STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

JOHN D. GAHAN, Complainant

THE MILWAUKEE AND S.E. WIS.
DISTRICT COUNCIL OF CARPENTERS, , Respondent A

J. H. FINDORFF & SON, Respondent B

FAIR EMPLOYMENT DECISION
ERD Case No. 9353693, EEOC Case Nos. 26G932331, 26G932332

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued an Order of Dismissal in this matter on August 25, 1995. A timely petition for review was filled. Complainant filed a brief or: November 16, 1995, Respondents A and B each filed briefs on December 6, 1995, and Complainant filed a reply brief on December 18, 1995.

The commission. has reviewed the record and considered the petition and the positions of the parties. Based on its review, the commission agrees with the Order of Dismissal of the ALJ, arid it adopts that Order as its own.

DECISION

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

Dated and mailed March 29, 1996

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

Background -- On September 7, 1993, Complainant John Gahan filed a complaint with the Equal Rights Division ("Division") in which he claimed that Respondents, Milwaukee and Southeast Wisconsin District Council of Carpenters, Local 2283 ("Carpenters") and J. H. Findorff & Son ("Findorff"), had violated the Wisconsin Fair Employment Act in connection with alleged sexual harassment. The Division thereafter conducted an investigation of the complaint.

Mr. Gahan has, at various times, been represented by various lawyers. Attorney Arthur Heitzer filed a notice of appearance on behalf of Mr. Gahan on November 19, 1993; however, on June 7, 1994, while the Division's investigation was still pending, Mr. Heitzer advised the Division that he no longer represented Mr. Gahan. The investigation was continuing when, on August 30, 1994, Attorney Jeffrey Hynes filed a notice of appearance on behalf of Mr. Gahan. On January 6, 1995, while the investigation was still pending, Mr. Hynes too gave notice that he had ceased his representation of Mr. Gahan.

On March 14, 1995, the Division's investigator issued an Initial Determination in which she concluded that there was probable cause to believe that the Respondents had violated the Fair Employment Act as alleged. On June 2, 1995, notice was issued by the Division that 'a hearing would be held on the complaint on September 7 and 8, 1995.

On June 22, 1995, Attorney Lisa Kane filed a notice of appearance on behalf of Mr. Gahan. This was accompanied by a Motion for a Stay of Proceedings, sought on the basis of a claimed intention by Mr. Gahan to commence an action in federal court. Respondent Findorff subsequently filed an objection to the request for a stay. On August 14, 1985, Attorney Kane filed and served a number of discovery requests.

Some time prior to August 15, 1995, Respondent Carpenters served Attorney Kane with notice of a deposition of Mr. Gahan to re conducted on August 15. Kane informed Mr. Gahan of the deposition and advised him to appear. Mr. Gahan did appear for the deposition on August 1 5, 1995. An associate in Ms. Kane's firm, Attorney John Green, appeared on Kane's behalf as legal counsel for Mr. Gahan.

It is not disputed that at that deposition, Mr. Gahan (as well as representatives of both Respondents) executed a document entitled "Stipulation for Dismissal and Release", which provided, inter alia, that all of the parties stipulated to the dismissal, with prejudice and without costs, of Mr. Gahan's charges pending before the Division (ERD Case No. 9353693) and the EEOC (Nos. 266932331 and 266932332). The agreement further recited that it represented the full and complete agreement of the parties except as specifically stated therein, that no promises or inducements had been made by any party, and that the parties had the opportunity to consult with legal counsel prior to executing the document and did so voluntarily. It is also not disputed that (as evidenced by a transcript filed by counsel for Respondent Carpenters) the following exchange took place on the record of the deposition in respect to the "Stipulation for Dismissal and Release":

MR. GREEN: Back on the record. Mr. Gahan, just for the record would you please state whether or not it's accurate that it's your understanding that you agree to dismiss your lawsuit with prejudice against all- parties named in your Complaint and -- and you understand that that means that you can never refile any other sort of proceeding or complaint or action based on the allegations and the incidents that you made in this case, and is it your understanding that in exchange for that the attorneys for the -- for the parties named in the complaint are willing to not pursue costs against you in this action? Is that your understanding, sir"

THE WITNESS: Yes.

MR. GREEN: And from the attorneys, that is also your understanding of our agreement we reached a few minutes ago?

MS. MORRIS: That's right.

MS. KRAWCZYK: Yes.

MR. GREEN: Okay. You are already covered. -hen we're going to draw up the form and that will be it.

Nothing else for the record? Everyone satisfied with this?

MS. KRAWCZYK: Yes.

MS. MORRIS: I believe so.

MR. GREEN: Fine. Off the record, please.

