796 Requirement that LIRC consult with ALJ regarding credibility impressions

The law requires that when overriding an administrative law judge’s factual findings LIRC must hold a credibility conference and explain its disagreement with the administrative law judge’s credibility determination. However, there is no requirement that LIRC “investigate the administrative law judge’s demeanor impressions,” nor is there any standard procedure that LIRC is required to follow. Robles v. Thomas Hribar Truck & Equipment, Inc. and LIRC, 2020 WI App 74, 394 Wis. 2d 761, 951 N.W.2d 853.

Where in fulfillment of the requirement that LIRC consult with the Administrative Law Judge regarding any demeanor impressions affecting his decision and in response did not indicate any, it was inferred he had none, and that he assessed credibility based on content of testimony alone. Nielsen v. Sports Clips (LIRC, 03/28/14)

LIRC is not required to consult with the Administrative Law Judge when its decision does not hinge upon witness credibility. Crystal Lake Cheese Factory v. LIRC, 2003 WI 106, 264 Wis. 2d 200, 664 N.W.2d 651.

The Labor, Industry and Review Commission is not restricted to consulting with the Administrative Law Judge in only those situations where it intends to reverse the decision of the Administrative Law Judge based on credibility. Moreover, the consultation between the Commission and the Administrative Law Judge is not prohibited as an ex parte communication. The Commission, not the Administrative Law Judge, is the entity vested with the responsibility of making credibility determinations and finding the facts in the case. Wolf v. LIRC (Ct. App., Dist. II, unpublished opinion, 03/13/96).

Due process requires that the Labor, Industry and Review Commission submit a memorandum opinion explaining the basis for its decision if it reverses the Administrative Law Judge’s findings. Wolf v. LIRC (Ct. App., Dist. II unpublished opinion, 03/13/96).

The Administrative Law Judge’s characterization of a witness’ outmoded view of women in the workplace may well constitute “demeanor” which defines the witness’ personal characteristics or beliefs. But it is not “demeanor” as that term is used to define the nonverbal messages which a witness may give off while testifying. The former goes to the substance of the evidence; the latter goes to the credibility of the witness. In fact, the ALJ’s conclusion flowed from the substance of the witness’ testimony, and not from the witness’ demeanor. LIRC is as well equipped to make such conclusions regarding credibility as the Administrative Law Judge. Schiller v. LIRC, (Ct. App., Dist. II, unpublished opinion, 11/16/94).

The Labor and Industry Review Commission is expressly empowered to reject the Administrative Law Judge’s recommendation in rendering a final decision, provided that it consults with the Administrative Law Judge to determine his or her impressions of the credibility of witnesses and explains in a memorandum opinion why it disagreed with the Administrative Law Judge. Hoell v. LIRC, 186 Wis. 2d 608, 522 N.W.2d 234 (Ct. App. 1994).

An Administrative Law Judge’s inability to provide LIRC with any impressions of the witness’ demeanor was not critical to LIRC’s review of the Complainant’s testimony where there were sufficient inconsistencies in the testimony to undermine the Complainant's credibility. Haskett v. LIRC (Ct. App., District III, unpublished opinion, 08/24/93).

The requirement of consultation with a hearing officer arises from the rationale that there is a constitutional right to the benefit of demeanor evidence. Such consultations are necessary in order that the Administrative Law Judge can share his or her observations of the witness’s manner of testifying, demeanor, hesitancies and inflections. Sullivan v. Sacred Heart Sch. Bd. (LIRC, 03/30/93).

The purpose of the consultation requirement is to allow the Administrative Law Judge to convey any information about witness demeanor that is unavailable to the decision maker relying on the record. When a case is ending before the Labor and Industry Review Commission, responsibility for making the ultimate inference about credibility on the basis of content of testimony and manner of testifying is the Commission's. Brye v. Brakebush Bros. (LIRC, 01/11/93).

Where the parties’ versions of the facts conflict, unless the Commission finds a compelling reason in the testimony or elsewhere in the record, the Commission will defer to the Administrative Law Judge who had the opportunity to view the witnesses' demeanor and make a determination of credibility. Roberge v. Sch. Dist. of Stanley-Boyd (LIRC, 02/05/92).

Consultation with the Administrative Law Judge is required only when LIRC reverses the Administrative Law Judge's decision. Behm v. William Haasl, DDS, SC (LIRC, 10/21/91).

The Commission is not required to consult with the Administrative Law Judge where it reverses the Administrative Law Judge's decision solely based upon its drawing different inferences from the facts than the Administrative Law Judge. Not every question of fact implicates questions of credibility. Maline v. Wis. Bell (LIRC, 10/30/89).

Although the Commission had consulted with the ALJ before reversing his finding of discrimination, its decision was set aside where it did not adequately explain why it arrived at a different decision from that of the ALJ. Kelm v. LIRC (Watertown Pub. Library) (Dodge Co. Cir. Ct., 02/22/85).

Where an examiner other than the one who held the hearing makes findings on the credibility of witnesses, that examiner should state in the record the personal impressions of the first examiner concerning witness demeanor. Muth v. LIRC (A.O. Smith) (Milwaukee Co. Cir. Ct., 07/22/83).

Where the Commission sets aside as untruthful testimony relied upon by an examiner, it must consult with the examiner in a meaningful way and state the reasons for its disagreement. Phillips Plating v. LIRC (Olson) (Price Co. Cir. Ct., 12/21/82).

The Commission may reverse a hearing examiner's decision without consultation where the reversal was based on law. Laux v. LIRC (Dixon) (Winnebago Co. Cir. Ct., 10/15/82).

LIRC's failure to consult with the examiner before rejecting his proposed order was probably erroneous, but is not reversible error where rejection of the company doctor's testimony was not based on his demeanor, but because the substance of his testimony did not support his conclusion. AMC v. DILHR (Basile) (Dane Co. Cir. Ct., 01/13/82).

Due process requires that the Commission have the benefit of the examiner's personal impressions of the material witnesses before rejecting the examiner's decision. The Commission must consult of record with the examiner to glean his impressions of the credibility of the witnesses. Rucker v. DILHR, 101 Wis. 2d 285, 304 N.W.2d 169 (Ct. App. 1981).

LIRC must have the benefit of the hearing examiner’s personal impressions of the material witnesses when rejecting the examiner’s recommendations and must include in a memorandum opinion an explanation for its disagreement with the examiner. Hamilton v. DILHR, 94 Wis. 2d 611, 288 N.W.2d 857 (1980); Walker v. DILHR (Snap-On-Tools) (Dane Co. Cir. Ct., 12/06/77).

In situations where a DILHR examiner hears conflicting testimony and makes findings based upon the credibility of witnesses, and the Commission thereafter reverses the examiner and makes contrary findings, the record should affirmatively show that the Commission had the benefit of the examiner’s personal impressions of the material witnesses. This may take the form of either adequate notes of the examiner or personal consultation with him. The demands of due process cannot be satisfied with anything less. Braun v. Indus. Comm’n, 36 Wis. 2d 48, 153 N.W.2d 81 (1967).