CAROLYN WUEST, Complainant

MOTEL 6, Respondent A

RON HECK, Respondent B

ERD Case No. 8902014, EEOC Case No. 26G891447

An Administrative Law Judge (ALJ) for the Equal Rights Division issued an Order on September 13, 1991 which purported to dismiss the complaint in this matter based on the Complainant's request for withdrawal. Respondents filed a timely petition for Commission review of this Order.

Based on a review of the record, the Commission has concluded that the ALJ was without authority to issue the Order of Dismissal of September 13, 1991, and the Commission therefore makes the following:


That the Order of Dismissal issued on September 13, 1991, be set aside.

Dated and mailed November 5, 1991

/s/ Pamela I. Anderson, Commissioner

/s/ Richard T. Kreul, Commissioner


Following a hearing, ALJ Ruchadina Waddell issued a decision in this matter on August 21, 1991 in which she concluded that Respondents did not discriminate against the Complainant because of race. Her decision dismissed the complaint on that basis. The last day on which a timely petition for Commission review of that decision could be filed was September 11, 1991. On September 10, 1991, the Complainant filed a written request to withdraw her complaint. On September 13, 1991, another Administrative Law Judge, apparently acting in the case because Judge Waddell was no longer employed with the Division, issued an order dismissing the complaint with prejudice based on the Complainant's request for withdrawal. It is that order which the Respondents' petition for review has placed before the Commission.

Respondents argue that an Administrative Law Judge has no authority to dismiss a complaint on the basis of withdrawal, once a decision on the merits has been issued.  (1)

The Commission does not agree with this argument. Foster v. Crest Building Maintenance Co. (LIRC, January 30, 1984), which held that an administrative law judge has no authority to alter his or her decision once the period for filing a petition for review from that decision has expired, implicitly holds that, before the deadline for the filing of a petition for review has passed, and if no petition has yet been filed, an ALJ does have the discretion to alter his or her decision. This, when considered in combination with the fact that the Equal Rights Division's administrative rules provide, at Wisconsin Administrative Code Chapter Ind 88.04(1), that a complaint may be withdrawn "at any time," persuades the Commission that an ALJ does have the discretionary authority to set aside a decision on the merits and issue a dismissal based on withdrawal within the 21-day period following the issuance of the original decision on the merits if no petition for review has been filed.

However, it is not adequate merely that the request for withdrawal be filed within the 21-day period and prior to the filing of any petition for review. The ALJ must also act during that period. Here, the second ALJ did not act in time. Her order, purporting to dismiss the complaint on the basis of the withdrawal, was issued more than 21 days after the original decision was issued. Because no petition for review was filed on or before September 11, 1991, the original ALJ's decision became final at that point, and the Equal Rights Division lost any authority to alter it.

The Commission has therefore set aside the ALJ's order dated September 13, 1991 which purported to dismiss the complaint on the basis of the request for withdrawal. The decision of the first ALJ thus represents the decision on the basis of which this case is concluded.


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(1)( Back ) Complainant explained her desire to withdraw by indicating that she was pursuing the matter in federal court. It is apparent that Respondents would prefer to have the matter stand as having been resolved by a decision on the merits following hearing, rather than by a dismissal based on a request for withdrawal, since in the former case they could argue in federal court that the decision on the merits following hearing was res judicata.


uploaded 2009/02/03