Within a day of taking part in this exchange and executing the "Stipulation for Dismissal and Release", Mr. Gahan determined that he did not wish to be bound by it. He filed documents with the Division purporting to "void" the "Stipulation for Dismissal and Release" and urging the Administrative Law Judge not to dismiss his complaint. The Respondents, for their part, filed the "Stipulation for Dismissal and Release" with the Administrative Law judge and requested that the complaint be dismissed based on it. The Administrative Law Judge, after considering the parties' submissions, decided that the "Stipulation for Dismissal and Release" could not be set aside, and on August 25, 1995 she issued her Order dismissing the complaint. Mr. Gahan's petition for review challenges that Order.

Complainant's position -- Mr. Gahan raises a number of objections concerning events preceding the entry of the "Stipulation for Dismissal and Release", (1)   but it is clear that his principal objection concerns the circumstances under which the "Stipulation for Dismissal and Release" was entered into, and the commission will therefore address itself to that matter.

Mr. Gahan complains that he was given poor and invalid legal advice, that he had never met Attorney Green before he appeared at the deposition on August 15, 1995, that Green went along with the refusal of the other parties to allow a friend of Mr. Gahan's to be present at the deposition, that Green refused to let Gahan take notes during the deposition, that Green would not let him read the "Stipulation for Dismissal and Release", and that Green "literally" forced Gahan to sign it by inaccurately threatening him that if he did not do so he could be held liable for the Respondents' legal fees. Mr. Gahan summarized his objections by stating that he believes his due process rights were violated due to "poor management of processing time from the Equal Rights Division" and poor and invalid legal counsel.

Discussion -- It is not clear what Mr. Gahan means by objecting to "poor management of processing time from the Equal Rights Division" . As noted  (supra, n. 1), the Division's investigator ruled entirely in Mr. Gahan's favor, and did so in a reasonable amount of time considering the number of parties and the quantity of the evidence to be considered. The commission sees nothing improper in the handling of this case by the Equal Rights Division.

Clearly, Mr. Gahan's complaint is principally with his attorneys. However, the fact remains that he indisputably entered into an express agreement that his complaint should be dismissed. That agreement, confirmed on the transcribed record of a formal proceeding and then memorialized in a writing signed by him, was binding when entered into. The fact that he subsequently changed his mind about the wisdom of what he had done does not change the binding nature of the agreement.

Furthermore, the commission neither can nor will disregard the binding nature of that agreement simply because Mr. Gahan now asserts that he was not properly represented by counsel.

Once entered into by all parties, either in writing or on the record, a settlement is final. In the absence of an allegation of misrepresentation or intimidation by a representative of the Department, and where there is nothing in the terns of the settlement agreement itself which makes it invalid, the Department will not entertain collateral attacks on the finality of a settlement. Pustina v. Fox & Fox, S. C. (LIRC, 04/27/93). In particular, the commission is disinclined to entertain collateral attacks on the finality of a settlement based on a party's claim that their attorney misrepresented the agreement to them, or exceeded the scope of their authority in agreeing to it, or otherwise engaged in some sort of improper conduct. For it to do so would unavoidably require the Commission to address issues concerning attorneys' professional responsibility and the effects of unethical conduct on contractual obligations, that are not within its statutory authority, and that should properly be addressed to other tribunals with the specific duty of addressing such issues. Brunswick v. Emergency Services of Door County (LIRC, 12/08/9?). The commission's unwillingness to consider collateral attacks on settlement agreements based on allegations against a party's attorney also furthers both the important policy of making parties accountable for actions of their attorneys, and the equally important policy that settlement should be encouraged. If settlement is to be encouraged, settlements must be treated as final when made. Johannes v. County of Waushara Executive Committee (LIRC, 11/01/93); Clussman v. Ellis Stone Constr. (LIRC, 03/25/86), Brunswick.

For these reasons, the commission concludes that it was appropriate to order the complaint dismissed based on the settlement and release which Mr. Gahan entered into. Therefore, it has affirmed the Order of the Administrative Law Judge.

cc:
Attorney Lauri D. Morris
Attorney Marianne Goldstein Robbins

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Footnotes:

(1)( Back ) He asserts that the Division's Investigator did not like him, talked down to him, and discriminated against him, and he also objected to her findings. The commission notes, however, that the Investigator's findings were entirely in Mr. Gahan's favor. While Mr. Gahan seems to be objecting to the time it took the Investigator to issue her findings, the commission considers that in view of the amount of evidence considered and the careful consideration which the investigator obviously gave that evidence (judging from the length and detail of her report), the period of approximately 6 months taken by the investigation is not unreasonable. Mr. Gahan complains that Attorney Kane told him verbally tat she could practice in Wisconsin even though that was not stated in the written retainer agreement, and that she did not send him copies of materials she filed with the Division. Mr. Gahan also raises an objection that he should not have been subject to deposition because under the Division's rules, unrepresented parties may not be made the subject of discovery without the approval of the Division, and he was technically "unrepresented" since Kane was (he asserts) not licensed to practice law in Wisconsin. Without intending to indicate any view on the merits of these arguments, the commission would simply note that it considers them to be moot considering the events which transpired at the deposition.

uploaded 2001/03/23