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12/03/87 Estella Galarza, v. the Department of Labor

December 3, 1987

ESTELLA GALARZA, PLAINTIFF-APPELLEE

v.

THE DEPARTMENT OF LABOR, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

520 N.E.2d 672, 167 Ill. App. 3d 163, 117 Ill. Dec. 321 1987.IL.1774

Appeal from the Circuit Court of McHenry County; the Hon. Henry L. Cowlin, Judge, presiding.

APPELLATE Judges:

JUSTICE WOODWARD delivered the opinion of the court. HOPF and DUNN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD

Defendant, the Illinois Department of Labor, appeals the judgment of the circuit court of McHenry County on administrative review, which reversed the decision of defendant's Board of Review (board) that plaintiff was ineligible for unemployment benefits. On appeal, defendant argues that plaintiff failed to file a timely appeal from the referee's decision and that the trial court erroneously determined that plaintiff conducted an adequate work search.

Plaintiff, Estella Galarza, is a migrant farm worker. In March 1982, she was employed at Twin Garden Farms near Harvard, Illinois. She had worked there since 1978. Every spring she had been laid off for a few weeks between crops. On March 29, 1982, she was again laid off, but she knew she would be recalled to work when the next crop was ready. Shortly thereafter, she applied for unemployment benefits with the Department of Labor. She was interviewed at the Department's Woodstock office on April 21, 1982, and was instructed to return again on May 3, 1982. She returned to the office on May 18, 1982, explaining that she did not appear on May 3 because she lacked transportation and an interpreter. Plaintiff speaks only Spanish. She reported that she had been available to work as of April 11, 1982. She also stated that between April 11 and May 8, she had contacted four potential employers, although she could not remember the name of one firm and could not remember with whom she spoke at the others.

On May 18, 1982, the claims adjudicator found plaintiff ineligible for benefits because she was two weeks late in reporting and because she was without dependable transportation to make an active job search. (See Ill. Rev. Stat. 1985, ch. 48, par. 420.) She received a notice of the decision that day. She held onto this notice for approximately two weeks because it was written in English and because she was working long hours harvesting asparagus. According to the affidavits of Phillip Riley, her former attorney, and Solomon Sanchez, a migrant liaison for the Department of Agriculture, she then gave the notice to Sanchez. Sanchez held it until June 16, 1982, when he gave it to Riley. Riley, believing that it was the last day to file a timely appeal from the adjudicator's decision, attempted to file a notice of appeal with the Office of Employment Security that same day. The receptionist told him that the appeal could not be filed without plaintiff's signature. Riley protested that it was the last day to file an appeal and that plaintiff's signature could not be procured that day. The receptionist left momentarily to speak with a claims adjudicator. Upon returning, she again informed Riley that the appeal could not be filed without plaintiff's signature, adding that there would be no problem with the deadline if the appeal were postmarked by June 18, 1982. Riley then obtained plaintiff's signature and filed the appeal on June 18, 31 days after the claims adjudicator's decision was rendered.

On June 28, 1982, referee Jeffrey Brochin conducted a hearing. Plaintiff, through an interpreter, testified that she had been looking for vegetable packing and other types of field work during the six weeks she knew she was going to be unemployed. She knew she would be recalled to work by Twin Garden Farms and sought work only for the interim period. She submitted a new list of potential employers whom she had contacted. Plaintiff also testified that she generally had transportation available to look for work. Her husband, her father-in-law, and a co-worker would drive her to potential employers. She did not appear on the May 3, 1982, reporting date primarily because she was confused by the claim forms.

On July 30, 1982, the hearing referee found plaintiff ineligible for benefits because of her failure to file a timely appeal. Plaintiff timely appealed the referee's decision to the board. On June 17, 1983, the board remanded the matter for rehearing, finding that the record did not contain sufficient evidence regarding the timeliness of the appeal and plaintiff's compliance with the eligibility and availability for work requirements of "An Act in relation to a system of unemployment insurance" (Unemployment Insurance Act or Act) (Ill. Rev. Stat. 1985, ch. 48, pars. 420, ). Pursuant to the board's order, referee Michael McLean held a hearing on July 25, 1983. Plaintiff, as well as Riley and Sanchez, testified. Plaintiff explained that she failed to report on May 3, 1982, because she lacked transportation or an interpreter and because she was confused by the claim forms. The referee issued his decision August 5, 1983, finding that plaintiff was ineligible for benefits because she failed to show that "the work search conducted was reasonably designed for a return to the permanent full-time labor force." The referee found:

"The Claimant stated she had been laid off for periods of 6-8 weeks when in preceding summers she worked for this Twin Garden Farms employer, and expected to return to work there. She further states she would have returned when she was recalled to work at Twin Garden Farms even if she had found other temporary full-time work. Further, the Claimant is without transportation of her own and reliable transportation necessary to get to and from prospective work sites at other outlying farms was unavailable to her."

The referee also found that plaintiff had filed a timely appeal from the May 18, 1982, adjudicator's decision. The board affirmed the referee's decision on March 28, 1984.

Plaintiff filed a complaint for review pursuant to the Administrative Review Law (Ill. Rev. Stat. 1985, ch. 110, par. 3-101 et seq.) in the circuit court of McHenry County on May 1, 1984. The court reversed the decision of the board, finding the plaintiff had, in fact, made 17 job contacts and that, because she was on a temporary lay-off, she was not required to seek work elsewhere. Defendant appeals.

On appeal, defendant argues that the circuit court was without jurisdiction to hear plaintiff's complaint because she failed to file a timely appeal from the claims adjudicator's denial of benefits and, even if the circuit court had jurisdiction, it erred in determining that plaintiff conducted an adequate work search. Plaintiff responds that defendant either waived the issue of the timeliness of plaintiff's appeal or is estopped from ...


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