STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

LARRY G. BURTON, Complainant

UNITED GOVERNMENT SERVICES LLC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR200303077


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 makes the following:

FINDINGS OF FACT

1.  UGS was a company that administered Medicare claims for federal employees. Larry Burton was a supervisor with UGS and supervised 10 to 12 employees. Burton had a master's degree in business management.

2.  Burton filed a charge with the EEOC (Case No. 260-200302763C) on or about August 7, 2003, alleging that UGS had discriminated against him on the basis of age, sex, disability, national origin, race, color and his opposition to a discriminatory practice, in regard to terms and conditions of employment, compensation, and promotion. This charge was cross-filed with the ERD, but because the original filing was with the EEOC, the ERD held the complaint in abeyance pending the outcome of the EEOC charge. On May 17, 2004 the EEOC issued a notice of dismissal of the EEOC charge and a notice of right to sue. The ERD then contacted Burton and asked him if he wanted the ERD to investigate the complaint under state law. Burton said he did. The ERD assigned that complaint ERD Case No. CR200303077. On December 15, 2004 the ERD issued an Initial Determination finding no probable cause to believe that the Respondent, UGS, had violated the Wisconsin Fair Employment Act (WFEA). Burton appealed to the hearing section of the ERD, and the case was certified for a hearing on probable cause.

3.  About one month before the hearing on probable cause, Burton filed two more complaints with the ERD against UGS. (1)   At the time of the events described below these two complaints were still pending before the Investigation Bureau of the Equal Rights Division and no Initial Determinations had yet been issued regarding them.

4.  On May 19, 2005 the parties gathered for a hearing on probable cause before an administrative law judge in ERD Case No. CR200303077. Immediately before the hearing began, the parties agreed, at the ALJ's invitation, to have settlement discussions outside the presence of the ALJ. Participating in the discussions for the Respondent were Attorney Eric Rumbaugh of the law firm Michael Best & Friedrich, Dawn Matos, a former in-house counsel for UGS and currently an in-house counsel for its parent company, WellPoint, and Janine Harris, a former officer with UGS and currently a human resources director for WellPoint. Burton represented himself in these discussions.

5.  The discussions took about an hour. Most of that time was taken up by Burton stating his views about how he had been treated at UGS. The representatives for UGS then offered Burton $110,000 for a global settlement of Burton's complaints against UGS, which would include Burton's resignation from UGS as an essential term. Burton accepted that offer. There were then discussions about matters including payment of a certain amount to a former attorney for Burton, how the timing of the payment to Burton (which he expressed an interest in speeding up) would relate to withdrawal and dismissal of his complaints against UGS, and the fact that the settlement agreement would have Older Worker's Benefit Protection Act language in it providing a 21-day consideration period and a 7-day revocation period. During the discussions Burton stated that if he resigned he wanted to have the opportunity to go to his office, collect his belongings and say goodbye to his co-Worker's.

6.  During these off-the-record discussions outside of the presence of the ALJ, Attorney Rumbaugh did not tell Burton that if Burton "chose not to resign within seven days, all of what we are doing today goes away and [he would] return to work as though nothing ever happened," or anything of that nature. Rumbaugh also did not tell Burton that he had to sign and file withdrawal requests with the ERD that day.

7.  Immediately after the off-the-record discussions outside of the presence of the ALJ, the parties called the ALJ back into the room and told her that they had reached an agreement. The ALJ then went on the record in the case, and the proceedings were transcribed by an independent court reporting service. Attorney Rumbaugh recited the terms of the agreement to the ALJ. First, the parties agreed that Burton would sign withdrawals of the three complaints on file with the ERD and EEOC. Then, Attorney Rumbaugh described that the dismissal language in the written agreement would be broad, encompassing entities related to UGS, and employees of UGS. The ALJ asked Burton if he understood that. Burton said he did. Attorney Rumbaugh then indicated that Burton's release of claims would be complete up until the signing of the agreement. Again the ALJ asked Burton if he understood that, and he said he did.

8.  Attorney Rumbaugh then stated:

Mr. Burton is going to resign his employment, or he hereby resigns his employment, and he's going to announce it tomorrow. He's going to go into his office, announce that he's resigning, and he's got-he's going to truthfully say that he's resigning to take care of his mother, and he will gather his personal belongings, and he will leave.

Burton then said: "I have to see Dawn." Attorney Rumbaugh replied: "She will -You will go in and see Dawn Matos, and he will execute the settlement documents."

