SECOND DIVISION April 17, 2007
No. 1-06-2447
IN THE MATTER OF: ) Appeal from an order C.R.M., ) of the Chief Legal ) Counsel of the Petitioner-Appellant, ) Illinois Department ) of Human Rights. v. ) ) CHIEF LEGAL COUNSEL OF THE ) ILLINOIS DEPARTMENT OF HUMAN ) RIGHTS, THE DEPARTMENT OF HUMAN ) RIGHTS, and CITY OF COUNTRY ) CLUB HILLS, ) ) Respondents-Appellees. )
PRESIDING JUSTICE WOLFSON delivered the opinion of the
court:
Petitioner C.R.M. filed a charge of discrimination with the
Illinois Department of Human Rights (Department), alleging the
City of Country Club Hills discriminated against him by denying
him employment based on his race, age, sex, and previous arrest
record, in violation of sections 2-102(A) and 2-103(A) of the
Illinois Human Rights Act (Act) (775 ILCS 5/2-102(A), 2-103(A)
(West 2004)). After conducting an investigation, the Department
issued a notice of dismissal for lack of substantive evidence.
Petitioner filed a request for review by the Chief Legal Counsel
of the Department. The Chief Legal Counsel sustained the
dismissal. Petitioner appeals. We affirm. 1-06-2447
FACTS
In August 2004, petitioner, a fifty-year-old African-
American male, interviewed for the position of Director of
Community Development with Henrietta Turner, the City Manager,
and Dwight Welch, the City Mayor. In a letter dated September
14, 2004, the City offered petitioner the position. The offer
was contingent on petitioner’s successful completion of a
physical examination and a background investigation. The
background investigation included an inquiry into the
petitioner’s criminal history.
On September 29, 2004, petitioner signed an “Authorization
to Release Information,” which authorized the release of “any and
all information that you may have concerning me, my employment
(work) and educational records, my reputation, and my financial
and credit status” to the City’s police department. The release
included “any and all medical, physical and mental records and
reports, including all information of confidential or privileged
nature, and photocopies of same, if possible.” The City’s police
department conducted a background check on petitioner, using a
fingerprint card he supplied to the police department on a form
entitled “Criminal Justice Applicant,” to obtain his criminal
record from the Department of State Police. The criminal
background check revealed petitioner had eight alias names with
2 1-06-2447
seven different birth dates. The background check also revealed
numerous arrests and four criminal misdemeanor convictions–-two
thefts, resisting a police officer, and battery.
In a letter dated October 20, 2004, Turner informed
petitioner that the City was not able to extend a final offer of
employment. According to the City, the position never was
filled. The position was eliminated from the budget for the
2005-2006 fiscal year.
On October 24, 2004, petitioner filed a charge of
discrimination with the Department, alleging the City unlawfully
discriminated against him by denying him employment based on his
race, age, sex, and prior arrest record. Petitioner alleged the
City hired a less qualified non-black female who was under forty
years of age, but who also had an arrest record, to fill the
position.
After conducting an investigation, the Department’s
investigator recommended a finding of lack of substantial
evidence of discrimination. Documented evidence showed the City
ran criminal background checks on all candidates being considered
for “sensitive positions.” It was uncontested that petitioner’s
background check revealed he had a number of aliases and
convictions. The investigator found there was no evidence that
the City failed to hire petitioner based on his arrest record or
3 1-06-2447
any expunged criminal history. The investigator also found
petitioner failed to present a prima facie case of discrimination
because the City did not hire anyone for the position and
eliminated the position from its budget the following year. The
investigator found the City’s stated reasons for not hiring
petitioner were not pretextual.
Based on the findings and conclusions set forth in the
investigation report, the Department issued a notice of dismissal
for lack of substantial evidence. Petitioner filed a timely
request for review by the Chief Legal Counsel of the Department.
The Chief Legal Counsel sustained the dismissal, finding
petitioner failed to establish and the Department’s investigation
failed to show, petitioner’s race, age, sex, or arrest record was
a reason for the City not hiring him. Petitioner appealed.
DECISION
Petitioner contends the Chief Legal Counsel erred in
sustaining the Department’s dismissal of his charge of
discrimination. Petitioner contends he presented sufficient
evidence to establish a prima facie case of race, age, or sex
discrimination in the City’s decision not to hire him. We
disagree.
The Chief Legal Counsel’s order reviewing the dismissal is a
final and appealable order. 775 ILCS 5/7-101.1(A) (West 2004).
4 1-06-2447
On review, we will not reweigh the evidence or substitute our
judgment for the Department’s. Welch v. Hoeh, 314 Ill. App. 3d
1027, 1034, 733 N.E.2d 410 (2000); Folbert v. Department of Human
Rights, 303 Ill. App. 3d 13, 25, 707 N.E.2d 590 (1999). Instead,
our review is limited to deciding whether the Chief Legal
Counsel’s decision dismissing the charge is arbitrary and
capricious or an abuse of discretion. Welch, 314 Ill. App. 3d at
1034; Folbert, 303 Ill. App. 3d at 25.
