WI ALJ Calvin Fermin Settlement Proposals: Fermin v. Benjamin C. Hitchcock Cross and Deborah N. Kuether

CONFIDENTIAL – FOR SETTLEMENT PURPOSES ONLY
Proposed Items for Settlement
Case Caption: Calvin V. Fermin v. Benjamin C. Hitchcock Cross and Deborah N. Kuether
23CV009235, Milwaukee County Circuit Court
Plaintiff Fermin proposes the following key terms for a potential settlement of the civil action
captioned above with Defendant Hitchcock Cross and Defendant Kuether. This document is not
an unconditional offer of settlement, and any “acceptance” of these terms by either or both
Defendants does not create a binding agreement. Any settlement of this civil action requires a
separate written settlement agreement signed by the parties that will more fully lay out the
provisions for these terms and may include other terms and conditions not listed in this
document.
Defendant Hitchcock Cross’s and Defendant Kuether’s consideration:
Compensation. Defendants to pay Plaintiff Fermin the sum of $25,000.
Video Removal. Defendant Hitchcock Cross and Defendant Kuether jointly and severally agree
to remove the following videos from and to not repost on YouTube, to include the Defendants’
Deliberate Indifference WI YouTube channel:
1. “Equal Rights Division hires new Judge School Board Attorney and alleged bad Actor” –
video where Defendant Hitchcock Cross discusses the hiring of Plaintiff Fermin as an ALJ
2. “Deputy Superintendent and Board Investigator's failed conspiracy to oust MPS
Superintendent Posley” – video where Defendant Hitchcock Cross discusses Plaintiff
Fermin’s filing of a whistleblower complaint against Dr. Posley with Matt Chason and
MPS’s OAE
3. “Matt Chason & Calvin Fermin correspond to oust K. Posley as Milwaukee Public Schools
Superintendent” – republish of #2 where Defendant Hitchcock Cross discusses Plaintiff
Fermin’s filing of a whistleblower complaint against Dr. Posley with Matt Chason and
MPS’s OAE
4. “Calvin Fermin's Complaint to MPS Superintendent Keith Posley on Marla Bronaugh” –
video where Defendant Hitchcock Cross discusses Plaintiff Fermin’s whistleblower
complaint against Marla Bronaugh
5. Whistleblower of the Week: “Deputy superintendent’s Whistleblower Complaint
against…”[exact title to be filled in by Defendants] – republish of #4 where Defendant
1 of 3
Hitchcock Cross discusses Plaintiff Fermin’s whistleblower complaint against Marla
Bronaugh
6. Calvin Fermin Deposition Part 1 – “Deposition of Former Milwaukee Public Schools
Deputy Superintendent…” [exact title to be filled in by Defendants]
7. Calvin Fermin Deposition Part 2 [exact title to be filled in by Defendants]
8. Calvin Fermin Deposition Part 3[ exact title to be filled in by Defendants]
9. Calvin Fermin Deposition Part 4 [exact title to be filled in by Defendants]
10. Any other video Defendants preemptively removed to be listed as well [exact title(s) to
be filled in by Defendants]
Defendant Hitchcock Cross and Defendant Kuether jointly and severally agree not to post or
repost any of the foregoing videos, or links to the foregoing videos, on any other social media
site, to include but not be limited to LinkedIn, X (formerly Twitter), Facebook, or Instagram.
Further, Defendant Hitchcock Cross and Defendant Kuether jointly and severally agree to
remove videos #1 - #3, or any posts containing links to videos #1 - #3, from and to not repost on
any social media site, to include but not be limited to LinkedIn, X (formerly Twitter), Facebook,
or Instagram.
Non-Disparagement. Defendant Hitchcock Cross and Defendant Kuether jointly and severally
agree to not at any time make, publish, or communicate, either verbally or in writing, in any
public forum or social media site, including but not limited to YouTube, LinkedIn, X (formerly
Twitter), Facebook, or Instagram, any defamatory or disparaging remarks, comments, or
statements concerning Plaintiff Fermin. Nothing in this section shall prohibit the Defendants
from participating in any litigation matter, to include giving testimony or providing responses in
discovery.
NIL. Defendant Hitchcock Cross and Defendant Kuether jointly and severally agree hereafter to
not use Plaintiff Fermin’s name, image, or likeness on any video thumbnail or title of any videos
