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WASHINGTON v. LAKE CTY.

March 12, 1991

EDDIE WASHINGTON, Plaintiff,
v.
LAKE COUNTY, ILLINOIS, LAKE COUNTY SHERIFF'S DEPARTMENT, and LT. HARRY FROSSARD, Individually and as an Agent of LAKE COUNTY, ILLINOIS and of the LAKE COUNTY SHERIFF'S DEPARTMENT, Defendants



The opinion of the court was delivered by: NORGLE

 CHARLES R. NORGLE, UNITED STATES DISTRICT JUDGE

 Before the court is the summary judgment motion of defendants County of Lake (the "County") and Harry Frossard ("Frossard"). For the reasons discussed below, defendants' motion is granted.

 Plaintiff Eddie Washington ("Washington") was employed as a jailer with the Lake County Sheriff's Office from September 12, 1986 to July 13, 1987, when he was discharged. *fn1" Plaintiff, who is black, alleges that during his employment with the Sheriff's Office, he was harassed and discriminated against by Frossard, one of Washington's white superior officers. Washington also claims that his discharge was brought about in large part by disparaging departmental correspondence, generated by defendant Frossard, which became part of Washington's personnel file. He asserts that the true basis for his discharge was racial animosity.

 In his amended complaint, Washington asserts a Title VII claim against Lake County for discriminatory employment practices and a due process and equal protection claim under 42 U.S.C. § 1983 against both Lake County and Frossard, in his individual capacity. Washington seeks reinstatement and back pay pursuant to his Title VII claim, and compensatory and punitive damages pursuant to his § 1983 claim. Finally, Washington seeks compensation for allegedly damaging evaluation reports added by Frossard to his personnel file which he claims have hampered his efforts to obtain new employment.

 In their motion, defendants do not challenge plaintiff's prima facie case, nor do they attempt to articulate a legitimate, nondiscriminatory basis for Washington's discharge. Rather, they have moved for summary judgment on the grounds that Washington is entitled to no relief on his claims. Defendants argue that even assuming, without admitting, that Washington was unlawfully discriminated against and fired, he was never entitled to his job in the first instance and therefore is entitled to no relief. This argument is premised upon defendants' assertion that Washington's employment with the Sheriff's Office was obtained fraudulently because Washington had made material misrepresentations on his employment application form.

 The undisputed facts *fn2" in support of defendants' position establish that Washington falsely stated on his application that he had never been convicted of an offense other than a minor traffic violation. Question number 5 on the "Personnel Data Sheet" portion of Washington's employment application with Lake County asks:

 
Have you ever been convicted of an offense other than a minor traffic violation? (Do not include convictions while a minor and/or convictions sealed by Court order.) If so, please state the nature of the offense(s), date(s), city and state, and disposition. A conviction record is not an automatic bar to employment and the nature, recency, and disposition of an offense will be considered only as it relates to the job for which you are applying. *fn3"

 At the bottom of the last page of Washington's application form is a signature clause which is offset by the word "READ" printed boldly in large print above it, and the word "IMPORTANT," printed vertically in large type and bold print on either side of it. The relevant language in this clause states:

 
I agree that if any misrepresentation has been made by me or the results of such investigations are not satisfactory in the judgment of Lake County, any offer of employment may be withdrawn or my employment terminated immediately without any obligation or liability to me other than for payment, at the rate agreed upon, for services actually rendered if I had been employed.

 In support of their position that Washington made material misrepresentations on his application, defendants have submitted certified copies of two convictions: a 1974 guilty plea to a charge of criminal trespass, for which Washington was sentenced to pay a fine; and a 1981 conviction for third degree assault in St. Louis. In the latter case, Washington was convicted after a three day jury trial on the merits, and received a twenty eight day jail sentence, suspended in favor of a sentence of two years probation.

 The crux of defendants' summary judgment motion is that they never would have hired Washington in the first place had they been aware either that he had these two prior convictions or that he made a material misrepresentation on his application form. Washington, in turn, argues that two material fact issues preclude summary judgment: first, whether his answer to Question 5 on his application constitutes an intentional misrepresentation; and second, whether ...


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