MARY B. LEGGETT, Complainant

COUNTY OF MILWAUKEE, 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 February 13, 2004
leggema . rsd : 110 : 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

This matter originated with a complaint filed with the federal Equal Employment Opportunity Commission and cross-filed with the Wisconsin Equal Rights Division at the request of the complainant. The complaint alleged that the respondent County of Milwaukee had discriminated against complainant Mary B. Leggett based on her sex in regard to terms and conditions of employment and wages. The matter was initially investigated by the EEOC. After the EEOC had ended its processing of the matter, the ERD undertook an investigation of the complaint at the request of the complainant.

When the Equal Rights Division began its investigation, the complainant was unrepresented. During the course of the investigation she retained the firm of Podell, Ugent & Haney, S.C., and one of that firm's attorneys, Donna L. Billman, began participating in the case on her behalf. Attorney Billman filed a position statement with the department during the investigation. Following an investigation, the ERD issued an Initial Determination on July 22, 2003 which found probable cause to believe that discrimination had occurred.

A Notice of Hearing was issued on August 27, 2003, setting the matter for hearing on November 4, 2003. On October 22, 2003, Attorney Billman filed a formal Notice of Retainer, indicating that she had formerly represented the complainant in her capacity as an attorney with the firm of Podell, Ugent & Haney, that she had subsequently left that firm and started her own practice, and that she had been personally retained by Ms. Leggett to represent her in the matter. A "cc" notation indicated that the complainant had been sent a copy.

At around this time, Attorney Billman left a message for the administrative law judge to whom the matter had been assigned, to the effect that she and counsel for the County were going to attempt mediation of the matter. Shortly after this, the administrative law judge received a letter from Attorney Billman (first via FAX, on October 24, then a hard copy via mail on October 27), stating:

On behalf of the complainant Mary B. Leggett I have been authorized to request a withdrawal with prejudice of the above entitled ERD case matter. Please remove the case that was scheduled for hearing on November 4, 2003 from your calendar. By copy of this letter, Respondent is being served with this request for withdrawal of this action.

The "Re:" clause of the letter clearly identified the case both by the names of the parties and by the ERD case number. The "cc" notation indicated that the complainant had been sent a copy.

On October 30, 2003, the administrative law judge issued an "Order Of Dismissal - Withdrawal Of Complaint," which stated that "[t]he Complainant has made a written request to withdraw the complaint in this matter," and which on that basis ordered that the complaint be dismissed with prejudice.

On November 3, 2003, the administrative law judge received a letter from the complainant in which she asserted that Attorney Billman had signed a settlement agreement on October 27, 2003 and then mailed it to her, and that she had not had an opportunity to review a copy of the settlement agreement prior to the time that Attorney Billman sent the letter requesting that the complaint be withdrawn. The complainant also asserted that the settlement agreement exceeded the authority she had given Attorney Billman. She asked how she could have her discrimination charge with the ERD reinstated. She also asked the administrative law judge to make sure that the Equal Employment Opportunity Commission did not dismiss her charge. (1)

The administrative law judge responded by a letter which noted that the complainant had not stated that Attorney Billman was no longer representing her. The administrative law judge also noted that she had not been aware until she received the complainant's letter that the withdrawal had been based on a settlement agreement, and that she had assumed that the complainant had decided to withdraw her complaint for her own personal reasons. Finally, the ALJ noted the commission's decision in Johannes v. County of Waushara Executive Committee (LIRC, November 1, 1993), which held that upon receiving a written request for withdrawal signed by complainant's attorney of record, an administrative law judge is obliged by ERD rule to dismiss the complaint by written order, and that if counsel entered into settlement which client had not authorized, the settlement is nonetheless binding for ERD purposes and the client's remedy, if any, will be against the attorney, such as by a malpractice action. The administrative law judge referred the complainant to her right to petition for review by LIRC.

The complainant filed a petition for review on November 19, 2003. It essentially reiterated the points she had made in her letter to the administrative law judge.

On November 26, the ERD received a letter from Attorney Billman, referencing this case, indicating that she had just received notice that the complainant had filed a petition for review in the matter, and stating that she was formally withdrawing from all representation and that she no longer represented Ms. Leggett.

Discussion - There is no question but that Attorney Billman was acting as the complainant's attorney at the time she filed the request to withdraw the complaint in this case. Attorney Billman was, as such, the complainant's "duly authorized representative" within the meaning of Wis. Admin. Code § DWD 218.03(7), which provides:

(7) WITHDRAWAL OF COMPLAINT. A complaint may be withdrawn at any time. A request for withdrawal shall be in writing and shall be signed by the complainant or by the complainant's duly authorized representative. Upon the filing of a request for withdrawal, the department shall dismiss the complaint by written order. Such dismissal shall be with prejudice unless otherwise expressly stated in the order.

The situation here was thus the same as that presented in Johannes v. County of Waushara Executive Committee (LIRC, November 1, 1993), in which the attorney of record for a complainant filed a written request to withdraw the complaint with prejudice. In Johannes, the commission noted that the dismissal of the complaint was mandated by the applicable ERD rule once a withdrawal request had been filed by the complainant's attorney, and it expressed its view that 

in the absence of an allegation of misrepresentation or intimidation by a representative of the department, and where there is no issue presented about whether the settlement agreement contains something which makes it invalid on its face but only a question of whether it was in fact agreed to, the commission will not 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.

The commission has continued to adhere to this view. See, e.g., Scott v. Oconomowoc Area Sch. Dist. (LIRC, Jan. 30, 2004); Kellar v. Copps Gas Station (LIRC, Jan. 28, 2004); Summers v. Northwest Airlines (LIRC, May, 26, 2000); Gahan v. Milw. and S.E. Wis. Dist. Council of Carpenters (LIRC, March 29, 1996); Stillwell v. City of Kenosha (LIRC, Sept. 29, 1995); Brunswick v. Emergency Services of Door County (LIRC, Dec. 8, 1994). If the complainant's allegations concerning the manner in which the withdrawal of her complaint occurred are accurate, she may well have a remedy, but the Labor and Industry Review Commission is not the forum which can resolve the issues necessary to determine that question.

cc: 
Attorney Donna L. Billman
Attorney Timothy R. Karaskiewicz

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(1)( Back ) As noted above, the complaint had originally been filed with the EEOC and cross-filed with the ERD. Following its normal practice, the ERD included the EEOC case number in the caption of a number of the documents in the case. However, the withdrawal request from Attorney Billman referred only to the ERD case number. The administrative law judge also included only the ERD case number in the caption of her "Order Of Dismissal - Withdrawal Of Complaint". The commission takes this to reflect the administrative law judge's understanding that the withdrawal request was intended only to relate to the complainant's claim under the Wisconsin Fair Employment Act, and her intention that her order would also only relate to that claim. The commission agrees that this is appropriate, and it emphasizes that the scope of this decision is limited to the claim under the WFEA. The question of what effect the settlement agreement entered into by Attorney Billman on behalf of the complainant may have on any pending or potential proceeding involving claims under other laws, is not before the commission in this matter, and it expresses no opinion on that question.

uploaded 2004/02/16