No. 1-13-3886 Opinion filed February 18, 2015 Third Division

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

UNIVERSAL SECURITY CORPORATION, ) ) Plaintiff-Appellant, ) ) Appeal from the Circuit Court v. ) of Cook County. ) THE DEPARTMENT OF EMPLOYMENT ) SECURITY, DIRECTOR OF EMPLOYMENT ) No. 13 L 50458 SECURITY, and THE BOARD OF REVIEW OF ) THE DEPARTMENT OF EMPLOMENT ) SECURITY, ) The Honorable ) Robert Lopez Cepero, Defendants-Appellees ) Judge, presiding. ) (Darvin T. Hooker, ) ) Defendant).

JUSTICE HYMAN delivered the judgment of the court, with opinion. Justices Mason concurred in the judgment and opinion. Justice Pucinski dissented, with opinion.

OPINION

¶1 Defendant Darvin T. Hooker took on a second job as an unarmed night security guard at

O'Hare International Airport. Less than three months later, a supervisor caught Hooker, while on

duty, sitting at his station in an upright position, eyes closed, head tilted to one-side, and inert, in

other words, asleep, an offense mandating discharge. Hooker then sought unemployment 1-13-3886

insurance benefits. An Illinois Department of Employment Security claims adjudicator denied

him benefits under the Illinois Unemployment Insurance Act (Act) (820 ILCS 405/602(A) (West

2012)), holding that Hooker had deliberately and willfully violated Universal’s reasonable policy

prohibiting sleeping on the job. Hooker appealed, and the referee reversed, ruling that Hooker

had not fallen asleep deliberately and willfully and, accordingly, could claim benefits. His

employer, Universal Security Corporation, plaintiff, appealed the referee’s decision to the Board

of Review of the Department of Employment Security, which affirmed. Next, Universal sought

judicial review, and the circuit court affirmed.

¶2 On appeal, Universal contends that the granting of unemployment benefits was clearly

erroneous. We affirm and agree that the record supports the Board of Review's conclusion that

Hooker's nodding-off did not amount to deliberate and willful misconduct within the meaning of

section 602(A) of the Act.

¶3 BACKGROUND

¶4 The facts, undisputed by the parties and established in a telephonic hearing before the

referee, show: Universal hired Hooker to work full-time as an unarmed security officer at O'Hare

International Airport during the overnight shift. About 2½ months later, on September 25, 2012,

at about 1:20 a.m., a supervisor saw Hooker sitting at his post with his head down and eyes

closed. She took his picture on her cell phone before he awoke, about three or four minutes later.

Hooker admitted that he "temporarily dozed off on duty," he was tired from working two jobs,

and he knew of the potential negative ramifications to his employer and to him. That evening he

had reported to work a few hours after a 10-hour shift at his other job. Universal’s policy

provides for automatic discharge should an employee be caught sleeping on duty.

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¶5 The issue for the referee was whether Hooker had engaged in a deliberate and willful

violation, as defined under section 602(A) of the Act. 820 ILCS 405/602(A) (West 2012). The

referee decided Hooker had not deliberately and willfully dozed and therefore had not committed

"misconduct" under the Act and, thus, could claim his unemployment insurance benefits.

¶6 Universal appealed to the Board of Review of the Department of Employment Security

(the Board). The Board affirmed the referee’s ruling as supported by the record and the law. The

Board explained that "falling asleep on the job is willful only if an individual purposely takes a

nap." The Board noted that Hooker admitted he was "very tired" when he dozed off and that he

fell asleep "in the open where all could observe him," an indication of lack of intent.

¶7 Universal sought judicial review (see 735 ILCS 5/3-101 et seq. (West 2012)). The circuit

court affirmed the Board's decision on the ground that it was not clearly erroneous. This appeal

followed. (In addition to Hooker, named defendants are the Illinois Department of Employment

Security, the Director of the Illinois Department of Employment Security, and the Board of

Review.)

