Twyman v. Dep't of Emp't Sec.

• Decision Date: 31 March 2017
• Docket Number: No. 1-16-2367,1-16-2367
• Citation: 2017 IL App (1st) 162367,77 N.E.3d 1087
• Parties: Wayde TWYMAN, Plaintiff-Appellant, v. The DEPARTMENT 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).
• Court: United States Appellate Court of Illinois

2017 IL App (1st) 162367

77 N.E.3d 1087

Wayde TWYMAN, Plaintiff-Appellant,

v. The DEPARTMENT 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).

No. 1-16-2367

Appellate Court of Illinois, First District, FIFTH DIVISION.

Opinion filed March 31, 2017

Wayde Twyman, of Chicago, appellant pro se.

Lisa Madigan, Attorney General, of Chicago (David L. Franklin, Solicitor General, and Bridget DiBattista, Assistant Attorney General, of counsel), for appellees.

PRESIDING JUSTICE GORDON delivered the judgment of the court, with 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 Illinois 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 Illinois 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:

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 Illinois Department of Employment Security, Director of Illinois 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 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."

¶ 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 of Civil Procedure (Code) which provides for dismissal because "the action was not commenced within the time limited by law." 735 ILCS 5/2619(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, 397 Ill.Dec. 851, 43 N.E.3d 178. "For a section 2-619 dismissal, our standard of review is de novo ." Trzop , 2015 IL App (1st) 150419, ¶ 63, 397 Ill.Dec. 851, 43 N.E.3d 178. "De novo review means that we will perform the same analysis a trial court would perform." Trzop , 2015 IL App (1st) 150419, ¶ 63, 397 Ill.Dec. 851, 43 N.E.3d 178. "Under the de novo standard of review, this court owes no deference to the trial court." (Internal quotation marks omitted.) Trzop , 2015 IL App (1st) 150419, ¶ 63, 397 Ill.Dec. 851, 43 N.E.3d 178. "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 , ...