The opinion
ILLINOIS OFFICIAL REPORTS
Appellate Court
Slocum v. Board of Trustees of the State Universities Retirement System,
2013 IL App (4th) 130182
Appellate Court PATRICIA SLOCUM and PATRICIA PUCCIO, Plaintiffs-Appellants,
Caption v. THE BOARD OF TRUSTEES OF THE STATE UNIVERSITIES
RETIREMENT SYSTEM; THE EXECUTIVE COMMITTEE OF THE
STATE UNIVERSITIES RETIREMENT SYSTEM; THE CLAIMS
PANEL OF THE STATE UNIVERSITIES RETIREMENT SYSTEM;
DANIEL GAUMER, Hearing Officer; WILLIAM E. MABE, Executive
Director; CARRIE HIGHTMAN, Trustee; MATTHEW BERNS, Trustee;
JOHN ENGSTROM, Trustee; DORINDA MILLER, Trustee; ANTONIO
VASQUEZ, Trustee; and MITCHELL VOGEL, Trustee, Defendants-
Appellees.
District & No. Fourth District
Docket No. 4-13-0182
Filed December 11, 2013
Held The final decision of the executive committee of the Board of Trustees of
(Note: This syllabus the State Universities Retirement System denying plaintiffs’ requests to
constitutes no part of purchase service credit pursuant to the Pension Code was upheld on
the opinion of the court administrative review, since plaintiffs’ bare allegations and unsupported
but has been prepared conclusions were insufficient to establish a prima facie case that they
by the Reporter of were treated differently than similarly situated individuals and that an
Decisions for the equal-protection violation occurred.
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Champaign County, No. 12-MR-525;
Review the Hon. Thomas J. Difanis, Judge, presiding.
Judgment Affirmed.
Counsel on Paul R. Klenck (argued), of Illinois Education Association, of Chicago,
Appeal for appellants.
Albert J. Lee (argued), of State Universities Retirement System, of
Champaign, for appellees.
Panel JUSTICE TURNER delivered the judgment of the court, with opinion.
Justice Knecht concurred in the judgment and opinion.
Presiding Justice Appleton dissented, with opinion.
OPINION
¶1 In July 2012, plaintiffs, Patricia Slocum and Patricia Puccio, filed a complaint for
administrative review of a final decision of the executive committee of the Board of Trustees
of the State Universities Retirement System (SURS or the Board) denying their requests to
purchase service credit under the Illinois Pension Code (Pension Code) (40 ILCS 5/1-101
through 24-109 (West 2012)). In January 2013, the circuit court found the final
administrative decision was not against the manifest weight of the evidence and denied
plaintiffs’ request for administrative review.
¶2 On appeal, plaintiffs argue the decision by SURS to deny their requests for service credit
was clearly erroneous and a denial of equal protection. We affirm.
¶3 I. BACKGROUND
¶4 The College of Du Page (College), a community college in Du Page County, was a
participating employer in SURS at all times relevant to this case. Slocum was employed as
a part-time adjunct professor at the College from the fall of 1982 until becoming a full-time
professor in September 1988. Puccio was employed at the College as a part-time adjunct
professor from 1980 until becoming a full-time professor in the fall of 1989. Slocum retired
in 2008 and Puccio retired in 2009.
¶5 Prior to plaintiffs’ employment with the College, the College had implemented personnel
policy 4456. During the 1980s, policy 4456 provided “[a]ll part-time assignments for
individuals who are otherwise not gainfully employed will not exceed two-thirds[ ] of a
normal teaching load.” “Teaching load” referred to the number of credit hours taught in a
given quarter. Full-time teaching loads in plaintiffs’ departments were 15 credit hours per
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quarter. A part-time teaching load could not exceed 10 hours, or two-thirds of 15 hours. If
a department wanted a part-time professor to teach more than two-thirds of a normal teaching
load, the scheduler had to get special permission from the appropriate provost. Both
plaintiffs, as part-time professors, were told by deans that they could not be assigned more
than 10 credit hours. In one quarter, when a full-time faculty member was injured in a car
accident, the provost, consistent with the requirement of policy 4456, gave permission for
Puccio to work full-time for that quarter.
