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The Wisconsin Equal Rights (ER) Decision Digest -- Sections 744-748     

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700 PROCEDURE

(744 - 748)

744 Pre-hearing conferences and orders  

The complaint was properly dismissed where the Complainant failed to appear at a scheduled pre-hearing conference (1) where she provided no plausible reason for her failure to appear, (2) where she did not timely respond to the Personnel Commission's directive to explain her failure to appear, and (3) where her previous conduct had precipitated other delays in proceeding with this case. McMillan v. DOC (Wis. Personnel Comm., 09/21/01).

Where a complaining party did not comply with a pre-hearing order to clarify the pleadings, the complaint was properly dismissed. Ramos v. Aunt Nellie's Foods (DILHR, 04/28/76).

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745 Discovery

An ALJ's authority to impose discovery sanctions under ch. 804, Stats., is limited to situations involving either non-compliance with an order compelling discovery under sec. 804.12(2), Stats., or a discovery failure listed in sec. 804.12(4).  An ALJ does not have authority under ch. 804 to sanction a Complainant based on a finding that the Complainant lied at her discovery deposition.  Stephens v. Renaissance Place (LIRC, 12/12/13).

The respondent failed to provide the complainant with copies of evaluations of potentially similarly situated employees in response to a request for production of documents, based on the explanation that the documents were not in the respondent's possession.  The burden is on the party resisting production to prove that compliance is not possible because of non-possession of documents. The ALJ misallocated the burden of proof by requiring the complainant to prove that the respondent had possession of the documents. Reversal or remand is not required, however, because the ALJ's error did not prejudice the complainant. In weighing the prejudicial effect of a mistaken procedural ruling, the error must be placed in the context of the evidence actually presented in the case. The complainant failed to show that his situation was similarly situated to that of the employees who were the subjects of the evaluations sought by the complainant in discovery, and failed to present other evidence raising an inference of discriminatory motive. Obasi v. Milwaukee School of Engineering (LIRC, 10/14/13).  

By failing to renew his request for employer records after the employer objected to the request, either before the hearing or at the hearing, the complainant must be considered to have withdrawn his request for the records. Hungerford v. The Boldt Company (LIRC 5/17/13).

Dismissal of a complaint may be an appropriate sanction for a complainant's failure to comply with a respondent's discovery requests. The relevant inquiry is whether the noncomplying party intentionally or deliberately delayed, obstructed or refused the requesting party's discovery demand, or whether the noncomplying party's conduct, even though unintentional, is so extreme, substantial and persistent that it can properly be characterized as egregious. Anderson v. Columbia-St. Mary's Hospital (LIRC, 04/16/13). 

Even taking into account that the dismissal of a complaint is the most serious step that can be taken as a sanction, the ALJ's exercise of discretion here was reasonable, where the ALJ considered the whole history of the discovery process, described what occurred accurately, and applied a standard which focused whether the complainant intended to comply with the order he had issued.� It was reasonable to find that complainant's non-compliance with her discovery obligations and with the ALJ's order to compel, was intentional, because of its persistence in the face of the clear and repeated warnings to the complainant by both the respondent's counsel and the ALJ. These circumstances made it a reasonable inference, if not a compelling one, that the complainant did not actually intend to comply with the obligations imposed on her by the discovery requests and the ALJ's order. Dismissal of the complaint was therefore affirmed. Anderson v. Columbia-St. Mary's Hospital (LIRC, 04/16/13). 

LIRC reviews ALJ orders imposing sanctions for non-compliance with discovery orders, under an abuse of discretion standard:  the question is whether the ALJ reasonably exercised discretion, by examining the relevant facts, applying a proper standard of law using a rational process, and reaching a reasonable conclusion. Anderson v. Columbia-St. Mary's Hospital (LIRC, 04/16/13).

An Administrative Law Judge improperly dismissed a complaint based upon the Complainant's responses to several Requests for Admission filed by the Respondent. Under sec. 804.11(2), Stats., withdrawal of admissions may be permitted when the presentation of the merits would be subserved thereby and the party who obtained the admission fails to show that withdrawal or amendment will prejudice the party maintaining the action or defense on the merits. It is clear that the Complainant opposed the dismissal of his complaint based on his responses to the admissions. Such opposition was effectively a request for withdrawal of those admissions. The inquiry into whether the presentation of the merits would be subserved by allowing withdrawal of the admissions involved consideration of whether the admissions were contrary to the record in the case. It is clear that the significant issues in the case were, in fact, in dispute. In his complaint, in his submissions to the investigator, and in his responses to the Respondent's interrogatories, the Complainant had made it clear that he believed that the Respondent had unlawfully discriminated against him. The admissions requested were plainly contrary to the record of the positions the Complainant had taken in this case. Further, the Respondent would not be prejudiced by the withdrawal of the admissions. The Respondent would simply be in the position that it had been before the admissions. Rationalizing dismissal without a chance for hearing on the theory that the Complainant actually admitted that he was not discriminated against, when he clearly believed and contended that he was discriminated against, would involve relying on a willful fiction. The dismissal of the case was set aside and the matter was remanded to the Equal Rights Division for hearing. Ford v. Briggs & Stratton Corp. (LIRC, 07/24/12).

In deciding whether the dismissal of a complaint is an appropriate sanction to impose on an unrepresented party for failing to respond to discovery requests, there must be a determination whether the Administrative Law Judge made adequate efforts to assist the party in understanding and complying with the discovery process prior to dismissing the complaint. This case was remanded to the Equal Rights Division because the Complainant, who was unrepresented by legal counsel, had not received any assistance or guidance in complying with the Respondent's discovery requests. The Administrative Law Judge granted the Respondent's motion to compel discovery without providing the Complainant any opportunity to respond. Moreover, the Administrative Law Judge failed to notify the Complainant about the consequences of failing to comply with his order compelling discovery. Duncan v. International Union of Operating Engineers, Local 139 (LIRC, 09/11/12).

As a general matter LIRC conducts a de novo review and acts as an original fact-finder and reviewer of an ALJ's decision. However, where LIRC is asked to review an ALJ's exercise of discretion in ruling on discovery matters the standard is not whether LIRC believes that a particular position has been substantially justified and whether attorneys' fees and costs should have been awarded, but whether it finds the ALJ's decision on the issue to have been an abuse of discretion. A discretionary decision will be sustained if the ALJ has examined the relevant facts, applied the proper standard of law using a rational process, and reached a reasonable conclusion. Kutschenreuter v. Roberts Trucking (LIRC, 04/21/11).

Dismissal of a complaint for failure to comply with a discovery order is appropriate only in cases of bad faith or egregious conduct on the part of the Complainant. Bad faith, by its nature, cannot be unintentional. There must be a finding that the non-complying party intentionally or deliberately delayed, obstructed or refused the requesting party's discovery demand. The non-complying party's conduct may be characterized as egregious if it was extreme, substantial and persistent, (even though unintentional). Further, the decision to impose sanctions is not dependent upon a showing that the opposing party was actually prejudiced by the delay or failure to respond to discovery. Perez v. SYNICO Staffing (LIRC, 12/09/10).

The complaint was appropriately dismissed where the Complainant failed to appear at a deposition and failed to comply with an ALJ's order that he explain his failure to comply with discovery. On appeal to LIRC, the Complainant indicated that he was incarcerated and that was the reason he had not appeared for his deposition. The Complainant had never notified the Equal Rights Division that he was incarcerated. Further, it appeared that the mail which was sent to the Complainant at a post office box number was being forwarded to him. Therefore, the Complainant's failure to provide any response to counsel's discovery request or to the Administrative Law Judge's order to respond to the Respondent's motion to compel discovery was intentional and his complaint was appropriately dismissed. Perez v. SYNICO Staffing (LIRC, 12/09/10).

Dismissal of a complaint as a sanction for refusal to cooperate with discovery is a drastic step;  however, it is one which is warranted in certain cases. The failure of a party to attend his own deposition is considered a very serious default, as evidenced by the fact that it is singled out in the statutes as being a potential grounds for sanctions up to and including the dismissal of a complaint the first time it happens, even absent a warning such as an order to compel.  The sanction of dismissal of an action will be sustained if there is a reasonable basis for the determination that the non-complying party's conduct was egregious and without clear and justifiable excuse. In this case, the notice of deposition was sent to the complainant at his most recent address of record, followed by a reminder notice. The complainant never informed the respondent that he would be unable to appear at the scheduled deposition.   He provided no excuse for his failure to appear, although he was given a specific opportunity to do so by the administrative law judge.  This leads to the inference that there was, in fact, no valid excuse for the failure to appear. Griffin v. Manor Care Health Service (LIRC, 03/23/10)

An Administrative Law Judge may render a judgment by default against a party who fails to comply with a discovery order. The Administrative Law Judge had notified the Respondent that failure to comply with a discovery order granting the Complainant?s motion to compel discovery would result in a finding of discrimination without hearing. Notwithstanding this clear warning about the consequences of failing to comply with the discovery order, the Respondent took absolutely no steps to do so. Smith v. RWS Trucking (LIRC, 11/18/09).

The statute permitting a party to withdraw deemed admissions does not require the party seeking withdrawal to demonstrate that the failure to respond to the admissions in a timely manner was with good cause. Rather, the party moving for withdrawal or amendment of the admissions must show that the presentation of the merits will be served, and the party who obtained the admission must fail to demonstrate that withdrawal or amendment would prejudice the party in maintaining the action on the merits. Johnson v. Roma Pizza II (LIRC, 02/25/09).

The dismissal of the Complainant's complaints was warranted because his conduct in failing to respond to the Respondent's discovery requests was intentional, it evinced bad faith, and it was without justifiable excuse.  The Complainant did not appear for his rescheduled deposition, he did not provide documents requested by the Respondent, and he did not return phone messages the Respondent's attorney left him regarding his failure to appear at the deposition and to provide the requested documents.  Perkins v. BOS MRS Enterprises (LIRC, 11/26/08).

The Complainant's argument that the Respondent's notice of deposition was served without proper notice was without merit.  A subpoena is not necessary to compel a party's attendance for a deposition.  The Respondent had mailed notice of its discovery requests to the Complainant at his last-known address, in accordance with sec. 801.14(2), Stats.  Perkins v. BOS MRS Enterprises (LIRC, 11/26/08).

