people needed to be fired for
biosecurity violations as well. Bishop instructed plaintiff to remove his farm clothing and leave
it behind. Bishop testified that plaintiff’s violation of the biosecurity procedures did not cause
any harm because Bishop discovered plaintiff before he could reenter the clean area. Bishop
asserted that had plaintiff reentered the clean area, such an event could have cost the company
over $40,000 in extra pig vaccines.
¶ 14 Plaintiff testified that he used the bathroom in the dirty area because one of the bathrooms
in the clean area was occupied and the other one was unsanitary. Plaintiff admitted that he wore
his farm clothes into the dirty area and that Bishop told him he was being discharged for
violating biosecurity procedures. Plaintiff asserted that he had never received any warnings
regarding the biosecurity procedures, nor did he remember signing a paper containing those
procedures when he began his employment.
¶ 15 During the hearing, Bishop asked plaintiff how he intended to get the soiled farm clothes
he was wearing–which were supposed to always remain in the clean area–back into the clean
area where the washing machines were located. Plaintiff replied that he could have taken the
soiled clothes off, had another employee come from the clean area to retrieve them, and then
shower through to the clean area. Plaintiff seemed to assert that no biosecurity breach would
occur as long as the soiled clothes did not touch the ground. Bishop then asked plaintiff
whether the employee who came to retrieve the soiled clothes would have been guilty of a
biosecurity breach, to which plaintiff replied, “No, no, because people bring in their lunch
boxes every day past that and set them on the inside [of the clean area], that’s a breach of
biosecurity, every day, everybody who does that. So it wouldn’t make no difference if I did
that because anybody brings their lunch in is doing that.”
¶ 16 Several days after the hearing, the referee issued a decision in which he concluded, as
follows:
“Here, [plaintiff] normally had used the outside restrooms after being inside the barrier
and without showering first to do so. He received no warnings for doing so. He
received no clear direction regarding the bio-hazard policy as it related to showering
other than he knew he was to shower upon coming to work. On these facts the
employer condoned [plaintiff’s] behavior regarding the bio-hazard policy.
*** Even had the employer not condoned [plaintiff’s] behavior, his absence of a
clear understanding of what the employer expected in regard to the bio-hazard policy
rendered his behavior on January 15, 2011, to be if anything [an] inadvertent and
negligent violation of the bio-hazard procedure rather than deliberate and willful. There
was no misconduct within the meaning of [s]ection 602A of the [Act].”
The referee set aside the claim adjudicator’s determination and found plaintiff eligible for
unemployment benefits.
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¶ 17 C. The Board’s Decision
¶ 18 Strout appealed the referee’s decision to the Board. In May 2011, after reviewing the
record of the hearing before the referee, the Board released a decision stating it found
plaintiff’s claim that he had never been informed of the biosecurity procedures incredible. The
Board concluded that plaintiff was not entitled to unemployment benefits because his actions
were “deliberate and willful,” rising to an “intentional violation of the employer’s rules,” and
constituting misconduct within the meaning of section 602(A) of the Act.
¶ 19 D. The Circuit Court’s Decision on Administrative Review
¶ 20 Later in May 2011, in an apparent attempt to initiate administrative review of the Board’s
decision, plaintiff filed with the circuit court copies of the referee’s decision, the Board’s
decision, and an application to sue in forma pauperis. The court, noting in a docket entry that
“[t]his type of proceeding is far too complicated for [plaintiff] to try to do *** on his own,”
appointed an attorney to represent plaintiff pro bono. Through his attorney, plaintiff filed a
formal complaint for administrative review, naming the Department, its Director, the Board,
and Strout as defendants. The Attorney General entered its appearance on behalf of the
Department, its Director, and the Board. Strout did not enter an appearance or otherwise
participate at the circuit court level.
¶ 21 In a brief to the circuit court, plaintiff admitted that he violated the biosecurity procedures
by leaving the clean area and going into the dirty area without removing his farm clothes or
showering. Plaintiff further asserted that because he was stopped before reentering the clean
area, he was not guilty of employment-related misconduct, since Strout suffered no harm from
his violation of the biosecurity procedures. In a response brief, the Attorney General argued
that plaintiff’s rule violation constituted misconduct within the meaning of section 602(A) of
the Act because it posed a risk of substantial harm to Strout.
