                                   2019 IL App (1st) 180964

                                                                             THIRD DIVISION
                                                                                April 17, 2019

                                         No. 1-18-0964


                                         IN THE
                              APPELLATE COURT OF ILLINOIS
                                FIRST JUDICIAL DISTRICT


PATRICIA PERSAUD,                                          )   Appeal from the Circuit Court of
                                                           )   Cook County.
       Plaintiff-Appellant,                                )
                                                           )
v.                                                         )
                                                           )
ILLINOIS DEPARTMENT OF EMPLOYMENT                          )
SECURITY; DIRECTOR OF ILLINOIS                             )   No. 18 L 50087
DEPARTMENT OF EMPLOYMENT SECURITY;                         )
BOARD OF REVIEW; and NORTHWESTERN                          )
MEMORIAL HEALTHCARE IN c/o EQUIFAX                         )
(TALX UCM SERVICES),                                       )
                                                           )   Honorable James M. McGing,
       Defendants-Appellees                                )   Judge Presiding.
                                                           )

       JUSTICE ELLIS delivered the judgment of the court, with opinion.
       Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the judgment and
       opinion.


                                           OPINION

¶1     The Illinois Department of Employment Security Board of Review found plaintiff,

Patricia Persaud, ineligible to receive benefits under the Unemployment Insurance Act. 820

ILCS 405/100, et seq. (West 2016). The circuit court affirmed that decision. We affirm as well.
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¶2                                      BACKGROUND

¶3     Persaud was employed as a patient service representative by Northwestern Memorial

Hospital from December 10, 2012, until September 27, 2017, when she was terminated.

Following her termination, Persaud filed a claim for benefits under the Act. Northwestern filed a

response, claiming that Persaud was discharged for misconduct under the Act. A claims

adjudicator determined that Persaud was not discharged for misconduct and thus was not

ineligible for benefits. Northwestern then filed a notice of reconsideration and appeal. The case

was referred to a referee, who held a telephonic hearing on December 8, 2017.

¶4     At the hearing, Oneida McEachin testified that she was Persaud’s practice manager at

Northwestern, and that she personally terminated Persaud. She stated that Persaud was

terminated for “violations of our rules for personal conduct”—specifically, “[d]isobeying

instructions, procedures or policies, whether through neglect, procrastination or deliberate

disobedience and deliberately refusing to obey the orders or instructions of a manager, person in

charge or security officer.” Elaborating, McEachin explained that on September 27, 2017, she

told Persaud that she needed to speak to her about a disciplinary action report and a performance

improvement plan. According to McEachin, Persaud said that she did not want to discuss those

topics with McEachin and refused to meet with her.

¶5     McEachin testified that she told Persaud that “this is not a choice” and that they needed to

speak. McEachin then called the human resources department, which recommended to McEachin

that she try speaking to Persaud again. Thereafter, McEachin testified that she

       “went to [Persaud] again and I asked her that she needs to come speak to me, that part of

       her job is that she speak with me today, um, that I needed to give her this disciplinary

       action. I've already asked her three times, um, and she refused again to speak with me.



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       She said that she wasn't gonna speak with me. Um, I called my Human Resources

       Department again. I told them what was happening. Then I, um, went back to her, you

       know, through their direction and I told her that she needed come speak with me, I

       needed to give her this disciplinary action report and speak about her performance

       improvement and if she continued to refused to speak to me, she would be terminated.

       She again said that she was not gonna speak with me, that I didn't have the right to

       terminate her.”

¶6     McEachin then asked Persaud “one final time” to “ ‘[p]lease come speak with me or you

will be terminated.’ ” After Persaud again refused, McEachin told her that she was “terminated

effective immediately.”

¶7     McEachin explained that September 27 was not the first time that Persaud had refused a

request to meet to discuss her performance issues. On September 25, McEachin had asked to

speak to Persaud about the same performance and disciplinary issues; in response, Persaud “said

she wasn’t gonna speak to us.” At that time, McEachin told Persaud that “we really need to talk

about this” and that her refusal “would have consequences in the future.” According to

McEachin, Persaud “acknowledged she understood” and “said that that was okay.” Persaud then

told McEachin that she was “feeling really stressed out” about an upcoming medical leave and

that she preferred to speak with McEachin when she returned from leave. McEachin told Persaud

that it was important to talk before she left for leave “so she knew what *** her expectations

were when she came back.”

¶8     Persaud testified that she had major surgery scheduled for October 2 and was going to be

on short-term disability. She explained that she refused to meet with McEachin because she was

“so stressed out” about her upcoming surgery. She admitted that she walked out when McEachin



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asked to meet with her, but she maintained that she did so because she was upset and crying, and

that throughout the encounter she repeatedly asked to postpone the meeting. Persaud

acknowledged that McEachin told her on the 27th that she would be fired if she refused to meet.

But according to Persaud, McEachin made that statement “only when she came up to me at the

front desk” while Persaud was helping a coworker check in some patients. Persaud admitted that

she walked out of McEachin’s office when McEachin asked to meet with her.

