                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




            Eschbach v. McHenry Police Pension Board, 2012 IL App (2d) 111179




Appellate Court            MARY LEE ESCHBACH, Plaintiff-Appellant, v. THE McHENRY
Caption                    POLICE PENSION BOARD, Defendant-Appellee.



District & No.             Second District
                           Docket No. 2-11-1179


Rule 23 Order filed        August 17, 2012
Rule 23 Order
withdrawn                  September 20, 2012
Opinion filed              September 20, 2012


Held                       The denial of plaintiff’s application for a nonduty disability pension was
(Note: This syllabus       affirmed on the ground that plaintiff was terminated from her position
constitutes no part of     prior to the date she filed her application and was ineligible for such a
the opinion of the court   pension.
but has been prepared
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of McHenry County, No. 11-MR-166; the
Review                     Hon. Michael T. Caldwell, Judge, presiding.



Judgment                   Affirmed.
Counsel on                  Martin V. Kugia, of Law Office of Kugia & Forte, P.C., of West Dundee,
Appeal                      for appellant.



                            Richard J. Puchalski, of Law Offices of Richard J. Puchalski, of
                            Libertyville, and Laura J. Goodloe, of Law Offices of Richard J.
                            Puchalski, of Chicago, for appellee.


Panel                       JUSTICE BURKE delivered the judgment of the court, with opinion.
                            Justices Zenoff and Hudson concurred in the judgment and opinion.




                                              OPINION

¶1           On February 14, 2011, plaintiff, Mary Lee Eschbach, filed an application for a nonduty
        disability pension (40 ILCS 5/3-114.2 (West 2010)) because she allegedly suffers from a
        blood clot condition in her right leg. The McHenry Police Pension Board (Board) denied the
        application, finding that plaintiff’s employment had been terminated in June 2010, and,
        therefore, plaintiff was ineligible to apply for a disability pension, based on Di Falco v.
        Board of Trustees of the Firemen’s Pension Fund of the Wood Dale Fire Protection District
        No. One, 122 Ill. 2d 22, 30 (1988), and Freberg v. Board of Trustees of the Firemen’s
        Pension Fund, 128 Ill. App. 2d 369, 375 (1970), which held that a police officer (or
        firefighter) has no right to disability benefits unless he or she applies for those benefits while
        still employed. On October 18, 2011, the trial court affirmed the Board’s decision, and
        plaintiff appeals.
¶2           On appeal, plaintiff contends that (1) the Board erred in relying on Di Falco and Freberg,
        as the facts in her case are distinguishable; (2) the termination was made in bad faith; and (3)
        the termination was not legally valid, because she did not receive notice of it. The Board
        raises an additional argument that plaintiff’s nonduty disability claim is foreclosed by the
        doctrine of res judicata because plaintiff could have made the present claim when she was
        proceeding on an earlier claim for a line-of-duty disability pension. We affirm.

¶3                                                FACTS
¶4          Plaintiff joined the City of McHenry Police Department (police department) in February
        1996. On June 25, 2005, she sustained an injury to her left wrist while attempting to subdue
        an arrestee at a local hospital. Plaintiff filed a workers’ compensation claim for her injury in
        2006. Plaintiff also filed an application for a line-of-duty disability pension with the Board
        on January 29, 2007, due to the injury to her wrist. On March 31, 2008, the Board found that