In Zaderaka v. Illinois Human Rights Commission, 131 Ill. 2d
172, 178-79, 545 N.E.2d 684 (1989), our supreme court adopted a
three-part analysis for employment discrimination charges under
the Act. First, the plaintiff must establish by a preponderance
of the evidence a prima facie case of unlawful discrimination.
Zaderaka, 131 Ill. 2d at 179-80. If a prima facie case is
established, a rebuttable presumption arises that the employer
unlawfully discriminated against the plaintiff. Zaderaka, 131
Ill. 2d at 180. Second, to rebut the presumption, the employer
must articulate, not prove, a legitimate, nondiscriminatory
reason for its decision. Zaderaka, 131 Ill. 2d at 180. Third,
if the employer articulates such a reason, the plaintiff must
prove by a preponderance of the evidence that the employer’s
reason was untrue and was a pretext for discrimination.
Zaderaka, 131 Ill. 2d at 180.
5 1-06-2447
To establish a prima facie case of employment
discrimination, a petitioner must show: (1) he is a member of a
protected class; (2) he applied and was qualified for the
position; (3) he was rejected despite his qualifications; and (4)
the position remained open and the employer sought other
applicants from persons of petitioner’s qualifications. Stone v.
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SECOND DIVISION April 17, 2007
No. 1-06-2447
IN THE MATTER OF: ) Appeal from an order C.R.M., ) of the Chief Legal ) Counsel of the Petitioner-Appellant, ) Illinois Department ) of Human Rights. v. ) ) CHIEF LEGAL COUNSEL OF THE ) ILLINOIS DEPARTMENT OF HUMAN ) RIGHTS, THE DEPARTMENT OF HUMAN ) RIGHTS, and CITY OF COUNTRY ) CLUB HILLS, ) ) Respondents-Appellees. )
PRESIDING JUSTICE WOLFSON delivered the opinion of the
court:
Petitioner C.R.M. filed a charge of discrimination with the
Illinois Department of Human Rights (Department), alleging the
City of Country Club Hills discriminated against him by denying
him employment based on his race, age, sex, and previous arrest
record, in violation of sections 2-102(A) and 2-103(A) of the
Illinois Human Rights Act (Act) (775 ILCS 5/2-102(A), 2-103(A)
(West 2004)). After conducting an investigation, the Department
issued a notice of dismissal for lack of substantive evidence.
Petitioner filed a request for review by the Chief Legal Counsel
of the Department. The Chief Legal Counsel sustained the
dismissal. Petitioner appeals. We affirm. 1-06-2447
FACTS
In August 2004, petitioner, a fifty-year-old African-
American male, interviewed for the position of Director of
Community Development with Henrietta Turner, the City Manager,
and Dwight Welch, the City Mayor. In a letter dated September
14, 2004, the City offered petitioner the position. The offer
was contingent on petitioner’s successful completion of a
physical examination and a background investigation. The
background investigation included an inquiry into the
petitioner’s criminal history.
On September 29, 2004, petitioner signed an “Authorization
to Release Information,” which authorized the release of “any and
all information that you may have concerning me, my employment
(work) and educational records, my reputation, and my financial
and credit status” to the City’s police department. The release
included “any and all medical, physical and mental records and
reports, including all information of confidential or privileged
nature, and photocopies of same, if possible.” The City’s police
department conducted a background check on petitioner, using a
fingerprint card he supplied to the police department on a form
entitled “Criminal Justice Applicant,” to obtain his criminal
record from the Department of State Police. The criminal
background check revealed petitioner had eight alias names with
2 1-06-2447
seven different birth dates. The background check also revealed
numerous arrests and four criminal misdemeanor convictions–-two
thefts, resisting a police officer, and battery.
In a letter dated October 20, 2004, Turner informed
petitioner that the City was not able to extend a final offer of
employment. According to the City, the position never was
filled. The position was eliminated from the budget for the
2005-2006 fiscal year.
On October 24, 2004, petitioner filed a charge of
discrimination with the Department, alleging the City unlawfully
discriminated against him by denying him employment based on his
race, age, sex, and prior arrest record. Petitioner alleged the
City hired a less qualified non-black female who was under forty
years of age, but who also had an arrest record, to fill the
position.
After conducting an investigation, the Department’s
investigator recommended a finding of lack of substantial
evidence of discrimination. Documented evidence showed the City
ran criminal background checks on all candidates being considered
for “sensitive positions.” It was uncontested that petitioner’s
background check revealed he had a number of aliases and
convictions. The investigator found there was no evidence that
the City failed to hire petitioner based on his arrest record or
3 1-06-2447
any expunged criminal history. The investigator also found
petitioner failed to present a prima facie case of discrimination
because the City did not hire anyone for the position and
eliminated the position from its budget the following year. The
investigator found the City’s stated reasons for not hiring
petitioner were not pretextual.
Based on the findings and conclusions set forth in the
investigation report, the Department issued a notice of dismissal
for lack of substantial evidence. Petitioner filed a timely
request for review by the Chief Legal Counsel of the Department.
