SIXTH DIVISION

									October 12, 2001

No. 1-99-3885

CHICAGO HOUSING AUTHORITY,			)	

								)	

	Petitioner-Appellant,			)	Appeal from the

								)	Illinois   Human Rights

v.								)	Rights    Commission

								)	  

THE HUMAN RIGHTS COMMISSION, THE		)	

DEPARTMENT OF HUMAN RIGHTS, and 		)	Nos. 1989 CF 0055

NORMAN LASKO,				  		)		1989 CF 1220

								)

	Respondents-Appellees.			)

	JUSTICE BUCKLEY delivered the opinion of the court:

	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 Commis-

sion's order and decision.

	BACKGROUND

	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' recom-

mendations and that Allen waited to terminate Lasko until Lasko had

filed charges with the EEOC and IDHR.  This behavior was indicative

of Allen's "retaliatory mindset" and "retaliatory animus."  

	Holding that because both discriminatory and nondiscriminatory

reasons existed for Lasko's discharge, the ALJ declared that his

analysis of this part of the cause was to proceed "under a mixed[-] motive case," with CHA bearing the burden of proving that it still

would have terminated Lasko had it not considered "the prohibited

factor."  Because the ALJ held that CHA did not meet this burden, CHA was liable for its retaliatory discharge of Lasko and owed him

lost wages, deferred compensation, pension benefits and other fees

and costs.  On October 26, 1999, the Commission adopted the ALJ's

decision.

	CHA now appeals.  Most primarily, it contends that Illinois

law does not recognize the mixed-motive theory of recovery in

retaliation claims which shifts the burden of proof to the

employer.  Even if Illinois does so recognize this theory, CHA

believes that the ALJ should not have shifted the burden of proof

to it because Lasko initially had the burden to plead this theory

in his complaint.  Since Lasko did not plead this theory, CHA

claims it did not have notice that it should defend under it and,

thus, the Commission could not render a decision based on it nor

could Lasko recover under it.  Finally, CHA also contends that the

ALJ erred by refusing to allow it to discover Lasko's mental health

records and to cross-examine on the basis of his mental impairment

(stress-related bipolar disorder).  

	ANALYSIS

	A. Standard of Review

	Initially, both parties to this appeal grapple with the

appropriate standard of review.  For purpose of clarity, we should

begin our discussion with this threshold matter.

	This cause was brought under the Illinois Human Rights Act

(775 ILCS 5/1-101 et  seq., (West 1998)) which provides that we must sustain the Commission's final findings of fact unless we determine them to be contrary to the manifest weight of the evidence. 

Zaderaka v. Illinois Human Rights Comm'n, 131 Ill. 2d 172, 180 (1989).  In making this determination, we must remember that the

findings and conclusions of the Commission on all questions of fact

are presumed prima facie true and correct and merit deference.  Zaderaka, 131 Ill. 2d at 180; Illinois J. Livingston Co. v. Human Rights Comm'n, 302 Ill. App. 3d 141, 151 (1998).  We, as a review- ing court, may not interfere with the Commission's discretionary

authority  Board of Education of Schaumburg Community Consolidated School District No. 54 v. Illinois Educational Labor Relations

Board, 247 Ill. App. 3d 439, 453-54 (1993).  Therefore, we may not substitute our judgment for that of the Commission, nor may we

reweigh any of the evidence presented at the hearing, resolve any

factual inconsistency or settle any issue of credibility. 

Zaderaka, 131 Ill. 2d at 180; Kenall Manufacturing Co. v. Human Rights Comm'n, 152 Ill. App. 3d 695, 703 (1987); see Board of Education, 247 Ill. App. 3d at 454 (reviewing court's "sole function is to ascertain whether the findings of the [Commission]

are contrary to the manifest weight of the evidence").  While its

conclusions of law do not necessarily bind us, we cannot reverse

the Commission's decision simply because the opposite conclusion is reasonable or because we might have ruled differently.  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 the Commission's

decision is truly contrary to the manifest weight of the evidence,

we must conclude, "after viewing the evidence in the light most

favorable to the [Commission]," that "no rational trier of fact could have agreed with the [Commission]'s decision."  Board of Education, 247 Ill. App. 3d at 454 (Commission's decision is against manifest weight only when opposite conclusion is clearly

evident from record); see also Rodriguez v. Bagnola, 297 Ill. App. 3d 906, 915 (1998), quoting Sheehan v. Board of Fire & Police Commissioners 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 limits

prescribed by the law and drawing all inferences in support of the

finding, would agree that the finding is erroneous and that the

opposite conclusion is clearly evident' ").