they post on their Deliberate Indifference WI YouTube channel, including but not limited to
“Kuether vs. MPS” videos, deposition or hearing videos of other MPS administrators,
“Whistleblower of the Week” videos, etc. Nothing in this section otherwise prohibits
Defendant Hitchcock Cross or Defendant Kuether from discussing Plaintiff Fermin or using
Plaintiff Fermin’s name, image, or likeness in any other way, so long as such use does not
violate the non-disparagement clause above.
2 of 3
Plaintiff Fermin’s consideration:
Non-admission of liability. Clause stating that neither Defendant Hitchcock Cross nor
Defendant Kuether are admitting to any liability
Dismissal of civil action. Dismissal with prejudice of 23cv9235 at issue pursuant to settlement
Waiver of claims. Waiver of all claims arising out of the same transaction or occurrence as the
subject matter in 23cv9235, whether asserted or unasserted.
3 of 3
Confidential For Settlement Purposes Only
Countero(er options (redlines) are also not an unconditional o(er of settlement.
Fermin v. Hitchcock Cross and Kuether, 23CV9235, Milwaukee County Circuit Court
Proposed settlement terms. Not an unconditional o(er of settlement.
Option #1:
Compensation. Mr. Hitchcock Cross and Dr. Kuether agree to pay Mr. Calvin Fermin the sum of
two hundred thousand dollars ($200,000).
Video Removal. Mr. Hitchcock Cross and Dr. Kuether jointly and severally agree to remove the
following videos from and to not repost on YouTube, to include the Defendants’ Deliberate
Indi(erence WI YouTube channel:
video where Defendant Hitchcock Cross discusses the hiring of Plainti( Fermin as an ALJ
Superintendent Posley” – video where Defendant Hitchcock Cross discusses Plainti(
Fermin’s filing of a whistleblower complaint against Dr. Posley with Matt Chason and MPS’s
OAE
Superintendent” – republish of #2 where Defendant Hitchcock Cross discusses Plainti(
OAE
4. “Calvin Fermin's Complaint to MPS Superintendent Keith Posley on Marla Bronaugh” – video
where Defendant Hitchcock Cross discusses Plainti( Fermin’s whistleblower complaint
against Marla Bronaugh
against…”[exact title to be filled in by Defendants] – republish of #4 where Defendant
Hitchcock Cross discusses Plainti( Fermin’s whistleblower complaint against Marla
Bronaugh
Defendant Hitchcock Cross and Defendant Kuether jointly and severally agree not to post or repost
any of the foregoing videos, or links to the foregoing videos, on any other social media site, to
include but not be limited to LinkedIn, X (formerly Twitter), Facebook, or Instagram. Further,
Defendant Hitchcock Cross and Defendant Kuether jointly and severally agree to remove videos #1
- #3, or any posts containing links to videos #1 - #3, from and to not repost on any social media site,
to include but not be limited to LinkedIn, X (formerly Twitter), Facebook, or Instagram.
Favorable Video. Mr. Hitchcock Cross and Dr. Kuether jointly and severally agree to record and
publish a video on the Deliberate Indi(erence Channel which (1) commends Mr. Fermin for filing a
whistleblower report before leaving MPS, and (2) states that Fermin is qualified for his current
employment as an Administrative Law Judge.
Still Photographic Images. Mr. Hitchcock Cross and Dr. Kuether jointly and severally agree
hereafter to not use Plainti( Fermin’s photographic image on any video thumbnail they post on their
Deliberate Indi(erence WI YouTube channel, including but not limited to “Kuether vs. MPS” videos,
deposition or hearing videos of other MPS administrators, “Whistleblower of the Week” videos, etc.
Nothing in this section otherwise prohibits Defendant Hitchcock Cross or Defendant Kuether from
discussing Plainti( Fermin or using Plainti( Fermin’s name, image, or likeness in any other way, so
long as such use does not violate the confidentiality clause below.
Confidentiality. Each party agrees not to discuss this lawsuit or disclose the terms of this
agreement in any manner, including but not limited to verbal and written communications, text
messages, social media, social networking, or any other form of discussion or disclosure.
Waiver of Claims. The parties agree to waive all claims arising out of the same transaction or
occurrence as the subject matter in Milwaukee County Case No. 23cv9235, whether asserted or
