Blue Comet Diner v. Pennsylvania Human Relations Commission

OPINION BY

Judge LEAVITT.

Blue Comet Diner petitions this Court to review an order of the Pennsylvania Human Relations Commission awarding back pay and prospective pay to Christine Seliga, a former employee of Blue Comet. The Commission issued this order after it found that Blue Comet had breached its agreement to reinstate Seliga to her job. In this case we consider the proper scope of an administrative hearing that is held by the Commission when presented with a complaint that a predetermination settlement of charges of discrimination has been breached.

In 2001, Christine Seliga, a waitress at Blue Comet, was discharged when she contracted hepatitis C. As a result, she filed a complaint with the Commission, asserting that her discharge violated the Pennsylvania Human Relations Act (Human Relations Act), Act of October 27, 1955, P.L. 744, as amended, 43 P.S. §§ 951-963. On April 16, 2003, Blue Comet’s counsel executed a “Respondent and Complainant Agreement” (Settlement Agreement), stating that “[Seliga] will be eligible to return to work at the Blue Comet Diner. Starting May 1, 2003, [Seliga] will be scheduled to work 3rd shift.” Reproduced Record at 98a (R.R. -). The Settlement Agreement was entered on a form prepared by the Commission; referenced the docket number of Seliga’s complaint; and was maintained by the Commission. As a result of the settlement, the Commission’s Executive Director, Homer Floyd, notified Seliga and Blue Comet that the Commission was “closing the case.” R.R. 100a.

When Seliga reported for work on May 1, 2003, Blue Comet’s manager, Sharon Belletiere, asked her to leave because the other waitresses on the shift refused to work with Seliga and had threatened to quit. Thereafter, Seliga filed a petition for reconsideration of adjustment with the Commission alleging that Blue Comet had breached the Settlement Agreement. The Commission determined that sufficient evidence of breach had been presented to merit a hearing on the issue, and it appointed a hearing officer to conduct the proceeding, which took place on September 24, 2004.

Blue Comet’s owner, Chalabosos Manta-sas, testified that he employs approximately forty people in three shifts. According to Mantasas, the first complaints he received about Seliga’s hepatitis were from customers, several of whom indicated that they would no longer patronize the diner if Seliga continued to work there. Several employees also informed Mantasas that they were unwilling to work with Seliga. All of these complaints occurred prior to Seliga’s termination, and well before the parties entered into the Settlement Agreement. Mantasas testified that one employee resigned because of Seliga’s medical condition, but this event also occurred pri- or to the execution of the Settlement Agreement.

Belletiere also testified on behalf of Blue Comet. She explained that she had read pamphlets, on hepatitis C and was aware that it is transmitted primarily through contact with the blood of an infected person. She claimed to have explained this to Seliga’s co-workers; however, one of those co-workers testified at the hearing that hepatitis C is “very contagious” and that she does not know how it is transmitted. R.R. 76a.

At the conclusion of the hearing, the parties opted to submit post-hearing briefs. Seliga’s attorney indicated that he intended to seek an award of prospective pay in lieu of reinstatement. The hearing officer advised the parties to brief that issue as well as the claim that Blue Comet had breached the Settlement Agreement.

In its post-hearing brief, Blue Comet argued that reinstating Seliga would cause an exodus of virtually all of the diner’s employees and many of its regular customers, thereby inflicting an “undue hardship” on the diner’s business. It argued that under Section 12112(b)(5)(A) of the Americans With Disabilities Act (ADA), 42 U.S.C. § 12112(b)(5)(A), it did not have to make an accommodation for Seliga.¹ Blue Comet raised no other defenses to Seliga’s petition, nor did it make any legal argument regarding Seliga’s request for an award of prospective pay.

