The opinion
2023 IL App (1st) 221003-U
FOURTH DIVISION
Order filed: June 8, 2023
No. 1-22-1003
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
CHARLES TERMINI, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County.
)
v. )
)
THE BOARD OF REVIEW OF THE ILLINOIS )
DEPARTMENT OF EMPLOYMENT SECURITY, THE ) No. 21 L 50290
ILLINOIS DEPARTMENT OF EMPLOYMENT )
SECURITY, DIRECTOR OF THE ILLINOIS )
DEPARTMENT OF EMPLOYMENT SECURITY, THE )
CITY OF CHICAGO DEPARTMENT OF PERSONNEL, )
and THE CITY OF CHICAGO. ) Honorable
) Daniel Duff,
Defendants-Appellees. ) Judge, presiding.
JUSTICE HOFFMAN delivered the judgment of the court.
Presiding Justice Lampkin and Justice Martin concurred in the
judgment.
No. 1-22-1003
ORDER
¶1 Held: Employee’s termination for posting on Facebook that he would take his
coworkers down with him if they transmitted COVID-19 to him qualified as a
termination for “misconduct,” making him ineligible for unemployment benefits.
¶ 2 Appellant Charles Termini appeals a circuit court order affirming an administrative decision
denying him unemployment benefits after he was terminated from his job with the City of Chicago
(“the City”) for posting a threatening message to his coworkers on Facebook. Termini contends
that the City failed to establish that he willfully violated any City policy or committed any criminal
offense warranting the denial of benefits. We disagree and affirm.
¶ 3 Termini worked as a truck driver for the City at O’Hare International Airport. On April 12,
2020, at the beginning of the COVID-19 pandemic, Termini published a post to the Facebook page
for the Teamsters union representing truck drivers at O’Hare in which he objected to coworkers
coming to work while exhibiting COVID-19 symptoms. Following a correction to a grammatical
error, the post read as follows: “This is really getting old. I’m sick of this. How is it that money
comes before safety? Well, you’ve been warned. You better pray this doesn’t touch my life because
I’ll take you all with me.” Termini then modified the post a second time so that it simply read,
“You’ve been warned.” As a result of these posts, the City terminated Termini’s employment.
¶ 4 Termini then submitted an application for unemployment benefits to the Illinois Department of
Employment Security (“the Department”). The City protested Termini’s application for benefits on
the basis that he had been terminated for “misconduct” and, therefore, was not eligible for
unemployment benefits under section 602(A) of the Unemployment Insurance Act (“Act”) (820
ILCS 405/602(A) (West 2020)). The City specifically stated that it had dismissed Termini because
he “used his Facebook social media to willfully and deliberately make threatening statements
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towards his coworkers, thereby, committing harassment through electronic communication” in
violation of section 26.5-3 of the Criminal Code of 2012 (“Criminal Code”) (720 ILCS 5/26.5-3
(West 2020)) and Personnel Rule XVIII, Section 1, Subparagraph 15.
Following an interview with Termini, a claims adjuster ruled that Termini was eligible for
unemployment benefits because Termini’s actions were not a violation of a reasonable rule or
policy of his employer. The City requested reconsideration of the decision, which the adjuster
denied.
¶ 5 The City then initiated an administrative appeal of the adjuster’s decision. An administrative
law judge (ALJ) from the Department held a hearing on the matter. At that hearing, Anita Morris,
an attorney for the City, testified that Termini was discharged for making threats towards coworkers
and that an unstated number of Termini’s coworkers had actually reported feeling threatened by
Termini’s Facebook posts and feared that he “might actually come into the workplace and harm
them.” According to Morris, Termini admitted to writing the posts and apologized to his superiors
the next day. Morris testified that Termini had explained that he “was hoping to scare people into
not coming to work” if they had COVID-19 symptoms.
