2020 IL App (1st) 191813-U

No. 1-19-1813 

Order filed April 10, 2020

Sixth Division

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as 

precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________ 

MICHAEL A. HARTER,

Plaintiff-Appellant, 

 v. 

DEPARTMENT OF EMPLOYMENT SECURITY; 

DIRECTOR OF DEPARTMENT OF EMPLOYMENT 

SECURITY; BOARD OF REVIEW; and PACIFIC RAIL 

SERVICES, 

Defendant-Appellee. 

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Appeal from the

Circuit Court of 

Cook County. 

No. 19 L5 0321 

Honorable 

James M. McGing, 

Judge, presiding. 

JUSTICE CONNORS delivered the judgment of the court. 

 Presiding Justice Mikva and Justice Harris concurred in the judgment. 

ORDER

¶ 1 Held: The Department of Employment Security Board of Review’s determination that 

plaintiff was ineligible for unemployment benefits because he was discharged for

misconduct was not clearly erroneous. 

¶ 2 Plaintiff Michael Harter appeals pro se from the circuit court’s judgment affirming the 

decision of the Department of Employment Security Board of Review (Board), finding him
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ineligible to receive unemployment benefits because he was discharged for misconduct under 

section 602(A) and (A)(5) of the Unemployment Insurance Act (Act) (820 ILCS 405/602(A), 

(A)(5) (West 2018)). On appeal, plaintiff requests that we reverse the Board’s decision because 

his actions that led to his discharge were accidental and not deliberate or intentional. We affirm. 

¶ 3 Plaintiff worked as a driver for Pacific Rail Services from January 7, 2019 until January 

27, 2019. As a new employee, he was under a probationary period. During training, plaintiff was 

informed he could not have a phone in the vehicle when he was working. Thereafter, plaintiff came 

to work wearing an earpiece. He was informed of the policy and given a verbal warning. Two 

weeks later, plaintiff wore his earpiece at work again. A supervisor called him into the office and 

informed him that his employment was terminated. Plaintiff subsequently applied for 

unemployment benefits from the Department of Employment Security (Department). Pacific Rail

was notified of the application and did not file a protest. 

¶ 4 On February 13, 2019, the Department sent a notice of interview to plaintiff, who had 

indicated on his application that he voluntarily left his employment. After a phone interview, 

during which plaintiff explained that he was fired for violating company policy by wearing an 

earpiece to listen to music, a Department claims adjudicator determined that plaintiff was 

terminated for misconduct and was ineligible to receive benefits. 

¶ 5 On March 4, 2019, plaintiff filed a request for reconsideration, stating he was only warned 

once not to wear his earpiece and did not receive a written notice as stated in the employee 

handbook. On March 22, an administrative law judge (ALJ) held a telephone hearing. Pacific Rail 

did not participate in the hearing. On March 25, 2019, the ALJ affirmed the decision, finding 

plaintiff ineligible for benefits. The ALJ’s decision was based on a finding that plaintiff refused to 
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obey the employer’s rule prohibiting the usage of electronics at work where, despite a previous 

warning, he was twice seen with a wireless earpiece in his ear while working. 

¶ 6 Plaintiff appealed to the Board, arguing that he accidentally left his earpiece in when 

reporting for work. On June 4, 2019, the Board issued its decision finding plaintiff ineligible for 

benefits. The Board’s decision was based on evidence showing that Pacific Rail had a rule 

prohibiting the use of electronics or a cell phone and plaintiff was seen wearing an earpiece during 

work, despite having previously been warned against wearing an earpiece. The Board concluded

that plaintiff was terminated based on misconduct under section 602(A) and (A)(5) of the Act (820 

ILCS 405/602 (A) and (A)(5) (West 2018)). In doing so, the Board specifically found that plaintiff 

refused to obey the employer’s reasonable and lawful instruction not to wear an earpiece, and his 

refusal was not due to the lack of ability, skills or training, nor would obeying the instruction result 

in an unsafe act. Additionally, the Board found plaintiff’s actions constituted a deliberate and 

willful violation of the employer’s policy which caused the employer harm. The Board further 

found plaintiff’s claim that it was an accident and he forgot to take his earpiece out was not 

credible. In doing so, the Board rejected plaintiff’s contention that he could not feel the earpiece 

in his ear and noted his statement that he used the earpiece to listen to music. 