The hearing officer issued his recommendation and proposed final order on January 11, 2005. There was no dispute that Blue Comet had breached the Settlement Agreement; the only question considered by the hearing officer was whether, under general principles of contract law, the breach was justified. The hearing officer held, first, that Blue Comet’s reliance on the ADA was misplaced because Blue Comet’s obligation arose under the Settlement Agreement.² Treating Blue Comet’s hardship defense as one of impossibility of contract performance, the hearing officer next concluded that Blue Comet failed to meet its burden of proving impossibility because all of its evidence concerned events that occurred prior to the Settlement Agreement. The hearing officer recommended that the Commission award Seliga $8,679.20 for past lost earnings, $6,401.20 for prospective lost earnings in lieu of reinstatement, plus prejudgment and post-judgment interest at the statutory rate of 6% per annum. The Commissioners adopted the hearing officer’s opinion and recommendations in a final order dated February 1, 2005. On March 1, 2005, Blue Comet petitioned this Court to review the Commission’s adjudication.³

On December 15, 2005, this Court entered a per curiam order directing the parties to file supplemental briefs to address the question of whether the Commission had jurisdiction to enforce the Settlement Agreement. Specifically, we asked the parties to consider whether Section 42.73 of the Commission’s Special Rules of Administrative Practice and Procedure (Special Rules), 16 Pa.Code § 42.73, conflicts with Section 10 of the Human Relations Act, 43 P.S. § 960, and whether this Court’s decision in Mechensky v. Pennsylvania Human Relations Commission, 134 Pa.Cmwlth. 192, 578 A.2d 589 (1990), should be overruled. Thereafter, an en banc panel of this Court heard argument from the Commission on March 1, 2006.⁴ The matter is now ready for disposition.

We consider, first, whether the Commission had jurisdiction to conduct a hearing on Blue Comet’s alleged breach of the Settlement Agreement.⁵ Blue Comet posits that Section 42.73 of the Special Rules, which empowers the Commission to enforce a settlement agreement, conflicts with Section 10 of the Act, which requires the Commission to petition a court to enforce a final order. To the extent Mechen-sky supports the procedure followed by the Commission in this case, Blue Comet asks us to overrule that decision.

The Commission rejoins that Section 42.73 of the Special Rules does not conflict with Section 10 of the Human Relations Act but, rather, complements it. The Commission maintains that the regulation provides the necessary first step to the enforcement of a settlement agreement executed under the auspices of the Commission. Section 10 comes into play only after the Commission issues an adjudication. Of course, should the Commission adjudicate there has been no breach of a settlement agreement, then a Section 10 proceeding would never take place. Stated otherwise, the Commission’s position is that a proceeding under Section 42.73 is a necessary predicate to an enforcement action under Section 10, and it may obviate the need for a Section 10 proceeding.⁶

We agree with the Commission that it followed the proper procedure in this case. Nevertheless, we are constrained to conclude that the hearing officer erred in his implementation of Commission procedure by focusing only on whether a breach of the Settlement Agreement occurred. There has been, to date, no determination by the Commissioners that Blue Comet actually violated the Human Relations Act when it terminated Seliga based upon her medical condition. There must be a finding that a violation occurred before the Commission can order any remediation. We will therefore remand this matter to the Commission to determine whether Blue Comet violated the Human Relations Act.

