Lobrow v. Illinois Department of Labor

2024 IL App (1st) 230163-U

• Court: Appellate Court of Illinois
• Decided: March 11, 2024
• Docket: 1-23-0163
• Status: Unpublished

Opinion

2024 IL App (1st) 230163-U No. 1-23-0163 Order filed March 11, 2024 First Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ BOGUMILA LOBROW, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. ) v. ) ) ILLINOIS DEPARTMENT OF LABOR, BELMONT ) No. 21 CH 6000 GROCERIES, LLC D/B/A RICH’S FRESH MARKET, ) AND RICHARD MACHNICKI ) ) Defendants, ) Honorable ) Celia G. Gamrath, (Illinois Department of Labor, Defendant-Appellee). ) Judge, presiding.

JUSTICE COGHLAN delivered the judgment of the court. Justices Lavin and Pucinski concurred in the judgment.

ORDER

¶1 Held: The circuit court’s orders affirming a decision of the Illinois Department of Labor and denying plaintiff’s pro se motion to vacate are vacated for lack of jurisdiction, and plaintiff’s pro se untimely complaint for administrative review is dismissed.

¶2 Pro se plaintiff Bogumila Lobrow appeals from an order of the circuit court affirming the

decision of defendant, the Illinois Department of Labor (Department), to dismiss her claim for No. 1-23-0163

unpaid wages filed pursuant to the Illinois Wage Payment and Collection Act (Act) (820 ILCS

115/1 et seq. (West 2016)). On appeal, plaintiff contends that the Department’s decision was

against the manifest weight of the evidence. 1 She further contends that the circuit court erred by

determining that an overtime claim that was dismissed by the Department in 2018 could not be

raised on administrative review. Because the circuit court lacked jurisdiction, we vacate its orders

affirming the Department and denying plaintiff’s motion to vacate, and dismiss plaintiff’s untimely

pro se complaint for administrative review.

¶3 We set forth only the facts necessary to understand the issues on appeal.

¶4 On April 24, 2017, plaintiff filed a complaint with the Department alleging that Belmont

Groceries, LLC d/b/a Rich’s Fresh Market (Belmont Groceries), owned by Richard Machnicki,

owed her $64,500 in unpaid wages for hours worked between December 1, 2015, and February 5,

2017. 2 The complaint sought $60,000 in regular wages and $4500 in overtime pay at an hourly

rate of $25. In May 2018, the Department dismissed the overtime claim.

¶5 A hearing was held before an administrative law judge (ALJ) on January 7, 2020, and

August 20, 2020. On January 6, 2021, the ALJ filed a decision dismissing plaintiff’s claim.

Plaintiff filed a timely pro se motion to reconsider alleging, relevant here, that the Polish interpreter

at the hearing was inaccurate. On March 16, 2021, plaintiff’s motion was granted, the dismissal

was vacated, and the cause was set for a hearing before a new ALJ with a different interpreter.

¶6 On October 12, 2021, a hearing was held with a Polish interpreter present. Plaintiff

appeared pro se and Belmont Groceries and Machnicki appeared through counsel.

1 On January 26, 2024, we granted the Department’s motion to strike plaintiff’s pro se reply brief because it was prepared by plaintiff’s son, a nonlawyer who is not a party to this appeal. 2 Machnicki’s last name is also spelled Macknicki in the record.

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¶7 Plaintiff testified that Machnicki hired her as a floral designer on December 1, 2015, at an

hourly wage of $25. Her hours were reported beginning in January 2016, and her last day was

February 5, 2017. She stopped working at Belmont Groceries because of nonpayment of wages.

¶8 After two weeks of nonpayment, she spoke to her manager, Maria Sliwinski. 3 Sliwinski

was a friend and had offered plaintiff the job. Sliwinski stated that the business was “developing”

and plaintiff had to wait for payment, so plaintiff waited for a year. When she complained about

nonpayment to her husband, Andrzej Lobrow, he told her about checks that were sent to him.4

¶9 Plaintiff claimed that, based upon records she received from Belmont Groceries, she

worked 1945 hours and “75 minutes.” She further calculated 89 hours and 79 minutes of overtime.

The ALJ stated that the overtime claim was not before him at this hearing. The ALJ then stated

that, based upon plaintiff’s testimony that she worked 1945.75 hours at $25 per hour, her alleged

unpaid wages totaled $48,643.75.

¶ 10 During cross-examination, plaintiff acknowledged that her husband showed her checks

from Belmont Groceries, but denied that those checks were for her. She was interviewed for the

job by Machnicki, with Sliwinski present. She was never paid, and did not ask that her wages be

paid to her husband’s company, Slavonic Craft, LLC (Slavonic Craft). She had nothing to do with

her husband’s company. When defendants’ counsel asked if plaintiff was aware that Belmont

Groceries paid Slavonic Craft $25,294.75, plaintiff replied that was a question for the manager of

3 Sliwinski’s last name is also spelled Slevinski in the record. We adopt the spelling that Sliwinski used when introducing herself at her deposition. 4 Andrzej Lobrow’s first name is also spelled Andre and Andrej in the record. For clarity, we refer to him by his first name as he and plaintiff share the same last name.

