Subchapter G. FINDING OF PROBABLE CAUSE AND
PREHEARING CONCILIATION
Sec.
42.71. Finding of probable cause.
42.72. Conciliation and adjustment.
42.73. Reconsideration of adjustment.
42.74. Notice of right to bring an action in the court of common pleas.
42.75. Conciliation meetings and prehearing conferences.
42.76. Rescission of finding of probable cause.§ 42.71. Finding of probable cause and attempts at conciliation after service of the complaint.
(a) If, after a preliminary investigation, the Commission determines that probable cause exists to credit the allegations of the complaint, a finding of probable cause will be made.
(b) Whether or not a finding of probable cause is made, the Commission will, after service of the complaint, encourage a voluntary and informed predetermination settlement between the parties. If a finding of probable cause is made, the Commission will endeavor to eliminate the unlawful discriminatory practice by conference, conciliation and persuasion.
Source The provisions of this § 42.71 adopted August 13, 1976, effective August 14, 1976, 6 Pa.B. 1887; corrected August 20, 1976, effective August 14, 1976, 6 Pa.B. 1985; amended April 19, 1991, effective April 20, 1991, 21 Pa.B. 1909; amended December 17, 1993, effective December 18, 1993, 23 Pa.B. 5897. Immediately preceding text appears at serial page (156372).
Notes of Decisions It is the Commission staff, and not the Commissioners, which is the body vested with the responsibility for determining whether probable cause exists and conducting conference and conciliation meetings. The court, therefore, determined that the Commission, which acts as the ultimate finder of fact, did not improperly commingle its prosecutorial and adjudicatory functions and deprive the company of its due process rights. George Clay Steam Fire Engine and Hose Co. v. Human Relations Commission, 639 A.2d 893 (Pa. Cmwlth. 1994); appeal denied 656 A.2d 120 (Pa. 1995).
Cross References This section cited in 16 Pa. Code § 42.63 (relating to action on request for a preliminary hearing).
§ 42.72. Conciliation and adjustment.
(a) If the unlawful practice complained of is eliminated by conference, conciliation and persuasion, the material terms of the adjustment may be incorporated into a conciliation agreement.
(b) 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.
(c) When the formal offer of adjustment by a respondent is acceptable to the Commissioners but not to the complainant, the Commission may close the case and the complainant may proceed in the appropriate court of common pleas under section 12(c) of the act (42 P. S. § 962(c)).
Source The provisions of this § 42.72 adopted August 13, 1976, effective August 14, 1976, 6 Pa.B. 1887; amended April 19, 1991, effective April 20, 1991, 21 Pa.B. 1909; amended December 17, 1993, effective December 18, 1993, 23 Pa.B. 5897. Immediately preceding text appears at serial page (156372).
§ 42.73. Reconsideration of adjustment.
(a) A party shall have the right to petition the Commission to consider whether another party has complied with the terms of adjustment or settlement, or both.
(b) A party may file a petition under this section regardless of whether a finding of probable cause has been made in the case.
(c) The Commission will consider the petition and take whatever action it deems necessary or appropriate, as justice may require; except that the Commission will not, in any case, enforce an adjustment or settlement which is not in writing and signed by the party against whom enforcement is sought.
Source The provisions of this § 42.73 adopted August 13, 1976, effective August 14, 1976, 6 Pa.B. 1887; amended April 19, 1991, effective April 20, 1991, 21 Pa.B. 1909. Immediately preceding text appars at serial page (123150).
Notes of Decisions Judicial Review Appropriate
The court had the authority to review an employer’s compliance with a settlement agreement entered into pursuant to employe’s equal employment and opportunity complaint. News-Chronicle Co. v. Human Relations, 672 A.2d 400 (Pa. Cmwlth. 1996).
Court could not exercise jurisdiction over employer’s request for Writ of Prohibition against Human Relations Commission investigation and exercise of jurisdiction over complaint brought under this section, where Commission had issued interlocutory order indicating necessity of preliminary hearing to determine procedural issues and for analysis of original settlement agreement. McGraw-Edison Co. v. Human Relations Commission, 529 A.2d 81 (Pa. Cmwlth. 1987).
§ 42.74. Notice of right to bring an action in the court of common pleas.
Upon the dismissal of a complaint, the denial of a request for reconsideration, the dismissal of a complaint after reconsideration or the expiration of a statutory period in the act or the Fair Educational Opportunities Act, if the Commission has not entered into a conciliation agreement to which the complainant is a party, the Commission will notify the complainant in writing of the right of the complainant to bring an action in the court of common pleas, in accordance with section 12(c) of the act (43 P. S. § 962(c)), and of the duty of the complainant to serve a copy of the court complaint on the Commission, in any action so brought, at the same time the complaint is filed in court.
Source The provisions of this § 42.74 adopted August 13, 1976, effective August 14, 1976, 6 Pa.B. 1887; amended April 19, 1991, effective April 20, 1991, 21 Pa.B. 1909; amended December 17, 1993, effective December 18, 1993, 23 Pa.B. 5897. Immediately preceding text appears at serial page (156373).
§ 42.75. Conciliation meetings and prehearing conferences.
(a) Conciliation meetings will be governed by 1 Pa. Code § 35.111 (relating to conferences to adjust, settle or expedite proceedings), except that the meetings need not be held before the agency head or a presiding officer, but will be conducted by Commission staff.
(b) Prehearing orders and conferences will be governed by 1 Pa. Code § § 35.112—35.120 except that a prehearing conference may be conducted before a Commissioner or a person authorized by the Commission to serve as a presiding officer.
(c) Subsection (a) supersedes 1 Pa. Code § 35.111; subsections (b) and (c) supplement 1 Pa. Code § § 35.112—35.120.
Source The provisions of this § 42.75 adopted August 13, 1976, effective August 14, 1976, 6 Pa.B. 1887; amended April 19, 1991, effective April 20, 1991, 21 Pa.B. 1909. Immediately preceding text appears at serial page (123150).
§ 42.76. Rescission of finding of probable cause.
(a) The Commission may rescind a finding of probable cause, if the Commission determines that the finding is no longer appropriate.
(b) If a finding of probable cause is rescinded the case will thereafter proceed as if the finding had not been made, which may result in the case being closed under § 42.61 (relating to dismissal of complaints). If the case is closed, the parties will be notified under § 42.61(c), which includes, but is not limited to, the right of the complainant to file a timely request for a preliminary hearing under § 42.62 (relating to request for a preliminary hearing).
Source The provisions of this § 42.76 adopted April 19, 1991, effective April 20, 1991, 21 Pa.B. 1909.
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