¶6 At some point in time, the College’s director of human resources, Howard Owens,
created his own formula for calculating part-time work. Rather than calculating workload
percentages solely using the number of credit hours per quarter divided by a full-time credit
hour load, Owens based his formula on the assumption that a full-time professor had a 40-
hour workweek that included teaching, preparing and grading lessons, maintaining office
hours, and working on committee assignments. Owens assumed part-time professors did not
have office hours or committee assignments as did full-time professors, and that those duties
constituted 15 hours of a full-time faculty member’s workweek. Owens believed the actual
teaching load accounted for 25/40 or 62.5% of a full-time professor’s 40-hour workweek.
Thus, when calculating a part-time adjunct’s workload, the Owens formula discounted the
teaching load formula by multiplying .625, because, in his opinion, full-time faculty worked
a 40-hour week and part-time faculty did not have office hours or perform committee work.
¶7 During testimony, plaintiffs stated they maintained office hours when they were part-
time, adjunct faculty members. Puccio worked on a committee while an adjunct professor.
Slocum met with students outside teaching hours either in the classroom or in the part-time
faculty center. She also attended advisory workshops.
¶8 While plaintiffs were part-time employees, they were not eligible to participate in SURS.
After they became full-time employees, plaintiffs participated in SURS, earned service
credit, and made contributions to SURS. In the late 1990s, plaintiffs applied to purchase
SURS service credit for the adjunct work they performed in the 1980s before they were
SURS participants. Under the Pension Code, SURS participants can purchase service credit
for prior work performed when the employee “was employed at least one-half time for an
employer preceding the date of becoming a participant.” 40 ILCS 5/15-113.1(c) (West 2012).
When plaintiffs made their application in the late 1990s, the College used the Owens formula
to calculate part-time work and used this formula when reporting to SURS. Thus, the College
took the credit hours plaintiffs worked each quarter in the 1980s and multiplied that by a
factor of .625. Under the Owens formula, plaintiffs were able to purchase service credit for
some quarters.
¶9 In 2006, a full-time faculty member filed a grievance with the College’s faculty
administrative review board (review board), complaining that the College violated policy
4456 by improperly assigning too much work to part-time faculty. Since the Owens formula
discounted part-time work by a factor of .625 and policy 4456 limited part-time work to two-
thirds of a teaching load, adjunct professors could be assigned more credit hours than if
assignments were made using the teaching load formula. In response, the review board issued
a recommendation that all College administrators should only use credit hours to calculate
part-time employees’ workload percentage, rather than using the Owens formula, which
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discounted adjuncts’ workload because it assumed they did not perform committee work and
office hours. In 2008, the College president adopted the review board recommendation, and
the College abandoned the Owens formula and reverted to the teaching load formula
consistent with policy 4456.
¶ 10 In 2007, after the review board recommendation, plaintiffs attempted to purchase service
credit with SURS for some of the adjunct work they performed in the 1980s. Claire Benz,
a compensation specialist with the College, told Puccio she was eligible to purchase credit
for certain quarters. The College reported to SURS that Slocum and Puccio had worked
certain quarters in the 1980s at least half-time or more.
¶ 11 At approximately the same time, three other College employees, Sue Censky, Joyce Abel,
and Nancy Conradt, allegedly purchased service credit for part-time work performed in the
1980s. After Abel’s request to purchase service credit was approved, Puccio submitted her
request. The College allegedly calculated plaintiffs’ time using the teaching load formula.
¶ 12 After receiving plaintiffs’ reports, SURS director of member services Angela Lieb
initiated a review of the College’s report of plaintiffs’ service credit. SURS asked the College
why it was reporting that plaintiffs worked half-time or more in certain quarters in the 1980s,
when it had not reported those quarters in the late 1990s when plaintiffs previously applied
to purchase service credit. Julie Boyce, at human resources for the College, indicated the
discrepancy was due to a change in the College’s formula effective in April 2007. After
Lieb’s inquiry, the College revised the report to SURS and reverted to using the Owens
formula for plaintiffs. Based on the College’s second report, SURS denied plaintiffs’
requests to purchase additional service credit.