¶ 22 After considering the administrative record and the parties’ briefs, the circuit court
reversed the Board’s decision on the grounds that Strout had not suffered harm from plaintiff’s
violation of the biosecurity procedures. The court stated, “There being no finding of harm by
the [B]oard and no harm alleged (in fact denied) by the employer then, as they say in
basketball–no harm, no foul. The decision of the Board of Review is reversed.”
¶ 23 This appeal followed.
¶ 24 II. ANALYSIS
¶ 25 On appeal, the Department, its Director, and the Board argue that plaintiff’s actions
constituted misconduct within the meaning of section 602(A) of the Act, even though those
actions did not result in actual harm.
¶ 26 A. Jurisdiction
¶ 27 We first address plaintiff’s contention that we lack jurisdiction over this appeal. Plaintiff
argues that when the adverse party (the employer) fails to participate at the circuit court level,
an agency which did participate at that level (the Board, the Department, or the Director) lacks
standing to appeal from the circuit court’s reversal of the agency’s decision. Plaintiff asserts
that the Board lacks standing because its role is merely that of an impartial tribunal for claims
between an employee and the employer, and the Department and its Director lack standing
because they are merely trustees of the unemployment insurance fund.
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¶ 28 However, in Braun v. Retirement Board of the Firemen’s Annuity & Benefit Fund, 108 Ill.
2d 119, 128, 483 N.E.2d 8, 12 (1985), the supreme court rejected the argument that the
retirement board lacked standing to appeal the circuit court’s reversal of its own decision. The
court explained that “[t]he retirement board has extensive managerial responsibilities,
however, and it is more than a tribunal.” Id. Pursuant to Braun, we conclude that the state
parties have standing to appeal the circuit court’s adverse decision.
¶ 29 As the guardians of the unemployment insurance fund, the Department and its Director
have a duty to protect the fund from diminution in the form of disbursements to ineligible
claimants. Private employers cannot be relied upon to serve as the fund’s sole defense against
unqualified claims. As the facts of this case illustrate, a claimant seeking unemployment
benefits can obtain administrative review in the circuit court at virtually no cost. Here, the
circuit court (for whatever reason) even appointed counsel to represent plaintiff pro bono. The
corporate employer, on the other hand, must retain private counsel if it wishes to participate at
the circuit court level. See, e.g., Downtown Disposal Services, Inc. v. City of Chicago, 407 Ill.
App. 3d 822, 832, 943 N.E.2d 185, 194 (2011) (“[C]orporations must appear in court through a
licensed attorney, rather than a layperson.”). In the face of an erroneous claim by an ineligible
claimant, the cost to an employer of paying out the claim will almost always be less than the
cost of hiring legal counsel to defend against the claim at the circuit court level–much less the
appellate court level.
¶ 30 Section 1100 of the Act provides as follows: “The Director shall be deemed to have been a
party to any administrative proceeding before the Board of Review and shall be represented by
the Attorney General in any judicial action involving any such decision.” (Emphasis added.)
820 ILCS 405/1100 (West 2012). The Department and its Director administer the fund that
plaintiff seeks to draw from. The legislature has entrusted the Department and its Director with
the responsibility of administering the Act, as follows:
“It shall be the duty of the Director to administer this Act. To effect such
administration, there is created the Department of Employment Security, under the
supervision and direction of a Director of Employment Security. The Department of
Employment Security shall administer programs for unemployment compensation and
a State employment service. The Director shall determine all questions of general
policy, promulgate rules and regulations and be responsible for the administration of
this Act.” 820 ILCS 405/1700 (West 2012).
¶ 31 The legislature has also entrusted the Department and its Director with protecting the fund
and handling its assets in accordance with the Act. See 820 ILCS 405/2100(A) (West 2012). If
“extensive managerial responsibilities” are ever sufficient to confer standing upon an
administrative agency to prosecute an appeal, as the supreme court held in Braun (Braun, 108
Ill. 2d at 128, 483 N.E.2d at 12), then that criterion surely applies in this case. Given the
above-cited provisions of the Act, the practical need for an advocate to defend the decisions of
the Board in the circuit court and guard against erroneous payouts from the unemployment
fund, and the extensive managerial responsibilities of the Department and its Director, we
conclude that the legislature intended to confer standing upon the Department, its Director, and
the Board to prosecute appeals from adverse circuit court decisions. See Stone v. Department
of Employment Security Board of Review, 151 Ill. 2d 257, 260, 602 N.E.2d 808, 809 (1992)
(allowing the Board’s petition for leave to appeal from an adverse appellate court decision
where the employer was not named as a party). Accordingly, we have jurisdiction over this
appeal.