¶ 7 On August 28, 2019, plaintiff filed a complaint for administrative review. After hearing 

argument and reviewing the record, the circuit court issued an opinion affirming the Board’s 

decision and finding that plaintiff was discharged for misconduct for refusing to obey the 

employer’s rule against the use of electronics or cell phones. Plaintiff timely appealed.

¶ 8 On appeal, we review the final decision of the Board, rather than the decision of the 

Department referee or the circuit court. Petrovic v. Department of Employment Security, 2016 IL 
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118562, ¶ 22. The applied standard of review depends on whether the question presented is one of 

fact or law. Pesoli v. Department of Employment Security, 2012 IL App (1st) 111835, ¶ 20. The 

Board’s findings of fact are prima facie true and correct and we will reverse only if they are against 

the manifest weight of the evidence. Id. Reviewing courts are precluded from reweighing the 

evidence, resolving conflicts in the testimony, or evaluating the credibility of the witnesses. Woods 

v. Illinois Department of Employment Security, 2012 IL App (1st) 101639, ¶ 16. When the question 

is one of law, the review is de novo. Pesoli, 2012 IL App (1st) 111835, ¶ 20. Whether an employee 

was properly terminated due to misconduct, and is thus, ineligible for unemployment benefits, is 

a mixed question of law and fact that we review under the clearly erroneous standard. Petrovic, 

2016 IL 118562, ¶ 21. The Board’s decision is clearly erroneous where the record definitively 

shows that a mistake has been made. Id.

¶ 9 We initially note that plaintiff’s pro se brief fails to comply with several requirements of 

Supreme Court Rule 341 (Ill. S. Ct. R. 341 (eff. May 25, 2018)). Although plaintiff is proceeding 

pro se on appeal, he is nonetheless required to comply with our supreme court rules. Ammar v. 

Schiller, Du Canto and Fleck, LLP, 2017 IL App (1st) 162931, ¶ 16. Plaintiff’s brief fails to comply 

with Rule 341 in several respects, including failing to set forth the facts as contained in the record, 

or to adequately set forth any legal argument or citation to any legal authority. See Ill. S. Ct. R. 

341 (h)(6), (7). Subsection (h)(6) requires a statement of facts in order to provide this court with 

the facts necessary for an understanding of the case, “without argument or comment, and with 

appropriate reference to the pages of the record.” Ill. S. Ct. R. (h)(6). Plaintiff’s statement of facts 

interjects facts not included in the record on appeal and argues that the record contains “incorrect 

statements” that are “not true.” Pursuant to subsection (h)(7), plaintiff was required to state his 
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argument on appeal, and to support it with citation to the record and authority. Ill. S. Ct. R. (h)(7). 

Plaintiff merely stated a conclusion and failed to set forth any legal argument before this court. 

See Gandy v. Kimbrough, 406 Ill. App. 3d 867, 875 (1st Dist. 2010) (this court is not a depository 

in which the burden of argument and research may be dumped). 

¶ 10 We acknowledge that, where an appellant’s brief fails to comply with the requirements of 

our supreme court rules, this court has discretion to strike the brief and dismiss the appeal or to 

disregard appellant’s arguments. See Budzileni v. Department of Human Rights, 392 Ill. App. 3d 

422, 440-41 (1st Dist. 2009). However, we conclude that petitioner’s failure to comply with Rule 

341 does not hinder our review of the case and decline to impose such “a severe sanction.” See 

Ammar, 2017 IL App (1st) 162931, ¶ 15. This is especially so where, as here, we have the benefit 

of a cogent brief from the Department. See Twardowski v. Holiday Hospitality Franchising Inc., 

321 Ill. App. 3d 509, 511 (1st Dist. 2001). Accordingly, we turn to the merits of plaintiff’s appeal.

¶ 11 Plaintiff argues that the Board erred in finding that his actions were “deliberate and 

intentional” or that he “refused to obey” the employer’s rule against the use of electronics or cell 

phones where he asserted that he forgot to remove his earpiece. 

