dissenting:
I think this case should be remanded so that the Commission, in a concise way, may *1011explain more fully the procedural framework by which it reached its decision.
It appears the Commission has found, primarily on the basis of a memorandum written by petitioner, that there was “facial discrimination” in violation of the statute. Given the evidence which the Commission heard, it may well be an appropriate ruling. However, there is little explanation regarding the burdens of proof which were applied in this instance. It is, of course, customary in litigation that the obligation to present and rebut evidence be clearly allocated between the parties. Such burdens of persuasion are well understood in traditional civil and criminal cases. In employment discrimination cases, courts have devised procedural rules regulating the order of proof. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In non-employment assertions of discrimination, as here, the McDonnell Douglas rule required modification to meet different factual issues. Thus, in some instances, courts have referred to “direct evidence” in the case as the basis for decision. The meaning and import of this term in this context is not uniform. In Jackson v. Harvard Univ., 900 F.2d 464, 467 (1st Cir.), cert. denied, 498 U.S. 848, 111 S.Ct. 137, 112 L.Ed.2d 104 (1990), the court opined that, “direct evidence is evidence which in and of itself, shows a discriminatory animus. A similar discussion is found in Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1187 (2d Cir.), cert. denied, — U.S. -, 113 S.Ct. 82, 121 L.Ed.2d 46 (1992).
Understanding that our statute is not controlled by federal precedent, nonetheless, there are similarities. In this instance, the Commission essentially held, without elaboration, that the memorandum showed discrimination. Was this document treated as presumptive, thereby shifting the burden to proceed, or was it simply regarded as strong direct evidence?
It is not necessary that the Commission write an elaborate treatise; rather there should be an adequate explanation so an appellate court can trace the path of the decision. See Newsweek Magazine v. District of Columbia Comm’n on Human Rights, 376 A.2d 777, 784 (D.C.1977).
I think that is lacking here and would therefore remand the case.