The Complainant's numerous and repeated failures to comply with the Administrative Law Judge's explicit discovery orders in this case were deliberate and sufficiently egregious to justify dismissal of her charge.  The Administrative Law Judge had attempted to carefully guide the Complainant through the discovery process, specifying in detail what she was required to provide and giving her numerous opportunities to provide it, explaining in explicit terms what the consequence would be for her failure to do so.  Roen v. Allen Bradley Rockwell Automation (LIRC, 08/19/08).

The dismissal of a complaint as a sanction will be sustained if there is a reasonable basis for the ALJ's determination that the non-complying party's conduct was egregious and without clear and justifiable excuse.  In this case, the Complainant's failure to respond to the Respondent's discovery requests was egregious.  He did not comply with the Respondent's requests for production of documents.  He did not respond to the Respondent's written interrogatories.  Nor did he appear for his scheduled deposition.  The Complainant's assertion that he had 'no time' to respond to the discovery requests was not believable.  As a party who brought an action against another party, the Complainant had responsibilities and obligations that he had to attend to in pursuit of that action.  His complaint was properly dismissed for failure to respond to the Respondent's discovery requests.  Moya v. Clarity Care (LIRC, 07/25/08).

It was too late for a Complainant to raise an issue relating to discovery for the first time at hearing where she had failed to file a motion to compel discovery or to otherwise bring this discovery matter to the attention of the Equal Rights Division prior to the hearing.  Matson v. Aurora Health Care (LIRC, 03/21/08).

Under sec. 804.11(2), Stats., a court "may permit withdrawal or amendment [of the admission] when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment would prejudice the party in maintaining the action or defense on the merits." The party moving for withdrawal or amendment of the admissions must show that the presentation of the merits would be served, and the party who obtained the admission must fail to demonstrate that withdrawal or amendment of the admissions would prejudice the party in maintaining the action on the merits. It is not necessary for a party seeking to amend or withdraw an admission to bring a formal motion in every case. Federal courts have held that the party making the admission must show that presentation of the merits will be subserved by withdrawal, and that this inquiry involves consideration of whether the admission is contrary to the record in the case. In this case, presentation of the merits of the action would be subserved by permitting withdrawal of the admissions. There is no indication that the Complainant did not dispute liability in this case. The admissions were contrary to the record as shown by the Complainant's responses to the Respondent's other discovery requests. Further, the Respondent could not fairly argue that withdrawal of the admissions would prejudice it in maintaining its defense against the action. The prejudice contemplated by the rule is not simply that a party would be worse off without the admission. Rather, a party benefiting from the admission must show prejudice in addition to the inherent consequence that the party will now have to prove something that would have been deemed conclusively established if the opposing party was held to its admissions. Nabors v. Kelly IT Resources (LIRC, 10/06/06).

A court may permit withdrawal or amendment of admissions in a Request to Admit when the presentation of the merits of the action would be subserved thereby and the party who obtained the admissions fails to satisfy the court that withdrawal or amendment would prejudice the party maintaining the action on the merits. Whether the presentation of the merits will be subserved by withdrawal involves consideration of whether the admission is contrary to the record in the case. In this case, the Respondent's admissions were contrary to the record. Further, there was no showing that the withdrawal of the admissions in any way prejudiced the Complainant's claim against the Respondent. Jackson v. Quality Carriers (LIRC 03/17/06).

A dismissal of a complaint for failure to answer an interrogatory or to permit inspection does not need to be preceded by a motion for an order compelling an answer or inspection, the granting of said motion and then the party's failure to obey the order before a judge may order dismissal of the action (i.e., the procedure described in secs. 804.12(1)(a), (b) and 804.12(2)(a)3, Stats). A party may also obtain dismissal of a complaint as a sanction under sec. 804.12(4), Stats. That statute does not require a violation of a discovery order to justify sanctions; failure to comply with the statutory directive is sufficient. The imposition of sanctions is discretionary with the judge. However, dismissal is a drastic penalty that is appropriate only where the non-complying party's conduct is egregious or in bad faith and without clear and justifiable excuse. In this case, the day after his discovery responses were due, the Complainant asked for an extension of time to submit a response. The Complainant was not represented by legal counsel at the time. The Complainant indicated that he did not respond to the discovery requests because he "didn't have the foggiest idea what they were talking about." The record does not indicate that the Complainant's conduct was so extreme, substantial and persistent that it could be characterized as egregious. Therefore, the dismissal of the complaint was not warranted on this basis. Swanson v. Kelly Services (LIRC, 10/13/04).

It is not necessary for a party seeking to amend or withdraw an admission to bring a formal motion in every case. A party seeking to withdraw an admission must show that the presentation of the merits will be served, and the party that obtained the admission must fail to demonstrate that allowing withdrawal or amendment of the admission would prejudice the party in maintaining the action on the merits. Swanson v. Kelly Services (LIRC, 10/13/04).

Sanctions may be imposed for failing to comply with discovery requests where the non-complying party’s conduct is egregious or in bad faith and without a clear and justifiable excuse. In order to dismiss a complaint on the basis of bad faith, there must be a finding that the non-complying party intentionally or deliberately delayed, obstructed, or refused the requesting party’s discovery demand. In this case, the Administrative Law Judge had a rational basis for dismissing the complaint where the Complainant refused to respond to a question asked of him at a deposition, even after the Administrative Law Judge directed him to answer the question (which was related to where he was currently employed). However, a discovery sanction is limited to the case before the Administrative Law Judge. Here, the Administrative Law Judge had only part of the case before him. The remaining portion of the case had previously been dismissed in a Preliminary Determination on lack of timeliness grounds. The Complainant had appealed the Preliminary Determination dismissing that portion of his complaint, and that appeal had not yet been resolved. Because that appeal was not before the Administrative Law Judge who resolved the discovery issue, that portion of the complaint was not properly dismissed. Josellis v. Pace Industries (LIRC, 06/21/02).

Where the Complainant failed to respond to the Respondent’s Requests For Admissions, those matters were conclusively established by operation of law. The Respondent then sought to dismiss the complaint based upon the admissions, which included admissions that the Complainant was accommodated when he presented limited duty slips, that the Complainant engaged in conduct that warranted discipline and was given discipline because of his conduct, and that the Complainant was terminated from his employment because of his violation of a directive regarding the use of safety equipment. Based upon these admissions, and upon the Complainant’s statement indicating that he had no admissible evidence upon which he could establish his claim that he had a disability, the Administrative Law Judge properly concluded that the complaint should be dismissed. Gross v. Sodexho Marriott Management (LIRC, 06/21/02).

Sec. 804.12(1)(c), Wis. Stats., contemplates that a separate hearing will be held on the issue of whether fees and costs should be awarded in connection with a discovery motion. However, a separate hearing was not required where the Complainant waived the right to such a separate hearing by his long delay in submitting a statement of the fees and costs being sought. Wells v. Roadway Express (LIRC, 05/13/02).

Dismissal of a complaint as a sanction for refusal to cooperate with discovery is a drastic step, but it is warranted in certain cases. In this case, dismissal was warranted where the Complainant engaged in a course of conduct evidencing a lack of any serious intention to cooperate in the discovery process. Even after the Administrative Law Judge ordered him to comply, the Complainant continued to refuse to cooperate. Reed v. Wurth USA (LIRC, 09/25/01).

The Administrative Law Judge improperly required the Complainant to pay costs, including attorneys fees, in connection with her Request for Production of Documents. The provisions of sec. 804.12(1)(c), Stats., "Award of Expenses of Motion," do not by their terms apply to motions to shorten or lengthen time to respond to discovery requests. Fauteck v. Sinai Samaritan Medical Center (LIRC, 11/09/00).

The failure of a party to attend at their own deposition is considered a very serious default, as evidenced by the fact that it is singled out in the statutes as being a potential grounds for sanctions up to and including the dismissal of a complaint the first time it happens, even absent a "warning." Here, the complaint was properly dismissed where the Complainant failed twice to attend at his own deposition, the second time after such a warning had been issued. The imposition of an order for payment of fees and costs incurred was also authorized and reasonable. The assessment of such an order against a Complainant and his counsel was appropriate in view of the fact that the attorney also failed to appear at the deposition. McAdoo v. Wm. Beaudoin & Sons (LIRC, 04/19/00).

The disclosure of some documents in the context of discovery may be subject to a protective order to prohibit dissemination of the documents beyond the confines of the litigation. In this case, the protective order issued by the Personnel Commission stated: "The following materials filed by Respondent and provided to Complainant or his representative may be used by Complainant or Complainant’s representative only for the purpose of litigating this case or related cases involving identical or similar issues in other forums and involving the same parties, and may not be disclosed by Complainant or Complainant’s representative for any other purpose. The Complainant is directed to inform the Department of the name and address of any expert or other witness Complainant intends to consult prior to divulging any of this material to any such person, so that the Department may serve copies of this order on such person prior to disclosure of the material, and any such person is directed not to disclose the materials to the public or outside the confines of this proceeding." Fondow v. Dept. of Revenue (Wis. Personnel Comm., 01/19/00).

An Administrative Law Judge has the authority to order the execution of a medical records release as an adjunct to a medical examination ordered under sec. 804.10 (1), Stats. Dismissal of the complaint was an appropriate sanction for the Complainant’s refusal to comply with an order that he execute a medical records release. Michalzik v. Time Ins. Co. (LIRC, 01/16/98).

A party’s motion for sanctions in a discovery matter was appropriately denied where that party failed to make a motion for a protective order under sec. 804.01(3), Stats. Priegel v. Garden Way (LIRC, 04/18/97).

A complaint was appropriately dismissed as a sanction for the Complainant’s failure to comply with discovery where the evidence established that the Complainant sought every opportunity she could to frustrate the Respondent’s attempts to depose her, and that she did so, not based on a good faith belief about what she was or was not entitled to do, but rather on the basis of her assessment of what she could get away with without having her case dismissed. Castiglione v. Giesen & Berman (LIRC, 06/25/97).

The complaint was appropriately dismissed where the Complainant failed to appear at a scheduled deposition on two separate occasions. The Complainant's failure to appear at the second deposition was either intentional or in bad faith, or reflected a callous disregard for his obligation to submit to discovery. Dobbs v. Super 8 Motel (LIRC, 10/15/96).

A complaint was properly dismissed where the Complainant failed to appear at a prehearing conference. Peterson v. Harvest Life Insurance Co. (LIRC, 04/19/96).

It was not error for the Administrative Law Judge to preclude the Complainant from conducting further discovery between the first day of hearing and the date of the continued hearing, which was several months later. The Administrative Law Judge did allow the Complainant to subpoena materials for production at the continued hearing. Nenning v. Milwaukee County Medical Complex (LIRC, 02/09/95).

