Twyman v. The Illinois Department of Employment Security , 2017 IL App (1st) 162367 ( 2017 )

Digitally signed by
Reporter of Decisions
Illinois Official Reports Reason: I attest to the
accuracy and integrity
of this document
Appellate Court Date: 2017.07.13
11:25:32 -05'00'
Twyman v. Department of Employment Security, 2017 IL App (1st) 162367
Appellate Court WAYDE TWYMAN, Plaintiff-Appellant, v. THE DEPARTMENT
Caption OF EMPLOYMENT SECURITY, THE DIRECTOR OF
EMPLOYMENT SECURITY, THE BOARD OF REVIEW OF THE
DEPARTMENT OF EMPLOYMENT SECURITY, and CHICAGO
TRANSIT AUTHORITY CTA MERCHANDISE MART PLAZA c/o
MSN, Defendants (The Department of Employment Security, the
Director of Employment Security, and the Board of Review of the
Department of Employment Security, Defendants-Appellees).
District & No. First District, Fifth Division
Docket No. 1-16-2367
Filed March 31, 2017
Decision Under Appeal from the Circuit Court of Cook County, No. 16-L-50380; the
Review Hon. Kay Marie Hanlon, and the Hon. James M. McGing, Judges,
presiding.
Judgment Affirmed.
Counsel on Wayde Twyman, of Chicago, appellant pro se.
Appeal
Lisa Madigan, Attorney General, of Chicago (David L. Franklin,
Solicitor General, and Bridget DiBattista, Assistant Attorney General,
of counsel), for appellees.
Panel PRESIDING JUSTICE GORDON delivered the judgment of the
court, with opinion.
Justices Hall and Reyes concurred in the judgment and opinion.
OPINION
¶1 Plaintiff Wayde Twyman appeals the trial court’s grant of defendant’s motion to dismiss
for lack of subject matter jurisdiction. The trial court dismissed plaintiff’s complaint because
plaintiff failed to file it within 35 days after service of a decision by the Board of Review of the
Department of Employment Security (Board). In his complaint, plaintiff had sought review of
a final decision by the Board denying him unemployment benefits.
¶2 For the following reasons, we affirm the dismissal.
¶3 BACKGROUND
¶4 On June 9, 2016, plaintiff filed a pro se complaint in the trial court seeking review of a
decision issued by the Board on May 3, 2016. Plaintiff filed this complaint pursuant to the
Administrative Review Law (Law) (735 ILCS 5/3-101 et seq. (West 2014)). In the complaint,
he alleged that he had been employed with the Chicago Transit Authority (CTA), which had
been a party of record to the proceedings.
¶5 The Board’s decision was attached as an exhibit to the complaint, and it stated that it had
been mailed to plaintiff on May 3, 2016. The decision stated in relevant part:
“This is an appeal by the claimant from a Referee’s decision dated 02/23/2016,
which affirmed the claims adjudicator’s determination and held that pursuant to 820
ILCS 405/602A, the claimant is not eligible for benefits from 12/06/2015. ***
We have reviewed the record of the evidence in this matter, including the transcript
of the testimony submitted at the hearing conducted by telephone on 02/22/2016, at
which the claimant and employer appeared and testified. ***
The record discloses that the claimant was employed by the employer as a bus
operator until December 10, 2015, when the claimant was discharged by the employer
due to the claimant’s excessive absenteeism.
The claimant was last warned by the employer due to the claimant’s excessive
absenteeism on November 26, 2015.
The claimant was scheduled to work on November 26, 2015.[1] The claimant was a
no call/no show on November 26, 2015 *** due to the claimant assuming the claimant
was not scheduled to work that day.”
¶6 The Board found that plaintiff was afforded a full and fair hearing by the referee and was
discharged for misconduct connected with work. As a result, the Board concluded that plaintiff
was not eligible for unemployment benefits and it affirmed the decision of the referee.
¶7 The Board’s decision advised plaintiff of his appeal rights, stating:
“Notice of rights for further review by the courts:
1
Thursday, November 26, 2015, was Thanksgiving.
-2-
If you are aggrieved by this decision and want to appeal, you must file a complaint
for administrative review and have summons issue in [the] circuit court within 35 days
from the mailing date, 5/03/2016.”
Thus, the Board’s decision advised plaintiff that, in order to appeal, he “must” both (1) “file a
complaint for administrative review” and (2) “have summons issue in [the] circuit court.” The
decision also told him that he “must” take these actions “within 35 days from the mailing date,
5/03/16.” There is no dispute on this appeal that 35 days from May 3, 2016, was Tuesday, June
7, 2016.
