Julian V. Robles v. Thomas Hribar Truck & Equipment, Inc.

2020 WI App 74

COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2019AP1412

Complete Title of Case:

JULIAN V. ROBLES,

PETITIONER-RESPONDENT,

V.

THOMAS HRIBAR TRUCK & EQUIPMENT, INC.,

RESPONDENT-CO-APPELLANT,

LABOR AND INDUSTRY REVIEW COMMISSION,

RESPONDENT-APPELLANT.

Opinion Filed: October 7, 2020
Submitted on Briefs: June 26, 2020
Oral Argument:

JUDGES: Reilly, P.J., Gundrum and Davis, JJ.
Concurred:
Dissented:

Appellant
ATTORNEYS: On behalf of the respondent-appellant, the cause was submitted on the
briefs of Steven C. Kilpatrick, assistant attorney general, and Joshua L.
Kaul, attorney general.

Co-Appellant On behalf of the respondent-co-appellant, the cause was submitted on
ATTORNEYS: the brief of Scott L. Schroeder of Scott L. Schroeder, S.C., Janesville.
Respondent
ATTORNEYS: On behalf of the petitioner-respondent, the cause was submitted on the
brief of Jeffrey Leavell, Kris Bartos and Danielle N. Rousset of Jeffrey
Leavell, S.C., Racine.

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2020 WI App 74

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
October 7, 2020
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2019AP1412 Cir. Ct. No. 2018CV1861

STATE OF WISCONSIN IN COURT OF APPEALS

JULIAN V. ROBLES,

PETITIONER-RESPONDENT,

V.

THOMAS HRIBAR TRUCK & EQUIPMENT, INC.,

RESPONDENT-CO-APPELLANT,

LABOR AND INDUSTRY REVIEW COMMISSION,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Racine County:
MICHAEL J. PIONTEK, Judge. Reversed.

Before Reilly, P.J., Gundrum and Davis, JJ.
No. 2019AP1412

¶1 REILLY, P.J. The Labor and Industry Review Commission (LIRC)
and Thomas Hribar Truck & Equipment, Inc. (Hribar) seek review of the circuit
court’s reversal of LIRC’s decision that Julian V. Robles (Robles) was discharged
from his employment with Hribar due to an unprofessional interaction rather than
due to his race or national origin in violation of the Wisconsin Fair Employment
Act (WFEA). As substantial evidence exists in the record to support LIRC’s
findings, we reverse the circuit court’s order and affirm LIRC’s order.

¶2 The facts in this case are highly contested. LIRC made the following
findings of fact after reviewing the submissions of the parties and the evidence
presented at the hearing. Hribar salvages and resells truck parts and is owned by
Thomas Hribar. Robles began working for Hribar in September 2013. Robles was
supervised by Thomas’s brother, Arthur Hribar, and had very little interaction with
Thomas, as Robles worked in a separate building, the “eBay” building.

¶3 On August 20, 2014, Robles was driving a forklift loaded with a box
of parts from the eBay building to the building where Thomas was working. After
dropping off the box, Robles encountered Thomas who was driving a front end
loader. Thomas honked his horn at Robles to get his attention, as he wanted Robles
to take some fairings with him back to the eBay building. Thomas then pulled up
along side Robles and started pointing at him, but it was loud in the building and
Robles did not understand what Thomas was trying to tell him. Robles “therefore
continued to move his forklift in the opposite direction. [Thomas] then yelled to get
[Robles’s] attention.” Robles “yelled back something to the effect of, ‘You’re not
my boss and I’m not putting up with your bullshit.’” Robles took the fairings and
left.

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¶4 Robles returned to the eBay building where Arthur asked him about
the incident. Robles replied, “Your brother is a fucking asshole and him and I are
going to have it out.” Robles then “vented” to Arthur for a while and went back to
work. “A minute or so later [Arthur] walked over and told [Robles], ‘This is not
going to work. You can’t get along with my brother, you’re threatening him that
you’re going to have it out with him, you’re calling him names. I’m going to have
to let you go.’” Robles was discharged from his employment.

¶5 Robles testified to a very different version of events. Robles agreed
that when he encountered Thomas in the building, Thomas began pointing in his
general direction, but he thought Thomas was gesturing toward another employee
in the area so he began moving his forklift in another direction. At that point, Robles
testified that “[i]nstead of telling me what to do,” Thomas “called me a stupid
Mexican, dumb ass wetback” and told Robles to “get the hell off his property.”
Robles said he responded to Thomas, “[Y]ou can go cuss to somebody fucking else.
Don’t be cussing at me. I’m not no little kid,” and returned to the eBay building.
According to Robles,

By the time I got to the building, [Arthur] was outside.
He asked me what happened. I told him what happened. I
said your damn brother keeps cussing people off, this, that,
he can’t keeping do that. [Arthur’s] like Dude, I got to fire
you. He said I don’t want to do that, man, but I have to. It’s
my brother’s company.