¶ 13 In 2008, plaintiffs petitioned SURS for an administrative hearing. In her petition, Puccio
argued SURS erred in denying her request to purchase service credit by requiring the
percentage of employment be determined by the formula in place at the time the service was
rendered. Puccio alleged the College used “an erroneous, illegal formula” in reporting service
credit to SURS and the formula “was inconsistent with administrative practice which limited
part-time faculty to an annual teaching load no greater than two-thirds of a full-time faculty
member’s academic year load in accordance with Board policy.” Puccio claimed an internal
review board at the College found the old formula violated labor practices and did not reflect
the actual work performed by faculty. A corrected formula was adopted, and SURS accepted
the new formula retroactively for other individuals.
¶ 14 In December 2008, the SURS claims committee recommended that the executive
committee remand the case to staff with directions to seek “further evidence to prove
factually what methodology was employed” by the College in the 1980s when reporting to
SURS “which of its employees performed at least half-time work for the periods in
question.”
¶ 15 Following remand, the only additional evidence SURS gathered was an email from Sue
Censky of the College. SURS employer representative Larry Curtis emailed Censky asking
if the Owens formula was the formula the College used in the 1980s to calculate half-time
work. Censky stated the Owens formula was used during the 1980s. When Curtis mentioned
the claimant said the College’s policy in the 1980s was reflected only in policy 4456, Censky
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indicated that was inaccurate as the policy did not deal with percentage of time worked for
SURS reporting but dealt with how many hours a part-time faculty member was allowed to
teach. Censky stated a new formula was employed in late May 2007.
¶ 16 In June 2010, Puccio’s representative wrote to Karen Maggio at SURS stating no
foundation was provided regarding Censky’s knowledge of the formulas the College used,
the Owens formula did not exist in the 1980s, and Censky herself was allowed by SURS to
purchase service credit for part-time work in the 1980s without using the Owens formula.
¶ 17 In September 2010, SURS denied plaintiffs’ request to purchase service credit, stating,
in part, as follows:
“As previously stated, employers must base the percent time calculation for any prior
service periods upon the formula that was in effect at the time such service was
performed. Sue Censky of the College of Du Page confirmed that the formula referred
to as the Owen’s [sic] Formula was the formula in effect during the period of time you
have requested to purchase as prior service credit.
The last verification that SURS received was based upon the Owen’s [sic] Formula.
As a result, we have concluded that you are not eligible to purchase any additional prior
service credit for your employment with the College of Du Page.”
¶ 18 In October 2010, plaintiffs appealed this determination to the deputy director of members
services at SURS. Plaintiffs objected to Censky’s belief that the Owens formula was utilized
by the College in the 1980s, arguing she provided no foundation for her opinion. In February
2011, the director of member services denied the appeal, concluding plaintiffs had
“purchased all of the eligible prior service credit that has been verified with our system.”
¶ 19 In June 2011, each plaintiff filed a statement of claim, requesting to purchase service
credit. Each plaintiff argued she “should be permitted to purchase service credit for the nine
quarters because under the only applicable [College] policy during the time she performed
the work, she was employed at least one-half time. Additionally, by permitting other
similarly situated [College] employees to purchase service credit, while denying her the same
opportunity, SURS is violating her right to Equal Protection under the Constitution.”
¶ 20 In February 2012, the SURS claims panel denied plaintiffs’ appeal. The panel noted the
issue centered on whether plaintiffs were entitled to purchase past service credit under
section 15-113.1(c) of the Pension Code for periods of time “during which a person was
employed at least one-half time for an employer preceding the date of becoming a
participant.” In its decision, the claims panel relied on the email provided by Censky, stating
as follows:
“In her e-mail response to SURS, Sue Censky went on to indicate that the College
of Du Page policy for calculating percentage of full time employment was reflected in
the original (Owens’) [sic] formula which excluded office hours and committee work
when determining the percentage of full time employment worked by part time faculty
members. According to Sue Censky, the College employed that original formula until
April 30, 2007. Under that formula, the claimant would not be entitled to purchase
service credit for any of the periods of time in question because her work during each of
those periods would fall below half time employment.” (Emphasis in original.)
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The panel noted whether a member has worked at least half-time or more is a determination
left to the employer, since “[t]he percentage of time employed shall be as reported by the
employer.” 40 ILCS 5/15-134.1(b) (West 2012).
