Wis.LIRC ER Decision: Johnson, Julian - April 23, 1981 - Procedure - settlement, withdrawal - complainant (through counsel) withdrew complaint, saying it was due to settlement, complaint dismissed - he later sought to reopen, claiming misrepresentation by his counsel - where no allegation of misrepresentation or intimidation by Examiner or department, nothing in the agreement itself which is invalid, request to retract withdrawal of complaint denied

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

JULIAN JOHNSON JR, Complainant

CITY OF KENOSHA, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 7705555, EEOC Case No. 055771552

The Examiner of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on February 18, 1981 dismissing the Complainant's complaint. The Examiner's dismissal decision was based upon Complainant's request, through his attorney, to withdraw his complaint due to a settlement prior to the hearing.

Subsequently, on February 25, 1981, the Complainant filed a written statement with the Department in which he stated ". . . I wish not to withdrawl (sic) my complaint from the City of Kenosha. I feel as though I was intimidated against and there was a final agreement I had no other choice but excepting (sic)." The Department treated Complainant's written statement as a petition for review and fcrwarded the matter to this Commission.

Thereafter, on March 19, 1981, the Respondent filed a motion that Complainant's petition for review be dismissed based on Complainant's signed request to withdraw his complaint against the Respondent, and Respondent's payment of $2,500 to Complainant in consideration for settling the matter. On April 8, 1981, the Complainant filed a reply to Respondent's motion asserting that he feels as though he was misrepresented by his attorney, and that he feels as though his attorney was working on the Respondent's side rather than with him. In apparent support of this assertion the Complainant stated that his attorney advised him that if he did not accept the offered agreement, he would eventually get fired, therefore he resigned from his job with the city as part of the settlement.

The settlement agreement signed by Complainant provided, in part, that in consideration of $2,500, the Complainant agrees (1) to dismiss with prejudice the employment discrimination charge against the Respondent based on alleged race discrimination occurring in the selection process for the position of Fire Dispatcher; and (2) to voluntarily terminate his employment with the Respondent and not to apply, at any time in the future, for employment with the Respondent.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:

ORDER

That the attached copy of the Examiner's decision be, and the same is hereby, affirmed.

Dated and mailed April 23, 1981

/s/ Virginia B. Hart, Chairman

/s/ John R. Hayon, Commissioner

MEMORANDUM OPINION

Complainant seeks to withdraw from a private settlement agreement he entered into with Respondent because he now feels that he was misrepresented by his retained counsel in settling his charge of race discrimination against the Respondent. There is no allegation of misrepresentation or intimidation by the Examiner or any other department representative. There is nothing in the provisions of the settlement agreement itself which makes the agreement invalid. Complainant's claim of misrepresentation on the part of his attorney is beyond the scope of the Commission's review authority. Thus, Complainant's request to retract his withdrawal of his discrimination complaint must be denied.

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