P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

DONALD KEMP, Complainant

RAMADA HOTEL, Respondent

ERD Case No. CR200204311, EEOC Case No. 26GA300069

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued an Order dismissing the complaint in this matter. A petition for review was filed.

The commission has considered the complainant's petition, and it has reviewed the documents submitted to the ALJ. Based on its review, the commission issues the following:


The Order issued by the administrative law judge (copy attached) is affirmed.

Dated and mailed February 6, 2004
kempdo . rsd : 164 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


In his petition for commission review the complainant argues that the administrative law judge did not have jurisdiction to dismiss his claim "with prejudice," particularly because he volunteered to dismiss without a review on the merits. The complainant states that, although it is irrelevant to pending judicial litigation, he nonetheless wants to appeal the administrative law judge's decision and have it changed to a dismissal without prejudice.

However, the administrative law judge did have jurisdiction to dismiss the complaint with prejudice, and his decision to do so was appropriate. The administrative rules specifically provide that, upon the filing of a request for withdrawal, the department shall dismiss the complaint by written order, and that such dismissal shall be with prejudice unless otherwise expressly stated in the order. Wis. Admin. Code § DWD 218.03(7). The complainant did not ask the administrative law judge to issue a dismissal without prejudice, and the administrative law judge had no reason to do so. While the complainant now indicates that he wants the dismissal order to be modified so that his complaint is dismissed without prejudice, he has not presented any compelling reason for this request. The complainant acknowledges that a dismissal with prejudice does not affect any pending litigation, and the commission sees no reason to believe that the complainant's rights to proceed in any other forum could be adversely affected by the wording of the dismissal order. While a dismissal with prejudice precludes a party from refiling the same claim with the Equal Rights Division -- a step which the complainant is in any event precluded from taking due to the statute of limitations -- the effect of such a dismissal on the complainant's rights to go forward in any other forum is a matter for the other forum to decide, and neither the administrative law judge nor the commission has the authority to either grant or deny jurisdiction to any other forum. The commission, therefore, denies the complainant's request for modification of the administrative law judge's order, and the Order of Dismissal, with prejudice, is affirmed

cc: Attorney Robert M. Mihelich

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uploaded 2005/06/22