¶8 ANALYSIS

¶9 The Act affords economic relief to employees who, through no fault of their own,

become "involuntarily unemployed." AFM Messenger Service, Inc. v. Department of

Employment Security,

(2001). A former employee may not receive benefits

under the Act if his or her discharge was for misconduct connected to work (see 820 ILCS

405/602(A) (West 2012)) when: (i) the employer has a reasonable work policy or rule that (ii)

the employee deliberately and willfully violates, and (iii) the violation either harms the employer

or was repeated by the employee despite a warning. Wood v. Illinois Department of Employment

Security,

; Phistry v. Department of Employment Security, 405

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, 607 (2010). Courts construe the Act in an expansive fashion to avoid the

forfeiture of benefits. Czajka v. Department of Employment Security,

(2008) ("While unemployment insurance benefits are a conditional right and the burden of

establishing eligibility rests with the claimant, the Act must be liberally interpreted to favor the

awarding of benefits."). An employee deliberately and willfully violates a work rule or policy

when he or she is aware of and consciously disregards the rule. Odie v. Department of

Employment Security,

(2007).

¶ 10 According to Universal, Hooker's reporting to work in an extremely tired condition was

worse than being on medication that could have made him drowsy and that Hooker’s slight work

history (10 weeks) was not relevant because he violated a reasonable workplace policy and

thereby harmed Universal. Defendants counter that while Hooker slept on duty, he did not

violate the policy deliberately and willfully because he (i) inadvertently fell asleep, (ii) dozed for

a few minutes in an open area exposed to public view, (iii) had no history of sleeping on duty,

(iv) did not take medication that could make him drowsy, and (v) did not realize he was falling

asleep, all of which demonstrate lack of intent.

¶ 11 Standard of Review

¶ 12 This court reviews the Board's decision, not that of the circuit court, the referee, or claims

adjudicator. Pesoli v. Department of Employment Security,

, ¶ 20. Our

review is governed by the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2012);

820 ILCS 405/1100, 2205 (West 2012)) and extends to all questions of fact and law presented by

the record before us. 735 ILCS 5/3-110 (West 2012). The degree of deference we afford to the

agency's decision—the applicable standard of review—depends on whether the question

involves one of fact, one of law, or a mixed question of fact and law. Kouzoukas v. Retirement

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Board of the Policemen's Annuity & Benefit Fund,

(2009); AFM Messenger

Service, Inc. v. Department of Employment Security,

(2001).

¶ 13 The parties submit that the clearly erroneous standard applies, and we agree. When the

question concerns the proper discharge for misconduct of an individual in his or her work, we are

presented with a mixed question of fact and law, and we review the Board's decision to

determine if it was clearly erroneous. AFM Messenger Service, Inc.,

. For a

finding to be clearly erroneous, the entire record must create for the reviewing court a definite

and firm conviction that a mistake has been made. Id.; Hurst v. Department of Employment

Security,

(2009) (same). The "clearly erroneous" standard "is largely

deferential to the agency decision" (Chicago Messenger Service v. Jordan,

(2005)), but gives "somewhat less deference to the agency than [it] would if the decision

related solely to a question of fact because the decision is based on fact-finding that is

inseparable from the application of law to fact" (Carpetland U.S.A., Inc. v. Illinois Department of

Employment Security,

(2002)).

¶ 14 Considering the Board's factual findings as prima facie true and correct, for the reasons

that follow, we find that the Board's determination that the plaintiff was eligible for

unemployment benefits was not clearly erroneous.

¶ 15 No Deliberate and Willful Misconduct

¶ 16 An employee's conduct may be careless or negligent or substandard, but that is not

enough to constitute "deliberate and willful" conduct under the Illinois Unemployment Insurance

Act. To be considered "deliberate and willful," the Act requires the conduct be intentional. As we

observed in Messer & Stilp, Ltd. v. Department of Employment Security,

(2009), the present definition of "misconduct," added to section 602(A) (Pub. Act 85-956

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(eff. Jan. 1, 1988)), "expressly rejected the argument that carelessness or negligence alone should

be equated with willful and deliberate misconduct." See Siler v. Department of Employment

Security,

(1989) (amendment "intended that persons discharged for

incapacity, inadvertence, negligence or inability to perform assigned tasks should receive

unemployment benefits").

¶ 17 The parties arguments primarily examine two cases involving sleeping on the job. These

cases—Washington v. Board of Review,

(1991), in which the employee

received unemployment benefits, and Odie v. Department of Employment Security,

(2007), in which the employee was denied unemployment benefits—reveal differences in

material facts that led to different results and provide us with a useful background for our

analysis.