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     plaintiff was not disabled and denied plaintiff’s disability pension request. The trial court
     affirmed the Board’s decision, and we affirmed the trial court’s judgment on March 31, 2010.
     Eschbach v. McHenry Police Pension Board, No. 2-08-1146 (2010) (unpublished order
     under Supreme Court Rule 23). Plaintiff and the City of McHenry (City) settled the workers’
     compensation case on January 31, 2011.
¶5       On February 14, 2011, plaintiff filed with the Board her application for a nonduty
     disability pension due to arterial blood clots in her right leg. Plaintiff alleged that the
     condition was present and worsening when we affirmed the denial of her line-of-duty
     disability pension. She maintained that her symptoms began in January 2007 and worsened
     in January 2010.
¶6       The police department alleged that plaintiff never communicated with it as to whether
     she intended to return to work following our March 31, 2010, decision and that plaintiff
     moved and did not notify it of her new address. The record contains a notice-of-separation
     form signed on January 24, 2011, by John Jones, the chief of police. The notice provides that
     plaintiff’s last day of employment with the police department was June 2, 2010, and that the
     reason for her termination was that plaintiff “[d]id not return to work after denial of a line-of-
     duty disability Pension request.” There is nothing in the record to show that this notice was
     mailed to or received by plaintiff.
¶7       At the hearing before the Board, Vicky Zinanni, the human resources manager for the
     City, testified that the notice of separation indicated that plaintiff was separated from the
     police department on June 2, 2010, and that plaintiff had not made any pension contributions
     after she filed a disability pension application in January 2007. Zinanni did not know
     plaintiff’s specific last date of employment, but she stated that she had a discussion with
     Jones about the final determination regarding plaintiff’s line-of-duty disability pension claim,
     which occurred in late March 2010. Zinanni and Jones wanted to give plaintiff plenty of time
     to return to work, and when she did not, “that was the date.” Zinanni testified that she was
     not sure when she had this discussion with Jones and that it was probably after June 2010,
     but she honestly did not remember. Zinanni did not play any role in deciding if and when a
     notice of separation should be completed and did not have an explanation as to why, if the
     last date of employment was in June 2010, the notice of separation was not completed until
     January 24, 2011.
¶8       Plaintiff testified that she has a history of arterial blood clots in her right leg and has had
     five of them surgically removed. She began treatment in January 2007. Plaintiff stated that,
     following the March 2010 decision, she did not report back to work because of her blood clot
     condition. She stated that she never received a copy of the notice of separation informing her
     that her employment had been terminated. She assumed that the police department knew her
     address as of June 2010, because she had received some correspondence from it in January
     2011 regarding the nonduty disability pension application. Plaintiff first found out that she
     had been terminated by the police department after she applied for the nonduty disability
     pension, when she received a letter from the police department’s attorney informing her why
     she was not eligible.
¶9       Plaintiff testified that she and the City entered into a workers’ compensation settlement


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       contract, which she signed on January 31, 2011, and that, during the negotiations for the
       settlement of that case, she was informed by a representative of the City that she could apply
       for a nonduty disability pension.
¶ 10       On cross-examination, plaintiff stated that her attorney informed her about filing for the
       nonduty disability pension; he had discussed it with the workers’ compensation attorney as
       part of the workers’ compensation negotiations. When asked if she received any
       communications from the Board or from its legal counsel as to whether she could file for a
       nonduty disability pension in February 2011, plaintiff replied that she received only the
       pension application, which she had asked for. Plaintiff stated that she did not make any
       pension contributions after she filed the application for the line-of-duty disability pension in
       2007. She stated that she did not report back to work after the Board’s denial of her line-of-
       duty pension application was affirmed by this court in March 2010. Plaintiff further stated
       that she did not communicate with the police department regarding whether she could take
       administrative leave and did not inform it that she had changed her address.
¶ 11       On redirect, plaintiff indicated that she was not aware of the notice of separation until
       January 24, 2011, two weeks before she applied for the nonduty disability pension and one
       week before she signed the settlement contract in the workers’ compensation case.
¶ 12       On May 17, 2011, the Board denied plaintiff’s application. In its decision, the Board
       made the following findings of fact: (1) plaintiff did not report back to duty after the Board’s
       decision denying her line-of-duty disability pension was affirmed by this court in March
       2010; (2) plaintiff had been terminated from her employment by the police department in
       June 2010; (3) plaintiff filed her application for a nonduty disability pension on February 14,
       2011, eight months after her separation of employment from the police department; and (4)
       no pension contributions have been received from plaintiff since 2007.
¶ 13       In denying the application, the Board concluded:
                “One of the prerequisites to receiving either a duty-related or nonduty disability
           pension is that the applicant must be a police officer as that term is defined in the Pension
           Code. [Citations.] Case law is clear that disability applicants must be employed as either
           police officers or firefighters both at the time the injury was sustained and at the time of
           application for the disability pension. See Di Falco v. Board of Trustees of Firemen’s
           Pension Fund of Wood Dale Fire Protection District No. One, 122 Ill. 2d 22 (1988), Stec
           v. Oak Park Police Pension Board, 204 Ill. App. 3d 556 (1st Dist. 1990); Freberg v.
           Board of Trustees of Highland Park, 128 Ill. App. 2d 369 (2nd Dist. 1970).
                In this case, [plaintiff] was separated from employment in the McHenry Police
           Department on June 2, 2010, over eight months prior to her filing for a disability pension.
           In addition, no pension contributions have been received from [plaintiff] since 2007.”
¶ 14       Plaintiff filed a complaint for administrative review on June 20, 2011. Plaintiff contended
       that she was eligible to apply for a disability pension as of the date of her application on
       February 14, 2011, notwithstanding that the notice of separation was completed three weeks
       earlier, on January 24, 2011. In particular, plaintiff argued that the Board erred in relying on
       Di Falco and Freberg because, unlike the employees in those cases, she would still be
       employed as a police officer if not for her disability; that the City’s decision to complete the

