Leach v. Dep't of Emp't Sec.

2020 IL App (1st) 190299

156 N.E.3d 1158

441 Ill.Dec. 409

Tracyie D. LEACH, Plaintiff-Appellee,

v.The DEPARTMENT OF EMPLOYMENT SECURITY, an Administrative Agency in the State of Illinois; The Director of Employment Security; The Board of Review of the Department of Employment Security, an Administrative Agency in State of Illinois; and Hawthorne Race Course, Inc., Employer, Defendants

(The Department of Employment Security, The Director of Employment Security, and The Board of Review of the Department of Employment Security, Defendants-Appellants).

No. 1-19-0299

Appellate Court of Illinois, First District, Fourth Division.

Order filed February 27, 2020

Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz, Solicitor General, and Paul Racette, Assistant Attorney General, of counsel), for appellants.

No brief filed for appellee.

JUSTICE BURKE delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Tracyie D. Leach, worked as a security guard for Hawthorne Race Course, Inc. (Hawthorne) from August 2007 through May 2018. In May 2018, Leach applied for unemployment benefits. After telephone hearings before a claims adjustor for the Department of Employment Security (Department) and an administrative law judge (referee), the Board of Review of the Department of Employment Security (Board) denied Leach's claim for benefits on the basis that he was not actively seeking work. Leach filed a complaint for administrative review of the Board's decision in the circuit court. The circuit court found that the Department had denied Leach due process in reviewing his claim and, therefore, reversed the Board's judgment and awarded Leach unemployment benefits. The Board now appeals, arguing that its decision was not clearly erroneous and that the circuit court erred in finding that it denied Leach due process. For the reasons that follow, we reverse the judgment of the circuit court and affirm the Board's decision.

¶ 2 I. BACKGROUND

¶ 3 The record shows that on May 15, 2018, Leach filed a claim for unemployment benefits with the Department. Leach indicated that his reason for separation from his employment was "Laid-Off (Lack of Work)." Two days later, the Department sent Leach a notice entitled "Important Notice Concerning Unemployment Benefits." The notice informed Leach that in order to be eligible for employment benefits, he was required to register for work with the Illinois Employment Service through the Illinois Job Link. The notice provided that "[y ]our registration will be considered complete when you create or upload at least one resume ." (Emphasis in original.) The notice further informed Leach that if he did not complete the registration by May 29, 2018, he would be ineligible for unemployment insurance benefits.

¶ 4 Hawthorne filed a written protest to Leach's claim for benefits contending that Leach was not laid off due to lack of work but that Leach had requested a leave of absence. Hawthorne stated that Leach was free to return to work whenever he was available and that "his return would be welcomed" because Hawthorne was short on staff. Hawthorne attached to its written protest an e-mail from a Hawthorne employee in which the employee indicated that Leach "requested a few months off due to work related outside interests." The employee explained that Leach asked to be off work through the summer and did not provide a time frame for his return to work.

¶ 5 On May 22, 2018, the Department sent Leach a "Notice of Interview." The notice informed Leach that a question had been raised regarding his eligibility for unemployment benefits. The notice further provided that "[p]rior to your interview, please provide your work search records since your last day worked and/or any documentation that may demonstrate your ability to work. To resolve this question, an interview will be necessary for you to supply information regarding [section] 500C [sic ] Able and Available" of the Unemployment Insurance Act (Act) ( 820 ILCS 405/500(C) (West 2016)). The notice informed Leach that the Department would contact him by telephone at 2 p.m. on June 4, 2018, and that he should be prepared to present any information he had regarding his case. The notice further provided that Leach's failure to participate in the scheduled interview would result in a denial of benefits. Attached to the notice was a form Leach could submit to reschedule the interview if he was not available at the scheduled time.

¶ 6 A claims adjudicator attempted to contact Leach at 2:02 p.m. on June 4, 2018, but Leach did not answer the phone. The claims adjudicator's notes indicate that Leach's phone "rang twice and went into rapid busy signal." The claims adjudicator attempted to contact Leach again at 2:16 p.m. but was unable to reach him. The claims adjudicator spoke with an agent for Hawthorne who again indicated that Leach was not terminated but requested a leave of absence for the summer and did not provide a return date. The agent indicated that Hawthorne was very busy and would "love to have [Leach] back working with us."

