LARRY G. BURTON, Complainant

UNITED GOVERNMENT SERVICES, LLC, Respondent

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties. Based on its review, the commission makes the following:

The administrative law judge's order is set aside and this matter is remanded for hearing on the question of whether the complaint was withdrawn or settled and, provisionally, on the question of probable cause.

Dated and mailed November 18, 2005
burtola . rrr : 110 :

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

This matter arises out of a complaint alleging discrimination in employment in violation of the Wisconsin Fair Employment Act. After an investigator issued a determination that there was no probable cause to believe that there had been a violation of the Act, the complainant filed a timely appeal, and the matter was set for hearing on May 19, 2005.

The parties met on the appointed day with the administrative law judge who had been assigned to the matter. However, the proceeding was never formally convened on the record. It appears from materials in the file, that there was a court reporter there, whose presence had been arranged for by the respondent, and that the court reporter took notes. These notes have been transcribed, and copies of the transcript have been filed. However, the transcript reflects that the ALJ expressly and specifically stated that what was taking place and being taken down by the court reporter was not "on the record".

The file contains a "Request To Withdraw Complaint" signed by the complainant under the date of May 19, 2005, referring to the parties having reached a confidential settlement. (1)   It also contains a May 25, 2005 letter from the complainant to the administrative law judge, stating "Settlement Agreement has been reached and I would like to close case # 200303077", signed and dated by the complainant.

The administrative law judge issued an Order of Dismissal on May 27, 2005, reciting that the parties had informed her that they had entered into a private settlement which provided for the dismissal of the case.

Subsequently, on June 5, 2005, the complainant sent the administrative law judge a letter asserting that he had signed a settlement agreement with the respondent on May 25, 2005, but making a number of assertions about events occurring after that, and stating that he wished to "re-open and continue to pursue" his ERD case. The administrative law judge then sent the parties a letter describing a number of matters relating to the history of the case and her interactions with them, and concluding by indicating that the complainant's letter would be treated as a petition for commission review of her dismissal order. The matter was then forwarded to the commission. The commission established a briefing schedule. Both parties have filed briefs, with which they have submitted additional materials. (2)

The issue for decision is whether the dismissal of the complaint should be upheld.

As noted above, the file in this matter contains two separate requests for withdrawal signed by the complainant. The administrative rules of the Equal Rights Division provide:

DWD § 218.03(7) WITHDRAWAL OF COMPLAINT. 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.

(emphasis added). The commission has held, based on the emphasized language of this provision, that once the complainant or his or her representative has filed a written request to withdraw a complaint, dismissal of the complaint is required. Oehldrich v. Wausaukee Rescue Squad Inc. (LIRC, October 29, 2004); Kellar v. Copps Gas Station (LIRC, January 28, 2004); Lokken v. General Casualty of Wisconsin (LIRC, May 30, 2002); Gribbons v. Chart Industries Inc. (LIRC, March 26, 2002); Johannes v. County of Waushara Executive Committee Board of Supervisors (LIRC, November 1, 1993).

In some cases, however, the commission has arrived at a different result.

In Hatcher v. Larson (LIRC, Aug. 26, 1994), while it was undisputed that a written request for withdrawal, signed by complainant's attorney, was filed with the Equal Rights Division, the attorney asserted that the request for withdrawal was signed and filed inadvertently and that the complainant did not wish to withdraw his complaint. The commission concluded that it was most probable that neither the complainant nor his attorney ever had any intention of withdrawing the complaint, and that the signing and filing of the withdrawal was a mistake ab initio. The commission stated that in those circumstances it considered that dismissal of the complaint would be inappropriate, and it therefore set aside the dismissal.