¶ 18 In Washington, the plaintiff, an administrative secretary at a hospital, left a hospital's

medical executive committee meeting to take an aspirin for a headache, returned to the meeting

room, and sat down at the front table, resting her bent elbow on the table and leaning her head

against her hand. Soon she dozed off and awoke about 30 minutes later after the meeting had

ended. The plaintiff had never had a poor work performance review or been known to fall asleep

at work. This evidence revealed that she had not fallen asleep on purpose, and, thus, her behavior

did not amount to deliberate and willful misconduct that would disqualify her from eligibility for

unemployment benefits. Washington,

; see Wrobel v. Illinois

Department of Employment Security,

(2003) (forgetting to set alarm clock

and oversleeping, careless though not intentional or purposeful act).

¶ 19 A different result occurred in Odie v. Department of Employment Security, where a long-

time certified nursing assistant fell asleep on her job at a nursing home for 10 to 20 minutes. She

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had voluntarily taken an extra-strength Tylenol for a toothache, knowing full well that the

Tylenol would cause drowsiness. After she fell asleep, she failed to hear a resident's shouts for

help, and a visitor shook her awake. Instead of immediately handling the situation, she said to the

visitor, "yeah she do that all the time," and went back to sleep. Moreover, she had not informed

her employer that she was taking the medication and failed to offer competent evidence at the

hearing to explain her actions. The plaintiff also had been given on-the-job warnings by her

employer, and she was aware that her job was in jeopardy. Under these circumstances the court

concluding plaintiff "purposely took a nap." Odie,

. Accordingly, the court

found deliberate and willful misconduct connected with her work.

.

¶ 20 Hooker's situation more closely resembles that of Washington. Nothing in the record

indicates that Hooker previously had fallen asleep on duty, that he realized at the time that he

was falling asleep, or that he made no efforts to stay awake. And, he was asleep only for a short

interval (about one-tenth of the time of the plaintiff in Washington and less than half of the time

of the plaintiff in Odie) in an upright sitting position out in public view. Nor did Hooker, as in

Odie, report a history of work infractions or, when awakened, try to minimize the situation or go

back to sleep. As the Board concluded, these circumstances do not indicate Hooker intended to

fall asleep at work, and the Board's ruling that Hooker was eligible for unemployment benefits

was not clearly erroneous, even though Universal had every reason to fire him for sleeping on

the job.

¶ 21 Affirmed.

¶ 22 PRESIDING JUSTICE PUCINSKI, dissenting.

¶ 23 It is undisputed that Hooker fell asleep for three to four minutes while on duty.

¶ 24 It is undisputed that his employer, Universal, had a policy against sleeping on duty.

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¶ 25 It is undisputed that Hooker knew the policy and knew that violating it would result in

automatic termination from employment.

¶ 26 It is undisputed that the policy was reasonable.

¶ 27 It is undisputed that the employer was harmed by Hooker's actions, i.e., that sleeping in

uniform in view of the public made the employer look unprofessional, and not up to the task of

securing O'Hare Airport, putting its reputation and, indeed, its contract, at risk.

¶ 28 It is undisputed that Hooker worked a full 10-hour shift at his other job and was tired

when he reported for work at Universal's O'Hare site.

¶ 29 The only thing that is disputed is whether Hooker willfully and deliberately fell asleep.

¶ 30 Universal says it was willful and deliberate because he reported to work knowing he was

tired and therefore set himself up to fall asleep at his post.

¶ 31 The State says it was not willful and deliberate because Hooker only dozed off for a few

minutes and did it in public view.

¶ 32 The State says that "falling asleep on the job is only willful if an individual purposely

takes a nap."

¶ 33 I do not believe that statement satisfies the requirement that the totality of circumstances

must be explored to decide if something is willful and deliberate.

¶ 34 Both sides have discussed Wrobel, Washington, and Odie. But I think there are

significant differences here that have been overlooked.

¶ 35 In Wrobel, the employee overslept and got to work late. In the meantime, his employer

knew he was not there and was not relying on him.

¶ 36 In Washington, the employee was assigned to a secretarial duty and fell asleep during a

meeting after taking an aspirin. Clearly, a meeting in this situation was not high risk. Nor was the

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employee's reaction to the aspirin for her headache predictable: millions of people take aspirin

and do not fall asleep.

¶ 37 Only Odie has a situation that is even close to this case, that is, a high-risk employment

environment where the employer has placed trust in the on-site employee to be awake and alert.