The complaint was appropriately dismissed as a sanction for the Complainant's failure to comply with discovery requests and orders. The Complainant's failure to comply with the Administrative Law Judge's discovery order was egregious and without any clear or justifiable excuse.Burgess v. Milwaukee Forge (LIRC, 06/13/95).

The Complainant's unwillingness to take time off from work does not constitute a valid objection to the taking of her deposition. Woods v. Medalcraft Mint, Inc. (LIRC, 06/10/94).

Dismissal of a claim is a permissible sanction for a Complainant's refusal to comply with discovery. The complaint in this case was appropriately dismissed where the Complainant clearly failed to comply with the Administrative Law Judge's order to provide certain medical authorization and documents. Gemmell v. ABFM (LIRC, 02/24/94).

It was appropriate for an Administrative Law Judge to issue an order compelling discovery where the Respondent argued that the internal complaint procedures which it followed in resolving discrimination complaints (which was written pursuant to the employer's voluntary affirmative plan) was protected as work- product. The report was not prepared in anticipation of litigation, and so may not be considered protected work-product. State ex. rel. Madison Metropolitan School Dist. v. LIRC, (Dane Co. Cir. Ct., 10/01/93).

Given that discovery is meant to be broad and far-reaching in order to focus the issues for hearing, it would be unfair to allow the Respondent to allege failures in the Complainant's work performance as an employe of the Respondent's law firm while simultaneously attempting to shield itself from responding to the Complainant's discovery requests on the grounds of attorney- client privilege. Bahr v. Levine and Epstein (LIRC, 06/05/92).

The Administrative Law Judge properly quashed a subpoena for the production of documents which was issued two days before the beginning of the second day of the hearing. The party seeking the subpoena could not have introduced the documents into the record even if the documents had been produced according to the subpoena since sec. Ind 88.14(1), Wis. Adm. Code, requires that all exhibits must be submitted no later than the tenth day prior to the day of the hearing. Vaisman v. Aldridge, Inc. (LIRC, 10/21/91).

The Administrative Law Judge appropriately quashed a subpoena duces tecum which the Complainant served upon the Respondent shortly before the hearing. The subpoena requested significant volumes of documents. If these documents were produced at hearing and the Complainant was given the opportunity to review them in order to determine which were relevant to her case and which were not, the review process would be extremely time consuming and would inordinately delay the hearing. The Complainant had the opportunity to conduct this kind of search for relevant evidence by way of pre-hearing discovery. Because none of the documents had been identified by the Complainant prior to the hearing as potential exhibits, they would have been subject to exclusion in any event. Chacon v. Dairy Equipment Co. (LIRC, 02/15/91).

A Complainant can be required to appear for a deposition, even if that means missing work and not being paid for the time involved. Holubowicz v. DOC (Wis. Personnel Comm., 08/22/90).

The Respondent's motion to compel the Complainant to answer interrogatories which asked for information about the acts or events which constituted the alleged violations in the complaint was granted. Iwanski v. DHSS (Wis. Personnel Comm., 01/10/90).

The Administrative Law Judge abused his discretion and denied the Respondent due process of law when he prohibited the Respondent from further deposing the Complainant after she abruptly walked out of her deposition. The questions posed by the Respondent's attorney were either relevant or reasonably calculated to lead to admissible evidence. Face-to-face discovery was essential to the Respondent's preparation of its defense to the charges of discrimination raised by the complaint. Therefore, an Absolute Writ of Prohibition was issued restraining the Equal Rights Division from any further proceedings until the Complainant's deposition was taken and the Respondent had completed its discovery. State of Wis. ex rel. Assoc. Schools, Inc. v. DILHR, Moriarty and Schacht (Milw. Ct. Cir. Ct., 09/19/89).

A complaint was properly dismissed as a sanction for the Complainant's failure to comply with the Respondent's discovery requests. Complainant's attorney was further ordered to pay the Respondent's actual costs and attorney's fees incurred because of the Complainant's refusal to comply with discovery requests. If the attorney was to blame for the dismissal, the Complainant's remedy was a suit for malpractice. Smith v. Norris Adolescent Center (LIRC, 04/21/89).

Dismissal of the complaint was too severe a sanction for the Complainant's failure to answer interrogatories. The Complainant did answer the interrogatories, albeit late. The Respondent never brought a motion to compel, nor did it show prejudice. Bie v. WLUK-TV (LIRC, 02/29/88).

The proper remedy for incomplete responses to discovery requests is a motion to compel, not a motion for sanctions. The party requesting the information must establish its relevancy to the complaint, but need not show that it would be admissible at the hearing. Paul v. DHSS (Wis. Personnel Comm., 10/14/83).

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746 Dismissals for failure to respond to correspondence from the department

In certain circumstances, considerations of due process require that a complainant receive a hearing on his assertion that he never received notice of the Department's certified letter. Laboy v. Mantissa Corp. (LIRC, 03/21/12).

The complaint was dismissed after the Complainant failed to respond to a certified letter from the Equal Rights Division within 20 days. The certified letter informed the Complainant that a response was required and that the information was needed by the Equal Rights Division in order to process and make a decision regarding her complaint. This was purposeful correspondence. The Complainant was not entitled to a hearing on her assertion that she never received the Department's certified letter because she conceded that she was no longer residing at the address to which the certified letter was mailed, even though this was her address of record with the Equal Rights Division at the time. Maxwell v. Aramark Educational Services (LIRC, 11/30/10).

A complaint was properly dismissed for failure to respond to correspondence from the Department where the Complainant admitted that the reason he did not go to the post office to claim the certified letter from the Equal Rights Division was that he thought it was mail from a bill collector.  Had he gone to the post office to ascertain who the mail was from, he would have learned that it was correspondence from the Department regarding his discrimination complaint.  Hobson v. USA Security (LIRC, 01/31/08).

The Equal Rights Division dismissed a complaint based upon the Complainant's failure to respond to correspondence sent by certified mail to her last known address. The Complainant appealed the dismissal to the Labor and Industry Review Commission indicating that she had never received the Department's certified mail. Due process considerations require that the Complainant receive a hearing on her assertion that she never received notice of the Department's certified mail. McGee v. Co. of Milwaukee (LIRC 08/18/06).

The Administrative Law Judge inappropriately dismissed a complaint based upon the Complainant's failure to respond to a certified letter. The certified letter sent by the Administrative Law Judge was confusing. The letter stated, "If you wish to pursue your complaint, you have twenty days to respond to [the Respondent's] motion to dismiss." The ALJ enclosed a "Request to Withdraw Complaint" form with the certified letter. It may not have been clear to the Complainant whether she needed to file her brief on the motion to dismiss within the twenty-day period in order to keep her charge alive, or whether she simply needed to indicate her intent to proceed in order to do so. Furthermore, the correspondence from the Administrative Law Judge was not purposeful. It appears that the only factor triggering the letter was the withdrawal of the Complainant's counsel. There was nothing in the file to indicate that the Complainant was considering abandoning her case. All parties, whether or not represented by counsel, should be afforded a full and fair opportunity to participate in the hearing process. Starks v. SBC Ameritech (LIRC 02/09/06).

The Equal Rights Division had reason to question the Complainant’s intent to proceed when she failed to respond to the Respondent’s discovery request.  As a result, the Department’s correspondence advising the Complainant that a response was required within twenty days was “purposeful.”  The Complainant’s failure to respond to this letter justified the dismissal of her complaint.  Rodgers v. Lutheran Home (LIRC, 12/30/05)

The Equal Rights Division sent the Complainant a letter concerning his charge of discrimination by certified mail.  The letter noted that his case had been in abeyance status for an extended period of time while he pursued the matter in another forum.  The letter indicated that if this matter had been resolved the Complainant should indicate that the case should be closed, or, if he wanted the matter to remain open, to send a letter explaining his reasons for requesting that it remain open.  The letter advised the Complainant that if a response was not received within twenty days his case would be dismissed pursuant to sec. 111.39(3), Stats.  The correspondence from the Department concerning the Complainant’s complaint was purposeful correspondence.  The Department did not know the status of the Complainant’s federal claim.  It could not be expected to defer action on the Complainant’s court case indefinitely.  The Department’s subsequent dismissal of the complaint for the Complainant’s failure to respond to the letter within the specified time was appropriate.  Rogers v. Wis. Knife Works (LIRC, 12/22/05)

A certified letter from the Department was correctly addressed to the Complainant.  It was returned to the Equal Rights Division from the post office with the handwritten words “she doesn’t live there” and “unknown” on the envelope.  The envelope also contained a “return to sender” stamp from the post office and a typewritten, affixed, post office notice which reads, “Return to Sender, Attempted – Not Known, Unable to Forward.”  The complaint should not have been dismissed for failure to respond to correspondence from the Department where the Complainant denied receiving any certified mail.  The words “she doesn’t live there” written on the envelope provide no indication that this was information provided by someone from the Complainant’s household.  A Complainant cannot be penalized by having her complaint dismissed for refusal to timely respond to correspondence from the Department sent by certified mail when some unknown person not of the Complainant’s household, for whatever reason, has misinformed the postal carrier about the Complainant’s place of residence.  Nzeaka v. South Point Healthcare (LIRC, 08/26/05)

The legislative purpose underlying sec. 111.39(3), Stats., is frustrated by the failure of the postal service to follow its typical practice of leaving notice for the intended recipient that delivery of a certified letter has been attempted.  Unseth v. County of Vernon (LIRC, 06/30/05); Johnson v. Badger Meter (LIRC, 07/29/05)

When a Complainant’s failure to respond to a twenty-day letter resulted from actions within his control, sec. 111.39(3), Stats., does not permit an exception.  The underlying case must be dismissed.  In this case, the Complainant asserted that he did not receive the certified letter because he was out of town.  Apparently, the Complainant did not make arrangements for the monitoring or forwarding of his mail during his absence.  The dismissal of his complaint for failure to respond to correspondence from the Department is affirmed.  Johnson v. Badger Meter (LIRC, 07/29/05)

Sec. 111.39(3), Stats., requires the use of certified mail for the Department correspondence.  However, because of the peculiarities associated with such mailing service, certified mail is not always the best means of assuring that the intended recipient will receive notice of the Department’s correspondence.  In the instant case, the failure of the post office to leave the Complainant notice of its attempted certified mail delivery frustrated the purposes of the statute.  Accordingly, the decision dismissing the complaint was set aside and the case was remanded for further proceedings.  Unseth v. County of Vernon (LIRC, 06/30/05).

