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SIXTH DIVISION
October 12, 2001

Respondent Norman Lasko filed three charges of discriminationagainst his employer, petitioner Chicago Housing Authority (CHA),with the Equal Employment Opportunity Commission (EEOC) and respondent Illinois Department of Human Rights (IDHR). After IDHR foundsubstantial evidence of discrimination, respondent Illinois HumanRights Commission (Commission) filed a complaint against CHA. Uponreview of the charges, an administrative law judge (ALJ) found thatCHA had discharged Lasko in a discriminatory manner in retaliationfor Lasko having filed charges with the EEOC and IDHR. TheCommission adopted the ALJ's decision.

CHA now appeals, alleging that the ALJ improperly analyzed thiscase pursuant to a mixed-motive theory of discharge and erroneouslyshifted the burden of proof to CHA when in fact Lasko had never pledfor relief on this basis. CHA contends that this case should havebeen reviewed pursuant to the standards accompanying a pretextualtheory of discharge, and because Lasko has not presented anycredible evidence of a pretext, the Commission's decision should bereversed and Lasko's action dismissed. Alternatively, CHA asksthat we remand the cause for additional proceedings. Conversely,Lasko argues that the ALJ's mixed-motive analy-sis was proper andthat CHA did not present any proof that it would have dischargedLasko for nonretaliatory reasons. The Commission and IDHR haveadopted Lasko's appellate brief and arguments. For the followingreasons, we agree with Lasko and affirm the Commission's order anddecision.

The following facts are largely taken from the findings of factcontained in the ALJ's decision.

Lasko worked as a senior attorney for CHA's legal department,beginning in 1975. He presented evidence that from 1975 to August1987, some 14 performance evaluations rated his work as satisfactory to good to even excellent and he was recommended for salaryincreases. In February 1987, four female attorneys at CHA filedcharges of sexual discrimination with the EEOC. Soon after, CHAgeneral counsel James Thomas sent a memo to the legal departmentstaff asking that employees not communicate any information to thesefour female attorneys about CHA employment or labor matters, as ameans to protect the interests of CHA and avoid any ethical/legalproblems. Lasko believed that this was an implicit loyalty warningfrom CHA to its employees.

In early February 1988, Lasko was named in interrogatories asa witness on behalf of the four female attorneys suing CHA. Aboutthis time, new general counsel Wilbert Allen began giving Laskoextra duties which increased his caseload. At the end of February1988, the four female attorneys were suspended and eventuallydischarged from CHA.

In March 1988, Allen sent Lasko a memo reprimanding him forpoor research work. On March 30, 1988, Richard Anderson, Lasko'sprior supervisor, wrote a memo to Loretta Eadie-Daniels, Lasko'scurrent supervisor, claiming that Lasko was at fault for not filinga timely brief in a CHA case. When Eadie-Daniels questioned Laskoabout Anderson's contentions, Lasko pointed out that Sue Ann Rosen,one of the four female attorneys, was in charge of that case untilher discharge, at which time it was to be handled by Anderson andanother attorney, Jacqueline Cox. However, Eadie-Daniels determined that Lasko was at fault. In May 1988, she made severalefforts to meet with Lasko to discuss his work performance,including calling him at home while he was on sick leave. On May24, 1988, she wrote a memo to Allen recommending Lasko's dischargefor insubordination because she felt Lasko deliberately avoided twoscheduled meetings with her for May 19 and May 23.

Lasko returned to work on June 13, 1988. At some point, heasked Dorothy Snow, a CHA office manager and Allen's administrativeassistant, for a telephone amplifier to accommodate his hearinghandicap. Neither Snow nor CHA ever provided Lasko with an amplifier. Among other reasons, Lasko was told that if he received one,CHA would have to provide one for every worker. On June 17, 1988,Eadie-Daniels again asked Allen to discharge Lasko for insubordination, lack of professional attitude and a consistent pattern offailing to complete his work assignments. On June 21, 1988, Laskoasked Eadie-Daniels if he could meet with her to resolve theseproblems. Also on this date, Lasko filed his first charge againstCHA with the EEOC, alleging that CHA had begun retaliating againsthim for supporting the four discharged female attorneys.

Lasko testified before the ALJ that on June 22, 1988, while hewas talking to his secretary, Barbara Klotz, Allen said to him: "'You filed an EEOC charge. Something ought to be done.' "

Lasko again requested an accommodation from CHA for his hearinghandicap. On July 8, 1988, Lasko filed his second charge, this timewith IDHR, alleging that, in addition to threatening dismissalbecause of his assistance to the four female attorneys, CHA wasdiscriminating against him because of his physical handicap. Thischarge also included a claim of discrimination based on a mentalhandicap (stress-related bipolar disorder), but Lasko latervoluntarily dismissed this contention.

