MARTINS OCHOLI, Complainant
SODEXO INC, Respondent
An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued an Order of Dismissal in the above-entitled matter. A timely petition for review was filed by the complainant.
The commission has considered the complainant's petition. For the reasons set forth in the Memorandum Opinion attached to this decision, the Labor and Industry Review Commission issues the following:
The Order of Dismissal issued by the administrative law judge (copy attached) is affirmed.
Dated and mailed September 4, 2009
ocholma . rpr : 125 : 9
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
Martins Ocholi filed a discrimination complaint against the respondent, Sodexo, Inc., on April 25, 2008, alleging discrimination in his terms and conditions of employment on the basis of national origin and ancestry (Nigerian), and on May 7, 2008, he amended his complaint to add color (black) as a basis for the alleged discrimination.
Ocholi was enrolled in college, where the respondent employed him as a grill cook. Correspondence in the case file that the parties submitted to the ERD investigator states that Ocholi took a medical leave of absence from the respondent beginning on March 13, 2008. Correspondence from the respondent dated June 30, 2008, states that Ocholi began a three month leave on March 13. Correspondence dated August 12, 2008, from Ocholi's counsel at the time states that as a result of an automobile accident Ocholi suffered serious injuries to both shoulders and his left eye and that he is blind in his left eye. Counsel further indicated that Ocholi was still on medical leave as of August 12, 2008; that the respondent was still determining whether it could accommodate Ocholi's doctor's spring 2008 proposed work restrictions.
After the issuance of an Initial Determination of no probable cause and certification of the case to hearing, the parties began settlement discussions.1(1) Correspondence the ALJ sent to the parties dated May 22, 2009, states that the settlement discussions were conducted by telephone over a period of time. The settlement discussions ended with the parties reaching a private settlement.
The settlement agreement was finalized in the following manner: By the ALJ sending to Ocholi for review and, if he found acceptable, the signing of an Agreement and Release, along with a W-9 form and Withdrawal form and forwarding same to the ALJ; the ALJ then sending to the respondent Ocholi's signed W-9 form, along with the Agreement and Release for the respondent to sign and to issue two checks made out to Ocholi for the specified amounts and return of the same to the ALJ; the ALJ then sending to Ocholi the fully-signed duplicate original of the Agreement and Release, and the two checks per the parties' settlement agreement.
The ALJ sent the Agreement and Release and the W-9 and Withdrawal form to Ocholi on May 22, 2009. Ocholi signed them on May 27, 2009, and returned them to the ALJ. The Withdrawal form signed by Ocholi states that he wished to withdraw his discrimination complaint against the respondent which had been filed with the ERD and EEOC. Further, on this form Ocholi indicated that he made this request because he had reached a private settlement with the respondent which "Is confidential or I do not wish to disclose the terms."
On June 5, 2009, the ALJ sent the W-9 form and Agreement and Release signed by Ocholi to the respondent. On June 29, 2009, the ALJ sent the fully-signed duplicate original of the Agreement and Release and the respondent's two checks to Ocholi. The ALJ noted that the Withdrawal form signed by Ocholi would be processed and his ERD case dismissed by separate correspondence sent to the parties in the near future.
On July 16, 2009, the ALJ issued an order dismissing Ocholi's discrimination complaint based upon the parties' private and confidential settlement and the Withdrawal document signed by Ocholi.
On July 17, 2009, the ERD received a letter addressed to the ALJ from Ocholi dated July 15, 2009, the day before the ALJ's dismissal order was issued. After stating that he had gone to the respondent "more than two times" to get on the schedule to get hours of work, but the respondent said "no, and no", Ocholi states that he should be paid his "full back pay from March 2008 to June 2009 that was (the?) last check stub I get from Sodexo". Ocholi listed his wage rate and then indicated that he was owed "back pay" in the amount of $20,800.00 for the period from March 13, 2008 until June 16, 2009, but only "$2,000 (had been) paid out". Ocholi inquired as to when he would get the balance of his "back pay" of $18,800.00, and, apparently, if it was tax deductible.
Ocholi's letter further references what is apparently the figure of $5,000.00 and then states it is "for the settlement of the case, I accepted that and I don't want no case or hearing." Ocholi then states, "But please sir I need the balance of my pay from March 13-08 to June 16-09 for I have all the pay check stubs from March 13-08 to June 16-09". It is not clear what Ocholi means when he says he "has all the pay check stubs from March 13, 2008 to June 16, 2009."
On July 22, 2009, the ERD received a second letter addressed to the ALJ from Ocholi. In this letter Ocholi states "this can be case on an appeal for I am not satisfied with the case or the ruling of the dismissal of this case...please let me know what you will want to do next, like if you will want to hear...my appeal or we continue on the settlement."
By letter dated July 30, 2009, addressed to LIRC, Ocholi and the respondent, the ALJ stated that he was forwarding this case to LIRC. Among other things, the ALJ notes that Ocholi is "essentially asking for more money" and that to the best of his understanding, Ocholi "freely and willingly signed the settlement agreement and Withdrawal form."
Ocholi is apparently dissatisfied with the settlement and resulting dismissal of his complaint because he either expected to receive or wants to receive more money under the settlement. However, it is the commission's policy to treat settlements as final, absent an allegation of misrepresentation or intimidation by a representative of the Department, or an allegation that the settlement agreement contains something to render it invalid on its face. Gribbons v. Chart Indus. (LIRC, 03/26/02). Further, settlements will be treated as final even in cases where a party is unrepresented, provided the party entered into the agreement knowingly and voluntarily. Summers v. Northwest Airlines (LIRC, 05/26/00).
None of the factors for voiding the settlement agreement are present in this case. Ocholi does not allege that there was any misrepresentation or intimidation by a representative of the Department, nor does he allege that the Agreement and Release he signed contains something to render it invalid on its face. Further, the case file indicates that Ocholi entered the agreement knowingly and voluntarily. The settlement discussions in this matter were conducted by telephone and took place over a period of time. Ocholi is a college student and he had several days to review the Agreement and Release before signing it. In addition, the ALJ, who assisted the parties effectuate the settlement, has indicated that Ocholi is essentially asking for more money and that to the best of his understanding, Ocholi freely and willingly signed the Agreement and Release and Withdrawal form.
Accordingly, the commission has affirmed the ALJ's dismissal of Ocholi's complaint in this matter.
Kimberly J. Hansen, Senior EEO Representative
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(1)( Back ) Ocholi apparently consulted new counsel about his case around this time, but nothing was ever received by the ERD to indicate he retained counsel to represent him during the settlement discussions.