                                         2017 IL App (3d) 150676

                                Opinion filed March 28, 2017
     _____________________________________________________________________________

                                                  IN THE

                                  APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                    2017

     PETERSON VET, INC.,                    )   Appeal from the Circuit Court
                                            )   of the 10th Judicial Circuit,
              Plaintiff-Appellee,           )   Tazewell County, Illinois.
                                            )
              v. 	                          )
                                            )

     THE DEPARTMENT OF                      )

     EMPLOYMENT SECURITY, an                )

     administrative agency of the State of  )

     Illinois; DIRECTOR OF EMPLOYMENT       )

     SECURITY; THE DEPARTMENT OF            )   Appeal No. 3-15-0676

     EMPLOYMENT SECURITY, BOARD             )   Circuit No. 14-MR-162 

     OF REVIEW, an administrative agency of )

     the State of Illinois,                 )

                                            )

              Defendants,                   )

                                            )

              and                           )

                                            )

     KARA TIMMERMAN,	                       )   The Honorable

                                            )   David J. Dubicki, 

              Defendant-Appellant.          )   Judge presiding.

     ____________________________________________________________________________

           JUSTICE CARTER delivered the judgment of the court, with opinion.
           Justices O’Brien and Schmidt concurred in the judgment and opinion.
     _____________________________________________________________________________

                                                OPINION

¶1          Plaintiff, Peterson Vet, Inc., filed a complaint in the trial court for administrative review

     of a decision of the Department of Employment Security Board of Review (Board) that granted
     unemployment insurance benefits (unemployment benefits or benefits) to one of Peterson Vet’s

     former employees, defendant Kara Timmerman. Upon review, the trial court reversed the

     Board’s decision and denied Timmerman’s claim for benefits. Timmerman appeals. We set aside

     the Board’s decision and affirm the trial court’s judgment.

¶2                                                FACTS

¶3          Timmerman was employed by Peterson Vet (employer) from July 30, 2013, to February

     10, 2014, as a veterinary technician and was paid $13.25 an hour. Shortly after being discharged

     from her employment, Timmerman filed an application with the Department of Employment

     Security (Department) for unemployment benefits. The employer filed a timely protest to

     Timmerman’s claim, alleging that Timmerman was ineligible for benefits under section 602(A)

     of the Unemployment Insurance Act (Act) (820 ILCS 405/602(A) (West 2014)) because she had

     been discharged for misconduct connected with her work. In its letter of protest, the employer

     stated that Timmerman was discharged for dishonesty related to the status of her certified

     veterinary technician (CVT) license because she had falsely represented on her employment

     application that she was a CVT when, in fact, she had allowed her CVT license to lapse. After

     reviewing the matter, a Department claims adjudicator determined that Timmerman was

     ineligible for unemployment benefits based upon misconduct.

¶4          Timmerman filed a letter of appeal, challenging the claims adjudicator’s ruling. In April,

     2014, a telephone hearing was held on the matter before a Department referee. The evidence

     presented at that hearing can be summarized as follows. Lori Vogler, the office manager of the

     employer’s veterinary clinic (clinic), testified that the employer had purchased the clinic from

     Dr. Annette Guswiler on July 30, 2013. At that time, all of the employees that worked for

     Guswiler, including Timmerman, were hired by the employer. As part of that process, all of the


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     employees were required to fill out new employment applications and were explicitly instructed

     to fill out those applications truthfully and accurately.

¶5          According to Vogler, Timmerman made false statements on her employment application

     when she wrote in “CVT” under both the job-title section of the application and under the

     licenses, certificates, and special skills section of the application. Vogler stated that the clinic

     was not required by law to have a CVT on staff but had elected to do so. Vogler testified further

     that Timmerman had also represented that she was a CVT on sign-in sheets for two safety-

     training meetings in December 2013 and January 2014. In addition, on two different occasions

     during those same two months, Vogler and Dr. Justin Peterson had discussions with Timmerman

     about job performance during which time it was pointed out to Timmerman that as a CVT, she

     was paid at a higher rate and was expected to perform accordingly. On both of those occasions,

     Timmerman had the opportunity to inform Dr. Peterson that she was no longer certified but did

     not do so.

¶6          In January 2014, Vogler was told by another employee that Timmerman’s CVT license

     had lapsed. Vogler checked the applicable state website and found out that Timmerman’s license

     had expired in January 2013. Vogler confronted Timmerman about the matter on February 10,

     2014, and Timmerman acknowledged that she had allowed her license to expire. The employer

     discharged Timmerman at that time.

