DANIEL CHARLES CLUSSMAN, Complainant

ELLIS STONE CONSTRUCTION, Respondent

An examiner of the Department of Industry, Labor and Human Relations issued an order in the above-captioned matter on September 11, 1985, dismissing the complaint and cancelling the scheduled hearing. Complainant filed a petition for review of the Examiner's order and also requested a re-hearing pursuant to sec. 227.12, Wis. Stats.*

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

The attached decision of the examiner is affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed March 25, 1986

/s/ David A. Pearson, Chairman

/s/ Hugh C. Henderson, Commissioner

* Although the Complainant filed both a petition for Commission review and a request for re-hearing, sec. 111.39(5)(a) of the Wisconsin Fair Employment Act, provides only that a party who is dissatisfied with an examiner's decision "may file a written petition with the department for review by the commission of the findings and order."  The avenue of review to the commission does not include a right to petition the Coamission for re-hearing. Accordingly, the Commission treats all such requests as petitions for review, and has done so in the present case.

Complainant's having filed a request for re-hearing is understandable in view of the fact that the cover letter attached to all Equal Rights decisions has advised the parties that in addition to filing a petition for review, parties have the right to request a re-hearing. That information is in error, hover, and the practice of including it in decision cover letters has been discontinued.

   
Hearing Examiner's Decision:

Daniel Charles Clussman, Complainant 
                                                                                                              ORDER OF DISMISSAL
 vs.                                                                                                          ERD Case No. 8400214 
   
Ellis Stone Construction, Respondent

In a complaint filed with the Equal Rights Division of the Department of Industry, Labor and Human Relations on January 30, 1984, the Complainant alleged that the Respondent had discharged him because of his handicap, in violation of the Wisconsin Fair Employment Act. In an initial determination issued on September 25, 1984, an investigator for the Division concluded that there was probable cause to believe that the Respondent had discriminated against the Complainant as alleged. Conciliation efforts were waived or unsuccessful and on January 25, 1985 the matter was certified to hearing. A Notice of Hearing was issued on June 17, 1985 setting the matter for hearing on September 12, 1985.

It now appearing that the Complainant entered into a written settlement agreement resolving his dispute with the Respondent, the examiner makes the following:

That the complaint in this matter be dismissed, and that the hearing scheduled for September 12, 1985 be cancelled.

Dated at Milwaukee, Wisconsin         9/11/85         

David B. Nance
Hearing Examiner

On September 6, 1985 the undersigned hearing examiner attempted to contact, by phone, the attorneys of record in this matter in order to determine if the case was still active, there having been neither an Answer filed on behalf of the Respondent nor witness and exhibits list filed and exchanged by either party. He first reached Atty. Maris Rushevics, counsel for the Respondent, who advised that the matter had been settled during the course of a hearing in a collateral Worker's Compensation matter held earlier that year, and that the Complainant's attorney, Guy-Robert Detlefsen, was taking care of obtaining the necessary closing papers.

Shortly after this conversation with Mr. Rushevics, the Complainant telephoned the undersigned hearing examiner. He reported, in substance, that Mr. Detlefsen no longer represented him, that he had signed a settlement agreement covering his Equal Rights Division matter but that he believed that he had done so as a consequence of having been in some fashion mis-advised as to the "value" of his case, and that he did not wish to be bound by the settlement agreement. Mr. Clussman indicated that he was not prepared to go to hearing on the scheduled date, as he had no attorney. He advised that he would mail the examiner a copy of the settlement agreement he signed.

The examiner subsequently spoke to Atty. Detlefsen, who essentially confirmed that the Complainant had signed a settlement agreement pertaining to his Equal Rights Division matter, that he apparently no longer wished to be bound by that agreement, and that Atty. Detlefsen no longer represented him in connection with the matter.

The Complainant has submitted a copy of the settlement agreement which he entered into, and a copy is attached hereto. From his review of that agreement, as well as of other materials contained in the Division's files in this matter, the examiner feels no hesitancy in concluding that on May 29, 1935 the Complainant knowingly entered into an agreement whereby, in consideration of a promise of a payment of $6,000.00,  he agreed to fully release the Respondent from liability for the conduct complained of in his Equal Rights Division complaint in ERD Case No. 8400214.

At the time of the execution of the settlement agreement in this case, the Complainant had only one matter pending against the Respondent before the Equal Rights Division, that being ERD Case No. 8400214.  Given that fact, and there being no contrary assertion on the part of the Complainant, the examiner concludes; that the Complainant understood the settlement agreement's references to "the Equal Rights claim" being settled as being references to this matter, ERD Case No. 84002l4.

The situation presented in this case differs from situations in which unrepresented parties execute "settlement" or "release" documents, contemporaneously with an involuntary separation of employment and at the urging of the employer, and prior to the commencement of any action or proceeding, and later urge that such documents should not be construed as binding "settlements" as to a subsequently-filed action.  In cases such as that, a bona-fide factual issue is generally presented as to whether or not the Complainant understood at the time of executing the document that they were forfeiting their right to proceed under the Fair Employment Act, and of whether or not the consideration (generally, this is recited/by such "agreements" to consist of "increased" or "extra" severance benefits) is in fact anything above and beyond what the employee would receive in any case.

By way of contrast, there was in this case aclear understanding that the right to pursue an already-commenced action was being extinguished;  the waiver involved, then, was neither prospective nor contemporaneous vis-á-vis the accrual of the cause of action, but was rather retrospective.  This provides support for the conclusion that the Complainant knew exactly what rights he was agreeing to extinguish.  Considering the express language of the agreement, and the fact that the Complainant was represented by counsel when he entered into the agreement, it must he concluded that the waiver represented by this agreement was knowing, at least in terms of knowledge of what was being waived.

The Complainant seeks relief from this agreement not because he claims he did not know that he was waiving his rights to pursue his Equal Rights claim, ERD Case No. 8400214, in exchange for $6,000.00, but rather because he feels that his attorney(s) mis-advised him as to what the case was "worth", and that had he known what they really thought the case was "worth" he would not have settled, or at least would not have settled for $6,000.00.

The issue which the Complainant raises, in other words, is purely one of whether or not there was malfeasance by his attorney(s) within the attorney-client relationship which existed at that time.

This case is on all fours with, and is controlled by, the decision of the Labor and Industry Review Commission in Johnson. City of Kenosha (LIRC, 4/23/81).  In that case, the Complainant, who was represented by counsel, signed an agreement to withdraw his complaint of race discrimination in consideration of payment of $2,500.00;  he subsequently sought to have his agreement to settle the matter set aside based on a claim that his attorney engaged in misrepresentation with respect to matters relevant to his decision to settle. The Commission stated:

"Complainant seeks to withdraw from a private settlement agreement he entered into with the 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."

The examiner expressly disclaims any opinion on the question of whether or not the Complainant entered into the settlement agreement in this matter as a consequence of being mis-advised by his attorney(s). The making of such a determination is beyond the scope of the examiner's authority.

DBN:itm

cc:
Complainant
Respondent
Atty. Mans Rushevics
Atty. Guy-Robert Detlefsen

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