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Buchanan v. Lenz

OPINION FILED JUNE 17, 1983.

DAVID BUCHANAN, PLAINTIFF-APPELLANT,

v.

ROBERT J. LENZ ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. James C. Murray, JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Plaintiff requested the Merit Board of the State Universities Civil Service System of Illinois (Merit Board) to review certain employment decisions of defendant University of Illinois (University). The Merit Board refused review for plaintiff's failure to file the request within the period provided by Rule 13 of the Civil Service Rules (Rules). Plaintiff filed the instant complaint for administrative review of the decision of the Merit Board. Plaintiff now appeals from the order of the circuit court affirming the decision.

The issues on appeal are: (1) whether the trial court erred in affirming the Merit Board's decision; and (2) whether the decision of the Merit Board is subject to judicial review as to the merits of plaintiff's charges.

Plaintiff is employed by the University of Illinois Hospital as a Medical Technician II. On March 16, 1979, he filed a grievance charging that the University failed to follow the prescribed procedure for appointment to fill an open position and instead, through supervisory personnel, appointed Jeanne Miller to act as a Medical Technician III. Plaintiff argues that the appointment constituted a promotion and thus violated the Rules and Illinois statute. (Ill. Rev. Stat. 1981, ch. 24 1/2, par. 38b9.) The grievance was considered by various individuals within the University internal grievance procedure. Finally, on May 30, 1979, the University Director of Nonacademic Personnel (University Director) denied plaintiff's original grievance based on its prior consideration and further information obtained at a hearing held May 10, 1979. Review of the University Director's decision was requested of the Director of the Merit Board (Director) who replied that he found no official personnel action had been taken regarding the allegedly improper promotion of Jeanne Miller. Plaintiff thereafter sent a request for review to the chairman of the Merit Board. The secretary of the Merit Board responded that the record showed no official action which constituted a violation as alleged. On August 10, 1979, plaintiff again appealed to the secretary of the Merit Board who again replied that there had been no violation and referred plaintiff's request for consideration of his grievance back to the University Director. On August 20, 1979, the University Director for the second time stated that he found no evidence of any violation. Following a subsequent hearing the University Director denied the grievance for the third time on November 27, 1979, again stating that a review disclosed no evidence of a violation.

On December 11, 1979, Michael Wallace, staff counsel for the Illinois State Employees Association, on plaintiff's behalf filed a request for review of the November 27 decision with the Director of the Merit Board, presumably under Rule 13.1. On December 14, 1979, the Director advised plaintiff that he found no statutory or rule violation. The record shows no request for review of this decision under Rule 13.2. The decisions of defendant University were restated by its president in a series of letters written on June 16, 1980, to Wallace and to several State legislators.

On November 25, 1980, plaintiff filed with the Director of the Merit Board a "formal appeal" wherein he described the alleged unfair employment practices of the University and his efforts to correct them and requested a review of the various decisions made by the University Director. On December 3, 1980, the Director of the Merit Board denied review on the ground that the 15-day period within which a request for review under Rule 13.1 could be filed had passed and that further review would therefore not be proper. Plaintiff appealed this decision to the Merit Board under Rule 13.2. The appeal was rejected by letter of the Merit Board dated December 16, 1980, which stated:

"Reference your letter of December 9, 1980 concerning a request for review under Civil Service Rule 13.2.

Civil Service Rule 13.2 states in part:

`An applicant, a candidate, an employee, or an employer, affected by a Review Decision of the Director under Rule 13.1, * * *'

Since your request for review via Civil Service Rule 13.1 was untimely filed on November 25, 1980 because of an action or omission of an action on or about June 24, 1979, no Director's Review Decision under Rule 13.1 was rendered.

Therefore, there can be nothing before the Merit Board in this matter."

Plaintiff thereupon filed the instant complaint for administrative review and briefs were filed. The circuit court found that although plaintiff raised substantial questions as to the procedure involved, the issue is the matter of timeliness of the filing before the administrative agency and that it was without jurisdiction to reverse the decision of the administrative agency. The court entered judgment to affirm the Merit Board decision.

OPINION

• 1 Plaintiff appeals from the order of the trial court entered December 4, 1981, which he characterizes as "dismissing plaintiff's cause of action for lack of jurisdiction to review the Administrative Agency's decision to dismiss plaintiff's cause for failure to timely file his grievance before the Administrative Agency." Plaintiff first contends that the circuit court erred in stating that it lacked ...


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