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       notice-of-separation form on January 24, 2011, was a calculated, bad-faith attempt to deny
       plaintiff her right to apply for pension benefits; and that the police department’s failure to
       notify her of her separation from employment violated her right to notice and a fair hearing
       before being discharged. On October 18, 2011, the trial court affirmed the Board’s decision.
       Plaintiff timely appeals.

¶ 15                                          ANALYSIS
¶ 16        In an administrative appeal, we review the decision of the administrative agency, not the
       determination of the trial court. Wade v. City of North Chicago Police Pension Board, 226
       Ill. 2d 485, 504 (2007); Marconi v. Chicago Heights Police Pension Board, 225 Ill. 2d 497,
       531 (2006) (per curiam). Section 3-148 of the Illinois Pension Code (40 ILCS 5/3-148 (West
       2010)) provides that judicial review of a decision by the Board is governed by the
       Administrative Review Law (735 ILCS 5/3-101 et seq. (West 2010)), pursuant to which our
       review extends to all questions of fact and law presented by the entire record. 735 ILCS 5/3-
       110 (West 2010); Marconi, 225 Ill. 2d at 532; International Union of Operating Engineers,
       Local 148 v. Illinois Department of Employment Security, 215 Ill. 2d 37, 61 (2005).
¶ 17        Rulings on questions of fact will be reversed only if they are against the manifest weight
       of the evidence. Marconi, 225 Ill. 2d at 532; Comprehensive Community Solutions, Inc. v.
       Rockford School District No. 205, 216 Ill. 2d 455, 471-72 (2005). “An administrative agency
       decision is against the manifest weight of the evidence only if the opposite conclusion is
       clearly evident.” Abrahamson v. Illinois Department of Professional Regulation, 153 Ill. 2d
       76, 88 (1992). In contrast, we review questions of law de novo (Branson v. Department of
       Revenue, 168 Ill. 2d 247, 254 (1995)), and a mixed question of law and fact is reviewed
       under the clearly erroneous standard (Marconi, 225 Ill. 2d at 532). Under any standard of
       review, a plaintiff in an administrative proceeding bears the burden of proof, and relief will
       be denied if he or she fails to sustain that burden. See Marconi, 225 Ill. 2d at 532-33 (citing
       Miller v. Hill, 337 Ill. App. 3d 210, 216 (2003)).
¶ 18        In reaching its decision, the Board first found, based on a preponderance of the evidence,
       that plaintiff’s last date of employment with the police department was June 2, 2010; that she
       did not return to work after our affirmance of the denial of her line-of-duty pension request;
       and that plaintiff filed her application for a nonduty disability pension on February 14, 2011,
       eight months after her separation of employment from the police department. Next, the Board
       relied on case law holding that a disability pension applicant must be employed as a police
       officer both when the injury was sustained and when the application was filed. The Board
       denied plaintiff’s application because plaintiff was not employed as a police officer when she
       submitted it.
¶ 19        This case presents a mixed question of fact and law, to which we apply the “clearly
       erroneous” standard of review. The question of fact is whether plaintiff was terminated from
       her employment with the police department prior to February 14, 2011. The question of law
       is whether she can maintain her pension application if she was so separated.
¶ 20        The evidence is undisputed that plaintiff’s employment with the police department ended
       before she filed her nonduty disability pension application. Plaintiff claimed that she was

