                                         2017 IL App (3d) 160335

                                Opinion filed August 31, 2017
     _____________________________________________________________________________

                                                 IN THE

                                  APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                   2017

     MITCHELL STEIN,                                 ) Appeal from the Circuit Court
                                                     ) of the 9th Judicial Circuit,
           Plaintiff-Appellant,                      ) Fulton County, Illinois.
                                                     )
           v.                                        )
                                                     )
     THE DEPARTMENT OF                               )
     EMPLOYMENT SECURITY, an                         ) Appeal No. 3-16-0335
     Administrative agency of the State of Illinois; ) Circuit No. 14-MR-130
     THE DIRECTOR OF EMPLOYMENT                      )
     SECURITY; THE BOARD OF REVIEW, an )
     Administrative agency of the State of Illinois; )
     and CATERPILLAR, INC., employer,                )
                                                     ) The Honorable
           Defendants-Appellees.                     ) Patricia A. Walton,
                                                     ) Judge, presiding.
     _____________________________________________________________________________

            JUSTICE McDADE delivered the judgment of the court, with opinion.
            Justices Carter and O’Brien concurred in the judgment and opinion.

     _____________________________________________________________________________

                                                OPINION


¶1          The plaintiff, Mitchell Stein, filed an application for unemployment benefits with the

     defendant, the Department of Employment Security (the Agency). The Agency denied the

     application, finding that Stein had not been “actively seeking work” during the applicable time
     period. The circuit court upheld the Agency’s decision, and Stein appealed. On appeal, Stein

     argues that the Agency’s Board of Review (the Board) erred when it denied his application for

     unemployment benefits. We confirm the Board’s decision.

¶2                                                FACTS

¶3          Stein began working as a quality specialist for Caterpillar in February 2008. He injured

     his shoulder at work on April 11, 2013, and, as a result, his duties were reduced from working on

     the line to driving a fork truck. He was laid off because Caterpillar no longer had work for him.

     His last day of work was May 3, 2013. He applied for and began receiving unemployment

     benefits.

¶4          Stein had shoulder surgery on August 6, 2013, after which he was declared medically

     unable to work. Because of this disability, he was found ineligible to receive unemployment

     benefits, retroactive to May 5, 2013. Stein appealed that decision, claiming that he did not

     become medically unable to work until his August surgery.

¶5          A telephone hearing was scheduled for November 7, 2013, before an administrative law

     judge (ALJ). However, once everyone was connected, including Stein, the ALJ lost the

     connection and was unable to regain contact. The hearing did not take place. On November 13,

     2013, the ALJ dismissed Stein’s claim, ruling that he failed to appear for the hearing. Stein

     appealed that decision, and on February 20, 2014, the Board reinstated the claim and remanded

     the case for the ALJ to conduct a new hearing.

¶6          On March 4, 2014, the ALJ conducted another telephone hearing. It was clarified that the

     time period relevant to Stein’s unemployment compensation claim was May 5 to August 6, 2013.

     Stein claimed that he had been looking for any kind of work during that time, in part because

     there were no jobs nearby that were similar to what he had done for Caterpillar. He described


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     himself as a jack-of-all-trades and stated that he could drive equipment and trucks, could perform

     most jobs in a factory, and had worked as a machinist in Mossville. He expressed his willingness

     to work any day of the week, to drive up to 40 miles away, and to accept as little as $10 per hour

     in pay. He reported that he did not receive any job offers in response to his inquiries. However,

     he did not have the job search log in front of him for the hearing.

¶7          The ALJ issued a second decision on March 5, 2014, finding that Stein made only a

     perfunctory search for work during the applicable time period, as he had no job search record

     and could not recall any specific employer that he had contacted. Thus, the ALJ found that Stein

     was not actively seeking work and that he was ineligible to receive benefits for the applicable

     time period.

