                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




          Tiggens v. Department of Employment Security, 2013 IL App (1st) 121677




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



District & No.             First District, Fourth Division
                           Docket No. 1-12-1677


Rule 23 Order filed        June 27, 2013
Rule 23 Order
withdrawn                  July 29, 2013
Opinion filed              August 1, 2013


Held                       Plaintiff’s appeal from the denial of her claim for unemployment benefits
(Note: This syllabus       was properly dismissed based on her failure to appear at the scheduled
constitutes no part of     telephone hearing, especially in view of her additional failure to
the opinion of the court   immediately return the referee’s call or provide an explanation for not
but has been prepared      doing so.
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 11-L-51394; the
Review                     Hon. Margaret A. Brennan, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Adam J. Feuer, of Chicago, for appellant.
Appeal
                           Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
                           Solicitor General, and Nadine J. Wichern, Assistant Attorney General, of
                           counsel), for appellees.


Panel                      JUSTICE PUCINSKI delivered the judgment of the court, with opinion.
                           Justices Fitzgerald Smith and Epstein concurred in the judgment and
                           opinion.




                                             OPINION

¶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

                                                 -2-
       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.”
¶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. However, after a hearing on May 30, 2012, the circuit
       court affirmed the Board’s decision.
¶8          Plaintiff now appeals, contending that the Board’s decision was clearly erroneous in that
       the undisputed facts demonstrate that her principal occupation was not that of a student. In
       doing so, plaintiff argues the merits of her case and requests that her cause be remanded for
       further proceedings.
¶9          We observe, however, that our review of plaintiff’s challenge is limited to the propriety
       of the Board’s decision (Phistry v. Department of Employment Security, 405 Ill. App. 3d 604,
       607 (2010)), and, accordingly, that our inquiry here centers on the propriety of the Board’s
       dismissal of plaintiff’s appeal based on her failure to appear at the telephone hearing
       pursuant to section 2720.255 of title 56 of the Illinois Administrative Code (56 Ill. Adm.
       Code 2720.255 (1997)), which governs IDES administrative hearings.
¶ 10        Under subsection (a) of that provision, an appellant’s failure to appear at the scheduled
       hearing before the referee will result in dismissal of the appeal. 56 Ill. Adm. Code
       2720.255(a) (1997). In the case of a telephone hearing, the failure to answer the telephone
       at the number provided to the referee will cause the referee to issue a decision based on the
       evidence introduced by the appellant at the hearing and the evidence in the record. 56 Ill.
       Adm. Code 2720.255(b), (c) (1997). In this case, defendant failed to make herself available
       for the telephone hearing and there is no indication that any evidence was taken when the
       referee dismissed the appeal. We, therefore, review that dismissal for an abuse of discretion.
       Christmas v. Dr. Donald W. Hugar, Ltd., 409 Ill. App. 3d 91, 100 (2011). That occurs only
       where a ruling is so arbitrary or fanciful that no reasonable person would agree with it.
       Parikh v. Division of Professional Regulation of the Department of Financial & Professional
       Regulation, 2012 IL App (1st) 121226, ¶ 24.
¶ 11        Where a party fails to appear and an adverse decision is rendered, that party may request

                                                -3-
       a rehearing of the appeal from the referee, provided that the party has not filed an appeal to
       the Board of Review. 56 Ill. Adm. Code 2720.255(e) (1997). Such request must state facts
       showing that her failure to appear at the scheduled hearing was due to untimely notice of the
       hearing or for one of the listed “exceptional reason[s] as set forth in Section 2720.240.” 56
       Ill. Adm. Code 2720.255(e)(1) (1997). In addition, the party must show that her request for
       a continuance of the hearing was either improperly denied or that she failed to make such a
       request due to reasons outside of her control and circumstances which could not be foreseen
       or avoided. 56 Ill. Adm. Code 2720.255(e)(1) (1997).
¶ 12        Here, rather than filing a request for a rehearing, plaintiff filed an appeal to the Board.
       Under those circumstances, the regulations provide that the appeal must “set forth the parts
       of the decision with which the appealing party disagrees and the specific reasons for that
       disagreement.” 56 Ill. Adm. Code 2720.300(b)(3) (2011).
¶ 13        In her appeal to the Board, plaintiff focused solely on arguments relating to why she
       should not be classified as a student for purposes of the Act. The referee, however, did not
       address the underlying issue relating to whether plaintiff’s principal occupation was that of
       a student but, rather, dismissed plaintiff’s appeal based on her failure to appear at the
       scheduled hearing. Plaintiff never acknowledged or addressed her failure to appear at the
       hearing, which was the cited reason for the dismissal of her appeal by the referee.
¶ 14        The record thus shows that plaintiff not only failed to appear at the hearing, but also
       failed to request a continuance or a rehearing (56 Ill. Adm. Code 2720.255(e)(1) (1997)), and
       failed to abide by the regulations governing the filing of an appeal to the Board (56 Ill. Adm.
       Code 2720.300(b)(3) (2011)). The record also reflects that plaintiff has never provided a
       reason for failing to appear, much less one that would constitute an “exceptional” one under
       the Code. Under these circumstances, we find no abuse of discretion in the dismissal of
       plaintiff’s appeal (Parikh, 2012 IL App (1st) 121226, ¶ 24), which was based on plaintiff’s
       undisputed and unexplained failure to attend her scheduled hearing.
¶ 15        We therefore affirm the order of the circuit court of Cook County.

¶ 16      Affirmed.




                                                 -4-
