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


MARY F. GRONOWSKI, Complainant

MILWAUKEE COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199354558, EEOC Case No. 26G940251


An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued an Order of Dismissal 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 record of the proceedings before the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the ALJ's Order of Dismissal as its own.

DECISION

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

Dated and mailed: April 13, 1998
gronoma.rsd : 110 :

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

Introduction -- The question presented by this case is whether the complaint should be dismissed on the grounds that the parties have settled. Evaluating that question requires consideration of the history of the case.

Complainant Mary F. Gronowski first filed her complaint with the Equal Rights Division (ERD) on October 12, 1993. It included a number of attachments relating to a denial of a promotion to the position of Human Service Worker in the DHS Youth Services Division. However, besides referencing all of the attached documents, the complaint itself did not expressly state what discrimination was alleged, so the ERD made efforts to obtain clarification. On November 12, 1993, Gronowski filed another complaint which expressly alleged that Gronowski had taken a promotion to a position as a Human Service Worker in March 1993 and that in April 1993 she had been made to return to her former position because she had suffered from seizures. Discrimination on the basis of handicap was alleged.

In the investigation phase of the proceeding, Gronowski was unrepresented, and the Respondent was being represented by Assistant Corporation Counsel Mary Ann Grimes.

An Initial Determination was issued on October 25, 1994 finding probable cause to believe that the Respondent had discriminated against Gronowski because of handicap.

On November 15, 1994 a notice was issued setting the matter for hearing on February 28, 1995. In early February the Respondent sought the permission of the Administrative Law Judge to have discovery of Gronowski. Shortly thereafter, Gronowski retained attorney Monica Murphy, who commenced discovery on behalf of Gronowski.

The hearing was subsequently postponed to March 27, 1995. On that day, Gronowski appeared with her attorney Monica Murphy, and the Respondent appeared by Attorney Grimes.

At the hearing on March 27, 1995, no testimony was taken. Instead, the attorneys for the parties spent approximately 2 hours (1) discussing the possibility of settlement. Eventually, the attorneys indicated that they had reached an agreement. At the request of the Administrative Law Judge, a handwritten document was prepared and signed (at the top) by both parties' attorneys. That handwritten document provides:

"Parties agree:

/s/ Mary Ann Grimes 3-27-95
/s/ Monica M. Murphy 3/27/95

1. Complainant may return to work on a part-time basis (20 hour week) to no driving position or
2. Complainant may remain on a medical leave of absence
3. When a position (stationary) as a HSW opens up (3 areas), Complainant may accept the position or decline it. Complainant will be offered the next (2nd) stationary position as a HSW. She may accept it or reject it. If she rejects the 2nd position, there is no further obligation on the part of the County to offer complainant another HSW position as part of this settlement If not medically approved to
3A. Job descriptions to be provided to complainant
4. no driving in any position of HSW
5. 1,040 hr probation with possibility of one 1,040 hr extension of probation
6. may transfer to any position that does not involve driving County clients unless Complainant has maintained a driving record which is free from suspension/surrender # for 3 years. The County may modify the terms of *
7. must be medically released to perform the duties of whatever position.
8. HSW training again upon appointment
9. Independent Medical exam at time of appt of HSW position if conflict, another one (IME) at County expense 2 out of 3 opinions control Both at County expense If 1st position is not accepted 2nd IME required at County expense at time of possible appt to 2nd vacancy/position of HSW Copy of IME to complainant
10. no break in seniority
11. grievance resolved
12. $500.00 to complainant
13. no fault - complainant not removed from job because of performance in April of 1993
14. Case dismissed with prejudice upon receipt of withdrawal form to be submitted upon resolution of interim position and signing of the agreement

* this paragraph upon presentation of medical information that Complainant is able to drive

# due to seizure"

Following this, the hearing was adjourned. The Administrative Law Judge noted on his Hearing Log, "Parties Presented Settlement," and the case was placed into the status of "Awaiting Materials."

There then followed a hiatus of 8 months. Finally, on November 29, 1995, a notice was issued by the Equal Rights Division setting the matter for a "continued hearing" on February 7, 1996. By notice dated January 17, 1996, the hearing date was changed to May 2, 1996. Then, on March 11, 1996, the Respondent filed a "Motion To Dismiss" seeking an order dismissing the complaint on the grounds that the parties had entered into a binding settlement agreement resolving the case.

