STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

RUTH WEISS, Complainant

NICOLET INSTRUMENT, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 8300652, EEOC Case No. 055832657

Complainant's claim of age discrimination was scheduled for hearing on the merits on April 3, 1984, following an Initial Determination of probable cause and an unsuccessful attempt at conciliation. On March 21, 1984, Complainant filed a request with the Department for a withdrawal of her complaint and dismissal without prejudice. In a letter dated April 3, 1984, Respondent objected to Complainant's request for a withdrawal of her complaint without prejudice. Respondent asserted, in part, that Complainant has offered no basis for requesting a dismissal without prejudice.

In a letter to the Department dated April 4, 1984, Complainant asserted that her request for dismissal of her complaint without prejudice was, among other reasons, because Complainant had only one other opportunity to choose whether her complaint would be heard under federal or state employment discrimination statutes, citing Kramer v. Chemical Construction Corp., 456 U.S. 461 (May 1982); that Complainant chooses to exercise her due process rights to a hearing in federal court where she feels she has a more effective remedy; and because the Respondent is in no way prejudiced by Complainant's request.

The Department made no ruling on Complainant's request prior to the April 3, 1984 scheduled hearing. Neither Respondent nor Complainant appeared for the April 3 hearing. (Respondent has asserted that although Complainant's case was noticed for hearing on April 3, the parties understood that Complainant's complaint of age discrimination would be heard on April 9, 1984, the same time a hearing was scheduled in the matter of Rosella Elmer v. Nicolet Instrument, ERD Case # 8300653. Respondent, but not Complainant, appeared for the April 9 hearing.)

On April 17, 1984, an examiner of the Department issued an order dismissing Complainant's complaint without prejudice. Respondent filed a petition for reconsideration (with memorandum brief in support thereof) by the examiner, or in the alternative, a petition for review by the commission. In a letter dated May 4, the examiner advised the parties that the statutes provided no authority for him to reconsider a decision and that the matter was being treated as a petition for review.

Respondent asserts in a memorandum brief that: (1) at the scheduled hearing on April 9, attended by seven employes of Respondent, Examiner Doll advised Respondent's representatives and their attorney that Complainant's complaint would be dismissed with prejudice; (2) that the examiner's April 17, 1984 order of dismissal was contrary to his "previous decision" on April 9; (3) that maybe the examiner failed to remember the decision he reached on April 9; (4) that Complainant stated no legally justifiable basis for her request that she be permitted to withdraw the complaint without prejudice; (5) that under the Administrative Code "A dismissal is to be with prejudice unless grounds for dismissal without prejudice exist of record;" (7) that although Complainant's attorney has argued that a dismissal with prejudice would prevent a federal court proceeding under Kremer, that position is completely contrary to the holding of Kremer; and (8) neither the Complainant nor her attorney appeared on April 9, even though the Department had not postponed the hearing; Complainant's request for dismissal of the action without prejudice should be denied in view of the substantial proceedings already under way and in view of Complainant's disregard of the scheduled hearing.

Assuming, arguendo that Examiner Doll did lead the Respondent to believe Complainant's complaint would be dismissed with  prejudice, it appears that his order of dismissal without prejudice was proper and results in no prejudicial harm to Respondent. Sec. 14(a) of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 633(a), provides that the commencement of an action under ADEA shall supersede any state action. Supersede as used in § 14(a) means to " `stay' and not to `dismiss' " National Cash Register v. Riner, 22 FEP Cases 840 (Dec. 1979). While it is true that the Complainant herein had not actually commenced an action under the ADEA, the purpose of the Complainant's request for withdrawal of her complaint without prejudice was to stay her state action and proceed in federal court. Had the Complainant actually commenced an action under the ADEA without any prior notice to the Department the result would have been the same - suspension of the state proceedings.

Accordingly, the Commission issues the following:

ORDER

That the examiner's dismissal of the Complainant's complaint without prejudice be affirmed.

Dated and mailed at Madison, Wisconsin June 18, 1984

/s/ David A. Pearson, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ Hugh C. Henderson, Commissioner

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