9.  Then the following exchange took place:

MR. RUMBAUGH: We've explained the Older Worker's Benefit Protection Act 21 and 7-day periods. He'll have 21 days to consider, 7 days to revoke after he signs, however, dismissal of this case will be effective today.

THE JUDGE: And the other ones that I get the numbers for.

MR. RUMBAUGH: As soon as the--. Right. That's going to happen right away, but he will still have the right to revoke with respect to the rest of the settlement agreement.

THE JUDGE: For the EEOC. Do you understand that?

MR. BURTON: Yeah.

10.  Attorney Rumbaugh then continued reciting terms of the agreement, including a confidentiality provision,  (2)   a mutual non-derogation provision, a provision that Burton would not apply for work in the future for the Respondent, and some details regarding the method by which UGS would make a settlement payment, and make payment to an attorney who had been representing Burton in the case but who was no longer representing him by May 19, 2005. Then there was the following exchange:

THE JUDGE: And I've got the ERD and EEOC numbers for those two other cases now. I have - I looked them up on our computer and I have got the one from mine. So I made a withdrawal form that has the ERD and the companion EEOC ones that are in abeyance. I've made one withdrawal form for you to sign for that and then one just for this case, because the EEOC case in this matter has already been disposed of, so there is no EEOC case.

So I will give you these to sign, and I will await confirmation that I can issue the order of dismissal, or can I issue -

MR. RUMBAUGH: You can issue the order of dismissal immediately.

THE JUDGE: Is that correct, as far as you're concerned?

MR BURTON: That's okay.
. . .
THE JUDGE: All right, So then by signing these documents you understand I'm going to withdraw - I'm going to dismiss your case today. I will give these - this other withdrawal document to the investigation, they will dismiss your other two cases, we will send the information on to the EEOC for them to dismiss those cases, and you will then be part of this agreement, and eventually, once everything is done, you will then get your $110,000 from the respondent, less the taxes and the amounts paid to any attorney that you decide to do, okay?
. . .
Is there anything else then before we go off the record? I want to make sure that we're okay before we go off the record. Is there anything?

MR. BURTON: Yes, you can go off.

THE JUDGE: All right. Thank you very much. I appreciate your time. I will be dismissing these matters, and I appreciate your help.

11. On May 19, 2005, after the record was closed, Burton signed and dated the withdrawal form for ERD Case Nos. 200501368 and 200501525, and the companion EEOC cases, 26GA501158 and 26GA501119.  (3)   He submitted this form to the ERD, and on May 20, 2005 an Equal Rights Officer of the ERD's Investigation Bureau issued orders dismissing those complaints with prejudice.

12. Also on May 19, 2005, Burton signed and dated a withdrawal form for this case, ERD Case No. CR200303077, and submitted it to the ERD. The case number on the form, however, was missing a digit (it read "20030377" instead of "200303077"). The ALJ noticed the mistake later and did not issue a dismissal based on the form, but instead called and asked Burton to submit a new request to withdraw with the correct ERD case number.

13. After Burton got home on May 19, 2005 and talked to his wife about the terms of the settlement, he changed his mind and decided not to accept the settlement. At around 10:00 or 10:30 that evening he attempted to contact Harris and Matos by telephone. He did not actually reach them, but left voice mail messages telling them that he would not agree to the settlement terms, and that he wanted more money.

14. On the evening of May 20, Harris and Matos spoke together on the phone with Burton, telling him they had received his message and that they were discussing how they needed to proceed. They said they would be calling him back on the following morning.

15. On the morning of May 21 Harris and Matos spoke together on the phone with Burton. They asked him, in substance or effect, what was going on with him. They gave him an opportunity to talk, and Burton took that opportunity, talking about his career at UGS starting from the beginning. Burton talked about how he had done all he had been asked to do. He talked about a situation involving a promotion. The call was a long one. Eventually there was a discussion about how much money Burton wanted to settle, and Burton asked for $150,000. Harris and Matos said they would get back to Burton and would make arrangements for a meeting in Rumbaugh's office. Arrangements were eventually made for the parties to meet on May 25.

16. During the off-the-record discussion between the parties on May 19, 2005, the representatives of UGS understood from things Burton said that he was upset about how he felt he had been treated at UGS. At that time, this did not concern them at such a level as to lead them to decide not to allow Burton to go up to his office to collect his personal effects and say goodbye to his co-Worker's. However, in the voice mail message he left on the night of May 19, 2005, Burton sounded quite upset and very angry, and in his telephone conversation with Harris and Matos on the morning of May 21, Burton was again very upset, emotional and angry and was sometimes crying. Considering all of those things, UGS made a decision on May 23 that even if an agreement were successfully re-negotiated, Burton would not be allowed to go up to his office.