The Complainant's complaint was properly dismissed because she failed to respond within 20 days to correspondence concerning her complaint. The Department sent the correspondence by certified mail to the Complainant's last known address. The correspondence from the Department was purposeful in that it inquired if the Complainant wanted the Equal Rights Division to conduct a second independent investigation of her complaint, which had been dismissed by the EEOC. The correspondence from the Department advised the Complainant that a written response was required within 20 days. The Complainant failed to respond within that time period. Wren v. Columbia St. Mary's Hospital (LIRC, 11/26/04).

The use of "twenty-day letters" should be restricted to cases where there is a particular reason to ask the Complainant if he is still planning to appear and proceed with his case. Where there is a particular reason for the inquiry, the practice of "twenty-day letters" does not have the effect of being merely a de facto procedural requirement imposed on unrepresented Complainants. Furthermore, where there is a particular reason to ask a Complainant if he is still planning to appear and proceed with his case, the fact that an Administrative Law Judge asks that question is understandable and is less likely to create the impression that the Administrative Law Judge is implicitly suggesting (rather than merely inquiring about) that outcome. Frederick v. Initial Security (LIRC, 08/28/03);  accord, Martinez v. Water Street Brewery (LIRC, 08/28/03); Perez v. Aurora Sinai Samaritan (LIRC, 08/28/03).

There are two significant elements which are required in order for a letter to constitute "correspondence from the department concerning the complaint" within the meaning of sec. 111.39(3), Stats. First of all, the correspondence must require a response. The correspondence must pose some sort of question and inform the Complainant that a response is required. Secondly, the correspondence from the department concerning the complaint must be purposeful. The response sought from the Complainant must assist the department in obtaining information which it actually needs to process and decide cases, and it must advance the department’s legitimate goal of efficiently managing its caseload, as well as the interests of administrative justice. Correspondence from the department which does not meet these requirements does not justify the dismissal of the complaint. Palmer v. Wis. Public Serv. Corp. (LIRC, 07/30/03).

The Complainant included the cost of expedited mail delivery, delay in regular mail service and lack of a telephone as reasons for his failure to timely respond to a letter from the Department. It is difficult to believe that the Complainant could not have obtained assistance from a friend or neighbor so that a timely response could have been made. In any event, the statute does not allow for any exceptions. The statute requires that a complaint be dismissed where correspondence from the Department concerning the person’s complaint is sent by certified mail to the person’s last-known address and the person fails to respond to that correspondence within twenty days. Hernandez v. Spanish Centers of Racine, Kenosha and Walworth (LIRC, 01/23/02).

The Complainant stated that he did not receive correspondence from the Division because he was incarcerated. There was nothing in the case file to indicate that the Complainant had ever notified the Division that he was incarcerated and had a new address. Therefore, his failure to respond to correspondence from the Department within twenty days required dismissal of his complaint under sec. 111.39(3), Wis. Stats. Wingo v. Pepsi-Cola Gen. Bottlers (LIRC, 01/23/02).

The Complainant submitted evidence that clearly established that there was a problem with his mail delivery. Sec. 111.39(3), Stats., does not seem to contemplate whether reasons for not responding to a certified letter from the Department are reasonable. However, the purpose of the statute was frustrated when a certified letter with the correct address was not delivered to that address. Accordingly, the Department’s dismissal of the complaint was reversed. Wilson v. LIRC (Milwaukee Co. Cir. Ct., 01/11/02)

The Complainant contended that he did not receive a letter from the Equal Rights Division because he was incarcerated. The correspondence from the Department was sent to the Complainant’s home address. The Complainant could have received mail from the Department at the correctional institution had he provided the Department with that address. Manning v. INX Internat’l. Ink (LIRC, 03/17/00).

The law requires dismissal of the case if the Complainant fails to respond within twenty (20) days to correspondence with the Department concerning the complaint, which is sent by certified mail to his last known address. This provision applies even when compelling personal circumstances exist. Manning v. INX Internat’l. Ink (LIRC, 03/17/00).

The Complainant contended that an inexperienced postal carrier who did not have knowledge of his apartment number caused the delay in his receipt of a 20 day letter. However, substitute postal carriers are a predictable occurrence. It was incumbent upon the Complainant to have provided the department with his full address. His failure to have done so means that he cannot be heard when his subsequent non-receipt of correspondence from the department is due to that failure. Brown v. Miller Brewing Co. (LIRC, 04/27/95).

On review, the Complainant argued that she had mailed her response to the Equal Rights Division on time, but subsequently learned that her letter remained in the mailbox for three days before it was picked up by the postal service. Even if this explanation were accepted, it would not constitute a basis for overturning the dismissal of the complaint. Sec. 111.39(3), Stats., does not provide for any exception to the requirement that a complaint be dismissed when the Department does not receive a response to its correspondence within twenty days. Prill v. Country Kitchen of Oshkosh (LIRC, 11/16/94).

The Complainant argued that since her response letter (which was received by the Equal Rights Division approximately ten days after the response period ended) was received by the Equal Rights Division prior to the ALJ's dismissal order, the dismissal of her case was too harsh a remedy. However, sec. 111.39(3), Stats., provides for no exception for "substantial compliance" with the statute. Behlen v. Hartford Automotive Parts Co. (LIRC, 04/26/94).

The Department improperly dismissed a complaint of failure to respond to correspondence from the Department within 20 days where the Department misaddressed the Complainant's certified letter. Cera v. Cooper Power Systems (LIRC, 01/14/94).

Although sec. 111.39(3), Stats., requires only a response from the Complainant within 20 days, the Administrative Law Judge's request for a written response does not preclude an order of dismissal since the Complainant failed to timely respond in any fashion. Roth v. Cornell School Dist. (LIRC, 11/04/93).

If the Complainant's response to certified correspondence from the Department requiring response within 20 days is late, dismissal of the complaint is absolutely required. Daniels v. Marcus Corp. (LIRC, 07/14/93).

The 20 days within which a Complainant must respond to a certified letter from the Division is measured from the date on which the original correspondence from the Division is mailed to the date on which the Complainant's response is received by the Division. If the response is late, the statute absolutely requires the dismissal of the complaint. McCarter v. Johnson Controls (LIRC, 05/21/93).

In view of the extraordinary delays in the investigation of the complaint caused by the complainant's failure, despite numerous requests,  to file any written statement of position,  the ALJ had a reason to want to seek confirmation that the complainant intended to go forward with hearing.   For that reason, the ALJ's letter to complainant (to which she failed to timely respond) was thus "a purposeful piece of  'correspondence from the department concerning the complaint' " within the meaning of 111.39(3). McCarter v. Johnson Controls (LIRC, 05/21/93).

Where the Complainant failed to notify the Department of his last known address, the failure of the post office to forward his mail after he moved did not excuse his failure to timely respond to correspondence from the Department, and his complaint was properly dismissed under sec. 111.39(3), Stats. Pohl v. Sa Bai Thong (LIRC, 05/12/93).

The dismissal of a case for failure to timely respond to correspondence from the Department was set aside where the certified letter to the Complainant was misaddressed. Evidence that some earlier correspondence had been similarly misaddressed but had been delivered to the Complainant did not warrant a different conclusion. Powell v. Kohl's (LIRC, 04/30/92).

The Complainant may have been confused as to when he had to respond to the certified letter from the Administrative Law Judge, since the letter, which required a response within 20 days, was accompanied by a letter from the Equal Employment Opportunity Commission which required a response within 30 days. Nevertheless, sec. 111.39(3), Stats., provides for no exceptions. It makes dismissal of a complaint mandatory when there is a failure to respond within 20 days to any correspondence from the Department. If the Complainant was confused about when the response to the Equal Rights Division was due, he should have contacted the Administrative Law Judge for clarification. Dixon v. Genesis Program (LIRC, 07/22/91).

If sec. 111.39(3), Stats., was interpreted as requiring actual receipt by the Complainant before the 20-day period began to run, this would negate the whole purpose of the law as it would prevent the Personnel Commission from dismissing a complaint filed by a person who had moved without providing a forwarding address, since such a person would never receive the correspondence. In addition, the response to the 20-day letter must actually be received by the Personnel Commission within the 20-day period. It is not enough that the response was mailed to the Commission within the 20-day period. King v. DHSS (Wis. Personnel Comm., 05/29/91); rehearing denied, 06/27/91.

The complaint was properly dismissed when the Complainant failed to file a timely response to a 20-day letter, even though the Complainant argued that his response to the letter was affected by problems with the mail service and by intervening holiday times. If the legislature had intended that the 20-day time period should be tolled because of the vagaries of the U.S. postal system or by intervening holidays, it would have given some indication of this in the language of the statute. Jones v. DOT (Wis. Personnel Comm. 06/17/91).

The Commission remanded the case to the Equal Rights Division for a hearing on the issue of the Complainant's failure to respond to a certified 20-day letter where (1) the Complainant denied receiving the certified letter, (2) the Complainant submitted a letter purportedly signed by the postmaster indicating that the post office had not received a certified letter for the Complainant, and (3) the Complainant submitted an affidavit stating that no one by the name of the person who allegedly signed the receipt for certified mail had ever been present at his address. Peterson v. K-Mart (LIRC, 05/24/91).

A complaint was dismissed when a response to a 20-day letter was received from the Complainant on the 21st day after the letter was sent. The 20-day period referred to in sec. 111.39(3), Stats., commences on the date the letter is mailed. Block v. UW- Madison Extension (Wis. Personnel Comm., 07/27/89).

The 20-day period provided by sec. 111.39(3), Stats., within which a Complainant must answer an inquiry concerning their case or be subject to dismissal of the complaint, runs from the date on which the correspondence is mailed to the Complainant, not from the date on which the Complainant receives it. Jackson v. DHSS (Wis. Personnel Comm., 03/10/88).

The language of sec. 111.39(3), Stats. that "the Department shall dismiss a complaint if the person filing the complaint fails to respond within 20 days to any correspondence concerning the complaint", is mandatory, and the 20-day response period is measured from the date of the mailing of the correspondence to the date on which the party's response is received. Schilling v. Walworth County (LIRC, 05/10/84).

Where the Equal Rights Division failed to send correspondence to the Complainant's last known address as required by statute, its dismissal of the complaint is reversed. Marcoux v. Ashwaubenon Pub. Schools (LIRC, 01/23/80).

