748.1 Withdrawal of complaint; dismissal

The Complainant gave the Administrative Law Judge a written, dated and signed document stating that a settlement agreement had been reached and that he would like to close his case. The Complainant’s filing of the request for withdrawal of his complaint was unconditional, voluntary, and intentional, and it was done with the knowledge that it would result in the issuance of an order dismissing his complaint. The Complainant’s complaint was appropriately dismissed and his subsequent attempt to revoke the settlement was rejected. This is not a case where there was never any intention of withdrawing the complaint or where the withdrawal of the complaint was “inadvertent.” It was the Complainant’s choice not to wait to file his request to withdraw his complaint until the settlement agreement’s revocation period had expired. The Complainant made the decision to go ahead and resign from his job, withdraw his complaint and get his complaint dismissed because he wanted to speed up his receipt of the settlement proceeds. The Department does not have authority to entertain actions for reformation, enforcement or breach of contract regarding a settlement agreement which has been signed by the parties. Burton v. United Gov’t Serv. (LIRC, 11/21/11).

Based on information he apparently received from a union representative, the Complainant believed that the Respondent would ultimately agree to grant him reinstatement and back pay. He requested withdrawal of his complaint as a result, and his complaint was dismissed. However, no such agreement was reached and, as a result, the Complainant sought to have the order dismissing his case set aside. 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. This is not the type of circumstance which would warrant setting aside the order of dismissal. Luckett v. City of Milwaukee (LIRC, 08/30/05).

While a dismissal with prejudice precludes a party from re-filing the same claim with the Equal Rights Division, the effect of such a dismissal on the Complainant’s rights to go forward in any other forum is a matter for the other forum to decide. The Department does not have the authority to either grant or deny jurisdiction to any other forum. Kemp v. Ramada Hotel (LIRC, 02/06/04).

The Equal Rights Division dismissed a case based upon the Complainant’s written request to withdraw his complaint before the Equal Rights Division and to proceed before the federal Equal Employment Opportunity Commission (EEOC). The Complainant subsequently sought to have the order of dismissal set aside stating that he did not understand that the EEOC would apply a different definition for determining whether he was disabled and that he would not have withdrawn his ERD complaint had he known this. 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 of the ERD complaint. Crawford v. Kraft Foods (LIRC, 01/16/04).

Where a settlement agreement was signed by the Complainant, and where the agreement clearly provides that the Complainant agrees to the dismissal of her complaint, it was not necessary for the Administrative Law Judge to also obtain a separate withdrawal form from the Complainant. King v. Kmart(LIRC, 08/28/03).

The Division’s administrative rules provide that the complaint shall be dismissed upon the filing of a request for a withdrawal. While the rule does not provide any exception to the requirement that the complaint be dismissed once a withdrawal is tendered, there are circumstances in which it can be concluded that no withdrawal was intended. In this case, there is evidence that the Complainant did not intend to file the request to withdraw his complaint at the time he did. He filed the withdrawal request prior to the time that a negotiated confidential settlement had been finalized. Comments made by the Administrative Law Judge led the Complainant to believe that, although he had submitted a withdrawal form, the form would not be filed and the matter would not be dismissed until the settlement was reduced to writing. The settlement was not reduced to writing and, ultimately, the parties were not able to agree on certain terms. Dismissing the complaint based upon the signed withdrawal form would clearly be contrary to the will of the parties in this case. Accordingly, the Administrative Law Judge’s order dismissing the complaint was set aside. Walsh v. Tom A. Roth, S.C. (LIRC, 11/29/02).

The Complainant requested that her case be dismissed without prejudice because she desired to litigate the subject matter of the complaint in federal court. Unreviewed administrative decisions do not have preclusive effect with regard to a federal court Title VII proceeding, although administrative factual findings are entitled to preclusive effect with respect to actions under 42 U.S.C. § 1983 in federal court. Whether the Personnel Commission’s decision would have any preclusive effect on a proceeding in another forum involving the same subject matter would be a question to be resolved by that other forum. Sleik v. Dep't of Commerce (Wis. Pers. Comm’n, 12/03/99).

It was error for an Administrative Law Judge to grant a Complainant’s request for a withdrawal of her complaint without prejudice where: (1) the Complainant’s complaint before the Equal Rights Division had proceeded to a hearing on the merits, with the Complainant examining several witnesses, (2) the Respondent had incurred substantial expenses to prepare for the hearing, and (3) counsel for the Complainant stated that he had never intended to complete the ERD hearing, but had used the hearing process for discovery purposes related to the Complainant’s potential federal claims. Smith v. Racine Unified Sch. Dist. (LIRC, 09/30/99).

The Administrative Law Judge’s order dismissing a complaint was set aside where the Complainant’s request for withdrawal of the complaint (which was the basis for the Administrative Law Judge’s dismissal order) was filed inadvertently and the Labor and Industry Review Commission concluded that the Complainant did not actually wish to withdraw his complaint. Hatcher v. Larson (LIRC, 08/26/94).

Any discretion to dismiss a complaint without prejudice is that of the Department, and not that of the withdrawing Complainant. The Administrative Law Judge did not abuse his discretion in denying the Complainant’s motion for withdrawal without prejudice in this case. Silva v. City of Madison (LIRC, 11/12/93).

The Complainant stated that he wished to withdraw his complaint, and the Personnel Commission dismissed the charge. Several months later, the Complainant requested that his original charge of discrimination be reinstated, on the grounds that he had withdrawn the charge as part of a settlement agreement but that the settlement agreement had been breached. The Commission lacked authority to reopen the matter. Haule v. UW-Milwaukee (Wis. Pers. Comm’n, 8/26/87).

An examiner correctly dismissed a complaint without prejudice as requested by a Complainant who wished to pursue the matter in federal court, notwithstanding the employer’s objections before the hearing, which the Complainant failed to attend and at which no ruling on the request was made. Weiss v.Nicolet Instrument (LIRC, 06/18/84).

Under certain circumstances it is not an abuse of discretion for an Administrative Law Judge to dismiss a complaint without prejudice. Weiss v. Nicolet Instrument (LIRC, 06/18/84).

A voluntary withdrawal by a Complainant of her discrimination charge in exchange for an offer of hire does not constitute a settlement or waiver of her charge unless she fully understood that such would be the result. Krawczyk v. Greenfield Sch. Dist. No. 6 (LIRC, 04/15/82); Anderson v. LIRC, 111 Wis. 2d 245, 330 N.W.2d 594 (1983).