17. Burton met with Attorney Rumbaugh, Matos and Harris on May 25, 2005. The meeting lasted 30 minutes to an hour. Burton was given a proposed written settlement agreement increasing the payment to him from $110,000 to $150,000. Attorney Rumbaugh went through the settlement agreement paragraph by paragraph with Burton. Burton was given time to read the document and to ask questions about what it meant. Burton had few questions about the document, and appeared to be very satisfied with the terms. After reviewing the document, Burton took a few minutes to consult with his wife by telephone, then he and a representative for UGS signed and dated the agreement.

18. The first paragraph of the settlement agreement stated:

Burton hereby voluntarily resigns his employment with UGS, effective May 19, 2005. Burton also waives any claim or right to any future employment and/or reemployment with UGS; and the Parties agree that Burton shall not be employed or reemployed by UGS after May 19, 2005. Burton will announce his resignation on May 25, 2005, by telephone to Bertha Anthony. Burton will arrange through Dawn Matos (414-226-2830) for a time to retrieve his personal belongings from UGS premises. Other than retrieval of his personal belongings, Burton shall not be present on the premises of UGS or WellPoint, Inc, after the execution of this Agreement.

19. During the meeting on May 25, 2005, the only thing said by anyone about the topic of Burton's announcement of his resignation and his arranging to get his personal belongings, was reference to the statements in paragraph number 1 of the settlement agreement. In that meeting, Burton said nothing about going into the office and saying goodbye, and nothing about announcing that he was resigning to take care of his mother, and Matos said nothing about needing a babysitter in connection with Burton coming in to the office.

20. Paragraph 11 of the settlement agreement stated:

Entire Agreement. This Agreement constitutes the entire agreement between the Parties, and supercedes [sic] and replaces all prior representations, statements, promises, commitments, and agreements between the Parties whether oral or written, expressed or implied. No other promises or agreements shall be binding unless signed by all Parties.

Because of this provision, the previous oral agreement on May 19, 2005, about Burton being allowed to go into his office, announce that he was resigning to take care of his mother, and gather his personal belongings, was no longer in effect and was not part of the settlement agreement of May 25, 2005.

21. Paragraph 2 of the settlement agreement contained the following language about submission of withdrawal forms by Burton:

...The payments above shall be made ten (10) business days after the latest of the following events: expiration of the seven (7) day revocation period below; dismissal with prejudice of ERD Case No. 200303077, ERD Case No. 200501368, and ERD Case No. 200501525; and dismissal and termination of proceedings by the EEOC in EEOC Case No. 26GA501158, and EEOC Case No. 26GA501119. Burton shall take whatever steps are necessary to cause and expedite such dismissals...

22. In paragraph 3(c)iii of the settlement agreement it stated that Burton agreed that his resignation would be final and irrevocable.

23. Paragraph 10 of the settlement agreement stated:

Severability. The parties have attempted to create an Agreement that is lawful and enforceable in all aspects. In the event that any provision of this Agreement is found or deemed to be illegal or otherwise invalid or unenforceable, whether in whole or in part, such invalidity shall not affect the enforceability of the remaining terms hereof.

24. Paragraph 14 of the settlement agreement stated:

In executing the Settlement Documents, Burton acknowledges that:

(a) He has read this Agreement, understands its contents and agrees to its terms and conditions of his own free will. Burton represents and warrants that he is familiar with reading business and legal documents, and is familiar with all of the language in this Agreement

(b) He has been advised to consult with an attorney prior to executing this Agreement. This Agreement was freely and fairly negotiated between the Parties, and was reviewed and discussed in the presence of Administrative Law Judge Alice DeLaO.

(c) He understands that this Agreement includes a final general release and waiver and that he can make no further claims against the Released Persons and Entities in connection with his employment or the termination thereof, or any other matter, whatsoever, known or unknown.

(d) This Agreement is executed in exchange for consideration for which Burton would not otherwise be entitled, the sufficiency of which Burton acknowledges.

(e) He has had sufficient time to consider this Agreement and Burton acknowledges that he has up to twenty-one (21) days to consider this Agreement.

(f) This Agreement does not purport to and does not waive any rights Burton may have which arise after the date on which this Agreement is finally executed.