¶8 However, plaintiff filed his pro se complaint on Thursday, June 9, 2016, in the trial court.
On June 22, 2016, defendant CTA filed an appearance with the trial court; and on July 6, 2016,
defendants Department of Employment Security, Director of Department of Employment
Security, and the Board (collectively referred to as the state defendants) also filed an
appearance.
¶9 On July 6, 2016, the state defendants filed a motion to dismiss pursuant to section
2-619(a)(5) of the Code of Civil Procedure (Code) claiming a lack of subject matter
jurisdiction. 735 ILCS 5/2-619(a)(5) (West 2014) (providing for dismissal when “the action
was not commenced within the time limited by law”). The state defendants moved to dismiss
on the ground that “[t]he last day on which plaintiff might have filed a complaint for
administrative review of said decision was Tuesday, June 7, 2016,” and plaintiff did not file
until “Thursday, June 9, 2016,” which was “2 days after the statutory period within which to
file the complaint expired.” See 735 ILCS 5/3-102 (West 2014) (“Unless review is sought of
an administrative decision within the time and in the manner herein provided, the parties to the
proceeding before the administrative agency shall be barred from obtaining judicial review.”);
735 ILCS 5/3-103 (West 2014) (“Every action to review a final administrative decision shall
be commenced by the filing of a complaint and the issuance of summons within 35 days from
the date that a copy of the decision sought to be reviewed was served upon the party ***.”).
¶ 10 On July 20, 2016, the trial court issued an order, which is the subject of this appeal, so we
repeat it here in full:
“This matter comes before This Court for a hearing on the state defendants’ motion
to dismiss for lack of subject matter jurisdiction, plaintiff appearing pro se. The state
defendants and employer defendant appearing through respective counsel. The Court
being fully advised in the premises,
IT IS HEREBY ORDERED:
1) The state defendants’ motion to dismiss for lack of subject matter jurisdiction is
granted.
2) Plaintiff’s complaint is hereby dismissed with prejudice.”
¶ 11 On July 20, 2016, plaintiff moved to vacate the trial court’s order; and the trial court set
plaintiff’s motion for a hearing on August 24, 2016. On August 24, the trial court issued an
order which states in its entirety: “Plaintiff’s motion to vacate is denied.”
¶ 12 On August 24, 2016, plaintiff filed a notice of appeal, which stated:
“I want [to] make a new law. The 35 days should be stayed. I have proof that I did
respond to denial in phone hearing as I did in prior phone hearings and the Instructions
should be Bold.”
-3-
¶ 13 In his appellate brief, plaintiff states the grounds for his appeal in one short page, which we
provide here in full:
“This is a respectful request to have a day in court to present evidence of an
unjustified vacate order of [plaintiff’s] job at the [CTA].
After receiving a denial via phone on January 8, 2016, [plaintiff] appealed it and
was issued another on February 22, 2016. Upon receiving a second denial via phone at
the second hearing on 2/22/2016, [plaintiff] (immediately) appealed the vacate order.[2]
A determination letter was received on May 3, 2016, yet [plaintiff] was unaware of
the 35 day requirement to request a court appearance, after sending a request to appeal
the decision on May 4, 2016 via a handwritten letter (Exhibit A), [and] a typed letter
(Exhibit B) with proof via a fax confirmation (Exhibit C).
[Plaintiff] requests a day in court to present the facts of these unjust actions at the
CTA in their failed attempt to execute an unjustifiable vacate order of his job, after over
15 years of faithful service with the City of Chicago.”
Plaintiff included in his appellate brief copies of the documents which he described above.
However, these documents are not a part of the appellate record.
¶ 14 ANALYSIS
¶ 15 As noted, plaintiff appeals the trial court’s dismissal of his complaint for lack of subject
matter jurisdiction, when his complaint was not filed within a statutorily required 35-day time
period.
¶ 16 On this appeal, plaintiff does not dispute that he received a determination letter which
stated the 35-day filing requirement. In his brief, plaintiff stated: “A determination letter was
received on May 3, 2016, yet [plaintiff] was unaware of the 35 day requirement to request a
court appearance ***.”
¶ 17 Plaintiff sets forth two grounds on this appeal: (1) that he was “unaware of the 35 day
requirement” although he received the letter and (2) that he sent “a request to appeal the
decision on May 4, 2016 via a handwritten letter (Exhibit A), [and] a typed letter (Exhibit B)
with proof via a fax confirmation (Exhibit C).”
¶ 18 I. Section 2-619 Dismissal
¶ 19 The trial court dismissed the complaint pursuant to section 2-619(a)(5) of the Code which
provides for dismissal because “the action was not commenced within the time limited by
law.” 735 ILCS 5/2-619(a)(5) (West 2014).