	B.  Illinois Law and Mixed-Motive Theory

	The first issue CHA presents to this court is whether,

pursuant to the Illinois Human Rights Act, Illinois recognizes the

mixed-motive theory of discharge in retaliatory discrimination

cases, a theory which shifts the burden of proof to the employer. 

The resolution of this issue is foremost to the instant case, for,

as CHA argues, if Illinois does not recognize this theory, the ALJ

used prohibited law in making his decision and erroneously shifted

the burden to CHA, the employer.  If so, we must reverse the

Commission's decision outright without considering other issues.  

	However, contrary to CHA's contentions, ample law, both

federal and state, clearly indicates that Illinois does recognize the mixed-motive theory.  Moreover, shifting the burden of proof to

the employer, as the ALJ did in the instant case, was not only

proper but one of this theory's most unique tenants.

	1.  Federal Law

	Though unusual, we begin with a review of the mixed-motive theory under federal law, as both parties to this cause rely on

such cases for their arguments.

	We analyze employment discrimination causes brought under the

Illinois Human Rights Act, as is the instant one, according to the

"framework set forth in United States Supreme Court decisions

addressing claims under Title VII of the Civil Rights Act of 1964."  Lalvani v. Illinois Human Rights Comm'n, No. 1-99-3283, slip op. at 26 (July 31, 2001) (our Supreme Court, in Zaderaka, 131 Ill. 2d at 178, adopted the Supreme Court's method of analysis); Livingston, 302 Ill. App. 3d at 152. The principal case laying down this

framework is Price Waterhouse v. Hopkins, 490 U.S. 228, 260-61, 104 L. 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 gender

animus 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 and

entirely different methods available to analyze retaliatory

discharge cases.  The more common method is the three-part pretext

analysis as established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973).  Under this analysis the plaintiff-employee must first establish a prima  facie case, 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, a

legitimate, nondiscriminatory reason for discharge.  McDonnell Douglas, 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 the

defendant'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 this end, the plaintiff retains the ultimate burden of persua-

sion at all times under the pretext method.  Fernandes v. Costa Brothers Masonry, Inc., 199 F.3d 572, 581 (1st Cir. 1999).

	The Court recognized an equally effective method, called the

mixed-motive theory, which a plaintiff may use in trying to con-

vince the trier of fact that his employer used an impermissible

criterion in discharging him.  Under this two-part analysis, the

plaintiff must first show, through direct proof, that the illegiti-

mate factor had a motivating or substantial role in the employment

decision.  Price Waterhouse, 490 U.S. at 244, 104 L. Ed. 2d at 284, 109 S. Ct. at 1787.  The plaintiff who accomplishes this will pre-

vail, unless his employer can prove that it would have reached the

same decision (i.e., still would have fired the plaintiff) had it not considered the impermissible factor.  Price Waterhouse, 490 U.S. at 244-45, 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 same

decision").

	The mixed-motive method differs from the pretext analysis in

several respects.  Initially, the mixed-motive method can be more

difficult for the plaintiff to use.  Fernandes, 199 F.3d at 580 (mixed-motive method is restricted to cases where the employee "can demonstrate with a high degree of assurance" that both legitimate

and illegitimate reasons were involved); Tyler, 958 F.2d at 1180-81 (burden on the plaintiff is higher in mixed-method approach than

pretext approach).  Employment discrimination can oftentimes exert

itself in subtle ways.  Fernandes, 199 F.3d at 580.  Yet to use the mixed-motive method, the plaintiff must show " 'direct evidence

that decisionmakers placed substantial negative reliance on an

illegitimate 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 proof

of discrimination," his cause becomes easier, as he sheds the

burden he would otherwise retain under the pretext approach. 

