Wicks v. Department of Employment Security , 2024 IL App (4th) 240199-U ( 2024 )

NOTICE
2024 IL App (4th) 240199-UThis Order was filed under
Supreme Court Rule 23 and is
FILED
NO. 4-24-0199 November 4, 2024
not precedent except in the
limited circumstances allowed Carla Bender
under Rule 23(e)(1). 4th District Appellate
IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
MYRISHA WICKS, ) Appeal from the
Plaintiff-Appellant, ) Circuit Court of
v. ) Winnebago County
THE DEPARTMENT OF EMPLOYMENT ) No. 23MR352
SECURITY, )
Defendant-Appellee. ) Honorable
) Ronald A. Barch,
) Judge Presiding.
JUSTICE GRISCHOW delivered the judgment of the court.
Justices Knecht and DeArmond concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed, finding no clear error occurred when the Board of
Review of the Department of Employment Security determined plaintiff was
ineligible for unemployment benefits because she was terminated from her
position for misconduct.
¶2 Plaintiff, Myrisha Wicks, appeals pro se from the trial court’s order affirming a
final administrative decision by the Board of Review (Board) of the Department of Employment
Security (Department). The Board found plaintiff was terminated from her position with the
Social Security Administration (SSA) for misconduct when she refused to submit to an interview
as part of a suitability background investigation required as a condition of her employment; thus,
she was ineligible for unemployment benefits. The trial court agreed. For the following reasons,
we affirm the decision of the Board.
¶3 I. BACKGROUND
¶4 Plaintiff began working as a claims specialist for SSA in 2007. On April 8, 2022,
plaintiff was removed from federal service for “Failure to Fulfill a Condition of Employment”
when she refused multiple directives to participate in an interview as a part of a suitability
background investigation. Thereafter, plaintiff filed a claim for unemployment benefits with the
Department. Plaintiff stated SSA decided to “unreasonably investigate” employees’ personal
lives, she provided “sufficient personal information,” SSA’s effort to require additional
information was a “bullying tactic” and “harassment,” and she refused to submit to the interview
because she “declined to be harassed continuously.”
¶5 SSA protested plaintiff’s application for benefits because she was discharged for
failing to fulfill a condition of her employment. In support, SSA submitted a “Notice of Proposed
Removal” memorandum (dated February 7, 2022) previously sent to plaintiff detailing her
repeated noncompliance with directives to participate in a suitability of employment background
check and recommending her removal from federal employment. Plaintiff’s position as a claims
specialist with SSA had been designated a “ ‘Public Trust’ ” position and deemed “moderate
risk” under federal regulations. See 5 C.F.R. § 731.106 (2022). All employees with a moderate
risk designation or higher are, under federal law, subject to suitability reinvestigation every five
years. 5 C.F.R. § 731.106(d)(1) (2022). The Defense Counterintelligence and Security Agency
(DCSA) is responsible for conducting suitability investigations for SSA. SSA stated plaintiff had
been “repeatedly informed that security and suitability is a condition of employment, and that
SSA employees must fully comply with the security and suitability process, which may include
subject interviews.” DCSA investigators made repeated attempts to contact plaintiff and schedule
a suitability interview. Plaintiff was informed by SSA that “to meet the requirements of the
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Federal background investigation, which is a condition of [her] employment, [she is] required to
meet with the DCSA background investigator.” Plaintiff responded multiple times that she did
not wish to participate in an interview. SSA made several more efforts to request plaintiff’s
compliance, but she “continued to disregard numerous warnings and directives to comply with
the suitability interview portion of the background investigation process.” She was removed
from federal service.
¶6 On November 15, 2022, the claims adjuster for the Department sent plaintiff a
written determination, finding plaintiff was ineligible for benefits under section 602(A) of the
Unemployment Insurance Act (Act) (820 ILCS 405/602(A) (West 2022)) because she was
discharged for misconduct for failure to fulfill a condition of employment by refusing to provide
requested information needed for the suitability background investigation. Plaintiff requested
reconsideration and appeal of the claims adjuster’s determination.
¶7 A telephone hearing was held with a Department referee on February 17, 2023.