In Walsh v. Rothe (LIRC, Nov. 29, 2002), the parties negotiated a confidential settlement and, prior to the settlement being finalized, the complainant submitted a request to withdraw his complaint, with the understanding that the matter would be dismissed once the agreement was reduced to writing. The settlement was not reduced to writing, however, and the parties advised the administrative law judge that they were not able to agree on certain terms. Notwithstanding this, the administrative law judge dismissed the complaint based upon the terms of the settlement as he understood them and upon the signed withdrawal form tendered by the complainant's attorney. Terms of settlement were set forth in the administrative law judge's order. The respondent petitioned for commission review, objecting that the parties had not agreed that if the settlement they discussed at hearing was not finalized the administrative law judge could nonetheless issue an order based on a general discussion of terms at the hearing, and asserting that the understanding had been that the complainant's request for withdrawal was to be held pending execution of the written settlement agreement. The commission set aside the administrative law judge's order and remanded the matter for hearing on the merits. The commission acknowledged that the ERD's rule, DWD § § 218.03(7), did not provide any exception to the requirement that the complaint be dismissed once a withdrawal form is tendered, but it said, "there are circumstances in which the commission has concluded that no withdrawal was intended and has essentially treated the withdrawal form as not having been submitted", citing Hatcher. The commission characterized Hatcher as having involved a situation in which "the complainant's request for withdrawal was filed inadvertently and . . . he did not actually wish to withdraw his complaint". The commission continued in Walsh by reasoning that while Walsh's withdrawal form was not signed inadvertently, in the sense that Walsh's attorney understood that it would ultimately result in the withdrawal of the complaint, there was reason to conclude that Walsh did not intend to file it when he did.

The instant case presents the question of whether, in view of the interpretations the commission has followed as described above, the dismissal of the complaint in this case should be upheld. The difficulty in this case, is that this question is too dependent on factual issues which are apparently in dispute. (3)

As noted above, there is no formal record of the events of May 19 to which the commission may look to determine what occurred on that day. Even if the commission were to ignore the fact that those proceedings were expressly declared by the administrative law judge to not have been on the record, other factual issues which are potentially significant to the outcome here concern events which occurred in the days following May 19. The respondent has expressly objected in its brief that the complainant has raised matters which are not part of the record, which it disputes.

For the foregoing reasons the commission concludes that the order dismissing the complaint must be set aside and this matter remanded for further proceedings. Initially, the administrative law judge should allow the parties to be heard on the factual issues relevant to the question of whether the complaint was withdrawn or settled. If the parties can agree on a statement of stipulated facts relative to this question, the administrative law judge may decide the matter on that basis; if they cannot, then a hearing should be held. If after the facts are thus developed the administrative law judge determines that given those facts the complaint should be dismissed, an order to that effect should be issued; if the administrative law judge decides that dismissal of the complaint is not appropriate, then the matter should proceed to hearing on the question of probable cause as originally scheduled.

cc: Eric H. Rumbaugh, Attorney for Respondent

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(1)( Back ) The first withdrawal, dated May 19, 2005, contains an error in the case number (a digit is omitted). However, it fully identifies the parties complainant and respondent by name and address, recites "I wish to withdraw my discrimination complaint against the above-named Respondent(s) filed with the Equal Rights Division", and is signed and dated by the complainant. There is no indication that this complainant had any other complaints pending against this respondent before the Equal Rights Division, than the one in this case.

(2)( Back ) With his initial brief filed on July 18, 2005, the complainant submitted a copy of a transcript of proceedings on May 19, 2005, a copy of a May 30, 2005 letter to respondent, and a copy of a settlement agreement. With its brief filed on August 18, 2005, the respondent submitted a copy of a transcript of proceedings on May 19, 2005.

(3)( Back ) Important among these factual issues is whether the parties ever entered into a settlement, as the withdrawal requests indicated had occurred. While the complainant submitted a copy of a settlement agreement with his brief to the commission, the respondent has asserted that the complainant "has not attached the agreement he claims was breached; nor is the agreement part of the record in this case." This question of whether the parties entered into a settlement agreement and what its terms were is of particular importance, because the settlement agreement document which the complainant submitted with his brief contains a clause pursuant to which the agreement, although signed on May 25, would be revocable for a period of seven days and would not be deemed final for seven days, and the complainant also submitted a copy of a letter, dated within that period, by which he exercised his right to revoke agreement. If such are the facts, then arguably the settlement agreement never became final. This suggests an issue similar to that in Walsh in which it was asserted that the intent had been that the withdrawal would become effective only if and when the settlement agreement on which it was based became effective.

uploaded 2005/11/22