We begin our analysis with a review of the statute.⁷ The Human Relations Act provides that “[i]t shall be an unlawful discriminatory practice ... [f]or any employer because of race, color, religious creed, ancestry, age, sex, national origin or non-job related handicap or disability ... to refuse to hire or employ or contract with, or to bar or to discharge from employment such individual.” Section 5(a) of the Human Relations Act, 43 P.S. § 955(a) (emphasis added). The Commission, a body of eleven members, was created, inter alia, “[t]o initiate, receive, investigate and pass upon complaints charging unlawful discriminatory practices.” Section 7(f) of the Human Relations Act, 43 P.S. § 957(f). The regulation defines “Commission” to be “the Commissioners, staff and counsel.” 16 Pa.Code § 42.3(a).⁸ Where the Commission finds probable cause for crediting the allegations of the complaints, “the Commission shall immediately endeavor to eliminate the unlawful discriminatory practice complained of by conference, conciliation and persuasion.” Section 9(c) of the Human Relations Act, 43 P.S. § 959(c).⁹ If the complaint cannot be resolved by conciliation, the Commission directs the “employer ... to answer the charges of such complaint at a hearing before the Commission at a time and place to be specified in [a written] notice.” Section 9(d) of the Human Relations Act, 43 P.S. 959(d). If, after considering the evidence, the Commission finds that the respondent has engaged in unlawful discrimination, the Commission shall issue an order “to take such affirmative action, including, but not limited to ... reinstatement ... with or without back pay.” Section 9(f)(1) of the Human Relations Act, 43 P.S. § 959(f)(1).

The Commission is vested with broad authority to adopt rules and regulations to effectuate the purposes of the Human Relations Act. Section 7(d) of the Act, 43 P.S. § 957(d).¹⁰ To this end, the Commission has promulgated the Special Rules governing the conduct of hearings, including the facilitation and enforcement of pre-hearing settlements.

Section 42.72(b) of the Special Rules provides that “a conciliation agreement or other predetermination settlement agreement may be entered as a consent order by the Commissioners if all parties consent to the entry and will have the same force and effect as a final order issued by the Commission after a hearing on the merits of a complaint.” 16 Pa.Code § 42.72(b) (emphasis added). In the present case, the Settlement Agreement was a “predetermination settlement agreement” intending to resolve Seliga’s discrimination complaint; was entered on a pre-prepared Commission form; and was docketed with the Commission. The first question, then, is whether the Settlement Agreement “was entered as a consent order by the Commissioners.” 16 Pa.Code § 42.72(b).

The essential ingredients of a consent order entered into with an administrative agency has been explained in treatise authority as follows:

A consent order is an agreement reached in an administrative proceeding between parties one of which is usually the agency’s litigation staff. The agreement is then presented to the agency head. The agency then must decide whether to accept it. If it does, it issues an order much as a court issues a consent decree. The agency need not support the order by any factfinding or conclusions of law. Nonetheless a settlement order will have the same effect as an order issued after an administrative adjudication.

Charles H. Koch, Jr., ADMINISTRATIVE Law and PraCtice 2d, § 5.43 at 155 (1997) (Koch) (emphasis added). In short, a consent order (1) must be presented to and accepted by the agency head and (2) will have the same effect as a final order issued after a formal administrative hearing, i.e., an “adjudication” as that term is defined in the Administrative Agency Law, 2 Pa.C.S. § 101.¹¹

The Commission follows these fundamental administrative law principles with respect to the establishment of a valid and enforceable consent order. In Pennsylvania Human Relations Commission v. Ammon K. Graybill, Jr., Inc., 482 Pa. 143, 393 A.2d 420 (1978), our Supreme Court eon-sidered whether an agreement read into the record by lawyers for the Commission and for the respondent was a consent order. The terms of the agreement were presented to the Commission at its next meeting, and it voted to approve it. However, Graybill, the respondent corporation, never did approve it. Our Supreme Court concluded that a consent order had not been effected. In the absence of Graybill’s approval, the Supreme Court explained that the Commission “should have proceeded ... by resumption of the hearing and the eventual entry of whatever order it determined to be appropriate.” Id. at 149, 393 A.2d at 423 (emphasis added). Because one-sided, incomplete settlement was not a consent order, the Supreme Court held that it could not be enforced in a court proceeding.

The predetermination settlement between Seliga and Blue Comet could have been entered as a consent order by the Commission, but it was not. It was never presented to the Commissioners for their approval at their next meeting. Id. Indeed, the paragraph on the boilerplate Settlement Agreement that might have authorized the document’s entry as a final consent order was crossed out. The deleted paragraph states:

In reliance thereupon, the Respondent and the Complainant request the PHRC and the [Equal Employment Opportunity Commission] to ratify this agreement and to close as adjusted voluntarily the above-docketed complaint charge. It is understood that the closure of this case by the Commission is contingent upon compliance by both parties with the provisions of this agreement.

