dissenting:
I respectfully dissent from the majority’s opinion to affirm the decision of the Commission in favor of respondents. Section 8 — 107 of the Human Rights Act clearly states that the Commission shall adopt “the hearing officer’s findings of fact if they are not contrary to the manifest weight of the evidence.” (Ill. Rev. Stat. 1987, ch. 68, par. 8— 107(E)(2).) The Commission must accord the same deference to the findings of the administrative law judge as this court must afford to findings of the trial court. (Quincy Country Club v. Human Rights Comm’n (1986), 147 Ill. App. 3d 497, 499.) Deference to the administrative law judge is based on his ability to observe the witnesses’ demeanor and to assess their credibility, unlike the Commission, which only has the “cold” record before it. Thus, the issue before us is whether the Commission properly found the administrative law judge’s findings to be contrary to the manifest weight of the evidence.
“Verdicts and judgments are only considered against the manifest weight of the evidence where a conclusion opposite to that reached by the [trier of fact] is clearly evident or the [decision of the trier of fact] is palpably erroneous.” (Daniggelis v. Pivan (1987), 159 Ill. App. 3d 1097, 1101.) The Commission claimed that since Chief Administrative Law Judge Patricia Patton applied the incorrect legal standard in determining whether the Board had fulfilled its burden, the manifest weight of the evidence rule was inapplicable. It asserted that the administrative law judge applied a stricter standard in requiring the Board to produce the budget figures, which allegedly justified the discharge.
The Commission as well as the majority misunderstood Judge Patton’s rationale. She did not determine that the Board had not met its burden solely because it did not produce certain documents. She properly found that the Board’s failure to produce the budget denied petitioner a full and fair opportunity to rebut the Board’s proffered explanation for her discharge.
The Commission and the majority strongly rely on the United States Supreme Court decision, Texas Department of Community Affairs v. Burdine (1981), 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089. Each argues that under Burdine a mere assertion of a nondiscriminatory reason is sufficient to rebut the prima facie case. I disagree.
. Although Burdine may not require documentation to support the employer’s explanation, it surely does not suggest that a mere assertion is sufficient to rebut the prima facie case. The Court specifically outlined the employer’s burden by stating the following:
“[T]he defendant must clearly set forth, through the introduction of admissible evidence, the reasons for plaintiff’s rejection. The explanation provided must be legally sufficient to justify a judgment for the defendant. *** Placing this burden of production on the defendant thus serves simultaneously to meet the plaintiff’s prima facie case by presenting a legitimate reason for the action and to frame the factual issue with sufficient clarity so that the plaintiff will have a full and fair opportunity to demonstrate pretext.” (Burdine, 450 U.S. at 255-56, 67 L. Ed. 2d at 216-17, 101 S. Ct. at 1094-95.)
Accordingly, whether the evidence be in the form of documentation or in the form of oral testimony, the administrative law judge must be able to rationally conclude that the employer’s decision “had not been motivated by discriminatory animus.” Burdine, 450 U.S. at 257, 67 L. Ed. 2d at 218, 101 S. Ct. at 1096.
Here, in addition to finding that the Board’s failure to produce the budget prejudiced petitioner, Judge Patton also found that the Board’s mere assertion that petitioner was dismissed for economic reasons was legally insufficient. “An articulation not admitted into evidence will not suffice. Thus, the defendant cannot meet its burden merely through an answer to the complaint or by argument of counsel.” Burdine, 450 U.S. at 255 n.9, 67 L. Ed. 2d at 216 n.9, 101 S. Ct. 1094 n.9.
Judge Patton did not misapply the law; therefore, the manifest weight of the evidence standard of review is applicable here. Accordingly, her findings were not palpably erroneous, and there was ample evidence in the record to support her findings.
I would reverse the decision of the Commission.