             NOTICE
                                     2014 IL App (5th) 130209
 Decision filed 12/02/14.   The
 text of this decision may be              NO. 5-13-0209
 changed or corrected prior to
 the filing of a Petition for
 Rehearing or the disposition of              IN THE
 the same.

                                   APPELLATE COURT OF ILLINOIS

                             FIFTH DISTRICT
________________________________________________________________________

WILLIAM F. EASTHAM III,                     )     Appeal from the
                                            )     Circuit Court of
      Plaintiff-Appellee,                   )     Jefferson County.
                                            )
v.                                          )
                                            )     No. 09-MR-57
THE HOUSING AUTHORITY OF JEFFERSON          )
COUNTY and THE BOARD OF REVIEW OF THE )
DEPARTMENT OF EMPLOYMENT SECURITY, )              Honorable
                                            )     Mark R. Stanley,
      Defendants-Appellants.                )     Judge, presiding.
________________________________________________________________________

      JUSTICE CHAPMAN delivered the judgment of the court, with opinion.
      Presiding Justice Cates and Justice Goldenhersh concurred in the judgment and
opinion.

                                           OPINION

¶1       The plaintiff, William F. Eastham III, was required to submit to a random drug test

by his employer, the Housing Authority of Jefferson County. The plaintiff informed his

supervisor that he believed he would fail the drug test because he had smoked marijuana

during a recent vacation. His employment was terminated before the results of the drug

test were available. The test subsequently came back negative. The plaintiff's claim for

unemployment insurance benefits was denied. The basis for this decision was a policy of

the employer which provided that employees may not use or be under the influence of
                                        1
alcohol or any controlled substance "while in the course of employment." The plaintiff

filed a petition for administrative review. The circuit court reversed the administrative

decision, finding that (1) the phrase "while in the course of employment" includes only

the times during which an employee is performing work duties; and (2) the policy is

unreasonable to the extent it can be interpreted to regulate an employee's conduct outside

of work. The defendants, the Housing Authority of Jefferson County and the Board of

Review of the Department of Employment Security, appeal. They argue the circuit court

erred in reaching both of these conclusions. We affirm.

¶2     The plaintiff was employed by the Housing Authority of Jefferson County

(Housing Authority) in its maintenance facility. The Housing Authority has a drug- and

alcohol-free workplace policy addressing drug and alcohol use by its employees. The

policy provides, in pertinent part, that the "possession, use, consumption or being under

the influence of a controlled substance *** while on Housing Authority premises and/or

while in the course of employment of the Housing Authority" violates the terms of

employment for any employee. The policy contains an identical provision regarding

alcohol use. The policy further provides that, "for purposes of this policy, 'under the

influence' means having any measurable amount of a prohibited substance under this

policy in any test of the employee's breath, blood, urine, hair, or any other test permitted

by law." The provisions of the policy are incorporated into the collective bargaining

agreement.

¶3     On December 19, 2008, the plaintiff was required to submit to a random drug test

pursuant to this policy.    After taking the test, he informed his supervisor, Janice
                                           2
DePlanty, that he had smoked marijuana twice while he was on vacation a few weeks

earlier. He admitted to smoking small amounts of marijuana on November 15 and

November 22, 2008, and he returned to work on November 24.                The plaintiff told

DePlanty that he did not believe he would pass the test as a result.

¶4     Two days later, he made the same admission to the Housing Authority's executive

director, Tom Upchurch. On December 22, at Upchurch's request, the plaintiff and his

union representative met with Upchurch and DePlanty.              The union representative

informed Upchurch and DePlanty that the plaintiff knew about the provisions of the drug-

and alcohol-free workplace policy. The plaintiff was discharged for violating the policy.

Subsequently, the results of the drug test came back. The test was negative.

¶5     The plaintiff filed a claim for unemployment insurance pursuant to the

Unemployment Insurance Act (820 ILCS 405/100 et seq. (West 2008)). One of the

questions on the application asked if the claimant's employer had a rule or policy relating

to the last act that led to the claimant's discharge and, if so, what that rule or policy was.

The plaintiff responded in the affirmative and described the policy as "not using drugs

while employed" by the Housing Authority. A Department of Employment Security

claims adjudicator found that the plaintiff knew that smoking marijuana violated his

union contract and, as such, "his choice to use the drug represents willful misconduct."

