ROBERT L. CRYMES, Complainant

COUNTY OF MILWAUKEE, Respondent

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued an "ORDER OF DISMISSAL - PRIVATE SETTLEMENT" in this matter on October 23, 2003. A timely petition for review was filed.

Background - This case arises out of a complaint and amended complaint filed with the Wisconsin Equal Rights Division (ERD) alleging that Milwaukee County discriminated against the complainant because of his age and his sex, when it failed to consider him for a position he wanted to be promoted to, and also in regard to constructive discharge. Pursuant to its usual practice, the ERD cross- filed the complaints with the U. S. Equal Employment Opportunity Commission (EEOC) for them to be processed by that agency as claims of violations of the federal Age Discrimination in Employment Act. In connection with this, the ERD thereafter generally showed both the case number it had assigned to the matter (ERD Case No. CR200201569), and the EEOC Case Number which was assigned to the matter as cross-filed with that agency, on correspondence and other papers in the case.

An Initial Determination and Amended Initial Determination found probable cause to believe that discrimination had occurred. A Notice of Hearing was issued setting the matter for hearing on September 29, 2003. These documents showed both the ERD and EEOC case numbers in the matter.

It appears that on the day scheduled for hearing, September 29, no hearing was held and there was instead a pre-hearing conference. There was apparently some discussion about the possibility of settlement on that day.

Settlement negotiations presumably continued, as on October 17, 2003 the administrative law judge to whom the matter had been assigned received (via FAX from attorney for the respondent) a copy of a Settlement Agreement, signed on October 14, 2003 by the complainant and his attorney and on October 15, 2003 by a representative of the respondent and the respondent's attorney, which inter alia provided that:

By signing this Agreement, complainant agrees to the dismissal with prejudice of ERD Case No. CR200201569 and EEOC Case No. 26GA201213 and agrees to sign a Request to Withdraw Complaint form based upon this confidential settlement and submit it to the Equal Rights Division of the State of Wisconsin, upon the above promises made by the respondent having been satisfied.

With this Settlement Agreement, however, was a letter from the attorney for the respondent indicating that she had received messages to the effect that the complainant had "decided not to proceed with the settlement". Respondent took the position that there was a binding settlement agreement between the parties.

Thereafter, the administrative law judge received a letter from the complainant dated October 19, a letter from the attorney for the complainant to the attorney for the respondent dated October 20, and a letter from the attorney for the complainant dated October 21, all concerning the matter of the settlement.

The complainant stated in his letter that he and his attorney had ended their relationship, and he asserted that he had signed the settlement agreement "reluctant[ly]", believing that it was a settlement that dealt specifically with his EEOC complaint, that he had "since learned" that the settlement agreement went beyond that single issue and took away from him "any and all claims, damages, liabilities, suits and other causes of action", that this would take away from him his ability to participate in several class action proceedings currently being considered in court in Milwaukee County, and that he did not intend to relinquish his rights in those matters. The complainant also referred to advice he had received from his attorney about having a week to abandon the agreement, and asked to be allowed to "void" the settlement.

The complainant's attorney stated in his letters, among other things, that he believed that the settlement agreement was contrary to the Older Workers Benefits Protection Act in that it failed to include the language required by that Act to be included in settlements of age discrimination claims under the Age Discrimination in Employment Act, that claimants were allowed seven days after executing an agreement waiving such claims, to revoke such agreements. (1)   He stated to the administrative law judge that he believed that for this reason the complainant's request to revoke the settlement agreement should and must be honored.

As noted above, the administrative law judge issued an "ORDER OF DISMISSAL - PRIVATE SETTLEMENT" on October 23, 2003. This Order showed both the ERD and EEOC Case Numbers in the caption. It stated, inter alia, that the parties had informed the administrative law judge that they had entered into a private settlement providing for the dismissal of "this case", and its order stated that "the complaint in this matter" was dismissed.

Discussion - The commission has consistently held that once entered into by all parties, either in writing or on the record, a settlement is final. Pustina v. Fox & Fox, S.C. (LIRC, April 27, 1993). Thus, parties who have entered into settlement agreements providing for the dismissal of their complaints, or who have executed and filed requests to withdraw their complaints based on settlements, cannot have their cases reopened by alleging that they exercised poor judgment in agreeing to the settlement, Pustina, or agreed under "duress" of the financial difficulty presented by being out of work, Kaufer v. Miller Brewing Co. (LIRC, Nov. 19, 1993), or were poorly represented, misled by, or otherwise ill-served by their attorneys, Kellar v. Copps Gas Station (LIRC, Jan. 28, 2004); see also, Scott v. Oconomowoc Area Sch. Dist. (LIRC, Jan. 30, 2004).

