Teresi v. Department of Employment Security

2022 IL App (3d) 190560Opinion filed January 19, 2022
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2022
SALVATORE TERESI, ) Appeal from the Circuit Court
) of the Twelfth Judicial Circuit,
Plaintiff-Appellee, ) Will County, Illinois.
)
v. )
)
THE DEPARTMENT OF )
EMPLOYMENT SECURITY; THE )
DIRECTOR OF EMPLOYMENT ) Appeal No. 3-19-0560
SECURITY; THE BOARD OF ) Circuit No. 18-MR-1796
REVIEW OF THE DEPARTMENT OF )
EMPLOYMENT SECURITY; and MEIJER )
STORES LIMITED )
PARTNERSHIP, )
)
Defendants )
)
(The Department of Employment Security, The )
Director of Employment Security, and The )The Honorable
Board of Review, Defendants-Appellants). )John C. Anderson,
Judge, presiding.
__________________________________________________________________________
JUSTICE McDADE delivered the judgment of the court, with opinion.
Justice Schmidt and Justice Hauptman concurred in the judgment and opinion.
__________________________________________________________________________
OPINION
¶1 The Board of Review of the Illinois Department of Employment Security (Department)
appeals from a trial court order reversing the Board’s decision denying unemployment benefits
to Salvatore Teresi. The Board found Teresi, who sought benefits because his employer had
involuntarily terminated his employment, was not able or available for work under section
500(C) of the Unemployment Insurance Act (Act) (820 ILCS 405/500(C) (West 2018)) because
he was seeking only part-time work and he failed to prove such a limitation to part-time work
was appropriate because of circumstances which were beyond his own control.
¶2 On administrative review, the circuit court reversed the Board’s decision, finding that the
decision was contrary to the manifest weight of the evidence. The Department appeals and
argues that the manifest weight of the evidence showed that Teresi was not seeking full-time
employment, as required to receive benefits under the Act. We agree with the Board’s finding
that Teresi was not able and available for work because he wanted to maintain his weekly
earnings under $250 to qualify for Social Security disability benefits. Therefore, we reverse the
circuit court’s decision and affirm the decision of the Board of Review.
¶3 I. BACKGROUND
¶4 Teresi began working for Meijer Stores Limited (Meijer) in April 2015, as a “facer,”
which required him to showcase products for customers. Teresi was diagnosed with cancer in
2016. Beginning November 24, 2017, and acting under doctor’s orders, Teresi stopped working
because of his cancer. Meijer requested documentation from Teresi regarding his health several
times. Teresi spoke with a representative from Meijer on March 7, 2018. During that call, the
representative explained that Meijer had not heard from him since November 2017. Teresi
responded that he was “in between doctors,” so he could not provide Meijer with updated
information. He added that his employment with Meijer was a “part time job,” that he was
retired, and that he was “working with Meijer to get his 401k[.]” That same month, Meijer
discharged Teresi for failing to provide the requested documentation.
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¶5 Thereafter, Teresi filed for unemployment benefits with the Department. Meijer filed a
protest, asserting that Teresi had been discharged for cause for failing to provide requested
information regarding his medical condition.
¶6 A Department claims adjudicator conducted an interview with Teresi, during which
Teresi explained that he was unable to work because he was battling cancer and needed to
undergo surgery. The claims adjudicator determined that Teresi was ineligible for unemployment
benefits between March 11, 2018, and March 24, 2018, because he had a medical restriction and
was unable to work.
¶7 Teresi submitted a request for reconsideration and an appeal from the claims
adjudicator’s decision. In it, he explained that he had been told during his interview with the
Department’s claims adjudicator that he needed to submit a note from his doctor, stating that he
could work. To that end, Teresi submitted a note from his doctor stating that he “may be able to
work.” Teresi also submitted a “work search record” that showed he had reached out to several
stores regarding potential work. Teresi argued that he was entitled to unemployment benefits
because he provided a doctor’s note explaining that he could work and documentation that he
was searching for work.