Tyler, 958 F.2d at 1185-86.  And this is why the approach used has an important effect:  in the mixed-motive analysis, the burden of

persuasion completely shifts away from the plaintiff and to the

employer to prove it still would have fired the plaintiff absent

consideration of the impermissible motive.  Thomas v. National Football League Players Ass'n, 131 F.3d 198, 203 (D.C. Cir. 1997) (this is both a shifting of the ultimate burden of persuasion and

the employer's affirmative defense).  Moreover, whereas there is only either lawful or unlawful motivation for discharge in pretext

cases, there can be both types in mixed-motive cases.  Ostrowski v. Atlantic Mutual Insurance Cos., 968 F.2d 171, 185 (1992).  There- fore, the plaintiff is not obligated to show that a legitimate

reason was the true reason for discharge or that the employer used

a pretext.  Ostrowski, 968 F.2d at 185.  All he must show is that the employer considered some unlawful motive in making its

decision.  

	2.  State Law

	Illinois state courts, and most critically our very bench,

have clearly and consistently recognized what the federal courts

have:  that the mixed-motive method of analyzing and deciding

adverse employment claims is alive and well.  Lalvani, slip op. at 26-27 (the "burden of proof is different if the plaintiff proceeds

under the direct-evidence approach");  Livingston, 302 Ill. App. 3d at 152 (recognizing two ways an employee may prove discrimination: 

through presenting direct or indirect evidence); Kenall, 152 Ill. App. 3d at 701 (same); Southern Illinois Clinic, Ltd. v. Human Rights Comm'n, 274 Ill. App. 3d 840, 847 (1995) (same).  We have chosen to call this method by an alternative name at times--the

dual-motive theory--but its tenents are still the same.  City of Burbank v. Illinois State Labor Relations Board, 128 Ill. 2d. 335, 347 (1989); Board of Education, 247 Ill. App. 3d at 460.  And as mentioned above, we too have 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 as

those where the employer relies on both legitimate and illegitimate reasons for the employee's discharge.  City of Burbank, 128 Ill. 2d at 346-47 (case where the employer advances and relied upon

legitimate reasons for discharge is analyzed under mixed-motive

theory).  The plaintiff-employee must present direct evidence that

the defendant-employer considered an illegitimate factor, among others, in deciding to fire him.  Board of Education, 247 Ill. App. 3d at 460-61 (the employee's evidence must go beyond inference of

discrimination to establish "clear nexus" between impermissible

factor and discharge).  Once the employee establishes this, the

burden of proof then shifts to the employer to show it would still

have fired the employee even if it had not considered the illegiti-

mate factor.  City of Burbank, 128 Ill. 2d at 346-47; Board of Education, 247 Ill. App. 3d at 461.   

	Our supreme court has set the foundation for one very

important concept in the mixed-motive analysis.  Again, the employ-

er's motivation for firing the employee is the central issue in

these cases.  Motive is a question of fact.  City of Burbank, 128 Ill. 2d at 345.  Since making final, factual determinations is for

the ALJ and the Commission, our court has stated that we must

accept their findings of an employer's discriminatory motivation as

long as those findings are supported by substantial evidence in the

record.  City of Burbank, 128 Ill. 2d at 345.

	One particular case that we should discuss here, both because

of its recency and its applicable method of analysis, is Lalvani v. Illinois Human Rights Comm'n, No. 1-99-3283 (July 31, 2001).  The plaintiff, an employee at Cook County hospital, filed a complaint

with the Commission alleging that he had been harassed for, among

other things, filing grievances against his employer.  Recognizing that a plaintiff may prove employment discrimination in one of two

ways--through direct or indirect methods of proof--we reviewed the

case, as had the ALJ, under the mixed-motive theory, citing Price Waterhouse.3  Lalvani, slip op. at 27.  Following the same analysis just discussed, we reaffirmed that an employee presenting direct

evidence that his employer placed substantial reliance on a

prohibited factor in deciding to fire him may proceed under this

approach.  Lalvani, slip op. at 27.  Moreover, we made clear that, if the employee is successful in doing this, the burden of proof

shifts to the employer to prove that it would have still decided to

fire him even if it had not considered the prohibited factor. 

Lalvani, slip op. at 27-28 ("[t]hus, where there is direct evidence of substantial reliance on an illegitimate criterion, as opposed to

the indirect evidence of the [pretext] approach, the employer has

not merely a burden of production but a burden of persuasion").

