STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

KATHLEEN HUNSTOCK, Complainant

CECILIA AND HARRY PERLSTEIN, Respondents A and B

FAIR EMPLOYMENT DECISION
ERD Case No. 9355018

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. A timely petition for review was filed.

The commission has considered the petition and it has reviewed the record. Based on its review, the commission affirms the Order of Dismissal.

DECISION

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

Dated and mailed: December 8, 1994
hunstka.rsd : 110 :

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

MEMORANDUM OPINION

This case arises out of a complaint of sex discrimination. The initial determination found probable cause to believe that discrimination had occurred. Hearing was scheduled for August 16, 1994. At the hearing, the parties entered into a settlement agreement. The terms of the agreement were that Respondents would pay Complainant $2,400.

The Complainant now wants to get out of that agreement. She claims that she miscalculated the amount due, which she says should have been $10,400, representing $200 week for 52 weeks. She asserts that she never agreed to accept the settlement.

A review of the tape recording of the hearing, which confirms the accuracy of the transcript which was submitted by Respondents, leaves no doubt that the Complainant did agree to settle this case for $2,400. There was no mention of any figure of $200/week or of payment for 52 weeks. The sum of $2,400 was mentioned several times. The Complainant clearly and unmistakably agreed to settle her complaint for that much. This settlement took place on the record.

In the past the commission has consistently taken the position that absent 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, it will not entertain collateral attacks on the validity of a settlement agreement. 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). A settlement agreement entered into orally on the record is as binding as one executed in writing. Pustina, supra.

This appears to be a case in which a party has had second thoughts about the wisdom of a settlement agreement they knowingly and voluntarily entered into. The commission will not disturb such an agreement.

NOTE: The terms of the settlement called upon the Respondent to deliver the settlement check and the release to the ALJ, who was to send the release to the Complainant for her signature and to release the check to the Complainant after the release had been signed. Pursuant to these terms, the Respondent originally delivered a check (dated August 22, 1994) to the ALJ, on August 19, 1994. When it became apparent that there were going to be problems getting the Complainant to execute the release, the ALJ sent this check back to the Respondent, on September 13, 1994. The ALJ's September 22, 1994 Order then directed the Respondent to again submit the settlement check to the ERD, this time to Compliance Officer Robin Barkenhagen. In compliance with the ALJ's Order, Respondents again forwarded the August 22, 1994 check to the ERD, this time to Compliance Officer Barkenhagen. It was included in the file and came to the Commission with this appeal.

The Commission will retain this check while the appeal period is running. If Complainant begins an action for judicial review, the check will be filed with the court along with the rest of the commission's record and file. If the time for appeal runs without the commencement of an action for judicial review, the commission will return the check to Compliance Officer Barkenhagen.

If Complainant decides to accept the settlement and the check, she should contact the Equal Rights Division in Milwaukee or Madison to make arrangements to pick up the check. Complainant should note that the passage of time may make the check non-negotiable, so that she should act promptly.

cc:
COMPLAINANT
RESPONDENTS
ATTORNEY KIRA JOHANN

Appealed to Circuit Court.  Affirmed December 5, 1996.

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