The claims adjudicator therefore found that the plaintiff was ineligible for unemployment

insurance benefits.

¶6     The plaintiff requested an administrative appeal of this decision. A Department of

Employment Security referee affirmed the claims adjudicator's decision. The matter then
                                          3
proceeded to the Board of Review of the Department of Employment Security (Board of

Review or Board).      The decision of the Board of Review focused on the parties'

conflicting interpretations of the phrase "while in the course of employment" in the

Housing Authority's policy. The plaintiff maintained that the phrase did not include time

that he was on vacation while employed by the Housing Authority.              The Housing

Authority argued that because it was required to provide a drug-free policy for its

employees and tenants in order to receive federal funding, the phrase must be interpreted

to include even time away from work while employed by the Housing Authority. The

Board of Review accepted this argument and concluded that "while in the course of

employment" referred to the plaintiff's entire "tenure while working for the employer, not

just while performing services." The Board of Review issued its final administrative

decision upholding the denial of benefits on September 30, 2009.

¶7     The plaintiff next filed a petition for administrative review in the circuit court of

Jefferson County. The circuit court reversed the decision of the Board of Review. The

court found that both the referee and the Board of Review "misapplied the definition of

'in the course of employment.' " The court explained that while the agency interpreted

the phrase to mean "any time the Plaintiff is employed" by the Housing Authority, under

"well settled" Illinois law, the phrase encompasses only acts that occur "at a place where

the worker may reasonably be in the performance of his duties and while he is fulfilling

those duties or engaged in something incidental thereto." (Emphasis in original.)

¶8     The court further found that the policy was unreasonable because (1) it failed to

take into account the fact that some drug tests will yield positive results for a long period
                                             4
of time even when the person is not under the influence; (2) the policy failed to take into

consideration the fact that some states have legalized the use of marijuana; and (3)

accepting the Housing Authority's definition of "in the course of employment," the policy

restricts the use of alcohol or cannabis for off-duty employees, which "serves no

legitimate public purpose." The court noted that the Housing Authority admitted that

despite the identical wording of the provisions prohibiting drug and alcohol use, it did not

interpret or enforce the provisions the same way. The court concluded that the plaintiff

did not violate the policy and was therefore eligible for unemployment benefits. This

appeal followed.

¶9     In an appeal from a ruling on a petition for administrative review, we review the

final decision of the administrative agency, not the decision of the circuit court. Czajka v.

Department of Employment Security, 387 Ill. App. 3d 168, 172 (2008). The factual

findings of the agency are prima facie true and correct, and we will disturb these findings

only if they are against the manifest weight of the evidence. Czajka, 387 Ill. App. 3d at

173 (citing Jackson v. Board of Review of the Department of Labor, 105 Ill. 2d 501, 513

(1985)). However, we review de novo the agency's conclusions of law. If an appeal

presents mixed questions of fact and law, we will reverse the agency's determination if it

is clearly erroneous. Czajka, 387 Ill. App. 3d at 173. A decision is clearly erroneous if a

thorough review of the record leaves this court " 'with the definite and firm conviction

that a mistake has been committed.' " AFM Messenger Service, Inc. v. Department of

Employment Security, 198 Ill. 2d 380, 393 (2001) (quoting United States v. United States

Gypsum Co., 333 U.S. 364, 395 (1948)).
                                             5
¶ 10   At issue in this appeal is whether the Board of Review properly concluded that the

plaintiff's conduct amounted to "misconduct" within the meaning of the Unemployment

Insurance Act. An employee who is discharged for misconduct is ineligible to receive

unemployment benefits. 820 ILCS 405/602(A) (West 2008). The relevant statute 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." 820 ILCS 405/602(A) (West 2008).

¶ 11   The instant case does not involve conduct that was repeated in spite of previous

warnings. Thus, there are three elements that must be present to establish misconduct

within the meaning of the Unemployment Insurance Act: (1) there was a "deliberate and

willful" violation of the employer's rule or policy; (2) the rule or policy was reasonable;

and (3) the employer was harmed as a result. Czajka, 387 Ill. App. 3d at 173-74.

Although potential harm is sufficient to satisfy the third element (Hurst v. Department of

Employment Security, 393 Ill. App. 3d 323, 329 (2009)), the possibility of harm must not

be remote or speculative (Czajka, 387 Ill. App. 3d at 180).