	3.  Mixed-Motive Analysis and the Instant Case

	The ALJ and the Commission concluded that Lasko's filing of

charges against CHA with the EEOC and IDHR "was a significant

factor in the decision to discharge him, thereby establishing

'unlawful discrimination.' "  Moreover, the ALJ and the Commission

found that Lasko presented direct evidence of retaliatory discrimi-

nation and that CHA failed to prove that it would have discharged

Lasko had it not considered his prior charges.  Upon review of the

record and the ALJ's reasoning, we find that these conclusions are not against the manifest weight of the evidence.

	In his discussion, the ALJ reviewed both the pretext and the

mixed-motive approach and chose to use the latter.  Under the first

prong of his analysis, the ALJ determined that Lasko successfully

presented direct evidence of retaliation.  The ALJ found credible

the testimony of several of Lasko's former supervisors, as well as

the presentation of many of Lasko's past evaluations, that Lasko

was a good worker.  The ALJ also found Lasko's own testimony to be

very credible, especially regarding which projects he was

responsible for under Eadie-Daniels and those events in the

workplace that led to his termination.

	Under the second prong of the mixed-motive analysis, the ALJ

determined that CHA failed to demonstrate that it would have fired

Lasko even had it not considered his prior charges.  Significantly,

the ALJ found the majority of Allen's testimony unbelievable.  For

example, as to the incident on June 22, 1988, one day after Lasko

filed his first complaint against CHA, the ALJ did not believe

Allen's denial of the statement to Lasko "[y]ou filed an EEOC

complaint.  Something ought to be done."  Moreover, the ALJ did not

believe Allen's testimony that Lasko used a racial epithet,

especially because it was undocumented and uncorroborated.  Yet

Allen cited this as one of the reasons for Lasko's discharge.

	The ALJ also found CHA's substantial negative reliance on

Lasko's prior charges in the very sequence of events that led to

Lasko's termination.  As early as May 24, 1998, Eadie-Daniels wrote

a memo to Allen recommending Lasko's suspension and/or discharge

for insubordination.  Allen did nothing.  In June 1988, Eadie-

Daniels again asked for Lasko's discharge for lack of professional attitude.  Allen again did nothing.  It was not until July 28,

1988, that Allen finally began the termination process--soon after Lasko filed his charges against CHA with the EEOC on June 21, 1988,

and with IDHR on July 8, 1988.  And, of course, in between these

dates came Allen's statement, "[s]omething ought to be done."

	Add to this the ALJ's conclusion that Allen " 'loaded up' "

the final 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 "retaliatory

animus."  Furthermore, the ALJ determined that no one at CHA with

the power to decide to terminate Lasko ever testified that Lasko's

discharge would have been approved had the prohibited factor not

been considered.

	In sum, the ALJ found that Lasko "presented credible, direct

evidence of retaliation," and thus met his burden.  While CHA may

have considered some legitimate reasons (i.e., those of Eadie-Daniels) for discharge, it also considered the illegitimate factor of

Lasko's having filed prior grievances and was "infected with

retaliatory animus."  Thus, Lasko established a mixed-motive case,

and the burden of proof shifted to CHA to demonstrate it would have

fired Lasko without considering this factor.  The ALJ and the

Commission, upon review of the evidence presented, concluded that

CHA did not meet this burden.  

	Because, after viewing the entire record in the light most

favorable to the Commission, we cannot conclude that a rational

trier of fact would have held contrary to the ALJ here, we hold

that the ALJ and the Commission's finding that CHA failed to

satisfy its burden by a preponderance of the evidence is not against the manifest weight of the evidence.

	C.  Notice under Mixed-Motive Theory	

	CHA alternatively argues that, even if we accept the mixed-

motive approach and shift the burden of proof to it as the

employer, Lasko cannot recover because he did not initially plead

this theory, as was his burden.  Since Lasko did not so plead, CHA

claims it did not have notice that the mixed-motive approach would

be used and, accordingly, the ALJ should not have applied it to the

facts because this caused prejudice.  We disagree.