unasserted. Dr. Kuether further agrees that she will not amend the complaint in her currently-
pending federal lawsuit1 against Milwaukee Public Schools and several individual defendants to
name Mr. Fermin as an additional individual defendant.
Non-Admission of Liability. Neither the settlement discussions nor negotiations relative to the
considerations set forth in this agreement nor the execution of this agreement shall in any way be
construed to be an admission of liability or wrongdoing, an admission of the existence of any facts
upon which liability or wrongdoing could be based, or a waiver of any defense to any such liability or
wrongdoing by any party to this agreement.
Dismissal of Civil Action. All parties agree and shall execute the requisite documents to dismiss
all claims and counterclaims in Milwaukee County Case No. 23cv9235 with prejudice after
payment of the Compensation amount listed above. The Court may enter an order dismissing with
prejudice all claims and counterclaims asserted by the parties to this case.
1
Kuether v. Posley, U.S. District Court for the Eastern District of Wisconsin Case No. 23-CV-948.
Option #2:
one hundred fifty thousand dollars ($150,000).
OAE
OAE
Bronaugh
6. Calvin Fermin Deposition Video #1
Still Photographic Images or Name. Mr. Hitchcock Cross and Dr. Kuether jointly and severally Deleted: Favorable Video. Mr. Hitchcock Cross and Dr.
agree hereafter to not use Plainti( Fermin’s name or photographic image on or in any video Kuether jointly and severally agree to record and publish
a video on the Deliberate Indi=erence Channel which (1)
thumbnail, video title, or video description they post on their Deliberate Indi(erence WI YouTube commends Mr. Fermin for filing a whistleblower report
channel, including but not limited to “Kuether vs. MPS” videos, deposition or hearing videos of other before leaving MPS, and (2) states that Fermin is qualified
MPS administrators, “Whistleblower of the Week” videos, etc. Nothing in this section otherwise for his current employment as an Administrative Law
Judge.¶
prohibits Defendant Hitchcock Cross or Defendant Kuether from discussing Plainti( Fermin or
using Plainti( Fermin’s name, image, or likeness in any other way, so long as such use does not
violate the confidentiality clause below.
2
Option #3:
one hundred thousand dollars ($100,000).
OAE
OAE
Bronaugh
Deleted: Favorable Video. Mr. Hitchcock Cross and Dr.
Kuether jointly and severally agree to record and publish
Still Photographic Images and Name. Mr. Hitchcock Cross and Dr. Kuether jointly and severally a video on the Deliberate Indi=erence Channel which (1)
agree hereafter to not use Plainti( Fermin’s name or photographic image on or in any video commends Mr. Fermin for filing a whistleblower report
before leaving MPS, and (2) states that Fermin is qualified
thumbnail, video title, or video description they post on their Deliberate Indi(erence WI YouTube
for his current employment as an Administrative Law
channel, including but not limited to “Kuether vs. MPS” videos, deposition or hearing videos of other Judge.
MPS administrators, “Whistleblower of the Week” videos, etc. Nothing in this section otherwise
prohibits Defendant Hitchcock Cross or Defendant Kuether from discussing Plainti( Fermin or
using Plainti( Fermin’s name, image, or likeness in any other way, so long as such use does not
violate the non-disparagement or confidentiality clauses below.
Non-Disparagement. Defendant Hitchcock Cross and Defendant Kuether jointly and severally
agree to not at any time make, publish, or communicate, either verbally or in writing, in any public
forum or social media site, including but not limited to YouTube, LinkedIn, X (formerly Twitter),
Facebook, or Instagram, any defamatory or disparaging remarks, comments, or statements
concerning Plainti( Fermin. Nothing in this section shall prohibit the Defendants from participating
in any litigation matter, to include giving testimony or providing responses in discovery.
3
Settlement Offer for 23CV9235 - 09.19.2024
This is not an unconditional o.er of settlement.
Proposed settlement terms for a written settlement agreement by and between Calvin Fermin
(“Fermin”), Benjamin Hitchcock Cross (“Hitchcock Cross”), Dr. Deborah Kuether (“Kuether”), and
Deliberate Indi.erence Wisconsin, LLC (“DIW”)