The Chief Legal Counsel sustained the dismissal, finding
petitioner failed to establish and the Department’s investigation
failed to show, petitioner’s race, age, sex, or arrest record was
a reason for the City not hiring him. Petitioner appealed.
DECISION
Petitioner contends the Chief Legal Counsel erred in
sustaining the Department’s dismissal of his charge of
discrimination. Petitioner contends he presented sufficient
evidence to establish a prima facie case of race, age, or sex
discrimination in the City’s decision not to hire him. We
disagree.
The Chief Legal Counsel’s order reviewing the dismissal is a
final and appealable order. 775 ILCS 5/7-101.1(A) (West 2004).
4 1-06-2447
On review, we will not reweigh the evidence or substitute our
judgment for the Department’s. Welch v. Hoeh, 314 Ill. App. 3d
1027, 1034, 733 N.E.2d 410 (2000); Folbert v. Department of Human
Rights, 303 Ill. App. 3d 13, 25, 707 N.E.2d 590 (1999). Instead,
our review is limited to deciding whether the Chief Legal
Counsel’s decision dismissing the charge is arbitrary and
capricious or an abuse of discretion. Welch, 314 Ill. App. 3d at
1034; Folbert, 303 Ill. App. 3d at 25.
In Zaderaka v. Illinois Human Rights Commission, 131 Ill. 2d
172, 178-79, 545 N.E.2d 684 (1989), our supreme court adopted a
three-part analysis for employment discrimination charges under
the Act. First, the plaintiff must establish by a preponderance
of the evidence a prima facie case of unlawful discrimination.
Zaderaka, 131 Ill. 2d at 179-80. If a prima facie case is
established, a rebuttable presumption arises that the employer
unlawfully discriminated against the plaintiff. Zaderaka, 131
Ill. 2d at 180. Second, to rebut the presumption, the employer
must articulate, not prove, a legitimate, nondiscriminatory
reason for its decision. Zaderaka, 131 Ill. 2d at 180. Third,
if the employer articulates such a reason, the plaintiff must
prove by a preponderance of the evidence that the employer’s
reason was untrue and was a pretext for discrimination.
Zaderaka, 131 Ill. 2d at 180.
5 1-06-2447
To establish a prima facie case of employment
discrimination, a petitioner must show: (1) he is a member of a
protected class; (2) he applied and was qualified for the
position; (3) he was rejected despite his qualifications; and (4)
the position remained open and the employer sought other
applicants from persons of petitioner’s qualifications. Stone v.
Department of Human Rights, 299 Ill. App. 3d 306, 315, 700 N.E.2d
1105 (1998), citing McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802, 93 S. Ct. 1817, 1824, 36 L.Ed.2d 668, 677 (1973).
Here, petitioner failed to establish the position remained
open after the City decided not to hire him, a necessary element
of a prima facie case of employment discrimination. The
Department found the evidence established the City never filled
the position, and documented evidence showed the position was
eliminated from the budget for the 2005-2006 fiscal year. While
petitioner alleged the City hired a less qualified non-black
female who was under forty years of age, but who also had an
arrest record, to fill the position, nothing in the record
supports his allegation.
We find the Chief Legal Counsel’s decision to sustain the
dismissal of the charge was not an abuse of discretion.
Petitioner also contends he established the City did not
hire him because of his arrest record, a violation of section 2-
6 1-06-2447
103(A) of the Act. We disagree.
Section 2-103(A) of the Act provides:
“Unless otherwise authorized by law, it is a
civil rights violation for any employer,
employment agency or labor organization to
inquire into or to use the fact of an arrest
or criminal history record information
ordered expunged, sealed or impounded *** as
a basis to refuse to hire ***. This Section
does not prohibit a State agency, unit of
local government or school district, or
private organization from utilizing
conviction information obtained from the
Department of State Police *** in evaluating
the qualifications and character of an
employee or prospective employee.” 775 ILCS
5/2-103(A) (West 2004).
In enacting section 2-103(A), “the intent of the legislature
was to prevent an inquiry into mere charges or allegations of
criminal behavior but to allow inquiry where criminal conduct has
been proven.” Beard v. Sprint Spectrum, LP, 359 Ill. App. 3d
315, 320, 833 N.E.2d 449 (2005).
Here, the City offered petitioner the position, contingent
7 1-06-2447
on petitioner’s successful completion of a physical examination
and a background investigation. It is uncontested that an
inquiry into petitioner’s criminal history revealed he had eight
alias names, four criminal convictions, and several arrests.
Because the criminal convictions were not sealed, expunged, or
impounded, section 2-103(A) did not bar the City from considering
them during the hiring process. While we recognize the
background check revealed petitioner had also been arrested
several times, nothing in the record indicates the City relied on
the arrest information, rather than on petitioner’s convictions,
in reaching its decision not to employ petitioner.
The Department’s finding of lack of substantial evidence is
supported by the record. We find the Chief Legal Counsel did not
abuse his discretion by sustaining The Department’s dismissal of
petitioner’s charge.
CONCLUSION
We affirm the Chief Legal Counsel’s order.
Affirmed.
HOFFMAN, and SOUTH, JJ., concur.