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FIRST DIVISION
December 26, 2000

Annie Johnson sued Chicago-Read Mental Health Center (Read) for racial discrimination andretaliatory discharge. The Human Rights Commission (Commission) found that Johnson proved oneclaim for racial discrimination, but she failed to prove that Read discharged her either on the basis ofracial discrimination or in retaliation for filing the complaint. Johnson appeals directly to this courtpursuant to the Administrative Review Law (735 ILCS 5/3-101 et seq. (West 1998)).

Read hired Johnson in 1989. She received two promotions, so that in 1994 she worked as a"Mental Health Technician II." In the last performance evaluation she received before her discharge, hersupervisor found that Johnson met or exceeded expectations in all categories for evaluation. Thesupervisor particularly noted that Johnson exceeded expectations for human relations, in that shehelped maintain a cordial work climate that promoted harmony.

On August 18, 1994, a patient struck Johnson repeatedly when staff members denied thepatient's request for a cigarette. The nurse in charge refused to put the patient in restraints, despiteJohnson's request. As she left the unit to get a medical evaluation of her injuries, Johnson againencountered the patient.

The nurse in charge wrote a report accusing Johnson of threatening the patient as she left theunit. On November 9, 1994, Read conducted a pre-disciplinary meeting. Joan Bashaw-White, Read'slabor relations administrator, and Vanda Sakalauskas, the assistant director of nursing, decided tosuspend Johnson for 16 days, beginning on December 7, 1994. Johnson decided to complain to theDepartment of Human Rights about racial discrimination in the imposition of the sanction.

Read scheduled Johnson to work a double shift of 16 hours on November 26, 1994, as well as aregular shift the following day. Johnson asked the nurse in charge and the evening coordinator forpermission to take her break for the second shift at the end of the shift, so that she could leave early. The nurse assigned her to watch a particular patient, one on one, during the second shift.

When any employee on a one-on-one assignment takes a break, the employee needs toarrange for a coworker to cover for her by attending to the patient one on one for the duration of thebreak. Johnson left the hospital a half hour before the end of her second shift. She asked a coworker tocover her one-on-one assignment, and the coworker did so.

On December 14, 1994, Johnson, who is black, filed her complaint charging Read with racialdiscrimination in the imposition of the 16-day suspension. A few days after she returned to workfollowing the suspension, Read suspended her again, this time pending discharge. Read claimed thatJohnson's actions on November 26 warranted the discharge. Read discharged Johnson on January 11,1995. Johnson amended her complaint to add claims that Read discharged her based on racialdiscrimination and in retaliation for the filing of the initial complaint.

The Human Rights Commission's administrative law judge (ALJ) heard evidence pertaining toboth the suspension, based on the August incident, and the discharge, based on the November incident. In his recommended order he sharply distinguished between the two incidents. We, too, will treat thetwo incidents separately.

Regarding the August incident, Sakalauskas, who is not black, testified that she and Bashaw-White, who also is not black, relied on the findings of the Office of the Inspector General (OIG). Theyaccepted the OIG's finding that Johnson threatened the patient as the nurse in charge alleged.

Johnson presented evidence she made no such threat. Bashaw-White admitted that Read, withBashaw-White's approval, suspended a nonblack technician for one day after the technician threw anashtray at a patient.

The ALJ found that the report of verbal threats provided a nondiscriminatory reason for thesuspension, but Johnson proved that the given reason served only as a pretext for racial discrimination. The far less severe punishment imposed on a comparable nonblack employee for more seriousmisconduct proved racial animus. The ALJ held that Johnson's alleged misconduct warranted at most asuspension for one day. Accordingly, he recommended awarding her wages for 15 days, plus attorneyfees. The Human Rights Commission adopted the ALJ's recommendation. Read has not challengedthe ruling. Insofar as it is part of the order from which the appeal formally arises, we affirm that part ofthe Commission's decision.

For the November incident, Read accused Johnson of neglect of duty and unauthorizedabsence for leaving before the end of her shift, and with insubordination and unprofessional conduct forcursing at a nurse. Dr. Thomas Simpatico, superintendent of Read, reviewed and approvedSakalauskas' and Bashaw-White's decision to discharge Johnson. He testified that the most seriouscharge, warranting severe discipline, was the charge that Johnson neglected her duty by leaving herone-on-one assignment without authorization.

Sakalauskas testified that she relied primarily on the written statement of the nurse in charge. That nurse wrote that Johnson demanded a late break, to end with the end of the shift at 10:45 p.m. When another nurse came to relieve her at 9 p.m., Johnson cursed at the nurse and refused to leave. The nurse in charge wrote that neither she nor the evening coordinator authorized Johnson to take abreak at the end of her shift.

The nurse in charge did not testify. Johnson presented evidence that the nurse in charge latertried to withdraw the report because it was false. In particular, Johnson presented evidence that thenurse in charge knew that the evening coordinator had given Johnson permission to take a late break,allowing her to leave before the end of the shift.