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Slavonic Craft. She had “no idea” why Belmont Groceries would pay Slavonic Craft and denied

picking up paychecks from Vicky Poselkiwicz.

¶ 11 Plaintiff explained that she calculated her hours worked based upon documents sent to her

by counsel for Belmont Groceries and Machnicki regarding the times that she clocked in and out

at Belmont Groceries. She agreed that the records were accurate. She also agreed that the records

of hours worked and hours paid at $13 an hour matched the checks that were issued to Slavonic

Craft, and that those checks bore her husband’s signature and were deposited into Slavonic Craft’s

bank account. 5

¶ 12 Although plaintiff asserted that she was to be paid $25 an hour, she admitted that a “claim

interview form” generated during Department proceedings stated her rate was $18 per hour. 6 Her

son made a mistake entering the information. She also acknowledged that the form stated that she

was paid by check. She did not tell Belmont Groceries to pay Slavonic Craft. Plaintiff’s mailing

address was the same as the mailing address for Slavonic Craft and she declined to state where she

currently lived. She did not know where her husband lived, as they no longer lived together.

Currently, plaintiff worked at ABM Floral Design, which was registered to her husband.

¶ 13 Poselkiwicz, a Belmont Groceries employee, testified that she issued paychecks every two

weeks. Poselkiwicz recognized plaintiff, to whom she personally handed paychecks. Machnicki

told her to make plaintiff’s paychecks out to Slavonic Craft. Poselkiwicz was never instructed to

pay employees in cash. Plaintiff was the only person who received a paycheck written out to

5 The record contains scans of checks from the account of Belmont Grocery made out to Slavonic Craft LLC, dated between January 2016 and February 2017. They are endorsed “Deposit for Acc Slavonic Craft LLC” and “Deposit for Acc Slavonic Craft” with a signature. 6 The “Claimant Interview Form” dated May 18, 2017, is included in the record on appeal. The document states that plaintiff’s “Hourly/Rate per hour” is $18, and paid by “CHECK.”

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another entity. Plaintiff never complained that she was paid incorrectly, that her payrate was

incorrect, or that the paychecks were made out incorrectly.

¶ 14 Counsel for Belmont Groceries and Machnicki then moved to admit the evidentiary

deposition of Sliwinski which was taken pursuant to a Department order on March 27, 2020, which

was allowed. In the deposition, Sliwinski stated that she believed that plaintiff was paid $13 an

hour and denied stating that plaintiff would be paid $25 an hour. Plaintiff did not complain about

an incorrect hourly wage or nonpayment. Plaintiff asked that her paychecks be made out to

Slavonic Craft. Plaintiff did not want to be an employee and was issued a 1099 form for tax

purposes. When Sliwinski was shown a document purporting to bear her signature, she stated that

it was not her signature and that her name was spelled incorrectly.

¶ 15 Andrzej testified that he was the manager and president of Slavonic Craft. He also owned

ABM Floral Studio at the same location. Andrzej asserted that Slavonic Craft had no business with

Belmont Groceries and Belmont Groceries did not owe Slavonic Craft money. He did not know

why he received checks from Belmont Groceries in 2016. After speaking with plaintiff in January

2017, he believed the checks were “probably pay for the Slavonic Craft, because she’s worked for

[it],” but was not sure. When checks came in the mail made out to Slavonic Craft, he deposited

them.

¶ 16 Machnicki testified that in January 2016, he and Sliwinski interviewed plaintiff for a

position in the floral department and agreed on an hourly wage of $13. Plaintiff asked that her

paychecks be made out to Slavonic Craft because she could not work under her social security

number. All employees picked up their paychecks in person. Plaintiff never complained that her

paychecks were incorrect.

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¶ 17 Belmont Groceries manager Lucas Bujack testified that plaintiff made her own work

schedule, her paychecks were made out to Slavonic Craft, and she was paid every two weeks at

$13 an hour. Plaintiff never complained that her paychecks were incorrect.

¶ 18 On October 19, 2021, the ALJ dismissed plaintiff’s claim finding, relevant here, that

plaintiff worked for Belmont Groceries from January 2016 to January 28, 2017, that her hourly

wage was $13, that she requested her paychecks be issued to Slavonic Craft, and that she picked

up each paycheck. The ALJ noted that at the hearing plaintiff agreed that Belmont Groceries’ time

records were accurate. Further, plaintiff received paychecks from Belmont Groceries totaling

$25,294.75, which, according to the ALJ’s calculations resulted in an overpayment of $26.44.

