Appeal from the Human Rights Commission Nos. 1989 CF 0055; 1989 CF 1220
The opinion of the court was delivered by: Justice Buckley
Respondent Norman Lasko filed three charges of discrimination against his employer, petitioner Chicago Housing Authority (CHA), with the Equal Employment Opportunity Commission (EEOC) and respon-dent Illinois Department of Human Rights (IDHR). After IDHR found substantial evidence of discrimination, respondent Illinois Human Rights Commission (Commission) filed a complaint against CHA. Upon review of the charges, an administrative law judge (ALJ) found that CHA had discharged Lasko in a discriminatory manner in retaliation for Lasko having filed charges with the EEOC and IDHR. The Commission adopted the ALJ's decision.
CHA now appeals, alleging that the ALJ improperly analyzed this case pursuant to a mixed-motive theory of discharge and erroneously shifted the burden of proof to CHA when in fact Lasko had never pled for relief on this basis. CHA contends that this case should have been reviewed pursuant to the standards accompany-ing a pretextual theory of discharge, and because Lasko has not presented any credible evidence of a pretext, the Commission's decision should be reversed and Lasko's action dismissed. Alterna-tively, CHA asks that we remand the cause for additional proceed-ings. Conversely, Lasko argues that the ALJ's mixed-motive analy-sis was proper and that CHA did not present any proof that it would have discharged Lasko for nonretaliatory reasons. The Commission and IDHR have adopted Lasko's appellate brief and arguments. For the following reasons, we agree with Lasko and affirm the Commission's order and decision.
The following facts are largely taken from the findings of fact contained 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 August 1987, some 14 performance evaluations rated his work as satisfac-tory to good to even excellent and he was recommended for salary increases. In February 1987, four female attorneys at CHA filed charges of sexual discrimination with the EEOC. Soon after, CHA general counsel James Thomas sent a memo to the legal department staff asking that employees not communicate any information to these four female attorneys about CHA employment or labor matters, as a means to protect the interests of CHA and avoid any ethical/legal problems. Lasko believed that this was an implicit loyalty warning from CHA to its employees.
In early February 1988, Lasko was named in interrogatories as a witness on behalf of the four female attorneys suing CHA. About this time, new general counsel Wilbert Allen began giving Lasko extra duties which increased his caseload. At the end of February 1988, the four female attorneys were suspended and eventually discharged from CHA.
In March 1988, Allen sent Lasko a memo reprimanding him for poor research work. On March 30, 1988, Richard Anderson, Lasko's prior supervisor, wrote a memo to Loretta Eadie-Daniels, Lasko's current supervisor, claiming that Lasko was at fault for not filing a timely brief in a CHA case. When Eadie-Daniels questioned Lasko about Anderson's contentions, Lasko pointed out that Sue Ann Rosen, one of the four female attorneys, was in charge of that case until her discharge, at which time it was to be handled by Anderson and another attorney, Jacqueline Cox. However, Eadie-Daniels deter-mined that Lasko was at fault. In May 1988, she made several efforts to meet with Lasko to discuss his work performance, including calling him at home while he was on sick leave. On May 24, 1988, she wrote a memo to Allen recommending Lasko's discharge for insubordination because she felt Lasko deliberately avoided two scheduled meetings with her for May 19 and May 23.
Lasko returned to work on June 13, 1988. At some point, he asked Dorothy Snow, a CHA office manager and Allen's administrative assistant, for a telephone amplifier to accommodate his hearing handicap. Neither Snow nor CHA ever provided Lasko with an ampli-fier. 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 insubordina-tion, lack of professional attitude and a consistent pattern of failing to complete his work assignments. On June 21, 1988, Lasko asked Eadie-Daniels if he could meet with her to resolve these problems. Also on this date, Lasko filed his first charge against CHA with the EEOC, alleging that CHA had begun retaliating against him for supporting the four discharged female attorneys.
