Lobrow v. Illinois Department of Labor , 2024 IL App (1st) 230163-U ( 2024 )

2024 IL App (1st) 230163-UNo. 1-23-0163
Order filed March 11, 2024
First Division
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
______________________________________________________________________________
BOGUMILA LOBROW, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County.
)
v. )
)
ILLINOIS DEPARTMENT OF LABOR, BELMONT ) No. 21 CH 6000
GROCERIES, LLC D/B/A RICH’S FRESH MARKET, )
AND RICHARD MACHNICKI )
)
Defendants, ) Honorable
) Celia G. Gamrath,
(Illinois Department of Labor, Defendant-Appellee). ) Judge, presiding.
JUSTICE COGHLAN delivered the judgment of the court.
Justices Lavin and Pucinski concurred in the judgment.
ORDER
¶1 Held: The circuit court’s orders affirming a decision of the Illinois Department of Labor
and denying plaintiff’s pro se motion to vacate are vacated for lack of jurisdiction,
and plaintiff’s pro se untimely complaint for administrative review is dismissed.
¶2 Pro se plaintiff Bogumila Lobrow appeals from an order of the circuit court affirming the
decision of defendant, the Illinois Department of Labor (Department), to dismiss her claim for
No. 1-23-0163
unpaid wages filed pursuant to the Illinois Wage Payment and Collection Act (Act) (820 ILCS
115/1 et seq. (West 2016)). On appeal, plaintiff contends that the Department’s decision was
against the manifest weight of the evidence. 1 She further contends that the circuit court erred by
determining that an overtime claim that was dismissed by the Department in 2018 could not be
raised on administrative review. Because the circuit court lacked jurisdiction, we vacate its orders
affirming the Department and denying plaintiff’s motion to vacate, and dismiss plaintiff’s untimely
pro se complaint for administrative review.
¶3 We set forth only the facts necessary to understand the issues on appeal.
¶4 On April 24, 2017, plaintiff filed a complaint with the Department alleging that Belmont
Groceries, LLC d/b/a Rich’s Fresh Market (Belmont Groceries), owned by Richard Machnicki,
owed her $64,500 in unpaid wages for hours worked between December 1, 2015, and February 5,
2017. 2 The complaint sought $60,000 in regular wages and $4500 in overtime pay at an hourly
rate of $25. In May 2018, the Department dismissed the overtime claim.
¶5 A hearing was held before an administrative law judge (ALJ) on January 7, 2020, and
August 20, 2020. On January 6, 2021, the ALJ filed a decision dismissing plaintiff’s claim.
Plaintiff filed a timely pro se motion to reconsider alleging, relevant here, that the Polish interpreter
at the hearing was inaccurate. On March 16, 2021, plaintiff’s motion was granted, the dismissal
was vacated, and the cause was set for a hearing before a new ALJ with a different interpreter.
¶6 On October 12, 2021, a hearing was held with a Polish interpreter present. Plaintiff
appeared pro se and Belmont Groceries and Machnicki appeared through counsel.
1
On January 26, 2024, we granted the Department’s motion to strike plaintiff’s pro se reply brief
because it was prepared by plaintiff’s son, a nonlawyer who is not a party to this appeal.
2
Machnicki’s last name is also spelled Macknicki in the record.
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¶7 Plaintiff testified that Machnicki hired her as a floral designer on December 1, 2015, at an
hourly wage of $25. Her hours were reported beginning in January 2016, and her last day was
February 5, 2017. She stopped working at Belmont Groceries because of nonpayment of wages.
¶8 After two weeks of nonpayment, she spoke to her manager, Maria Sliwinski. 3 Sliwinski
was a friend and had offered plaintiff the job. Sliwinski stated that the business was “developing”
and plaintiff had to wait for payment, so plaintiff waited for a year. When she complained about
nonpayment to her husband, Andrzej Lobrow, he told her about checks that were sent to him.4
¶9 Plaintiff claimed that, based upon records she received from Belmont Groceries, she
worked 1945 hours and “75 minutes.” She further calculated 89 hours and 79 minutes of overtime.
The ALJ stated that the overtime claim was not before him at this hearing. The ALJ then stated
that, based upon plaintiff’s testimony that she worked 1945.75 hours at $25 per hour, her alleged
unpaid wages totaled $48,643.75.
¶ 10 During cross-examination, plaintiff acknowledged that her husband showed her checks
from Belmont Groceries, but denied that those checks were for her. She was interviewed for the
job by Machnicki, with Sliwinski present. She was never paid, and did not ask that her wages be
paid to her husband’s company, Slavonic Craft, LLC (Slavonic Craft). She had nothing to do with
her husband’s company. When defendants’ counsel asked if plaintiff was aware that Belmont
Groceries paid Slavonic Craft $25,294.75, plaintiff replied that was a question for the manager of
3
Sliwinski’s last name is also spelled Slevinski in the record. We adopt the spelling that Sliwinski
used when introducing herself at her deposition.
