State of Wisconsin

Labor and Industry Review Commission

Julian V. Robles, Complainant 1306 Romayne Ave. Racine, WI  53402	Fair Employment Decision[1]
Thomas Hribar Truck & Equipment, Inc., Respondent 121 SE Frontage Rd. Sturtevant, WI  53177
	Dated and Mailed:
ERD Case No. CR201402880	November 30, 2018
EEOC Case No. 26G201401367C
	robleju_err.doc:164

The decision of the administrative law judge is reversed.  Accordingly, the complainant’s complaint is dismissed.

By the Commission:
	/s/
	Georgia E. Maxwell, Chairperson
	/s/
	Laurie R. McCallum, Commissioner
	/s/
	David B. Falstad, Commissioner

Procedural Posture

This case is before the commission to consider the complainant’s allegation that the respondent discriminated against him based upon his race and national origin, in violation of the Wisconsin Fair Employment Act (hereafter “Act”).  An administrative law judge for the Equal Rights Division of the Department of Workforce Development held a hearing and issued a decision finding that discrimination occurred and awarding limited remedies.  Both parties filed timely petitions for commission review of the administrative law judge’s decision.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted at the hearing. Based on its review, the commission makes the following:

Findings of Fact

1. The respondent, Thomas Hribar Truck & Equipment, Inc. (hereinafter “respondent”), is a business that salvages and resells truck parts.  Thomas Hribar is the respondent’s owner and president.

2. The complainant, Julian V. Robles (hereinafter “complainant”), began working for the respondent in September of 2013.  The complainant’s race is Hispanic and his national origin is Mexican-American. 

3. The complainant’s job was to disassemble semi tractor trailers.  His supervisor was the owner’s brother, Arthur Hribar, who went by the nickname “Chopper.”  The complainant rarely had any interaction with Thomas Hribar because they worked in different buildings.  The complainant performed most of his work in the “eBay” building.

4. On August 20, 2014, the complainant was using a forklift to bring a box of parts over to a building where Thomas Hribar was working.  The complainant dropped off the box at the building, at which time Hribar, who was operating a front end loader, honked the horn at the complainant to get his attention.  Hribar wanted the complainant to pick up some fairings with his forklift and return them to the eBay building.  He pulled up along side the complainant and started pointing in the complainant’s general direction.  It was loud in the building and other employees were present, so the complainant did not immediately understand that Hribar was trying to communicate with him.  He therefore continued to move his forklift in the opposite direction.  Hribar then yelled to get the complainant’s attention.  Although Hribar denied swearing, the complainant believed that he heard Hribar swearing at him.  The complainant yelled back something to the effect of, “You’re not my boss and I’m not putting up with your bullshit.”  He picked up the fairings and left the building.

5. When the complainant returned to the eBay building with the fairings Chopper asked him what was going on, and the complainant told him, “Your brother is a fucking asshole and him and I are going to have it out.”  The complainant vented for awhile, then walked way and went back to work.  A minute or so later Chopper walked over and told the complainant, “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.”  

6. The complainant’s discharge was not because of his race or national origin, but because Arthur Hribar believed that the complainant had been disrespectful to and had threatened his brother, the owner of the company.

Conclusions of Law

1. The complainant failed to demonstrate that he was discharged based upon his race and/or national origin, in violation of the Wisconsin Fair Employment Act. 

Memorandum Opinion

The complainant has the burden of proving that his race and/or national origin were motivating factors in the respondent’s decision to terminate his employment.  Based upon its independent review of the evidence, the commission is not persuaded that the complainant met that burden, for the reasons explained below. 

The complainant testified that, on his last day of work, Thomas Hribar called him a “stupid Mexican” and a “dumbass wetback,” then told him to get the hell off his property.  However, when the complainant returned to the eBay building and told his supervisor, Arthur Hribar (“Chopper”) about the incident, the complainant said nothing about Thomas Hribar’s use of racial epithets.  The complainant’s testimony was: “[Chopper] asked me what happened.  I told him what happened.  I said your damn brother keeps cussing people off, this, that, he can’t keeping [sic] do that.”  The complainant did not indicate that he told Chopper his brother had called him a “stupid Mexican” or a “dumbass wetback.”  The commission considers it unlikely that, had Hribar actually made such comments, the complainant would have said nothing about them when asked to explain what happened between himself and Hribar, and his failure to mention the comments to Chopper casts doubt on the credibility of his testimony.