Both plaintiff and SSA submitted supporting documentation prior to the hearing, including
plaintiff’s position statement; e-mail correspondence between plaintiff, her supervisors, and the
background investigator; a claims specialist job description; a list of “Major Duties” of claims
specialists; a memo sent to plaintiff explaining the “Personnel Security and Suitability”
reinvestigation requirements (dated September 1, 2021); the “DIRECT WORK ORDER”
memorandum sent to plaintiff requiring her cooperation with the reinvestigation requirements
(dated September 15, 2021); the “Notice of Proposed Removal” memorandum sent to plaintiff
explaining the decision to remove her from her position in 30 days for her failure to fulfill a
condition of employment (dated February 7, 2022); the “Decision to Remove from Federal
Service” memorandum sent to plaintiff (dated April 8, 2022); and the federal regulations
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outlining the suitability determinations and required background investigation procedures for
certain federal employment positions (5 C.F.R. §§ 731, 1400.101(b) (2022)). SSA presented the
testimony of Rosita Acevedo and Toiya Craig, who described SSA’s background investigation
process, their communications with plaintiff regarding the process, plaintiff’s required
participation in a suitability background interview, and plaintiff’s repeated refusals to cooperate
with the background investigator and submit to an interview. Plaintiff, appearing pro se, testified
that she was informed in writing that her employment was terminated for failure to meet
conditions of employment. She felt she was being “targeted” and the SSA was not asking for an
interview, but a “shakedown,” and she described it as “harassment.” She stated SSA was seeking
too much personal information and “[j]ust because [SSA] made changes to the, to employment
doesn’t mean that I have to participate.” She explained, “So because they changed the criteria
that’s just like saying oh I’m going to jump off a bridge. That, everybody, sometimes you’ve got
to spin alone. So I did not feel that that was right. I did not want to jump off the bridge. It was
not an interview.”
¶8 The referee issued his decision on February 21, 2023, affirming the claims
adjuster’s decision finding plaintiff ineligible for unemployment benefits. The referee
determined plaintiff was “discharged for refusing to obey the employer’s instruction to submit to
a background interview.” The referee concluded plaintiff’s actions constituted misconduct
because SSA’s “instruction was reasonable,” her “refusal was not due to the lack of ability,
skills, or training for the individual required to obey the instruction[,] and the instruction would
not have resulted in an unsafe act.”
¶9 Plaintiff appealed the referee’s decision to the Board. On June 23, 2023, the
Board issued its decision, affirming the decision of the referee. The Board determined SSA
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employees are required by federal regulations to submit to background checks. Plaintiff was
instructed multiple times to participate in an interview as part of her background check, but she
refused to do so. The Board found no merit to plaintiff’s claims of harassment and privacy
concerns as reasons for refusing to cooperate. The Board concluded SSA’s instruction was
“reasonable and lawful,” and plaintiff’s refusal to cooperate was not the result of a lack of
ability, skills, or training and would not result in an unsafe act. Plaintiff’s employment was ended
due to her misconduct; thus, the Board affirmed she was not eligible for unemployment benefits.
¶ 10 Plaintiff filed a complaint for administrative review of the Board’s final decision.
The trial court affirmed the decision of the Board and explained:
“The court finds the record includes competent evidence
that the SSA had reasonable and lawful rule in place which
required Claims Specialists like [plaintiff] to fully and completely
participate in background checks and security related
reinvestigations. The federally mandated security process
applicable to ‘moderate risk’ positions, including Claims
Specialists like [plaintiff], requires SSA employees to provide all
information required by a 30-page questionnaire and, if requested,
to submit to an in-person or video interview with a DCSA
background investigator. Given that Claims Specialists have access
to sensitive and confidential Agency information, as well as
sensitive and potentially compromising confidential information
concerning individuals implicated by SSA subject matter, the
Board’s finding that the federally mandated reinvestigation
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requirements imposed by the SSA constitute reasonable work rules
and policies is not clearly erroneous.”
The court concluded further that plaintiff was given multiple opportunities to submit to an
interview, “willfully and deliberately” refused to do so, and was warned about the consequences
of her refusal to comply. Therefore, plaintiff’s request to overturn the Board’s decision was
denied, and this appeal followed.
¶ 11 II. ANALYSIS
¶ 12 A. Deficiencies in Plaintiff’s Brief
¶ 13 Initially, we must address the fact that plaintiff’s brief fails to comply with Illinois
Supreme Court Rule 341(h) (eff. Oct. 1, 2020), which governs the form and contents of an
appellant’s brief. Most egregiously, she has failed to set forth the standard of review, any cogent
legal arguments with citation to authority and the record on appeal, and the specific relief she is
seeking. See Ill. S. Ct. R. 304(h)(3), (7), (8) (eff. Oct. 1, 2020). Defendant argues this court
should, therefore, strike plaintiff’s brief and dismiss the case or affirm the trial court’s decision
because any issues on appeal have been forfeited due to the severe deficiencies in plaintiff’s
brief.
¶ 14 Although plaintiff appears before this court pro se, “regardless of his [or her]
status, no party is relieved of the duty to comply, as closely as possible, with the rules of our
courts.” Rosestone Investments, LLC v. Garner, 2013 IL App (1st) 123422, ¶ 18. Where an
appellant has failed to comply with the mandates of Rule 304(h), a reviewing court has the
discretion to strike the deficient brief and dismiss the appeal. Fryzel v. Miller, 2014 IL App (1st)
120597, ¶ 25. However, a reviewing court may elect to consider an appeal despite plaintiff’s
failure to file a sufficient brief, “so long as we understand the issue plaintiff intends to raise and
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especially where the court has the benefit of a cogent brief of the other party.” Twardowski v.
