HR-88-002-JL

                                                        8-1700-1706-2

 

                                 STATE OF MINNESOTA

                         OFFICE OF ADMINISTRATIVE HEARINGS

 

                   FOR THE MINNESOTA DEPARTMENT OF HUMAN RIGHTS

 

 

Patricia M. Daly,

 

                      Complainant,                     ORDER DISMISSING  CONTESTED

                                                       CASE WITHOUT PREJUDICE  AND

V.                                                     REMAND TO THE MINNESOTA

                                                       DEPARTMENT OF HUMAN  RIGHTS

Hennepin County Park

Reserve District,

 

                      Respondent.

 

 

     The above-captioned matter is pending before the undersigned

Administrative Law Judge pursuant to a Notice of and Order for Hearing issued

by the Chief Administrative Law Judge on July 15, 1987.  The Chief Judge's

Order was issued after receipt of a letter from  Jayne  B.  Khalifa,  Acting

Commissioner of the Minnesota Department of Human  Rights  indicating  that  the

discrimination charge filed against the Respondent by the Complainant was

being referred to the Office of Administrative Hearings pursuant to Minn.

Stat.  363.071, subd. la.  On July 17,  1987,  the  Complainant  requested  that

the Chief Judge return this case to the Minnesota Department of Human Rights,

noting that her June 24, 1987 request that the  Department  forward  her  charge

to the Office of Administrative Hearings for a hearing had erroneously been

made, and that the matter should be returned to the  Department  of  Human  Rights

for completion.

 

     On July 21, 1987, the Administrative Law Judge wrote  to  both  parties

advising them that Ms. Daly's July 16, 1987 letter would  be  treated  as  a

motion for voluntary dismissal without prejudice and for  a  remand  to  the

Minnesota Department of Human Rights for  further  handling.  The  parties  were

told to file objections, if any, to the motion within  ten  days  after  receipt

of the Judge's letter.  No objections were filed.

 

     Based upon all the files, records and proceedings herein,

 

     IT IS HEREBY ORDERED:

 

     1.  That the Complainant's request for the voluntary dismissal of her

contested case is GRANTED;

 

     2.  That the Complainant's charge is hereby REMANDED to the Minnesota

Department of Human Rights for processing consistent with the provisions of

Minn.  Stat. ch. 363, including a determination of probable cause or no

probable cause.

 

Dated this 7th day of August, 1987.

 

 

 

                                          JON  L.  LUNDE

                                          Administrative Law Judge

 

                                   MEMORANDUM

 

    This proceeding was commenced after the Complainant filed a hearing

request under Minn.  Stat.  363.071, subd. la (1986).  After receipt  of  that

request, the Acting Commissioner of the Minnesota Department of Human  Rights

wrote to the Chief Administrative Law Judge requesting that he schedule a

hearing as promptly as possible.  After the Chief Judge's hearing order was

issued, the Complainant asked that this matter be remanded back to the

Department because she had requested a hearing in error.

 

    Although Minn.  Stat.  363.071, subd. la does not specifically authorize a

complainant to withdraw a hearing request filed with the Commissioner,  the

Judge is persuaded that such withdrawals are permissible when no objection  is

filed by the respondent or the department and when no prejudice will result to

any parties.  Generally speaking, in the absence of prejudice to  the  adverse

party, the mere commencement of an action is not an irrevocable election of

remedies which bars a party from pursuing a different remedy.  See  6B  Dunnell

Minn.  Digest 2d, Election of Remedies,  1.04, pp. 5-6 (3d Ed. 1983).

Permitting a complainant to withdraw a hearing request when no prejudice

results to the respondent is consistent with the purposes of the  Minnesota

Human Rights Act.  The Act is designed to provide counsel to  charging  parties

when the Department makes a determination of probable cause.  This is a

valuable benefit, and when a charging party erroneously requests a hearing,

thereby depriving herself of the potential for counsel at state expense,  a

charging party should permitted to change that election if the respondent  is

not prejudiced.

 

    Since the Department does not object to a remand of this matter, and since

the Respondent has not objected or established any prejudice, it is  concluded

that the Complainant should be permitted to voluntarily dismiss her  contested

case and have her charge remanded to the Minnesota Department of Human  Rights

for completion of its investigation and issuance of a probable cause or  no

probable cause determination.

 

                                     J.L.L.

 

 

 

 

 

 

 

 

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