Several memos were then exchanged among Lasko, Eadie-Daniels,Allen and other CHA superiors regarding further alleged incidents,including Lasko's confronting Snow in an angry voice and readingincoming CHA mail without authority. On July 28, 1988, Allen gaveLasko a final disciplinary notice, citing five reasons fordischarge: (1) insubordination towards supervisor Eadie-Daniels,(2) disruptive behavior for yelling at Snow, (3) reviewing incomingCHA mail without authority, (4) a continued pattern of unsatisfactory performance and failing to complete work assignments, and (5)use of racially offensive language. Allen clarified that the firstthree reasons were submitted by Eadie-Daniels while he included thelast two. The fifth reason, Allen testified, arose from an incident when he, Lasko and several others were discussing the hiring ofa new CHA general counsel. Allen (African-American) testified thatduring this discussion, Lasko (Caucasian) said to him and Anderson(African-American): " ' The next General Counsel is probably goingto be another nigger from City Hall.' " After learning of Allen'srecommendation to terminate him, Lasko filed a grievance with CHAalleging that he was not given an opportunity to qualify for eightpositions in the legal department.

On July 29, 1988, Allen sent the disciplinary notice to, amongothers, his supervisor and director of human resources, DonaldPettis, who assigned it to Edward Gale, a CHA labor relationsrepresentative. On August 8, 1988, Lasko filed another grievancewith CHA challenging the notice. Gale investigated Allen's requestto terminate Lasko and on September 7, 1988, recommended approval ofthe termination, finding that "Lasko's behavior can only bedescribed as unprofessional, insubordinate, disruptive and unsatisfactory from a performance standpoint." Pettis agreed, and onSeptember 14, 1988, CHA notified Lasko that he was being terminatedfor "his poor work performance, insubordination, disruptive behavior, use of racially offensive language and reviewing confidentialmail without authorization." On September 19, 1988, Lasko filed histhird charge against CHA, alleging dismissal in retaliation forhaving filed the prior charges with the EEOC and IDHR.

As the cause proceeded through discovery, CHA sought theproduction of Lasko's mental health records. In February 1991, theALJ entered an order preventing CHA from obtaining these recordsbecause Lasko's mental health was not at issue. In April 1991, CHAagain tried to obtain these records by subpoenaing them from Lasko'sphysician. Again, the ALJ held that CHA could not do this andgranted Lasko's motion in limine to preclude the introduction andreference to any medical matters during the cause. However, at thepublic hearing on Lasko's charges in early 1997, CHA tried to cross-examine Lasko regarding mental stress. Upon Lasko'sobjection, theALJ declared that "this, if it is relevant, *** would be moreappropriate in [CHA's] defense, *** not at this point in time."

At the conclusion of the hearing, the ALJ determined that thepreponderance of the evidence supported one of Lasko's two retaliation charges, but not the other retaliation charge or the physicalhandicap discrimination charge.

First, regarding Lasko's charge of discrimination based on hisphysical handicap (hearing loss), the ALJ found that Lasko "presented a prima facie case of physical handicap discrimination," but thatCHA "articulated a legitimate, non-discriminatory reason for itstreatment of" Lasko regarding his claimed handicap, and that Lasko"failed to prove by a preponderance of the evidence" that CHA's"articulated reason *** was unworthy of credence." Therefore, theALJ recommended that the Commission rule for CHA and against Laskoon the physical handicap discrimination claim.

Though not entirely clear from the record, it seems that theALJ next found that Lasko, in a similar manner, failed to supporthis first allegation of retaliation, that is, that CHA was harassing him because he assisted the four discharged female attorneys intheir sexual discrimination suit.

However, spending the majority of its time addressing Lasko'ssecond allegation of retaliatory discharge (in response to hisfiling of prior charges with the EEOC and IDHR), the ALJ recommemded that the Commission rule for Lasko and against CHA. The ALJfound that Lasko "presented direct evidence of unlawful discrimination (retaliation)," because his "filing of charges with EEOC and[IDHR] was a significant factor in the decision to discharge him,thereby establishing 'unlawful discrimination.' " The ALJ furtherconcluded that CHA had "failed to prove by a preponderance of theevidence" that Lasko "would have been discharged if the prohibitedfactor [Lasko's filing of charges] had not been considered."