Holiday Hospitality Franchising, Inc., 321 Ill. App. 3d 509, 511 (2001). Despite the substantial
deficiencies in plaintiff’s brief, the issue on appeal is straightforward, the record is complete, and
we have the benefit of a cogent brief submitted by defendant with well-defined arguments. See
Matlock v. Illinois Department of Employment Security, 2019 IL App (1st) 180645, ¶ 16.
Therefore, we will consider the merits of plaintiff’s appeal.
¶ 15 B. Applicable Standard of Review
¶ 16 On administrative review, this court reviews the decision of the Board, not the
trial court. Petrovic v. Department of Employment Security, 2016 IL 118562, ¶ 22. Reviewing
the Board’s determinations that plaintiff’s refusal to comply with the suitability background
investigation constituted misconduct presents this court with a mixed question of law and fact.
See id. ¶ 21.
“Mixed questions of fact and law are ‘questions 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 to put it another way, whether the rule of law as
applied to the established facts is or is not violated.’ ” American
Federation of State, County & Municipal Employees, Council 31 v.
State Labor Relations Board, 216 Ill. 2d 569, 577 (2005) (quoting
Pullman-Standard v. Swint, 456 U.S. 273, 289 n.19 (1982)).
Mixed questions of law and fact are subject to the clearly erroneous standard of review. Abbott
Industries, Inc. v. Department of Employment Security, 2011 IL App (2d) 100610, ¶ 15. “A
decision is clearly erroneous only if the reviewing court is left with a definite and firm conviction
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that a mistake has been committed.” (Internal quotations marks omitted.) Board of Trustees of
University of Illinois v. Illinois Educational Labor Relations Board, 2015 IL App (4th) 140557,
¶ 35.
¶ 17 C. The Board’s Determination of Misconduct
¶ 18 Individuals who become involuntarily unemployed through no fault of their own
are provided economic relief under the Act (820 ILCS 405/100 et seq. (West 2022)). Lojek v.
Department of Employment Security, 2013 IL App (1st) 120679, ¶ 34. However, section 602(A)
of the Act provides that an individual is ineligible for unemployment benefits if she has been
discharged for “misconduct” in connection with her work. 820 ILCS 405/602(A) (West 2022).
The Act defines misconduct as:
“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.” Id.Furthermore, the Act expressly states that “notwithstanding” this definition, there are eight
specific work-related circumstances that constitute misconduct. Id. § 602(A)(1)-(8). Pertinent to
this case, misconduct includes “[r]efusal to obey an employer’s reasonable and lawful
instruction, unless the refusal is due to the lack of ability, skills, or training for the individual
required to obey the instruction or the instruction would result in an unsafe act.” Id. § 602(A)(5).
For a directive to be reasonable, it must be “appropriately relate[d] to the workplace” and
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concern “standards of behavior which an employer has a right to expect from an employee.”
(Internal quotation marks omitted.) Sudzus v. Department of Employment Security, 393 Ill. App.
3d 814, 827 (2009).
¶ 19 In this case, we find no clear error in the Board’s determination that SSA acted
reasonably and lawfully when instructing plaintiff to submit to an interview as part of her
suitability background investigation. Federal regulations require SSA to ensure employees
designated as “moderate risk” and who hold “Public Trust” positions participate in background
checks and security-related reinvestigations at least once every five years. See 5 C.F.R.
§ 731.106(d)(1) (2022). Plaintiff, a claims specialist, held such a position. Plaintiff was informed
that SSA’s security and suitability program implementing these federal regulations required her
to complete documents, submit to fingerprinting, respond to requests for supplemental
information and documentation, and meet with the DCSA background investigator. This was a
condition of her employment. As such, participating in an interview with the investigator was
appropriately related to her job and a reasonable instruction under the circumstances where
plaintiff’s position required her to have access to sensitive and confidential information.
¶ 20 Likewise, the Board correctly determined plaintiff’s refusal to comply was not
due to a lack of ability, skills, or training, nor would it result in an unsafe act. The record reveals
plaintiff’s refusal was based on a conscious decision, which she communicated to defendant
repeatedly. The Board rejected plaintiff’s privacy concerns and harassment claims as
explanations for her refusal to submit to the background interview. After our careful review of
the record, we find this decision was not clearly erroneous.
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¶ 21 Based on the foregoing, we find no clear error in the Board’s decision that
plaintiff was removed from federal service due to her own misconduct. Thus, plaintiff was not
eligible for unemployment benefits.
¶ 22 III. CONCLUSION
¶ 23 For the reasons stated, we affirm the Board’s decision.
¶ 24 Board decision affirmed.
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