“Under [section 15-134.1(b)], SURS is required to defer to College of Du Page in terms
of determining what they consider to be the percentage of time that the claimant was
employed during a given period. In this case, Sue Censky of the College of Du Page has
indicated that College of Du Page used the methodology reflected in the original Owens’
[sic] formula as its policy prior to 2007. We accept that evidence and find that College
of Du Page Board Policy 4456 (dealing with the number of credit hours that part time
faculty may teach) does not overcome nor even contradict Sue Censky’s statements of
what constituted College of Du Page policy regarding how to calculate the percentage of
full time employment in the 1980s.”
In June 2012, the SURS executive committee adopted the claims panel’s decision.
¶ 21 In July 2012, plaintiffs filed a complaint for administrative review. Plaintiffs argued they
had been adversely affected by the executive committee’s decisions by not being permitted
to purchase service credit for those quarters in which they were employed for more than one-
half time. They sought judicial review of those decisions, which they claimed were clearly
erroneous and a violation of their right to equal protection.
¶ 22 In November 2012, defendants filed a brief in opposition to plaintiffs’ complaint for
administrative review. Defendants claimed that in April 2007, after the full-time faculty
grievance, then-College President Sunil Chand directed human resources to prospectively
change its reporting of percentage times to SURS. Defendants claimed Benz retroactively
revised the percentage times for prior service periods that previously had been reported as
being below 50% and reported the revised figures to SURS for plaintiffs in May 2007. After
plaintiffs proceeded to apply for the purchase of prior service based on the revised figures,
SURS engaged in email discussions with the College regarding discrepancies between the
new figures and those that had been reported in the late 1990s. Following the inquiry, the
College sent hand-corrected reports that reverted to the original percentage time for each
plaintiff. SURS then denied plaintiffs’ applications.
¶ 23 In January 2013, the circuit court conducted a hearing on the complaint. In February
2013, the court issued its written order, finding as follows:
“1. The Court finds that the standard of review that applies in this case is the manifest
weight of the evidence standard.
2. Based on 40 ILCS 5/15-134.1(b), Defendants are obligated to accept the
determination made by the educational entity as to the status of its employees.
3. The Court finds the College of Du Page has provided two different employment
records to the State Universities Retirement System (‘SURS’). SURS staff sought
clarification from the College and the College reported that the Plaintiffs did not work
at least half-time for the time periods in question. Relying upon that report, Defendants
determined that Plaintiffs were ineligible to purchase prior service credit pursuant to 40
ILCS 5/15-113.1(c) for those periods.
4. Based on the presentation by the Parties, the Court finds that the final
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administrative decision of the Defendants was not against the manifest weight of the
evidence. The Plaintiffs’ complaint for administrative review is hereby denied.”
This appeal followed.
¶ 24 II. ANALYSIS
¶ 25 A. Burden of Proof and Standard of Review
¶ 26 Our supreme court has stated that “under any standard of review, a plaintiff to an
administrative proceeding bears the burden of proof, and relief will be denied if he or she
fails to sustain that burden.” Marconi v. Chicago Heights Police Pension Board, 225 Ill. 2d
497, 532-33, 870 N.E.2d 273, 293 (2006). Plaintiffs’ burden of proof in an administrative
hearing is by a preponderance of the evidence. 5 ILCS 100/10-15 (West 2012). “With
administrative cases, this court reviews the administrative agency’s decision, not the circuit
court’s.” Kildeer-Countryside School District No. 96 v. Board of Trustees of Teachers’
Retirement System, 2012 IL App (4th) 110843, ¶ 20, 972 N.E.2d 1286.
¶ 27 “In administrative review cases, this court reviews factual question[s] under the manifest
weight standard, questions of law de novo, and mixed questions of law and fact under the
clearly erroneous standard.” Buckner v. University Park Police Pension Fund, 2013 IL App
(3d) 120231, ¶ 13, 983 N.E.2d 125. “A finding is against the manifest weight of the evidence
where the opposite conclusion is clearly apparent.” Adams v. Board of Trustees of the
Teachers’ Retirement System, 407 Ill. App. 3d 592, 595, 944 N.E.2d 789, 791 (2011). “An
administrative agency’s decision is clearly erroneous where the reviewing court comes to the
definite and firm conclusion the agency has committed an error.” Adams, 407 Ill. App. 3d
at 595, 944 N.E.2d at 792.