¶ 20 “A motion to dismiss pursuant to section 2-619 of the Code admits the legal sufficiency of
the plaintiff’s complaint, but asserts an affirmative defense or other matter that avoids or
defeats the plaintiff’s claim.” (Internal quotation marks omitted.) Trzop v. Hudson, 2015 IL
App (1st) 150419, ¶ 63. “For a section 2-619 dismissal, our standard of review is de novo.”
Trzop, 2015 IL App (1st) 150419, ¶ 63. “De novo review means that we will perform the same
analysis a trial court would perform.” Trzop, 2015 IL App (1st) 150419, ¶ 63. “Under the
de novo standard of review, this court owes no deference to the trial court.” (Internal quotation
2
In this quote, the bracketed information has been added. However, the parentheses are in the
original.
-4-
marks omitted.) Trzop, 2015 IL App (1st) 150419, ¶ 63. “In ruling on a section 2-619 motion to
dismiss, the court must interpret the pleadings and supporting materials in the light most
favorable to the nonmoving party.” Trzop, 2015 IL App (1st) 150419, ¶ 63.
¶ 21 For a motion to be properly brought under section 2-619, the motion (1) must concern one
of nine listed grounds and (2) must be filed within the time for pleading. Wilson v. Molda, 396
Ill. App. 3d 100, 105 (2009); River Plaza Homeowner’s Ass’n v. Healey, 389 Ill. App. 3d 268,
275 (2009).
¶ 22 The Code provides that a section 2-619 may be brought on one of only nine listed grounds.
735 ILCS 5/2-619(a)(5) (West 2014). One of these grounds is that “the action was not
commenced within the time limited by law.” 735 ILCS 5/2-619(a)(5) (West 2014). Thus, the
state defendants have satisfied the first requirement for a section 2-619 motion.
¶ 23 However, for a section 2-619 motion to be properly brought, it must not only concern a
listed ground, but it must also be filed “within the time for pleading.” 735 ILCS 5/2-619(a)
(West 2014); Trzop, 2015 IL App (1st) 150419, ¶ 67. The purpose of a section 2-619 motion is
to dispose of issues of law and easily proved issues of fact at the onset of the litigation. Trzop,
2015 IL App (1st) 150419, ¶ 67. Generally, defendants are required to file an answer or
otherwise appear within 30 days after service. Ill. S. Ct. R. 101(d) (eff. Jan. 1, 2016). In the
case at bar, the state defendants filed their motion to dismiss on July 6, 2016, which was less
than 30 days after plaintiff filed his complaint.
¶ 24 In addition, since the record does not disclose that plaintiff claimed either at the trial level
or on this appeal that the state defendants failed to file their section 2-619 motion within the
time for pleading, any issue regarding the timeliness of the state defendants’ filing has been
waived for our consideration. Wilson, 396 Ill. App. 3d 100 (where plaintiff fails to raise any
timeliness issue with respect to a section 2-619 motion, that issue is waived for consideration
on appeal).
¶ 25 Thus, the state defendants have satisfied the two requirements for filing a section 2-619
motion.
¶ 26 II. Plaintiff’s Complaint
¶ 27 Plaintiff asks this court to reverse the trial court, first, because he was unaware of the
35-day filing requirement and, second, because he satisfied it by allegedly faxing a letter to the
Board.
¶ 28 Our supreme court “has held that administrative review actions, whether taken to the
circuit court or directly to the appellate court, involve the exercise of ‘special statutory
jurisdiction.’ ” ESG Watts, Inc. v. Pollution Control Board, 191 Ill. 2d 26, 30 (2000) (quoting
McGaughy v. Illinois Human Rights Comm’n, 165 Ill. 2d 1, 6-7 (1995) (appellate court), and
Fredman Brothers Furniture Co. v. Department of Revenue, 109 Ill. 2d 202, 210-11 (1985)
(circuit court)). “When a court is exercising special statutory jurisdiction, the language of the
act conferring jurisdiction delimits the court’s power to hear the case.” ESG Watts, 191 Ill. 2d
at 30. “A party seeking to invoke special statutory jurisdiction,” such as plaintiff in the case at
bar, “ ‘must strictly adhere to the proscribed procedures’ in the statute.” ESG Watts, 191 Ill. 2d
at 30 (quoting McGaughy, 165 Ill. 2d at 12).
¶ 29 Section 3-102 of the Law makes the same point: “Unless review is sought of an
administrative decision within the time and in the manner herein provided, the parties to the
-5-
proceeding before the administrative agency shall be barred from obtaining judicial review.”