¶ 12   Although the claimant bears the burden of proving the right to receive

unemployment insurance benefits, the Unemployment Insurance Act must be liberally

construed in favor of giving benefits. Czajka, 387 Ill. App. 3d at 174. In addition, in

order "to disqualify an employee from receiving unemployment compensation, an

employer must satisfy a higher burden than merely proving that an employee should have

been discharged." Czajka, 387 Ill. App. 3d at 176.
                                            6
¶ 13   Generally, whether these three elements are met is a mixed question of fact and

law. Hurst, 393 Ill. App. 3d at 327. However, this appeal requires us to interpret the

Housing Authority's policy. Interpretation of contractual language is a question of law,

which we review de novo. Carr v. Gateway, Inc., 241 Ill. 2d 15, 20 (2011). Thus, we

will apply a de novo standard of review to the Board's interpretation of the key

phrase−"in the course of employment"−but we will determine whether its ultimate

finding was clearly erroneous.

¶ 14   We first consider whether the plaintiff deliberately and willfully violated a rule or

policy of his employer. Deliberate and willful misconduct consists of conscious acts

made in violation of the employer's rules when the employee knows his actions are

against the rules. Czajka, 387 Ill. App. 3d at 176. Here, it is undisputed that the plaintiff

was aware of the Housing Authority's drug and alcohol policy. What is less clear is

whether his conduct actually violated that policy. As previously discussed, the policy

included a provision that employees may not be under the influence of illegal drugs on

Housing Authority property or "while in the course of" their employment. The final

administrative decision of the Board of Review turned on its interpretation of this last

term. The Board read the phrase to mean any time the plaintiff was an employee of the

Housing Authority. Both defendants argue that this interpretation was correct and the

circuit court erred in reaching the opposite conclusion. We disagree.

¶ 15   The Housing Authority's policy does not define the phrase "in the course of

employment," and the Board of Review did not provide any rationale for its

interpretation. Courts of this state have defined that phrase in the context of workers'
                                            7
compensation claims, holding that injuries occur "in the course of employment" if they

take place (1) "at a place where the employee is reasonably expected to fulfill her duties,"

and (2) "while she is performing those duties." Pechan v. DynaPro, Inc., 251 Ill. App. 3d

1072, 1087 (1993) (citing Kropp Forge Co. v. Industrial Comm'n, 225 Ill. App. 3d 244,

250 (1992)). The Board's interpretation is at odds with this definition.

¶ 16   In addition, we note that the Housing Authority's policy also prohibits possession,

use, distribution, or being under the influence of drugs and alcohol while on Housing

Authority property. This provision is superfluous if "in the course of employment" is

construed to mean any time the employee is employed by the Housing Authority.

Moreover, as we will explain, if we were to interpret the policy in the manner suggested

by the defendants, we would have to conclude that the policy is not a reasonable rule of

the employer. We find that the Board's interpretation of the phrase "in the course of

employment" was in error.

¶ 17   The Housing Authority argues, however, that even accepting this less expansive

definition, the plaintiff nevertheless violated the policy by being "under the influence" of

cannabis at work. This argument has two components. First, the Housing Authority

points to the language in the policy defining "under the influence" as having "any

measurable amount" of a prohibited substance "in any test." Despite the fact that he did

not test positive for drugs, the Housing Authority argues that the plaintiff violated this

policy by coming to work when he believed that he was "under the influence" pursuant to

this definition. Second, it argues that the plaintiff "would certainly have been 'under the

influence' of cannabis as that term is defined [in the policy] when he returned to work on
                                             8
November 24, 2008." We are not persuaded. The policy expressly provides that an

employee is "under the influence" if there is a measurable amount of any prohibited

substance in any drug test. The plaintiff may have believed there would be a measurable

amount of cannabis in his system when he was tested; however, this was not the case.

¶ 18   We next address whether the policy was reasonable. A reasonable rule or policy is

one which is connected to the employee's performance of his job. Czajka, 387 Ill. App.

