CANDACE B FETTIG, Complainant
COUNTY OF FOND DU LAC, Respondent
An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued an order in the above-captioned matter on November 3, 2005, dismissing Candace Fettig's discrimination complaints pursuant to a written Stipulation and Order reflecting a settlement agreement on her complaints that was signed on October 18, 2005, by Fettig, her attorney and the attorney for the respondent. Fettig has filed a petition for review of that order.
By letters dated during the period from November 27, 2005, to March 12, 2006, Fettig contacted the Secretary of the Department and various elected officials expressing dissatisfaction (and seeking their assistance) because the hearing scheduled for October 18, 2005, on her discrimination complaints had not taken place but instead a mediation session which resulted in a settlement agreement the terms of which she states she does not agree with.
Eventually, on April 7, 2006, the ERD received correspondence from Fettig seeking an appeal from the dismissal of her complaints. In this correspondence Fettig relates that no appeal rights information was included with the ALJ's order, that she was never informed of any appeal rights, deadlines for appeals or of any rights at all associated with the Stipulation and Order and that she most certainly would have appealed within the 21-day deadline had she been made aware of any appeal rights.
Wisconsin Statute § 111.39(5) effectively provides that any party who is dissatisfied with the findings and order of the examiner (i.e., the ALJ) may file a written petition with the department within 21 days from the date of the mailing of the examiner's findings and order for review by the commission of the findings and order.
As a preliminary matter, the commission notes that it is satisfied, for several reasons, that it has the authority to review appeals from an examiner's order dismissing a complaint pursuant to a settlement agreement. First, the commission routinely reviews appeals in cases where an examiner has simply issued an order dismissing a complaint without the benefit of a hearing. Cases of this type reviewed by the commission include review of an examiner's order of dismissal based on a complainant's failure to appear for the hearing, a complainant's failure to file a complaint within 300 days of the alleged discrimination and a complainant's failure to respond within 20 days to correspondence sent by certified mail. Second, the commission notes that it has had a long practice of reviewing appeals by parties who were dissatisfied with their settlement agreements. See for example, Johnson v. City of Kenosha (LIRC, 04/23/81); Clussman v. Ellis Stone Construction Co. (LIRC, 03/25/86); Kaufer v. Miller Brewing Company (LIRC, 11/19/93); Brunswick v. Emergency Services of Door County (LIRC 12/08/94); Gahan v. The Milwaukee and S.E. Wis. District Council of Carpenters (LIRC, 03/29/96); Gribbons v. Chart Industries, Inc. (LIRC, 03/26/02); Kellar v. Copps Gas Station, (LIRC, 01/28/04); and Burton v. United Government Services, LLC (LIRC, 11/18/05). Implicit in this practice is the recognition of a need to provide the parties an avenue to address concerns about the validity of their settlement agreements. Finally, in the case of Rashad Hamin El-Amin v. City of Beloit Fire Department (LIRC, 04/16/86), where an argument was made that an examiner's order of dismissal of a complaint based on a settlement agreement was not appealable to the commission, the commission specifically rejected this argument stating that it was appealable because "The Examiner's order constituted a final resolution or determination on Complainant's complaint filed with (and received by) the department."
A question arises in the instant case, however, as to the commission's jurisdiction to consider Fettig's petition for review since it was not filed within 21 days from the date that a copy of the ALJ's Stipulation and Order was mailed to the parties. The commission concludes, however, that given the absence of a notice of appeal rights enclosure with the ALJ's Stipulation and Order dismissing Fettig's complaints, Fettig's petition cannot be considered as untimely under such circumstances. Indeed, section 227.48, Wis. Stat. provides that every decision (of an agency or hearing examiner) shall include notice of any right of the parties to petition for administrative review of adverse decisions and that no time period for filing a petition under any section permitting administrative review of an agency decision begins to run until the agency has complied with this section. While the language of this statute makes specific reference to "adverse" decisions, the frequency with which a party has contested decisions by ALJ's regarding settlement agreements attests to the fact that even settlement agreements may be adverse decisions. Alternatively, the commission also notes that in many instances a settlement agreement is reached after the matter has been certified to hearing. In addition to permitting dismissal of a complaint based upon the conditions set forth in § DWD 218.05(1) (reasons such as the complaint was not filed timely or fails to state a claim for relief under the act) after the case is certified to hearing, Wisconsin Administrative Code § DWD 218.10 provides that a complaint may be dismissed "for any other procedural basis" (which would presumably include an order of dismissal pursuant to a settlement agreement) and that if the administrative law judge issues an order dismissing the complaint under this section, a certified copy of the order "and a notice of appeal rights shall be sent by first class mail to the last known address of each party and to their attorneys of record." (Emphasis added.)
