Appeal from the United States District Court for the Southern District of Illinois, East St. Louis Division. No. 82 C 3023 -- William G. Juergens, Judge.
Cudahy and Coffey, Circuit Judges, and Grant, Senior District Judge.*fn*
Plaintiff, Carl L. Jones, Sr., brought this action under 42 U.S.C.§ 1983 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging employment discrimination. Defendants, the City of Alton (the "City") and the Civil Service Commission of the City of Alton (the "Commission"), moved for dismissal. The district court entered an order dismissing the action on res judicata grounds.*fn1 Plaintiff appeals the order dismissing his action. We reverse.
On December 16, 1977, plaintiff, then a member of the Alton Police Department, while off duty, was observed by two security guards inside a department store in Alton, Illinois, as he placed a videotape cassette in his trousers. When the guards apprehended him in the store parking lot plaintiff admitted removing the tape from the store without paying for it, but claimed he did so inadvertently. On December 29, 1977, the Alton Police Chief, one Rudy C. Sowders, Jr., filed a Complaint for Discharge of the plaintiff with defendant Civil Service Commission of the City of Alton. The Complaint alleged that plaintiff's conduct at the store violated Rules 300.02, 300.04 and 300.24 of the Rules and Regulations of the Alton Police Department*fn2 and Rules 13.1-1(a), (h), (1) and (m) of the Rules of the Civil Service Commission.*fn3
The Commission held a hearing on the Complaint on the second and third of February, 1978. During the hearing, plaintiff, who is black, attempted to introduce through questions directed to Chief Sowders evidence tending to show that white police officers who had been involved in activities as bad as or worse than plaintiff's off-duty retail theft had not been recommended for discharge. For a reason not specified by the Commission, plaintiff was not allowed to present his evidence. He was allowed to make an offer of proof. At the conclusion of the hearing the Commission found that plaintiff had violated the Civil Service Rules as alleged and ordered him discharged effective December 27, 1977. The Civil Service order is a page and a half long. It makes no mention of the initial question or objection, the evidentiary ruling or the offer of proof. No transcript of the hearing is included in the record we have before us.
Plaintiff filed a complaint for administrative review in the Circuit Court of Madison County, Illinois, which affirmed the decision of the Commission. Jones v. Civil Service Commission, No. 78 MR 95 (July 18, 1978). In its opinion the circuit court stated that the court on administrative review must act as a reviewing court and not as a finder of fact, may consider only matters brought before the Commission at its hearing and, so long as the procedures required by law were followed by the Commission, is limited to deciding whether the Commission decision was against the manifest weight of the evidence. The court concluded that the required procedures had been followed, that the Commission's decision was not arbitrary or against the manifest weight of the evidence and that the discharge was proper. Buried in the middle of the opinion is a single paragraph which, in retrospect, appears to be an allusion to plaintiff's racial discrimination claim. In its entirety, the paragraph states:
Plaintiff contends that the Commission erred when it sustained an objection to a question pro-pounded by plaintiff's attorney to Police Chief Sowders: "Now throughout your tenure as either an employee of the Alton Police Department or as Chief of Police, are you familiar with any Officers ever charged with any crimes?" (R.164). In my opinion, this evidence was clearly irrelevant.
Circuit Court Opinion at 5, Supp. App. at 16.
Plaintiff then appealed to the Appellate Court of Illinois, Fifth District. In his brief on appeal, plaintiff primarily argued the race discrimination issue. Supp. App. at 22. According to the brief, he had filed a motion for reconsideration before the Circuit Court, arguing that the evidentiary ruling on the attempted comparison with other police officers was incorrect. Supp. App. at 28-29. The brief explains that the motion for reconsideration was denied in an opinion (not in the record) holding that plaintiff was too late in citing Commission rules that require fairness in employment decisions (the theory being that he should have raised this issue before the Commission), and that the evidence sought to be admitted was irrelevant in any case. In his brief, plaintiff argued that the Commission's fairness rules were constructively before it during its own hearing and, whether or not the rules were properly before the Commission, they could be judicially noticed on administrative review. He further argued that the attempted line of inquiry was highly relevant under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), and McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 49 L. Ed. 2d 493, 96 S. Ct. 2574 (1976).*fn4
The Illinois Appellate Court affirmed the decision of the Circuit Court. Jones v. Civil Service Commission, 80 Ill. App. 3d 74, 399 N.E.2d 256, 35 Ill. Dec. 422 (5th Dist. 1979). The Appellate court opinion clearly holds that there was sufficient evidence in the record supporting the finding of retail theft, and that retail theft was sufficient cause for discharge. 80 Ill. App. 3d at 76, 399 N.E.2d at 258. However, the opinion is not at all clear in its discussions of the discrimination issue. There are two separate passages in the opinion which touch on this question.
In the introductory passages, we learn that "during the hearing Jones attempted to establish that he, as a black police officer, was receiving disparate treatment." 80 Ill. App. 3d at 75, 399 N.E.2d at 257. We also learn that after Chief Sowders' objection to the question about other officers' offenses was sustained on grounds of relevance and materiality, plaintiff made an offer of proof which indicated that one white police officer received a thirty-day suspension after being accused of stealing 15 gallons of gasoline, and that a white officer charged with removing police records was suspended for twenty days. Id. The appellate court noted that the circuit court found this proffered evidence to be "clearly irrelevant," and went on to state that "the first issue on appeal is whether the Civil Service Commission properly refused to admit the evidence to demonstrate discriminatory treatment in plaintiff's case." Id. In "deciding" this issue, however, the court noted only that
plaintiff, in his offer of proof, did not indicate that he was in a position to produce evidence establishing that white police officers received more lenient treatment in the face of established guilt. Rather, plaintiff offered an unsubstantiated conclusion that criminal conduct on the part of white police ...