VIRGINIA LOKKEN, Complainant

GENERAL CASUALTY OF WISCONSIN, 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 record of the proceedings before 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 May 30, 2002
lokkevi . rsd : 164 : 9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

On October 25, 2001, the complainant engaged in settlement discussions with the respondent's attorney and arrived at a verbal settlement agreement which was entered into on the record, with the complainant stating that she understood and agreed to the terms of the deal, and that there was nothing she wished to add to the agreement or change about it. The complainant then signed a "Request To Withdraw Complaint" form. As a result of the above, the administrative law judge issued an order dismissing the complaint with prejudice. The complainant has now petitioned for commission review of the administrative law judge's order dismissing her complaint, on the ground that she wanted to go forward with the hearing but felt pressured into agreeing to the settlement. Specifically, the complainant argues that she was not prepared to cope with the stress and pressure she experienced when the respondent's attorney informed her about the testimony that would be given by the witnesses appearing on the respondent's behalf. The complainant explains that she was frightened she would be "attacked" by those witnesses. She further states that, after talking to the respondent's attorney, she was simply too ill to continue.

The complainant's arguments are unpersuasive, for several reasons. In the first place, the administrative rules provide that, upon the filing of a request for withdrawal, the department shall dismiss the complaint. Wis. Admin. Code § DWD 218.02(7). Thus, once the complainant filed her written request to withdraw her complaint, the administrative law judge was obligated to dismiss the complaint. Gribbons v. Chart Industries Inc. (LIRC, March 26, 2002), citing, Johannes v. County of Waushara Executive Committee Board of Supervisors (LIRC, November 1, 1993). Moreover, it is the commission's policy to treat a settlement as final, absent an allegation of misrepresentation or intimidation by a representative of the department, or an allegation that the settlement agreement contains something to render it invalid on its face. See, Gribbons, and cases cited therein. The complainant does not contend that she was pressured or intimidated by the administrative law judge, and although she argues that she felt pressured by the respondent's attorney, her allegation that he described the type of evidence the respondent intended to present at the hearing does not warrant disregarding a settlement agreement which the parties entered into on the record or rescinding the complainant's signed request to withdraw her complaint. It is legitimate for a respondent to attempt to persuade a complainant to settle her complaint by explaining that it plans to present evidence that would defeat her case, and a complainant's decision not to go forward under those circumstances might well be considered a rational response to a concern that she was not going to prevail. Finally, if the complainant wanted to go forward with the hearing but felt too ill to continue, she should have asked the administrative law judge for a postponement, rather than entering into a settlement agreement with which she was unhappy and requesting withdrawal of her complaint. Even if the complainant could demonstrate that she was too ill to proceed, this would not be a circumstance that would justify disregarding a settlement agreement or a signed request to withdraw.

In her petition the complainant also argues that the settlement agreement was beyond the respondent's jurisdiction. She states that the respondent stepped outside of its "circle of authority" by attempting to deny her right to appeal with the Department of Labor and by adding her OSHA allegation. The complainant states that there was never any intention to deliberate about the OSHA violation, and that the only case to be heard was her equal rights case. However, there is no reason to believe that the respondent's attorney lacked authority to secure a waiver of all of the complainant's complaints against the respondent, and the fact that the settlement agreement contained a waiver of the complainant's right to go forward with any legal action arising out of her employment does not render it invalid. The essential fact here is that the complainant agreed to withdraw her equal rights complaint and did so. While the settlement agreement may also extend to matters other than those involving the instant complaint, the commission is not able to comment on the effect of that document on the complainant's rights to proceed in other forums. For purposes of the instant case, the settlement agreement and signed request to withdraw warrant dismissal of the complaint. Accordingly, the administrative law judge's order is affirmed.

cc: Attorney Kip J. Kobussen

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uploaded 2002/12/09