R.R. 98a. The Settlement Agreement was signed by Blue Comet’s attorney but not by the proprietor of Blue Comet, Seliga or any representative of the Commission.

On August 15, 2003, the Executive Director of the Commission sent a letter to Blue Comet’s counsel stating that it was “closing this case as settled ... [by] the signed agreement executed between you and complainant.” R.R. 100a. The letter does not recite that the Commissioners met and voted to ratify the settlement agreement as a consent order; it does not recite that the Commissioners believed that Blue Comet’s dismissal of Seliga violated the Human Relations Act. In the absence of these recitals, the letter does not memorialize a consent order between the Commissioners, Seliga and Blue Comet. What the letter does signify is a stand down by the agency staff not to proceed further on Seliga’s complaint of unlawful discrimination.¹²

In sum, the Settlement Agreement executed by Blue Comet’s counsel was not a consent order. It was a “predetermination” settlement by Commission staff, but it lacks the imprimatur of the Commissioners. It is the obverse of Graybill, where the settlement in question was approved by the Commissioners at a meeting but not by the respondent. In accordance with Graybill, we hold that the Settlement Agreement was not a consent order.¹³

The nature of the Settlement Agreement is not an academic question; it bears directly on how the Commission should have responded to Seliga’s assertion that Blue Comet refused to honor its agreement to reinstate her. It bears also on the question of whether Section 42.73 of the Special Rules conflicts with Section 10 of the Human Relations Act.

Again, treatise authority is instructive on the interplay between administrative and court enforcement proceedings. As observed by Koch,

[t]here is a tendency to lose interest in the adjudicative process at the point where the order becomes final, after all the opportunities for administrative and judicial review have passed. But there is a second stage which can be of immense practical importance: the enforcement and compliance process. In reality the final order is both the end of one process and the beginning of another process. ... An order has no meaning unless it affects conduct. In [a] benefit and license granting program, this impact necessarily follows the order. Either the benefit is paid out or it is not; either the license is granted or it is not. In the law enforcement context, however, the order must be given effect by some further action ... [that involves] the judicial process.

Koch, § 5.70(1) (emphasis added). A final order directing an employer to reinstate an employee can be given effect, if not obeyed, only with the assistance of the court. As noted, a consent order is a final order. Id. at § 5.43(1). Accordingly, like any final order or “adjudication,” the entry of a consent order “is the beginning of another process.” Id. at § 5.70(1).

Section 10 of the Human Relations Act, 43 P.S. § 960, identifies what Koch terms “another process” with respect to final orders of the Commission. Section 10 states:

The complainant, the Attorney General or the Commission may secure enforcement of the order of the Commission or other appropriate relief. When the Commission has heard and decided any complaint brought before it, enforcement of its order shall be initiated by the filing of a petition in court, together with a transcript of the record of the hearing before the Commission, and issuance and service of a copy of said petition as in proceedings in equity.

43 P.S. § 960 (emphasis added). Section 10 contemplates enforcement of a Commission order in a judicial proceeding only after the Commission has “heard and decided” any complaint. This includes, of course, an adjudication entered at the conclusion of a formal administrative hearing, but it also includes a consent order, entered where the respondent has waived a hearing, upon approval of the Commissioners. This does not include, however, a decision of Commission staff to close its file on a complaint, i.e., a predetermination settlement. In the absence of a final order, the second stage of enforcement, what Koch calls the “enforcement and compliance process” filed pursuant to Section 10, cannot begin.

