LARRY G. BURTON, Complainant

UNITED GOVERNMENT SERVICES LLC, Respondent

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter on July 2, 2007. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties. Based on its review, the commission makes the following:

The administrative law judge's Order of July 2, 2007 is set aside and this matter is remanded for hearing on the question of whether the complaint was withdrawn or settled and, provisionally, on the question of probable cause.

Dated and mailed December 21, 2007
burtonl . rpr : 110 :

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

NOTE: The commission is again setting aside the ALJ's decision and remanding this matter for further proceedings, because its original Order to the same effect was not complied with.

This case presented the issue of whether it was appropriate to dismiss the complaint on the basis that it had been settled or withdrawn either at or after the proceedings held before the ALJ on May 19, 2005. When the case came before the commission, the parties' arguments on that issue reflected conflicting assertions about exactly what had happened. On November 18, 2005 the commission issued an Order which set aside the ALJ's Order of Dismissal. The commission's Order specifically stated:

[T]his matter is remanded for hearing on the question of whether the complaint was withdrawn or settled and, provisionally, on the question of probable cause.

In its Memorandum Opinion accompanying this Order, the commission explained the reason for this remand mandate by stating:

The instant case presents the question of whether, in view of the interpretation the commission has followed as described above, the dismissal of the complaint in this case should be upheld. The difficulty in this case, is that this question is too dependent on factual issues which are apparently in dispute.

The commission then specifically described what was required by the remand mandate, by stating the following:

For the foregoing reasons the commission concludes that the order dismissing the complaint must be set aside and this matter remanded for further proceedings. Initially, the administrative law judge should allow the parties to be heard on the factual issues relevant to the question of whether the complaint was withdrawn or settled. If the parties can agree on a statement of stipulated facts relative to this question, the administrative law judge may decide the matter on that basis; if they cannot, then a hearing should be held. If after the facts are thus developed the administrative law judge determines that given those facts the complaint should be dismissed, an order to that effect should be issued; if the administrative law judge decides that the dismissal of the complaint is not appropriate, then the matter should proceed to hearing on the question of probable cause as originally scheduled.

However, after receiving the case back from the commission, the ALJ took no steps towards either soliciting a statement of stipulated facts from the parties, or scheduling a hearing at which they could be heard on the factual issues relevant to the question of whether the complaint was withdrawn or settled. Instead, she began actively and persistently trying to persuade the parties to settle the entire case. At her urging, a number of settlement conferences were held with another ALJ serving as a mediator. These attempts at settlement, which extended through much of 2006, ultimately proved fruitless, and in September, 2006 the mediator abandoned his efforts and returned the matter to the ALJ. Again, the ALJ took no steps towards either soliciting a statement of stipulated facts from the parties, or scheduling a hearing. Eventually, in February, 2007, the ALJ informed the parties that she had "reviewed the file and believe[d] that [she had] sufficient information to make a decision regarding the issue of whether there was a settlement of this matter and whether the complainant withdrew his complaint." The ALJ stated that she was "willing to allow the parties to supplement the record with additional documents, affidavits or argument concerning these issues if the parties chose to do so". All that was ever filed in response to this was 5 pages of written argument from the respondent. On July 2, 2007, the ALJ issued her "Decision On Remand From LIRC" in which she again dismissed the complaint. As described above, no statement of stipulated facts had ever been filed, and no hearing had ever been held.

The ALJ explained in her decision that she did not believe the essential facts of the matter were in dispute. Be that as it may, it remains the case that the commission did believe that the essential facts of the matter were in dispute. It was for that reason that it set aside the ALJ's previous decision and remanded the matter with clear instructions that either a statement of stipulated fact be obtained or a hearing be held.

The commission's mandate was not complied with. Therefore, the commission will again set aside the decision of the ALJ and remand the matter, with the same mandate. As the commission previously stated: the administrative law judge should allow the parties to be heard on the factual issues relevant to the question of whether the complaint was withdrawn or settled. If the parties can agree on a statement of stipulated facts relative to this question, the administrative law judge may decide the matter on that basis; if they cannot, then a hearing should be held. If after the facts are thus developed the administrative law judge determines that given those facts the complaint should be dismissed, an order to that effect should be issued; if the administrative law judge decides that the dismissal of the complaint is not appropriate, then the matter should proceed to hearing on the question of probable cause as originally scheduled.

cc: Eric H. Rumbaugh, Attorney for Respondent

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