RONALD G. KELLAR, Complainant

COPPS GAS STATION, Respondent

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued an Order of Dismissal in this matter based on the filing of a request by the Complainant to withdraw the complaint. The Complainant subsequently sent a letter to the ALJ which was treated as a petition for commission review.

The commission has considered the letter from the Complainant and the positions of the parties, and it has reviewed the materials in the file in this matter. Based on its review, the commission issues the following:

The Order of Dismissal of the administrative law judge (copy attached) is affirmed. The complaint in this matter is dismissed with prejudice.

Dated and mailed January 28, 2004
kellaro . rsd : 110 :  

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

This case started with a complaint alleging that Respondent, a Copps Gas Station in Fond du Lac, discriminated against the Complainant, a 55-year old man who had worked there as a clerk, because of his age and his sex, in regards to conditions of employment and in discharging him. An investigation resulted in an Initial Determination that there was no probable cause to believe that the Respondent had discriminated against the Complainant as alleged. The Complainant filed an appeal of the Initial Determination. Shortly after this, he retained Attorney Thomas A. Fadner to represent him.

The matter came on for hearing on October 1, 2003 before ALJ Allen T. Lawent. The Complainant was present, represented by Attorney Fadner. The Respondent was present and was represented by Attorney Laurie A. Petersen.

The parties reached a settlement of the case on that day, and on that basis the hearing was cancelled and the matter was taken off the hearing calendar pending finalization of the settlement. As is described below, Complainant actually signed a "Request To Withdraw Complaint" form at that time in connection with the settlement agreement.

In the following weeks, there were a number of exchanges between the parties, the attorneys and the ALJ. Initially, the settlement agreement seemed to fall apart. However, it is evident that efforts to settle the matter continued, for on November 10, the ALJ received a FAX from Attorney Fadner's office indicating that the Complainant had signed a settlement agreement on that day. On November 25, the ALJ wrote to the parties to confirm a telephone conference that had occurred that day between himself and the attorneys in which it was confirmed that the settlement paperwork had been completed, that Respondent would be sending a check to Attorney Fadner's office, and that Attorney Fadner would be sending confirmation to the ALJ. On that basis, the ALJ took the matter off the hearing calendar. On November 26, the ERD received a copy of a "Confirmation" form from Attorney Fadner, which had been signed by him on that date. That form reflected Attorney Fadner's acknowledgment that the settlement paperwork had been completed and that all revocation periods had passed, and it requested the ERD to process the "Request To Withdraw Complaint" form that had been signed by the Complainant on October 1. Another copy of this "Confirmation" was also received by the ERD by mail on November 28, along with a copy of the "Request To Withdraw Complaint" form. This was a standard ERD Request To Withdraw form, completed properly and signed and dated (on October 1, 2003) by Kellar. In addition to the pre-printed text, which recited that the undersigned wished to withdraw his discrimination complaint, the form contained, immediately above Kellar's signature, these additional handwritten statements:

I have reached a private and confidential settlement with the Respondent. RK I have signed this withdrawal freely and willingly. TAF RK

As indicated here, initials of Kellar and Attorney Fadner appear where indicated.

Based on these documents, the ALJ then issued his "Order Of Dismissal - Private Settlement - Confidential Terms" on December 3, 2003, dismissing the complaint.

On December 9, the ERD received a handwritten letter from Kellar, directed to ALJ Lawent. In his letter, Kellar asserts that he did not get a copy of the settlement agreement until he went to Attorney Fadner's office on December 5, 2003 to pick up the check for the settlement, and he complains that he does not like the settlement. Kellar makes a number of assertions in the letter which are generally to the effect that he believes he was tricked into settling and that there was misconduct by the attorneys involved.

As noted above, this letter was treated as a petition for commission review concerning the December 3 Order of Dismissal.