(Emphases added.) 735 ILCS 5/3-102 (West 2014).
¶ 30 Section 3-103 of the Law specifies the time and manner of review, as follows: “Every
action to review a final administrative decision shall be commenced by the filing of a
complaint and the issuance of summons within 35 days from the date that a copy of the
decision sought to be reviewed was served upon the party ***.” 735 ILCS 5/3-103 (West
2014).
¶ 31 The decision mailed to plaintiff recited the same manner and timing that is specified in
section 3-103. As noted above, the Board’s decision advised plaintiff that, in order to appeal he
“must” both (1) “file a complaint for administrative review” and (2) “have summons issue in
[the] circuit court.” The decision also told him that he “must” take these actions “within 35
days from the mailing date, 5/03/16,” which was Tuesday, June 7, 2016.
¶ 32 Section 3-102 provides for a limited exception: “If under the terms of the Act governing the
procedure before an administrative agency an administrative decision has become final
because of the failure to file any *** application for administrative review within the time
allowed by such Act, such decision shall not be subject to judicial review hereunder excepting
only for the purpose of questioning the jurisdiction of the administrative agency over the
person or the subject matter.” (Emphasis added.) 735 ILCS 5/3-102 (West 2014). In this
appeal, plaintiff does not question “the jurisdiction of the administrative agency over the
person or the subject matter.” 735 ILCS 5/3-102 (West 2014). Thus, this exception does not aid
plaintiff.
¶ 33 Plaintiff does not provide any case law to support his argument that we may excuse his
untimely filing due to his alleged ignorance of the 35-day requirement or his alleged faxing of
a letter to the board within 35 days. As the state defendants observe, this court has repeatedly
held that a plaintiff waives a point by failing to offer either supporting legal authority or
reasoned argument for an extension or modification of existing authority. E.g., Lozman v.
Putnam, 379 Ill. App. 3d 807, 824 (2008) (citing numerous cases in support).
¶ 34 As the state defendants also observe, despite the mandatory nature of the Law, appellate
courts have sometimes applied a good-faith exception. For example, in Beggs v. Board of
Education of Murphysboro Community Unit School District No. 186, 2015 IL App (5th)
150018, ¶¶ 1-3, a plaintiff filed a complaint for administrative review, but she used a former
address of the Board rather than its current address, and she failed to correctly name the
Board’s president. Nonetheless, the summons with the complaint was ultimately routed to and
signed as received by a Board employee within the prescribed time period. Beggs, 2015 IL App
(5th) 150018, ¶¶ 3, 4 (“the trial court found that the Board’s receipt of the original summons
was within the requisite time period prescribed by the Act”). Despite proof of actual receipt
within the prescribed time period, the Board moved to dismiss on the ground that the plaintiff’s
failure to serve the Board at its proper address and upon the designated president within the
proscribed period did not strictly comply with the Law’s procedural requirements and thus
required dismissal. Beggs, 2015 IL App (5th) 150018, ¶ 3.
¶ 35 The appellate court rejected the Board’s argument, stating that, “because the 35-day period
for issuance of summons is mandatory, not jurisdictional, failure to comply with the provision
does not automatically deprive the court of jurisdiction in the instant case.” Beggs, 2015 IL
App (5th) 150018, ¶ 7; Burns v. Department of Employment Security, 342 Ill. App. 3d 780, 786
(2003) (“Unlike some other requirements under the [Administrative Review] Law, the 35-day
-6-
period for issuance of summons is mandatory, not jurisdictional. Thus, failure to comply with
the provision does not automatically deprive the court of jurisdiction.”). The Beggs court then
found that plaintiff had made a good-faith effort to comply, stating: “our courts have
recognized a narrow exception to dismissal in cases where the plaintiff has made a good-faith
effort to comply.” Beggs, 2015 IL App (5th) 150018, ¶ 7 (citing Burns, 342 Ill. App. 3d at
787); see also Burns, 342 Ill. App. 3d at 795-96 (reversing dismissal of plaintiff’s complaint
where plaintiff had made a good-faith effort).
¶ 36 Unlike Beggs, the appellate record in the case at bar contains no evidence of an attempt by
plaintiff to serve the Board in any fashion within the 35-day time period. Even if we were to
accept his assertion in his appellate brief that he faxed a letter to the Board, we could not find
that a faxed letter represents a good-faith attempt to serve a summons and complaint. A letter is
not a complaint and summons. Ill. S. Ct. R. 101 (eff. Jan. 1, 2016); R. 102 (rules governing the
form and service of a summons and complaint).3 This is particularly true when the appellate
record contains no acknowledgement of actual receipt during the 35-day period, as was the
case in Beggs. The advantage of following the rules is that then we, the courts, have proof of
service within the proscribed time period. Ill. S. Ct. R. 102(d). Here, we have none.