In the discussion of his findings, the ALJ stated that Laskopresented direct evidence raising an inference of retaliation. TheALJ did not believe Allen's denial of his statement to Lasko "[y]oufiled an EEOC complaint. Something ought to be done," nor Allen'sversion of the incident in which he claimed Lasko used a racialepithet. Instead, the ALJ chose to believe Lasko in both instances. The ALJ found that while CHA articulated legitimate, non-discriminatory reasons for termination, Lasko established that someof these reasons were pretextual and discriminatory. The ALJ especially focused on Allen, finding that he " 'loaded up' " the finaldisciplinary notice by adding two reasons to Eadie-Daniels' recommendations and that Allen waited to terminate Lasko until Lasko hadfiled charges with the EEOC and IDHR. This behavior was indicativeof Allen's "retaliatory mindset" and "retaliatory animus."

Holding that because both discriminatory and nondiscriminatoryreasons existed for Lasko's discharge, the ALJ declared that hisanalysis of this part of the cause was to proceed "under a mixed[-]motive case," with CHA bearing the burden of proving that it stillwould have terminated Lasko had it not considered "the prohibitedfactor." Because the ALJ held that CHA did not meet this burden,CHA was liable for its retaliatory discharge of Lasko and owed himlost wages, deferred compensation, pension benefits and other feesand costs. On October 26, 1999, the Commission adopted the ALJ'sdecision.

CHA now appeals. Most primarily, it contends that Illinois lawdoes not recognize the mixed-motive theory of recovery inretaliation claims which shifts the burden of proof to the employer. Even if Illinois does so recognize this theory, CHA believes thatthe ALJ should not have shifted the burden of proof to it becauseLasko initially had the burden to plead this theory in hiscomplaint. Since Lasko did not plead this theory, CHA claims it didnot have notice that it should defend under it and, thus, theCommission could not render a decision based on it nor could Laskorecover under it. Finally, CHA also contends that the ALJ erred byrefusing to allow it to discover Lasko's mental health records andto cross-examine on the basis of his mental impairment (stress-related bipolar disorder).

Initially, both parties to this appeal grapple with theappropriate standard of review. For purpose of clarity, we shouldbegin our discussion with this threshold matter.

This cause was brought under the Illinois Human Rights Act (775ILCS 5/1-101 et seq., (West 1998)) which provides that we must sustainthe Commission's final findings of fact unless we determine them tobe contrary to the manifest weight of the evidence. Zaderaka v.Illinois Human Rights Comm'n, 131 Ill. 2d 172, 180 (1989). Inmaking this determination, we must remember that the findings andconclusions of the Commission on all questions of fact are presumedprima facie true and correct and merit deference. Zaderaka, 131 Ill.2d at 180; Illinois J. Livingston Co. v. Human Rights Comm'n, 302Ill. App. 3d 141, 151 (1998). We, as a reviewing court, may notinterfere with the Commission's discretionary authority Board ofEducation of Schaumburg Community Consolidated School District No.54 v. Illinois Educational Labor Relations Board, 247 Ill. App. 3d439, 453-54 (1993). Therefore, we may not substitute our judgmentfor that of the Commission, nor may we reweigh any of the evidencepresented at the hearing, resolve any factual inconsistency orsettle any issue of credibility. Zaderaka, 131 Ill. 2d at 180;Kenall Manufacturing Co. v. Human Rights Comm'n, 152 Ill. App. 3d695, 703 (1987); see Board of Education, 247 Ill. App. 3d at 454(reviewing court's "sole function is to ascertain whether thefindings of the [Commission] are contrary to the manifest weight ofthe evidence"). While its conclusions of law do not necessarilybind us, we cannot reverse the Commission's decision simply becausethe opposite conclusion is reasonable or because we might have ruleddifferently. Board of Education, 247 Ill. App. 3d at 454; see Robbins v. Board of Trustees of the Carbondale Police Pension Fund,177 Ill. 2d 533, 538 (1997). Instead, in order to find that theCommission's decision is truly contrary to the manifest weight ofthe evidence, we must conclude, "after viewing the evidence in thelight most favorable to the [Commission]," that "no rational trierof fact could have agreed with the [Commission]'s decision." Boardof Education, 247 Ill. App. 3d at 454 (Commission's decision isagainst manifest weight only when opposite conclusion is clearlyevident from record); see also Rodriguez v. Bagnola, 297 Ill. App.3d 906, 915 (1998), quoting Sheehan v. Board of Fire & PoliceCommissioners of the City of Des Plaines, 158 Ill. App. 3d 275, 287(1987) (Commission's decision is against manifest weight only when" 'all reasonable and unbiased persons, acting within the limitsprescribed by the law and drawing all inferences in support of thefinding, would agree that the finding is erroneous and that theopposite conclusion is clearly evident' ").

