JOHN D. SCOTT, Complainant

SCHOOL SUPERINTENDENT
OCONOMOWOC AREA SCHOOL DISTRICT, 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 January 30, 2004
scottjo . rsd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

John Scott, his Oconomowoc Education Association (OEA) representative and the Oconomowoc Area School District (District) executed an employment settlement agreement in May and June 2001. Under this settlement agreement Scott received a lump sum payment of $22,875.00, and other contractual benefits, in exchange for his resignation at the end of 2000-2001 school year and agreement to release the District for all claims, charges, demands or causes of action of any kind whatever which pertain to Scott's employment with the District.

On May 22, 2003, nearly two years after the settlement agreement, Scott filed a complaint with the ERD alleging that in April-May 2001 he was diagnosed with adult ADHD (Attention Deficit Hyperactivity Disorder) and that the District had denied him any accommodation for this disability.

An Equal Rights Officer for the Division issued a Preliminary Determination and Order dismissing Scott's complaint because it did not meet the timeliness requirements under the Act. In doing so, the Equal Rights Officer noted that the District displayed a poster explaining the timeliness requirements of the Act in full view of its employees. She also noted that Scott had entered into a settlement agreement with the District in May and June 2001 and that no employment relationship had existed between the parties since the settlement agreement.

Scott filed an appeal and the matter was referred to an ALJ for review. The ALJ affirmed the preliminary determination's dismissal of Scott's complaint. The ALJ noted that nowhere in Scott's appeal of the preliminary determination does he claim that he was incapacitated or otherwise unable to commence legal action for any period between May 2001 and May 2003. Further, the ALJ stated that the settlement Scott reached with the District would bar his making any claims against the District.

Scott's challenge to the dismissal of his complaint has been, and continues to be, that he was not fairly represented by his education association representative. Scott argues that his union representative approached him with the settlement agreement at a time when his mind was in a state of "emotional turmoil," that his union representative emphatically informed him he had no other choice of action, and that at no time did his representative inform him of his right to file a discrimination complaint against the District or of the 300 day statute of limitations period in which to file a complaint.

In prior cases where complainants who had been represented by attorneys challenged a settlement agreement that had been entered into the commission has held that in the absence of an allegation of misrepresentation or intimidation by a representative of the department, or a settlement agreement that contains something that makes it invalid on its face, a complainant's claims of misrepresentation on the part of his attorney in the entering into of a settlement agreement will not be entertained. Brunswick v. Emergency Services of Door County (LIRC, 12/8/94), citing, Johannes v. County of Waushara Executive Committee (LIRC, 11/1/93), Pustina v. Fox & Fox, S.C. (LIRC, 4/27/93), Clussman v. Ellis Stone Constr. (LIRC, 3/25/86). In Johannes the commission stated that this rule reflects not only the important policy of making parties accountable for actions of their attorneys (citing 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.

There is no reason that the above principles should not apply in the instant matter. Scott makes no allegation of misrepresentation or intimidation by the department, or that the settlement agreement itself contains something that makes it invalid on its face. Instead, Scott seeks to repudiate the settlement agreement based upon alleged shortcomings and impropriety by his own union representative. Scott should not be held any less accountable for the actions of his union representative than if an attorney had represented him. The District was not responsible for the representation Scott received from his union. Further, to permit Scott to get out of his settlement agreement under the circumstances alleged here would only serve to discourage settlements where union representation was involved.

Accordingly, the commission has affirmed the administrative law judge's decision.

cc: Attorney Mark L. Olson

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uploaded 2004/01/30