¶8 A Department referee conducted a hearing on Teresi’s request, during which Teresi
represented himself and Meijer did not participate. Teresi testified as follows. He began working
at Meijer in April 2015. He was diagnosed with cancer in 2016. In November 2017, Teresi’s
doctor recommended that he stop working to undergo cancer treatment. Teresi’s doctor would
not give him a note to return to work and instead referred him to a surgeon because he had a
herniated stomach, which was unrelated to his cancer. In March 2018, Teresi’s doctor told him
that he could return to work without any restrictions. Teresi did not know at that time, however,
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that he had already been fired from Meijer. After learning of his discharge, he began looking for
work. He sought work that would pay him an amount “underneath the cap” he was allowed to
earn and still collect the Social Security disability payments he received. He explained that the
cap was “about a thousand dollars, $250 a week.” Teresi said that he was willing to work
Monday through Sunday, during any shift, and that he would be willing to drive about one hour
to get to work. He described his desired work as “a high school job, just an ordinary job, flipping
burgers,” but he explained that he could not “get a real good job because then that’s [going to] be
too much money for me.”
¶9 After the hearing, the referee issued a decision determining that Teresi was not eligible
for unemployment benefits. The referee noted that (1) Teresi had told the claims adjudicator that
that he could not work because of his cancer, (2) even though Teresi submitted a doctor’s note
with his request for reconsideration or appeal, that note only stated that he might be able to work,
not that he could, and (3) Teresi had been collecting Social Security disability benefits available
to individuals who cannot work because of a medical condition that is expected to last at least
one year or result in death. The referee concluded that if Teresi was receiving Social Security
disability benefits, “he cannot claim he was able to work just so he can collect unemployment
benefits.” Finally, the referee found that Teresi was only seeking part time work, and under
section 500(C) of the Act, an individual must generally be able to obtain full time work to be
considered able to work. As a result, the referee considered Teresi ineligible for unemployment
benefits under the Act.
¶ 10 Teresi appealed the referee’s decision to the Board of Review, arguing that the
Department referee had misunderstood some of his answers and the doctor’s note that he had
provided. With his appeal, Teresi provided an additional doctor’s note, which stated that “patient
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is able to work.” The Board determined that it would not consider Teresi’s arguments contained
in his appeal because he had not certified that he mailed or served it upon Meijer. The Board
considered the record in the matter, including the transcript from the hearing before the
Department referee, and determined that no further evidentiary proceedings were necessary.
¶ 11 In rendering its final administrative decision, the Board found that Teresi had testified
that he was seeking part-time work because he could not earn more than $250 per week to
continue to receive his Social Security disability payments. Thus, the Board concluded that he
was “unavailable for work because he [did] not want to lose his social security disability pay.”
The Board also concluded that Teresi was ineligible to receive unemployment benefits as a
seeker of part-time work because his desire “to preserve his social security disability pay is not a
circumstance which is beyond [his] control under the Act.”
¶ 12 Teresi filed a complaint in the circuit court for administrative review of the Board’s final
decision. He attached a short statement of facts to his complaint, in which he stated that he
“never said [he] was seeking part-time work but looking for a job that paid [him minimum]
wage.” He argued that it was “not up to the referee, where and how much money [he] wish[ed] to
make in order to stay in the SSDI program that allows [him] to work full-time.” He explained
that some employer would start him as part-time employee before allowing him “to become full
time and 32 hours or more to some companies is considered full time.” He stated that he wanted
“unemployment benefits while” he sought full-time employment.
¶ 13 After adding Meijer as a necessary party, and holding a hearing on August 23, 2018, the
circuit court reversed the Board’s decision. In doing so, the circuit court found that the Board’s
administrative decision was contrary to the manifest weight of the evidence. The Department
now appeals.
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¶ 14 II. ANALYSIS
¶ 15 A. Standard of Review
¶ 16 We initially note that Teresi, as the appellee, has not filed a brief. We will nonetheless
decide the merits of this appeal because we can address the claimed errors without the aid of an
appellee’s brief. State Farm Mutual Insurance Co. v. Ellison, 354 Ill. App. 3d 387, 388 (2004).