On April 16, 1996, Gronowski (by her Attorney, Monica Murphy) filed her response to the "Motion To Dismiss." The position taken by Gronowski in response to the "Motion to Dismiss" was that "the County has not acted in good faith within the terms of the settlement and has failed to follow through with its end of the bargain. Until the County has done what it promised to do she is not willing to withdraw her charges with the Equal Rights Division." In addition, Murphy asserted on Gronowski's behalf that "[t]he ERD complaint was filed because Ms. Gronowski wanted a Human Service Worker position. That was what she thought the County was agreeing to give her at the time of the previously scheduled hearing in this matter and it was on that basis that she agreed not to proceed with the hearing at that time."

By notice dated April 23, 1996, the hearing date of May 2, 1996 was changed to July 2, 1996. However, no hearing was held. After initially declining to rule on the Motion to Dismiss, the Administrative Law Judge reconsidered, and on June 6, 1996 he issued an "Order of Dismissal - Private Settlement." (2) In that Order, the Administrative Law Judge held that "[t]he written settlement between the parties, which was signed by Attorney Monica Murphy for the Complainant and Principal Assistant Corporation Counsel Mary Ann Grimes, and which was received by the ALJ as a settlement of the dispute in this matter, is binding and final."

A timely Petition for Review was filed by Attorney Murphy on Gronowski's behalf, on June 27, 1996. Briefing to the commission was finally completed as of January 30, 1998. (3)

The party's arguments -- Gronowski argues that

(1) there was no binding settlement agreement, and that the document signed at the March 27, 1995 hearing was only a "preliminary draft" which was subject to her subsequent review and approval;

(2) respondent's attorney lacked authority to enter into the settlement agreement; and

(3) the preconditions for dismissal contained in the "settlement agreement" were not satisfied.

In addition, in her reply brief, Gronowski asserts that the document signed on March 27, 1995 was merely a "proposal."

The County has argued that there was a binding settlement agreed to on March 27, 1995, and that the Assistant Corporation Counsel did have authority to agree to the terms contained in that settlement. The Respondent has not addressed the third argument raised by Gronowski, that the preconditions for dismissal contained in the "settlement agreement" were not satisfied, because Respondent asserts that this presents questions of fact which cannot be decided without providing the opportunity for hearing.

Discussion -- (1) Was there an agreement? -- The commission believes that consideration of the document executed on March 27, 1995 makes it clear that Gronowski's "proposal"/"preliminary draft" argument is without merit. Neither the word "proposal" nor the word "draft" appear anywhere on the document; on the contrary, Gronowski's attorney, Monica Murphy, signed and dated the document immediately under the words "Parties agree". Furthermore, the document refers to itself, in point number 3, as "this settlement."

In addition, the commission finds it highly significant that when Gronowski (by her counsel) responded in April 1996 to the Respondent's request that the complaint be dismissed based on settlement, she raised only one argument: that "the County ha[d] not acted in good faith within the terms of the settlement and ha[d] failed to follow through with its end of the bargain," and that the County had not done what it promised to do. Thus, she did not dispute that a settlement had been entered into; rather, she asserted that its terms had not been complied with. Gronowski's arguments at that time are flatly inconsistent with her present "preliminary draft"/"proposal" theory. Those arguments evidence Gronowski's understanding at that time that an agreement had been reached.

Gronowski's argument, that "it is noteworthy that she herself never signed this so-called `settlement agreement,'" is also unpersuasive. She was represented by counsel, and her attorney clearly signed the document on her behalf. Parties are bound by such acts of counsel.

Gronowski's assertion that the Administrative Law Judge also did not consider the document a final settlement is also unpersuasive. There is a difference between understanding that there has been an agreement, and understanding that there has been performance under the agreement. The fact that the Administrative Law Judge did not immediately issue an Order of Dismissal, simply reflected the fact that he anticipated receiving a written withdrawal as part of the parties' performance of the agreement. That does not mean that he thought there was no agreement. While Gronowski argues that the scheduling of continued hearings after the March 27, 1995 hearing shows that the Administrative Law Judge did not believe that a final settlement had been reached, this argument rests on speculation. The commission believes that it is more likely, that the Administrative Law Judge had further hearing scheduled in order to pressure the parties to complete the performance of the terms of the agreement, including the provision of a written withdrawal. Again, this is not necessarily inconsistent with an understanding that a final and binding agreement had been intended and reached on March 27, 1995; the question was one of the performance of the terms of the agreement, not its existence.