The first issue CHA presents to this court is whether, pursuantto the Illinois Human Rights Act, Illinois recognizes the mixed-motive theory of discharge in retaliatory discrimination cases, atheory which shifts the burden of proof to the employer. Theresolution of this issue is foremost to the instant case, for, asCHA argues, if Illinois does not recognize this theory, the ALJ usedprohibited law in making his decision and erroneously shifted theburden to CHA, the employer. If so, we must reverse theCommission's decision outright without considering other issues.

However, contrary to CHA's contentions, ample law, both federaland state, clearly indicates that Illinois does recognize the mixed-motive theory. Moreover, shifting the burden of proof to theemployer, as the ALJ did in the instant case, was not only properbut one of this theory's most unique tenants.

Though unusual, we begin with a review of the mixed-motivetheory under federal law, as both parties to this cause rely on suchcases for their arguments.

We analyze employment discrimination causes brought under theIllinois Human Rights Act, as is the instant one, according to the"framework set forth in United States Supreme Court decisionsaddressing claims under Title VII of the Civil Rights Act of 1964." Lalvani v. Illinois Human Rights Comm'n, No. 1-99-3283, slip op. at26 (July 31, 2001) (our Supreme Court, in Zaderaka, 131 Ill. 2d at178, adopted the Supreme Court's method of analysis); Livingston,302 Ill. App. 3d at 152. The principal case laying down thisframework is Price Waterhouse v. Hopkins, 490 U.S. 228, 260-61, 104L. Ed. 2d 268, 295, 109 S. Ct. 1775, 1796 (1989) (O'Connor, J.,concurring).⁽¹⁾ Price Waterhouse originally was a Title VII action,with the plaintiff-employee offering specific evidence that genderanimus was a motivating, and forbidden, reason in the defendant-employer's decision to terminate her employment. ⁽²⁾

It was in this case that the Court recognized two separate andentirely different methods available to analyze retaliatorydischarge cases. The more common method is the three-part pretextanalysis as established in McDonnell Douglas Corp. v. Green, 411U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). Under thisanalysis the plaintiff-employee must first establish a prima faciecase, a modest burden since he may do so using indirect evidence. McDonnell Douglas, 411 U.S. at 802, 36 L. Ed. 2d at 677, 93 S. Ct.at 1824. Second, the burden of production, but not of persuasion,shifts to the defendant-employer to articulate, not prove, alegitimate, nondiscriminatory reason for discharge. McDonnellDouglas, 411 U.S. at 802, 36 L. Ed. 2d at 678, 93 S. Ct. at 1824. If the defendant succeeds, the plaintiff must then show that thedefendant's reason was merely a pretext or sham. McDonnell Douglas,411 U.S. at 804, 36 L. Ed. 2d at 679, 93 S. Ct. at 1825. To thisend, the plaintiff retains the ultimate burden of persuasion at alltimes under the pretext method. Fernandes v. Costa BrothersMasonry, Inc., 199 F.3d 572, 581 (1st Cir. 1999).

The Court recognized an equally effective method, called themixed-motive theory, which a plaintiff may use in trying to convince the trier of fact that his employer used an impermissiblecriterion in discharging him. Under this two-part analysis, theplaintiff must first show, through direct proof, that the illegitimate factor had a motivating or substantial role in the employmentdecision. Price Waterhouse, 490 U.S. at 244, 104 L. Ed. 2d at 284,109 S. Ct. at 1787. The plaintiff who accomplishes this will prevail, unless his employer can prove that it would have reached thesame decision (i.e., still would have fired the plaintiff) had it notconsidered the impermissible factor. Price Waterhouse, 490 U.S. at244-45, 252, 104 L. Ed. 2d at 284, 289, 109 S. Ct. at 1787-88, 1792(legitimate reason "was present" at time of making decision and,"standing alone, would have induced [employer] to make the samedecision").

