The opinion of the court was delivered by: BUCKLO
MEMORANDUM OPINION AND ORDER
Xadrian McCraven filed a six count complaint against the defendants arising from the denial of his application to become a police officer with the Chicago Police Department ("CPD"). He alleges race discrimination in violation of Title VII, 42 U.S.C. § 2000e et seq., civil rights violations under 42 U.S.C. §§ 1981, 1983, and 1985(3), and state law claims for wrongful use of expunged arrest records, 775 ILCS 5/2-103, and for fraud, deceit, and misrepresentation. The defendants move to dismiss all counts of Mr. McCraven's complaint. For the reasons set forth below, the defendants' motion is granted in part and denied in part.
According to the complaint, the CPD's hiring process consists of several steps and the disqualification from any one step results in the removal of a candidate from further consideration for employment. The first stage is a written exam. If an applicant passes, the CPD administers psychological assessments, performs drug screenings, and conducts a background investigation. Mr. McCraven alleges that all the individual defendants were responsible for establishing or implementing the recruitment, examination, and hiring procedures for the CPD.
Mr. McCraven states that he is African American, has a college degree, and possesses all the necessary prerequisites to become a police officer. He claims that he initially applied for a job as a police officer prior to 1991 and was specifically informed that his arrest record was the reason he was ineligible for the position. In June 1991, he states he submitted another application to the CPD (the "1991 application"). During that process, he was allegedly notified that he failed the psychological examination and his candidacy was terminated. In 1992, he says he was notified that he could retake the psychological examination as part of a settlement regarding bias within the examination and that he took the examination again and passed in early 1993. Also in 1992, Mr. McCraven alleges that he filed a motion to expunge his arrest records and that an order expunging the records was entered on December 30, 1992.
In October 1993, Mr. McCraven says he again applied to become a police officer with the CPD (the "1993 application") and took the written examination later that year. The CPD then allegedly assigned Detective Johnson to conduct the background investigation on his 1991 application. To prepare the background investigation report, Detective Johnson allegedly obtained a copy of Mr. McCraven's "rap sheet" with the expungement order attached. Mr. McCraven claims that Detective Johnson contacted different units within the CPD and questioned specific officers regarding his expunged arrests and reviewed individual case reports from the units regarding those arrests. In the background investigation report dated September 15, 1994, Mr. McCraven states that Detective Johnson included information on his expunged arrests. In October, 1994, Detective Johnson allegedly told Mr. McCraven that he would not recommend Mr. McCraven for a position because of his arrest record. Mr. McCraven contends that he told Detective Johnson that his arrests were expunged and that he continued with the application process despite Detective Johnson's statements. Nevertheless, Detective Johnson allegedly continued to investigate the expunged arrests and added two addendums to the investigation report on November 1 and 28, 1994, which included additional information on those arrests.
Mr. McCraven states that on April 30, 1995, the CPD formally assigned Detective Rodgers to conduct the background investigation on Mr. McCraven's 1993 application. Detective Rodgers allegedly considered Mr. McCraven's expunged arrest record and other arrest information and prepared a preliminary background report dated May 23, 1995. Soon thereafter, Mr. McCraven claims that the investigation was reassigned to Detective Johnson and that Detective Johnson further investigated his expunged arrests and added another addendum dated December 13, 1995 to the investigation report which included information on those arrests. Detective Johnson then allegedly told Mr. McCraven that he would not be hired based on his 1993 application because of his arrest record.
Mr. Sadler, Mr. Harris, and Mr. Carr allegedly encouraged and ratified the detectives' use of expunged arrest records and other arrest information during the background investigation. On December 19, 1995, Mr. McCraven states that Mr. Harris recommended to Mr. Carr that Mr. McCraven be removed from the eligibility list due to the background investigation. On March 18, 1996, Mr. McCraven says that Mr. Carr informed him that he was disqualified for a police position.
Mr. McCraven filed a complaint with the Equal Employment Opportunity Commission ("EEOC"). The EEOC issued a right to sue letter on September 30, 1997. Mr. McCraven filed this action on December 22, 1997.
As an initial matter, the CPD is not a proper defendant to this action. As a subdivision of the City of Chicago (the "City"), the CPD has no separate independent legal existence apart from the City. Chan v. City of Chicago, 777 F. Supp. 1437, 1442 (N.D. Ill. 1991). The City is liable for any discriminatory or other unlawful acts committed by the CPD. Therefore, I will strike the CPD as a defendant and substitute the City for the CPD, the City being the proper defendant and a named defendant in this suit.
A. Title VII and Section 1981
Mr. McCraven claims that the CPD discriminated against him on the basis of his race in violation of Title VII and § 1981 when it refused to hire him as a police officer because of his expunged arrest records and related information. The City contends that Mr. McCraven has failed to state claims for disparate treatment on the basis of race under both Title VII and § 1981. See Bratton v. Roadway Package Sys., Inc., 77 F.3d 168, 176 (7th Cir. 1996) (stating that § 1981 claims should be analyzed in the same manner as claims brought pursuant to Title VII). It argues that under the McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973) burden-shifting method of proof, Mr. McCraven has not established his prima facie case because he failed to allege that the City treated similarly situated whites more favorably.
Mr. McCraven, however, is not required to allege in his complaint that the City treated similarly situated whites more favorably in a failure to hire case. Rather, a plaintiff must allege that (1) he is a member of a protected class, (2) that he applied and was qualified for a position for which the employer was seeking applicants, (3) that despite his qualifications, he was not hired, and (4) that after his rejection, the position remained open and the employer continued to seek applications from persons with his qualifications. Ost v. West Suburban Travelers Limousine, Inc., 88 F.3d 435, 440 (7th Cir. 1996). Mr. McCraven stated that he was African American, that he applied for and was qualified for the available position of police officer at the CPD, that despite his qualifications he was not hired, and that the position remained open and the CPD continued to seek ...