David Vega v. Labor and Industry Review Commission

2022 WI APP 21

COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2021AP24

†Petition for Review Filed

Complete Title of Case:

DAVID VEGA,

PETITIONER-RESPONDENT,†

V.

LABOR AND INDUSTRY REVIEW COMMISSION,

RESPONDENT,

PREFERRED SANDS OF WI, LLC,

RESPONDENT-APPELLANT.

Opinion Filed: April 19, 2022
Submitted on Briefs: June 30, 2021
Oral Argument:

JUDGES: Stark, P.J., Hruz and Nashold, JJ.
Concurred:
Dissented:

Appellant
ATTORNEYS: On behalf of the respondent-appellant, the cause was submitted on the
briefs of Dean F. Kelley of Ogletree, Deakins, Nash, Smoak & Stewart,
P.C., Milwaukee.

Respondent
ATTORNEYS: On behalf of the petitioner-respondent, the cause was submitted on the
brief of Peter M. Reinhardt of Bakke Norman, S.C., Menomonie.
2022 WI App 21

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.
April 19, 2022
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. 2021AP24 Cir. Ct. No. 2020CV37

STATE OF WISCONSIN IN COURT OF APPEALS

DAVID VEGA,

PETITIONER-RESPONDENT,

V.

LABOR AND INDUSTRY REVIEW COMMISSION,

RESPONDENT,

PREFERRED SANDS OF WI, LLC,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Dunn County:
ROD W. SMELTZER, Judge. Reversed.

Before Stark, P.J., Hruz and Nashold, JJ.

¶1 HRUZ, J. Preferred Sands of Wisconsin, LLC (“Preferred Sands”),
terminated David Vega’s employment after learning that Vega was a registered sex
No. 2021AP24

offender and after Vega admitted to Preferred Sands that he committed multiple
felony-level sexual assaults. Preferred Sands appeals a circuit court order reversing
a decision by the Labor and Industry Review Commission (LIRC). LIRC had
determined that Preferred Sands wrongfully discriminated against Vega on the basis
of his conviction record by terminating his employment due to his status as a
registered sex offender, which violated the Wisconsin Fair Employment Act
(WFEA), WIS. STAT. §§ 111.31-111.395 (2019-20).1 LIRC also determined,
however, that Preferred Sands lawfully relied on Vega’s admissions to Preferred
Sands regarding his prior sexual assaults for which he had not yet been convicted.
In particular, LIRC found that Preferred Sands would have terminated Vega’s
employment based solely on its own investigation into Vega’s felony-level sexual
assaults, and LIRC therefore concluded that Vega was not entitled to reinstatement
or back pay. The circuit court reversed LIRC’s decision, and Preferred Sands
appeals.

¶2 Vega argues that Preferred Sands could not independently investigate
his felony sexual assault offenses or rely on his later admissions to Preferred Sands
of having committed those offenses because he had entered into deferred
prosecution agreements for those offenses, which he contends are part of his
“conviction record” as defined under WIS. STAT. § 111.32(3). We disagree. We
conclude that Vega’s deferred prosecution agreements were not part of his
“conviction record” but part of his “arrest record,” as defined by § 111.32(1);
therefore, Preferred Sands could independently investigate the fact of such offenses
pursuant to Onalaska v. LIRC, 120 Wis. 2d 363, 354 N.W.2d 223 (Ct. App. 1984).
We also conclude that substantial evidence supported LIRC’s findings that

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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Preferred Sands did not rely on Vega’s arrest record when terminating his
employment, and that Preferred Sands would have terminated Vega’s employment
based solely on his admissions to Preferred Sands that he had committed multiple
felony-level sexual assaults. Accordingly, we reverse the circuit court’s order and
reinstate LIRC’s ruling.

BACKGROUND

¶3 In September 2010, Vega began working as a lead quality control tech
for Preferred Sands of Minnesota, LLC, which was a manufacturer and provider of
frac sand. Shortly thereafter, Vega was charged in Buffalo County with one felony
count of second-degree sexual assault of a child and two misdemeanor counts of
fourth-degree sexual assault. All of those charges were based on the same probable
cause statement alleging that Vega admitted to touching the victim’s skin
underneath her underwear near her vagina at least two or three times while
“tickling” her.2 The probable cause statement also alleged that the victim reported
that Vega’s hand had gone “inside of her privates.”

¶4 In April 2011, Vega pled no contest to the misdemeanor counts, and
he was subsequently placed on three years’ probation. Vega’s conditions of
probation included serving ninety days in jail with work release and attending
individual counseling and sex offender treatment. Vega also pled “guilty/no
contest” to a felony count of third-degree sexual assault as part of a “Deferred

2
Pursuant to the policies underlying WIS. STAT. RULE 809.86, we do not use identifying
information when referring to the victims discussed in this opinion.