¶7          Emily Puckett testified that she was employed by the clinic and that she worked with

     Timmerman. In August 2013, Puckett had a conversation with Timmerman at the clinic, and

     Timmerman told Puckett that she was the only CVT at the facility. In addition, in November

     2013, a meeting was held at the clinic on how to handle emergency situations. During the

     meeting, when Puckett asked about needing to know or learning how to do cardiopulmonary


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       resuscitation (CPR), Timmerman responded that she was the only person who would be doing

       CPR, aside from the doctors, because she was the only CVT.

¶8             Another employee of the clinic, Amber Stine, gave similar testimony at the hearing about

       the statement that Timmerman had made at the November 2013 meeting.

¶9             Jacqueline Smith testified that she was employed by the clinic and was present when

       Timmerman signed the sign-in sheet at one of the safety meetings. Timmerman signed the job-

       description portion of the sheet as being a CVT. Smith asked Timmerman what “CVT” meant,

       and Timmerman told her that it meant certified veterinary technician.

¶ 10           Stacy Loenneke testified that she was employed by the clinic and that she had a

       discussion with Timmerman at some point between Thanksgiving and Christmas 2013 about

       employment. During that discussion, Timmerman told Loenneke that she had allowed her CVT

       license to lapse because she could not afford to renew it. When Loenneke asked Timmerman

       whether it was the responsibility of Timmerman or the clinic to pay for the license renewal,

       Timmerman responded that it was her responsibility.

¶ 11           Michael Johnston testified that he was employed at the clinic and that in October 2013,

       he heard Timmerman identify herself as a CVT during a phone call that she was having with a

       third party.

¶ 12           Dr. Justin Peterson testified that he was the individual who ran the clinic. On July 30,

       2013, when the employer purchased the clinic, each employee was asked to fill out a job

       application. Peterson identified the application that Timmerman had filled out and had signed on

       that date. Under the job title section of the application, “CVT” was written in. In addition, under

       the certificates and special skills section of the application, “CVT” was written in there as well.




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       Peterson was present when Timmerman was terminated, and Timmerman acknowledged that she

       was not a licensed CVT and that her license had lapsed the prior year.

¶ 13            Dr. Annette Guswiler, the former owner of the clinic, testified for Timmerman that

       Timmerman worked for her as a CVT for almost five years. Guswiler did not remember

       Timmerman telling her that she had allowed her CVT license to lapse but did not doubt that

       Timmerman had told her because Timmerman had always been honest with Guswiler. According

       to Guswiler, it would not have mattered to her that Timmerman had allowed her CVT license to

       lapse.

¶ 14            At the hearing, Timmerman testified on her own behalf about her employment at the

       clinic. During that testimony, Timmerman identified the employment application that she had

       filled out for the employer in July 2013 and had signed. Timmerman confirmed that under the

       certificates, licenses, and special skills section of the application, she had written in “CVT.”

       Timmerman also acknowledged that below her signature on the application, the application

       stated that: (1) the information she provided was subject to verification and that falsification or

       misrepresentation could disqualify her from consideration or, if she was hired, could be grounds

       for termination of her employment at a later date; and (2) she was certifying that all the

       information on the application was true, correct, and complete to the best of her knowledge.

¶ 15            Timmerman testified further that she did not believe that she had misrepresented her

       qualifications. According to Timmerman, she merely listed on the employment application that

       she was a CVT, not that she was a licensed CVT. Timmerman stated that she had listed herself as

       a CVT on the application because she had completed a two-year college program, had received a

       certificate from that program, and had passed the board exams. Timmerman also listed the

       information because the application itself asked about certifications. It was Timmerman’s


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       position that she was a CVT at the time when she filled out the employment application and that

       she was still a CVT at the time of the hearing—she was just no longer a licensed CVT.

       Timmerman commented that she was not required by law to have a license to practice as a

       veterinary technician.

¶ 16          Timmerman stated that she did not renew her license because at the time, she and her

       husband were filing for bankruptcy, she could not afford the $50 renewal fee, and it did not

       matter to Dr. Guswiler whether Timmerman was licensed or not. According to Timmerman,

       neither Dr. Peterson nor Vogler ever told Timmerman one way or the other whether the

       employer required Timmerman to renew her CVT license. Timmerman agreed that she did not

       tell Dr. Peterson or Vogler that her license had expired at either of the two work-performance

       meetings that were mentioned. Timmerman also did not dispute that she had told some of her

       coworkers that she was a CVT. Timmerman maintained during her testimony, however, that she

       was a CVT at that time and that she was still a CVT.