For this principle to apply, it is necessary that a settlement have been knowing and voluntary. See, e.g., Summers v. Northwest Airlines Inc. (LIRC, May 26, 2000); Pustina.  Based on its review of the file, the commission finds no reason to believe that the complainant's agreement to the settlement here was not knowing and voluntary. The complainant clearly had the opportunity to read the settlement agreement's terms before entering into that agreement. While the complainant asserted in his letter to the administrative law judge that he signed the agreement believing that it dealt only with his EEOC complaint, that it was only after he signed that he came to learn that the agreement went beyond that single issue and took away from him "any and all claims, damages, liabilities, suits and other cause of action", and that he did not intend to relinquish his rights in those matters, these assertions are simply not credible. The language quoted by the complainant was expressly set out in item 3 of the agreement. It is not difficult to understand that it is very broad and comprehensive waiver. If the complainant read the agreement before signing it, he would have read that language. The commission concludes, judging from the correspondence from the complainant in the file, that he would have been capable of understanding that language, and the other terms of the agreement he signed.

Insofar as this matter concerns the complainant's claim before the Wisconsin Equal Rights Division that the respondent violated the Wisconsin Fair Employment Act, this determines the outcome here. The complainant executed a settlement agreement that expressly stated that he was entering into the agreement freely and voluntarily and that he agreed to the dismissal with prejudice of his claim in ERD Case Number CR200201569. Therefore, the dismissal of the claim was appropriate.

The problem here is that the Order issued by the administrative law judge here also listed "EEOC Case No. 26GA201213" in the caption, and the Order described its effect by using such general terms as "this case" and "this matter." Thus, the administrative law judge's Order could be understood as purporting to dispose not only of the complainant's claim under the WFEA, but also of any claims that could have been brought under the federal Age Discrimination in Employment Act in respect to the respondent's treatment of the complainant. However, as was pointed out by the attorney for the complainant, the settlement agreement was inconsistent with the provisions of the Older Workers Benefits Protection Act (OWBPA) in that it failed to include the language required by that Act to be included in settlements of age discrimination claims under the Age Discrimination in Employment Act, that claimants were allowed seven days after executing an agreement waiving such claims, to revoke such agreements.

It is true, that the commission has held that it is a condition of according final and binding effect to a settlement agreement, that there is nothing in the terms of the settlement agreement itself which makes it invalid on its face. It appears that the lack of certain provisions in the settlement agreement here would, pursuant to the OWBPA, make it invalid as a waiver of rights under the ADEA. However, the commission has recognized that as a specific statutory enactment in the ADEA, the OWBPA does not apply directly to the question of whether a waiver of a claim under the Wisconsin Fair Employment Act is valid and enforceable. Grahl v. Mercury Marine (LIRC, December 4, 1992), n. 6. The commission therefore concludes, that the fact that the settlement agreement did not contain notice of the 7-day revocation period which the OWBPA requires for agreements waiving ADEA claims, does not make the settlement agreement here invalid on its face in respect to its plainly stated effect of foreclosing the complainant's WFEA claim.

The contents of the administrative law judge's order indicates that he understood that the OWBPA would impact on the question of whether the complainant could be deemed to have waived his claims under the ADEA but would not affect the validity of a settlement of his claim under the WFEA. As noted, however, his use of the EEOC Case Number confused the question of the effect of his Order. In order to remedy that confusion, the commission is affirming the administrative law judge's order only with respect to the complainant's claim under the WFEA, and with only the ERD Case Number listed in the caption. It should be expressly understood, that this Order is not intended to have any effect on any claims the complainant may have under the ADEA or any other federal law.

For the foregoing reasons, the commission now makes the following:

The complaint in ERD Case No. CR200201569 is dismissed with prejudice as to the complainant's claims that the respondent violated the Wisconsin Fair Employment Act.

Dated and mailed February 24, 2004
crymero . rpr : 110 : 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: As is noted above, the complainant indicated in his letter to the administrative law judge of October 19, 2003 that he was no longer represented by Attorney Heitzer. Notwithstanding this, the commission has decided to serve a copy of this decision on Attorney Heitzer, for his information, because it believes that the nature of the issues presented here make him a party with a sufficient interest in the outcome that it is appropriate to do so.

cc: 
Attorney Arthur Heitzer
Attorney Mary Ann Grimes

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(1)( Back ) In 1990 Congress amended the ADEA to expressly govern waivers of claims under the Act. Pub. L. 101-433, effective October 16, 1990. These amendments came to be known as the Older Workers Benefit Protection Act (OWBPA). It provides that ADEA rights may not be waived unless the waiver is knowing and voluntary, and that a waiver may not be considered knowing and voluntary unless it meets the following minimum requirements: (1) the waiver is part of a written agreement which is written in a manner calculated to be understood by the average individual eligible to participate; (2) the waiver specifically refers to rights or claims arising under the ADEA; (3) the individual does not waive rights or claims that may arise after the date that the waiver is executed; (4) the individual waives rights or claims only in exchange for consideration in addition to anything of value to which the individual already is entitled; (5) the individual is advised in writing to consult with an attorney prior to executing the agreement; (6) the individual is given at least 21 days to consider the agreement (or 45 days in the case of a waiver connected with an exit incentive or other employment termination program offered to a group or class of employes) ; and (7) the individual has at least seven days after execution of the agreement to revoke. 29 U. S.C. § 626(f).

uploaded 2004/02/25