Therefore, because plaintiff failed to establish that she was not paid, her claim was dismissed. The

decision’s “Date of Notice” was October 25, 2021. The attached Certificate of Service stated that

the decision was sent to plaintiff by certified mail and regular mail on October 25, 2021, prior to

4:30 p.m.

¶ 19 On December 1, 2021, plaintiff filed a pro se complaint for administrative review in the

circuit court. On December 19, 2022, the circuit court affirmed the Department’s final

administrative decision. On January 17, 2023, plaintiff filed a pro se motion to vacate the court’s

order, which the court denied on January 18, 2023.

¶ 20 On appeal, plaintiff contends that the Department’s dismissal of her claim was against the

manifest weight of the evidence when she “demonstrated” that she was owed compensation

pursuant to an employment agreement. She further contends that her claim for compensation

includes a claim for overtime.

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¶ 21 The Department responds that the circuit court lacked jurisdiction and its orders must be

vacated because plaintiff did not file a timely complaint for administrative review.

¶ 22 The circuit court’s authority to review the final decisions of an administrative agency is

conferred by the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2020). As the

Administrative Review Law departs from common law, strict compliance is required to invoke it.

Ultsch v. Illinois Municipal Retirement Fund, 226 Ill. 2d 169, 179 (2007). Accordingly, “[u]nless

review is sought of an administrative decision within the time and in the manner herein provided,

the parties to the proceeding before the administrative agency shall be barred from obtaining

judicial review of such administrative decision.” 735 ILCS 5/3-102 (West 2020). The

Department’s final administrative decisions regarding wage claims are subject to judicial review

pursuant to the Administrative Review Law. 820 ILCS 115/11(d) (2020).

¶ 23 Pursuant to the Administrative Review Law, a party must file a complaint in the circuit

court and cause summons to issue within 35 days from the date the final administrative decision

sought to be reviewed was served upon that party. 735 ILCS 5/3-103 (West 2020); see also Palos

Bank & Trust Co., 2015 IL App (1st) 143324, ¶ 11. The 35-day period commences on the date that

the decision was mailed. Nudell v. Forest Preserve District of Cook County, 207 Ill. 2d 409, 422,

424 (2003) (the “requirement that a complaint for administrative review be filed within the

specified time limit is jurisdictional”).

¶ 24 Lack of subject matter jurisdiction may not be waived or cured by consent (People v.

Bailey, 2014 IL 115459, ¶ 14), and can be challenged at any time, including, for the first time, on

appeal (CPM Productions, Inc. v. Mobb Deep, Inc., 318 Ill. App. 3d 369, 373 (2000)). Where the

circuit court lacks jurisdiction, this court cannot address a judgment on the merits. Bailey, 2014 IL

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115459, ¶ 29. Instead, we are limited to reviewing whether the circuit court had jurisdiction and

must vacate any judgments entered without jurisdiction. Id. (where the circuit court lacked

jurisdiction to consider a motion on the merits, the reviewing court should vacate the circuit court’s

judgment and order that the motion be dismissed). Whether the circuit court had subject matter

jurisdiction presents a question of law that we review de novo. Slepicka v. Illinois Department of

Public Health, 2014 IL 116927, ¶ 30.

¶ 25 Here, the Department’s decision’s “Date of Notice” was October 25, 2021, the day that it

was placed in the mail. See 56 Ill. Admin. Code § 300.1160(a) (eff. Mar. 31, 2023) (“[s]ervice

shall be presumed to be accomplished upon mailing or emailing”). Thus, plaintiff had 35 days, or

until Monday, November 29, 2021, to file a complaint for administrative review in the circuit

court. See 735 ILCS 5/3-103 (West 2020); see also Rodriguez v. Sheriff’s Merit Comm’n of Kane

County, 218 Ill. 2d 342, 351 (2006) (the “filing period” began on the date the administrative agency

“mailed its decision”).

¶ 26 However, plaintiff did not file a pro se complaint for administrative review in the circuit

court until December 1, 2021. The 35-day period for filing a complaint for administrative review,

as noted, is a jurisdictional requirement. Id. at 350-51. Therefore, because plaintiff did not file a

complaint for administrative review within 35 days of the date that the Department’s decision was

mailed, her complaint was untimely and the circuit court lacked jurisdiction to consider it. See

Nudell, 207 Ill. 2d at 422 (the “requirement that a complaint for administrative review be filed

within the specified time limit is jurisdictional”). Accordingly, the circuit court’s orders affirming

the Department’s decision and denying plaintiff’s motion to vacate must be vacated, and plaintiff’s

untimely pro se complaint for administrative review dismissed. See Bailey, 2014 IL 115459, ¶ 29.

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¶ 27 For the foregoing reasons, we vacate the orders of the circuit court affirming the

Department’s decision and denying plaintiff’s motion to vacate, and dismiss plaintiff’s untimely

complaint for administrative review.

¶ 28 Orders vacated; complaint for administrative review dismissed.

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