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Tiggens v. Department of Employment Security

Court of Appeals of Illinois, First District, Fourth Division

August 1, 2013

WILANDA G. TIGGENS, Plaintiff-Appellant,
v.
THE DEPARTMENT OF EMPLOYMENT SECURITY; DIRECTOR OF EMPLOYMENT SECURITY; and THE BOARD OF REVIEW, Defendants-Appellees.

Rule 23 Order filed June 27, 2013

Rule 23 Order withdrawn July 29, 2013

Held: [*] Plaintiff’s appeal from the denial of her claim for unemployment benefits was properly dismissed based on her failure to appear at the scheduled telephone hearing, especially in view of her additional failure to immediately return the referee’s call or provide an explanation for not doing so.

Adam J. Feuer, of Chicago, for appellant.

Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro, Solicitor General, and Nadine J. Wichern, Assistant Attorney General, of counsel), for appellees

Justices Fitzgerald Smith and Epstein concurred in the judgment and opinion.

OPINION

PUCINSKI, JUSTICE

¶ 1 Plaintiff, Wilanda Tiggens, filed a complaint for administrative review seeking to reverse a decision by the Board of Review of the Department of Employment Security (Board) affirming the Illinois Department of Employment Security (IDES) referee's decision to dismiss her appeal pursuant to section 801 of the Illinois Unemployment Insurance Act (Act) (820 ILCS 405/801 (West 2010)), due to her failure to appear at the scheduled telephone hearing. The circuit court affirmed the Board's decision and Tiggens now challenges the propriety of that order on appeal.

¶ 2 The record shows that plaintiff worked as a customer service hood technician at a Valvoline Instant Oil Change franchise, which is not a party to this appeal, from December 2009 through July 30, 2011. The record is not clear on the circumstances surrounding the termination of plaintiff's employment at Valvoline, and, in her brief, plaintiff merely states that she "lost her job." The record reflects that she then filed a claim for unemployment benefits for the period of July 31, 2011 to August 10, 2011. In support thereof, plaintiff submitted documentation reflecting, inter alia, her course schedule at Lincoln College of Technology, where she enrolled in October 2010, and her attendance at classes each weekday from 8:30 a.m. to 2:30 p.m.

¶ 3 On August 11, 2011, the IDES claims adjudicator denied plaintiff's claim, finding on the evidence presented that plaintiff's principal occupation was that of a student, and, accordingly, she was considered unavailable for work and ineligible for benefits.

¶ 4 Plaintiff appealed and a telephone hearing with an IDES referee was scheduled for 10:30 a.m. on September 10, 2011. Plaintiff received notice of the telephone hearing, which included the telephone number at which she would be called and information regarding the circumstances under which continuances would be granted, as well as how to request one. Plaintiff was also advised that her failure to appear at the hearing could result in a finding against her, and she was sent a brochure entitled, "Preparing For Your Appeal Hearing, " which included information on continuances and the "exceptional reasons" under which they are obtained.

¶ 5 The transcript of the telephone hearing on September 10, 2011, reflects that the referee called plaintiff, but that she did not answer. The referee left plaintiff a message asking her to call immediately at the provided telephone number "so that you can have your unemployment hearing on the issue of being a student." The referee then called the alternate telephone number provided by plaintiff. Her mother answered and informed the referee that plaintiff did not live with her and that she was not present at that time. On September 13, 2011, the referee dismissed plaintiff's appeal due to her failure to appear at the scheduled hearing, pursuant to section 801 of the Act. 820 ILCS 405/801 (West 2010).

¶ 6 Plaintiff appealed to the Board, which affirmed the referee's decision. The Board found that plaintiff was notified of the scheduled hearing, and not only failed to appear, but also failed to indicate why she had not done so. The Board found that plaintiff "lacked good cause for failing to appear at the scheduled hearing and that no basis exists for setting aside the Referee's decision."

ΒΆ 7 Thereafter, plaintiff filed a complaint for administrative review, and, when she failed to attend the scheduled hearing on March 14, 2012, the circuit court dismissed her complaint for want of prosecution. The court subsequently granted plaintiff's motion to vacate the dismissal and reinstate her complaint. ...


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