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


LINETTE M ROACH-DAVIS, Complainant

RAVE, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199702012


An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

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

Dated and mailed: March 26, 1999
roachli.rsd : 164 : 6

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In the petition for commission review the respondent argues that the complainant agreed to a settlement in November of 1997 and that her damages are limited to the amount agreed upon at that time, rather than those ordered by the administrative law judge. A review of the file shows this argument to be without merit. In correspondence to the parties dated December 10, 1997, the administrative law judge indicated that it was his understanding the parties had reached an agreement "in principal," and that they intended to memorialize that agreement in writing. Subsequently, in a December 31 letter to the administrative law judge, a copy of which was sent to the respondent's attorney, the complainant's attorney explained that, in spite of their agreement "in principal," the parties had been unable to finalize the settlement. The complainant's attorney, therefore, requested a hearing. The administrative law judge then notified the parties that it was his understanding no settlement had been reached and that, in the event the parties were able to arrive at a settlement, they were to submit a withdrawal form by January 28, 1998. No withdrawal form was submitted, and a hearing was scheduled. The respondent received notice of the hearing, but failed to notify the administrative law judge at any time prior to the May 5 hearing that it believed a settlement had been reached, failed to request a dismissal of the hearing on those grounds, and failed to appear at the hearing. It was only after the administrative law judge issued a preliminary decision finding discrimination that the respondent came forward with its contention that the matter had been settled, maintaining that the parties had reached an agreement in November of 1997 but that, when the respondent forwarded a written settlement agreement to the complainant in March of 1998, she chose not to sign it.

It is clear from the above that, although the parties were involved in settlement negotiations and had arrived at a tentative settlement agreement, no final settlement was ever reached. The December 1997 correspondence from the administrative law judge and the complainant's attorney demonstrates that it was the intent of the parties to enter into a written settlement agreement. However, while there was apparently an exchange of paperwork between the parties, no signed settlement agreement was ever effectuated and no cash payment was ever tendered to the complainant. Given these factors, and considering the respondent's failure to notify the Division that a settlement had been reached, (1) even after the administrative law judge specifically advised the parties that he intended to proceed on the assumption that there was no settlement, the commission sees no reason to believe that the matter has been settled by the parties. Accordingly, the respondent is bound by the Order issued by the administrative law judge.

cc: Lawrence E. Classen
Michael B. McLearn


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Footnotes:

(1)( Back ) The Division's rules require the parties to notify the Division immediately upon reaching a settlement. Wis. Admin. Code DWD 218.09.