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747 Prehearing disclosure of witnesses and exhibits

The ALJ improperly exercised discretion by refusing to admit a proposed exhibit that had not been disclosed to the opposing party in compliance with sec. DWD 218.17, Wis. Admin. Code, without first balancing the equities between the parties, and without considering whether the party opposing admission of the exhibit would be prejudiced by its admission.� The rejection of the exhibit may have affected substantial rights of the party offering it, making it necessary to remand for a new hearing and decision.� Korth v. CHI Towing, Inc. (LIRC, 11/29/13).

In his application of the �ten-day rule,� Wis. Admin. Code � 218.17, the ALJ properly exercised discretion by excluding witnesses from the hearing.� The witnesses had not been mentioned in the complaint or the department's initial determination, the employer had no reason to know they might be called, and the lack of notice left the employer without adequate time to prepare for their testimony.� The primary consideration in applying this administrative rule is to protect parties from surprise and to protect the fairness and due process of the proceedings.� In addition, the hearing notice sent to the complainant clearly set forth the ten-day notice requirement for names of witnesses and copies of documents to be used at the hearing. Coleman v. Levy Restaurants LLC (LIRC 3/28/13).

The Administrative Law Judge did not exercise discretion in applying sec. DWD 218.17, Wis. Adm. Code, when the ALJ did not balance the equities as between the parties before refusing to admit copies of medical records (which had been previously produced by the Complainant to the Respondent, but which were not produced a second time in connection with the administrative hearing). The excluded evidence was both relevant and material to the Complainant’s claim. Such evidence, had it been considered, might have resulted in a different conclusion by the ALJ. Consequently, the case was remanded for a new hearing. Rutherford v. LIRC & Wackenhut, 2008 WI App 66, 309 Wis. 2d 498, 752 N.W.2d 897.

The Administrative Law Judge properly excluded the Complainant from calling witnesses (other than herself) and from offering any exhibits other than those which duplicated exhibits noticed by the Respondent because the Complainant did not file a witness list or copies of her hearing exhibits prior to hearing. Even though the Respondent's counsel may have viewed certain of these documents during the investigative process, the Respondent was prejudiced when it had no reason to know which of the numerous documents (which were part of the investigative file) the Complainant intended to rely upon at hearing. Rutherford v. Wackenhut Corp. (LIRC 01/31/06).

The Administrative Law Judge properly precluded the Complainant from introducing documents which had not been timely identified ten days prior to the day of hearing.  While the Respondent may have furnished these documents to the Complainant during discovery, the record indicated that the Respondent had supplied the Complainant with approximately 9,000 documents in response to his discovery requests.  By failing to specifically identify which of these documents he intended to use at hearing, the Complainant effectively hid those documents.  The Respondent could not guess what information the Complainant would consider relevant and wish to offer at hearing.  By identifying documents he intended to use for the first time at hearing, the Complainant frustrated the purposes of sec. DWD 218.17, Wis. Adm. Code.  Blunt v. Dept. of Corrections (LIRC, 02/04/05).

Compliance with the requirement of disclosure of witness and exhibit information to the opposing party can be achieved by, and will be complete upon, mailing to the opposing party. Borum v. Allstate Ins. Co. (LIRC, 10/19/01).

The fact that a party’s disclosure of documents was effected by CD-ROM justified the Administrative Law Judge’s decision to exclude the documents. Clark v. Friskies Petcare (LIRC, 08/16/01).

The purpose of the rule requiring pre-hearing exchange of exhibits is frustrated where a party simply serves a huge number of documents (In this case, thousands of documents were served not as copies of documents, but as digital versions of documents on a CD-ROM). By serving thousands of documents, the Complainant effectively hid anything which was potentially relevant and which might be used at hearing in a flood of other papers. The effect is the same as if nothing at all had been served. Clark v. Friskies Petcare (LIRC, 08/16/01).

The rule concerning pre-hearing disclosure of witnesses and exhibits provides that the failure to make the necessary exchange "may" result in the exclusion of the witnesses or the exhibits. The paramount consideration in applying the rule must be its purpose to protect parties from surprise and to protect the fairness and the due process of the proceedings. In a case in which a party would not have been surprised or prejudiced by allowing testimony, it should be allowed. Berglund v. Post Crescent (LIRC, 01/31/01).

Where the Complainant failed to identify the Respondent’s representative as a witness prior to the hearing and the Respondent’s representative was not on notice that he would be called upon to testify, the Administrative Law Judge’s ruling that the employer’s representative was not required to testify was appropriate. Kilgore v. Wisconsin Indianhead Tech. College (LIRC, 04/30/98).

An Administrative Law Judge properly prohibited the Complainant's witnesses from testifying at the hearing where the Complainant had not complied with the requirement to disclose his list of witnesses ten days prior to the hearing. The purpose of the notice requirement for witnesses and exhibits is to give the opposing party proper opportunity to prepare its case against such witnesses and exhibits. A lack of notice prejudices the party that did not receive it. Walker v. Masterson Co. (LIRC, 10/4/95).

The Administrative Law Judge properly excluded both the Initial Determination and a letter sent by the Respondent to the ERD investigator because they had not been disclosed as potential exhibits prior to the hearing. The Complainant had offered the Initial Determination in an effort to rely upon a statement therein to the effect that it was not disputed that her handicap was a factor in her termination. Since the purpose in offering the statement was to prove that the Complainant was handicapped, and since this proof was required to be part of her case in chief, the Complainant could not assert that it was legitimate rebuttal evidence, i.e., something the need for which could not reasonably be anticipated prior to hearing. Geske v. H.C. Prange Co. (LIRC, 12/09/93).

Sec. Ind 88.14, Wis. Adm Code, permits, but does not mandate, that exhibits be excluded if they are not timely served upon the opposing party. The party requesting exclusion must show that he was prejudiced by the late disclosure of the information on the list. Peace v. Milwaukee Plating Co. (LIRC, 08/21/92).

The Administrative Law Judge properly quashed a subpoena for the production of documents which was issued two days before the beginning of the second day of the hearing. The party seeking the subpoena could not have introduced the documents into the record even if the documents had been produced according to the subpoena since sec. Ind 88.14(1), Wis. Adm. Code, requires that all exhibits must be submitted no later than the tenth day prior to the day of the hearing. Vaisman v. Aldridge, Inc. (LIRC, 10/21/91).

Service of the witness and exhibit disclosure list by mail is complete upon mailing. Pohlen v. General Electric Co. (LIRC, 04/18/91).

The requirement of filing the witness and exhibit disclosure list with the Department serves mainly to keep the Division informed as to whether the parties are complying with the exchange requirement. The exclusion of relevant evidence simply because it had not been filed with the Division ten days prior to the hearing, without any finding that the opposing party was prejudiced thereby, would be unjustified. Pohlen v. General Electric Co. (LIRC, 04/18/91).

The Administrative Law Judge has discretion to allow evidence notwithstanding non-compliance with the witness and exhibit disclosure rule. The Administrative Law Judge should consider the question of whether any prejudice would result to the other parties, rather than concluding that there is prejudice per se when service and filing of the witness and exhibit list was untimely. Pohlen v. General Electric Co. (LIRC, 04/18/91).

Where a party has clearly identified on the record at hearing its desire to call a particular person as a witness, all parties reasonably anticipate that the hearing will continue on a subsequent day before the party proposing a witness rests its case, and the hearing is in fact continued on a subsequent day more than ten days later and the party proposing the witness has not rested its case, sec. Ind 88.14(1), Wis. Adm. Code, should not be invoked to preclude presentation of that evidence. The opposing party will have had ten days' opportunity to prepare to rebut the disclosed evidence, just as in the case of initial disclosure. Pohlen v. General Electric Co. (LIRC, 04/18/91). [Ed. note: sec. Ind 88.14(1), Wis. Adm. Code, has been renumbered DWD 218.17(1), Wis. Adm. Code].

The Administrative Law Judge appropriately quashed a subpoena duces tecum served on the Respondent shortly before the hearing. Because none of the documents requested in the subpoena duces tecum had been identified by the Complainant ten days prior to the hearing as potential exhibits, they would have been subject to exclusion in any event. Chacon v. Dairy Equipment Co. (LIRC, 02/15/91).

The Administrative Law Judge's exclusion of witnesses and exhibits identified in a witness list filed with the Department on the day before the hearing was upheld. Osteen v. Aldridge, Inc. (LIRC, 11/21/89), aff'd. sub nom. Osteen v. LIRC (Milw. Co. Cir. Ct., 06/15/90), aff'd., Ct. App. Dist. I, unpublished decision, 01/15/91.

The purpose of sec. Ind 88.14(1), Wis. Adm. Code, is to avoid undue surprise at hearing. The most important requirement of this rule is the notice provided to the other party. The requirement of service on the Division serves mainly to keep the Division informed as to whether the parties are complying with the exchange requirement. Scott v. Sno Bird Trailer Co. (LIRC, 12/19/90).

Where the Respondent submitted a witness and exhibit list to the Department but failed to serve it on the Complainant, the Administrative Law Judge properly exercised her discretion when she precluded all but one of the Respondent's witnesses and precluded the introduction of any exhibits by the Respondent. Scott v. Sno Bird Trailer Co. (LIRC, 12/19/90).

A finding of no probable cause which was based on testimony of a witness for the Respondent who had not been properly identified as a witness prior to hearing in compliance with Sec. Ind 88.14(1), Wis. Adm. Code, was reversed where the Com-plainant was clearly prejudiced by the witness' testimony because he did not even know who the witness was. Smith v. Menard Lumber Store (LIRC, 05/05/88).

The rule concerning prehearing disclosure of witnesses and exhibits provides that the failure to make the necessary exchange "may" result in exclusion. The paramount consideration in applying the rule must be its purpose to protect parties from surprise and to protect the fairness and the due process of the proceedings, so that in a case in which a party would not have been surprised or prejudiced by allowing testimony, it should be allowed. Hansen v. Airborne Freight Corp. (LIRC, 05/21/87).

Where the Complainant had prior knowledge of the requirement for prehearing disclosure of witnesses, and failed to make that disclosure, and was unable to show that good cause existed for her failure, and where a substantial potential existed for prejudice to the Respondent if witnesses the Complainant sought to have testify were allowed to testify, it was proper to preclude them from testifying. Brunson v. Columbia Hospital (LIRC, 05/14/87).