¶6 On September 17, 2014, Robles filed a WFEA complaint against
Hribar with the Equal Rights Division of the Wisconsin Department of Workforce
Development (DWD). Robles alleged that he was discharged because of his race
(Hispanic) and national origin (Mexican-American). DWD issued an initial
determination, finding no probable cause to believe that Robles was
“discriminat[ed]” against because of his race or national origin but found probable

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No. 2019AP1412

cause to believe he was “terminat[ed]” because of his race or national origin. The
Division of Hearings and Appeals administrative law judge (ALJ) held a hearing on
September 21, 2016. The ALJ issued its final decision on May 18, 2017, concluding
that Hribar discharged Robles because of his race and national origin.

¶7 Hribar petitioned for LIRC review, and Robles filed a cross-petition,
seeking additional back pay. LIRC reversed the ALJ’s decision and dismissed
Robles’s complaint, concluding that Robles was terminated because Arthur believed
that Robles “had been disrespectful to and had threatened” Thomas. Robles filed a
WIS. STAT. ch. 227 petition for judicial review in the circuit court. The circuit court
reversed LIRC’s decision, finding that LIRC, pursuant to WIS JI—CIVIL 215, “could
not assess credibility of live witnesses in the same way the [ALJ] did.” Hribar and
LIRC appeal.

Standard of Review

¶8 On appeal, we review LIRC’s decision and not that of the circuit court.
Stoughton Trailers, Inc. v. LIRC, 2007 WI 105, ¶26, 303 Wis. 2d 514, 735 N.W.2d
477. LIRC’s findings of fact are conclusive on appeal as long as they are supported
by credible and substantial evidence. Michels Pipeline Constr., Inc. v. LIRC, 197
Wis. 2d 927, 931, 541 N.W.2d 241 (Ct. App. 1995); see also WIS. STAT. § 102.23(6)
(2017-18).1 “Substantial evidence is less of a burden than preponderance of the
evidence in that any reasonable view of the evidence is sufficient.” Bernhardt v.
LIRC, 207 Wis. 2d 292, 298, 558 N.W.2d 874 (Ct. App. 1996). Our role on appeal
is to search the record for evidence supporting LIRC’s factual determinations, not

1
All references to the Wisconsin Statutes are to the 2017-18 version.

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No. 2019AP1412

to search for evidence against them. See Vande Zande v. DILHR, 70 Wis. 2d 1086,
1097, 236 N.W.2d 255 (1975).

¶9 Where a party seeks review of an ALJ’s findings or order, LIRC is not
bound by the ALJ’s decision, as LIRC, “on review, may either affirm, reverse or
modify the findings or order in whole or in part, or set aside the findings and order
and remand to [DWD] for further proceedings. Such actions shall be based on a
review of the evidence submitted.” WIS. STAT. § 111.39(5)(b). Our review, then,
is of LIRC’s findings, not those of the ALJ. See Xcel Energy Servs., Inc. v. LIRC,
2013 WI 64, ¶56, 349 Wis. 2d 234, 833 N.W.2d 665; Anheuser Busch, Inc. v.
Industrial Comm’n, 29 Wis. 2d 685, 692, 139 N.W.2d 652 (1966). Our supreme
court has instructed that this court “cannot ignore and jump over the findings of
[LIRC] to reach those of the [ALJ] which were set aside.” See Anheuser Busch,
29 Wis. 2d at 692. LIRC, not the ALJ, maintains the ultimate responsibility for fact-
finding. See § 111.39(5)(b); Falke v. Industrial Comm’n, 17 Wis. 2d 289, 294-95,
116 N.W.2d 125 (1962).

Analysis

¶10 Hribar and LIRC both argue that LIRC properly determined that
Hribar did not discharge Robles because of his race or national origin and that
LIRC’s findings of fact were supported by substantial evidence. Robles argues that
LIRC erred when it made findings of fact that were contrary to the findings reached
by the ALJ. Specifically, Robles faults LIRC for violating his due process rights by
failing to “adequately conduct a credibility conference with the ALJ and failing to
state why it reversed the ALJ’s findings.” Based on our standard of review, we
disagree that LIRC’s findings constitute error.

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No. 2019AP1412

¶11 All of the findings of fact made by LIRC are supported by substantial
evidence in the record. Arthur testified that Robles did not tell him of any racial
comments made by Thomas prior to telling Robles that his employment was
terminated. LIRC accepted that testimony and found that it cast doubt on the
credibility of Robles’s testimony, as LIRC “consider[ed] it unlikely that, had
[Thomas] actually made such comments, [Robles] would have said nothing about
them when asked to explain what happened.” LIRC also considered the lack of
verification, as Robles failed to bring witnesses of the incident to the hearing.

¶12 The one witness Robles did produce, Adalberto Garcia, testified that
Thomas had “made a comment to him about being Mexican and going back to his
country” approximately seven years prior. LIRC was “skeptical of Garcia’s
testimony given that he worked for Hribar for only two months before being
discharged due to performance issues, and in light of the fact that he filed a
discrimination complaint with the Equal Rights Division which was dismissed for
lack of probable cause and then not appealed.” LIRC also concluded that even if
Garcia’s testimony was credible, “an isolated remark made to Garcia in 2007 does
not warrant a conclusion that [Thomas] was likely to use the … racial slurs alleged
by [Robles] in 2014” without more contemporaneous testimony. Ultimately, LIRC
concluded that even if Thomas had made the offensive racial comments to Robles,
the record indicated that the decision to discharge Robles was made by Arthur as a
result of Robles calling Thomas a “fucking asshole” and threatening to “have it out”
with him and not for reasons related to Robles’s race or national origin. Substantial
evidence exists to support LIRC’s findings.