In such a case, “if the appellant’s brief demonstrates prima facie reversible error and the
contentions of the brief find support in the record the judgment of the trial court may be
reversed.” First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133
(1976).
¶ 17 However, we review the Board’s decision rather than the decision of the circuit court, the
referee, or the claims adjudicator. Universal Security Corp. v. Department of Employment
Security, 2015 IL App (1st) 133886, ¶ 12. The degree of deference we afford to an administrative
agency’s decision depends on whether the question involves one of fact, law, or a mixed
question of fact and law. Id. We deem the Board’s factual findings and conclusions prima facie
true and correct; we will reverse them only if they are against the manifest weight of the
evidence. Persaud v. Department of Employment Security, 2019 IL App (1st) 180964, ¶ 14. We
review the Board’s legal determinations de novo. Id. ¶ 15. Mixed questions of fact and law—
those where the historical facts are admitted or established and the sole question involves
whether the facts satisfy the statutory standard—may be reversed only when clearly erroneous.
Id. ¶ 16. A clearly erroneous decision leaves the reviewing court “with the definite and firm
conviction that a mistake has been committed.” American Federation of State, County &
Municipal Employees, Council 31 v. Illinois State Labor Relations Board, State Panel, 216 Ill.
2d 569, 577-78 (2005).
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¶ 18 A mixed question of fact and law is one where “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 whether the rule of law as applied to the established facts is or is not violated.” Moss
v. Department of Employment Security, 357 Ill. App. 3d 980, 984 (2005) (citing AFM Messenger
Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 391 (2001)). Here, the
question presented is whether Teresi’s desire to maintain his qualifications for Social Security
disability benefits as a condition of employment meant that he was not eligible for
unemployment benefits. This is a mixed question of fact and law subject to the clearly erroneous
standard of review. Id.¶ 19 B. Able and Available for Work
¶ 20 The primary purpose of the Act is to provide compensation benefits to unemployed
individuals to alleviate their economic distress caused by involuntary unemployment. Miller v.
Department of Employment Security, 245 Ill. App. 3d 520, 522 (1993). Receiving unemployment
insurance benefits involves a conditional right, with the burden of proving eligibility on the
claimant. Childress v. Department of Employment Security, 405 Ill. App. 3d 939, 943 (2010).
Section 500 of the Act states that for a claimant to be eligible for benefits, he or she must (i) be
registered for work and continue to report to an unemployment office, (ii) have made a claim for
benefits each week, and (iii) be able and available for work and actively seeking work for the
period. 820 ILCS 405/500 (West 2018).
¶ 21 The Act does not define “able to work.” Section 2865.105(a) of the Department’s
regulations, however, states “[a]n individual is able to work when he or she is physically and
mentally capable of performing work for which he or she is otherwise qualified.” 56 Ill. Adm.
Code § 2865.105(a) (2020). Section 2865.105(b) further states that “[t]he focus is upon the
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individual’s condition, [and] the employer’s willingness to hire him or her is not relevant.” 56 Ill.
Adm. Code § 2865.105(b) (2020). The Act also does not define “available for work,” but section
2865.110(a) of the Department’s regulations states that “[a]n individual is available for work,
even if he or she imposes conditions upon the acceptance of work, unless a condition so narrows
opportunities that he or she has no reasonable prospect of securing work.” See 56 Ill. Adm. Code
§ 2865.110(a) (2020). Courts have interpreted “available for work” to mean that “the claimant
stands ready and willing to accept suitable work.” Moss, 357 Ill. App. 3d at 985; Miller, 245 Ill.
App. 3d at 522.
¶ 22 There was evidence in the record to support the Board’s factual finding that Teresi was
seeking only part-time work and not full-time work as required to receive benefits under the Act.
Teresi testified that he did not want to make more than $250 each week so that he could continue
to receive Social Security disability benefits. He also testified that he was looking for a job that
would pay him the minimum wage. In 2018, when Teresi was discharged from Meijer and was
looking for employment, the minimum wage in Illinois was $8.25 per hour. A full-time job is
generally considered one in which an individual works 40 hours per week. See 56 Ill. Admin.