Compensation. Hitchcock Cross agrees to pay Fermin the sum of ten thousand dollars ($10,000).
Video Removal. Hitchcock Cross, Kuether, and DIW jointly and severally agree to remove the
following videos from and to not repost on YouTube:
video where Defendant Hitchcock Cross discusses the hiring of Plainti. Fermin as an ALJ
Superintendent Posley” – video where Defendant Hitchcock Cross discusses Plainti.
OAE
Superintendent” – republish of #2 where Defendant Hitchcock Cross discusses Plainti.
OAE
where Defendant Hitchcock Cross discusses Plainti. Fermin’s whistleblower complaint
Hitchcock Cross discusses Plainti. Fermin’s whistleblower complaint against Marla
Bronaugh
Hitchcock Cross, Kuether, and DIW jointly and severally agree not to post or repost any of the
foregoing videos, or links to the foregoing videos, on any other social media site, to include but not
be limited to LinkedIn, X (formerly Twitter), Facebook, or Instagram.
Confidentiality. Each party agrees not to discuss or disclose the terms of this agreement in any
manner, including but not limited to verbal and written communications, text messages, social
media, social networking, or any other form of discussion or disclosure.
Waiver of Claims. The parties agree to waive all claims and counterclaims arising out of the same
transaction or occurrence as the subject matter in Milwaukee County Case No. 23cv9235, whether
asserted or unasserted.
payment of the Compensation amount listed above.
Settlement Offer for 23CV9235 - 07.24.2024
Compensation. Hitchcock Cross and Kuether agree to pay Fermin the sum of one hundred
thousand dollars ($100,000).
OAE
OAE
Bronaugh
Still Photographic Images and Name. Hitchcock Cross, Kuether, and DIW jointly and severally
agree hereafter to not use Fermin’s name or photographic image on or in any video thumbnail, video
title, or video description they post on their Deliberate Indi.erence WI YouTube channel, including
but not limited to “Kuether vs. MPS” videos, deposition or hearing videos of other MPS
administrators, “Whistleblower of the Week” videos, etc.
Non-Disparagement. Hitchcock Cross and Kuether jointly and severally agree not to make,
publish, or communicate, either verbally or in writing, on any social media site, including but not
limited to YouTube, LinkedIn, X (formerly Twitter), Facebook, or Instagram, any defamatory or
disparaging remarks, comments, or statements concerning Fermin. Nothing in this section shall
prohibit Hitchcock Cross or Kuether from participating in any litigation matter, to include giving
testimony or providing responses in discovery.
payment of the Compensation amount listed above. Kuether further agrees to dismiss with
prejudice her claims against Fermin in her federal lawsuit, Kuether v. Posley, U.S. District Court for
the Eastern District of Wisconsin Case No. 23-CV-948.
Settlement Offer for 23CV9235-10.02.2024
Compensation. None.
OAE
OAE
Bronaugh
Liquidated Damages. The parties agree that a breach of the Video Removal provision would result
in damages to Fermin that would be uncertain and di.icult (if not impossible) to accurately
estimate because of the parties’ inability to predict harm to reputation or business. However, the
parties have reasonably estimated potential damages in the amount of fifty thousand dollars
($50,000) (the “Liquidated Damages Amount”). Accordingly, if Hitchcock Cross, Kuether, or DIW
breach the Video Removal provision, the breaching party shall be liable to and pay Fermin the
Liquidated Damages Amount. If there is more than one breaching party, they shall be jointly and
severally liable to Fermin for the Liquidated Damages Amount.
Confidentiality. Each party agrees not to discuss or disclose the terms of this agreement in any
manner, including but not limited to verbal and written communications, text messages, social
media, social networking, or any other form of discussion or disclosure.
payment of the Compensation amount listed above.
Case 2023CV009235 Document 23 Filed 02-09-2024 Page 1 of 5
FILED
02-09-2024
Anna Maria Hodges
Clerk of Circuit Court
2023CV009235
STATE OF WISCONSIN CIRCUIT COURT MILWAUKEE COUNTY
Calvin V. Fermin,
Plaintiff,
Case No. 2023CV009235
v.
Benjamin C. Hitchcock Cross
and
Deborah N. Kuether,
Defendants.
NOTICE OF MOTION AND MOTION TO