¶ 37 Thus, whether the 35-day requirement is mandatory or jurisdictional, as the state
defendants argue, dismissal was warranted.4
¶ 38 However, we are mindful, as we have stated in a prior unemployment benefits case, that we
“ ‘should not find hypertechnical excuses to avoid deciding the merits of disputes, when no
delay or harm was caused by the technical violation to any party.’ ” Burns, 342 Ill. App. 3d at
787 (quoting Worthen v. Village of Roxana, 253 Ill. App. 3d 378, 382 (1993)). In the case at
bar, the state defendants suffered no harm from plaintiff’s two-day delay in filing.
¶ 39 Even if we were to consider the merits of plaintiff’s underlying claims, we would still be
forced to find that dismissal was warranted. Reviewing courts apply different standards of
review to the Board’s decision depending on whether the question presented is one of fact or
law. Pesoli v. Department of Employment Security, 2012 IL App (1st) 111835, ¶ 20 (citing
City of Belvidere v. Illinois State Labor Relations Board, 181 Ill. 2d 191, 204 (1998)). When
reviewing the Board’s findings of fact, we deem those findings prima facie correct, and we will
reverse only if they are against the manifest weight of the evidence. Pesoli, 2012 IL App (1st)
111835, ¶ 20 (citing Abbott Industries, Inc. v. Department of Employment Security, 2011 IL
3
For example, Illinois Supreme Court Rule 101(a) (eff. Jan. 1, 2016) provides: “The summons shall
be issued under the seal of the court, tested in the name of the clerk, and signed with his name. It shall
be dated on the date it is issued, shall be directed to each defendant, and shall bear the information
required by Rule 131(d) for the plaintiff’s attorney or the plaintiff if not represented by an attorney.”
4
We do not need to decide whether the 35-day requirement is jurisdictional or mandatory in order to
affirm the dismissal in this case, and thus, we decline to address this issue. The state defendants cite
Illinois Supreme Court cases stating that, if the statutorily prescribed procedures are not followed, no
jurisdiction is conferred on the circuit court. E.g., Slepicka v. Illinois Department of Public Health,
2014 IL 116927, ¶ 34 (citing Fredman Brothers Furniture Co. v. Department of Revenue, 109 Ill. 2d
202, 210 (1985)). However, there are also appellate court cases decided after these cases which state
that the 35-day rule is mandatory not jurisdictional and which apply a good faith exception. E.g., Beggs,
2015 IL App (5th) 150018, ¶ 7; Burns, 342 Ill. App. 3d at 786-87. As previously stated, we do not need
to resolve the issue of whether the 35-day requirement is jurisdictional or mandatory in order to affirm
the dismissal here.
-7-
App (2d) 100610, ¶ 15). By contrast, when our review of the Board’s decision to deny
unemployment insurance benefits involves a mixed question of law and fact, we employ a
clearly erroneous standard, which is less deferential to the Board than the manifest weight of
the evidence standard. Petrovic v. Department of Employment Security, 2016 IL 118562, ¶ 21.
A mixed question of law and fact requires a court to determine the legal effect of a given set of
facts. Petrovic, 2016 IL 118562, ¶ 21.
¶ 40 In the case at bar, plaintiff’s underlying claim raises an issue of fact, namely, one of
credibility. He does not dispute that he was a no-show without a call on Thanksgiving; rather,
he claims that he was under the impression that he was not scheduled to work on that day.
Neither his employer nor the referee accepted this statement. Upon appeal to the Board, the
Board held a hearing, at which it heard from both sides, and it also was not persuaded by
plaintiff’s testimony. Absent any evidence in the record to support plaintiff’s claim except for
his own statement, we defer to the Board’s credibility findings since we lack the ability, as it
did, to hear from the witnesses first hand. Pesoli, 2012 IL App (1st) 111835, ¶ 26 (“It is the
Board’s responsibility to weigh the evidence, evaluate the credibility of the witnesses and
resolve conflicts in testimony.”); see also Hurst v. Department of Employment Security, 393
Ill. App. 3d 323, 329 (2009); Caterpillar, Inc. v. Doherty, 299 Ill. App. 3d 338, 344 (1998).
¶ 41 Having now considered every possible reason to rule in plaintiff’s favor, we have no choice
but to affirm the dismissal of his complaint.
¶ 42 CONCLUSION
¶ 43 For all of the foregoing reasons, we affirm the trial court’s dismissal of plaintiff’s
complaint.
¶ 44 Affirmed.
-8-