Code § 2720.1. If Teresi could find a job where even 32 hours per week is the standard for full-
time, his salary at $8.25 per hour would be $264 per week; at 40 hours, he would earn $330 per
week. Thus, if Teresi obtained a full-time job at either 40 or 32 hours a week, paying him
minimum wage, he would be earning more than $250 per week.
¶ 23 Moreover, Teresi testified that he would not accept a job if it paid him more than $250
each week. He stated that he could not “get a real good job because then that’s [going to] be too
much money for me.” The only way that Teresi could make less than $250 per week, even while
working in a job that paid him the minimum wage, would be if he did not work full-time. Based
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on this evidence, the Board’s finding that Teresi was only seeking part-time work was not
against the manifest weight of the evidence.
¶ 24 In Miller, the plaintiff sought unemployment benefits after being terminated from his job.
Miller, 245 Ill. App. 3d at 521. When the plaintiff applied for unemployment benefits, he
indicated that he would prefer afternoon or evening shifts in his new employment so that he
could attend classes at a community college. Id. at 523. Although the plaintiff testified that he
would accept full-time work if offered it, he also testified that he could not work certain days and
shifts because of his classes. Id. Based on this evidence, “the Department could appropriately
find plaintiff’s employment was geared around and subservient to his classes” and that the
individual “was a full-time student and sought part-time employment that would not interfere
with his classes.” Id. at 523-24. As a result, the Board’s factual finding that the individual’s
principal occupation was a student was not against the manifest weight of the evidence. Id. at
524.
¶ 25 Similarly, here, Teresi testified that he could not make more than $250 each week, which
Teresi could not do, even while earning minimum wage, unless he worked less than full-time.
Thus, the evidence showed that Teresi’s employment search was subservient to his desire to
continue to receive his Social Security disability benefits. Accordingly, the Board could
appropriately find that Teresi was seeking part-time work, and not the full-time work required to
receive unemployment benefits under the Act.
¶ 26 We conclude that the record supports the factual finding that Teresi was seeking part-
time employment to retain his Social Security benefits. An individual may seek part-time work
and still be eligible to receive unemployment benefits if “circumstances out of his control”
restrict his availability to part-time work or he is qualified for work that “is available only on a
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part-time basis.” 56 Ill. Adm. Code § 2865.125(a) (2019). The claimant must “prove by a
preponderance of the evidence” that he meets the condition for eligibility for part-time work. 56
Ill. Adm. Code § 2865.125 (2019). Although Teresi stated that certain employers would only
start candidates on a part-time basis for the positions he is seeking, he does not contend that
those positions are only available on a part-time basis. His primary concern was to maintain his
Social Security disability benefits. As the Board explained in its final administrative decision,
“[w]anting to preserve his social security disability pay is not a circumstance which is beyond
claimant’s control under the Act.” Circumstances beyond a claimant’s own control must be akin
to “advice of [his] physician that full-time work would adversely affect [his] health.” 56 Ill.
Adm. Code § 2865.125(a)(1) (2019). Therefore, the Board properly determined that Teresi was
ineligible to receive unemployment benefits because he was not able and available for work, as
required by Section 500(C) of the Act.
¶ 27 III. CONCLUSION
¶ 28 The judgment of the circuit court of Will County is reversed, and the decision of the
Board of Review of the Department of Employment Security is affirmed.
¶ 29 Circuit court judgment reversed.
¶ 30 Board decision affirmed.
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No. 3-19-0560
Cite as: Teresi v. Department of Employment Security, 2022 IL App
(3d) 190560Decision Under Review: Appeal from the Circuit Court of Will County, No. 18-MR-1796;
the Hon. John C. Anderson, Judge, presiding.
Attorneys Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz,
for Solicitor General, and Kaitlyn N. Chenevert, Assistant Attorney
Appellant: General, of counsel), for appellants.
Attorneys No brief filed for appellee.
for
Appellee:
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