¶8          Stein appealed that decision, claiming that he was under the impression that the only

     issue to be considered at the hearing was whether he was under a medical work restriction during

     the applicable time period. The Board found that Stein could in fact have been confused about

     the scope of the hearing, as the original determination only addressed his inability to work and

     availability to work. Thus, the Board remanded the case once again for another hearing at which

     evidence on Stein’s job search was to be received and considered.

¶9          Another telephone hearing was conducted by the ALJ on June 11, 2014. Stein submitted

     his job search record for the hearing. That record indicated that Stein, who resided in Canton,

     performed two job inquiries per week between May 7 and August 5, 2013, for a total of 27

     inquiries. Ten of these inquiries were made in person and 17 were made by phone. Of the 27

     inquiries, 25 were to Canton businesses, and 2 were made to businesses in nearby Farmington.

     There were no follow-up inquiries made of any of these businesses. One inquiry resulted in no

     callback and one resulted in no answer, but the remaining 25 inquiries all resulted in Stein being


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       told that the businesses were not hiring. Stein stated that the economy was bad at the time. He

       was willing to work any days, any hours, up to an hour away, and for at least $10 per hour. The

       inquiries were made of a broad range of businesses, and most of the inquiries were for any type

       of position. Several of the inquiries he made were for maintenance or driver positions.

¶ 10          Stein’s claim was denied for a third time. This time, the ALJ found that Stein’s job search

       constituted a “meager” effort such that it was not a search “reasonably calculated to return to the

       labor force.” Stein appealed that decision. He attached an affidavit to his appeal in which he

       stated that when he was at the Agency’s Peoria office in May 2013, an employee told him that

       searching for two or three jobs per week would be sufficient.

¶ 11          On September 18, 2014, the Board issued its decision affirming the ALJ’s decision. First,

       the Board refused to afford any weight to the claim in Stein’s affidavit:

                              “Regarding the claimant’s contention that he received ill

                      informed advice from a Department representative when he filed

                      his claim for benefits, in Deford-Goff v. Department of Public Aid,

                      281 Ill. App. 3d 888, 667 N.E.2d 701 (4th Dist. 1996), the Court

                      held that the affirmative acts of the State inducing detrimental

                      reliance in another generally must be the acts of the State itself,

                      such as legislation, rather than the unauthorized acts of a

                      ministerial officer. As stated by the Court in Halleck v. County of

                      Cook, 264 Ill. App. 3d 887, 637 N.E.2d 1110 (1st Dist. 1994), if a

                      government entity were held bound through equitable estoppel by

                      an unauthorized act of a governmental employee, than [sic] the

                      government would remain helpless to remedy errors and forced to


                                                        4
                       permit violations to remain in perpetuity. We therefore find this

                       contention invalid in the instant case.”

       Second, the Board found that Stein’s “contacts with potential employers were meager, and

       evidence only a perfunctory effort to find work.” Thus, the Board ruled that Stein had not been

       actively seeking work during the applicable time period.

¶ 12            Stein appealed the Board’s decision to the circuit court. On May 5, 2016, the court issued

       its written decision affirming the Board’s ruling. Stein appealed.

¶ 13                                                ANALYSIS

¶ 14            Stein’s first argument on appeal is that the procedural missteps that occurred in this case

       mandate a reversal of the Board’s decision. He admits that the proper evidence was eventually

       considered, but claims that the outcome was “preordained” and that the “entire process” was

       clearly erroneous. Stein provides no authority to support of the existence or viability of this

       claim.

¶ 15            Illinois Supreme Court Rule 341(h)(7) (eff. Jan. 1, 2016) requires appellants to provide

       citations to authority for their arguments. Vancura v. Katris, 238 Ill. 2d 352, 370 (2010) (holding

       that “[a]n issue that is merely listed or included in a vague allegation of error is not ‘argued’ and

       will not satisfy the requirements of the rule”). The failure to include supporting authority results

       in the forfeiture of the argument. Id. Because Stein has provided no authority in support of his

       first claim, it has been forfeited for appellate review and we do not consider its merits.