For these reasons, the commission rejects as incredible Gronowski's assertion that she "never agreed, and everyone at the hearing knew or should have known that she did not agree, and wanted time to review and consider the proposed terms" (Complainant's Brief, p. 7). The written document executed on March 27, 1995 bears all the signs of agreement, and none of the signs of a "draft" or "proposal". Furthermore, the arguments made in 1996 by Gronowski's then-attorney (who had been involved in the negotiations on that day and who had executed the agreement on Gronowski's behalf) show that she understood that there had been an agreement, and the problem was the alleged failure of Respondent to perform its side of the bargain.

(2) Did the Respondent's counsel have authority to enter into such an agreement? -- This argument assumes that the provisions of Milwaukee County Ordinance 56.08, which constitutes a delegation of authority by the County Board to the County Attorney to "settle any claim, demand or cause of action but not to exceed five hundred dollars ($500)", affect the authority of the County Attorney to agree to non-monetary terms of settlement.

The County is specifically given the right to make a delegation of authority to pay money to settle claims against the County by Wis. Stat. 59.52, which provides:

(12) ACCOUNTS AND CLAIMS; SETTLEMENT. The board may: . . .
(b) Delegate its power in regard to any claim, demand or cause of action not exceeding $500 to the corporation counsel. If the corporation counsel finds that payment of the claim to a claimant is justified, the corporation counsel may order the claim paid. The claim shall be paid upon certification of the corporation counsel and shall be annually reported to the board.

Complainant argues that the ordinance says nothing about the County Attorney being authorized to agree to non-monetary terms and conditions which are binding upon the county. That is correct, but irrelevant. There is no need for a specific grant of authority to the County Board to delegate authority to the corporation counsel to enter into agreements on behalf of the county that do not affect the treasury and require the direct expenditure of county funds.

The corporation counsel of Milwaukee County has, by statute, a wide-ranging authority:

59.42  (2) CORPORATION COUNSEL IN SPECIAL COUNTIES; APPOINTMENT, DISMISSAL AND DUTIES.

(a) In a county with a population of 500,000 or more there is created the office of corporation counsel, and such deputy corporation counsels, assistants, stenographers and clerks at such salaries as are authorized by the board.

(b) The duties of the corporation counsel and assistant corporation counsels shall be, without limitation because of enumeration, to:

1. Prosecute and defend all civil actions, proceedings, applications and motions in any court, commission, board, tribunal or body in any jurisdiction of this or other states or of the nation in which the county or any board, commission, committee or officer thereof is interested or a party by virtue of the office...

The reason that an express authorization of the delegation of authority to settle is necessary in financial matters, is that the county board is ultimately the sole source of the power to spend the county's money. Of course, various county agencies may do so, but they do so within the constraints of the budget authorized by the county board. However, there is nothing of statutory magnitude that similarly limits the authority of agents of the county to make decisions that do not per se commit unbudgeted county funds. The types of non-monetary terms agreed to in this case concerned the same types of personnel-related decisions that county agencies make constantly without having to obtain express prior approval each time from the county board.

For these reasons, the commission sees no merit whatsoever to this argument. The financial commitment agreed to (payment of $500) was within the delegated authority of the corporation counsel. There is no basis for the contention, that any of the other terms required that kind of delegated authority.

(3) Were the preconditions for dismissal satisfied ? -- Complainant's argument assumes that when parties agree to settle a dispute pending before the Equal Rights Division, the dismissal of the complaint is something that occurs because of, and only upon, the performance of all of the terms of the settlement agreement. However, the commission believes that it is the parties' conduct in entering into a settlement agreement that justifies the dismissal of the complaint.

Notwithstanding its context, a settlement agreement in an employment discrimination case is still in essence a contract. The existence vel non of such a contract is a question of fact. If, in fact, the parties have had a meeting of the minds on certain terms which they propose to carry out, then the contract has been made.

