ELDORA LATHON, Complainant

EMMPAK FOODS INC, Respondent

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed October 30, 2002
lathone . rsd : 110 :   

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

Laurie R. McCallum, Commissioner

Complainant Eldora Lathon filed her complaint with the Equal Rights Division (ERD) on December 5, 2000. It alleged that her employer, Emmpak Foods, had discriminated against her because of age and sex when it refused her requests to be transferred to third shift; it also contained other allegations which were in the nature of complaints of discrimination in conditions of employment.

Only a few weeks later, on December 26, 2000, the ERD received a letter from Emmpak's Human Relations director, Paul H. Sobczak, which stated, "Please see attached resolution signed by Eldora Lathon." Enclosed with the letter was a copy of the second page from Lathon's ERD complaint (on which she had described the substance of her claims); below this, in handwriting, was the following:

                                                   December 19, 2000
I do not wish to pursue this matter & charge since I am 
going to 3rd shift as a general laborer with a reduction in 
pay. I understand now how I could get to 3rd shift. 
                                            Eldora Lathon 12/19/'00
                                        Paul H. Sobczak 12/19/'00

Notwithstanding the filing of this document, the ERD investigator continued the investigation into Lathon's charge. Emmpak again filed a copy of this document with the ERD in January, 2001, but the investigator continued to investigate the charge. Eventually, the investigator issued an Initial Determination concluding that there was no probable cause to believe that discrimination had occurred. Lathon filed a timely appeal, and the matter proceeded to hearing on the probable cause issue.

At the hearing, Lathon presented her case through her testimony, and then rested. At that point, Emmpak moved to dismiss, based on the December 19, 2000 agreement. The ALJ granted Emmpak's motion to dismiss. Lathon has petitioned for commission review.

The commission agrees with the ALJ, that Lathon and Emmpak arrived at an agreement to settle this case on December 19, 2000. As the ALJ noted in his decision, Lathon testified at the hearing that she understood on December 19, 2000, that, in return for being able to move to the third shift as she desired, she was agreeing to dismiss her complaint when she signed the statement. Specifically, Lathon testified that after she filed her complaint, Mr. Sobczak offered her a chance to transfer to third shift, and that she signed the December 19, 2000 agreement to indicate that she did not wish to pursue her ERD complaint since she was being transferred to third shift. The evidence persuades the commission that the transfer to third shift was not a gratuitous step by Emmpak, but was in fact offered by it in consideration of, and only because of, Lathon's agreement to sign a statement confirming that she did not wish to pursue her discrimination charge. That the transfer was true consideration for the agreement, rather than a mere unilateral gratuity, is indicated by Lathon's testimony that she signed the agreement because she believed that there was no other way to get to third shift.

The commission has considered the somewhat unusual circumstance, that the ERD continued to process the complaint even after the settlement had been brought to its attention. It is not entirely clear why this happened, but it appears that the ERD Investigator may have believed that what had occurred was nothing more than a tentative expression by Lathon of a possible interest in withdrawing her complaint, which she then decided against. However, for the reasons discussed above, including both the terms of the December 19, 2000 agreement and Lathon's testimony about her reasons for signing it, the commission is persuaded that there was indeed a settlement of the complaint in this matter.

In her petition for review, Lathon argues that while she did sign the agreement, she did not have a choice, and that in any event she should not have been asked to. The commission does not agree. She could have chosen to continue to pursue her complaint in an effort to get a decision by the ERD that there had been discrimination as she alleged and to thus obtain a full remedial order. She chose to compromise by giving up pursuit of her complaint in exchange for an immediate transfer to third shift, which was one of the things she had been seeking. There is no evidence that there was any improper pressure or duress brought to bear on her in connection with her making that decision.

For the foregoing reasons the commission affirms the ALJ's decision to dismiss the complaint based on the fact that Lathon agreed as part of a settlement agreement not to pursue the complaint.

cc: James R. Scott, Attorney for Respondent

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uploaded 2002/11/08