	While it is true that Illinois is a fact-pleading jurisdiction

(Lempa v. Finkel, 278 Ill. App. 3d 417, 424 (1996)), the United States Supreme Court already addressed the issue of whether a

plaintiff-employee must provide notice to the defendant-employer

that the mixed-motive approach will be used.  It stated in Price Waterhouse: 

nothing in this opinion should be taken to

suggest that a case must be correctly labeled

as either a 'pretext' case or a 'mixed-

motives' case from the beginning ***; indeed,

we expect that plaintiffs often will allege,

in the alternative, that their cases are

both."  490 U.S. at 247 n.12, 104 L. Ed. 2d at

285 n.12, 109 S. Ct. at 1789 n.12.  

	Several other decisions also reaffirm that the employee has no

burden to plead a mixed-motive approach.  Fernandes, 199 F.3d at 581 (because the employee does not know what discovery will produce

or how a court will interpret evidence, he may proceed under both

theories, for it is reviewing body's job to "channel the case into one format or the other *** based on the availability or unavaila-

bility of direct evidence"); Fuller v. Phipps, 67 F.3d 1137, 1143 n.2 (4th Cir. 1995) (the employee does not have to label his case as either pretext or mixed-motive; the reviewing body makes this

determination after evaluating the evidence presented); Ostrowski, 968 F.2d at 185 (reviewing body decides which theory to apply). 

	Nor must the employee, or even the reviewing body for that

matter, provide notice to the employer any time before or during

the cause that the mixed-motive, as opposed to the pretext,

approach will be used.  Thomas, 131 F.3d at 205 (such a premise has been called "ridiculous").  Instead, it is only logical that if the

employer had evidence showing that it would have fired the employee

notwithstanding the prohibited factor, "it would be foolish not to

introduce" it "regardless of whether the case fell under" the

pretext or the mixed-motive theory.  Thomas, 131 F.3d at 205-06.  The Supreme Court in fact intended for the mixed-motive framework

to be a flexible, logical way to analyze employment discrimination,

with "no formal notice of burden-shifting *** required."  Thomas, 131 F.3d at 206.   

	In the instant case, then, contrary to CHA's argument, Lasko

was not required to plead at the outset that he would proceed on

the mixed-motive theory.  In fact, there was no way for Lasko to

know at the pleading stage whether the ALJ and the Commission would

perceive the evidence he would present as direct or indirect. 

Which method to use was for the ALJ and the Commission to decide at

some point during the proceedings.  In fact, the ALJ chose to

evaluate Lasko's handicap discrimination charge and his first

allegation of retaliation (CHA harassment for his assistance to the four female attorneys) using the pretext approach because Lasko

presented only indirect evidence of CHA's discrimination regarding

these events.  

	However, the ALJ evaluated Lasko's second allegation of

retaliation (in response to his filing of prior charges with the

EEOC and IDHR) according to the mixed-motive approach.  The ALJ

chose to do so because Lasko presented direct evidence that CHA

considered his filing of charges, the prohibited factor, against

him when deciding to terminate him.  It was not Lasko's burden to

warn CHA that the ALJ would do this.  That CHA now claims it

somehow suffered prejudice and surprise is misguided.  Even if CHA

really believed only the pretext approach would be applied, it

still should have introduced any evidence it had which tended to

show that it would have fired Lasko regardless of the prohibited

factor, in order to rebut Lasko's requirement of proving a prima   facie case under that theory.  That CHA did not present such evidence is

indicative of either the nonexistence of such evidence or of

foolishness.  Whatever the case, CHA was not prejudiced.   

	D.  Remaining Issues

	Finally, CHA claims that the ALJ and the Commission erred by

barring cross-examination of Lasko's mental health at the hearing. 

CHA argues that it sought to attack Lasko's perception and memory

of the events leading to his termination, especially regarding

Allen's "something ought to be done" statement.  

	CHA relies heavily on People v. Helton, 153 Ill. App. 3d 726, 733 (1987), for the proposition that a witness' mental health

history is a permissible area of impeachment and can be used to

attack credibility.  CHA then cites Novak v. Rathnam, 106 Ill. 2d 478, 484-86 (1985), to conclude that, because Lasko's original

charge included an allegation of discrimination based on mental

handicap, he waived any right to confidentiality.  Again, we

disagree.