¶ 17          In rebuttal testimony, Vogler referred to certain portions of the Illinois Administrative

       Code which, according to Vogler, provided that to be a CVT, a person had to renew his or her

       CVT license, pay the renewal fee, and obtain 15 hours of continuing education (see 68 Ill. Adm.

       Code 1505.50, amended at 40 Ill. Reg. 2936, 2943 (eff. Feb. 16, 2016)).

¶ 18          In addition to the above testimony, numerous documents were admitted as exhibits in the

       hearing before the referee. Some of the documents that were admitted were Timmerman’s

       employment application; two Internet search results, which showed that Timmerman’s CVT

       license had expired on January 31, 2013, and had not been renewed; copies of sign-in sheets for

       two safety meetings, which showed that Timmerman had signed in as a CVT; and various

       portions of the Administrative Code.


                                                      6

¶ 19          After all of the evidence had been presented and the referee had listened to the arguments

       of the parties, the hearing was concluded. The referee issued a written decision later that same

       month, finding that Timmerman had been discharged for misconduct connected with her work

       and that she was ineligible for unemployment benefits under the Act. In reaching that conclusion,

       the referee noted that: (1) Timmerman had provided false information at the time of her hire and

       had persisted in presenting that false information at the hearing; and (2) Timmerman’s behavior

       violated the employer’s requirements and broke the bond of trust essential to the employee

       relationship. The referee, therefore, affirmed the decision of the claims adjudicator.

¶ 20          In May 2014, Timmerman appealed the referee’s decision to the Board. The Board

       reviewed the evidence that had been presented in the hearing before the referee and considered

       the written arguments that Timmerman had made in her appeal to the Board. After doing so, the

       Board determined that no additional evidentiary proceedings were necessary. In July 2014, the

       Board issued a written ruling, reversing the referee’s decision. In analyzing the issue, the Board

       applied a four factor test from a 1985 digest of adjudication precedents to determine whether a

       false statement or omission in an employment application constituted misconduct under the Act.

       According to the Board, to constitute misconduct under the test, all four of the following factors

       had to be satisfied: (1) the employer’s requirement as to what information the prospective worker

       had to reveal on the work application had to be reasonable; (2) the employer’s accurate

       knowledge of the requested information had to be material in the selection of the worker for the

       job; (3) the false statement or omission had to be willfully made by the worker; and (4) the

       falsification of the work application had to tend to injure the interests of the employer.

¶ 21          Applying that test to the facts of the present case, the Board found that the information

       that the employer required Timmerman to reveal on the employment application was reasonable,


                                                         7

       that Timmerman understood what it meant to be certified, that she was willfully and deliberately

       not truthful with the employer, and that her false statement tended to injure the interests of the

       employer because Timmerman received more money than the other veterinary technicians,

       which she would not have received if she had been truthful with the employer. The Board went

       on to conclude, however, that Timmerman’s false statement was not material in the employer’s

       decision to hire Timmerman for the position because the record did not show that Timmerman

       would not have been hired if the truth had been known that Timmerman was not a CVT. Rather,

       the record showed only that Timmerman would have been hired at a lesser rate of pay. Thus,

       according to the Board, the required information was not material in the employer’s selection of

       Timmerman for employment, only in the assigned rate of pay that Timmerman received. The

       Board, therefore, granted Timmerman’s claim for unemployment benefits.

¶ 22          In September 2014, the employer filed the instant administrative review action in the trial

       court to challenge the Board’s ruling. Upon review, the trial court reversed the Board’s decision.

       In reaching that conclusion, the trial court found, contrary to the determination of the Board, that

       Timmerman’s false statement or misrepresentation on the employment application about being a

       CVT was material to the employer’s selection of Timmerman for the position. The trial court,

       therefore, denied Timmerman’s claim for benefits. Timmerman appealed.

¶ 23                                              ANALYSIS

¶ 24          On appeal, Timmerman argues that the trial court erred in reversing the Board’s ruling

       and in denying Timmerman’s claim for unemployment benefits. Timmerman asserts that the trial

       court’s ruling was erroneous because: (1) it was contrary to the manifest weight of the evidence;

       (2) the trial court improperly considered criminal sanctions in determining whether the alleged

       misrepresentation was material; and (3) the trial court failed to identify what evidence it relied


                                                        8

       upon in overturning the Board’s decision. For all of the reasons stated, Timmerman asks that we

       reverse the trial court’s judgment and that we remand this case to the trial court for further

       proceedings.