¶ 28 In the case sub judice, the parties disagree over the applicable standard of review on the
service-credit issue. Plaintiffs argue the clearly erroneous standard applies, while defendants
argue the manifest-weight-of-the-evidence standard applies. As the issue of plaintiffs’ ability
to purchase service credit centers on the factual question of whether they were employed at
least one-half time at the College during the 1980s, we agree with defendants and find the
manifest-weight standard is appropriate.
¶ 29 B. SURS Denial of Plaintiffs’ Request To Purchase Service Credit
¶ 30 The SURS executive committee adopted the claims panel’s decision as its findings of
facts and conclusions of law. The claims panel stated the issue was whether plaintiffs met
their burden of proving they were employed at least one-half time for the periods during the
1980s when they sought to purchase service credit.
¶ 31 The Pension Code allows SURS participants to purchase service credit for prior work
performed when the employee “was employed at least one-half time for an employer
preceding the date of becoming a participant.” 40 ILCS 5/15-113.1(c) (West 2012). Whether
a participant has worked at least half-time or more is a determination left to the employer
since “the percentage of time employed shall be as reported by the employer.” 40 ILCS 5/15-
134.1(b) (West 2012).
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¶ 32 The claims panel relied on Censky’s email, which stated the Owens formula was in effect
during the 1980s. Censky also indicated the College’s policy 4456 did not deal with the
percent of time worked by faculty members for SURS reporting purposes but dealt with how
many hours a part-time faculty member was allowed to teach. The claims panel accepted
Censky’s email as evidence of the College’s policy prior to 2007 and found policy 4456 did
not overcome or contradict Censky’s statements of what constituted the applicable policy.
¶ 33 Plaintiffs argue the decision by SURS to deny their requests for service credit is not
supported by the evidence as it was based on improperly admitted hearsay found in Censky’s
email.
¶ 34 In administrative cases, the same rules of evidence applied in civil cases in the circuit
courts shall also apply. 5 ILCS 100/10-40(a) (West 2012). “Evidence not admissible under
those rules of evidence may be admitted, however, (except where precluded by statute) if it
is of a type commonly relied upon by reasonably prudent men in the conduct of their affairs.”
5 ILCS 100/10-40(a) (West 2012).
¶ 35 “Generally, hearsay evidence is not admissible in an administrative proceeding.
[Citation.] However, where there is sufficient competent evidence to support an
administrative decision, the improper admission of hearsay testimony in the administrative
proceeding is not prejudicial error.” Goranson v. Department of Registration & Education,
92 Ill. App. 3d 496, 501, 415 N.E.2d 1249, 1253 (1980).
¶ 36 Defendants argue plaintiffs cannot now object to Censky’s email because they moved for
its admission during the second administrative hearing in October 2011 and failed to raise
a proper evidentiary objection before the administrative hearing officer.
¶ 37 “It is well established that when hearsay evidence is admitted without an objection, it is
to be considered and given its natural probative effect.” Jackson v. Board of Review of the
Department of Labor, 105 Ill. 2d 501, 508, 475 N.E.2d 879, 883 (1985). “In an
administrative proceeding, ‘hearsay evidence that is admitted without objection may be
considered by the administrative body and by the courts on review.’ ” S.W. v. Department
of Children & Family Services, 276 Ill. App. 3d 672, 682, 658 N.E.2d 1301, 1308 (1995)
(quoting Jackson, 105 Ill. 2d at 509, 475 N.E.2d at 883).
¶ 38 In this case, plaintiffs’ counsel moved to admit certain documents, including the Censky
email, before the hearing officer in October 2011. Plaintiffs’ counsel did not ask the hearing
officer to exclude the Censky email from the record on the basis that it constituted
inadmissible hearsay.
¶ 39 Plaintiffs argue they objected to Censky’s email “at every opportunity.” Plaintiffs rely on
their counsel’s June 21, 2010, letter to Karen Maggio, an executive assistant at SURS, that
stated Censky had no foundation for her knowledge of when the Owens formula was used.
Plaintiffs also cite an October 18, 2010, letter from plaintiffs’ counsel to the deputy director
of member services at SURS, which claimed Censky provided no foundation for her
knowledge. In their statements of claims submitted prior to the October 2011 hearing,
plaintiffs claim SURS offered no foundation as to Censky’s knowledge of what formula the
College used in the 1980s.
