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Stein v. Department of Employment Security

Court of Appeals of Illinois, Third District

August 31, 2017

MITCHELL STEIN, Plaintiff-Appellant,
THE DEPARTMENT OF EMPLOYMENT SECURITY, an Administrative agency of the State of Illinois; THE DIRECTOR OF EMPLOYMENT SECURITY; THE BOARD OF REVIEW, an Administrative agency of the State of Illinois; and CATERPILLAR, INC., employer, Defendants-Appellees.

         Appeal from the Circuit Court of the 9th Judicial Circuit, Fulton County, Illinois. Circuit No. 14-MR-130 The Honorable 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.


          McDADE, JUSTICE

         ¶ 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 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 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 ...

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