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ERD Case No. CR200104064, EEOC Case No. 26GA200216

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

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


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

Dated and mailed October 29, 2004
oehldje . rsd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


These are complaints of alleged retaliation for engaging in a protected fair employment activity, and alleged discrimination based on disability and sex.

The department issued initial determinations of no probable cause. The cases were consolidated, and hearing was originally scheduled to be conducted on March 28, 2003, but was postponed on March 26, 2003, when the complainant indicated that she had recently retained counsel who needed additional time to prepare for hearing. On June 9, 2003, the department provided notice to the parties that the rescheduled hearing would be conducted on September 3, 2003.

By letter dated July 23, 2003, attorney Terrence J. Woods provided notice that he had been retained by the complainant to represent her in the above-referenced matters, and all future communications should be directed to him.

Complainant, attorney Woods, counsel for respondent, and administrative law judge (ALJ) Olstad were all present at the hearing location and time on September 3, 2003. ALJ Olstad accorded the parties the opportunity to engage in settlement negotiations. The parties apparently represented to ALJ Olstad that they had successfully negotiated a confidential settlement, and would advise when it had been finalized. Based on this representation, ALJ Olstad did not convene the hearing.

In correspondence to ALJ Olstad dated August 20, 2004, and referencing the three subject complaints, Attorney Woods stated as follows, as relevant here:

This matter having been settled, it is hereby requested that the above referenced complaints be withdrawn.

In response to this request, and in accordance with Wis. Adm. Code § DWD 218.03(7), ALJ Olstad issued an order of dismissal on September 1, 2004.

Complainant filed a timely petition for commission review.

Complainant appears to be arguing in this petition that the agreement which was reached by the parties did not call for the withdrawal/dismissal of the subject complaints unless and until the respondent conducted a meeting which satisfied certain requirements, and a meeting satisfying such requirements has not yet been conducted.

In the absence of the August 20 correspondence from attorney Woods, such an argument might be persuasive. See, e.g., Walsh v. Tom A. Rothe, S.C., ERD Case No. 200000848 (LIRC Nov. 29, 2002).

However, the commission has consistently held that, once a complainant, personally or through counsel, makes an unconditional request for the withdrawal of a complaint, dismissal by the department is required pursuant to Wis. Adm. Code § DWD 218.03(7), and collateral attacks on the finality of the settlement will not be entertained by the commission in the absence of an allegation of misrepresentation or intimidation by a representative of the department, or an allegation that a provision of the underlying settlement agreement is per se invalid. Johannes v. County of Waushara, ERD Case No. 9321736 (LIRC Nov. 1, 1993); Kellar v. Copps Gas Station, ERD Case No. CR200203601 (LIRC Jan. 28, 2004); Leggett v. County of Milwaukee, ERD Case No. 199902500 (LIRC Feb. 13, 2004). No such allegations have been offered by the complainant, and it is undisputed that attorney Woods was her attorney of record at all times material here.

Moreover, allegations by a complainant that her attorney has misrepresented the terms of the settlement agreement to her, or exceeded his authority in requesting withdrawal, are more appropriately resolved by those authorities charged with deciding issues of professional responsibility and malpractice, not the commission. Johannes, supra.; Kellar, supra.

Finally, to the extent that the complainant is requesting enforcement of the terms of the subject settlement agreement, the commission does not have this authority. Gronowski v. Milwaukee County Dept. of Social Services, ERD Case No. 199354558 (LIRC April 13, 1998)(neither the ERD nor the commission has the authority to decide whether settlement agreements have been breached).

The commission concludes as a result that dismissal of the subject complaints of retaliation/discrimination is appropriate.

Attorney Terrence J. Woods
Attorney David P. Spangenberg

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uploaded 2004/11/02