¶ 40 We find plaintiffs did not adequately object to the admission of Censky’s email on
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hearsay grounds. The 2010 letters were not addressed to the hearing officer and did not
request the exclusion of Censky’s email from the record or consideration. Moreover, the
statements of claims do not object to the email on hearsay grounds and do not argue it is
inadmissible. The arguments raised go more toward the weight to be given to the Censky
email rather than admissibility. Without a valid hearsay objection, we find plaintiffs have
forfeited their argument on appeal.
¶ 41 Even if plaintiffs offered a valid objection, we find any improper admission did not
amount to prejudicial error. “We may rely on any basis appearing in the record to affirm an
agency’s decision.” Kimball Dawson, LLC v. City of Chicago Department of Zoning, 369 Ill.
App. 3d 780, 787, 861 N.E.2d 216, 223 (2006). Here, plaintiffs applied to purchase service
credit in the late 1990s for work they performed in the 1980s before they were SURS
participants. The College used the Owens formula, and plaintiffs were able to purchase
service credit for some quarters but not all. In 2007, after the issue involving the full-time
faculty grievance, plaintiffs again attempted to purchase service credit. Benz found they were
now eligible based on new calculations applied retroactively. However, an email from the
College president had indicated the Owens formula was to be discontinued and the new
formula was to be applied prospectively.
¶ 42 Upon noticing the discrepancies between the newly reported Benz figures with those
previously reported in the late 1990s, SURS asked for clarification. The College noted the
revised formula, pointed out the prospective nature of any changes, and corrected the reports
to revert to the original percentage times for each plaintiff. Thereafter, SURS denied
plaintiffs’ applications.
¶ 43 The evidence in this case indicates plaintiffs were denied the opportunity to purchase
service credit in the late 1990s because they did not qualify. The evidence also indicates the
only reason they were determined to be eligible to purchase credit in 2007, after having once
been denied, was based on an erroneously retroactive application of the SURS calculation
by the College. Once the College reported the discrepancy after inquiry from SURS, the
percentages were corrected and SURS denied the applications. We find this determination
was not against the manifest weight of the evidence.
¶ 44 Plaintiffs, however, argue the decision by SURS to deny their requests to purchase
service credit is contrary to this court’s decision in Wargo v. State Universities Retirement
System, 106 Ill. App. 3d 930, 436 N.E.2d 745 (1982). In that case, this court held SURS does
not have authority to determine who is eligible to participate in the system. Wargo, 106 Ill.
App. 3d at 933-34, 436 N.E.2d at 748. We stated “the employers decide who their employees
are, and that decision determines eligibility to participate in the pension fund; we find no
provision in the Pension Code granting that power to the Board of Trustees of SURS.”
Wargo, 106 Ill. App. 3d at 933-34, 436 N.E.2d at 748.
¶ 45 Plaintiffs argue SURS did not accept the College’s initial report regarding their eligibility
provided by Benz. Instead, they argue Lieb intervened and caused the College to recalculate
their service credit using the Owens formula. Plaintiffs contend SURS wrongfully intervened
as Wargo required SURS to defer to the College.
¶ 46 We find plaintiffs’ contention without merit. The evidence indicates SURS was
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confronted with Benz’s recalculations, which would have allowed plaintiffs to purchase
service credit that previously had been denied. SURS simply asked for clarification to clear
up the confusion. Plaintiffs would have us believe SURS could never question even an
obvious mistake but must take whatever percentages the College provides. Such cannot be
the law. Here, SURS acted within the scope of its authority and deferred to the College as
to the appropriate percentages of plaintiffs’ workload.
¶ 47 C. Equal Protection
¶ 48 Plaintiffs also argue the decision by SURS to deny their request for service credit violated
their right to equal protection. We disagree.
¶ 49 Both the United States Constitution and the Illinois Constitution guarantee citizens equal
protection of the law. U.S. Const., amend. XIV; Ill. Const. 1970, art. I, § 2. An analysis of
an equal-protection claim is the same under the United States Constitution and the Illinois
Constitution. In re Jonathon C.B., 2011 IL 107750, ¶ 116, 958 N.E.2d 227. “The equal
protection clause guarantees that similarly situated individuals will be treated in a similar
fashion, unless the government can demonstrate an appropriate reason to treat them
differently.” Jonathon C.B., 2011 IL 107750, ¶ 116, 958 N.E.2d 227; see also Kaczka v.
