No. 3--04--0547

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2005

Petitioner, David A. Beard, appeals the decision of the Chief Legal Counsel of the Illinois Department of Human Rights (Department) affirming the Department's dismissal of his employment discrimination complaint filed pursuant to the Illinois Human Rights Act (Act) (775 ILCS 5/1-101, et seq. (West 2002)). We affirm.

I. FACTS

On September 24, 2002, petitioner applied for a job with Sprint. The employment application contained the following question:

"Have you ever been charged with a crime (including misdemeanors but not minor traffic violations) which resulted in a conviction?"

The application further stated:

"For the purposes of this question, convictions also include guilty pleas (including No Contest pleas), suspended impositions of sentence, adjudications deferred or withheld (except in Montana), diversion programs (except in California or Ohio) (beyond the probationary period), first offender programs (except in Massachusetts and Georgia), non-prosecutions with leave to reinstate, pre-trial interventions (beyond the probationary period), stays of imposition to vacate and dismiss (beyond the probationary period), and stet dockets (beyond the probationary period)."

In response to this question, petitioner answered "no." The application also stated:

"[t]he existence of a criminal record will not necessarily disqualify you for employment consideration. Each conviction will be evaluated on its own merits with respect to time, circumstances and seriousness, in relation to the job for which you are applying. However, failure to disclose such information may result in disqualification of your application or termination of employment."

Above the signature line it stated:

"I certify that any and all statements which I have set forth in this application are true and correct to the best of my knowledge. I also recognize that any misstatement or omission of facts called for in this application, in any supplement thereto, or in any other company records supplied or completed by me will be sufficient grounds for not employing me or may subject me to discharge in the event that I am hired."

Petitioner also authorized Sprint to procure an investigative consumer report on him. The authorization stated that petitioner understood that this report may contain information regarding his criminal conviction history, driving record history, character, general reputation and personal characteristics from public record sources and from interviews with former employers, references and others.

Sprint offered petitioner a job on October 11, 2002, contingent upon successful completion of the drug and background screens. Petitioner's employment began on October 14, 2002. On November 11, 2002, ChoicePoint Investigation initiated an investigation on behalf of Sprint. The background investigation revealed that petitioner was found guilty on a public morals charge in July 1998 and received a $25 fine and one month court supervision which was satisfactorily terminated in August 1998. Sprint terminated petitioner's employment on November 20, 2002. On November 25, 2002, Sprint notified petitioner that "[i]n evaluating [his] application for employment, [Sprint] obtained the enclosed consumer report from ChoicePoint Investigation Agency" and that "[t]his notice is being provided to [petitioner] because an adverse employment decision may be based, in whole or in part, on this report." On November 26, 2002, Sprint sent petitioner a letter telling him Sprint had decided to no longer employ him.

On November 29, 2002, petitioner filed a charge of discrimination with the Illinois Department of Human Rights. Petitioner alleged that Sprint had fired him based upon a review of his arrest records that did not result in a conviction. Sprint responded that there was a discrepancy between petitioner's employment application and the pre-employment background investigation that was authorized by petitioner. It stated that petitioner "was terminated for failing to reveal on his job application that he was convicted (as the term "conviction" is defined by Sprint's job application) of a misdemeanor." It further stated that "it never, at any time, solicited or received any information from Complainant or any other party regarding Complainant's arrest records, if any." Finally, Sprint stated that the "sole and exclusive reason that it terminated [petitioner] was his failure to disclose a prior conviction in response to a clearly worded question on the job application."

On January 5, 2004, the Department of Human Rights dismissed petitioner's complaint for lack of substantial evidence. In its investigation report the Department stated:

"A finding of lack of substantial evidence is recommended because:

1. Documented evidence indicates that Respondent defined guilty plea as a conviction throughout the application.

2. Documented evidence shows that Complainant indicated on his employment application that he had never pled guilty to a crime.

3. Complainant concedes that he pled guilty to a crime.

4. Documented evidence shows that offers of employment are contingent upon successful completion of background screens.

5. Documented evidence shows that Complainant was discharged because he did not successfully complete Respondent's background screen."

On June 21, 2004, the Chief Legal Counsel for the Illinois Department of Human Rights denied petitioner's Request for Review of the Department's dismissal for lack of substantial evidence. The Chief Legal Counsel concluded in part:

"The investigation revealed that on November 26, 2002, Respondents terminated Complainant's employment for failing to follow instructions on the employment application and disclose a criminal conviction as defined in the employment application. The investigation did not reveal, and Complainant did not provide, any evidence that Respondents had any knowledge that he was arrested or used that information to discharge him. Further, the investigation did not reveal, and Complainant did not provide, any evidence that a similarly situated employee who did not have an arrest record, was not discharged under similar circumstances. Therefore, there is no evidence that Respondent discharged Complainant because of his arrest record."

On July 16, 2004, petitioner appealed.

II. ANALYSIS

The Chief Legal Counsel's order reviewing the dismissal is a final and appealable order. 775 ILCS 5/7-101.1(A) (West 1998). The petitioner then may seek review of the Chief Legal Counsel's order in the appellate court. 775 ILCS 5/8-111(A)(1) (West 1998). The standard of review is whether the Department's Chief Legal Counsel abused her discretion. Anderson v. Chief Legal Counsel, Ill. Dept. of Human Rights, 334 Ill.App.3d 630, 634, 778 N.E.2d 258, 261 (2002).

Section 2-103 of the Act prohibits an employer from inquiring into or using an arrest record as grounds to refuse to hire or discharge someone.

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