¶ 6 When asked about the City’s personnel policies, Morris testified that the City had a policy
prohibiting electronic communications “of a threatening manner.” Morris believed that Termini
had received a copy of that policy, but she could not recall for sure, and she did not have any proof
that he was aware of the City’s policies. She added that the City’s policies are available on its
website and that all employees are directed to review the policies when they are hired.
¶ 7 For his part, Termini testified that he “absolutely” did not receive the City’s personnel rules
containing the policy against electronic harassment. Termini acknowledged being responsible for
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the posts in question, and he explained that they were intended “to stop fellow truck drivers from
coming to work fully symptomatic.” When asked what he meant when he wrote, “you’ve been
warned,” Termini explained, “if I contracted the virus, I was going to come to work sick just like
everybody else did.” Termini further testified that he did not intend the message to be threatening
and that he sent an email to his superiors the next day clarifying that it “was not a threat of
violence,” that it was “poor judgment” and “poor wording,” and that it “was just to get people to
stop coming to work if they were sick.”
¶ 8 The ALJ then issued a written decision determining that Termini was eligible for unemployment
benefits. The ALJ reasoned that the evidence failed to establish that Termini willfully and
deliberately violated the City’s policy against electronic harassment because the evidence showed
that Termini was not aware of the policy. Further, the ALJ credited Termini’s testimony that he did
not intend to harm any of his coworkers and was merely trying to deter them from coming to work
while sick. In the ALJ’s opinion, Termini’s actions did not rise to the level of “misconduct” as that
term is defined in section 602(A) of the Act.
¶ 9 The City appealed the ALJ’s decision to the Department’s Board of Review (“the Board”). The
parties each submitted in writing the same arguments that they made to the ALJ. The Board
reviewed the transcript of the proceedings before the ALJ and determined that the record
adequately set forth the evidence and that further evidentiary proceedings were unnecessary. Based
on its review of the transcript and the written arguments of the parties, the Board issued a written
decision setting aside the ALJ’s ruling and instead determining that Termini was not eligible for
unemployment benefits. The Board explained its decision as follows:
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“In this case, the claimant may or may not have had a chance to review the electronic
communications policy. However, even if he did not know making threats was prohibited
by the employer, it is against the law. The claimant admitted that he wrote and posted the
statement. Although he did not mean it to be a threat, the employer and possibly his
coworkers considered it a threat. Judging the posting under a reasonable man standard and
its common sense meaning, the Board finds that the claimant made a public threat of
violence in the workplace, in violation of law and the employer's policies, which harmed
the employer because it disrupted its operations and spent time investigating the incident.
Accordingly, we find that the claimant was discharged for misconduct connected with
work.”
¶ 10 Termini filed a complaint in the circuit court seeking judicial review of the Board’s decision.
He argued in his complaint that he did not willfully violate any reasonable work rule and that the
post did not harm the City. The City did not file a response and instead relied on the administrative
record. The circuit court affirmed the Board’s decision. Unlike the Board, the court did not base its
ruling on Termini having violated the law, but rather on Termini having violated a City personnel
rule. The court reasoned that the City’s policies against harassment and violence were admitted to
the record and were shown to have been in place at the time of the posts in question, and the court
found that the Board’s findings that Termini acted willfully and that the posts harmed the City were
supported by the record. This appeal follows.
¶ 11 Section 602(A) of the Act provides that a terminated employee is ineligible for unemployment
benefits if he was discharged for “misconduct connected with his work.” In order to establish that
an employee was terminated for such “misconduct,” an employer must show: “(1) a deliberate and
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willful violation (2) of a reasonable rule or policy of the employer governing the individual's
behavior in the performance of her work, that (3) either (a) harmed the employer or a fellow
employee or (b) was repeated despite a warning or explicit instruction from the employer.”