In view of the above and the recurring instances in which a party has filed a petition contesting what was supposedly a valid settlement agreement, the commission suggests that it would appear that the ERD should simply attach notice of appeal rights to all ALJ orders in which a complaint is dismissed as a result of a settlement agreement.
It has been the commission's policy 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, 03/26/02), citing Johannes v. County of Waushara Executive Committee Board of Supervisors (LIRC, 11/01/93); Pustina v. Fox & Fox, S.C. (LIRC, 04/27/93); Clussman v. Ellis Stone Constr. (LIRC, 03/25/86).
There is nothing in the settlement agreement itself signed by Fettig which would render it invalid on its face.(1) Fettig asserts, however, that the ALJ coerced her into engaging in mediation, and to sign a settlement agreement that she did not agree with.
Specifically, Fettig alleges the ALJ told her why he would not likely be able to find in her favor, to help her in any way or even to determine that she had a disability. Further, she alleges that the ALJ went on to explain that it would take months to make a decision on her case and that even if he did find in her favor, the respondent would appeal, and the matter would go on for years. While Fettig has not specifically asserted what the ALJ allegedly told her as reason(s) why he would not likely be able to find in her favor, or be able to determine that she had a disability, the commission is troubled by Fettig's allegations. A party's decision about whether or not to engage in mediation must be voluntary. To that end, an ALJ must refrain from expressing his or her preliminary views about a case, even though the ALJ might consider such involvement necessary in order to assist a party to reach a decision on whether on not to pursue mediation. The role of the ALJ is not to attempt to convince or persuade a party that a case should be mediated, and an ALJ must defer to a party's wishes to proceed with a hearing if that indeed is the party's desire. Furthermore, where the parties are considering whether or not to engage in mediation, the ALJ should make it clear to the parties that if mediation is attempted but fails, that a different ALJ would then be scheduled to conduct the hearing on the charge of discrimination. The commission has considered Fettig's assertions of coercion by the ALJ. However, the commission cannot conclude under the circumstances presented in this case that the ALJ had coerced her into engaging in mediation. Fettig was represented by an attorney at the hearing, and, as she admits, the ALJ permitted her to speak to her attorney about whether or not to mediate the case. The case file indicates that the attorney appearing with her for the hearing had been retained in January of 2005. Fettig's attorney had thus had ample time to form his own assessment of the relative strength of her case and whether or not they should engage in mediation. Fettig had no need to accept or rely on any of the ALJ's alleged expressed views of her case. Fettig consulted with her attorney and ultimately chose to proceed with mediation of her charge of discrimination. Fettig having been represented by an attorney with whom she consulted about whether or not to engage in mediation militates against a showing that Fettig was coerced into mediation. And while Fettig has alleged that her attorney decided they had "better mediate because there was no chance we could win with the Judge already against us", Fettig has provided nothing to support this as the basis for her attorney's decision to mediate the case.
The commission is also unable to conclude that the ALJ had coerced Fettig to sign a settlement agreement she was not in agreement with. Fettig apparently claims that she was coerced into signing the settlement agreement because during mediation she stated she could not agree to the settlement terms proposed by the respondent and that they were at an impasse but "the Judge turned to corporation counsel and said, "Why don't you just go upstairs (to corporation counsel's office) and start drawing up an agreement?" Further, she apparently claims that the ALJ told or directed her to sign the agreement. However, other assertions made by Fettig contradict her claims of coercion by the ALJ. For instance, Fettig has also asserted that she told her attorney that she could not agree to the respondent's settlement terms and that they would need to go to hearing, yet she admits that despite her wishes her attorney proceeded to review and indicate approval of the prepared stipulations. What Fettig's assertions seem to indicate is that she and her attorney may not have been of the same mind in this matter, not that there was coercion by the ALJ to sign the settlement agreement. Indeed, Fettig's assertion that when she reached for the second draft of the stipulations that "her attorney held the paperwork away from me and handed it to corporation counsel" is indicative of the fact that Fettig and her attorney may not have been of the same mind about the settlement of her complaints. This is further indicated by Fettig's December 6 letter request for "an attorney who will represent me, at the Hearings." The commission has consistently held that it will not entertain collateral attacks on the finality of a settlement agreement based on a party's claim of misrepresentation on the part of their attorney or that that their attorney exceeded the scope of his or her authority in agreeing to it. See for example, Oehldrich v. Wausaukee Rescue Squad, Inc. (LIRC, 10/29/04); Leggett v. County of Milwaukee (LIRC, 02/13/04); Kellar v. Copps Gas Station (LIRC, 01/28/04); Gahan v. The Milwaukee and S.E. Wisconsin Dist. Council of Carpenters (LIRC, 03/29/96); Johannes, supra, Clussman, supra and Johnson, supra. Also, while Fettig has claimed, as noted above in this paragraph, that she was "told" or "directed" by the ALJ to sign the agreement, in her initial statement on this subject she asserted that she was called to the conference room and when she got there the ALJ stated, "Can you come back and sign this before you go out there?" This assertion is certainly not evidence that the ALJ had coerced Fettig to sign the agreement. Having considered Fettig's assertions of being coerced to sign the settlement agreement, the commission is unable to conclude that the ALJ had coerced her to sign the settlement agreement.
