MARK J. MUSIAL, Complainant

AECOM GOVERNMENT SERVICES, INC., Respondent

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 July 21, 2014

musialm_rsd : 110 : 717, 748

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

This case concerns the effect to be given to a settlement agreement.

Complainant Mark J. Musial worked for Respondent AECOM Government Services Inc. ("AECOM") from June 1992 until around January 10, 2012, when AECOM terminated him.(1) At that time, AECOM gave Musial a proposed "Separation and Release Agreement" ("agreement"). Among other things, that agreement provided for a $8,388 severance payment to Musial in exchange for his waiver of his right to bring claims against AECOM relating to his employment and its termination. The agreement contained an acknowledgment that the severance payment thus provided was greater than what Musial would be legally entitled to in the absence of the agreement, and that he was not entitled to any further compensation or benefits from AECOM except as provided in the agreement.

Musial signed this agreement on January 31, 2012 and gave it to AECOM. He was then paid the severance payment provided for in the agreement in February 2012.

Subsequently, on September 28, 2012, Musial filed a complaint with the Equal Rights Division alleging that AECOM had discriminated against him because of his disabilities and his age, in connection with his employment and its termination.

Specifically, the complaint alleged:

I was Senior Engineer Tech hired 6/1992.

Filed Workers Comp for Lymes Disease acquired on the job at New London Landfill - got 2 tick bites - got sick 38 days later.

Near Aug 31, 2011 I tore my right meniscus on job site at Metro Landfill, Franklin WI. Had surgery 10/17/11, assigned "desk-duty" only by doctor, until I was given 100% ability to work on 1-5-2012. Showed up for work on 1/7/2012 thinking I would be laid off because of lack of work and was fired on the spot. I told my supervisor there was "no-way" I could do the landfill inspection work I had been doing because of my right knee was still sore. Paul Tarvin told me they had no foreseeable work for me because he had asked everybody (a lie, he never asked John Trost or Mike Ruetlen, the engineers I had just worked for). They made me sign severance agreement if I wanted severance pay. After I signed and received severance pay I learned they had gone and typed up all my daily reports for Metro Landfill altered my reports and turned them into the WDNR with the project report. I had observed incompetence and fraud by contractors on site and wrote it into my reports - AECOM totally took these observances out and handed in forged reports (typed) with my signature and handed WDNR.

All other employees that they fired were given opportunities to work part-time, not me because of my Lymes/right knee disability. Plus they didn't want me to see my daily reports that they altered and handed in with my signature on them. How can a company forge project reports and still do work for the State of Wisconsin?

They also made up stuff about my work record and put it in my personal record - this false information may have been learned by other employees, who may have discussed with friends of theirs at different companies in the field, preventing me from obtaining employment!

I was 52 years old with a 5% permanent partial disability, who did his job at Metro Landfill by documenting contractor fraud - so they got rid of me!

On July 30, 2013, after an investigation, an Equal Rights Officer for the ERD issued a Preliminary Determination and Order. It found that on January 10, 2012, AECOM had presented Musial with a Separation and Release Agreement, which offered Musial severance pay in exchange for a total release of claims against AECOM, and which provided him with 21 days within which to review the agreement and consult with an attorney if he chose. It also found that on January 31, 2012, Musial signed that agreement. The Equal Rights Officer concluded that Musial had executed a knowing and voluntary waiver of claims against AECOM and that therefore the ERD did not have jurisdiction over the complaint. On that basis the complaint was dismissed.

Musial filed an appeal of the order dismissing his complaint. In that appeal, Musial made a number of assertions about his employment with AECOM and about his asserted disabilities. He also argued:

I signed the firing agreement and did not learn until one month later that Kenny Bergschultz made up derogatory things and put them into my personal record and that the company rewrote my daily reports for the Metro Landfill Job and forged my signature - deleting instances where the contractor had attempted to commit fraud. If I would have known the company forged my Daily reports I never would have signed the agreement. They fired me to cover up their fraud and the fact my Lymes Disease and knee injury (both which I got while working for them) limited my duties.

Musial's appeal was assigned to and reviewed by an administrative law judge. On March 12, 2014, the ALJ issued a Decision and Order which affirmed the dismissal of the complaint. The ALJ did not rely, as the Equal Rights Officer had, on a conclusion that the ERD had no "jurisdiction" in the matter. Rather, he relied on Wis. Adm. Code § 218.06 (3)(a)2., which provides:

DWD 218.06 Investigations.
. . .
(3) Dismissal of complaint prior to completion of investigation.

(a) The department may dismiss a complaint prior to completion of an investigation under the following circumstances:

. . .

2. The complainant signed a valid waiver and release of claims arising out of the complainant's employment with the respondent that would preclude the department from finding that the respondent has violated the act.

The ALJ acknowledged the holding by the commission that for a waiver and release of claims to be valid it must be "knowing and voluntary," see, Wesley v. TMP Worldwide Inc., ERD Case No. 200201566 (LIRC, Feb. 7, 2003), and he considered and weighed the seven factors which had been recognized by the commission as relevant to determining whether a waiver and release was "knowing and voluntary." He concluded that most of the factors strongly militated in favor of finding that there was a knowing and voluntary waiver and release of claims by Mr. Musial.