	While, in general, Lasko's mental health history is relevant

to his credibility as a witness, CHA, as the party seeking to

introduce this evidence, bore the burden of establishing its 

relevance.  People v. Plummer, 318 Ill. App. 3d 268, 279 (2000).  From the record, it is clear that the ALJ did not necessarily bar

CHA from cross-examining Lasko about his mental health, but simply

limited the cross-examination.  As the ALJ stated, CHA had not

demonstrated the relevancy of the mental health questions it sought

to ask.  The ALJ specifically told CHA it could refer to Lasko's

mental health when it presented its defense.

	Moreover, we have previously stated in several similar cases

our discomfort in allowing the disclosure of mental health records. 

See Plummer, 318 Ill. App. 3d at 280 (and cases cited therein).  Statutorily, the Mental Health and Development Disabilities

Confidentiality Act (740 ILCS 110/1 et  seq.) (West 1996)) (Act), was intended to maintain the confidentiality of mental health records

except in specific circumstances, which have become narrowly drawn. 

Sassali v. Rockford Memorial Hospital, 296 Ill. App. 3d 80, 84-85 (1998).  Section 10(a)(1) of the Act allows for the disclosure of

mental health records in an administrative proceeding, but only if

the patient introduces his mental condition as part of his claim. 

740 ILCS 110/10(a)(1) (West 1996).  However, this same section requires that before disclosure, the ALJ must first make several

findings concerning the records' relevancy, probative value, undue prejudice, inflammatory content and general admissibility.  740

ILCS 110/10(a)(1) (West 1996).

	First, we should conclude that, even if Lasko had introduced

his mental condition as a claim, CHA has presented no evidence to

show that the ALJ made the specific and necessary findings that

section 10(a)(1) requires before mental health evidence can be 

allowed.  In fact, the ALJ ruled several times before (in discovery

and at the CHA's motion in limine) and during the hearing that questioning Lasko about his mental health was improper.  Thus,

disclosure at the hearing would not have been appropriate.  See

Sassali, 296 Ill. App. 3d at 83-84.

	Second, and more significant, we should conclude that Lasko

did not place his mental health at issue in the proceedings simply

by alleging a charge of discrimination based on his mental

stress/bipolar disorder in his original complaint, nor did he waive

his privilege of confidentiality.  As the holder of this privilege,

Lasko could have waived it if he had affirmatively placed his

mental health at issue.  Sassali, 296 Ill. App. 3d at 83; see Novak, 106 Ill. 2d at 484.  As CHA properly quotes from Novak, 106 Ill. 2d at 486, "a waiver of the privilege involved in a prior

proceeding will be regarded as a waiver of the privilege in a

subsequent proceeding."

	However, what CHA fails to account for is that there was no

"prior proceeding" in which Lasko waived his privilege.  Lasko did

assert a claim whichthat involved his mental health, but he amended the

charge and withdrew the claim completely long before the cause was

even addressed by the ALJ.  As early as February 1991, the ALJ

declared that Lasko's mental health was not at issue.  While Lasko's mental health had the potential of becoming an issue, it

was not so by the time the hearing, the only proceeding in this

cause, began.  Therefore, we should conclude that, as no waiver

occurred, the ALJ properly found the disclosure of Lasko's mental

health records and cross-examination on this topic irrelevant and

inappropriate.

	CONCLUSION

	In sum, we find that the ALJ and the Commission properly used

the mixed-motive method of analyzing Lasko's employment discrimina-

tion claim.  Lasko was not required to inform CHA that this method

would be used, and CHA was not prejudiced in any way.  Lasko

presented direct evidence that CHA placed substantial negative

reliance on the fact that he filed charges against CHA with the

EEOC and IDHR in deciding to discharge him.  The burden of proof

then shifted to CHA to show that it would have discharged Lasko

despite consideration of this retaliatory reason, but CHA failed to

sustain this burden.  Therefore, we conclude that the final deci-

sion of the ALJ and the Commission in favor of Lasko and against

CHA was not against the manifest weight of the evidence.

	Accordingly, the Commission's final order and decision isare

affirmed.

	Affirmed.

	Gallagher, P.J., and O'Brien, J., concur.