The purpose of the rule regarding prehearing disclosure of witnesses and exhibits is to protect the parties from surprise and to ensure the fairness of the proceedings. A Respondent should have been allowed to call a witness who had been identified as a potential witness of the Complainants, since the Complainants could not assert surprise in such a case. Also, where the Complainants' witness list was filed only nine days before the hearing, this should not result in a dismissal of the case where the filing of the list one day late did not result in any prejudice (i.e., surprise) to the Respondent. Dominquez v. Sawdust Factory (LIRC, 04/16/87).

A Respondent's failure to provide the Complainant with a list of witnesses prior to a no probable cause hearing is not grounds for excluding their testimony where it is offered solely to rebut the testimony of the Complainant's own witnesses. Hammes v. Rain Fair, Inc. (LIRC, 09/28/84).

Evidence offered by the Complainant was properly excluded where the Complainant had failed to exchange a list of exhibits and witnesses with the Respondent beforehand, where the prejudicial effect to the Respondent outweighed the Complainant's assertion that he did not know of the requirements, and where the Complainant had failed to pay the required witness fees. Clarke v. Milwaukee County Medical Center (LIRC, 09/20/84).

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748 Withdrawals and settlements

748.1 Withdrawal of complaints; dismissal

The Complainant gave the Administrative Law Judge a written, dated and signed document stating that a settlement agreement had been reached and that he would like to close his case. The Complainant's filing of the request for withdrawal of his complaint was unconditional, voluntary, and intentional, and it was done with the knowledge that it would result in the issuance of an order dismissing his complaint. The Complainant's complaint was appropriately dismissed and his subsequent attempt to revoke the settlement was rejected. This is not a case where there was never any intention of withdrawing the complaint or where the withdrawal of the complaint was 'inadvertent.' It was the Complainant's choice not to wait to file his request to withdraw his complaint until the settlement agreement's revocation period had expired. The Complainant made the decision to go ahead and resign from his job, withdraw his complaint and get his complaint dismissed because he wanted to speed up his receipt of the settlement proceeds. The Department does not have authority to entertain actions for reformation, enforcement or breach of contract regarding a settlement agreement which has been signed by the parties. Burton v. United Govt. Services (LIRC, 11/21/11).

Based on information he apparently received from a union representative, the Complainant believed that the Respondent would ultimately agree to grant him reinstatement and back pay.  He requested withdrawal of his complaint as a result, and his complaint was dismissed.  However, no such agreement was reached and, as a result, the Complainant sought to have the order dismissing his case set aside.  Although it is unfortunate that the Complainant acted before he knew what type of settlement would ultimately be achieved, he apparently did so knowingly and voluntarily and with benefit of counsel.  This is not the type of circumstance which would warrant setting aside the order of dismissal.  Luckett v. City of Milwaukee (LIRC, 08/30/05)

While a dismissal with prejudice precludes a party from re-filing the same claim with the Equal Rights Division, the effect of such a dismissal on the Complainant's rights to go forward in any other forum is a matter for the other forum to decide. The Department does not have the authority to either grant or deny jurisdiction to any other forum. Kemp v. Ramada Hotel (LIRC, 02/06/04).

The Equal Rights Division dismissed a case based upon the Complainant's written request to withdraw his complaint before the Equal Rights Division and to proceed before the federal Equal Employment Opportunity Commission (EEOC). The Complainant subsequently sought to have the order of dismissal set aside stating that he did not understand that the EEOC would apply a different definition for determining whether he was disabled and that he would not have withdrawn his ERD complaint had he known this. While it is unfortunate that the Complainant made incorrect assumptions about federal law when choosing the proper forum for his complaint, this is not a situation which would warrant setting aside the order of dismissal of the ERD complaint. Crawford v. Kraft Foods (LIRC, 01/16/04).

Where a settlement agreement was signed by the Complainant, and where the agreement clearly provides that the Complainant agrees to the dismissal of her complaint, it was not necessary for the Administrative Law Judge to also obtain a separate withdrawal form from the Complainant. King v. Kmart  (LIRC, 08/28/03).

The Division’s administrative rules provide that the complaint shall be dismissed upon the filing of a request for a withdrawal. While the rule does not provide any exception to the requirement that the complaint be dismissed once a withdrawal is tendered, there are circumstances in which it can be concluded that no withdrawal was intended. In this case, there is evidence that the Complainant did not intend to file the request to withdraw his complaint at the time he did. He filed the withdrawal request prior to the time that a negotiated confidential settlement had been finalized. Comments made by the Administrative Law Judge led the Complainant to believe that, although he had submitted a withdrawal form, the form would not be filed and the matter would not be dismissed until the settlement was reduced to writing. The settlement was not reduced to writing and, ultimately, the parties were not able to agree on certain terms. Dismissing the complaint based upon the signed withdrawal form would clearly be contrary to the will of the parties in this case. Accordingly, the Administrative Law Judge’s order dismissing the complaint was set aside. Walsh v. Tom A. Rothe SC (LIRC, 11/29/02).

The Complainant requested that her case be dismissed without prejudice because she desired to litigate the subject matter of the complaint in federal court.  Unreviewed administrative decisions do not have preclusive effect with regard to a federal court Title VII proceeding, although administrative factual findings are entitled to preclusive effect with respect to actions under 42 U.S.C 1983 in federal court.  Whether the Personnel Commission's decision would have any preclusive effect on a proceeding in another forum involving the same subject matter would be a question to be resolved by that other forum. Sleik v. Dept. of Commerce (Wis. Personnel Comm., 12/03/99).

It was error for an Administrative Law Judge to grant Complainant's request for withdrawal of her complaint without prejudice where: (1) the Complainant's complaint before the Equal Rights Division had proceeded to a hearing on the merits, with the Complainant examining several witnesses, (2) the Respondent had incurred substantial expenses to prepare for the hearing, and (3) counsel for the Complainant stated that he had never intended to complete the ERD hearing, but had used the hearing process for discovery purposes related to the Complainant's federal claims. Smith v. Racine Unified School District (LIRC, 09/30/99).

The Administrative Law Judge's order dismissing a complaint was set aside where the Complainant's request for withdrawal of the complaint (which was the basis for the Administrative Law Judge's dismissal order) was filed inadvertently and the Labor and Industry Review Commission concluded that the Complainant did not actually wish to withdraw his complaint. Hatcher v. Larson (LIRC, 08/26/94).

Any discretion to dismiss a complaint without prejudice is that of the Department, and not that of the withdrawing Complainant. The Administrative Law Judge did not abuse his discretion in denying the Complainant's motion for withdrawal without prejudice in this case. Silva v. City of Madison (LIRC, 11/12/93).

The Complainant stated that he wished to withdraw his complaint, and the Personnel Commission dismissed the charge. Several months later, the Complainant requested that his original charge of discrimination be reinstated, on the grounds that he had withdrawn the charge as part of a settlement agreement but that the settlement agreement had been breached. The Commission lacked authority to reopen the matter. Haule v. UW-Milwaukee (Wis. Personnel Comm., 8/26/87).

An examiner correctly dismissed a complaint without prejudice as requested by a Com-plainant who wished to pursue the matter in federal court, notwithstanding the employer's objections before the hearing, which the Complainant failed to attend and at which no ruling on the request was made. Weiss v. Nicolet Instrument (LIRC, 06/18/84).

Under certain circumstances it is not an abuse of discretion for an Administrative Law Judge to dismiss a complaint without prejudice. Weiss v. Nicolet Instrument (LIRC, 06/18/84)

A voluntary withdrawal by a Complainant of her discrimination charge in exchange for an offer of hire does not constitute a settlement or waiver of her charge unless she fully understood that such would be the result. Krawczyk v. Greenfield School Dist. No. 6 (LIRC, 04/15/82); Anderson v. LIRC, 111 Wis. 2d 245, 330 N.W.2d 594 (1983).

Complainant sought to withdraw from a private settlement agreement he entered into with Respondent because he felt that he was misrepresented by his retained counsel in settling his charge. There was no allegation of misrepresentation or intimidation by the Examiner or any other department representative, and nothing in the provisions of the settlement agreement itself making it invalid. Complainant' claim of misrepresentation on the part of his attorney was beyond the scope of the Commission's review authority.  Therefore, Complainant's request to retract his withdrawal of his discrimination complaint was denied. Johnson v. City of Kenosha (LIRC, April 23, 1981).

 

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748.2 Settlement agreements, enforcement

The Complainant gave the Administrative Law Judge a written, dated and signed document stating that a settlement agreement had been reached and that he would like to close his case. The Complainant's filing of the request for withdrawal of his complaint was unconditional, voluntary, and intentional, and it was done with the knowledge that it would result in the issuance of an order dismissing his complaint. The Complainant's complaint was appropriately dismissed and his subsequent attempt to revoke the settlement was rejected. This is not a case where there was never any intention of withdrawing the complaint or where the withdrawal of the complaint was 'inadvertent.' It was the Complainant's choice not to wait to file his request to withdraw his complaint until the settlement agreement's revocation period had expired. The Complainant made the decision to go ahead and resign from his job, withdraw his complaint and get his complaint dismissed because he wanted to speed up his receipt of the settlement proceeds. The Department does not have authority to entertain actions for reformation, enforcement or breach of contract regarding a settlement agreement which has been signed by the parties. Burton v. United Govt. Services (LIRC, 11/21/11).

Settlements will be treated as final even in cases where a party is unrepresented, provided that the party entered into the settlement agreement knowingly and voluntarily. In this case, the Complainant was a college student. He had several days to review the Agreement and Release before signing it. In seeking to re-open his case, the Complainant did not allege that the document he signed contained something that made it invalid on its face. Nor did he allege that there was any misrepresentation or intimidation by a representative of the Department. The Complainant was dissatisfied with the settlement and resulting dismissal of his complaint because he either expected to receive, or wanted to receive, more money under the settlement. However, settlements are final absent an allegation of misrepresentation or intimidation by a representative of the Department or an allegation that the settlement agreement contained something to render it invalid on its face. Ocholi v. Sodexho, Inc. (LIRC, 09/04/09).

The Complainant signed a paper in which she agreed to arbitration of this matter. The settlement agreement that was reached as a result of arbitration was valid and binding. The Complainant was represented by counsel throughout the settlement negotiations. Although it is unfortunate that the Complainant is dissatisfied with her attorney?s representation of her, that does not render the settlement invalid. Wennesheimer v. American Express (LIRC, 11/25/09).