¶9     On December 11, 2017, the referee found that Persaud’s actions were “an error in good

faith” and that she was not terminated for misconduct. Northwestern then appealed to the Board.

On February 1, 2018, the Board issued a final administrative decision finding that Persaud had

been discharged for misconduct. Relying on section 602(a)(5) of the Act, the Board noted that

the Act defines “misconduct” to include circumstances where an employee “refuses to follow an

employer's reasonable and lawful instruction” and that “[t]here is no requirement that the refusal

be willful or deliberate, nor does the law require proof that the employer was harmed or the

conduct was repeated, or that the conduct have violated reasonable work-related rule.”

¶ 10   Continuing, the Board explained that Persaud

       “was discharged for refusing several times to meet with her manager and HR for a

       performance discussion and a performance improvement plan. The manager made the

       request on 09/25 and 09/26, and even after the claimant was told that failure to do so

       would result in her discharge, she still refused. Because the refusal was not due to lack of

       ability, skills, or training for the individual required to obey the instruction or the

       instruction would result in an unsafe act, the claimant's refusal to obey the employer's

       reasonable and lawful instruction, constitutes misconduct as defined under Section

       602A(5) of the Act.”



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¶ 11   On February 22, 2018, Persaud filed a complaint for administrative review in the circuit

court. On May 9, 2018, the circuit court affirmed the Board’s decision. This timely appeal

followed.

¶ 12                                       ANALYSIS

¶ 13   On administrative review, we review the decision of the Board, not the circuit court.

Petrovic v. Department of Employment Security, 2016 IL 118562, ¶ 11. There are three types of

questions a court may encounter when reviewing an administrative decision: questions of fact,

questions of law, and mixed questions of fact and law. Cinkus v. Village of Stickney Municipal

Officers Electoral Board, 228 Ill. 2d 200, 210 (2008). Our standard of review differs depending

on the question presented. American Federation of State, County & Municipal Employees,

Council 31 v. Illinois State Labor Relations Board, 216 Ill.2d 569, 577 (2005) (AFSCME).

¶ 14   An agency’s factual findings and conclusions are “deemed prima facie true and correct.”

Cinkus, 228 Ill. 2d at 2010. When examining an agency’s factual findings, we will not re-weigh

the evidence or substitute our judgment for that of the agency. Id. We merely determine whether

the agency’s findings of fact are against the manifest weight of the evidence. Id. An agency’s

factual findings are against the manifest weight of the evidence only “if the opposite conclusion

is clearly evident.” Id.; Woods v. Department of Employment Security, 2012 IL App (1st)

101639, ¶ 16.

¶ 15   On the other hand, legal determinations by the Board are reviewed de novo. Kouzoukas v.

Retirement Board of Policemen's Annuity & Benefit Fund of City of Chicago, 234 Ill. 2d 446,

463 (2009); see Cinkus, 228 Ill. 2d at 210 (“[A]n agency’s decision on a question of law is not

binding on a reviewing court.”).




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¶ 16   Mixed questions of fact and law are those 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.” ’ ” Cinkus, 228 Ill. 2d at 210 (quoting AFSCME, 216 Ill.2d at 577, in

turn quoting Pullman–Standard v. Swint, 456 U.S. 273, 289 n. 19 (1982)). Mixed questions of

fact and law are subject to reversal only when they are “ ‘clearly erroneous.’ ” AFSCME, 216 Ill.

2d at 577 (quoting AFM Messenger Service, Inc. v. Department of Employment Security, 198 Ill.

2d 380, 395 (2001). A decision is clearly erroneous “when the reviewing court is left with the

definite and firm conviction that a mistake has been committed.” Id. at 577-78.

¶ 17   Here, the Board’s determinations that Persaud’s supervisor instructed her to meet with

her, and that Persaud refused, are questions of fact subject to the manifest-weight standard of

review. Whether the Board correctly interpreted the term “misconduct” in the Act is a legal

question subject to de novo review. And whether the Board correctly determined that Persaud

was discharged for misconduct, by applying the facts to the law, presents a mixed question that

we will not disturb unless clearly erroneous.

¶ 18   We first consider the Board’s factual finding that Persaud refused McEachin’s requests

for a meeting was against the manifest weight of the evidence. McEachin’s testimony provided

the Board with more than ample evidence to support its finding that Persaud was repeatedly

asked, and repeatedly refused, to meet with McEachin to discuss her performance issues. And

notably, Persaud never denied the fact that she refused to meet with McEachin. Instead,

throughout the hearing, Persaud stated that she thought that in refusing McEachin’s request and

instead seeking to postpone the interview until after she returned from medical leave, she was in




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essence requesting a “reasonable *** accommodation.” The Board’s factual findings were not

against the manifest weight of the evidence.

¶ 19   We next consider whether the definition of misconduct that the Board applied was

correct. As noted, the Board, citing section 602(a)(5) of the Act, applied the following definition

of misconduct:

                 “The term ‘misconduct’ means 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.

                 The previous definition notwithstanding, "misconduct" shall include any of the

       following work-related circumstances: 5. Refusal 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.

