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                                   Appellate Court                           Date: 2019.08.26
                                                                             12:30:59 -05'00'



        Persaud v. Department of Employment Security, 2019 IL App (1st) 180964



Appellate Court        PATRICIA PERSAUD, Plaintiff-Appellant, v. THE DEPARTMENT
Caption                OF EMPLOYMENT SECURITY, THE DIRECTOR OF
                       EMPLOYMENT SECURITY BOARD OF REVIEW, and
                       NORTHWESTERN          MEMORIAL      HEALTHCARE       INC.,
                       Defendants-Appellees.



District & No.         First District, Third Division
                       Docket No. 1-18-0964



Filed                  April 17, 2019



Decision Under         Appeal from the Circuit Court of Cook County, No. 18-L-50087; the
Review                 Hon. James M. McGing, Judge, presiding.



Judgment               Affirmed.


Counsel on             Patricia Y. Persaud, of Evanston, appellant pro se.
Appeal
                       Lisa Madigan, Attorney General, of Chicago (David L. Franklin,
                       Solicitor General, and Caleb Rush, Assistant Attorney General, of
                       counsel), for appellees.
     Panel                     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 Department of Employment Security Board of Review (Board) found plaintiff, Patricia
      Persaud, ineligible to receive benefits under the Unemployment Insurance Act (Act) (820 ILCS
      405/100 et seq. (West 2016)). The circuit court affirmed that decision. We affirm as well.

¶2                                          BACKGROUND
¶3        Persaud was employed as a patient service representative by Northwestern Memorial
      Healthcare, Inc. (Northwestern), 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.
              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.”




                                                   -2-
¶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 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 September 27 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 (820
       ILCS 405/602(A)(5) (West 2016)), 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 a 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.”
¶ 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.


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¶ 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, State Panel, 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 210. When examining an agency’s factual findings, we will not reweigh
       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. Illinois 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 the Policemen’s Annuity & Benefit Fund, 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.”).
¶ 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 211 (quoting AFSCME, 216 Ill. 2d at 577, 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 whether 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 essence requesting a “reasonable *** accommodation.” The Board’s factual
       findings were not against the manifest weight of the evidence.


                                                    -4-
¶ 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 a 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:
               “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.” (Emphases
                   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 a reasonable work-related rule,”
       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



                                                     -5-
       Board of the Firemen’s Annuity & Benefit Fund, 318 Ill. App. 3d 32, 36 (2000); Toner v.
       Retirement Board of the Policemen’s Annuity & Benefit Fund, 259 Ill. App. 3d 67, 70 (1994).
¶ 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 be
       “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 Persaud 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.
¶ 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.




                                                    -6-
¶ 28                                    CONCLUSION
¶ 29   The Board’s decision is affirmed.

¶ 30   Affirmed.




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