(g) Burton may revoke this Agreement for a seven (7) day period following the date of his signature, and this Agreement shall not become effective or enforceable until the seven (7) day revocation period has expired. (bold face and underlining in original)

(bold face and underscoring in original).

25. Burton was happy about the terms of the settlement agreement and was eager to get the matter wrapped up so he could receive payment as soon as possible. He willingly signed and dated the agreement at the meeting on May 25, 2005, knowing that one of the elements of his performance under the agreement was to file with the ERD a request to withdraw his complaint.

26. During the meeting on May 25, 2005, Rumbaugh did not tell Burton that he had to sign and file withdrawal requests with the ERD that day, and he did not tell Burton that he could not take the settlement agreement home to think about it. At that time, Burton knew that he could wait until the expiration of the settlement agreement's seven-day revocation period before filing his request to withdraw his complaint with the ERD. Burton knew that the filing of his request to withdraw his complaint with the ERD would result in an order from the ERD dismissing that complaint. He chose not to wait to file his request to withdraw his complaint, because he was in a hurry to get the money from the settlement.

27. On May 25, 2005, after the meeting at which he signed the settlement agreement, Burton wrote, dated, and signed, and delivered to the ERD, a written statement addressed to the ALJ in the case, stating that a settlement agreement had been reached and that he would like to close case #200303077.

28. Also on May 25th, after the meeting at which he signed the settlement agreement, Burton called Bertha Anthony and told her he was resigning and that he planned to be in the next morning to pick up his belongings. Matos called Burton later on May 25th and left a message for him informing him that he would not be able to go into his work area, that his personal effects were going to be collected, and they would be available for him to pick up at the security station. Burton and Matos then had a phone conversation on the morning of May 26th in which Burton tried to persuade Matos to let him visit his office. Matos refused to allow him to do so.

29. On May 27, 2005, based on and as a result of the written request to close the case which had been filed by Burton with the ERD on May 25, 2005 as described above in Finding of Fact 28, the ALJ issued an order dismissing this case with prejudice.

30. On May 30, 2005 Burton sent a letter to Matos at UGS stating that he was revoking his agreement to the settlement signed on May 25, 2005. In his letter Burton complained about UGS' refusal to allow him to go into his office to collect his belongings and say goodbye to his co-Worker's. He also offered to settle the case on new terms providing him substantially more money ($200,000, three years' health coverage, and $17,396 for his former attorney).

31. Burton's employment with UGS ended on May 25, 2005. The terms of the settlement agreement that were not performed as of May 30, 2005 have remained unperformed.

 

Based on the Findings of Fact made above, the commission makes the following:

CONCLUSIONS OF LAW

1. The written, dated, and signed document, stating that a settlement agreement had been reached and that he would like to close case #200303077, which Burton gave to the ALJ on May 25, 2005, was a request for withdrawal of the complaint in this matter within the meaning of Wis. Adm. Code Ch. DWD § 218.03(7) "Withdrawal Of Complaint."

2. Burton's filing of a request for withdrawal of his complaint on May 25, 2005 was unconditional, was voluntary, was intentional, and was done with knowledge that it would result in the issuance by the ALJ of an order dismissing the complaint.

3. Because of Burton's filing of a request for withdrawal of his complaint on May 25, 2005, the dismissal of that complaint was required by Wis. Adm. Code Ch. DWD § 218.03(7)

4. The Department does not have authority to entertain actions for reformation, enforcement or breach of contract regarding the settlement agreement signed by the parties.

 

Based on the Findings of Fact and Conclusions of Law made above, the commission makes the following:

ORDER

The complaint in this matter is dismissed.

Dated and mailed November 21, 2011

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

It is not disputed that complainant Larry G. Burton signed and filed with the Equal Rights Division a request to withdraw his complaint in ERD Case No. 200303077, and that the dismissal of that complaint followed. The issue in this case is whether Burton's complaint was appropriately dismissed.

The filing of that withdrawal request occurred in the context of settlement negotiations and other interactions taking place over a number of days. Given the assertions and arguments of the parties, the issue of whether the dismissal of the complaint was appropriate turned at least in part on disputed issues of fact. Because of the fact-dependence of the issue presented here, in its previous decisions in this case the commission directed that either a stipulation of facts be obtained from the parties or that they be provided an opportunity for hearing.

After a long process (4)  an evidentiary record was finally created, allowing specific findings to be made as to what occurred in the process leading up to the filing of the withdrawal. The ALJ who presided at the most recent remand in this matter made such findings, and based thereon, he issued a decision concluding that the dismissal of the complaint was appropriate. Burton petitioned for commission review. The commission now affirms the decision of the ALJ, based on the Findings of Fact and Conclusions of Law set forth above, and for the reasons set forth herein.
 