Fettig also apparently asserts that the ALJ was biased. Referencing her preference as to whom she felt should be present during mediation, Fettig asserts that her attorney asked if everyone but corporation counsel would leave the room and that the ALJ "intervened on their behalf and said, 'Maybe corporation counsel and just one other person could stay with him here'. " Fettig also asserts that the ALJ "began the 'mediation' by suggesting to my employer's corporation counsel that they may want to request an 'IME' be done before they agreed to anything." Apparently as evidence that the ALJ "was very friendly with corporation counsel and the personal representative," Fettig asserts that as the stipulation was drawn up the ALJ told corporation counsel and the personal representative "what a nice job they were doing" [because they had included reference to a statute in the stipulations] and that when she looked at the ALJ he said, "When I see someone doing the right thing, I try to praise them". Further, Fettig complains that when the ALJ was discussing whether to engage in mediation to settle the case, when she stated that "if my employer had 'wanted to settle, that they should have done so months before', not at the hearing date that I had waited nearly two years for", the ALJ told her "he would expect that no negative comments be made if we were to mediate this case". Fettig asserts that on no occasion, however, did the ALJ admonish corporation counsel for making negative comments when he "told the Judge that he 'always felt (I) had a weak case for disability', and that he 'always felt that (I) should settle', that he 'hopes this is over now' ", or the personnel representative for inappropriate behavior in asking, "Candace, what did you say?", when she attempted to quietly say something to her attorney. With respect to the personnel representative, Fettig asserts that she "would then answer him, and he, rather than my attorney, would answer me." Finally, Fettig asserts that the ALJ "intervened on corporation counsel's behalf and asked us to wait upstairs in the Wait Room outside corporation counsel's office instead of in the conference room that had been reserved for two days for my hearings, so that corporation counsel wouldn't have to go back and forth down the halls and up and down the elevator between (sic) office and conference room."(2)
The strongest allegation of bias on the part of the ALJ is Fettig's assertion that the ALJ began the mediation by suggesting that the respondent might want to request an IME be done before it agreed to anything. Administrative Law Judges, of course, must remain impartial in their attempt to help disputing parties find mutually satisfactory solutions to their dispute. This alleged action by the ALJ, if true, was certainly unwarranted but it has not been shown to have resulted in any prejudice to Fettig since Fettig rejected this suggestion and she has not asserted that there was any further discussion of this subject during the ensuing mediation process.
It was not improper for the ALJ to state that one other person could stay in the conference room with corporation counsel during mediation. The commission notes that Fettig has also expressed a concern that before the discussion about engaging in mediation took place the ALJ had indicated there was no problem that all of the respondent's witnesses were present for the scheduled hearing. Evidently, Fettig is under the impression that this was improper, too. It was not. Had the hearing been held and Fettig's attorney made a request for an exclusion of the respondent's witnesses the respondent's counsel would have been entitled to have one of those individuals remain as the respondent's designated representative. Similarly, it was permissible for the ALJ to allow one individual to remain as the respondent's designated representative during mediation. The ALJ was obviously of the opinion that it was important to include the statutory reference in the settlement agreement, and his stating that they were doing a nice job for having included a statutory reference in the agreement is not suggestive of any bias. There was no reason for the ALJ to admonish the respondent's counsel for his comments. While Fettig may have disagreed with those comments, they were not negative comments and these comments were made after the settlement agreement had been reached. It is not entirely clear why Fettig believes the ALJ should have admonished the personnel representative. She could have refused to answer the personnel representative's questions if she did not wish for him to know what she was saying to her attorney, and her decision to answer him suggested that he had no objection to doing so. Finally, Fettig's assertion that the ALJ had asked if she and her counsel would wait upstairs in the Wait Room so that the respondent's corporation counsel wouldn't have to go back and forth down the halls and up and down the elevator between his office and the conference room is not evidence of bias on the part of the ALJ either. This was obviously something the ALJ had asked be done while the various drafts of the agreement were being drawn up. The assertion by Fettig regarding the distance between the two rooms suggests that the ALJ was only attempting to move the parties closer together.