¶ 16            Stein’s second argument on appeal is that the Board’s decision was clearly erroneous and

       against the manifest weight of the evidence. Specifically, Stein contends that he was in fact

       “actively seeking work” as required by the Unemployment Insurance Act.




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¶ 17          When an appeal of an administrative agency’s final decision comes to this court, we

       review the decision of the agency—here, the Board’s decision—rather than that of the circuit

       court. Petrovic v. Department of Employment Security, 2016 IL 118562, ¶ 22. “The findings and

       conclusions of the administrative agency on questions of fact shall be held to be prima facie true

       and correct.” 735 ILCS 5/3-110 (West 2014). Because our review of the Board’s decision

       requires us to determine the legal effect of a particular fact scenario, this appeal involves a mixed

       question of law and fact. See Petrovic, 2016 IL 118562, ¶ 21. We review a mixed question of

       law and fact under the clearly erroneous standard. Id. “An agency’s decision is clearly erroneous

       if, based on the entire record, the reviewing court is left with the definite and firm conviction that

       a mistake has been committed [Citation.].” (Internal quotation marks omitted.) Id.

¶ 18          In part, section 500(C) of the Unemployment Insurance Act provides that an unemployed

       individual is eligible to receive benefits if “[h]e is able to work, and is available for work;

       provided that during the period in question he was actively seeking work and he has certified

       such.” 820 ILCS 405/500(C) (West 2014). The Unemployment Insurance Act does not define

       “actively seeking work,” but the Department has defined it in section 2865.115 of the Illinois

       Administrative Act:

                              “a) An individual is actively seeking work when he makes

                      an effort that is reasonably calculated to return him to the labor

                      force. Reasonableness is determined by factors including, but not

                      limited to: the individual’s physical and mental abilities, his

                      training and experience, the employment opportunities in the area,

                      the length of unemployment, and the nature and number of work




                                                          6
                      search efforts in light of the customary means of obtaining work in

                      the occupation.” 56 Ill. Adm. Code 2865.115(a) (1993).

¶ 19          Section 2865.115 also contains guidelines and examples regarding whether one is

       “actively seeking work.” One relevant guideline is found in section 2865.115(d), which states in

       part that “[w]hether an individual is actively seeking work is determined in part by comparing

       his occupation with labor market conditions in the locality.” 56 Ill. Adm. Code 2865.115(d)

       (1993). Also, section 2865.115(e) states that “[a]s the period of unemployment lengthens, the

       individual should intensify his efforts to find work in his usual occupation, or, he should pursue

       work in another occupation for which he is qualified.” 56 Ill. Adm. Code 2865.115(e) (1993).

       Further, section 2865.115(f) provides:

                              “Whether or not the individual is actively seeking work is

                      determined by the quality of his efforts; although the quantity of

                      job contacts should be considered, it is not necessarily

                      determinative of an active search for work. The methods that the

                      individual uses to contact employers should be examined in light

                      of those customarily used to obtain work in the occupation.” 56 Ill.

                      Adm. Code 2865.115(f) (1993).

¶ 20          Our review of the record in this case reveals no error in the Board’s decision to deny

       Stein unemployment benefits during the applicable time period. The job search record provided

       by Stein indicated that he made two inquiries per week between May 7 and August 5, 2013, and

       did not “intensify his efforts” as that time period lengthened. See 56 Ill. Adm. Code 2865.115(e)

       (1993). That failure may have been justified by changes in his physical condition, but we see no

       evidence that the ALJ was provided with any such information. However, the quantity of job


                                                        7
       inquiries is not necessarily the sole, or even the major determinant of the diligence of Stein’s job

       search (56 Ill. Adm. Code 2865.115(f) (1993)). Therefore, we also consider the quality of Stein’s

       inquiries.