The commission has a long and consistent history of decisions that clearly indicate that parties who have entered into settlement agreements providing for the dismissal of their complaints, or who have executed and filed requests to withdraw their complaints based on settlements, cannot have their cases reopened in this forum by alleging that they were poorly represented, misled by, or otherwise ill-served by their attorneys. Summers v. Northwest Airlines (LIRC, 05/26/00); Gahan v. The Milwaukee and S.E. Wisconsin Dist. Council of Carpenters (LIRC, 03/29/96); Nealy v. Miller Compressing Co. (LIRC, 09/19/95); Stillwell v. City of Kenosha (LIRC, 09/29/95); Brunswick v. Emergency Services of Door County (LIRC, 12/08/94); Johannes v. County of Waushara Executive Committee (LIRC, 11/01/93); Clussman v. Ellis Stone Constr. (LIRC, 03/25/86). The principle long followed by the commission is that in the absence of an allegation of misrepresentation or intimidation by a representative of the department, and where there is nothing in the terms of the settlement agreement itself which renders it invalid on its face, the commission will not entertain collateral attacks on the finality of a settlement based on a party's claim that his attorney misrepresented the agreement to him or exceeded the scope of his authority in agreeing to it. Summers.

The commission has observed:

This rule reflects not only the important policy of making parties accountable for actions of their attorneys, see, Dugenske v. Dugenske, 80 Wis. 2d 64, 68, 257 N.W.2d 865 (1977), but also the equally important policy that settlement should be encouraged. There would be no incentive to enter into a settlement if, once entered into, it could be repudiated by the other party simply because they thought better of it later. If settlement is to be encouraged, settlements must be treated as final when made.

Johannes, supra. The commission has also noted that for it to venture into such disputes would require it to address issues involving attorneys' compliance with the rules of professional responsibility, and legal malpractice, which are well beyond the statutory authority of the commission, and that if a party raises such issues it is most appropriate for them to be presented to the types of tribunals with the specific duty of addressing them. Brunswick, Gahan, Nealy, supra.

Furthermore, when there has actually been the filing of a withdrawal request in proper form, dismissal of the complaint is required by Wis. Admin. Code § DWD 218.03(7), which provides that "[u]pon the filing of a request for withdrawal, the department shall dismiss the complaint by written order" (emphasis added). Johannes, supra; see also Gribbons v. Chart Industries, Inc. (LIRC, March 26, 2002).

In this case, it is not disputed that Attorney Fadner was Kellar's counsel of record at all times material herein. It is also clear that Attorney Fadner negotiated a settlement agreement on the Complainant's behalf in the course of acting as his legal representative. Attorney Fadner filed with the ERD a formal acknowledgment that the settlement paperwork had all been completed and with a request that the withdrawal request be processed.

In addition, it is not disputed that the Complainant himself executed a "Request To Withdraw Complaint" form, indicating "I wish to withdraw my discrimination complaint against the above named respondent" and "I have reached a private and confidential settlement with the Respondent. I have signed this withdrawal freely and willingly." In addition to signing that form, he initialed the statements concerning his having reached a settlement and having decided to withdraw his complaint freely and willingly. Correspondence from the Complainant also indicates that he accepted a check for proceeds under the agreement. The Complainant's objections to the settlement agreement ring hollow in the face of these clear indications that he knowingly and voluntarily entered into the agreement, asked to have his complaint dismissed, and accepted the benefits obtained under the agreement.

This is not a case like Dennis Walsh v. Tom A. Rothe (LIRC, Nov. 29. 2002), in which a complainant signed and submitted a withdrawal form intended to take effect only when the settlement being negotiated was finalized and the settlement negotiations then fell apart and no settlement ever occurred. Here, the settlement process was finalized, and the settlement agreement was entered into by Complainant's counsel on his behalf.

For the foregoing reasons the commission affirms the Dismissal Order of the ALJ.

cc: 
Attorney Thomas A. Fadner II
Attorney Laurie A. Petersen

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uploaded 2004/01/29