The Commission's Findings Of Fact --

In its review in this matter, the commission carefully considered the testimony of the witnesses and the relevant documentary evidence. With one material exception (discussed below), the commission agreed with the findings of the ALJ, and with the ultimate conclusions of the ALJ that Burton filed an unconditional request to withdraw his complaint and that his filing of that withdrawal request was a knowing and voluntary act on his part. The findings of fact made by the commission above largely track those made by the ALJ; where there are modifications and additions they were made in an attempt to clarify and describe the events involved more fully.

The exception referred to above, is that the commission did not agree with the ALJ's finding as to a statement alleged to have been made by Attorney Rumbaugh to Burton on May 19, 2005.

Burton testified that in the off-the-record proceedings outside of the presence of the ALJ on May 19, 2005, Attorney Rumbaugh said to Burton, "if you chose not to resign within seven days, all of what we are doing today goes away and you return to work as though nothing had ever happened." Rumbaugh, Matos and Harris all testified that Rumbaugh did not say that or anything of that nature.

The ALJ found that Rumbaugh did make this statement. He explained his resolution of this credibility dispute by saying that while Rumbaugh denied it, "the certainty with which Burton testified about it, in particular that he remembered it verbatim, was persuasive." (5)

The commission disagreed with the ALJ on the factual question of whether Rumbaugh actually made this statement to Burton, for a number of reasons.

For one thing, the record shows that the "certainty" which Burton claimed and which the ALJ said he was persuaded by, was not necessarily tied to a direct recollection. When Burton gave his testimony about this, the ALJ observed that he was reading from a document. Further questioning established that Burton was reading from a letter he had previously mailed to the commission in which he had purported to recite the comment word-for-word, that he explained his certainty in the letter's recitation of the comment by claiming that it was based on contemporaneous notes he took when the statement was made by Rumbaugh, and that those notes had in fact been accidentally destroyed at some point in the past, even before the letter was written.

Given this convoluted history, the commission does not have faith that Burton's testimony at the hearing in this matter reflects an actual recollection on his part of Rumbaugh allegedly making the statement. It is too tied up with documents Burton had or claimed to have had; it appears to have instead reflected Burton's recollection of what was in a chain of documents. The commission finds the fact that he testified to remembering the statement verbatim to be unpersuasive, because the source of his supposed verbatim recollection could simply be his own writings in which he has been repeating a version of the incident to himself.

For another thing, the testimony of Rumbaugh, Harris and Matos that Rumbaugh did not say such thing to Burton in the May 19, 2005 meeting, was at least as "certain" as Burton's testimony that he did.

In addition, it seems unlikely that such a statement would have been made, given what was said only shortly thereafter when the ALJ had returned and the proceedings were on the record. At that point, as reflected by Ex. 1 (the transcript of proceedings before ALJ DeLaO), this was said:

MR. RUMBAUGH: We've explained the Older Worker's Benefit Protection Act 21 and 7-day periods. He'll have 21 days to consider, 7 days to revoke after he signs, however, dismissal of this case will be effective today.

THE JUDGE: And the other ones that I get the numbers for.

MR. RUMBAUGH: As soon as the -- . Right. That's going to happen right away, but he will still have the right to revoke with respect to the rest of the settlement agreement.

THE JUDGE: For the EEOC. Do you understand that?

MR. BURTON: Yeah.

(emphasis added). If, in the off-the-record proceedings which had taken place only a few minutes before this, Rumbaugh had made the statement Burton claims, it seems very unlikely that Burton would have let these comments by Rumbaugh and ALJ DeLaO go by without a question. They conflict too sharply with the alleged Rumbaugh comment.

Finally, the commission is doubtful about Burton's credibility because in his testimony he was frequently inconsistent, and evasive, on material points. Examples of this, by no means the only ones, are that he gave inconsistent answers about whether he knew he wouldn't get any settlement money until the dismissal orders were received, about whether at the meeting on May 25 he was given a copy of the written settlement agreement when he entered the room, about whether he could have waited to file the withdrawals of his complaints, and about whether in mediated settlement negotiations prior to May 19 his resignation was discussed as a potential part of settlement. He was evasive when asked whether he read paragraph 1 of the written settlement, when asked if in the May 25 settlement meeting he ever actually said that he felt rushed, and when asked whether and to what extent he read the settlement agreement before signing it on May 25.