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       physically unable to return to work. However, she also admitted that her inability to work
       was never communicated to the chain of command at the police department. According to
       police department records, plaintiff’s last day of employment was June 2, 2010, and the
       reason for her termination was that she “did not return to work after denial of a line-of-duty
       disability pension request.”
¶ 21        Plaintiff does not dispute the Board’s finding that she was no longer employed as a police
       officer at the time she filed the application for a nonduty disability pension. Nor does she
       dispute that, under controlling case law, a disability pension applicant must be a police
       officer both at the time of the disabling injury and at the time of the disability pension
       application. Rather, plaintiff’s first contention concerns the reasons for her termination and
       the Board’s reliance on Di Falco and Freberg. Plaintiff maintains that the pension applicants
       in those cases were not terminated for any reasons related to their disabilities, whereas, in her
       case, she would still be employed as a police officer if not for her disability.
¶ 22        Plaintiff’s argument misses the point. Plaintiff’s termination had nothing to do with her
       alleged disability. The police department terminated plaintiff for failing to report back to
       work after the denial of her line-of-duty disability pension was affirmed by this court. In fact,
       the police department had no way of knowing that plaintiff was claiming that she was
       disabled from the blood clot condition, since plaintiff had not provided an explanation for
       her absence. When an employee does not show up for work and does not contact his or her
       employer or give a reason for the absence, it is not unreasonable for the employer to assume
       that the employee has quit or abandoned employment. That was the reason for plaintiff’s
       termination; it was not her alleged disability. As pointed out by the Board, the circumstances
       surrounding plaintiff’s termination are not really at issue in this case. The important question
       before the Board was whether plaintiff was still a police officer on February 14, 2011, when
       she filed the nonduty disability pension application, and the Board concluded that she was
       not. Under the holdings in Di Falco and Freberg, the Board’s determination that plaintiff had
       no right to a nonduty disability pension because she applied for that pension when she was
       no longer employed as a police officer was not clearly erroneous.
¶ 23        Plaintiff next argues that the decision to complete the notice of separation on January 24,
       2011, was calculated in bad faith in order to deny her the right to apply for a disability
       pension. Plaintiff asserts that, while she was engaged in settlement negotiations regarding
       her workers’ compensation case, approximately 30 days before she signed the settlement
       agreement on January 31, 2011, she was told that she was eligible to apply for the nonduty
       disability pension. Plaintiff testified that she had called the police department and requested
       the application forms before January 24, 2011. She contends that the completion of the
       January 24, 2011, notice of separation was not a coincidence but was a bad-faith effort to
       deny her the nonduty disability pension after the police department learned that she would
       pursue it.
¶ 24        Plaintiff further contends that the termination was legally invalid because she never
       received notice of it. Plaintiff points to her testimony that she never received notice of her
       termination and that the Board did not submit any evidence that notice had been sent to her.
       She further points out that the police department had her current address, because it sent her
       the disability pension application before the notice of separation was completed on January