Retirement Board of the Policemen’s Annuity & Benefit Fund, 398 Ill. App. 3d 702, 707, 923
N.E.2d 1282, 1287 (2010). Review of an equal-protection claim is de novo. Yoder v.
Ferguson, 381 Ill. App. 3d 353, 379, 885 N.E.2d 1060, 1081 (2008).
¶ 50 Plaintiffs have failed to set forth a viable equal-protection clause claim in this case.
Puccio’s testimony during the hearings concerning three individuals she believed to have
purchased service credit under the new formula at a time when plaintiffs were denied the
same opportunity is not substantiated. Lieb indicated she had initiated the process for
reviewing service purchased in other cases and action could be taken to rectify any errors.
Nothing in the record corroborates plaintiffs’ claim that they were treated differently from
similarly situated individuals. With only bare allegations and unsupported conclusions,
plaintiffs cannot even make out a prima facie case of an equal-protection violation.
¶ 51 III. CONCLUSION
¶ 52 For the reasons stated, we affirm the circuit court’s affirmance of the Board’s final
administrative determination.
¶ 53 Affirmed.
¶ 54 PRESIDING JUSTICE APPLETON, dissenting.
¶ 55 I respectfully dissent because the majority decision suffers from a fundamental
inconsistency. On the one hand, the majority observes that under section 15-113.1(c) of the
Pension Code (40 ILCS 5/15-113.1(c) (West 2012)), participants may “purchase service
credit for prior work performed when the employee ‘was employed at least one-half time for
an employer preceding the date of becoming a participant.’ ” Supra ¶ 31 (quoting 40 ILCS
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5/15-113.1(c) (West 2012)). Thus, under section 15-113.1(c), a participant’s right to
purchase service credit depends on an objective fact: whether the participant was employed
“at least one-half time.” 40 ILCS 5/15-113.1(c) (West 2012). The claims panel said that, in
the administrative hearing, plaintiffs had the burden of proving that objective fact. “The
claims panel stated the issue was whether plaintiffs met their burden of proving they were
employed at least one-half time for the periods during the 1980s when they sought to
purchase service credit.” Supra ¶ 30. Likewise, the majority says that whether plaintiffs may
purchase service credit “centers on the factual question of whether they were employed at
least one-half time at the College during the 1980s” and hence, in this appeal, we should
uphold the finding of SURS on that factual question unless the finding is against the manifest
weight of the evidence. Supra ¶ 28.
¶ 56 On the other hand, under section 15-134.1(b) (40 ILCS 5/15-134.1(b) (West 2012)) as
interpreted by SURS and the majority, the determination of the employer is conclusive.
Whatever the employer says goes. “The percentage of time employed shall be as reported by
the employer.” 40 ILCS 5/15-134.1(b) (West 2012). Consequently, I am left wondering what
was the purpose of having an evidentiary hearing before the claims panel. The outcome is
predetermined, regardless of the evidence. The game is rigged. It would not matter if, in such
an administrative hearing, the employee proved, as an indisputable objective fact, that he or
she worked 16 hours a day, 7 days a week, for an entire quarter. In the view of SURS and the
majority, the only relevant evidence would be the percentage of time the employer reported
to SURS–even if, by the employer’s own admission, the percentage of time the employer
reported was objectively inaccurate.
¶ 57 In this case, the college ultimately reported to SURS that under the “Owens formula,”
plaintiffs were employed less than half-time in the 1980s. In conjunction with that report,
however, the college informed SURS that the Owens formula was objectively incorrect and
that under the correct methodology, i.e., policy 4456, which the college applied to employees
from 2008 onward, plaintiffs were indeed employed half-time in the 1980s. So, even if one
accepted the questionable proposition that, under section 15-134.1(b), whatever percentage
the employer reports trumps all other evidence, however compelling that other evidence
might be, the employer in this case effectively has reported plaintiffs as working half-time
in the 1980s, i.e., by its admissions that (1) the Owens formula is objectively incorrect, (2)
policy 4456 is objectively correct, and (3) under policy 4456 plaintiffs were employed half-
time.
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