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Montgomery Ward & Co. v. Fair Emp. Prac.






Mr. PRESIDING JUSTICE GOLDBERG delivered the opinion of the court:

This employment dispute brings an unusual set of facts before us involving an employee of Montgomery Ward & Co., Incorporated (plaintiff). The culmination of the situation came when the circuit court affirmed in part and reversed in part a legal determination made by the Fair Employment Practices Commission (Commission). This appeal by Johnnie Monroe (defendant) followed. For a more complete understanding of the actions taken by the Commission and by the trial court, we will summarize the pertinent facts.

Plaintiff operates a large commercial building in Chicago. On October 16, 1969, defendant was employed in the supply room. On the afternoon of June 15, 1972, Duane Miller, employed by plaintiff for 18 years and a supervisor of a department in the building, saw two black men on the second floor walking down an aisle toward a staircase. They were carrying two projectors which Miller recognized as equipment from his department. He asked the men where they had obtained the merchandise and they replied that it came up from the first floor. At that time he was about 4 feet from the men. When he repeated the question, they laughed and ran away. Miller later identified defendant as one of these men. He had never seen defendant before.

Miller and the department manager chased these men without result. Miller notified his own supervisor and a search was instituted. It started at the top floor of the building and systematically covered each floor. Miller encountered the defendant on the fourth floor and identified him as one of the alleged thieves. This was based on the fact that defendant was wearing a pair of dark pants and a light cream colored shirt with a red checkered pattern. Security guards of plaintiff took defendant into custody. Defendant denied his guilt. The guards transferred defendant to the custody of the Chicago Police Department. He was arrested and charged with theft.

On June 16, 1972, defendant came to work and was discharged. Pursuant to company procedure uniformly applied to all terminated employees, a "Termination Interview Check Sheet" was completed and placed in defendant's file. It bore a company code in numerals indicating discharge for theft. An entry was made to indicate that defendant would not be rehired. This was in accordance with plaintiff's employment policy. Plaintiff has no provision for reconsideration of this type of discharge.

In due course, the criminal charges against defendant were brought to trial. On November 3, 1972, he was acquitted. On November 10, 1972, defendant went to plaintiff's personnel office. He told a clerk the circumstances of his discharge and requested reemployment. The clerk informed him that he could not be rehired. The evidence showed that it is plaintiff's uniform policy not to rehire any person terminated for theft. For the past 12 years plaintiff has never reviewed the termination of an employee for theft.

On December 26, 1972, defendant filed a charge of unfair employment practice against plaintiff with the Commission. He alleged that he had been denied reemployment after his acquittal. He had been told that company policy prevented his rehiring; but he believed that he was denied reemployment "because I am Black and had been accused and arrested falsely." The charge also set forth that the entire process of discharge was racially biased in that defendant would not have been terminated if plaintiff had considered the testimony of three black witnesses instead of choosing "to abide by the information given them by a white employee who had mistaken me for another employee who had committed the theft." Defendant prayed reinstatement, back wages, benefits, seniority and cessation of all unfair employment practices.

Considerable testimony was heard by a hearing examiner of the Commission. Duane Miller, a supervisor employed by plaintiff, testified concerning his knowledge of the alleged theft as above summarized. William Browder, employed by plaintiff for 8 1/2 years, saw two black men get some bags from a shelf on the third floor and then rush past him going downstairs. The men were from 1 to 5 feet away from him. He saw them go down the stairs. He entered the elevator and went down to the first floor. There he saw one of the men again. This man, who was not carrying anything, ran toward the basement. The witness had seen defendant often; sometimes twice a day. He was absolutely certain that defendant was not one of these two persons. About 1 minute later, he saw the supervisor, Duane Miller, and pointed out to him the direction in which one of the men had gone. When this witness learned that defendant had been charged with theft, he went to the supervisor of his own department and told him that the wrong man had been accused of stealing.

Harold Nurse, plaintiff's employee for 4 years, was working on the first floor of the building on the date in question. He told his supervisor that he had seen an apparently suspicious person walking around the floor. The witness had known defendant for about a year and a half. He was certain that defendant was not the suspicious person he had previously seen. He expressed this opinion to his supervisor, Pervis Balthazar, shortly after defendant had been charged with theft.

Jackson Turner, plaintiff's employee for about 15 years, worked as an elevator operator. He saw a man that he knew as an employee of plaintiff running down from the first floor. He took his elevator down to the first floor. He saw the man come down and run away. He then saw the supervisor, Pervis Balthazar, who told him to continue watching for the man. The man he saw was not defendant. Later the witness told "protection", apparently the security officers, that the man he saw was not defendant. The next day he repeated this in the protection office in the presence of William Browder, Harold Nurse and Pervis Balthazar.

