A state appeals panel upheld the city of Chicago’s decision to deny a former employee unemployment benefits following his termination for posting a threatening message to his coworkers on Facebook who he believed were coming to work while infected with Covid-19.
Charles Termini worked as a truck driver for the city at O’Hare International Airport. In April 2020, at the beginning of the Covid 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 symptoms.
The post read: “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 so it simply read, “You’ve been warned.”
As a result of the posts, the city fired Termini. The city said he used his social media to willfully and deliberately make threatening statements towards his coworkers, committing harassment through electronic communication in violation of the Criminal Code of 2012. The city also opposed his application for unemployment benefits following his termination, and the Illinois Department of Employment Security denied the benefits.
In addition to the city of Chicago, the Board of Review of the Illinois Department of Employment Security, Director of the Illinois Department of Employment Security and the city of Chicago Department of Personnel were named as defendants in Termini's lawsuit.
Termini appealed a circuit court order affirming an administrative decision denying him unemployment benefits after he was terminated. Termini contended the city failed to establish he willfully violated any city policy or committed any criminal offense warranting the denial of benefits.
On appeal, a three-justice panel of the Illinois First District Appellate Court disagreed.
Justice Thomas Hoffman delivered the judgment on June 8. Justices Bertina Lampkin and Leroy K. Martin concurred in the judgment.
Termini’s primary argument on appeal was the city failed to show 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.
Termini contends he could not have willfully violated a policy he never knew existed. On that point, the panel found, 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.” However, the board didn’t find Termini violated a city policy or rule. Rather it found he violated the law and that criminal conduct constitutes misconduct.
Courts have established that misconduct encompasses not just violations of employer rules, but also violations of the law.
"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,” Hoffman wrote.
Accordingly, the board could have found Termini ineligible for benefits based on a violation of the law rather than a violation of an employer rule.
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 the board viewed the threatened injury as a physical one. When the panel looked at the precise language Termini used, it couldn’t say the board’s opinion on this point was clearly erroneous. The phrases in his post, “you’ve been warned” and “I’ll take you all with me,” when read together, could reasonably be read as a threat of violence, the justices found.
Several of Termini’s coworkers reported feeling threatened by Termini’s post and feared he “might actually come into the workplace and harm them,” the justices noted.
The language in the Facebook post was somewhat ambiguous, the panel found.
“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 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,” Hoffman wrote.
It is common knowledge that people who contract Covid can become severely ill, experience long-lasting damage to their body, or even die.
The panel found it couldn’t say that the board clearly erred in concluding Termini’s Facebook post constituted an illegal threat to injure. It affirmed the board’s determination that Termini was dismissed for misconduct and is ineligible for unemployment benefits.