3d at 177 (quoting 820 ILCS 405/602(A) (West 2004) and Jackson v. Board of Review of

the Department of Labor, 105 Ill. 2d 501, 512 (1985)). The Unemployment Insurance

Act expressly provides that violation of an employer's rule will only disqualify a

discharged employee from receiving unemployment benefits if the rule is one "governing

the individual's behavior in performance of his work." (Emphasis added.) 820 ILCS

405/602(A) (West 2008). However, courts have found that a reasonable rule or policy

can govern behavior outside work as long as there is a sufficient nexus between that

behavior and the workplace to make the rule or policy work-related. See, e.g., Czajka,

387 Ill. App. 3d at 176-77 (rule prohibiting active opposition to a program of the

employer); Manning v. Department of Employment Security, 365 Ill. App. 3d 553, 558

(2006) (hostile and intimidating voicemail messages to a coworker could adversely affect

the work environment).

¶ 19   Here, we have concluded that the policy at issue prohibits employees from using

or possessing drugs or alcohol or being under the influence on the job or on Housing

Authority property. We think it is obvious that such requirements are related to the

performance of employees' job duties and, as such, are reasonable. The defendants,
                                        9
however, have argued that the policy should be interpreted to prohibit any use of illicit

substances at any time during an employee's tenure and to allow the discharge of an

employee who admits to using marijuana even if the employee does not fail a drug test.

They further argue that such a policy would be reasonable. For the following reasons, we

disagree.

¶ 20   In support of this contention, the defendants call our attention to McAllister v.

Board of Review of the Department of Employment Security, 263 Ill. App. 3d 207 (1994).

They argue that the McAllister court rejected the precise arguments the plaintiff makes in

this appeal. In response, the plaintiff argues that McAllister is distinguishable from the

case before us. We agree with the plaintiff.

¶ 21   The plaintiff in McAllister was employed as a bus driver for the Chicago Transit

Authority (CTA). McAllister, 263 Ill. App. 3d at 208. He was required to submit to a

drug test after a bus accident. The test revealed the presence of cocaine in the plaintiff's

system. As a result, he was suspended from his job. McAllister, 263 Ill. App. 3d at 208.

The CTA had a policy providing that an employee " 'may not have a controlled substance

or narcotics of any kind in his or her system' " while on the job. McAllister, 263 Ill. App.

3d at 209. Despite this broad language, the record revealed that the plaintiff was required

to submit to a drug test only because of his involvement in the accident. McAllister, 263

Ill. App. 3d at 209.

¶ 22   The plaintiff there argued, as the plaintiff does here, that the CTA's drug policy

was not reasonable because it governed his conduct outside of work, and that conduct did

not impact the performance of his duties. McAllister, 263 Ill. App. 3d at 210. (We note
                                          10
that the accident occurred when the plaintiff parked his unoccupied bus at a bus depot

and went to use the restroom without applying the hand brake. McAllister, 263 Ill. App.

3d at 208. The McAllister opinion appears to assume that the plaintiff's use of cocaine six

days earlier did not cause him to be impaired or play any role in this accident.)

¶ 23   In rejecting the plaintiff's argument, the appellate court emphasized the fact that

the plaintiff there worked in a safety-sensitive position. McAllister, 263 Ill. App. 3d at

211 (quoting Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 633 (1989)).

The court pointed to cases holding that it is reasonable for employers to require

employees in safety-sensitive positions to pass drug tests even without any signs of

impairment or other individualized suspicion. The court explained that this is so because

a person in a safety-sensitive position could potentially jeopardize public safety without

showing any obvious outward signs of impairment. McAllister, 263 Ill. App. 3d at 211-

12 (quoting Skinner, 489 U.S. at 633, and Farm Fresh Dairy, Inc. v. Blackburn, 841 P.2d

1150, 1153 (Okla. 1992)).

¶ 24   The McAllister court also noted that the test at issue was administered pursuant to

a policy that allowed the CTA "to test any bus operator for drugs after an accident."

McAllister, 263 Ill. App. 3d at 212. The court further noted that the test showed that the

level of cocaine in the driver's system "exceeded the standard threshold amount specified

in the Federal regulations adopted by the CTA." McAllister, 263 Ill. App. 3d at 212. The

court concluded that both the rule allowing drug testing after an accident and the rule

prohibiting any amount of a narcotic in a driver's system were "reasonable efforts by the


                                             11
CTA to promote public safety and the protection of the lives of its passengers."

McAllister, 263 Ill. App. 3d at 212.