The mixed-motive method differs from the pretext analysis inseveral respects. Initially, the mixed-motive method can be moredifficult for the plaintiff to use. Fernandes, 199 F.3d at 580(mixed-motive method is restricted to cases where the employee "candemonstrate with a high degree of assurance" that both legitimateand illegitimate reasons were involved); Tyler, 958 F.2d at 1180-81(burden on the plaintiff is higher in mixed-method approach thanpretext approach). Employment discrimination can oftentimes exertitself in subtle ways. Fernandes, 199 F.3d at 580. Yet to use themixed-motive method, the plaintiff must show " 'direct evidence thatdecisionmakers placed substantial negative reliance on anillegitimate criterion in reaching their decision.' " Fernandes,199 F.3d at 580, quoting Price Waterhouse, 490 U.S. at 277, 104 L.Ed. 2d at 305, 109 S. Ct. at 1805 (the availability of the mixed-motive analysis depends on quality of the plaintiff's evidence).

However, if the plaintiff can present this "more focused proofof discrimination," his cause becomes easier, as he sheds the burdenhe would otherwise retain under the pretext approach. Tyler, 958F.2d at 1185-86. And this is why the approach used has an importanteffect: in the mixed-motive analysis, the burden of persuasioncompletely shifts away from the plaintiff and to the employer toprove it still would have fired the plaintiff absent considerationof the impermissible motive. Thomas v. National Football LeaguePlayers Ass'n, 131 F.3d 198, 203 (D.C. Cir. 1997) (this is both ashifting of the ultimate burden of persuasion and the employer'saffirmative defense). Moreover, whereas there is only either lawfulor unlawful motivation for discharge in pretext cases, there can beboth types in mixed-motive cases. Ostrowski v. Atlantic MutualInsurance Cos., 968 F.2d 171, 185 (1992). There-fore, the plaintiffis not obligated to show that a legitimate reason was the truereason for discharge or that the employer used a pretext. Ostrowski, 968 F.2d at 185. All he must show is that the employerconsidered some unlawful motive in making its decision.

Illinois state courts, and most critically our very bench, haveclearly and consistently recognized what the federal courts have: that the mixed-motive method of analyzing and deciding adverseemployment claims is alive and well. Lalvani, slip op. at 26-27(the "burden of proof is different if the plaintiff proceeds underthe direct-evidence approach"); Livingston, 302 Ill. App. 3d at 152(recognizing two ways an employee may prove discrimination: throughpresenting direct or indirect evidence); Kenall, 152 Ill. App. 3d at701 (same); Southern Illinois Clinic, Ltd. v. Human Rights Comm'n,274 Ill. App. 3d 840, 847 (1995) (same). We have chosen to callthis method by an alternative name at times--the dual-motive theory--but its tenents are still the same. City of Burbank v. IllinoisState Labor Relations Board, 128 Ill. 2d. 335, 347 (1989); Board ofEducation, 247 Ill. App. 3d at 460. And as mentioned above, we toohave noted that while the pretext method is more common, the mixed-motive method is no less viable. Southern Illinois Clinic, 274 Ill.App. 3d at 847.

Just as in federal law, we have defined mixed-motive cases asthose where the employer relies on both legitimate and illegitimatereasons for the employee's discharge. City of Burbank, 128 Ill. 2dat 346-47 (case where the employer advances and relied uponlegitimate reasons for discharge is analyzed under mixed-motivetheory). The plaintiff-employee must present direct evidence thatthe defendant-employer considered an illegitimate factor, amongothers, in deciding to fire him. Board of Education, 247 Ill. App.3d at 460-61 (the employee's evidence must go beyond inference ofdiscrimination to establish "clear nexus" between impermissiblefactor and discharge). Once the employee establishes this, theburden of proof then shifts to the employer to show it would stillhave fired the employee even if it had not considered the illegitimate factor. City of Burbank, 128 Ill. 2d at 346-47; Board ofEducation, 247 Ill. App. 3d at 461.

Our supreme court has set the foundation for one very importantconcept in the mixed-motive analysis. Again, the employ-er'smotivation for firing the employee is the central issue in thesecases. Motive is a question of fact. City of Burbank, 128 Ill. 2dat 345. Since making final, factual determinations is for the ALJand the Commission, our court has stated that we must accept theirfindings of an employer's discriminatory motivation as long as thosefindings are supported by substantial evidence in the record. Cityof Burbank, 128 Ill. 2d at 345.