Another factor which caused the commission to question the reliability of Burton's testimony generally was his unbelievable suggestion that paragraph 11 (and other parts) of the settlement agreement could possibly have been absent when he signed the document and only have been added later. The presence of paragraph 11 -- the "Entire Agreement" provision, which eliminated any and all prior representations, promises, agreements , etc. -- was clearly very relevant and material to Burton's claim about a prior statement by Rumbaugh, as well as to Burton's position that there was a violation of a prior agreement about allowing him to return to his office. The notion suggested by Burton's testimony in this respect, that there could actually have been large white spaces between non-consecutively-numbered paragraphs where UGS added that and other text later, bespeaks a willingness on Burton's part to refuse to acknowledge the obvious. Such a willingness is inconsistent with reliable testimony.

Throughout his testimony, Burton returned time and again to his assertion about Rumbaugh's alleged statement. He did so try to explain how he could have seriously believed, that the irrevocable acts he was taking were somehow still going to be revocable. Not crediting the assertion about Rumbaugh supposedly having made this statement, the commission also does not believe the assertions about Burton's beliefs which he claimed were based largely on such a statement. Rather, the commission credits the evidence that Burton understood the meaning and effect of the steps he was taking, including the submission of a request to withdraw his complaint, and that he took such steps even before the expiration of the 7-day revocation period allowed him in the agreement, not because he thought that the steps could be undone, but because he was willing to take those steps before he had to in order to speed up his receipt of the settlement proceeds. 
 

The Commission's Legal Conclusions Based On Its Findings-

As the commission noted in its November 18, 2005 decision in this matter, the administrative rules of the Equal Rights Division provide in Wis. Adm. Code Ch. DWD § 218.03(7) that "[u]pon the filing of a request for withdrawal, the department shall dismiss the complaint by written order," (emphasis added) and based on that provision the commission has repeatedly held that once a withdrawal is filed, dismissal of the complaint is required. See, e.g., Oehldrich v. Wausaukee Rescue Squad Inc., ERD Case No. CR200104064 (LIRC, Oct. 29, 2004); Kellar v. Copps Gas Station, ERD Case No. CR200203601 (LIRC, Jan. 28, 2004); Lokken v. General Casualty of Wisconsin, ERD Case No. CR20001635 (LIRC, May 30, 2002); Gribbons v. Chart Industries Inc., ERD Case No. CR20002829 (LIRC, Mar. 26, 2002); Johannes v. County of Waushara Exec. Committee Bd. of Supervisors, ERD Case No. 9321736 (LIRC, Nov. 1, 1993).

The commission also noted, however, that in two cases, Hatcher v. Larson, ERD Case No. 9303551 (LIRC, Aug. 26, 1994), and Walsh v. Rothe, ERD Case No. 200000848 (LIRC, Nov. 29, 2002), it had reached a different result.

In Hatcher, while it was undisputed that a written request for withdrawal had been filed, the complainant's attorney asserted that the request for withdrawal was signed and filed "inadvertently" and that the complainant did not wish to withdraw his complaint. The commission concluded that it was "most probable that neither Hatcher nor his attorney ever had any intention of withdrawing Hatcher's complaint, and that the signing and filing of the withdrawal was a mistake ab initio." On that basis it set aside dismissal of the complaint.

In Walsh the parties had an oral settlement and the complainant filed a withdrawal understanding that the case would be dismissed once the oral agreement was reduced to writing. The attempt to reduce the agreement to writing failed, though, when the parties were unable to agree on certain terms. Nevertheless the ALJ dismissed the complaint based upon the terms of the settlement as he understood them and upon the signed withdrawal form. Terms of settlement were set forth in the administrative law judge's order. The respondent petitioned for review, objecting that the parties had not agreed that if the oral settlement was not finalized the ALJ could nonetheless still issue an order based on it, and asserting that the understanding had been that the complainant's request for withdrawal was to be "held" pending execution of the written settlement agreement. The commission acknowledged that the ERD's rule, DWD § 218.03(7), did not provide any exception to the requirement that the complaint be dismissed once a withdrawal form is tendered, but it said, "there are circumstances in which the commission has concluded that no withdrawal was intended and has essentially treated the withdrawal form as not having been submitted," citing Hatcher. The commission reasoned that while Walsh's withdrawal form was not signed "inadvertently," in that Walsh's attorney understood it would ultimately result in the withdrawal of the complaint, there was reason to conclude that Walsh did not intend to file it when he did. The commission also took into account the fact that in proceedings before the ALJ he had made statements which "led the complainant to believe that, although he had submitted a withdrawal form, the form would not be filed and the matter would not be dismissed until the settlement was reduced to writing." On that basis it set aside dismissal of the complaint.

