## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Tiggens v. Department

of Em ploym ent Security , 2013 IL App (1st) 121677

Appellate Court Caption WI LANDA G. TI GGENS, Plaintiff-Appellant, v. THE DEPARTMENT OF EMPL OY M E NT SECURI TY; DI RECTOR OF EMPL OYMENT SECURI TY; and THE BO ARD OF REVI EW, Defenda nts-Appellee s.

District & N o. First District, F ourth Division Docke t No. 1-12-1677

Rule 23 Order

filed Rule 23 Order withdrawn Opinion filed J une 27, 2013

J uly 29, 2013 August 1, 2013

Held (Note : This syl lab us

con st it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Plaintiff’s appea l from the denial of her claim for unemploy ment benef

its

was proper ly dismiss ed based o n h er failure to appea r at the schedule d telephone hearing
, espec ially in view of her additional failure to immediately return the ref ere e’s call or p ro v i d e an explanation for not doing so.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No. 11-L -51394; the Hon. Marg are t A. Br ennan, Judge , presiding

.

J udg ment Affir med.Counsel on

Appea l Adam J. Feuer , of Chicag o, for a ppellant.

L isa Madig an, At torney Gene ral, of Chicag o (Michae l A. Scodro, Solicitor Gene ral, and Nadine J

. Wichern, Assistant Attorney Gene ral, of counsel), f

or appe llees.

Panel J USTI CE PUCI NSKI delivere d the judgme nt of the court, with opinion.
J ustices Fitzge rald Smit h and Epstein co n cu rr ed in the judgme nt and opinion.

OP INION

¶ 1 Plaintiff, Wil anda Tig g ens, filed a complaint for adm in is trative revie w seeking to reve rse

a decision by the Boa

rd of Review of the Depa rtment of Emp l o y

m ent Security (B oard) aff irming the I llinois Depa

rtment of Empl o y

m en t Security (I DES) ref ere e’s decision to dismiss her appea l pursuant to section 801 of the I llinois Unemploy ment Insuranc e Act (Ac t) (820 I L CS 405 / 8 0 1 (W est 2010)), due to her failure to appea r at the schedule d telephone hear ing. The circ uit court aff irmed the Boa

rd ’s d ec i s i on and Tig g ens now challeng es the propriety of that orde r on appe al. ¶ 2 T h e re co rd s h o ws t h at plaintiff worke d as a customer service hood technicia n at a Valvoline Instant Oil Chang e fra nchise, which is not a party to this appea l, from Dec ember 2009 throug h J uly 30, 2011. The rec ord is not clea r o n t h e circ umstances surrounding the termination of plaintiff’s employ ment at Valvoline, and, in her brief, plaintiff mere ly states that she “lost her job.” The rec ord ref lects that she th en fi led a claim for unemploy ment benef its for the period of J u l y 3 1
, 2 0 1 1 to August 10, 2011. In support there of, plaintiff submitt ed documentation re fl ec ting, inter alia
, her course schedule at L incoln College of Tec hnology
, wher e she enrolled in October 2010, and her attendanc e at classes eac h wee kday from 8:30 a.m. to 2:30 p.m. ¶ 3 On August 11, 2011, the I DES claims adjudicator denied plaintiff’s claim, finding on the evidenc e prese nted that plaintiff’s principal occupatio n wa s that of a student, and,

acc ording ly , she wa s considere d unavailable for wor k and inelig ible for be nefits. ¶ 4 Plaintiff appea led and a telephone hear ing with an I DES ref ere e was schedule d for 10:30

a.m. on September 10, 201 1

. Plaintiff rec eived notice of the telephone hear ing, which included the telephone number at which she would be called and information reg arding the circ umstances unde r which c ontinuances would be gra nted, as well as how to request one. Plaintiff was also advi s ed t h at her failure to appea r at the hearing could result in a finding
ag ainst h er , an d she was sent a brochur e entitled, “Prepa ring For Your Appea l Hea ring ,” which included information on continuance s and the “exceptional rea sons” under which they

-2-are obtained.

¶ 5 The transcr ipt of the telephone hear ing on September 10, 2011, ref lects that the re fer ee called plaintiff, but that she di d not answer . The refe ree left pl aintiff a messag e asking her
to call immediately at the provided telephone number “so that you can have y our unemploy ment hear ing on the issue of being a student.” The ref ere e then called the alternate telephone number provided by plaintiff. Her mother answe red and informed the ref ere e that plaintiff did not live with her and that she was no t p re s en t at that time. On September 13, 2011, the ref

ere e dismiss ed plaintiff’s appea l due t o h er failure to appea r at the schedule d hear ing, pur suant to section 801 of the A ct. 820 I L CS 405/ 801 (West 2010). ¶ 6 Plaintiff appea led to the Boa rd, which aff

irmed the ref

ere e’s decision. The Boa

rd found that plaintiff was notified of t h e s ch ed u l ed hear ing, and not only failed to appea r, but also failed to indicate why she had not done so. The Boa rd found that plaintiff “lac ked g ood cause for failing to appea