Petrovic v. Department of Employment Security, 2016 IL 118562, ¶ 26. Termini’s arguments on
appeal are based on the first and second of these elements, specifically that the City failed to show
that he “willfully” violated a City rule and that, to the extent that the Board found that he violated
a law, the record failed to establish such a violation. Our review in this appeal is of the Board’s
decision, not that of the circuit court, and because Termini’s arguments do not challenge a finding
of fact or an interpretation of law and instead ask us review the Board’s application of the law to
established facts, we are presented with a mixed question of law and fact to which we apply the
“clearly erroneous” standard. See Sudzus v. Department of Employment Security, 393 Ill. App. 3d
814, 820 (2009). “An agency's decision will be deemed clearly erroneous only if, based on the
entirety of the record, the reviewing court is left with the ‘definite and firm conviction that a
mistake has been committed.’ ” Id. (quoting AFM Messenger Service, Inc. v. Department of
Employment Security, 198 Ill. 2d 380, 393 (2001)).
¶ 12 Termini’s primary argument on appeal is that the City failed to show that he willfully violated
a reasonable rule or policy because he was never provided with the City’s policy prohibiting
electronic harassment, which was implemented many years after he was hired. In essence, Termini
contends that he could not have willfully violated a policy that he never knew existed. On that
point, Termini is generally correct that “the requirement that a rule violation be ‘deliberate and
willful’ necessarily requires evidence that the employee was aware that [his] conduct was
prohibited.” Petrovic, 2016 IL 118562, ¶ 31. However, the Board did not find that Termini violated
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a City policy or rule. Rather it found that he violated the law and that criminal conduct constitutes
misconduct within the context of section 602(A). This conclusion was not clearly erroneous.
¶ 13 The purpose behind the misconduct exclusion in section 602(A) is “to prevent abuse of the
unemployment insurance system by those whose termination is essentially by choice” (id. ¶ 31) by
excluding individuals “who intentionally commit conduct which they know is likely to result in
their termination” (id. ¶ 27). Based on this principle, courts have established that misconduct
encompasses not just violations of employer rules, but also violations of the law. Id. ¶ 35. Indeed,
“where an employee’s behavior would constitute a crime, *** it is fair to say that the employee
knows his actions are likely to result in termination.” Id. ¶ 36. Accordingly, the Board could have
properly found Termini ineligible for benefits based on a violation of the law rather than a violation
of an employer rule.
¶ 14 As for whether or not Termini’s conduct violated the law, Termini points out that the Board’s
decision does not specifically mention which law he violated, and Termini contends that we are,
therefore, unable to adequately review the Board’s decision. At a minimum, Termini argues that
we should remand the case to the Board for clarification. But we do not believe that is necessary.
¶ 15 In its protest against Termini’s application for benefits, the City expressly stated that Termini
violated section 26.5-3 of the Criminal Code, and that filing from the City was part of the record
before the Department and the Board. See 820 ILCS 405/801 (West 2020) (providing that “any
document in the files of the Department of Employment Security submitted to it by any of the
parties, shall be a part of the record, and shall be competent evidence bearing upon the issues”).
Furthermore, “specific findings of fact by the agency are not necessary for judicial review”
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(Mahonie v. Edgar, 131 Ill. App. 3d 175, 178 (1985)), and an appellate court can affirm a judgment
on any basis contained in the record (Department of Healthcare & Family Services ex rel. Hodges
v. Delaney, 2021 IL App (1st) 201186, ¶ 28). Accordingly, a statement from the Board regarding
the precise basis for its ruling is not necessary to our review, so long as we can determine from the
record whether Termini’s conduct violated the law. Furthermore, when we look at the record as a
whole in conjunction with the Board’s findings, and particularly the Board’s statement that Termini
“made a public threat of violence in the workplace,” it seems clear that the Board found that
Termini’s conduct amounted to the offense of harassment through electronic communications.
¶ 16 Section 26.5-3 of the Criminal Code proscribes harassment through electronic
communications and specifically prohibits, in relevant part, using an electronic communication for
the purposes of “[t]hreatening injury to the person or to the property of the person to whom an
electronic communication is directed or to any of his or her family or household members.”