Read presented no evidence to contradict Johnson's proof that she asked a coworker to coverfor her when she took breaks from her one-on-one assignment and that the coworker did so. None ofRead's witnesses mentioned an OIG report of the November incident, and Read presented no suchreport. Sakalauskas said that OIG investigations usually take about two months to complete. Theproceedings to discharge Johnson took place about one month after the November incident.

Johnson also presented uncontradicted evidence that other staff members received nodiscipline for cursing. Read suspended a nonblack nurse for 30 days because the nurse deserted herpost, without backup, for at least 15 minutes.

In September 1995 a nurse assigned a nonblack technician to watch a particular patient, one onone, because the patient had been acting out sexually. The technician abandoned the assignment. About 45 minutes after the assignment began, staff members found the patient in a bathroom, havingsexual intercourse with another patient. Read suspended the technician for 15 days.

The ALJ found that Read based its decision to discharge Johnson on the OIG's reportconcerning the November incident. He specifically refused to decide whether Johnson committed thealleged misconduct, noting the conflicting evidence. He found that Read's decision-makers "did not lookbeyond the OIG report when deciding to discharge" Johnson. The ALJ then determined that the OIGreport of the November incident provided a legitimate, nondiscriminatory reason for the discharge, andJohnson failed to prove that the report was a pretext for unlawful discrimination or retaliation. The ALJrecommended dismissing with prejudice the claims challenging the decision to discharge Johnson.

In her exceptions to the ALJ's recommendation, Johnson pointed out that prior to discharge theOIG submitted no report to the decision-makers concerning the November incident. Nonetheless, theCommission adopted the ALJ's recommendations without amendment. Johnson petitioned forrehearing, again emphasizing the improper reliance on a nonexistent OIG report. The Commissiondenied the petition without referring to the factual finding of an OIG report. Johnson appeals from theCommission's order directly to this court.

The Administrative Review Law governs our review of the Commission's decision. We will notdisturb the Commission's findings of fact unless the manifest weight of the evidence contradicts thosefindings. Oregon Community Unit School District No. 220 v. Property Tax Appeal Board, 285 Ill. App. 3d170, 175, 674 N.E.2d 129 (1996). If the record sufficiently supports the findings of fact, we then applythe law to those facts. Oregon, 285 Ill. App. 3d at 176. While we give substantial weight to the agency'sinterpretation of law, we must independently analyze the law in applying it to the facts. Oregon, 285 Ill.App. 3d at 175-76.

Here, the Commission found that Read decided to discharge Johnson exclusively on the basisof an OIG report concerning the November incident. The evidence in the record directly contradicts thefinding. The ALJ heard no evidence of an OIG report concerning the November incident.

The cases discussing review of agency decisions provide little guidance for procedures whenthe record contradicts one of the agency's findings. But, based on the dispositions of appeals followingsuch findings, we find that the appellate court should first determine whether the factual findingsindependent of the error provide a sufficient basis for the agency's decision. See Basketfield v. PoliceBoard, 56 Ill. 2d 351, 361, 307 N.E.2d 371 (1974); Swanson v. Board of Police Commissioners, 197 Ill.App. 3d 592, 605-07, 555 N.E.2d 35 (1990). If the facts provide such a basis, we will affirm the decision. But if the decision lacks adequate support without the manifestly erroneous finding, we must reverse. Board of Regents of Regency Universities v. Illinois Educational Labor Relations Board, 202 Ill. App. 3d559, 566, 560 N.E.2d 627 (1990).

If we must reverse, we then face the question of whether to remand to the agency for furtherproceedings. Where the record will permit only one determination, we may impose that determination. Calabrese v. Chicago Park District, 294 Ill. App. 3d 1055, 1065, 691 N.E.2d 850 (1998). But this courtlacks authority to "evaluate the credibility of the witnesses or resolve conflicting evidence." Przislicki v.City of Chicago, 212 Ill. App. 3d 661, 668, 571 N.E.2d 762 (1991); see Citizens Utility Board v. IllinoisCommerce Commission, 276 Ill. App. 3d 730, 735, 658 N.E.2d 1194 (1995). If varying credibilityevaluations could support differing resolutions of a case, we must remand to the agency for findings offact. See Christ Hospital & Medical Center v. Human Rights Comm'n, 293 Ill. App. 3d 105, 112-13, 687N.E.2d 1090 (1997).

We proceed to decide whether the Commission's findings of fact independent of the mistakesuffice to support the decision. As a general pattern for employment discrimination litigation, the plaintiffmust first establish a prima facie case. Second, to rebut the presumption of discrimination arising fromthe plaintiff's evidence, the employer must articulate a legitimate, nondiscriminatory reason for itsconduct. If the employer does so, the plaintiff must prove by a preponderance of the evidence that thestated reason is only a pretext for unlawful discrimination. Zaderaka v. Illinois Human Rights Comm'n,131 Ill. 2d 172, 178-79, 545 N.E.2d 684 (1989). But if the employer articulates a reason for its actions,the agency or court need not decide whether the plaintiff stated a prima facie case. The sole question iswhether the plaintiff can show that the given reason is a pretext for unlawful discrimination. Clyde v.Human Rights Comm'n, 206 Ill. App. 3d 283, 293, 564 N.E.2d 265 (1990).