Fettig further apparently claims that the ALJ was discourteous to her. She asserts that the ALJ "asked me repeatedly, what I wanted from him, without allowing me a chance to answer him" and that he interrupted her when she attempted to explain her comment that the employer should have settled the case months before the hearing date. Fettig's assertions, if true, are regrettable, as such behavior is not only discourteous but also inappropriate. However, Fettig has not shown or asserted how this alleged behavior on the part of the ALJ had caused her to either enter into mediation or to sign the settlement agreement.
Finally, Fettig apparently contends that she should not be bound by the settlement agreement because she was "suffering from debilitating stress disorders and anxiety of which the DWD Administrative Law Judge was fully aware, at the time of the signing..." However, Fettig has cited nothing which would suggest that the ALJ was aware that she was suffering from a debilitating stress disorder and anxiety. Furthermore, Fettig's counsel (who signed the settlement agreement) evidently saw no reason to be concerned about her condition when she signed the settlement agreement.
Based upon all of the above-stated reasons, the Labor and Industry Review Commission hereby issues the following:
The complainant's petition for review is dismissed.
Dated and mailed July 14, 2006
fettica2 . rpr : 125 : 9
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
NOTE: The commission may reconsider its decision to dismiss the complainant's petition in this matter should she, within 28 days from the date of the commission's decision, be able to furnish persuasive information to show that she in fact was coerced by the ALJ into mediating her discrimination complaints and signing the Stipulation and Order reflecting that a settlement agreement had been reached with respect to her complaints.
Attorney Seymour Pikofsky
Attorney William J. Bendt
Appealed to Circuit Court.
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(1)( Back ) The written stipulations that served as the basis for the dismissal of Fettig's complaints included the following provisions:
1. Complainant Candace B. Fettig, personally and by her attorney Seymour Pikofsky, and Fond du Lac County, by Corporation Counsel William J. Bendt, stipulate as follows:
. . .
4. Complainant agrees to release Fond du Lac County from any and all liability with respect to the above state claims [ERD Case Nos. CR200400675, CR200401087 and CR200502588] and any other claim of employment discrimination under Wisconsin state law.
5. Complainant has resigned her employment with Fond du Lac County and has submitted an application for long term disability income (LTDI) benefits. Complainant represents that a third party administrator which oversees eligibility for LTDI benefits, namely, Broadspire, an organization located in Burlington, Massachusetts, has acknowledged that it has received two medical reports from two physicians that indicate that Complainant meets the definition of disability under the LTDI plan.
6. No later than seven days from the date of this agreement, Fond du Lac County agrees, pursuant to ETF 50.50(5)(a), Wisconsin Administrative Code, to certify as to the information required under ETF 50.48(3)(b), Wisconsin Administrative Code, and to certify that Complainant's employment has been terminated because of a disability as described in ETF 50.50(3), Wisconsin Administrative Code, and, as a consequence, she is not entitled to any further earnings from the employer.
7. The parties further agree that this Stipulation and Order for Dismissal does not bar Complainant from pursuing a claim for employment discrimination under federal law in the EEOC or federal court, or from pursuing a claim for workers compensation.
8. The parties further agree that Fond du Lac County's certification of disability under ETF 50.50(5)(a), Wisconsin Administrative Code, does not constitute an admission on the part of Fond du Lac County that the Complainant has or had a disability within the meaning of federal or state discrimination law, and that said certification may not be used as evidence or be used in any other manner in any proceeding before the EEOC or federal court.
9. In consideration of the Complainant's current financial situation, Fond du Lac County agrees to pay the premium for her health insurance coverage in November 2005 for the month of December 2005.
(2)( Back ) The scheduled location for this matter was the Fond du Lac Court House and City/County Government Center.