In the case of a contract for settlement of an employment discrimination claim pending before the Equal Rights Division, the dismissal of the claim is an appropriate consequence. The only question which is significant to the agency is the threshold fact question, i.e., have the parties in fact reached an agreement. It may be a general practice on the part of the Division to 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. They are not strictly necessary. In this case, the agreement of the parties which is reflected in the writing signed by the attorneys at the March 27, 1995 hearing is, the commission believes, an adequate basis on which to find as a matter of fact that at that time and place the parties, by and through their legal counsel, reached a meeting of the minds and made an agreement to settle the employment discrimination claim which called for the dismissal of that claim.

What happened subsequently, is that a dispute arose not as to whether an agreement had in fact been reached, but as to whether all of its terms were being complied with.

While the facts concerning the parties' dispute over performance of the settlement agreement are more complex, the situation in this case is not materially distinguishable from a situation in which (for example) parties agree at hearing to settle a discrimination claim, with the terms of the settlement agreement being that the respondent will pay the complainant $1,000 and the complainant will file a withdrawal form, and thereafter one party refuses to perform their side of the bargain (i.e., either the employer refuses to tender the payment, or the employe receives the payment and refuses to provide the release). The problem in such a case is not that there has been no settlement agreement, but that one or the other of the parties is breaching that agreement. However, the authority and jurisdiction of the Equal Rights Division and the commission extend to deciding whether or not acts have been committed which violate the Wisconsin Fair Employment Act. Neither agency has the authority to decide what are in effect breach of contract questions, of whether settlement agreements have been breached. Compare, Haule v. UW-Milwaukee (Wis. Personnel Comm., 8/26/87), Rogers v. Department of Administration (Wis. Personnel Comm., 06/11/87), holding that the Wisconsin Personnel Commission lacks the authority to enforce the terms of settlement agreements.

(The commission agrees with the Respondent, that to the extent that resolution of the question of whether the settlement agreement was breached would involve questions of fact, it could not be resolved without providing an opportunity for hearing. However, because the commission concludes that such questions are not appropriately addressed in this forum, the question of an opportunity for further hearing does not arise).

Conclusion -- The commission believes that counsel for both parties entered into a settlement of this discrimination complaint on March 27, 1995, which was confirmed in a writing signed by both of them on that day. Subsequently, a dispute arose as to whether the terms of the agreement were being properly performed. However, the fact that settlement was agreed to, and that one of the terms was that the complainant agreed to the dismissal of her complaint, is clear. The dismissal of the complaint was therefore appropriate.

cc: John E. Machulak, Attorney for Complainant
Mary Ann Grimes, Attorney for Respondent


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Footnotes:

(1)( Back ) This time is approximate. The "Hearing Log" prepared by the Administrative Law Judge subsequent to the hearing reflected a total time at the hearing location of 2 hours. Presumably, some time was also spent in preliminary procedural matters.

(2)( Back ) This document was mistakenly dated May 6, 1996. When this error was discovered, a corrected copy was issued on June 11, 1996, bearing that date.

(3)( Back ) Review of this matter by the commission was significantly delayed by a variety of factors relating to the parties' counsel. A briefing schedule was initially set by the commission on July 8 1996, calling for a sequential briefing schedule to be completed by September 23, 1996. Then, on July 11, 1996, Murphy withdrew as attorney for Gronowski, who subsequently retained Machulak, Hutchinson, Robertson, Dwyer & O'Dess to represent her, and their request for a 90-day extension in the briefing schedule was granted on August 16, 1996. A brief for Gronowski was filed by Attorney Susan R. Robertson (of the Machulak firm) on November 6, 1996. Then, Attorney Grimes became ill and a further postponement of the briefing schedule was granted for that reason. Then, in February, 1997, with Attorney Grimes again on the case and with the brief on behalf of Respondent not yet filed, the parties requested a "suspension" of the briefing schedule, which was granted. After nothing was then heard from the parties for some time, the commission contacted them in July, 1997, at which time Attorney Grimes indicated that the parties were still working towards settling the matter. Again, nothing was then heard from the parties, and in November, 1997, the commission contacted the attorneys again, telling them that the commission would like to draw the case to a close and establishing a final briefing schedule. Briefs were eventually filed in accordance with this briefing schedule.