Lasko testified before the ALJ that on June 22, 1988, while he was 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 hearing handicap. On July 8, 1988, Lasko filed his second charge, this time with IDHR, alleging that, in addition to threatening dismissal because of his assistance to the four female attorneys, CHA was discriminating against him because of his physical handicap. This charge also included a claim of discrimination based on a mental handicap (stress-related bipolar disorder), but Lasko later voluntarily 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 reading incoming CHA mail without authority. On July 28, 1988, Allen gave Lasko a final disciplinary notice, citing five reasons for discharge: (1) insubordination towards supervisor Eadie-Daniels, (2) disruptive behavior for yelling at Snow, (3) reviewing incoming CHA mail without authority, (4) a continued pattern of unsatisfac-tory performance and failing to complete work assignments, and (5) use of racially offensive language. Allen clarified that the first three reasons were submitted by Eadie-Daniels while he included the last two. The fifth reason, Allen testified, arose from an inci-dent when he, Lasko and several others were discussing the hiring of a new CHA general counsel. Allen (African-American) testified that during this discussion, Lasko (Caucasian) said to him and Anderson (African-American): " ' The next General Counsel is probably going to be another nigger from City Hall.' " After learning of Allen's recommendation to terminate him, Lasko filed a grievance with CHA alleging that he was not given an opportunity to qualify for eight positions in the legal department.
On July 29, 1988, Allen sent the disciplinary notice to, among others, his supervisor and director of human resources, Donald Pettis, who assigned it to Edward Gale, a CHA labor relations representative. On August 8, 1988, Lasko filed another grievance with CHA challenging the notice. Gale investigated Allen's request to terminate Lasko and on September 7, 1988, recommended approval of the termination, finding that "Lasko's behavior can only be described as unprofessional, insubordinate, disruptive and unsatis-factory from a performance standpoint." Pettis agreed, and on September 14, 1988, CHA notified Lasko that he was being terminated for "his poor work performance, insubordination, disruptive behav-ior, use of racially offensive language and reviewing confidential mail without authorization." On September 19, 1988, Lasko filed his third charge against CHA, alleging dismissal in retaliation for having filed the prior charges with the EEOC and IDHR.
As the cause proceeded through discovery, CHA sought the production of Lasko's mental health records. In February 1991, the ALJ entered an order preventing CHA from obtaining these records because Lasko's mental health was not at issue. In April 1991, CHA again tried to obtain these records by subpoenaing them from Lasko's physician. Again, the ALJ held that CHA could not do this and granted Lasko's motion in limine to preclude the introduction and reference to any medical matters during the cause. However, at the public hearing on Lasko's charges in early 1997, CHA tried to cross-examine Lasko regarding mental stress. Upon Lasko's objec-tion, the ALJ declared that "this, if it is relevant, *** would be more appropriate in [CHA's] defense, *** not at this point in time."
At the conclusion of the hearing, the ALJ determined that the preponderance of the evidence supported one of Lasko's two retalia-tion charges, but not the other retaliation charge or the physical handicap discrimination charge.
First, regarding Lasko's charge of discrimination based on his physical handicap (hearing loss), the ALJ found that Lasko "presen-ted a prima facie case of physical handicap discrimination," but that CHA "articulated a legitimate, non-discriminatory reason for its treatment 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, the ALJ recommended that the Commission rule for CHA and against Lasko on the physical handicap discrimination claim.
Though not entirely clear from the record, it seems that the ALJ next found that Lasko, in a similar manner, failed to support his first allegation of retaliation, that is, that CHA was haras-sing him because he assisted the four discharged female attorneys in their sexual discrimination suit.
However, spending the majority of its time addressing Lasko's second allegation of retaliatory discharge (in response to his filing of prior charges with the EEOC and IDHR), the ALJ recom-memded that the Commission rule for Lasko and against CHA. The ALJ found that Lasko "presented direct evidence of unlawful discrimina-tion (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 further concluded that CHA had "failed to prove by a preponderance of the evidence" that Lasko "would have been discharged if the prohibited factor [Lasko's filing of charges] had not been considered."
In the discussion of his findings, the ALJ stated that Lasko presented direct evidence raising an inference of retaliation. The ALJ did not believe Allen's denial of his statement to Lasko "[y]ou filed an EEOC complaint. Something ought to be done," nor Allen's version of the incident in which he claimed Lasko used a racial epithet. Instead, the ALJ chose to believe Lasko in both instan-ces. The ALJ found that while CHA articulated legitimate, non-discriminatory reasons for termination, Lasko established that some of these reasons were pretextual and discriminatory. The ALJ espe-cially focused on Allen, finding that he " 'loaded up' " the final disciplinary notice by adding two reasons to Eadie-Daniels' ...