¶ 25          The employer argues that the Board’s ruling granting Timmerman’s application for

       unemployment benefits was properly overturned by the trial court. The employer asserts that the

       Board committed clear error when it determined that Timmerman’s false statement about the

       status of her CVT license was not material to the employer’s decision to hire Timmerman,

       despite the Board having found that Timmerman had willfully and intentionally lied to the

       employer about the matter and that the employer’s interests were injured by Timmerman’s false

       statement. The employer asserts further that Timmerman’s false statement about the status of her

       CVT license was misconduct under the law, was appropriate grounds for termination of

       Timmerman’s employment, and served to disqualify Timmerman from receiving unemployment

       benefits under the Act. For all of the reasons set forth, the employer asks that we reverse the

       ruling of the Board (and affirm the judgment of the trial court).

¶ 26          Judicial review of the Board’s decision is governed by the Administrative Review Law

       and extends to all questions of law and fact presented by the entire record. 820 ILCS 405/1100

       (West 2014); 735 ILCS 5/3-110 (West 2014); Petrovic v. Department of Employment Security,

       2016 IL 118562, ¶ 22; AFM Messenger Service, Inc. v. Department of Employment Security, 198

       Ill. 2d 380, 390 (2001). On administrative review, the appellate court reviews the final decision

       of the Board, not the decision of the trial court. Petrovic, 2016 IL 118562, ¶ 22. The Board’s

       determination as to misconduct is a mixed question of fact and law and is subject to a clearly

       erroneous standard of review on appeal. Id. ¶ 21; Abbott Industries, Inc. v. Department of

       Employment Security, 2011 IL App (2d) 100610, ¶ 16. Under the clearly erroneous standard, the


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       Board’s decision will not be overturned unless the appellate court, after reviewing the entire

       record, is left with the definite and firm conviction that a mistake has been committed. Petrovic,

       2016 IL 118562, ¶¶ 21-22.

¶ 27          Under the Act, an employee is ineligible for unemployment insurance benefits if the

       employee was discharged for misconduct connected to his or her work. 820 ILCS 405/602(A)

       (West 2014); Petrovic, 2016 IL 118562, ¶¶ 24-25. Misconduct is defined in the Act 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 or other explicit instruction

                      from the employing unit.” 820 ILCS 405/602(A) (West 2014).

¶ 28          The Act’s misconduct disqualification reflects the legislature’s intent not to exclude all

       employees who have been fired from their jobs from receiving unemployment benefits, but,

       rather, to exclude only those employees who intentionally commit conduct which they know is

       likely to result in their termination. See Petrovic, 2016 IL 118562, ¶ 27; Abbott Industries, Inc.,

       2011 IL App (2d) 100610, ¶ 19 (recognizing the legislature’s intent that those employees who

       have been discharged because of their inadvertent or negligent acts or their incapacity or inability

       to perform their assigned tasks should not be excluded from receiving benefits on the basis of

       misconduct). Thus, an employer who seeks to establish that an employee should be disqualified

       from receiving unemployment benefits because of misconduct must satisfy a higher burden than

       merely proving that the employee was rightly discharged. See Petrovic, 2016 IL 118562, ¶ 27.

       Rather, to establish the misconduct disqualification under the Act, the employer must prove all

       three of the following elements with competent evidence in the record: (1) that the employer had


                                                       10 

        a reasonable work rule or policy that governed the employee’s behavior in the performance of

        his or her work; (2) that the employee deliberately and willfully violated that rule or policy; and

        (3) that the violation either harmed the employer or other employees or was repeated by the

        employee despite a previous warning or explicit instruction from the employer to cease the

        conduct. See id. ¶¶ 26-28; Manning v. Department of Employment Security, 365 Ill. App. 3d 553,

        557 (2006).

¶ 29	          In addition to the above requirements, in the context of a prospective employee’s false

        statement or omission in an employment application, the appellate court has adopted the Board’s

        requirement that the false statement or omission must be made as to a material fact for

        misconduct to occur. See Roundtree v. Board of Review, 4 Ill. App. 3d 695, 696-98 (1972). Thus,

        a false answer to a material question on an employment application may constitute misconduct

        connected to the employee’s work that will disqualify the employee from benefits under the Act.