r at the schedule d hear ing and that no basis exis ts for settin g as i d e t he Refer ee’ s decision.” ¶ 7 There afte r, plaintiff filed a complaint for administrative revie w, and, when she failed to attend the sc heduled hear ing on Marc h 14, 2012, the circ uit court dismissed her complaint for want of prosec ution. The court s ub s eq u entl y g rante d plaintiff’s motion to vacate the dismiss al and reinstate her complaint. Howeve r, afte r a hearing on May 30, 2012, the circ uit
court a ffirme d the B oard’ s decision. ¶ 8 Plaintiff now appea ls, contending that the Boa rd’s decision was clea

rly err oneous in that the undisputed fac ts de monstrate that her principal occupation wa s not that of a student. In doing so, plaintiff argues the merits of her case and reque sts that her cause be rema nded for further proce eding s. ¶ 9 We observe
, howeve r, that our revie w of plaintiff’s challeng e is limit ed to the proprie ty of the Boa rd’s decision (

Phistry v. Departme nt of

Employme nt Security
, 405 I ll. App. 3d 604, 607 (2010))
, and, acc ording ly
, that our inquiry here cente rs on the propriety of the Boa

rd’s d i smissal of plaintiff’s appea l based on her failure to appea r at the telephone hea ri n g pursuant to section 2720.255 of title 5 6 o f the I llinois Administrative Code (56 I ll. Adm. Code 2720.255 (1997)) , which g overns I DES administrative hea ring s. ¶ 10 Under subsection (a) of that provision, a n appellant’ s failure to appea r at the schedule d hear ing befor e the ref

ere e will result in dismiss al of the appea l. 5 6 I l l

. Ad m

. Code 2720.255(a) (1997). In the case of a telephone hearing
, the failure t o answe r the telephone
at the number provided to the ref ere e will cause the ref

ere e to issue a decision based on the evidenc e introduced by the appellant at the hear ing and the evidenc e in the reco rd

. 5 6 I l l. Adm. Code 2720.255(b), (c) (1997). In this case , defe ndant failed to make herse lf available for the telephone hear ing and there is no indication that any evidenc e was taken wh en t he ref ere e dismiss ed the appea l. We, there fore
, revie w that dismiss al for an abuse of discretion. Christmas v. Dr. Donald W

. Hugar, Ltd.
, 409 I ll. App. 3d 91, 100 (2011). That occur s only where a ruling is so arbitra ry or fanc iful that no rea sonable person would agree wi t h i t

. Parikh v. Division of

Professional Regulation ofthe Depart m e n t o f Financial & Professional Regulation , 2012 I LApp (1st) 121226, ¶ 24. ¶ 11 Where a party fails to appea r and an adver se decision is rende red, that party may reque st

-3-a rehe aring of the appea l from the ref ere e, provided that the party has not filed an appea l to the B oard of

Review. 56 I ll. Adm. Code 2720.255(e) (1997). Such reque st must s tate fa cts showing that her failure to appea r at the schedule d hear ing was due to untimely notice of the hear ing or for one of the listed “ exceptional rea son[s ] as set forth in Sec tion 2720.240.” 56 I ll. Adm. Code 2720.255(e) (1) (1997). In addition, the party must show that her reque st for

a continuance of the hear ing was either improperly denied or that she failed to make such a reque st due to rea sons outside of her control and circ umstances which could not be fore seen or avoide d. 56 I ll. Adm. Code 2720.255(e)( 1) (1997)

. ¶ 12 Her e, rather than filing a reque st for a rehe aring
, p l ai ntiff fil ed an appea l to the B oard. Under those circ umstances, the regulations provide that the appea l must “set forth the parts of the d ec i s i o n wi t h which the appea ling party disag ree s and the specific rea sons for that disag ree ment.” 56 I ll. Adm. Code 2720.300(b)(3) (2011). ¶ 13 In her ap p ea l t o t h e Bo ard, plaintiff focuse d solely on arguments relating to why she should not be classified a s a student for purposes of the Act. The ref ere e, howe ver, did not addre ss the underlying issue relating to whether plaintiff’s principal occupa tion was that of

a student but, rathe r, dismiss ed p l ai n t i ff’ s appea l based on her failure to appea r at the schedule d hear ing. Plaintiff never acknow ledg ed or addre ssed h er failure to appea r at the hear ing, which was the cited re ason for the dismissal of her a

ppeal by the re fer ee. ¶ 14 The rec ord thus shows that plaintiff not only failed to ap p ea r at t h e hear ing, but also failed to reque st a continuance or a rehe aring (56 I ll. Adm. Code 2720.255(e) (1) (1997))
, and failed to abide by the regulations g overning the filing of an appea l to the Boa rd (56 I ll. Adm. Code 2720.300(b)( 3) (2011))

. The rec ord also ref l ec t s t h at plaintiff has never provided a

rea son for failing to appea r, much less one that would constitute an “exceptional” one under the Code. Under these circ ums t an ce s , we fi nd no abuse of discretion in the dismiss al of plaintiff’s appea l (

Parikh
, 2012 I L App (1st) 121226, ¶ 24), which was based on plaintiff’s undisputed and unexplained failure to attend her schedule d hear ing. ¶ 15 We theref

ore a ffirm the or der of

the circ uit court of Cook County

.

¶ 16 Affir

med.

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