                                                     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.
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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


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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


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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).


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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.


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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-


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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


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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.




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