The question here is whether this case involves the type of circumstances referred to by the commission in Walsh, in which it should be concluded that no withdrawal was intended and in which it is therefore appropriate to treat the case as if the withdrawal form had not in fact been submitted.

The outcomes in Hatcher and Walsh turned significantly on the specific facts of each case. Walsh, in particular, illustrates that such facts can include statements made during the process that led up to the filing of the withdrawal that may have had an impact on the understanding or expectations of a complainant about what would happen if they filed a withdrawal. Applying the analysis suggested by those cases requires close consideration of all of the facts that bear on the question of whether the filing of a withdrawal was inadvertent, or intentional.

Based on the facts found above as to the interactions between Burton, UGS and the ALJ leading up to Burton's filing of a request to withdraw his complaint on May 25, 2005, the commission concludes that this case does not involve the type of circumstances in which the effect of Wis. Adm. Code Ch. DWD § 218.03(7) can be avoided. This is clearly not a case like Hatcher in which there was never any intention of withdrawing the complaint and in which the withdrawal was "inadvertent." As found and concluded above, Burton voluntarily and intentionally filed a request to withdraw his complaint. This is also not a case like Walsh. There the commission reasoned that, although the filing of the withdrawal request was not "inadvertent" in the sense contemplated in Hatcher, there was an issue as to the intent behind the filing in regards to timing. The matters relating to timing were, that there was reason to conclude that Walsh did not intend to file the withdrawal request when he did, and, more important, that statements by the ALJ may have caused Walsh to think that the effect of filing the withdrawal (i.e., dismissal) would not happen until a later, and contingent, event.

In this case, unlike in Walsh, there was no statement by the ALJ suggesting that if a withdrawal was filed it would be "held" and would not result in a dismissal unless and until some later act occurred. It is true, that there was the allegation as to the statement by Attorney Rumbaugh, counsel for UGS, which was argued to have affected the expectations of the complainant as to the effect of filing a withdrawal. But, for reasons discussed above, the commission did not believe that Rumbaugh made any statement such as asserted by Burton. Furthermore, as detailed in the Findings of Fact made above, the commission was persuaded that Burton understood that he could wait until the expiration of the settlement agreement's revocation period before filing his request to withdraw his complaint with the ERD if he so chose, that he knew that the filing of his request to withdraw his complaint with the ERD would result in an order from the ERD dismissing that complaint, and that he chose not to wait to file his request to withdraw his complaint, because he was in a hurry to get the money from the settlement.

The commission does not believe that the language of the revocation provision itself is a circumstance of the kind that the Walsh decision suggests can justify disregarding the filing of a request to withdraw a complaint. The meaning and effect of the revocation provision in the settlement agreement was simply that Burton could undo his promise to take certain steps (i.e., quitting his job, getting his complaints dismissed). However, the commission does not believe that it could have been understood by a reasonable person as suggesting that Burton could go ahead and actually take those steps, and still then somehow have that be un-done. And, it does not believe that it was understood in this way by Burton. Rather, it believes that Burton made the decision that he would "pull the trigger" on the deal sooner than he needed to, by actually going ahead and resigning from his job and withdrawing and getting his complaints dismissed, because he wanted to speed up his receipt of the settlement proceeds.

 

NOTE: Judging from arguments he has made, it appears that Burton may be operating under the assumption that the two other complaints (ERD Case Nos. CR200501368 and CR200501525) which he filed in 2005 and which were dismissed by the ERD Investigation Bureau on May 20, 2005 (see, Finding of Fact 3, above) could be revived in this proceeding. It also appears that he may be operating under the assumption that the relief available to him in this proceeding could include an order directing that he be returned to his old job with UGS.

Any such assumptions are incorrect.