4
Andrzej Lobrow’s first name is also spelled Andre and Andrej in the record. For clarity, we refer
to him by his first name as he and plaintiff share the same last name.
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Slavonic Craft. She had “no idea” why Belmont Groceries would pay Slavonic Craft and denied
picking up paychecks from Vicky Poselkiwicz.
¶ 11 Plaintiff explained that she calculated her hours worked based upon documents sent to her
by counsel for Belmont Groceries and Machnicki regarding the times that she clocked in and out
at Belmont Groceries. She agreed that the records were accurate. She also agreed that the records
of hours worked and hours paid at $13 an hour matched the checks that were issued to Slavonic
Craft, and that those checks bore her husband’s signature and were deposited into Slavonic Craft’s
bank account. 5
¶ 12 Although plaintiff asserted that she was to be paid $25 an hour, she admitted that a “claim
interview form” generated during Department proceedings stated her rate was $18 per hour. 6 Her
son made a mistake entering the information. She also acknowledged that the form stated that she
was paid by check. She did not tell Belmont Groceries to pay Slavonic Craft. Plaintiff’s mailing
address was the same as the mailing address for Slavonic Craft and she declined to state where she
currently lived. She did not know where her husband lived, as they no longer lived together.
Currently, plaintiff worked at ABM Floral Design, which was registered to her husband.
¶ 13 Poselkiwicz, a Belmont Groceries employee, testified that she issued paychecks every two
weeks. Poselkiwicz recognized plaintiff, to whom she personally handed paychecks. Machnicki
told her to make plaintiff’s paychecks out to Slavonic Craft. Poselkiwicz was never instructed to
pay employees in cash. Plaintiff was the only person who received a paycheck written out to
5
The record contains scans of checks from the account of Belmont Grocery made out to Slavonic
Craft LLC, dated between January 2016 and February 2017. They are endorsed “Deposit for Acc
Slavonic Craft LLC” and “Deposit for Acc Slavonic Craft” with a signature.
6
The “Claimant Interview Form” dated May 18, 2017, is included in the record on appeal. The
document states that plaintiff’s “Hourly/Rate per hour” is $18, and paid by “CHECK.”
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another entity. Plaintiff never complained that she was paid incorrectly, that her payrate was
incorrect, or that the paychecks were made out incorrectly.
¶ 14 Counsel for Belmont Groceries and Machnicki then moved to admit the evidentiary
deposition of Sliwinski which was taken pursuant to a Department order on March 27, 2020, which
was allowed. In the deposition, Sliwinski stated that she believed that plaintiff was paid $13 an
hour and denied stating that plaintiff would be paid $25 an hour. Plaintiff did not complain about
an incorrect hourly wage or nonpayment. Plaintiff asked that her paychecks be made out to
Slavonic Craft. Plaintiff did not want to be an employee and was issued a 1099 form for tax
purposes. When Sliwinski was shown a document purporting to bear her signature, she stated that
it was not her signature and that her name was spelled incorrectly.
¶ 15 Andrzej testified that he was the manager and president of Slavonic Craft. He also owned
ABM Floral Studio at the same location. Andrzej asserted that Slavonic Craft had no business with
Belmont Groceries and Belmont Groceries did not owe Slavonic Craft money. He did not know
why he received checks from Belmont Groceries in 2016. After speaking with plaintiff in January
2017, he believed the checks were “probably pay for the Slavonic Craft, because she’s worked for
[it],” but was not sure. When checks came in the mail made out to Slavonic Craft, he deposited
them.
¶ 16 Machnicki testified that in January 2016, he and Sliwinski interviewed plaintiff for a
position in the floral department and agreed on an hourly wage of $13. Plaintiff asked that her
paychecks be made out to Slavonic Craft because she could not work under her social security
number. All employees picked up their paychecks in person. Plaintiff never complained that her
paychecks were incorrect.
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¶ 17 Belmont Groceries manager Lucas Bujack testified that plaintiff made her own work
schedule, her paychecks were made out to Slavonic Craft, and she was paid every two weeks at
$13 an hour. Plaintiff never complained that her paychecks were incorrect.
¶ 18 On October 19, 2021, the ALJ dismissed plaintiff’s claim finding, relevant here, that
plaintiff worked for Belmont Groceries from January 2016 to January 28, 2017, that her hourly
wage was $13, that she requested her paychecks be issued to Slavonic Craft, and that she picked
up each paycheck. The ALJ noted that at the hearing plaintiff agreed that Belmont Groceries’ time
records were accurate. Further, plaintiff received paychecks from Belmont Groceries totaling
$25,294.75, which, according to the ALJ’s calculations resulted in an overpayment of $26.44.
