STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
DAWN WELLES, Complainant
EINHORN ASSOCIATES, INC., Respondent
FAIR EMPLOYMENT DECISION
ERD Case No. 199903691
An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.
The decision of the administrative law judge (copy attached) is affirmed.
Dated and mailed April 19, 2000
wellesd.rsd : 110 :
/s/ David B. Falstad, Chairman
/s/ Pamela I. Anderson, Commissioner
James A. Rutkowski, Commissioner
Dawn Welles filed her complaint with the Equal Rights Division on October 21, 1999, alleging that she was discriminatorily harassed, demoted and eventually terminated because of race, sex and age. Responding to the complaint, Einhorn Associates ("Einhorn") asserted that following Welles' termination on December 31, 1998, she entered into a waiver and release agreeing, among other things, to waive any and all present claims she had against Einhorn arising out of her employment or the termination of her employment, including claims arising out of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Wisconsin Fair Employment Act. The waiver and release agreement, a partial copy of which was provided, (1) was executed on January 28, 1999. Einhorn asserted, and Welles has not denied, that she was represented by counsel when entering into this agreement.
Welles, who was represented by counsel following the filing of her complaint, argued in response that the agreement had been breached by Einhorn in respect to consideration which it had promised to provide, that therefore the agreement was "null and void," and that the ERD should for that reason accept and investigate the complaint. Welles' counsel explained that the agreement had provided that Welles would be paid an additional $2,500, beyond the sums she was initially paid, if she had been unable to obtain full-time employment by February 22, 1999. According to Welles' counsel, Welles did not have full-time employment by that date, but Einhorn did not pay her the additional $2,500 because it felt that she should have found work by that time. Welles' counsel argued that the burden should be on Einhorn to establish that the agreement had been complied with and was valid and enforceable.
An Equal Rights Officer issued a Preliminary Determination dismissing the complaint on the grounds of waiver and release, and Welles appealed. Welles, pro se at this point, argued that the commission's decision in Gronowski v. Milw. Dept. of Social Services (LIRC, April 13, 1998), a decision relied upon by Einhorn as being on point and holding that an allegation that a settlement agreement was breached was not sufficient to give the ERD the authority to act on a complaint which had been settled, was distinguishable because in Gronowski the settlement agreement had been entered into after the complaint was filed with the ERD.
The ALJ to whom the matter was assigned affirmed the preliminary determination. The commission believes that the ALJ's decision thoroughly and adequately discusses this as well as the other issues and arguments presented to him, and for that reason it adopts his discussion of those issues.
Welles asserts for the first time in her petition for commission review, that there was duress in the signing of the agreement. She says,
The attorney that was to review the contract requested a copy of my original employment contract. The employer refused to give me a copy and the attorney was unable to advise me of my rights regarding the original employment contract (I was never given a copy after signing.) The contract terms were also misrepresented by the employer, as I was promised something they never intended to give me, if in fact being able to find a job in 6 weeks was possible...
She also argues that the contract is "void as against public policy."
What Welles describes does not involve "duress." If the attorney who was representing Welles in advising her as to the proposed settlement agreement was unable to do so in a fully informed manner because of lack of a copy of the original employment contract, then it may have been unwise of that attorney to advise Welles to accept the agreement, but an assertion that a settlement agreement was entered into based on poor advice from an attorney does not provide a basis for the ERD to overlook the existence of a waiver and release directed expressly to claims under the WFEA. See, Gahan v. The Milwaukee and S.E. Wisconsin Dist. Council of Carpenters (LIRC, 03/29/96); Nealy v. Miller Compressing Co. (LIRC, 09/19/95). The commission also sees nothing about the settlement that is "against public policy." Public policy is very much in favor of the settlement of employment discrimination disputes; that is why the WFEA has always had a conciliation procedure built into it. The terms of the agreement in this case -- including the provision for payment of a certain additional sum if the employe is unable to obtain work within a certain period of time -- are not onerous.
For the foregoing reasons, the commission affirms the decision that the complaint in this matter should be dismissed.
Karen W. Moore, Attorney for Complainant
Robert J. Muten, Attorney for Respondent
[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]
(1)( Back ) The parts of the document describing the consideration for Welles' agreement to the waiver and release were deleted.