When Blue Comet refused to honor its agreement to return Seliga to the third shift on May 1, 2003, Seliga petitioned “the Commission to consider whether [Blue Comet had] complied with the terms of adjustment or settlement, or both.” 16 Pa.Code § 42.73(a).¹⁴ She was authorized to take that step under Section 42.73 of the Special Rules, and this is an appropriate mechanism for “resuming” the hearing interrupted by the Settlement Agreement. Because the Settlement Agreement was not a final order, i.e., a consent order, the Commission “should have proceeded ... by resumption of the hearing and the eventual entry of whatever order it determined to be appropriate.” Graybill, 482 Pa. at 149, 393 A.2d at 423.¹⁵

Although the Commission adopted the findings of the hearing officer and entered an order it determined to be “appropriate,” it never resumed the proceedings that were aborted by execution of the Settlement Agreement by Blue Comet’s counsel. The result of those proceedings would have been a determination by the Commission as to whether Blue Comet’s original dismissal of Seliga, as opposed to its refusal to reinstate her, violated the Human Relations Act. Section 9(c) of the Human Relations Act, 43 P.S. § 959(c). The hearing officer presumed that a violation occurred.¹⁶ At oral argument before this Court, the Commission observed that the Commission’s adjudication implicitly found a violation of the Human Relations Act. However, the conclusion that a statute has been violated is not something that can be presumed or implied. The purpose of the Human Relations Act is to prohibit unlawful discrimination, and the core function of the Commission is to determine whether such unlawful discrimination has occurred. The Commission must therefore resume the proceeding interrupted by the Settlement Agreement, because, as discussed above, there has yet to be an adjudication by the Commissioners that Blue Comet violated the Human Relations Act.¹⁷

In sum, Blue Comet was aggrieved by the Commission’s adjudication, and it had the right to appeal to the court “vested with jurisdiction” over Commission adjudications, which is the Commonwealth Court. Likewise, there can be no doubt that the Commission’s decision was an adjudication, which is a

final order, decree, decision, determination or ruling by an agency affecting personal or property rights, privileges, immunities, duties, liabilities or obligations of any or all of the parties to the proceeding in which the adjudication is made.

Section 101 of the Administrative Agency Law, 2 Pa.C.S. § 101 (emphasis added). Because the Commission’s order requires Blue Comet to take remedial steps by way of restoring lost wages to Seliga, it is an order that affects the rights and duties of Blue Comet. Unmistakably, it is an adjudication. Id. The Commission erred, however, by failing to render a final determination on the core issue in this or any other case arising under the Human Relations Act: is the conduct alleged by Seliga in her complaint unlawful discrimination? ¹⁸ Until such a finding is made, the Commission cannot order Blue Comet to undertake remediation of any sort.¹⁹

Accordingly, we vacate the Commission’s order and remand the matter for entry of further findings and, if necessary, further proceedings on Seliga’s complaint in accordance with this opinion.

ORDER

AND NOW, this 28th day of July, 2006, the order of the Pennsylvania Human Relations Commission dated February 1, 2005, in the above-captioned matter is hereby VACATED and the matter is REMANDED for a determination on whether Blue Comet Diner violated the Pennsylvania Human Relations Act.

Jurisdiction is relinquished.

1 . Section 12112(b)(5)(A) of the ADA exempts an employer from making reasonable accommodations to an otherwise qualified employee with a disability where the entity can "demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.” 42 U.S.C. § 12112(b)(5)(A).

2 . The Settlement Agreement was, as discussed below, authorized and governed by the terms of the Human Relations Act.

3 . The matter was submitted on briefs on September 1, 2005.

4 . Blue Comet elected not to participate in oral argument on March 1, 2006.