                 The new subsection (A)(5) imposes a lower threshold in situations where an

       employee refuses to follow an employer's reasonable and lawful instruction. There is no

       requirement that the refusal be willful or deliberate, nor does the law require proof that

       the employer was harmed or the conduct was repeated, or that the conduct have violated

       reasonable work-related rule.”

¶ 20   Applying de novo review, we find that the Board’s definition and interpretation of the

word “misconduct” was legally correct. Under section 602 of the Act, employees who were

discharged for “misconduct” are disqualified from receiving employment benefits. Section 602

defines “misconduct” as follows:



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               “For purposes of this subsection, the term ‘misconduct’ means 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. The previous definition

       notwithstanding, ‘misconduct’ shall include any of the following work-related

       circumstances:

                                                      ***

               5. Refusal 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.” (Emphasis added.) 820

       ILCS 405/602(A), (A)(5) (West 2016).

¶ 21   The Board’s determination that section 602(A)(5) contains “no requirement that the

refusal be willful or deliberate, nor does the law require proof that the employer was harmed or

the conduct was repeated, or that the conduct have violated reasonable work-related rules,” was

perfectly consistent with the statute’s plain text. True, the general definition of “misconduct”

requires a deliberate or willful state of mind, repeated conduct, and proof of harm to the

employer, but the statute continues to provide that, “notwithstanding” that previous definition,

certain actions are deemed to be misconduct per se. Id., § 602(A). The word “notwithstanding”

in this context means independent of the previous definition, “in spite of” the previous definition,

an “exception” to the general definition. See Waliczek v. Retirement Board of Firemen's Annuity

& Benefits Fund of Chicago, 318 Ill. App. 3d 32, 36 (2000); Toner v. Retirement Board of

Policemen's Annuity & Benefits Fund of City of Chicago, 259 Ill. App. 3d 67, 70 (1994).



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¶ 22    Subsection (A)(5) of section 602 thus gives an independent example of one particular

type of “misconduct”—“Refusal to obey an employer’s reasonable and lawful instruction.” 820

ILCS 405/602(A)(5) (West 2016). That “misconduct” does not require willfulness, harm to the

employer, or repetition. The only exceptions to a finding of “misconduct” under this specific

definition are (1) if the reasonable and lawful instruction could not be followed by the employee

due to lack of ability, skills, or training, or (2) if the instruction would require an unsafe act. Id.

(And of course, as subsection (A)(5) says, the instruction would have to “reasonable and lawful”

in the first instance. Id.) The Board correctly interpreted the relevant statute.

¶ 23    Finally, we consider whether the Board’s determination that, under the facts of the case,

Persaud’s actions met the definition of “misconduct” was clearly erroneous. We find no clear

error. Persaud disobeyed her employer’s instruction. The instruction was not unlawful. And it

was reasonable. In construing the word “reasonable” in section 602(A)’s general misconduct

definition, courts have found that an instruction is “reasonable” if it “appropriately relate[s] to

the workplace” and concerns standards of behavior that an employer has a right to expect from

an employee. Sudzus v. Department of Employment Security, 393 Ill. App. 3d 814, 827 (2009);

Livingston v. Department of Employment Security, 375 Ill. App. 3d 710, 716 (2007). Here,

McEachin’s request was clearly reasonable, as it related directly to Persaud’s work; McEachin

wanted to discuss, among other things, a work improvement plan for Persaud.

¶ 24    Nor, for good reason, does Persaud try to argue that any of the exceptions under

subsection (A)(5) would apply—that the request to meet with Persuad was a task that Persaud

was unable to perform due to a lack of ability, skills, or training, or that meeting with McEachin

would be unsafe. We find no clear error in the application of the facts to the law.




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¶ 25   A few final points. First, in her appellate brief, Persaud raises an issue regarding the

manner in which the circuit court handled her case. Any such complaint is irrelevant to our

decision, as on administrative review, we review the decision of the Board, not the circuit court.

Petrovic, 2016 IL 118562, ¶ 11.

¶ 26   Second, in her appellate brief and in a letter to the circuit court, Persaud has attempted to

introduce a number of factual matters that do not appear in the administrative record. Among

them: (1) that McEachin “subsequently asked to resign and now no longer works at

Northwestern Medicine. I understand that this was a direct result orchestrated by the physicians

we worked with because of her conduct[]”; and (2) that McEachin had been “hassling” Persaud

for several months and was biased against her.

¶ 27   But our review is limited to the record before us; neither the trial court nor this court may

consider additional evidence. Abrahamson v. Illinois Department of Professional Regulation,

153 Ill.2d 76, 88, (1992); 735 ILCS 5/3-110 (West 2016) (on administrative review, “[n]o new or

additional evidence in support of or in opposition to any *** decision of the administrative

agency shall be heard by the court.”). Because this information was not presented during the

administrative proceedings below, we cannot consider it.

¶ 28                                     CONCLUSION

¶ 29   The Board’s decision is affirmed.

¶ 30   Affirmed.




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