The ALJ noted that Musial was alleging that certain things were done by AECOM which Musial did not know of until after he signed the agreement, and that he was alleging that if he had known of these things he would not have signed the agreement. The ALJ considered the question of whether this would support a decision that Musial's signing of the agreement was not a "knowing" one. He decided that it would not, for three reasons. First, he found Musial's assertions unclear about when these things were done by AECOM in relation to when Musial signed the agreement. Second, the ALJ found Musial's "bare assertion" that he would not have signed the agreement if he had known of the things, to be "speculative and questionable at best." Third, the ALJ reasoned:

[E]ven assuming arguendo that had [Musial] known of the changes, he would not have signed the agreement, such changes are not germane to the seven factors applied above for determining whether the Agreement was signed knowingly and voluntarily. And while the totality of circumstances test is not strictly limited to the application of these seven factors, the matters raised by Mr. Musial are extraneous to the Agreement and to whether he understood its contents, had a chance to review (and revoke) it, and had an opportunity to consult with counsel.

In addition, the ALJ concluded that there was an independent and sufficient basis to affirm the dismissal of the complaint. The ALJ noted the holding in Wesley v. TMP Worldwide Inc., supra, that a complainant cannot challenge the validity of a separation agreement and, at the same time, keep the proceeds of that agreement. The ALJ noted that Musial "ha[d] not indicated or even intimated" that he had returned the consideration he had received from AECOM through the agreement.

Musial then filed a petition for review of the administrative law judge's Decision and Order by LIRC. In his petition for review he argued:

This case is be made to insure that what this company did to me won't be able to be done to other people. No company should be able to enter falsehoods into an employee's personal file. No company should be able to tell one employee they have to work beyond a human's capacity, then tell their replacement they don't have to do it. No company should be able to alter a person's reports then forge their name to it. No company should be able to inform a contractor about a decision before they tell the employee that endangers the employees life. The government agencies and clients that work with these frauds need this information. This case will do that. All this came to light to me after I signed off.

Discussion --

Musial alleges that he should not be held to his waiver of his right to bring his complaint in this matter, because when he entered into that waiver he did not know about certain things the respondent had allegedly done -- things which he asserts were such that if he had known of them, he would not have signed that waiver.

The things which Musial alleges the respondent did, which he did not know about, were that that it changed the content of certain daily reports Musial had submitted when he still worked for the respondent, and that it had "made up stuff" about Musial's performance and put it in his personal record.

Significantly, Musial does not allege that the respondent did these things because of any discriminatory motive under the Wisconsin Fair Employment Act. In other words, he does not allege that there was any violation of the WFEA which he did not know of when he signed the waiver and thus could not have "knowingly" waived.

The undisputed facts here persuade the commission that Musial knew full well that, by signing the waiver, he was giving up his right to bring any claims of employment discrimination against AECOM. The fact that he did not know about the changes he now alleges were made in his daily reports and his personnel records, does not affect that, because he does not claim that the making of those changes was a separate act of employment discrimination against him by AECOM.

For these reasons, the commission agrees with the ALJ that Musial knowingly and willingly waived his rights to bring a complaint of employment discrimination against AECOM, and that he therefore "signed a valid waiver and release of claims arising out of the complainant's employment with the respondent that would preclude the department from finding that the respondent has violated the act," within the meaning of Wis. Adm. Code. § DWD 218.06 (3)(a), and that his complaint was therefore appropriately dismissed.

The commission also agrees with the ALJ's alternative rationale.

Complainants are generally required to tender back any consideration received in exchange for the waiver of their rights to pursue discrimination claims, as a condition precedent to challenging the validity of such waiver. See, Giese & Field v. Wausau Ins. Cos., ERD Case Nos. 8600691, No. 8600731 (LIRC, Oct 25, 1988).(2) The ALJ noted this in his decision. The commission views it as significant that, in his petition for commission review, Musial does not dispute this principle or its applicability to his case. He also does not assert that he had returned or offered to return the severance payment he received in consideration for signing the agreement, or even that he was willing and able to do so. There are no special circumstances here, as there were in Carson v. Columbia St. Mary's, ERD Case No. CR200902604 (LIRC, March 12, 2013), which would make this principle inapplicable. On this basis alone, apart from the other issues discussed above, the dismissal of Musial's complaint is required.

cc: Debra M. McCulloch, Attorney for Respondent
McCulloch Law PLLC

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(1)( Back ) While no hearing was held in this matter, the parties have both submitted assertions about the relevant facts, in the form of the complaint, letters to the investigator responding to the complaint and to the other parties' responses, the appeal from the preliminary determination, and the appeal from the ALJ's decision. From review of these sources, it is clear that there are certain basic factual matters that are effectively undisputed. The commission relies on these undisputed matters herein.

(2)( Back ) See also, Lynch v. Zalk Joseph's Fabricators, ERD Case No. 9401181 (LIRC, July 17, 1996).

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