5 . The Commission argues in its supplemental brief that this Court has improperly raised, sua sponte, the issue of its power to enforce the Settlement Agreement under the guise of subject matter jurisdiction. In support, the Commission cites Riedel v. Human Relations Commission of City of Reading, 559 Pa. 34, 739 A.2d 121 (1999), wherein the Pennsylvania Supreme Court determined that this Court erred by considering, sua sponte, whether a local commission could enact and enforce certain provisions of a human relations ordinance. The Supreme Court admonished this Court for confusing the commission's power to do so with its jurisdiction over the general subject matter presented by the case, i.e., whether appellee had committed an unlawful housing practice. The Commission’s position, and its reliance on Riedel, is not without merit. However, on the spectrum between "power” and "jurisdiction,” we believe the Commission’s authority to conduct a hearing on an alleged breach of a predetermination settlement agreement is closer to a subject matter jurisdictional issue. In any event, in the interest of finality, we shall avoid this largely semantic issue and render a decision on the issue of jurisdiction, which is the important issue in this case.

Contrary to the claim asserted by Judge Smith-Ribner in footnote 1 of her dissent, we do not improperly raise sua sponte the issue of whether the Commission had the power to act in this case. As discussed in the preceding paragraph, we address this issue because the Commission raised it in the supplemental brief it filed in response to this Court's December 15, 2005, order.

6 .In considering the arguments of the parties, we are cognizant that the Commission, like all administrative agencies, can exercise only those powers that have been conferred upon it by the legislature. Pennsylvania Human Relations Commission v. Zamantakis, 478 Pa. 454, 457, 387 A.2d 70, 72 (1978). It is also time-honored that the agency’s interpretation of its enabling statute, and its own regulations, is entitled to great weight and will not be overturned unless clearly erroneous. Eagle Environmental II, L.P. v. Department of Environmental Protection, 584 Pa. 494, 511, 884 A.2d 867, 878 (2005); Mack v. Civil Service Commission, 817 A.2d 571, 575 (Pa.Cmwlth.2003). Thus, in determining whether the Commission acted properly here, we defer to its interpretation of its enabling legislation and its implementing regulations.

7 .The Human Relations Act acknowledges that every Pennsylvanian has the right "to obtain employment for which he is qualified ... without discrimination because of race, color, familial status, religious creed, ancestry, handicap or disability, age, sex [or] national origin....” Section 3 of the Human Relations Act, 43 P.S. § 953.

8 . As has been pointed out by this Court in George Clay Steam Fire Engine and Hose Company v. Pennsylvania Human Relations Commission, 162 Pa.Cmwlth. 468, 639 A.2d 893, 902 (1994), only by reviewing the context of the statute and regulation can it be discerned whether "Commission” means the staff or the agency head, i.e., the Commissioners.

9 . The probable cause determination is made by Commission staff. 16 Pa.Code § 42.3(a) states that "staff ... [determines] whether or not probable cause exists to credit the allegations of the complaint.” If probable cause is not found, the complainant receives a no-action letter, which allows the complainant to file a private action against the perpetrator of the alleged discrimination in the appropriate court of common pleas. The complainant cannot file a civil action in a court without first presenting the complaint to the Commission for its review. 16 Pa.Code § 42.61; Section 12(c) of the Human Relations Act, 42 P.S. § 962(c)(1).

10 . It states in relevant part:

The Commission shall have the following powers and duties: ... (d) To adopt, promulgate, amend and rescind rules and regulations to effectuate the policies and provisions of this act.

43 P.S. § 957(d).

11 . Section 101 of the Administrative Agency Law defines an "adjudication” in pertinent part as "[a]ny final order, decree, decision, determination or ruling by an agency affecting personal or property rights, privileges, immunities, duties, liabilities or obligations of any or all of the parties to the proceeding in which the adjudication is made.” 2 Pa.C.S. § 101.

12 . This staff action is consistent with Section 42.61 of the Special Rules, which states in relevant part as follows:

(a) If, after investigation, the staff determines that no probable cause exists to credit the allegations of the complaint or if, during or after investigation, the staff determines that the case is untimely filed, that the case is moot, that the Commission lacks jurisdiction, that the parties have reached an agreement adjusting the complaint or that another reason exists which legally justifies the dismissal of the complaint, the staff will make a finding reflecting that determination.