The commission is also concerned about the complainant’s failure to bring witnesses to the hearing.  Although the complainant testified that there were a number of potential witnesses to the racist remarks, none of these individuals testified on the complainant’s behalf.  While the complainant’s attorney asserts in his brief that he attempted to subpoena two of these individuals prior to the hearing, but was unsuccessful, this was not explained at the hearing, at which time the complainant testified that he did not bring witnesses because they feared for their jobs.  (On cross-examination the complainant acknowledged that he did not actually know if the witnesses still worked for the respondent.)  Even concluding that the complainant’s attorney’s representations are accurate--and the commission notes that copies of subpoenas and witness fee checks for two individuals were provided to the administrative law judge along with the complainant’s post-hearing brief--the complainant has not adequately explained why he did not attempt to bring any of the other individuals who were allegedly in the area and might have heard the remarks. 

The complainant’s only witness, Adalberto Garcia, was not helpful to his case.  Garcia testified that he worked for the respondent for approximately two months in 2007 and was discharged by Thomas Hribar.  He contended that during the incident in which Hribar discharged him, Hribar made a comment to him about being Mexican and going back to his country.  Although the administrative law judge indicated that he considered Garcia’s testimony to be credible, noting that Garcia was very calm and matter-of-fact, the commission is 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.  Assuming, however, for the sake of argument, that Garcia’s testimony is credible, it is nonetheless of little value to this case.  The fact that Hribar made a single offensive comment to another worker regarding his national origin approximately seven years earlier than the incident at hand does not persuade the commission that he made the comments alleged by the complainant.  Indeed, Hribar testified that the culture in the workplace has changed and that, while such remarks might have once been acceptable, “you don’t do that nowadays.”  While more contemporaneous testimony regarding Hribar’s treatment of Hispanic employees might be relevant, an isolated remark made to Garcia in 2007 does not warrant a conclusion that Hribar was likely to use the type of racial slurs alleged by the complainant in 2014.

Finally, and significantly, the commission finds credible Chopper’s testimony that the complainant stated that he and his brother were “going to have it out” and that he regarded this as a threat.  Chopper, who heard nothing to indicate the complainant was subjected to offensive comments about his race or national origin, explained that he decided to terminate the complainant’s employment based upon his belief that the complainant had behaved unacceptably by calling his brother, the owner of the company, a “fucking asshole,” and threatening to “have it out” with him.  Even if Hribar did, in fact, make comments of the type alleged by the complainant in his complaint, no finding of discrimination would be warranted where the discharge decision was made solely by Chopper for reasons unrelated to the complainant’s race or national origin.

NOTE:  The commission consulted the administrative law judge regarding his impressions of the demeanor of the witnesses.  The administrative law judge indicated that he found the complainant’s testimony to be credible, but did not share any demeanor impressions that affected his assessment of the complainant’s credibility.  As indicated above, the administrative law judge 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, the commission found Mr. Garcia’s testimony less than persuasive.  The administrative law judge did not share any demeanor impressions regarding the respondent’s witnesses.

cc:       Kris Bartos

            Scott Schroeder

Editor's Note: Appealed to Circuit Court. Reversed Robles v. Hribar Truck & Equip. Inc. (Racine Co. Cir. Ct. 6/20/2016), reversed by Court of Appeals Robles v. Hribar Truck & Equipment Inc. & LIRC, 2020 WI App 74

---

[1] Appeal Rights:  See the green enclosure for the time limit and procedures for obtaining judicial review of this decision.  If you seek judicial review, you must name the Labor and Industry Review Commission as a respondent in the petition for judicial review.

Appeal rights and answers to frequently asked questions about appealing a fair employment decision to circuit court are also available on the commission’s website, http://lirc.wisconsin.gov.