Once a settlement agreement is entered into knowingly and voluntarily, a dispute about whether its terms have been complied with does not affect the validity and finality of the agreement. Neither the Equal Rights Division nor the Labor and Industry Review Commission has the authority to decide what are in effect breach of contract questions regarding whether settlement agreements have been breached. Sullivan v. UW - Marathon County,(LIRC, 09/27/07).

The Complainant failed to provide a basis for voiding the settlement agreement in his case where he argued that the Respondent had made misrepresentations regarding the tax consequences of the settlement. The Respondent correctly informed the Complainant that the settlement amount was taxable as income. Sec. 104(a)(2), of the Internal Revenue Code, provides a statutory exception for taxation of gross income for the amount of any damages (other than punitive damages) which are received (whether by suit or agreement, and whether as lump sums or as periodic payments) on account of personal physical injuries or physical sickness. The Complainant in this case did not receive income from the settlement on account of personal physical injuries or physical sickness. The amount which he received as the settlement amount represented a cash payment in lieu of paid leave following his resignation, a cash payment for his overtime hours and accrued vacation and personal holiday accounts, and severance pay equal to one and one-quarter times his annual salary. For this, and other reasons, the Administrative Law Judge appropriately dismissed the Complainant’s claims that the settlement agreement should be voided. Sullivan v. UW - Marathon County,(LIRC, 09/27/07).

Where a settlement has been entered into knowingly and voluntarily, the settlement is final. The “totality of the circumstances” test should be used to determine whether there has been a knowing and voluntary waiver of rights under the Wisconsin Fair Employment Act. There was such a knowing and voluntary waiver of rights in this case. The Complainant had a Bachelor of Business Administration degree and he had been employed at a college as an activities coordinator. The Respondent had not imposed any time limit on the Complainant’s review and consideration of the settlement agreement. The Complainant had an active role in deciding the terms of the agreement. The agreement was written in clear and unambiguous language. The Complainant did not consult an attorney during the settlement negotiations; however, the settlement agreement expressly advised the Complainant to consult legal counsel. The Complainant was given consideration in exchange for his waiver of rights against the Respondent that exceeded employee benefits to which he was already entitled by contract or law. Moreover, the Complainant failed to establish that he agreed to the settlement under intimidation or threat of termination. The Complainant suggested that a valid settlement did not exist because he was “under psychiatric care for mental health concerns.” However, there was no medical documentation to substantiate this medical condition. The Complainant’s own correspondence to the Respondent indicated that his alleged condition had no adverse impact on his ability to willingly, knowingly, and freely negotiate a settlement agreement with the Respondent. Sullivan v. UW - Marathon County,(LIRC, 09/27/07).

A party may not collaterally attack the finality of a settlement agreement by claiming misrepresentation on the part of their attorney, or by claiming that their attorney exceeded the scope of his authority in agreeing to it. Fettig v. Co. of Fond du Lac (LIRC 07/14/06).

Sec. 227.48, Stats., provides that every decision shall include notice of any right of the parties to petition for administrative review of adverse decisions. Settlement agreements may be adverse decisions. Therefore, the Equal Rights Division should attach a notice of appeal rights to all orders in which a complaint is dismissed as a result of a settlement agreement. Fettig v. Co. of Fond du Lac (LIRC 07/14/06).

Once a Complainant, personally or through counsel, makes an unconditional request for the withdrawal of a complaint, dismissal of the complaint is required and collateral attacks on the finality of a settlement will not be entertained in the absence of an allegation of misrepresentation or intimidation by a representative of the Department, or an allegation that a provision of the underlying settlement agreement is per se invalid. Oehldrich v. Wausaukee Rescue Squad (LIRC, 10/29/04).

Neither the Equal Rights Division nor the Labor and Industry Review Commission has the authority to decide whether settlement agreements have been breached. Oehldrich v. Wausaukee Rescue Squad (LIRC, 10/29/04).

An Administrative Law Judge issued an order dismissing the complaint based upon a settlement agreement entered into by the parties. The order of dismissal listed the EEOC case number as well as the ERD case number, and the order of dismissal described its effect by using such general terms as "this case" and "this matter." Thus, the Administrative Law Judge's order could be understood as purporting to dispose not only of the Complainant's claim under the Wisconsin Fair Employment Act, but also of any claims that could have been brought under the federal Age Discrimination in Employment Act (ADEA). However, the settlement agreement was inconsistent with the provisions of the federal Older Workers Benefits Protection Act which requires that settlements of age discrimination claims under the ADEA must give claimants seven days after executing an agreement waiving such claims to revoke such agreements. The Complainant in this case indicated that he had "decided not to proceed with the settlement." It appears that the lack of certain provisions in the settlement agreement would make it invalid as a waiver of rights under the ADEA. However, this would not make the settlement agreement invalid with respect to foreclosing the Complainant's claim under the Wisconsin Fair Employment Act. The order of dismissal was amended to make it clear that it applied only to the Complainant's claim under the WFEA and that it was not intended to have any effect on any claims the Complainant might have under the ADEA or any other federal law. Crymes v. County of Milwaukee (LIRC, 02/24/04).

A Complainant's claims of misrepresentation on the part of his attorney in the entering into of a settlement agreement will not be entertained in the absence of: (1) an allegation of misrepresentation or intimidation by a representative of the Department, or (2) a settlement agreement that contains something that makes it invalid on its face. This rule reflects the important policy of making parties accountable for actions of their attorneys, as well as 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. Scott v. Oconomowoc Area School Dist. (LIRC, 01/30/04).

The Complainant sought to repudiate a settlement agreement based upon alleged shortcomings and improprieties by his union representative. The Complainant should not be any less accountable for the actions of his union representative than if an attorney had represented him. To permit the Complainant to get out of his settlement agreement under the circumstances in this case would only serve to discourage settlements where union representation was involved. Scott v. Oconomowoc Area School Dist. (LIRC, 01/30/04).

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 by alleging that they were poorly represented, misled by, or otherwise ill-served by their attorneys. 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 Department 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. Kellar v. Copps Gas Station (LIRC, 01/28/04).

Once a settlement agreement is entered into, a dispute about whether its terms have been complied with does not affect the validity and finality of an agreement made as part of that settlement that proceedings before the Equal Rights Division will be dismissed. King v. Kmart (LIRC, 08/28/03).

Where a settlement agreement was signed by the Complainant, and where the agreement clearly provides that the Complainant agrees to the dismissal of her complaint, it was not necessary for the Administrative Law Judge to also obtain a separate withdrawal form from the Complainant. King v. Kmart  (LIRC, 08/28/03).

There are two ways in which a settlement can result in the dismissal of a complaint. The first method is for the parties to put the terms of the settlement (one of which will presumably be the withdrawal of the complaint) into the record. The Administrative Law Judge can then dismiss the complaint based upon the settlement agreement. The second method is for the parties to arrive at a confidential settlement that they do not want embodied in an order, after which the Complainant submits a request to withdraw the complaint based upon having arrived at a confidential settlement. Where the parties seek dismissal of a complaint based upon a confidential settlement, the signed withdrawal obviates the need for any discussion on the record of the terms of the settlement. Walsh v. Tom A. Rothe, S.C. (LIRC, 11/29/02).

Settlements will be treated 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. A party alleging that he has entered into a settlement agreement under duress is required to specifically allege conduct constituting duress which would, if true, justify voiding the agreement. Gribbons v. Chart Indus. (LIRC, 03/26/02).

Settlements will be treated as final even in cases where a party is unrepresented, provided that the party entered into the agreement knowingly and voluntarily. Summers v. Northwest Airlines (LIRC, 05/26/00).

The Complainant’s claim that a settlement agreement was void and unenforceable because his attorney engaged in unethical conduct during settlement negotiations lacked merit. 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, LIRC 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 v. Northwest Airlines (LIRC, 05/26/00).

Although the parties had agreed "in principle" to settle a case, no signed settlement agreement was evere effectuated and no cash payment was ever tendered to the Complainant.  The Respondent failed to notify the Division that a settlement had been reached, and a hearing was conducted.  It was only after the hearing, and after a preliminary decision had been issued by the Administrative LAw Judge, that the Respondent contended that the Complainant had agreed to a settlement and that her damages should be limited to the amount agreed upon at that time, rather than those ordered by the Administrative Law Judge.  The Commission determined that, because no final settlement was ever reached, the Respondent was bound by the order issued by the Administrative Law Judge. Roach-Davis v. Rave (LIRC, 03/26/99).

A settlement agreement is a contract which, among other things, requires a definitive offer and acceptance by the parties.  Once the parties settle a disputed claim, neither party will be permitted to repudiate it in the absence of any element of fraud or bad faith. Geen v. DHFS (Wis. Personnel Comm., 01/13/99).

The Complainant contended that her complaint should not have been dismissed on the grounds that the parties had settled. However, there was no evidence in the record to support her contention that the settlement document she signed was merely a "draft" agreement. Furthermore, there was no basis for the Complainant’s contention that the Respondent’s attorney did not have authority to agree to non-monetary terms of settlement. An express authorization of the delegation of authority to settle is necessary in financial matters involving the county because the county board is ultimately the sole source of the power to spend the county’s money. However, agents of the county are not limited in making decisions that do not commit unbudgeted county funds. Gronowski v. Milwaukee Co. (LIRC, 04/13/98).

A settlement agreement in an employment discrimination case is in essence a contract. The Equal Rights Division may ask to have a written withdrawal form filed, or to have a copy of the final settlement agreement filed, but these are not legal requirements which affect the validity of the settlement. Rather, they are simply ways in which the Division may assure itself that an agreement has, as a matter of fact, been reached. Gronowski v. Milwaukee Co. (LIRC, 04/13/98).

The Equal Rights Division does not have authority to decide what are in effect breach of contract questions regarding whether settlement agreements have been breached. Gronowski v. Milwaukee Co. (LIRC, 04/13/98).

The Complainant's claim that the Respondent released the terms of a confidential settlement agreement does not constitute a valid claim of retaliation under the Wisconsin Fair Employment Act. The Respondent's release of confidential settlement information had no relationship whatsoever to the Complainant's employment. Peck v. Walworth County (LIRC, 09/27/96).

Once entered into by all parties, either in writing or verbally on the record, a settlement is final. The Labor and Industry Review Commission is disinclined to entertain collateral attacks on the finality of a settlement based on a party's claim that their attorney misrepresented the agreement to them, exceeded the scope of their authority in agreeing to it, or otherwise engaged in some sort of improper conduct. Such issues relating to attorneys' professional responsibility should be addressed to other tribunals with the specific duty of addressing such issues.Gahan v. The Milwaukee and S.E. Wisconsin Dist. Council of Carpenters (LIRC, 03/29/96).