In Odie, a certified nursing assistant who had been employed by a nursing home for over 17

years fell asleep for 10 to 20 minutes on the job after she voluntarily took an extra-strength

Tylenol, which she believed caused her drowsiness, for a toothache without notifying her

employer that she was doing so. While the plaintiff was asleep, a resident shouted for help. The

plaintiff was supposed to monitor 25 residents of the nursing home, which required her to be

awake and alert. She knew that falling asleep on the job violated company policy and was a basis

for termination. This court ruled that plaintiff had willfully and deliberately committed

misconduct by voluntarily taking the medication she believed would cause drowsiness without

notifying her employer and then falling asleep while on duty. Odie,

.

¶ 38 Here, we have an employee in a high-risk situation: while the White House, the

Pentagon, and Capitol Hill are arguably more high-risk than O'Hare Airport, it is very hard to

argue that security at O'Hare and other airports around the nation and world are low enough risks

that someone sleeping at the door to a jet-way leading to the airfield is not a security issue.

¶ 39 Universal knew that Hooker showed up for work. Universal did not know that he was

tired. Universal assigned him to be awake and alert at his post: the door he was guarding. While

he was asleep, his lack of attention could have given someone an opportunity to gain access to

secure areas for any number of dangerous reasons.

¶ 40 That is why the airport hires security guards for those doors.

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¶ 41 That is why Hooker falling asleep is not only a good reason to terminate his employment,

but also a good reason to deny him unemployment benefits.

¶ 42 To make light of this and hold that his falling asleep was not willful and deliberate

ignores the reality of his choices. I am sympathetic to today's economy. But I am also aware that

security at airports is serious business. Hooker made a choice. He chose to go to work tired. He

chose to work in not one, but two, security agencies. He chose to work for Universal, which

manages security for O'Hare and Midway Airports in one of the nation's busiest cities. He chose

not to "call out" for time off. He made the decision to report for work under circumstances not

conducive to remaining awake and alert for the duration of his shift. He knew he was tired and

that increased the likelihood that he would fall asleep.

¶ 43 I find the reasoning in Ramirez v. Illinois Department of Employment Security,

, very persuasive. My colleague, Justice Epstein, wrote:

"We reject plaintiff's claim that his tardiness was not willful and deliberate

because his act of oversleeping was not intentional. Following this rationale, tardiness

would rarely, if ever, constitute misconduct. Tardiness is often unintentional and

caused by other circumstances such as traffic and inclement weather. However, an

employer's expectation that its employees arrive to work on time regardless of other

circumstances, is reasonable. As the regulations [56 Ill. Adm. Code 2840.25(b)

(2010)] state, tardiness always causes harm to the employer because it disrupts the

general operations of the business. An employer needs its employees to arrive to work

promptly in order to conduct its business. Accordingly, an employee is expected to

comply with an employer's absence and tardiness policy, and his failure to do so

constitutes misconduct." Id. ¶ 22.

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Ramirez was denied unemployment benefits when he was fired for violating the employer's

attendance policy. The Board of Review upheld the denial of unemployment benefits, the trial

court affirmed and this court also affirmed.

¶ 44 The decision by the majority in this case essentially tells employees like Hooker: "go

ahead, fall asleep, then work your second job, but now you can go home and get some sleep on

the other employer's dime" because under Illinois law, employers pay for unemployment

insurance; it is not manna from heaven. And, to make matters worse for the employer, its rates

go up! ("For experience-rated employers (those with three or more years of experience), the

contribution rate is based on a ratio, called the benefit ratio, which is determined in such a way

that the greater the unemployment caused by the employer, the higher the rate." Illinois

Department of Employment Security, FAQs by Employers, http://www.ides.illinois.gov/Pages/

FAQs-by-Employer.aspx (last visited Feb. 9, 2015).).

¶ 45 The principle is the same: the employer has a reasonable expectation that an employee

will turn up for work ready to do the job he is assigned. If the job is securing a jet-way door, and

the employer and employee have agreed that sleeping on the job is cause for automatic

termination, then it is fair for the employer to believe the employee has turned up for work ready

and able to stay awake and alert to provide that security. This employee's failure to conform to

company policy because of his life outside of this job is not some accident or unpredictable

event. It is not a tornado whooshing down on the employee, or an overturned semi on the

expressway to work. It is entirely predictable that someone working two full-time jobs with very

little time in between and even less time to sleep will fall sleep somewhere, at some time, on

duty. Hooker knew that and ignored the risk to his employer, the employees of the airport, and

the general public.

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¶ 46 Given the circumstances, I cannot agree that his behavior was not willful and deliberate. I

believe the reasoning of the Board of Review was clearly erroneous in this case and I would

reverse to deny Hooker unemployment benefits.

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