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

ATTORNEYS:

On behalf of the respondent-co-appellant, the cause was submitted on 

the brief of Scott L. Schroeder of Scott L. Schroeder, S.C., Janesville.
2

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. 
2020 WI App 74

COURT OF APPEALS

DECISION

DATED AND FILED

October 7, 2020

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

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

2

¶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.
No. 2019AP1412

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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 
No. 2019AP1412

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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.
No. 2019AP1412

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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 factfinding. 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.
No. 2019AP1412

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¶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 
No. 2019AP1412

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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 
No. 2019AP1412

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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. 
No. 2019AP1412

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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.