The complaints which Burton filed against UGS in 2005, and which were assigned ERD Case Nos. CR200501368 and CR200501525, were never even the subject of initial determinations as to probable cause by the ERD Investigation Bureau. They were dismissed by an Equal Rights Officer of the ERD's Investigation Bureau on May 20, 2005.  Burton's letter of June 1, 2005 to ALJ DeLaO which was treated as the petition for review from her dismissal of Burton's complaint in this matter (ERD Case No. CR200303077), could not have been and was not treated as a request to appeal the ERD Investigation Bureau's dismissal of those two other cases. The commission's jurisdiction is restricted to review of examiners' findings and orders, see, Wis. Stat. § 111.39(5), and it does not accept appeals from dismissals of a complaints by the ERD's Investigation Bureau, see, Matthews v. Marc Plaza Hotel, ERD Case No. 8005194 (LIRC, Mar. 31, 1983). It had no colorable claim of authority to act with respect to Burton's other two cases which were dismissed by the ERD's Investigation Bureau in 2005, and in the proceedings which have been held in this matter those two cases have never been identified as being involved.

Thus, all that is before the commission in this matter, is an appeal of the dismissal of Burton's complaint in ERD Case No. CR200303077. That complaint, which was filed in 2003, raised allegations that UGS had discriminated against Burton on the basis of age, sex, disability, national origin, race, color and his opposition to a discriminatory practice, in regard to terms and conditions of employment, compensation, and promotion. Even if the commission were to have reversed the dismissal of the complaint, and even if Burton were to have prevailed in establishing probable cause and thus advanced to a hearing on the merits, and even if in such a hearing he were to have prevailed in establishing the discrimination alleged in that complaint, any remedy would have been limited by the date and allegations of the complaint:  it involves things that occurred two years before the end of Burton's employment with UGS. There would be no way --  there is no way -- that anything about the ending of that employment could be reached in such a situation.

In conclusion, all that is before the commission, and all that it can exercise its authority with regard to, is the question of whether or not Burton's complaint in ERD Case No. CR200303077 should be dismissed. This does not include any potential for ruling on the status of ERD Case Nos. CR200501368 and CR200501525, and it does not include any potential for ruling on whether Burton has any rights to his old job. Whether Burton has any other legal right or claim of any kind, which he can assert as to his former employment with UGS or as to any of the elements of the settlement agreement he entered into with UGS, is a question which the commission has no cause to attempt to answer, and on which it expresses no opinion.


cc: Attorney Thomas W. Scrivner


Appealed to Circuit Court.  Affirmed, November 15, 2012.

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Footnotes:

(1)( Back ) These were ERD Case No. CR200501368 (EEOC No. 26G-2005-01119C), filed April 20, 2005, and ERD Case No. CR200501525 (EEOC No. 26G-2005-01158C), filed May 2, 2005.

(2)( Back ) Despite the confidentiality provision, both parties have disclosed the terms of the settlement agreement in the public record in this case.

(3)( Back ) EEOC numbering system was revised, so that 26GA501158 became 26G-2005-01158C, and 26GA501119 became 26G-2005-01119C.

(4)( Back ) In the commission's first decision in this case, dated November 18, 2005, it ordered that the matter be remanded to the ERD for either a stipulation of fact by the parties or, if no such stipulation was agreed to, a hearing on the question of whether the complaint was withdrawn or settled. On remand, this order was not complied with. The circumstances of this are described in the commission's second decision in this case, dated December 21, 2007.  In its second decision, the commission again remanded with the same mandate as in its first remand.  On this second remand, a hearing was held which, for a number of reasons, failed to meet the requirements of due process.  The circumstances of this are described in the commission's third decision  in this case, dated March 2, 2010.  In its third decision, the commission again ordered that the matter be remanded for further proceedings as specified in its first decision. That order was complied with.

(5)( Back ) While finding that this statement was made, the ALJ concluded that ultimately it did not matter to the outcome because (in the ALJ's view) it did not support a conclusion that Burton's withdrawal of his complaint was induced by misrepresentation. The ALJ agreed with the argument made by UGS, that such a statement (assuming arguendo it was made) would have merely been a description of what would happen if within the revocation period Burton chose not to resign, not what would happen if Burton chose to revoke his agreement to the settlement or chose not to execute a withdrawal statement.

    The commission would, in the abstract, agree with the ALJ that if such a statement had indeed been made at the time and in the context claimed, it would still not support a conclusion that Burton's withdrawal of his complaint was induced by misrepresentation. Its view as to why this would be so, goes beyond from the ALJ's, however. Any such statement would be essentially irrelevant to the question of whether Burton's withdrawal of his complaint in this matter was voluntary and knowing, because it was (allegedly) made in the context of the initial oral settlement discussions on May 19, 2005 -- and in the eventual settlement of May 25, 2005, there was an "Entire Agreement" provision that expressly wiped out "all prior representations, statements, promises, commitments and agreements between the Parties, whether oral or written, expressed or implied."

 


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