¶ 21           Despite Stein’s testimony at the hearing that he would have been willing to work as far as

       an hour and/or 40 miles away from Canton, 25 of his 27 job inquiries were made of businesses in

       his hometown of Canton; the remaining two were made in nearby Farmington. Further, while his

       inquiries were made of a broad range of business types, Stein had been coming off a job in which

       his duties were limited due to his shoulder injury, and he provided no evidence at the hearing that

       he would be physically capable of performing the positions for which he was inquiring (see 56

       Ill. Adm. Code 2865.115(b) (1993) (stating that “[a]n individual is not actively seeking work if

       he seeks work that is unrealistic in light of his physical or mental limitations”)) or whether he

       was even qualified for any available positions with those employers (see 56 Ill. Adm. Code

       2856.115(c) (1993) (stating that “[t]he individual is not actively seeking work if he seeks work

       that is unrealistic in light of his training or experience”). As Stein described himself as a jack-of-

       all-trades and because there was no evidence to suggest that his former position with Caterpillar

       required any specialized skill or certification, 1 we see no reason why Stein could not have

       expanded the geographic reach of his job search, at least to his self-professed limits, or why he

       could not have performed more than two job inquiries per week—even in light of his testimony

       that the economy was “bad” at the time. See 56 Ill. Adm. Code 2865.115(d) (1993) (stating that

       “[w]hether an individual is actively seeking work is determined in part by comparing his

       occupation with labor market conditions in the locality”).


               1
                Again, Stein stated at one of the hearings that there were no jobs nearby that were similar to

       what he did for Caterpillar.


                                                            8
¶ 22          Regarding his claim about the Department employee who allegedly told him that two or

       three job inquiries per week would be sufficient, Stein alleges that “the Supreme Court found an

       argument along these lines to be persuasive with regard to the statements of unemployment

       personnel in [Ferretti v. Department of Labor, 115 Ill. 2d 347 (1987)].” However, Stein provides

       no pinpoint citation for his claim, and a review of the Ferretti decision does not confirm that any

       such statements were made to Ferretti by unemployment personnel. In fact, our supreme court

       quoted the appellate court’s statement that “ ‘[the claimant] stated that during his routine visits to

       the unemployment office, no one questioned the adequacy of his job search list or suggested any

       guidelines as to the nature or quantity of job contacts necessary to fulfill the requirements of [the

       Unemployment Insurance Act].” Id. at 354. Thus, Ferretti does not provide any support for

       Stein’s claim in this regard. Moreover, Stein makes no attempt to attack the Board’s rationale for

       rejecting this claim—specifically, the two cases the Board cited that discuss equitable estoppel in

       relation to unauthorized acts of ministerial officers (Deford-Goff v. Department of Public Aid,

       281 Ill. App. 3d 888 (1996); Halleck v. County of Cook, 264 Ill. App. 3d 887 (1994)). For these

       reasons, we likewise reject Stein’s claim.

¶ 23          “The receipt of unemployment compensation is not without limitation but is a conditional

       right and the burden of proof of eligibility rests upon the claimant.” Brown v. Board of Review, 8

       Ill. App. 3d 19, 23 (1972). Unemployment benefits cannot be obtained merely by presenting the

       Department with a job search log that contains few details. The applicant must also demonstrate,

       inter alia, that he or she was “actively seeking work” as defined by section 2865.115 of the

       Illinois Administrative Code. To the extent that Stein attacks the Board’s decision for the failure

       to cite certain factors listed in section 2865.115, we find that “deficiency” to be more a measure

       of Stein’s failure to present pertinent evidence at the hearing than the Board’s failure to consider


                                                         9
       those factors. Under these circumstances, we hold that the Board did not err when it found that

       Stein was not “actively seeking work” during the applicable time period such that he was not

       eligible to receive unemployment benefits for that period.

¶ 24                                           CONCLUSION

¶ 25          The judgment of the Department of Employment Security’s Board of Review is

       confirmed.

¶ 26          Confirmed.




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