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11/24/87 Loraine Rose, v. Edward Rosewell

November 24, 1987

LORAINE ROSE, PLAINTIFF-APPELLANT

v.

EDWARD ROSEWELL, AS COUNTY TREASURER, ET AL., DEFENDANTS-APPELLEES

THE TERM WITHDRAW IS DEFINED AS "DISCHARGE OR RESIGNATION OF AN EMPLOYEE." ILL. RE

v.

STAT. 1985, CH. 108 1/2, PAR. 9-116.



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

516 N.E.2d 885, 163 Ill. App. 3d 646, 114 Ill. Dec. 730 1987.IL.1739

Appeal from the Circuit Court of Cook County; the Hon. Thomas O'Brien, Judge, presiding.

APPELLATE Judges:

JUSTICE STAMOS delivered the opinion of the court. SCARIANO, P.J., and HARTMAN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STAMOS

On August 1, 1986, the plaintiff-appellant, Loraine Rose (Rose), filed a complaint for declaratory judgment against defendant-appellee, Cook County Treasurer Edward Rosewell (Rosewell). Rose alleged that Rosewell had misapplied a county regulation and that as a result she had suffered a significant decrease in salary. Rosewell filed a motion to dismiss. Rose then filed an amended complaint adding the president of the Cook County Board of Commissioners, George Dunne (Dunne), as defendant. On March 3, 1987, the trial court granted Rosewell's motion to dismiss pursuant to section 2-619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-619). Rose filed a notice of appeal on March 20, 1987.

Rose began working for the Cook County Treasurer's office on April 16, 1976. In February of 1984, Rose encountered financial difficulty and requested that she be allowed to withdraw her pension. As a condition to withdrawing her pension, Rose was allegedly required to take a leave of absence for 30 days. Rosewell allegedly represented to Rose that Rose would receive her same job back at the same salary rate, grade and step when she returned to work. The record indicates, however, that Rose did not take a leave of absence but rather resigned from the Cook County Treasurer's office on March 1, 1984. When Rose returned to work on April 2, 1984, she was classified as a new employee and was paid at the grade 9, step 1, level, which is the minimum salary for an employee in the grade 9 category. Before Rose resigned, she was paid at the grade 9, step 6, level.

Rose was properly classified as a new employee when she returned to work on April 2, 1984. The Cook County Board of Commissioners (the Board) determines the salaries of Cook County employees. (Ill. Rev. Stat. 1985, ch. 34, par. 1101.) The Board has the authority to create a position-classification agency and give to that agency the power to establish and maintain a position-classification and compensation plan (plan) for all Cook County employees, including those employees working for the Cook County Treasurer. (Ill. Rev. Stat. 1985, ch. 34, par. 1102.) The plan states that a new county employee shall be paid "the minimum salary provided in the salary grade in which the job has been placed." The plan further states that an employee "who is separated from the county payroll for reasons other than disability or leave of absence shall be eligible to receive the salary received at the time of separation if the employee returns within 30 calendar days from the date of separation." (Emphasis added.)

The question arises: At what salary step should Rose have been paid when she returned to work for the Cook County Treasurer? Rose argues that she should have received compensation at the grade 9, step 6, level when she returned to work. Rose claims that she took a "leave of absence" and that she did not have to return within 30 calendar days in order to receive compensation at the same level as when she left her employment. Furthermore, Rose argues that if the 30-calendar-day requirement did apply to her, she did comply with it. Rose contends that she took her leave of absence on March 1, 1984, and that she would have had to return to work on March 31, 1984, to fulfill the 30-calendar-day requirement. Because March 31, 1984, was a Saturday, Rose states that she was unable to return to work on that day, but did return to work on the first available day, which was Monday, April 2, 1984. Thus, Rose concludes that she did, in fact, fulfill the 30-calendar-day requirement.

On the other hand, the defendants claim that Rose should have and did receive compensation at the grade 9, step 1, level when she returned to work. The defendants argue that the 30-calendar-day requirement applied to Rose and that she failed to fulfill it. The defendants concede that if Rose had taken a leave of absence, the 30-calendar-day requirement would not have been applicable. The defendants note, however, that Rose did not take a leave of absence but rather resigned. Thus, the defendants conclude that the 30-calendar-day requirement did apply to Rose. Furthermore, the defendants strongly disagree with Rose's contention that she fulfilled the 30-calendar-day requirement when she returned to work on April 2, 1984. The defendants argue that because Rose returned after and not within the 30 days, she did not comply with the 30-calendar-day requirement.

The issue thus becomes whether Rose took a leave of absence or whether she resigned from the Cook County Treasurer's office. If Rose took a leave of absence, the 30-calendar-day requirement would be irrelevant. If, however, Rose resigned, the court would have to decide whether Rose fulfilled the 30-calendar-day requirement. Rose sought to leave her employment for the sole purpose of withdrawing her pension funds. Whether Rose took a leave of absence or whether she resigned hinges on what is required of an employee who seeks to collect his pension funds. The Pension Code provides that an employee must withdraw (be discharged or resign) before he is entitled to receive his pension funds. In pertinent part, the Pension Code provides:

"[An] employee . . . with less than 10 years of service who withdraws before age 60, shall be entitled to a refund of the total sums accumulated to his credit as of date of withdrawal . . .. . . . An employee withdrawing on or after January 1, 1984, may receive a refund only after he has been off the payroll for at least 30 days during which time he has received no salary." (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 108 1/2, par. 9-164.)

Rose resigned from the Cook County Treasurer's office on March 1, 1984. As stated earlier, Rose contends that she did not resign, but rather took a leave of absence from her employment. In his affidavit, Martin F. Lynch (Lynch), payroll director for the Cook County Treasurer's office, stated that he had reviewed Rose's personnel file and found that the file indicated that Rose had resigned on March 1, 1984, and had been reinstated on April 2, 1984. Furthermore, in ruling on Rosewell's section 2 -- 619 motion, the trial court found that Rose's pleadings and the act of accepting her pension monies constituted a judicial admission that Rose had resigned from the Cook County Treasurer's office. Thus, the evidence supports the Conclusion that Rose did in fact resign from her position at the Cook County Treasurer's office.

Rose is thus subject to the 30-calendar-day requirement. Rose did not meet this requirement. The plan specifically states that to receive his prior level of compensation, an employee must return to the payroll within 30 calendar days. Rose did not do this. Rose attempts to justify her return on Monday, April 2 by pointing out that the thirtieth day (the last possible day of her return) fell on a Saturday. If the plan were meant to measure the 30-day time period by working days, it would have explicitly said so. Instead, the plan set the requirement as 30 calendar days. It was necessary, therefore, for Rose to return to work before Saturday, March 31, in order to fulfill the "within 30" requirement. Rose has tried to have it both ways. She has endeavored to remain off of the payroll long enough to withdraw her pension funds and at the same time has sought to get back onto the payroll in sufficient time to receive her previous level of compensation. This tactic is exactly what the time limitation requirements were meant to prevent. While ...


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