Regarding what constitutes an illegal threat, “ ‘[t]rue threats encompass those statements where
the speaker means to communicate a serious expression of an intent to commit an act of unlawful
violence to a particular individual or group of individuals.’ ” People v. Ashley, 2020 IL 123989, ¶
33, as modified on denial of reh'g (Mar. 23, 2020) (quoting Virginia v. Black, 538 U.S. 343, 359
(2003)). “ ‘The speaker need not actually intend to carry out the threat. Rather, a prohibition on
true threats protect[s] individuals from the fear of violence and from the disruption that fear
engenders, in addition to protecting people from the possibility that the threatened violence will
occur.’ ” Id. (quoting Black, 538 U.S. at 359–60); see also People v. Greenfield, 2021 IL App (1st)
190952-U, ¶ 28 (applying the definition of “true threat” in its interpretation of “threatening injury”
as used in section 26.5-3) (unpublished order under Supreme Court Rule 23).
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¶ 17 As for the meaning of “injury,” the statute does not define that term, nor does any caselaw
concerning section 26.5-3 or any related harassment offenses. This leaves us a little in the dark
about what types of threatened conduct might amount to the offense of harassment through
electronic communications. For instance, does the threatened injury need to be a physical or bodily
injury, or might it also include emotional, reputational, or financial injury? Regardless, we do not
believe that it is necessary to define the bounds of that term in order to resolve the issues presented
in this case.
¶ 18 The Board described Termini’s threat as one of “violence,” the same term used in the definition
of “true threat.” The use of the word “violence” seemingly implies that the Board viewed the
threatened injury as a physical one. Of all of the types of injuries that might be included in the term
“injury” as it is used in section 26.5-3, common sense suggests that physical injury would be the
most likely inclusion. Thus, the Board’s view of the threat appears to fall within the bounds of the
statute. And when we look at the precise language that Termini used, we cannot say that the
Board’s opinion on this point was clearly erroneous. Again, Termini stated in his Facebook post:
“This is really getting old. I’m sick of this. How is it that money comes before safety? Well, you’ve
been warned. You better pray this doesn’t touch my life because I’ll take you all with me.” The
phrases, “you’ve been warned” and “I’ll take you all with me,” when read together, could
reasonably be read as a threat of violence. Indeed, several of Termini’s coworkers reported feeling
threatened by Termini’s post and feared that he “might actually come into the workplace and harm
them.”
¶ 19 It is true that the language in the Facebook post was somewhat ambiguous. But even if we
were to take Termini at his word and view the post not as a threat of violence but as a threat to
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come to work while sick with COVID-19 and spread the illness to others, we would still view
Termini’s post as a threat to injure his coworkers. It is common knowledge that people who contract
COVID-19 can become severely ill, experience long-lasting damage to their body, or even die. See
About COVID-19, Centers for Disease Control and Prevention (May 11, 2023) (available at
https://www.cdc.gov/coronavirus/2019-ncov/your-health/about-covid-19.html); see also Edward
Sims Jr. Trust v. Henry County Board of Review, 2020 IL App (3d) 190397 (“It is generally accepted
that a court may take judicial notice of the information on a government website.”). Therefore, it
would be reasonable to view a threat to intentionally infect someone with COVID-19, a potentially
damaging and deadly illness, as a threat to cause them bodily injury. Cf. Ill. Pattern Jury Instr.-
Criminal 11.65A (defining “bodily harm” as including sexually transmitted diseases). Accordingly,
for each of the above reasons, we cannot say that the Board clearly erred in concluding that
Termini’s Facebook post constituted an illegal threat to injure.
¶ 20 Based on the foregoing, we affirm the Board’s determination that Termini was dismissed for
misconduct and is ineligible for unemployment benefits.
¶ 21 Affirmed.
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