¶ 7 The claims adjudicator sent Leach a determination the following day in which the claims adjudicator found that Leach was not eligible for unemployment benefits because he requested a leave of absence for the summer. Leach requested reconsideration of the claims adjudicator's determination or an appeal. The Department sent Leach a notice informing him that an appeal would be scheduled with a Department referee. The notice informed Leach that he would have the opportunity to present evidence at the hearing. The notice reiterated the claims adjudicator's determination that Leach was denied benefits because he failed to demonstrate that he was able and available for work as described in section 500(C) of the Act and sections 2865.105 and 2865.110 of the Labor and Employment title of the Illinois Administrative Code (Code) ( 56 Ill. Adm. Code 2865.105, 2865.110, adopted at 14 Ill. Reg. 18466 (eff. Nov. 5, 1990)). The Department subsequently sent Leach a notice of a telephone hearing to be conducted by a referee on June 28, 2018. The notice provided that the issues to be considered at the hearing were, inter alia , whether Leach was "able to work, available for work or was actively seeking suitable work during the period in question." The notice directed Leach to section 500(C) of the Act and sections 2720.112, 2865.105, 2865.110, and 2865.115 of Title 56 of the Code.

¶ 8 The referee was unable to reach Hawthorne for the telephone hearing and thus conducted the hearing with only Leach present. At the hearing, Leach testified that he started working at Hawthorne in August 2008 as a security guard. His last day was in May 2018. Leach testified that he was involuntarily removed from the schedule and did not request to have the summer off as Hawthorne represented. He testified that he only asked to have weekends off but was available Monday through Friday. The referee asked Leach if he had spoken to anyone at Hawthorne regarding getting his job back because Hawthorne had indicated that it would welcome his return. Leach responded that he talked to Hawthorne about a raise and an increase in his hours, but he did not talk to them about returning to work. He also testified that Hawthorne "never talked to me about actually giving me the raises." He denied requesting a leave of absence but testified that he asked for weekends off because his daughter was starting college and it was easier for him to visit her on weekends.

¶ 9 Leach testified that he was looking for another job and kept track of "some of the places" he applied to online. He acknowledged, however, that he had not been keeping an "actual record." He testified that he applied for employment at McDonald's and IHOP and a "few other places." Leach testified that he registered with the Illinois Job Link service and was available for any work shift outside of the weekends.

¶ 10 At the conclusion of the hearing, the referee asked Leach if he had anything else to tell him regarding his availability for work or his ability to work, and Leach responded that he had nothing else to say. As the referee was about to close the hearing, Leach indicated that he had one thing he wanted to add. Leach testified that he was not getting enough hours at Hawthorne and they refused to schedule him for more hours despite his request for more hours.

¶ 11 The referee subsequently issued a decision in which he found that Leach had requested a reduction in his work hours due to family matters. The referee also found that Leach did not keep a work search record and could recall only one job contact per week. The referee found that Leach's efforts to seek work were "meager and perfunctory at best" and that he "managed to accomplish in weeks what he should have accomplished in one day." The referee found that Leach did not meet the work search requirement of section 500(C) of the Act and, therefore, was not eligible for benefits.

¶ 12 Leach appealed the referee's decision to the Board. In his appeal, Leach asserted that he requested a change to his schedule with Hawthorne but was entirely removed from the work schedule against his will. He maintained that he had been actively seeking work, but during the hearing before the referee he did not have a list of his work search history because he was not aware that he needed to have that information available.

¶ 13 In August 2018, the Board issued its decision without conducting a further hearing, finding that the record adequately set forth the evidence. The Board found that Leach was "separated from employment" when he requested weekends off to spend time with his daughter. The Board found that Leach did not keep a written job search and did not submit a written job search record for the hearing before the referee. The Board found that based on his testimony, Leach made three job contacts in a four-week span. The Board further found that although Leach testified he had...