¶13 Robles’s main claim is that by overruling the ALJ’s factual findings,
LIRC violated his due process rights. In Wisconsin, the general rule is that where
an agency acting as an appeal tribunal—here, LIRC—diverges from the hearing

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examiner—the ALJ—as to material findings of facts based on witness credibility,
“LIRC must hold a credibility conference in order to obtain the ALJ’s impressions
concerning the witnesses’ demeanor and credibility.” Hermax Carpet Marts v.
LIRC, 220 Wis. 2d 611, 617, 583 N.W.2d 662 (Ct. App. 1998). The reason for this
rule is that “[w]here credibility of witnesses is at issue, it is a denial of due process
if the administrative agency making a fact determination does not have the benefit
of the findings, conclusions, and impressions of the testimony of each hearing
officer who conducted any part of the hearing.” Shawley v. Industrial Comm’n, 16
Wis. 2d 535, 541-42, 114 N.W.2d 872 (1962). LIRC is required to provide an
explanation for its disagreement with the ALJ in its memorandum opinion. Carley
Ford, Lincoln, Mercury, Inc. v. Bosquette, 72 Wis. 2d 569, 574-75, 241 N.W.2d
596 (1976).

¶14 Robles does not argue that LIRC did not conduct a credibility
conference and does not argue that LIRC did not provide a memorandum opinion
explaining its disagreement with the ALJ’s findings. Robles cannot do so, as the
credibility conference was confirmed in the “NOTE” at the end of LIRC’s decision:

[LIRC] consulted the [ALJ] regarding his impressions of the
demeanor of the witnesses. The [ALJ] indicated that he
found the [Robles] testimony to be credible, but did not share
any demeanor impressions that affected his assessment of
the complainant’s credibility. As indicated above, the [ALJ]
stated that he considered the complainant’s witness, Mr.
Garcia, to be calm and matter-of-fact. However, as noted in
the memorandum opinion above, [LIRC] found Mr. Garcia’s
testimony less than persuasive. The [ALJ] did not share any
demeanor impressions regarding the respondent’s witnesses.

Robles claims that “LIRC simply did not have the kind of credibility conference
required for Robles to have due process,” asserting that it was LIRC’s burden to
“investigate the ALJ’s demeanor impressions” and suggesting questions that he
believed LIRC should have posed to the ALJ at the credibility conference. Robles

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provides no legal authority to support his claim that the law requires such an
investigation requirement or a standardized procedure pursuant to which the hearing
is to be conducted.

¶15 Robles’s argument is similar to the argument made in Hakes v. LIRC,
187 Wis. 2d 582, 523 N.W.2d 155 (Ct. App. 1994). In Hakes, a worker’s
compensation case, the claimant advocated that due process required, among other
things, “a standardized procedure or standardized set of questions” for LIRC to
follow when consulting with the ALJ on credibility determinations. Id. at 586-87.
Our supreme court rejected a standardized procedure, explaining that it goes
“beyond the dictates” of prior case law in Shawley, 16 Wis. 2d at 541-42, and
Transamerica Insurance Co. v. DILHR, 54 Wis. 2d 272, 284, 195 N.W.2d 656
(1972):

Under Shawley and Transamerica, due process requires
only that the commission consult with the hearing examiner
and submit a memorandum opinion explaining its basis for
rejecting the hearing examiner’s findings.… The procedure
[Hakes] proposes seeks to delve into the mental processes
the commission used in making its determinations of fact.
The law, however, does not require this. In fact, the supreme
court has specifically noted that “administrative agencies
ordinarily should not be harassed by judicial inquiry directed
toward ascertaining how they performed their adjudicative
function in a particular case.” The law simply does not
support Hakes’ assertion that the commission’s factual
determinations should be subject to more rigorous
procedures.

Hakes, 187 Wis. 2d at 587-89 (citation omitted). The court clarified that “the
commission, not the hearing examiner, is vested with the responsibility of making
credibility determinations” and that “[t]he hearing examiner may make initial
determinations on witness credibility, but these determinations are subject to the
commission’s independent review.” Id. at 589.

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¶16 The law requires that LIRC hold a credibility conference and that
LIRC explain its disagreement with the ALJ’s credibility determinations; LIRC
fulfilled both requirements. See id. at 587-89. LIRC found Garcia’s testimony not
credible and determined that Thomas’s and Arthur’s testimony held greater weight
than Robles’s testimony. LIRC, not this court or the circuit court, is charged with
making those credibility determinations. See id. at 589; see also Anheuser Busch,
29 Wis. 2d at 692 (“[Courts] cannot ignore and jump over the findings of [LIRC] to
reach those of the [ALJ] which were set aside.”). Accordingly, we reverse the
circuit court’s order and affirm LIRC’s order.

By the Court.—Order reversed.

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