Therefore, because plaintiff failed to establish that she was not paid, her claim was dismissed. The
decision’s “Date of Notice” was October 25, 2021. The attached Certificate of Service stated that
the decision was sent to plaintiff by certified mail and regular mail on October 25, 2021, prior to
4:30 p.m.
¶ 19 On December 1, 2021, plaintiff filed a pro se complaint for administrative review in the
circuit court. On December 19, 2022, the circuit court affirmed the Department’s final
administrative decision. On January 17, 2023, plaintiff filed a pro se motion to vacate the court’s
order, which the court denied on January 18, 2023.
¶ 20 On appeal, plaintiff contends that the Department’s dismissal of her claim was against the
manifest weight of the evidence when she “demonstrated” that she was owed compensation
pursuant to an employment agreement. She further contends that her claim for compensation
includes a claim for overtime.
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¶ 21 The Department responds that the circuit court lacked jurisdiction and its orders must be
vacated because plaintiff did not file a timely complaint for administrative review.
¶ 22 The circuit court’s authority to review the final decisions of an administrative agency is
conferred by the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2020). As the
Administrative Review Law departs from common law, strict compliance is required to invoke it.
Ultsch v. Illinois Municipal Retirement Fund, 226 Ill. 2d 169, 179 (2007). Accordingly, “[u]nless
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 of such administrative decision.” 735 ILCS 5/3-102 (West 2020). The
Department’s final administrative decisions regarding wage claims are subject to judicial review
pursuant to the Administrative Review Law. 820 ILCS 115/11(d) (2020).
¶ 23 Pursuant to the Administrative Review Law, a party must file a complaint in the circuit
court and cause summons to issue within 35 days from the date the final administrative decision
sought to be reviewed was served upon that party. 735 ILCS 5/3-103 (West 2020); see also Palos
Bank & Trust Co., 2015 IL App (1st) 143324, ¶ 11. The 35-day period commences on the date that
the decision was mailed. Nudell v. Forest Preserve District of Cook County, 207 Ill. 2d 409, 422,
424 (2003) (the “requirement that a complaint for administrative review be filed within the
specified time limit is jurisdictional”).
¶ 24 Lack of subject matter jurisdiction may not be waived or cured by consent (People v.
Bailey, 2014 IL 115459, ¶ 14), and can be challenged at any time, including, for the first time, on
appeal (CPM Productions, Inc. v. Mobb Deep, Inc., 318 Ill. App. 3d 369, 373 (2000)). Where the
circuit court lacks jurisdiction, this court cannot address a judgment on the merits. Bailey, 2014 IL
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115459, ¶ 29. Instead, we are limited to reviewing whether the circuit court had jurisdiction and
must vacate any judgments entered without jurisdiction. Id. (where the circuit court lacked
jurisdiction to consider a motion on the merits, the reviewing court should vacate the circuit court’s
judgment and order that the motion be dismissed). Whether the circuit court had subject matter
jurisdiction presents a question of law that we review de novo. Slepicka v. Illinois Department of
Public Health, 2014 IL 116927, ¶ 30.
¶ 25 Here, the Department’s decision’s “Date of Notice” was October 25, 2021, the day that it
was placed in the mail. See 56 Ill. Admin. Code § 300.1160(a) (eff. Mar. 31, 2023) (“[s]ervice
shall be presumed to be accomplished upon mailing or emailing”). Thus, plaintiff had 35 days, or
until Monday, November 29, 2021, to file a complaint for administrative review in the circuit
court. See 735 ILCS 5/3-103 (West 2020); see also Rodriguez v. Sheriff’s Merit Comm’n of Kane
County, 218 Ill. 2d 342, 351 (2006) (the “filing period” began on the date the administrative agency
“mailed its decision”).
¶ 26 However, plaintiff did not file a pro se complaint for administrative review in the circuit
court until December 1, 2021. The 35-day period for filing a complaint for administrative review,
as noted, is a jurisdictional requirement. Id. at 350-51. Therefore, because plaintiff did not file a
complaint for administrative review within 35 days of the date that the Department’s decision was
mailed, her complaint was untimely and the circuit court lacked jurisdiction to consider it. See
Nudell, 207 Ill. 2d at 422 (the “requirement that a complaint for administrative review be filed
within the specified time limit is jurisdictional”). Accordingly, the circuit court’s orders affirming
the Department’s decision and denying plaintiff’s motion to vacate must be vacated, and plaintiff’s
untimely pro se complaint for administrative review dismissed. See Bailey, 2014 IL 115459, ¶ 29.
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¶ 27 For the foregoing reasons, we vacate the orders of the circuit court affirming the
Department’s decision and denying plaintiff’s motion to vacate, and dismiss plaintiff’s untimely
complaint for administrative review.
¶ 28 Orders vacated; complaint for administrative review dismissed.
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