STRIKE DEFENDANT KUETHER’S ANSWER, AFFIRMATIVE DEFENSES, AND
COUNTERCLAIMS AND TO ENTER DEFAULT JUDGMENT AGAINST
BOTH DEFENDANT KUETHER AND DEFENDANT HITCHCOCK CROSS
TO:
Attorney Ben Hitchcock Cross Defendant Benjamin C. Hitchcock Cross

For Defendant Deborah N. Kuether 6220 N Santa Monica Blvd
Cross Law Firm, S.C. Whitefish Bay, WI 53217
845 North 11th Street
Milwaukee, WI 53233
PLEASE TAKE NOTICE that Plaintiff Calvin V. Fermin (“Plaintiff Fermin”) herein
moves the Court pursuant to Wis. Stat. § 806.02(1) & (2) to strike Defendant Kuether’s
Answer, Affirmative Defenses, and Counterclaims and to enter default judgment against
both Defendant Deborah N. Kuether (“Defendant Kuether”) and Defendant Benjamin C.
Hitchcock Cross (“Defendant Hitchcock Cross”).
The motion will be heard on Monday, March 4, 2024, at 1:30 p.m. at the
Milwaukee County Courthouse, Room 412, 901 North 9th Street, Milwaukee,
Wisconsin 53233, before the Honorable Glenn H. Yamahiro, Branch 34, or as soon as the
matter may be heard.
For his motion, Plaintiff Fermin hereby states that Defendant Kuether filed and
served an unsigned Answer, Affirmative Defenses, and Counterclaims and, therefore, said
Answer, Affirmative Defenses, and Counterclaims should be stricken from the record
pursuant to Wis. Stat. § 802.05(1).
Additionally, Plaintiff Fermin has filed an Affidavit of Defendant Kuether’s Default
for Failure to Join Issue. Defendant Kuether’s Answer, Affirmative Defenses, and
Counterclaims was filed and served late, and Defendant Kuether has not moved this Court
for an enlargement of the time to serve an answer. Therefore, Defendant Kuether’s
Answer, Affirmative Defenses, and Counterclaims should be stricken from the record and
default judgment should be entered against Defendant Kuether pursuant to Wis. Stat. §
806.02(1).
Likewise, Plaintiff Fermin has filed an Affidavit of Defendant Hitchcock Cross’s
Default for Failure to Join Issue. Because Defendant Hitchcock Cross has not filed an
answer or moved this Court for an enlargement of the time to serve an answer, Defendant
Hitchcock Cross’s time to join issue has expired and, therefore, default judgment should be
entered against Defendant Hitchcock Cross pursuant to Wis. Stat. § 806.02(1).
2
Pursuant to Wis. Stat. § 806.02(2), Plaintiff Fermin hereby states that his demand
for judgment is for a sum total of $750,000, or such amount that the Court deems just. This
demand includes compensatory damages (general and special damages) of $250,000, and
punitive damages of $500,000, or such amount that the Court deems just.
Dated this 9th day of February, 2024.
By: Electronically Signed by Calvin V. Fermin

