Wis.LIRC ER Decision: Crawford, Bryce - January 16, 2004 - Procedure - withdrawal of complaints - claimant withdrew to take disability claim to federal court - later sought to have case reinstated, having learned of different definitions of "disability" under federal law - no provision in rules for reinstating complaint after a signed withdrawal has been submitted - although there have been circumstances in which it has been concluded that no withdrawal was intended and thus no withdrawal was submitted, no such circumstances apply here

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

BRYCE L CRAWFORD, Complainant

KRAFT FOODS, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR200204028, EEOC Case No. 26GA300084

An administrative law judge for the Equal Rights Division of the Department of Workforce Development issued an Order of Dismissal in the above-captioned matter. The complainant has sought commission review of that Order.

Based upon a review of the file, the commission issues the following:

ORDER

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

Dated and mailed January 16, 2004
crawfbr . rsd : 164 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

On September 2, 2003, the complainant notified the Equal Rights Division (ERD) that he wished to dismiss his case before it in order to proceed before the United States Equal Employment Opportunities Commission (EEOC). On the same date the complainant submitted a signed copy of a form entitled "Withdrawal of DWD/ERD Claims Without Prejudice To Right(s) To Proceed In Other Forums." The form which the complainant signed indicated that the decision to withdraw was made freely, willingly, and voluntarily. On September 10, 2003, an administrative law judge issued an order dismissing the complaint based upon the complainant's written request to withdraw his complaint. The complainant now seeks to have that order set aside and his case reinstated. The complainant explains that he did not understand the EEOC would apply a different definition for determining whether he was disabled and would not have withdrawn his complaint had he known this.

The administrative rules provide that, upon the filing of a request for withdrawal, the department shall dismiss the complaint. Wis. Admin. Code § DWD 219.02(7). The rules do not contain any provision for reinstating a complaint after a signed withdrawal has been submitted and, although there have been circumstances in which the commission has concluded that no withdrawal was intended and has treated the withdrawal as not having been submitted, no such circumstances apply in this case. The complainant submitted the withdrawal form willingly and voluntarily. He understood that the effect of doing so would be the dismissal of his case before the Equal Rights Division. While it is unfortunate that the complainant made incorrect 'assumptions about federal law when choosing the proper forum for his complaint, this is not a situation which would warrant setting aside the order of dismissal. Accordingly, the administrative law judge's order of dismissal is affirmed.

cc: Attorney Burton Reiter

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