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       24, 2011. Because the Board failed to notify her of her termination, plaintiff asserts, she was
       never provided an opportunity to respond to or challenge the decision.
¶ 25        Again, plaintiff’s arguments miss the point. The Board did not terminate plaintiff; the
       City did. A municipality and a pension board are two separate entities. See Dowrick v.
       Village of Downers Grove, 362 Ill. App. 3d 512, 518-21 (2005); Rhoads v. Board of Trustees
       of the City of Calumet City Policemen’s Pension Fund, 293 Ill. App. 3d 1070, 1075 (1997)
       (a municipality’s police pension fund is not in privity with the municipality itself). Relying
       on Dempsey v. City of Harrisburg, 3 Ill. App. 3d 696 (1971), plaintiff contended during oral
       argument that the Board acts as an agent of the City and that the decision of one binds the
       other. In Dempsey, the plaintiff, the widow of a municipality’s chief of police, applied for
       and was awarded workers’ compensation benefits by the Industrial Commission, based on
       its finding that her husband’s death resulted from injuries arising out of and in the course of
       his employment. She also applied for a pension benefit on the basis that her husband died in
       the performance of his duty. The police pension fund denied the application. Although the
       municipality was a party to the proceedings before the Industrial Commission, the board of
       trustees of the pension fund was not, and it claimed that it could not be bound by the
       Industrial Commission’s decision. The Dempsey court disagreed, concluding that the
       municipality was the real party in interest in both proceedings, “[e]ven though the Board of
       Trustees of the Policemen’s Pension Fund was not a party to the proceedings before the
       Illinois Industrial Commission, by the most logical interpretation of the statute creating the
       Board it is an agency of the city and is bound by a judgment rendered against the city.”
       Dempsey, 3 Ill. App. 3d at 698. Unlike Dempsey, the present case does not involve an earlier
       judgment that could be binding on the Board. Additionally, in more recent cases, a view
       opposite to Dempsey’s was taken; in Rhoads, we rejected the notion that the city and the
       pension board were the same merely because they were both public entities. We also
       observed that “the lack of privity between the parties is supported by the distinct identity,
       constituency, and interest of the Pension Board.” Rhoads, 293 Ill. App. 3d at 1075. Whether
       plaintiff was terminated by the police department in bad faith and whether she did not receive
       notice of her termination in violation of her due process rights are grievances plaintiff could
       have brought against the City through the collective bargaining agreement between the City
       and the police union, when she learned of her termination. There is no evidence that she has
       taken legal action to challenge that employment decision.1 In any event, the fact that the
       notice of separation was not completed until eight months after the date of her termination,
       or that she did not receive notice of her termination, does not defeat the Board’s finding that
       plaintiff was no longer employed as a police officer when she submitted her nonduty


               1
                Although not part of the record, the Board notes in its appellate brief that the collective
       bargaining agreement provides that the chief of police has the authority to impose discipline,
       including termination of a covered member for just cause; that neither the police chief nor the City
       or their agents may file charges asking the Board to impose or review discipline on any
       nonprobationary bargaining-unit employee; and that the decision of the police chief with respect to
       any suspension or dismissal action shall be deemed final, subject only to the review of said decision
       through the grievance and arbitration procedure.

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       disability pension application. Moreover, whatever the reason for plaintiff’s termination,
       even if unjust, she can be reinstated only by rightful authority, and, until she is reinstated, it
       is not, we believe, in the power of the Board to award her a disability pension. In sum, once
       the decision was made by the police department to terminate plaintiff’s employment, the
       Board had no alternative but to deny the pension application, because plaintiff was no longer
       a police officer when she applied.
¶ 26       Finally, the Board argues that, because plaintiff could have raised her blood clot
       condition as an additional cause of disability at the line-of-duty pension hearing in 2008, but
       did not do so, under the doctrine of res judicata she cannot now claim that she is disabled
       by this condition. Because we affirm the decision of the Board on the basis that plaintiff was
       not a police officer when she filed the nonduty disability pension application, we need not
       address this issue.

¶ 27                                  CONCLUSION
¶ 28     Accordingly, for the preceding reasons, we affirm the judgment of the circuit court of
       McHenry County.

¶ 29       Affirmed.




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