Wis.LIRC ER Decision: Silva - November 12, 1993 - Voluntary dismissal

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

FRANCISCO SILVA, Complainant

CITY OF MADISON, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 9000200

An administrative law judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued an Order of Dismissal in the above-captioned matter on November 3, 1992. Complainant filed a timely petition for review and both parties submitted written arguments to the commission.

Based on a review of the file in its entirety, the Labor and Industry Review Commission issues the following:

ORDER

The Order of Dismissal (copy attached) is affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed at Madison, Wisconsin November 12, 1993

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

MEMORANDUM OPINION

The issues in this case are: 1. the administrative law judge's dismissal with prejudice of the complainant's request for hearing, upon the complainant's failure to appear at the hearing; and 2. the administrative law judge's denial of the complainant's motion to withdraw (without prejudice) his request for hearing. For the following reasons, the commission has concluded that both rulings by the administrative law judge were correct.

Section Ind 88.16 (5) of the Wisconsin Administrative Code provides that the administrative law judge shall dismiss the complaint if the complainant fails to appear at the hearing. The complainant correctly notes that this provision does not specifically state that such a dismissal must be with prejudice. It likewise does not state that such a dismissal should be without prejudice, though; this leads the commission to conclude that the administrative law judge's decision to dismiss with or without prejudice upon a failure to appear is a matter of discretion.

The underlying issue in this case is the administrative law judge's denial of complainant's motion to withdraw without prejudice. The complainant's motion was based upon sec. Ind 88.04(1) of the administrative code, which provides:

(1) WITHDRAWAL. A complaint may be withdrawn at any time. A request for withdrawal shall be written and shall be signed by the complainant or by the complainant's duly authorized representative or attorney of record. Upon the filing of a request for withdrawal, the department shall dismiss the complaint by written order. Such dismissal shall be with prejudice unless otherwise expressly stated.

The complainant argues that this provision leaves the administrative law judge no discretion to require a withdrawal with prejudice, that a complainant may unilaterally insist upon withdrawal without prejudice.

In the commission's opinion, the complainant's interpretation goes too far. The administrative provision by its express terms nowhere gives the complainant the right to require that the withdrawal be without prejudice. Rather, the language concerning dismissal with prejudice immediately follows the requirement that the department dismiss the complaint, upon the filing of a request for withdrawal. This indicates to the commission that any discretion to dismiss a complaint without prejudice is that of the department and not that of the withdrawing complainant. Further, practically the provision serves simply as a guideline for interpreting the nature of a dismissal which has not been stated to be either with or without prejudice.

The final issue, then, is whether it was an abuse of discretion for the administrative law judge to deny the complainant's motion for withdrawal without prejudice. The commission believes that it was not, and so has simply affirmed the administrative law judge's dismissal of the complainant's request for hearing (on the ground of the complainant's failure to appear). The commission first notes that it does not perceive the complainant or the complainant's attorney to have been "at fault" for the length of the proceedings. The fact remains, however, that the proceedings took a substantial length of time and involved a significant amount of pre-hearing discovery by both parties. Second, while the respondent may have resisted to some extent the complainant's discovery efforts, yet that resistance was always overcome become by the complainant's timely petition to the administrative law judge for redress. Third, despite Administrative Law Judge Doll's adoption of the complainant's position with regard to the disqualification of the complainant's attorney, the commission's review of the evidence connected with that motion indicates to the commission that it was less frivolous than the complainant believes. Fourth, the complainant's motion to withdraw came only two weeks before the hearing was scheduled to begin, and approximately three months after the administrative law judge had specifically indicated to the parties that the hearing would proceed as scheduled on November 2, 1992, that there would be no further delay in the hearing of the matter. Finally, the commission precedent the complainant cites in support of his position stands only for the proposition that, under certain circumstances, it is not an abuse of discretion for an administrative law judge to dismiss a complaint without prejudice. See Weiss v. Nicolet Instrument (LIRC, 6/18/84). One basis for the holding in that case was an ADEA provision barring the Equal Rights Division from proceeding in the matter once the complainant had commenced a federal age discrimination action. There is no such counterpart in the Civil Rights laws the complainant was proceeding under in his state court action. For all these reasons, the commission does not believe the administrative law judge abused his discretion in denying the complainant's motion for withdrawal without prejudice.

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