¶ 12 However, the Board specifically found plaintiff’s testimony that he forgot he was wearing 

his earpiece was not credible. It was the Board’s responsibility to determine the credibility of the 

testimony and this court will not disturb that determination. See Woods, 2012 IL App (1st) 101639, 

¶ 16. 

¶ 13 Plaintiff also contends that his assertions should be taken as true because he was the only 

one who presented evidence and Pacific Rail did not participate in the hearing. While an employer 

who asserts an employee’s disqualification for benefits based on misconduct has the burden of 
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proving such misconduct, it is the claimant who bears the burden of establishing initial eligibility 

for benefits. Petrovic, 2016 IL 118562, ¶ 28. Here, Pacific Rail did not assert misconduct, and is 

not a party to the action. Rather, plaintiff’s initial claim was denied by the claim adjudicator 

following an interview with plaintiff. Plaintiff’s own evidence showed that the employer had a rule 

against the use of electronics or cell phones, plaintiff was aware of that rule, and plaintiff wore an 

earpiece in his ear after having been previously warned against wearing his earpiece at work. 

¶ 14 The Board found the evidence in this case supported a finding of misconduct under sections 

(A) and (A)(5) of the Act. We find that the Board’s determination that plaintiff refused to obey a 

reasonable and lawful instruction from his employer supported a finding of misconduct under 

section (A)(5) of the Act and was not clearly erroneous. 

¶ 15 Under section 602(A) of the Act, a person who is discharged by her employer for 

misconduct connected with her work is ineligible to receive unemployment insurance benefits. Id.

¶ 25. The Act defines “misconduct” 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 2018).

¶ 16 In 2016, the legislature amended section 602(A) by adding list of eight enumerated 

circumstances where an employee would be disqualified from receiving benefits. Petrovic, 2016 

IL 118562, ¶ 37, n.3 (citing Pub. Act 99-488 (eff. Jan. 3, 2016)). Specifically, the statute now 

provides: 
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“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.” 820 ILCS 405/602(A)(5) (West 

2018). 

¶ 17 A violation of section (A)(5) is considered misconduct per se. Persaud v. Illinois 

Department of Employment Security, 2019 IL App (1st) 180964, ¶ 21. Under this section, there is 

no requirement that the conduct was deliberate or willful, repeated, or caused harm to the 

employer. Id.

¶ 18 The Board found that the evidence supported a finding that plaintiff was terminated for 

misconduct where the evidence showed that he was warned of Pacific Rail’s policy against having 

an earpiece in his ear yet refused to follow the policy. The evidence showed that plaintiff was a 

new employee in a probationary period. Upon hire, he was informed of the rule that cell phone

usage was prohibited and “signed off” on it. He received a verbal warning when he came to work 

wearing his earpiece. Two weeks later, he again wore his earpiece at work, and he was terminated. 

As the circuit court noted, as a new employee in his probationary period who had already received 

a warning, plaintiff was on notice to be extra careful and ensure that he did not wear his earpiece 

at work. Additionally, as previously noted, the Board found plaintiff’s claim that he forgot he was 

wearing his earpiece was not credible. 
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¶ 19 Our review of the record does not leave us with a definite and firm conviction that a mistake 

has been made and, therefore, we will not disturb the Board’s findings. See AFM Messenger 

Service, Inc. v. Department of Employment Security, 198 Ill. 2d 380, 395 (2001). Accordingly, the 

Board’s determination that plaintiff was discharged for misconduct and not eligible for 

unemployment insurance benefits was not clearly erroneous. See Id.; Petrovic, 2016 IL 118562, ¶ 

21. Because we conclude that the Board’s decision finding misconduct under section (A)(5) of the 

act was not clearly erroneous, we do not need to address the Board’s finding of misconduct on 

additional grounds. 

¶ 20 For these reasons, we affirm the judgment of the circuit court of Cook County affirming 

the Board’s decision. 

¶ 21 Affirmed.