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¶ 32 B. Plaintiff’s Claim for Unemployment Benefits
¶ 33 The Department, its Director, and the Board argue that the circuit court erred by
determining that plaintiff’s actions did not constitute misconduct within the meaning of section
602(A) of the Act because they did not result in harm to Strout. We agree.
¶ 34 1. Standard of Review
¶ 35 “On appeal from the circuit court, we review the findings of the Board, not the referee or
circuit court.” Walls v. Department of Employment Security, 2013 IL App (5th) 130069, ¶ 14,
993 N.E.2d 1129. Because the Board’s decision that plaintiff was not eligible for
unemployment benefits due to his misconduct constitutes a mixed question of law and fact, we
will reverse the Board’s decision only if it was clearly erroneous. AFM Messenger Service, Inc.
v. Department of Employment Security, 198 Ill. 2d 380, 391, 763 N.E.2d 272, 279 (2001).
Under this standard, we will reverse the Board’s decision only if, based on the entire record,
we are left with the definite and firm conviction that a mistake has been committed. Id. at 395,
763 N.E.2d at 282.
¶ 36 2. Section 602(A) of the Act
¶ 37 Section 602(A) of the Act provides that employees discharged for misconduct shall not be
eligible to receive unemployment benefits. Alternative Staffing, Inc. v. Illinois Department of
Employment Security, 2012 IL App (1st) 113332, ¶ 30, 983 N.E.2d 1036; 820 ILCS
405/602(A) (West 2012). That section defines “misconduct” as follows:
“[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 405/602(A) (West 2012).
¶ 38 “In determining whether an employer was harmed, the employee’s conduct should be
viewed in the context of potential harm, and not in the context of actual harm.” Manning v.
Department of Employment Security, 365 Ill. App. 3d 553, 557, 850 N.E.2d 244, 248 (2006)
(citing Greenlaw v. Department of Employment Security, 299 Ill. App. 3d 446, 448, 701
N.E.2d 175, 177 (1998)). Plaintiff concedes that he violated Strout’s biosecurity procedures.
Additionally, plaintiff’s statements at the hearing before the referee clearly showed that he was
aware he was violating the biosecurity procedure at the time he wore his farm clothes to the
bathroom in the dirty area of the farm facility. Instead of arguing that his conduct did not
constitute a violation of the biosecurity procedures, plaintiff argued that others committed
violations of the biosecurity procedures as well. The Board appropriately rejected plaintiff’s
claims that he was ignorant of the biosecurity procedures. Further, plaintiff has not claimed at
any point in these proceedings that Strout’s biosecurity procedures were unreasonable.
Accordingly, the only questions before us are whether plaintiff’s deliberate and willful
violation of Strout’s reasonable biosecurity rules (1) resulted in harm to Strout or (2) had the
potential to harm Strout. Our concluding affirmatively to either question would suffice under
Manning to affirm the Board’s decision.
¶ 39 Plaintiff argues that his conduct did not have the potential to harm Strout because he never
reentered the clean area. However, this is an argument against actual harm. Plaintiff’s decision
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to use the bathroom in the dirty area, without following the mandatory biosecurity procedures,
had the potential to harm Strout because, had Bishop not stopped him, plaintiff would have
reentered the clean area without showering through. It was merely fortuitous that Bishop
located plaintiff before he reentered the clean area. Bishop was not required to let plaintiff
reenter the clean area in his farm clothes, potentially exposing the pigs to bacterial
contaminants, before firing him for misconduct.
¶ 40 Plaintiff’s interpretation of section 602(A) of the Act would lead to absurd results. For
example, under plaintiff’s interpretation, an employee who steals cash from an office safe
would not be guilty of misconduct so long as the police eventually return the cash to the
employer. Nor would a restaurant employee who refuses to wash his hands after using the
bathroom be guilty of misconduct, so long as customers did not become ill as a result.
¶ 41 Plaintiff’s violation of Strout’s biosecurity rules constituted misconduct within the
meaning of section 602(A) of the Act because it had the potential to cause harm to Strout.
Specifically, had plaintiff continued his rule violation to its logical conclusion by reentering
the clean area without showering through, he could have carried bacterial contaminants into
the clean area and infected the pigs with disease. The Board’s decision was not clearly
erroneous.
¶ 42 III. CONCLUSION
¶ 43 For the foregoing reasons, we reverse the circuit court’s judgment and confirm the decision
of the Board.
¶ 44 Circuit court reversed; Board confirmed.
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