One particular case that we should discuss here, both becauseof its recency and its applicable method of analysis, is Lalvani v.Illinois Human Rights Comm'n, No. 1-99-3283 (July 31, 2001). Theplaintiff, an employee at Cook County hospital, filed a complaintwith the Commission alleging that he had been harassed for, amongother things, filing grievances against his employer. Recognizingthat a plaintiff may prove employment discrimination in one of twoways--through direct or indirect methods of proof--we reviewed thecase, as had the ALJ, under the mixed-motive theory, citing PriceWaterhouse.⁽³⁾ Lalvani, slip op. at 27. Following the same analysisjust discussed, we reaffirmed that an employee presenting directevidence that his employer placed substantial reliance on aprohibited factor in deciding to fire him may proceed under thisapproach. Lalvani, slip op. at 27. Moreover, we made clear that,if the employee is successful in doing this, the burden of proofshifts to the employer to prove that it would have still decided tofire him even if it had not considered the prohibited factor. Lalvani, slip op. at 27-28 ("[t]hus, where there is direct evidenceof substantial reliance on an illegitimate criterion, as opposed tothe indirect evidence of the [pretext] approach, the employer hasnot merely a burden of production but a burden of persuasion").

The ALJ and the Commission concluded that Lasko's filing ofcharges against CHA with the EEOC and IDHR "was a significant factorin the decision to discharge him, thereby establishing 'unlawfuldiscrimination.' " Moreover, the ALJ and the Commission found thatLasko presented direct evidence of retaliatory discrimination andthat CHA failed to prove that it would have discharged Lasko had itnot considered his prior charges. Upon review of the record and theALJ's reasoning, we find that these conclusions are not against themanifest weight of the evidence.

In his discussion, the ALJ reviewed both the pretext and themixed-motive approach and chose to use the latter. Under the firstprong of his analysis, the ALJ determined that Lasko successfullypresented direct evidence of retaliation. The ALJ found crediblethe testimony of several of Lasko's former supervisors, as well asthe presentation of many of Lasko's past evaluations, that Lasko wasa good worker. The ALJ also found Lasko's own testimony to be verycredible, especially regarding which projects he was responsible forunder Eadie-Daniels and those events in the workplace that led tohis termination.

Under the second prong of the mixed-motive analysis, the ALJdetermined that CHA failed to demonstrate that it would have firedLasko even had it not considered his prior charges. Significantly,the ALJ found the majority of Allen's testimony unbelievable. Forexample, as to the incident on June 22, 1988, one day after Laskofiled his first complaint against CHA, the ALJ did not believeAllen's denial of the statement to Lasko "[y]ou filed an EEOCcomplaint. Something ought to be done." Moreover, the ALJ did notbelieve Allen's testimony that Lasko used a racial epithet,especially because it was undocumented and uncorroborated. YetAllen cited this as one of the reasons for Lasko's discharge.

The ALJ also found CHA's substantial negative reliance onLasko's prior charges in the very sequence of events that led toLasko's termination. As early as May 24, 1998, Eadie-Daniels wrotea memo to Allen recommending Lasko's suspension and/or discharge forinsubordination. Allen did nothing. In June 1988, Eadie-Danielsagain asked for Lasko's discharge for lack of professional attitude. Allen again did nothing. It was not until July 28, 1988, that Allenfinally began the termination process--soon after Lasko filed hischarges against CHA with the EEOC on June 21, 1988, and with IDHR onJuly 8, 1988. And, of course, in between these dates came Allen'sstatement, "[s]omething ought to be done."

Add to this the ALJ's conclusion that Allen " 'loaded up' " thefinal disciplinary notice with reasons in addition to Eadie-Daniel's, reasons that the ALJ found "necessary and significant to"the termination decision, but characteristic of CHA's "retaliatoryanimus." Furthermore, the ALJ determined that no one at CHA withthe power to decide to terminate Lasko ever testified that Lasko'sdischarge would have been approved had the prohibited factor notbeen considered.

In sum, the ALJ found that Lasko "presented credible, directevidence of retaliation," and thus met his burden. While CHA mayhave considered some legitimate reasons (i.e., those of Eadie-Daniels)for discharge, it also considered the illegitimate factor of Lasko'shaving filed prior grievances and was "infected with retaliatoryanimus." Thus, Lasko established a mixed-motive case, and theburden of proof shifted to CHA to demonstrate it would have firedLasko without considering this factor. The ALJ and the Commission,upon review of the evidence presented, concluded that CHA did notmeet this burden.

Because, after viewing the entire record in the light mostfavorable to the Commission, we cannot conclude that a rationaltrier of fact would have held contrary to the ALJ here, we hold thatthe ALJ and the Commission's finding that CHA failed to satisfy itsburden by a preponderance of the evidence is not against themanifest weight of the evidence.