RONNIE LUCKETT, Complainant

CITY OF MILWAUKEE, Respondent

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

The commission has reviewed the petition. Based on this review, the commission affirms the Order of Dismissal of the ALJ.

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

Dated and mailed August 30, 2005
luckero . rsd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner

Hearing on the issue of probable cause was scheduled to be conducted before ALJ DeLaO on August 3, 2005.

In a letter received by ERD on June 7, 2005, the complainant requested that future communications to him be directed through Attorney Sandy Radtke.

On June 7, 2005, ALJ DeLaO directed a letter to Attorney Radtke requesting that she clarify the status of her representation of the complainant. By letter dated June 9, 2005, Attorney Radtke responded that she had not yet been formally retained by the complainant but intended, if it met with ALJ DeLaO's approval, to attend his deposition. ALJ DeLaO responded on June 16, 2005, that she did not intend to prevent Attorney Radtke from attending the complainant's deposition, but, until she was notified that the complainant had retained Attorney Radtke, she would continue to correspond directly with the complainant.

In a letter dated June 16, 2005, counsel for respondent thanked Attorney Radtke for her voice mail message that morning to the effect that the complainant would be withdrawing his charge so there was no longer any need to schedule his deposition.

By letter dated June 17, 2005, and received by ERD on June 21, 2005, Attorney Radtke stated, "Enclosed please find Complainant's Request to Withdraw Complaint." Enclosed with this letter was ERD's standard "Request to Withdraw Complaint" form which bore the complainant's signature and a date of signature of June 17, 2005, and which stated as follows, as relevant here:

Complainant Ronnie Luckett v. Respondent City of Milwaukee

I wish to withdraw my discrimination complaint against the above-named respondent filed with:

[X] the Equal Rights Division of the Department of Workforce Development, Case #200403562...

[X] the U.S. Equal Employment Opportunity Commission, Case #26GA402000...

I make this request for the following reason:

Complainant has chosen to withdraw his complaint for personal reasons. He still firmly believes the Respondent acted illegally in terminating him and that they are racist and retaliatory.

As a result, on June 23, 2005, ALJ DeLaO issued an order dismissing the complainant's charge with prejudice.

In a letter to ALJ DeLaO dated June 27, 2005, the complainant stated as follows, as relevant here:

I [would like] to make a motion to withdraw my request for dismissal of a case [that] was scheduled August 3rd. The reason I requested the dismissal was if I won my case the state could get my job and back pay. The union informed me that they were in the process of doing those two things anyway, so it appeared there [was] no reason to waste your valuable time.

As it turns out the only thing the city is willing to do is hire me back without back pay and give me a job driving a garbage truck....

In a letter to the parties dated June 30, 2005, the ALJ denied the complainant's request, explaining that the complainant should have "ensured that the position and payment being offered by the Respondent was satisfactory to him and guaranteed to him before the Complainant submitted his request to withdraw his complaint," and that "the Complainant cannot withdraw the dismissal of his complaint because he is not satisfied with the offer the Respondent is making."

The complainant filed a timely appeal of ALJ DeLaO's dismissal order.

Wisconsin Administrative Code § DWD 218.03(7) provides as follows:

A complaint may be withdrawn at any time. A request for withdrawal shall be in writing and shall be signed by the complainant or by the complainant's duly authorized representative. 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 in the order.

Consistent with this rule, ALJ DeLaO was required, once she received the signed request for withdrawal, to dismiss the complainant's charge with prejudice.

Although there is no provision for reinstating a charge after a signed withdrawal has been submitted, the commission has done so where it is apparent that no withdrawal was intended. See, Crawford v. Kraft Foods, ERD Case No. CR200204028 (LIRC Jan. 16, 2004).

There is no contention here, however, that the complainant did not actually execute the withdrawal form, or that the parties had agreed it would not be submitted to ERD unless and until certain conditions had been satisfied (see, Walsh v. Tom A. Rothe, S.C., ERD Case No. 200000848 (LIRC Nov. 29, 2002)), or that the form was filed inadvertently (see, Hatcher v. Herb Larson, ERD Case No. 9303551 (LIRC Aug. 26, 1994)), or that the complainant was induced to sign the form through duress or deception. Indeed, the complainant was represented by counsel when he executed the form, i.e., even though there had been some question prior to the execution of the form as to the status of Attorney Radtke vis á vis her representation of the complainant, in view of the phone message she left for respondent's counsel on June 16 and her letter of June 17, it is clear that she was acting as complainant's counsel at the time of, and in regard to, the completion of the withdrawal form.

The complainant, apparently based on information he had received from a union representative, believed that the respondent would ultimately agree to grant him reinstatement and back pay, and he requested withdrawal of his charge as a result. However, no such agreement was reached and, as a result, the complainant now seeks to have the order of dismissal set aside and his charge reinstated. However, although it is unfortunate that the complainant acted before he knew what type of settlement would ultimately be achieved, he apparently did so knowingly and voluntarily and with benefit of counsel. It should be noted that, even if the information the complainant received from his union representative or his attorney was incorrect, the actions of his representatives are imputed to him. See, Kellar v. Copps Gas Station, ERD Case No. CR200203601 (LIRC Jan. 28, 2004).

This is not the type of circumstance which would warrant setting aside the order of dismissal. See, Crawford v. Kraft Foods, supra.

cc: Attorney MaryNell Regan

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