Since Read attempted to state a legitimate, nondiscriminatory reason for discharging Johnson,the Commission did not need to determine whether Johnson established a prima facie case of racediscrimination or retaliatory discharge. The Commission found that an OIG report concerning theNovember incident provided Read's legitimate, nondiscriminatory reason for the discharge. TheCommission adopted the ALJ's specific refusal to address the conflicting evidence as to Johnson'salleged misconduct. Thus, without the manifestly erroneous finding of reliance on a nonexistent OIGreport, the Commission has made no factual findings that could support the decision to dismissJohnson's claims relating to her discharge.

The determination of facts based on the conflicting evidence relating to Johnson's dischargedepends largely on the credibility of the witnesses. If the Commission accepts Johnson's evidence, nodiscipline would appear justified, but if the Commission believes Read's witnesses and the hearsayevidence from the written report of the nurse in charge, Read might justifiably discipline her as it wouldany nonblack employee guilty of misconduct of similar severity. This is not a case in which we can saythat crucial testimony is so improbable that acceptance of that testimony is contrary to the manifestweight of the evidence. See Basketfield, 56 Ill. 2d at 359; Polk v. Board of Trustees of the PolicePension Fund, 253 Ill. App. 3d 525, 536-37, 624 N.E.2d 1366 (1993). Therefore we remand to theCommission for findings of fact.

Our research uncovered one case in which an appellate court drew conclusions in a mannerinconsistent with our resolution of this case. In Russ Berrie & Co. v. Human Rights Comm'n, 224 Ill.App. 3d 874, 586 N.E.2d 1301 (1992), the Commission found that a job applicant included amisrepresentation on his resume, and that gave the employer a legitimate reason for refusing to hire theapplicant. The applicant presented evidence that the misrepresentation had no bearing on theemployer's decision. He also said that in the job interview the employer asked him whether he feltinferior to white people and whether he could sell to white people. The employer denied asking thequestion. The ALJ found the applicant more credible, in part because he found corroboration fromanother applicant. The ALJ recommended finding that the employer's stated reason was a pretext forracial discrimination. The Commission adopted the ALJ's recommendation.

The appellate court found that the record did not support the ALJ's finding of corroboration forthe applicant's testimony. The appellate court further decided that, in the absence of corroboration, theapplicant was not as credible as the employer. Berrie, 224 Ill. App. 3d at 879. Accordingly, the appellatecourt reversed the Commission's decision without remand.

The decision in Berrie conflicts with the principle that on administrative review the courts lackcompetence to determine the credibility of witnesses or the weight to give the testimony of each witness. Zaderaka, 131 Ill. 2d at 181. We must follow Zaderaka, and not Berrie.

Finally, we note that even if the ALJ finds that Read heard sufficient credible evidence thatJohnson committed the alleged misconduct, Johnson may still be able to meet her burden of showingthat racial discrimination or retaliation caused her discharge. Johnson presented evidence that anonblack technician committed much more serious misconduct, by leaving a one-on-one assignmentwithout arranging for a coworker to continue the supervision. Read suspended that technician for only15 days. The cases are not identical, because that technician had no prior discipline, whereas Johnsonhad, for the August incident, a one-day suspension. And Read also charged Johnson with multiple,lesser infractions, at least one of which appears to be for common conduct for which other employeesreceive no discipline. But the cases need not be precisely equivalent. Loyola University v. HumanRights Comm'n, 149 Ill. App. 3d 8, 19, 500 N.E.2d 639 (1986). The differences in the situations mustjustify the disparate treatment. See Loyola, 149 Ill. App. 3d at 21.

Also, the nurse who left her post unattended apparently committed a more serious infractionthan Johnson. As Read subjects nurses and technicians to the same disciplinary policy, the meredifference in position cannot render the nurse incomparable to Johnson. See Quincy School District No.172 v. Human Rights Comm'n, 197 Ill. App. 3d 694, 703, 555 N.E.2d 21 (1990).

Without any evidence that the OIG completed a report concerning the November incident, theALJ found that Read's decision-makers relied exclusively on the OIG report when they decided todischarge Johnson. The Commission adopted the ALJ's findings without amendment. The ALJ and theCommission found that the OIG report provided the legitimate, nondiscriminatory reason for dischargingJohnson. The ALJ and the Commission expressly refused to decide whether Johnson committed thealleged misconduct. Thus, without the erroneous finding concerning the OIG report, the Commissionlacked sufficient findings of fact to support the decision to dismiss Johnson's claims based on herdischarge. We cannot draw any conclusive findings without evaluating the credibility of contestedevidence. Therefore, we reverse the decision to dismiss Johnson's claims for retaliatory discharge andracial discrimination in the decision to discharge her. Because Read has not objected to the award ofback pay and attorney fees for racial discrimination in the decision to suspend Johnson, we affirm thatpart of the Commission's decision. We remand for further proceedings in accord with this opinion.

Affirmed in part and reversed in part; cause remanded.

TULLY and COHEN, JJ., concur.