(b) A staff finding will be reported to the Executive Director, who may close the case or take other action as may be deemed necessary or appropriate. The Executive Director may appoint, in writing, another staff person who is authorized to close cases in the Executive Director's absence.

16 Pa.Code § 42.61(a)-(b) (emphasis added).

13 . The Commission does not assert that the Settlement Agreement was a consent order; indeed, it claims that it was not an order at all.

14 . The procedure prescribed by Section 42.73 was specifically upheld by this Court in Mechensky v. Pennsylvania Human Relations Commission, 134 Pa.Cmwlth. 192, 578 A.2d 589, 594 (1990) ("CT]his Court does not find Section 42.73 to be an improper extension of the Act.”). In that case, the complainant/employee, like Seliga, entered into a settlement agreement with her employer. The Commission closed the case as "satisfactorily adjusted,” id. at 591, but it is not clear from the Mechensky opinion whether the settlement agreement was approved by the Commissioners as a consent order. Mechensky did not consider the interplay of the Special Rules and Section 10. Mechensky remains good law in that it clarifies that a settlement agreement reached under the oversight of the Commission is not a common law contract, even though it contains elements of a contract. A settlement deals with liability under the Human Relations Act by allowing staff to close a case, (as opposed to dismissing it) while retaining jurisdiction to enforce the settlement by resurrecting the formal proceeding in the event of a breach. Because Mechensky does not consider the issues considered here, it is not inconsistent with our holding and need not be overturned.

15 . In her dissenting opinion, Judge Smith-Ribner suggests that the result we reach today will have a far-reaching, adverse impact upon the Commission’s limited resources. As discussed more fully above, Section 42.72(b) of the Special Rules provides a mechanism for entry of a predetermination settlement as a consent order, thus obviating the need for a hearing on the issue of whether or not a violation of the Act has occurred. Had the parties in the instant case submitted the Settlement Agreement to the Commissioners for their approval, the Settlement Agreement would have been a final consent order that resolved the issue of whether Blue Comet’s conduct violated the Human Relations Act. Under the dissent's view, the staff would bind the Commissioners to their finding that a violation has occurred and there would have been no need for a hearing on the merits of whether Blue Comet violated the Human Relations Act. This is contrary to well established principles of administrative law, and it is directly contrary to Section 7(f) of the Human Relations Act, 43 P.S. § 957(f), which charges the Commissioners to "pass upon complaints ... of unlawful discriminating practices.” See also George Clay Steam Fire Engine and Hose Company, 639 A.2d at 901-903 (distinguishing the role of Commission staff, which determines whether probable cause exists and conducts conferences and conciliation meetings, from that of the Commissioners, who play no role in prosecuting complaints).

16 .In fact, at the inception of the hearing, the hearing officer stated that “this hearing is not to determine discrimination, whether any unlawful discrimination occurred. It is to determine whether or not Blue Comet Diner breached [the Settlement Agreement].” R.R. 26a.

17 . At best, there is a determination that Blue Comet violated a predetermination settlement, which is not, itself, a violation of the Human Relations Act.

18 . It may, or may not, be a defense to a charge of unlawful discrimination that other employees and customers would not accept Seliga in their presence because of her disease. These reasons would not suffice were, for example, Seliga’s race, not her affliction by hepatitis C, the factor that caused her dismissal.

19 .By our holding today, we do not suggest that settlement negotiations between Seliga and Blue Comet were a meaningless exercise. Clearly the present dispute would have been avoided entirely if Blue Comet had reinstated Seliga in accordance with the terms of the Settlement Agreement. As the case now stands, the Commission may determine on remand that Blue Comet violated the Human Relations Act, and, in that event, the terms of the Settlement Agreement will be relevant in fashioning an appropriate remedy.