Calvin V. Fermin, SBN 1101524
W232N7311 Fontaine Cir
Sussex, WI 53089
Phone: (773) 803-9179
E-mail: [email protected]
Plaintiff
3
CERTIFICATE OF MAILING
I, Calvin V. Fermin, am the plaintiff in this matter. I hereby certify that I have caused
Plaintiff’s Notice of Motion and Motion to Strike Defendant Kuether’s Answer, Affirmative
Defenses, and Counterclaims and to Enter Default Judgment Against Both Defendant
Kuether and Defendant Hitchcock Cross, along with both the Affidavit of Defendant
Hitchcock Cross’s Default for Failure to Join Issue and the Affidavit of Defendant Kuether’s
Default for Failure to Join Issue, to be placed in an envelope and to be mailed on February 9,
2024, with proper postage by U.S. First Class Mail to Defendant Benjamin C. Hitchcock
Cross at the following address:
Benjamin C. Hitchcock Cross

6220 N Santa Monica Blvd
Whitefish Bay, WI 53217
Further, I hereby certify that Attorney Ben Hitchcock Cross has filed a Notice of
Appearance on behalf of Defendant Deborah N. Kuether, and that Attorney Hitchcock Cross
has agreed to accept electronic service of pleadings through the Court’s electronic filing
system. I further certify that I have caused both the Affidavit of Defendant Hitchcock
Cross’s Default for Failure to Join Issue and the Affidavit of Defendant Kuether’s Default for
Failure to Join Issue to be electronically filed through the Court’s electronic filing system on
February 9, 2024, and that Attorney Hitchcock Cross shall therefore be electronically
served with a copy of the same on behalf of Defendant Deborah N. Kuether. I further certify
that I will cause Plaintiff’s Notice of Motion and Motion to Strike Defendant Kuether’s
Answer, Affirmative Defenses, and Counterclaims and to Enter Default Judgment Against
4
Both Defendant Kuether and Defendant Hitchcock Cross to be electronically filed through
the Court’s electronic filing system on February 9, 2024, and that Attorney Hitchcock Cross
shall therefore be electronically served with a copy of the same on behalf of Defendant
Deborah N. Kuether.
Dated this 9th day of February, 2024.
By: Electronically Signed by Calvin V. Fermin

Calvin V. Fermin, SBN 1101524
W232N7311 Fontaine Cir
Sussex, WI 53089
Phone: (773) 803-9179
E-mail: [email protected]
Plaintiff

WI ALJ Calvin Fermin Settlement Proposals: Fermin v. Benjamin C. Hitchcock Cross and Deborah N. Kuether

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CONFIDENTIAL – FOR SETTLEMENT PURPOSES ONLY

Proposed Items for Settlement

Defendant Hitchcock Cross’s and Defendant Kuether’s consideration:

Compensation. Defendants to pay Plaintiff Fermin the sum of $25,000.

Countero(er options (redlines) are also not an unconditional o(er of settlement.

Proposed settlement terms. Not an unconditional o(er of settlement.

Conﬁdential For Settlement Purposes Only

This is not an unconditional o.er of settlement.

Conﬁdential For Settlement Purposes Only

This is not an unconditional o.er of settlement.

Conﬁdential For Settlement Purposes Only

This is not an unconditional o.er of settlement.

STATE OF WISCONSIN CIRCUIT COURT MILWAUKEE COUNTY

Benjamin C. Hitchcock Cross

NOTICE OF MOTION AND MOTION TO

Attorney Ben Hitchcock Cross Defendant Benjamin C. Hitchcock Cross

both Defendant Deborah N. Kuether (“Defendant Kuether”) and Defendant Benjamin C.

Hitchcock Cross (“Defendant Hitchcock Cross”).

matter may be heard.

pursuant to Wis. Stat. § 802.05(1).

Additionally, Plaintiff Fermin has filed an Affidavit of Defendant Kuether’s Default

for an enlargement of the time to serve an answer. Therefore, Defendant Kuether’s

Likewise, Plaintiff Fermin has filed an Affidavit of Defendant Hitchcock Cross’s

entered against Defendant Hitchcock Cross pursuant to Wis. Stat. § 806.02(1).

Dated this 9th day of February, 2024.

By: Electronically Signed by Calvin V. Fermin

Cross at the following address:

Benjamin C. Hitchcock Cross

Dated this 9th day of February, 2024.

By: Electronically Signed by Calvin V. Fermin

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