JENNIFER A WENNESHEIMER, Complainant
AMERICAN EXPRESS, Respondent
An administrative law judge for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the administrative law judge. Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own.
The decision of the administrative law judge (copy attached) is affirmed.
Dated and mailed November 25, 2009
wenneje . rsd : 164 : 9
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
On December 18, 2007, the parties underwent mediation during which the complainant was represented by counsel. The mediation resulted in a "term sheet" which was signed by the complainant and by the attorneys for both parties. One of the terms of the agreement was that any disputes would be resolved through binding arbitration. Thereafter, the parties were unable to reach agreement on the wording of the final settlement agreement. After reaching impasse, the matter was scheduled for mandatory arbitration on August 12, 2008. The complainant was represented by counsel. On August 18, 2008, the arbitrator issued an order, along with a Release and Waiver Agreement (hereinafter "Agreement") which incorporated the rulings made at the August 12, 2008 arbitration. The order provided that the parties would have five days in which to sign the Agreement and that, if either party failed to do so, the Agreement would become self-effectuating and binding upon the parties. The order further provided that, within 14 days after the Agreement became effective, the complainant must withdraw her claim with the Equal Rights Division. A representative for the respondent signed the agreement on September 3, 2008, more than five days after the arbitrator issued his order. The complainant did not sign the agreement.
The matter went back to arbitration a second time on September 25, 2008. The complainant was, again, represented by counsel. That day the arbitrator issued an order finding that the Agreement became self-effectuating when it was not signed within five days, and that the complainant failed to withdraw her pending complaint as ordered by the arbitrator. The arbitrator therefore ordered that, on or before September 30, 2008, the complainant's attorney request that the Equal Rights Division withdraw the pending charges. However, no withdrawal request was submitted and, on September 29, 2008, the complainant's attorney notified the administrative law judge that she was no longer representing the complainant in this matter.
On September 30, 2008, the respondent sent the administrative law judge a copy of the term sheet, order, and Agreement, and requested that the case be dismissed. The complainant objected, arguing that the Agreement did not exactly mirror the provisions of the term sheet and, further, that her attorney had included terms in the Agreement over her objections. The complainant also contended that she had not agreed to take the matter to binding arbitration. On May 13, 2009, the administrative law judge issued an order granting the respondent's motion to dismiss based upon the final settlement agreement.
The complainant has petitioned for commission review of the administrative law judge's order. In her petition the complainant reiterates her argument that the settlement agreement does not reflect the terms agreed upon during the December 18, 2007 mediation. The complainant contends that the settlement agreement was deliberately adverse, restrictive, and injurious to her, and that she did not enter into it knowingly and voluntarily. Her arguments fail. The commission's policy is to treat settlement agreements 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. Gribbons v. Chart Industries, Inc. (LIRC, March 26, 2002), citing Johannes v. County of Waushara Executive Committee Board of Supervisors (LIRC, Nov. 1, 1993); Pustina v. Fox & Fox, S.C. (LIRC, 04/27/93); Clussman v. Ellis Stone Constr. (LIRC, March 25, 1986). Here, the complainant signed the term sheet in which she agreed to arbitration of this matter, and the settlement agreement that was reached as a result of arbitration is valid and binding. The complainant was represented by counsel throughout the settlement negotiations and, although it is unfortunate that the complainant is dissatisfied with her attorney's representation of her, that does not render the settlement invalid. Fettig v. County of Fond du Lac (LIRC, July 14, 2006); Oehldrich v. Wausaukee Rescue Squad, Inc. (LIRC, Oct. 29, 2004); Leggett v. County of Milwaukee (LIRC, Feb. 13, 2004); Kellar v. Copps Gas Station (LIRC, Jan. 28, 2004); Gahan v. The Milwaukee and S.E. Wisconsin Dist. Council of Carpenters (LIRC, March 29, 1996); Johannes, supra; and Clussman, supra. The administrative law judge's decision and order of dismissal is, accordingly, affirmed.
NOTE: The commission established a briefing schedule at the complainant's request, and subsequently granted the complainant's request for an extension of time in which to file her brief. Notwithstanding this extension, the complainant has failed to submit any brief on her behalf.
Attorney Amy J. Gittler
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