Richard Kempf, an employee of plaintiff for some 3 years, worked in the same general area as defendant. On the day in question he and defendant were working in the same department from about 2:20 until 3:40 p.m. He testified that if defendant had been a short order filler that day, it would have been impossible for him to have seen defendant all the time. Defendant first testified that he worked as a packer on the date in question but later testified that on the afternoon that day between 3 and 4 o'clock he was filling short orders.

The record shows that the supervisor, Duane Miller, is Caucasian. Defendant and all of the four witnesses are persons of African ancestry.

The examiner filed a recommended order and decision on September 3, 1974. This order stated the facts and the contentions of the parties. The order stated that the crucial issue was the propriety of plaintiff's policy regarding the rehiring of terminated employees. The examiner concluded that the conduct of plaintiff in denying defendant reinstatement, because of the use of documentation pertaining to a prior arrest and in spite of his prior acquittal, was a violation of section 3 of the Fair Employment Practices Act. (Ill. Rev. Stat. 1975, ch. 48, par. 853.) The examiner held that the good intentions of an employer are not as important as the effect of their employment rules and that the refusal of the plaintiff to rehire defendant after his acquittal was unlawfully predicated upon the record and fact of his arrest.

The examiner also held that it was the duty of the plaintiff to reevaluate the original termination after it obtained knowledge of defendant's acquittal and that this conduct of plaintiff left a permanent taint on defendant's record. The examiner did not specifically find that the original discharge of defendant was discriminatory and a violation of law. However, the examiner did find that the original charges were made without adequate supporting evidence and that these charges were used to deny defendant employment even though they had been tested by the judicial process. In this regard he pointed out that plaintiff found defendant guilty of theft within "one hour after a cursory investigation, and sentenced him to unemployment and the poverty and humiliation which accompanies it."

The examiner accordingly recommended that defendant be reimbursed for wages lost since November 10, 1972, the date of the acquittal. Defendant was denied reimbursement for the preceding period of June 16, 1972 through November 10, 1972, "because the Hearing Examiner finds that this period of time is not appropriately at issue." The examiner made no provision for reduction of the amount of this award by defendant's actual earnings during the period.

On plaintiff's request the Commission granted review and oral argument. On March 24, 1975, the Commission filed a complete order and decision. The decision summarized the pertinent evidence commencing with the original termination and the attempt of defendant to be rehired. In its decision, the Commission pointed out that the only evidence linking defendant to the alleged theft was his identification by Duane Miller. Plaintiff was aware that other employees had seen Miller pursuing one or two men immediately following the theft and these additional witnesses had told plaintiff's officials that defendant was not one of those men. In addition, defendant had continuously protested his innocence.

The Commission pointed out that plaintiff had failed to explain why it had ignored this evidence and chose instead to believe Duane Miller who had never seen or known defendant before the incident. However, the Commission concluded, as a matter of law, that defendant was barred from raising the question of a discriminatory discharge because he failed to file his charge with the Commission within the limitation period of 180 days following the alleged discriminatory act as required by law. (Ill. Rev. Stat. 1975, ch. 48, par. 858.) The Commission concluded that it "need not decide whether Complainant [defendant] was discriminated against because of his race when he was terminated."

However, the Commission went on to state agreement with the ruling of the hearing examiner that the subsequent refusal of plaintiff to accept defendant's application for reemployment was an unfair employment practice. The Commission held that the failure of plaintiff to reevaluate defendant's employment record in the light of his acquittal "had the effect of putting a permanent taint" on defendant's employment record. The Commission compared this to a record of an arrest which plaintiff may have learned from another source. The Commission pointed out that this conduct by plaintiff precluded defendant from finding employment because of his discharge for theft "which implies actual guilt, even though the evidence overwhelmingly indicates that he is innocent." In the absence of evidence of similar treatment of Caucasian employees, the Commission declined to surmise that such employees would have received the same unfair treatment. The Commission found no legitimate reason to support the termination of defendant for theft. The Commission therefore affirmed the result reached by the hearing examiner except that the Commission required that actual earnings of defendant be credited against the amount of the back pay order.

Plaintiff sought administrative review. (Ill. Rev. Stat. 1975, ch. 110, par. 274.) After a full hearing, the trial court entered an order ...

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