        See id. (finding under the circumstances of the case that the employee’s denial of a prior felony

        conviction in his employment application was misconduct under the Act that made the employee

        ineligible for unemployment benefits); see also Price v. Civil Service Board of the Metropolitan

        Sanitary District of Greater Chicago, 123 Ill. App. 2d 2, 9 (1970) (affirming the reasonableness

        of a Civil Service rule that provided for the dismissal of any employee who made a false

        statement of material fact in his application for employment). In so doing, the appellate court

        noted that the Board’s holding in that regard reflected the Board’s opinion that there was an

        integral connection between the material information requested on an employment application

        and the employment gained therefrom. See Roundtree, 4 Ill. App. 3d at 697. In fact, section

        602(A) of the Act has since been amended to specifically include as examples of misconduct the

        falsification of an employment application in an effort to obtain employment through subterfuge


                                                        11 

       and the failure to maintain licenses, registrations, and certifications reasonably required by the

       employer (see Pub. Act 99-488 § 5 (eff. Jan. 3, 2016) (amending 820 ILCS 405/602(A)),

       although the amended version of the statute is not applicable here.

¶ 30          In the present case, the only issue on appeal is whether the Board’s determination—that

       Timmerman’s false statement was not material—is clearly erroneous. See Petrovic, 2016 IL

       118562, ¶¶ 21-22; Abbott Industries, Inc., 2011 IL App (2d) 100610, ¶¶ 15-16. The other

       elements of misconduct were found to be satisfied by the Board, were not disputed in the trial

       court, and have not been disputed here. As to the issue of materiality, when we review the entire

       record before the Board in light of the above legal principles, we are indeed left with a definite

       and firm conviction that the Board committed a mistake in determining that Timmerman’s false

       statement was not material. See Petrovic, 2016 IL 118562, ¶¶ 21-22; Abbott Industries, Inc.,

       2011 IL App (2d) 100610, ¶¶ 15-16. The record shows that, although the employer was not

       required to hire a CVT, it had chosen to do so and had elected to employ Timmerman in that

       position. Because the employer believed that Timmerman was a CVT, the employer paid

       Timmerman at a higher rate than the other veterinary technicians, gave Timmerman more

       responsibility (the ability to perform CPR on the animals), and held Timmerman to a higher

       standard of conduct. Indeed, the employer would not have been able to hire Timmerman as a

       CVT if Timmerman had told the employer from the outset that she no longer held a valid CVT

       license. The materiality of the false statement is further evidenced by the fact that the employer

       immediately discharged Timmerman after the employer confronted Timmerman about the matter

       and Timmerman acknowledged that she had allowed her CVT license to lapse. Moreover, in

       considering whether the false statement was material, we can not discount the negative impact on

       the employer-employee relationship that undoubtedly would have been caused by Timmerman’s


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       breach of trust. See Roundtree, 4 Ill. App. 3d at 697 (noting that the Board’s holding reflected

       the Board’s opinion that there was an integral connection between the material information

       requested on an employment application and the employment gained therefrom).

¶ 31          A fundamental flaw in the Board’s ruling in this case is that the Board ignored the true

       factual circumstances before it. Instead of only considering whether the employer would have

       hired Timmerman if she had been truthful on her employment application about the status of her

       CVT license, the Board also should have considered whether the employer would have hired

       Timmerman if the employer had known that Timmerman had made the false statement on her

       employment application. See id. Only then could the Board truly give weight to the negative

       effect of Timmerman’s false statement in determining whether the statement was material in the

       employment decision.

¶ 32          Thus, under the circumstances of the present case, even though we have given the

       appropriate amount of deference to the Board’s determination, we must conclude that the

       Board’s finding of a lack of materiality was clearly erroneous. Petrovic, 2016 IL 118562, ¶¶ 21­

       22; Abbott Industries, Inc., 2011 IL App (2d) 100610, ¶¶ 15-16; Roundtree, 4 Ill. App. 3d at 696­

       98; Price, 123 Ill. App. 2d at 9; see also Shah v. Chicago Title & Trust Co., 119 Ill. App. 3d 658,

       660 (1983) (recognizing in a different context that a misrepresentation is material if it relates to a

       matter upon which the plaintiff could be expected to rely in determining whether to engage in the

       conduct at question). We, therefore, set aside the ruling of the Board, which granted Timmerman

       unemployment benefits, and affirm the trial court’s judgment, which reached the opposite

       conclusion.




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¶ 33                                              CONCLUSION

¶ 34             For the foregoing reasons, we set aside the Board’s ruling and affirm the trial court’s

       judgment. The final result, therefore, is that Timmerman’s claim for unemployment benefits is

       denied.

¶ 35             Board ruling set aside; circuit court judgment affirmed.




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