The Labor and Industry Review Commission will not entertain collateral attacks on settlement agreements resolving discrimination complaints even where allegations are made that the attorney who represented the Complainant acted improperly in some respect, including entering into settlement terms not authorized by the client. Where the attorney acted within their authority in agreeing to certain terms of settlement, the Commission has held that an oral settlement agreement entered into on a party's behalf by their attorney will be upheld against subsequent collateral attack. Stillwell v. City of Kenosha (LIRC, 09/29/95).

While the Respondent may have subjectively believed in good faith that a settlement agreement arrived at between itself and counsel for the Complainant precluded the Complainant from bringing any claims against the Respondent in connection with its commencement of a civil action against her, this belief was not reasonable because the terms of that settlement had been expressly limited to three specific undertakings and could not be construed to extend to the question of whether the Respondent's commencement of a civil action against the Complainant had violated the Wisconsin Fair Employment Act. Therefore, the Complainant's subsequent fair employment complaint was not barred by the doctrine of equitable estoppel. Stillwell v. City of Kenosha (LIRC, 09/29/95).

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 a settlement agreement contains something which makes it invalid on its face, but only a question of whether it was in fact agreed to, the Labor and Industry Review 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. If a Complainant did not authorize his attorney to enter into a settlement on his behalf, then the Complainant's remedy for such action by the attorney is to attempt to prove malpractice by that attorney or to go to the Attorneys' Board of Professional Responsibility. Nealy v. Miller Compressing Co. (LIRC, 09/19/95).

It is not within the authority of the Labor and Industry Review Commission to set aside a settlement agreement where the Complainant seeks to be relieved of the agreement on the ground that his attorney had a conflict of interest. The Commission would have to address issues concerning attorney's professional responsibility and the effects of unethical conduct on contractual obligations, which are issues that are not within its statutory authority. Brunswick v. Emergency Services of Door County (LIRC, 12/08/94).

When parties enter into settlements they are free to structure them as they wish, and if they choose to structure them in a way which waives some claim arising out of a transaction while preserving others, that is their right. In this case, the Complainant did not waive her right to complain of sex discrimination when she settled an OSHA complaint relating to her discharge. The settlement agreement did not provide that it settled all claims arising out of the discharge. The terms of the agreement provided that the Complainant "agrees to accept this agreement in full and complete settlement of any and all claims arising out of filing of this complaint against Respondent." The claims settled were only the claims of a violation of OSHA, not the claims of a violation of any other law. The complaint with OSHA could not encompass a claim under the Wisconsin Fair Employment Act because OSHA has no authority to act on such a claim. Pampuch v. Bally's Vic Tanny Health and Racquetball Club (LIRC, 03/07/94).

Parties should be discouraged from drafting private settlement agreements which purport to have a binding effect upon the manner in which the Department conducts its business. In this case the parties had reached a settlement agreement that was contingent upon the actions of a third party. Due to the nature of the agreement, the parties were unable to proceed to a hearing until the third party had acted. The Administrative Law Judge determined that the Equal Rights Division should not be bound by the terms of the settlement agreement and denied the Complainant's request to hold the hearing in abeyance or to postpone the hearing for a six month period. LIRC reversed the order of dismissal because in this case the settlement agreement was drafted with the assistance of one of the Department's Administrative Law Judges and the parties could, therefore, reasonably assume that the terms of the agreement would be acceptable to the Department. Biernacki v. Vrakas (LIRC, 02/24/94).

Without specific allegations of conduct constituting alleged duress which would (if the allegations were true) justify voiding a settlement agreement, the Department will not consider requests to be relieved of the effect of settlement agreements. Kaufer v. Miller Brewing Co. (LIRC, 11/19/93).

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 a settlement agreement contains something which makes it invalid on its face, but only a question of whether it was in fact agreed to, the Department 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. This rule reflects not only the important policy of making parties accountable for actions of their attorneys, but also the equally important policy that settlement should be encouraged. If settlement is to be encouraged, settlements must be treated as final when made. Johannes v. County of Waushara Executive Committee (LIRC, 11/01/93).

If a complainant had not authorized his attorney to enter into a settlement on his behalf, or to dismiss his complaint with prejudice on his behalf, then the Complainant's remedy was to attempt to prove malpractice by that attorney. The Labor and Review Commission is not the appropriate tribunal to determine whether the obligations of attorney to client were properly complied with. Johannes v. County of Waushara Executive Committee (LIRC, 11/01/93).

Prior to the commencement of the hearing, the parties entered into a verbal settlement agreement on the record. The Complainant subsequently indicated that she felt she had not exercised good judgment in agreeing to the settlement without legal counsel and that she could not agree to the settlement. However, the transcript of the hearing indicated that the parties had entered into a full and final settlement on the record. A settlement thus memorialized is as conclusive as one which is reduced to writing and is signed by the parties. Once entered into by all parties, either in writing or on the record, such a settlement is final. 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 makes it invalid, the Department will not entertain collateral attacks on the finality of a settlement. Pustina v. Fox & Fox, S.C. (LIRC, 04/27/93).

The Complainant stated a claim for relief under the Wisconsin Fair Employment Act when she alleged that she was retaliated against by the Respondent when it filed a civil action in circuit court seeking to enforce a settlement agreement which the Complainant had previously refused to sign. Stillwell v. DILHR (Ct. App, Dist. II, unpublished decision, 03/17/93).

Where allegations of discriminatory conduct are resolved by a settlement agreement, those allegations will not thereafter be considered if offered as evidence in a proceeding between the parties on a subsequent claim of discrimination. Where an individual claimed that the employer offered him money to give up his employment in an effort to settle an earlier discrimination claim, and such offer had been made prior to the parties having signed a settlement agreement releasing the employer from any and all claims arising out of conduct by the employer prior to the date the agreement was signed, the settlement agreement precluded the Complainant from using the offer as evidence of discriminatory motive in a subsequent discrimination claim alleging, among other things, retaliation in regard to discharge. Moncrief v. Gardner Baking (LIRC, 07/01/92)

LIRC may take jurisdiction of a case for the limited purpose of dismissing the complaint based upon the parties' settlement. In this case, it was clearly the parties' intent that their obligations should be defined not by the Administrative Law Judge's order but by their settlement agreement. Carey v. DeBoer, Inc. (LIRC, 06/11/92).

Where allegations of discriminatory conduct were made the subject of a charge of discrimination which were then settled, the same allegations could not thereafter be considered relevant in a subsequent proceeding to prove that subsequent acts by the employer were also motivated by bias. Helton v. Wesbar Corp. (LIRC, 03/19/92).

The Equal Rights Division does not have the authority to enforce the terms of an agreement between the parties which they entered into in order to resolve a claim of housing discrimination short of a finding of discrimination. Winfrey v. Paramount Concepts, Inc. (LIRC, 07/24/91); Case reversed in part and remanded (Dane Co. Cir. Ct., 01/06/92).

The Complainant stated that he wished to withdraw his complaint, and the Personnel Commission dismissed the charge. Several months later, the Complainant requested that his original charge of discrimination be reinstated, on the grounds that he had withdrawn the charge as part of a settlement agreement but that the settlement agreement had been breached. The Commission lacked authority to reopen the matter. Haule v. UW-Milwaukee (Wis. Personnel Comm., 8/26/87).

Complaints by an employe against her employer were settled, and the Commission issued orders of dismissal with prejudice, stating that it retained jurisdiction for the limited purpose of dealing with any allegations of failure to comply with the provisions of the settlement agreement. Some years later, the Complainant filed a motion to reopen those earlier matters on the grounds that the settlement agreement had not been complied with, and she also filed a new complaint alleging that the employer had violated the settlement agreement by providing her with negative job references. The Commission had no jurisdiction to reopen the previously dismissed cases. However, the Complainant's new complaint could be entertained as a complaint of discriminatory provision of negative job references. Rogers v. Department of Administration (Wis. Personnel Comm., 06/11/87).

Where an earlier incident which resulted in the filing of a complaint of retaliation was thereafter resolved by a settlement agreement which provided that the Respondent did not admit any violation, that the Complainant would not sue the Respondent on the matters raised in the complaint, and that the agreement was to operate as the complete and final disposition of the complaint, the Commission would not consider evidence of the incident in a subsequent proceeding on another retaliation claim. McKiernan v. Madison Metro Bus Co. (LIRC, 02/12/87).

In a case involving a complaint by individual fire fighters against a city fire department, alleging race discrimination in promotion, the examiner initially allowed the fire fighters union to intervene in the case for the limited purpose of participating in the litigation in the event liability was determined and a remedy had to be determined. Thereafter, the fire fighters and the city entered into a settlement agreement resolving the dispute between them, calling upon the city to take certain actions, and this settlement agreement was approved by the examiner and entered as a stipulated order of dismissal. The acceptance of the settlement agreement was not improper where the union had the opportunity to state its objections to certain portions of it, and where those objections were discounted by the examiner. El-Amin v. City of Beloit (LIRC, 04/16/86).

Where there is no allegation of misrepresentation or intimidation by the examiner or any other representative of the department and nothing in the provisions of a settlement agreement itself which makes it invalid, a Complainant's claims of misrepresentation on the part of his attorney in the entering into the settlement agreement are beyond the scope of the Commission's review authority. In such a case, the Complainant has clearly waived his right to continue with his action under the Act by entering into the settlement agreement, and the Commission will not set the settlement agreement aside. Clussman v. Ellis Stone Constr. (LIRC, 03/25/86).

A voluntary withdrawal by a Complainant of her discrimination charge in exchange for an offer of hire does not constitute a settlement or waiver of her charge unless she fully understood that such would be the result. Krawczyk v. Greenfield School Dist. No. 6 (LIRC, 04/15/82); Anderson v. LIRC, 111 Wis. 2d 245, 330 N.W.2d 594 (1983).

Complainant sought to withdraw from a private settlement agreement he entered into with Respondent because he felt that he was misrepresented by his retained counsel in settling his charge. There was no allegation of misrepresentation or intimidation by the Examiner or any other department representative, and nothing in the provisions of the settlement agreement itself making it invalid. Complainant' claim of misrepresentation on the part of his attorney was beyond the scope of the Commission's review authority.  Therefore, Complainant's request to retract his withdrawal of his discrimination complaint was denied. Johnson v. City of Kenosha (LIRC, April 23, 1981).

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