¶ 25      Here, by contrast, the plaintiff is not in a safety-sensitive position. Thus, the nexus

between his off-duty use of marijuana and the performance of his job duties is not as

strong as the nexus between the off-duty use of cocaine by a bus driver and the safety of

his passengers. Moreover, critically, the drug test administered to the plaintiff here was

negative. In spite of this, the defendants ask us to interpret the Housing Authority's

policy in a manner that would make the policy much more far-reaching than the policies

the McAllister court found reasonable. Nothing in McAllister supports the notion that a

policy is reasonable within the meaning of the Unemployment Insurance Act if it permits

an employer to discharge an employee for off-duty conduct without a positive drug test

result.

¶ 26      The defendants argue, however, that their expansive interpretation of the policy is

reasonable because the Housing Authority is required to maintain a drug-free workplace

policy in order to remain eligible for federal funding. We acknowledge that this was a

factor cited by the McAllister court in finding the CTA policies at issue there reasonable.

See McAllister, 263 Ill. App. 3d at 211 (citing 41 U.S.C. §§ 701, 702 (1988) (now see 41

U.S.C. §§ 8102, 8103 (2012))). However, the federal statute mandating a drug-free

workplace policy does not require grant recipients to discharge an employee for off-duty

marijuana use. The relevant statute provides that an entity receiving a federal grant must

publish and enforce "a statement notifying employees that the unlawful manufacture,

distribution, dispensation, possession, or use of a controlled substance is prohibited in the
                                             12
grantee's workplace." (Emphasis added.) 41 U.S.C. § 8103(a)(1)(A) (2012). In short,

nothing in either McAllister or the federal law cited by the defendants requires us to alter

the conclusion we reach.

¶ 27   As noted earlier, the third element that must be present to deny benefits is harm to

the employer. In light of our conclusion that the plaintiff did not violate the Housing

Authority's policy as written, we need not address this issue.

¶ 28   Finally, we emphasize that the question is not whether the Housing Authority was

justified in discharging the plaintiff for his admitted marijuana use absent a positive result

on a drug test. The question is only whether this conduct amounts to "misconduct" that

will disqualify him from receiving unemployment insurance benefits. An employee's

conduct may be sufficient to justify his discharge without constituting misconduct

sufficient to disqualify him from benefits under the Unemployment Insurance Act.

Adams v. Ward, 206 Ill. App. 3d 719, 726 (1990).

¶ 29   For the foregoing reasons, we affirm the decision of the circuit court reversing the

final administrative decision.



¶ 30   Affirmed.




                                             13
                                 2014 IL App (5th) 130209

                                      NO. 5-13-0209

                                         IN THE

                           APPELLATE COURT OF ILLINOIS

                                    FIFTH DISTRICT


WILLIAM F. EASTHAM III,                         )     Appeal from the
                                                )     Circuit Court of
      Plaintiff-Appellee,                       )     Jefferson County.
                                                )
v.                                              )
                                                )     No. 09-MR-57
THE HOUSING AUTHORITY OF JEFFERSON              )
COUNTY and THE BOARD OF REVIEW OF THE           )
DEPARTMENT OF EMPLOYMENT SECURITY,              )     Honorable
                                                )     Mark R. Stanley,
      Defendants-Appellants.                    )     Judge, presiding.
______________________________________________________________________________

Opinion Filed:          December 2, 2014
______________________________________________________________________________

Justices:     Honorable Melissa A. Chapman, J.

            Honorable Judy L. Cates, P.J., and
            Honorable Richard P. Goldenhersh, J.,
            Concur
______________________________________________________________________________

Attorneys   Henry P. Villani, Villani Johnson Buesking, LLC, 2215 Broadway, Mt. Vernon,
for         IL 62864 (for Housing Authority of Jefferson County); Lisa Madigan, Attorney
Appellants  General, Michael A. Scodro, Solicitor General, Evan Siegel, Timothy K. McPike,
            Assistant Attorney Generals, Office of the Attorney General, 100 West Randolph
            Street, 12th Floor, Chicago, IL 60601 (for Board of Review of the Department of
            Employment Security)
______________________________________________________________________________

Attorneys   L. James Hanson, Daniel M. Bronke, L. James Hanson, Attorney at Law, 1112
for         Broadway, Mt. Vernon, IL 62864
Appellee
______________________________________________________________________________