3
No. 2021AP24

Prosecution Agreement.”3 That agreement provided that the felony count would be
dismissed after seven years if Vega complied with the terms of the agreement. If
Vega violated the agreement, however, the circuit court would immediately accept
Vega’s plea and enter a judgment of conviction. The agreement required Vega to
follow all rules and conditions of the agreement and to complete the conditions of
probation on the misdemeanor convictions. Some of the agreement’s conditions
included conditions that had already been imposed as conditions of Vega’s
probation, such as serving ninety days’ jail time with work release and attending
individual counseling and sex offender treatment.4

¶5 Vega was later charged in Pierce County with a felony count of sexual
assault of a child under age thirteen and a misdemeanor count of fourth-degree
sexual assault. The complaint alleged that the assaults occurred in 2002 and that
Vega had admitted, among other things, to having the victim perform oral sex on
him up to ten times and to having touched the victim’s vagina. In December 2012,
Vega pled guilty to the misdemeanor count, and he was placed on two years’

3
Vega argues that this “deferred prosecution agreement” and the “deferred prosecution
agreement” in Pierce County were actually deferred judgments of conviction—also known as
deferred entries of judgment—because he pled guilty to the offenses and would have been
convicted of those offenses if he violated the agreements. See, e.g., State v. Wollenberg, 2004 WI
App 20, ¶¶6-10, 268 Wis. 2d 810, 674 N.W.2d 916 (2003). We agree that Vega’s agreements in
Buffalo and Pierce Counties appear to be agreements for deferred entries of judgment. As further
explained later in this opinion, that distinction does not affect our analysis of whether the
agreements are part of Vega’s arrest record or conviction record. To avoid confusion, and because
the distinction does not affect our analysis, we will continue to refer to the agreements as deferred
prosecution agreements because they were titled as such.
4
The agreement also included conditions requiring: (1) payment of restitution; (2) no
contact with the victims except as approved by the Buffalo County Department of Health and
Human Services and Vega’s probation agent; (3) no contact with persons under the age of eighteen
without prior written approval of Vega’s probation agent or the district attorney; (4) payment of
court costs; (5) a written apology to the victims; (6) participation in employment, education, or
volunteer work; (7) a DNA sample; (8) no “OWI/OAR violations”; (9) no further criminal
violation; and (10) signing “releases in favor of District Attorney as stated on the record on 4-29-
11.” Vega advances no argument on appeal with respect to these conditions.

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No. 2021AP24

probation—concurrent to the Buffalo County convictions—and was required to
comply with lifetime sex offender registration. As part of this probation, Vega was
also required to comply with the rules of probation set forth by Vega’s misdemeanor
judgments of conviction in Buffalo County.

¶6 Vega also pled guilty to the felony count pursuant to another
“Deferred Prosecution Agreement.” Similar to the earlier agreement in the Buffalo
County case, the felony count would be dismissed after six years if Vega complied
with the agreement, but Vega would be immediately convicted of the felony count
if he violated the agreement. Vega agreed, among other things, that the agreement’s
conditions would include the conditions of his probation on the misdemeanor count
and that he would comply with those conditions.

¶7 Throughout all of these criminal proceedings, Vega continued
working for Preferred Sands of Minnesota. Before Vega began serving the
conditional jail time associated with his Buffalo County convictions, Vega told his
supervisor about the sexual assault convictions and requested adjustments to his
work schedule to accommodate his work release while in jail and his sex offender
treatment. Vega’s supervisor agreed to provide him with the necessary
accommodations. As Vega’s supervisors changed over the next several years, Vega
continued to inform those supervisors of his convictions and that he was a registered
sex offender. Those supervisors also accommodated Vega’s need to attend sex
offender treatment during the workweek.

¶8 In July 2015, Vega’s employment was transferred to Preferred Sands
of Wisconsin—the respondent in this appeal and a sister company of Preferred
Sands of Minnesota—due to a shut-down of sand mining operations in Minnesota.
Both companies were held by Preferred Proppants, LLC.

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¶9 On July 22, 2015, Jesse Johnson, a human resource manager for
Preferred Sands, contacted Amanda Bauer, a Preferred Sands’ office manager, about
having several employees, including Vega, complete a background check to provide
necessary motor vehicle records to Preferred Sands’ insurance carrier. Around the
same time, another Preferred Sands’ employee informed Bauer that Vega was a
registered sex offender, and Bauer provided that information to Johnson. When
Vega was asked to sign paperwork consenting to the background check, he became
concerned about who would have access to the information obtained. Vega
contacted Johnson and asked who would have access to information about his
background and told Johnson that he was a registered sex offender. Johnson replied
that he (Johnson) would be the only one to see the information, but he also said that
he would notify Lauren Boegner, the vice president of human resources for
Preferred Proppants, about their conversation.

¶10 Johnson later spoke with Boegner about Vega’s status as a registered
sex offender, and Boegner instructed Johnson to obtain a criminal background check
on Vega. Johnson followed Boegner’s directions and obtained a report on Vega’s
criminal history, which showed that Vega had misdemeanor convictions for fourth-
degree sexual assault and that he had two deferred prosecution agreements with a
pending felony sexual assault charge under each agreement. After receiving the
report, Preferred Sands obtained certified copies of the criminal complaints against
Vega in Buffalo and Pierce Counties, his judgments of conviction on the
misdemeanor counts, and the deferred prosecution agreements related to the felony
counts.

¶11 Boegner consulted with legal counsel and then instructed Johnson to
interview Vega. Boegner gave Johnson a list of prepared questions to ask Vega,
including a script for the beginning of the meeting, which read:

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No. 2021AP24

This meeting is part of our internal review to gather the facts
and give you an opportunity to talk with us.

We want to hear what happened in your own words as all we
have is written documents.

For the purpose of this meeting, we are going to avoid any
focus on your prior 4th degree sexual assault convictions.
Instead, we want to talk with you and get a complete
understanding of your two open deferred prosecution
matters ….

¶12 On August 18, 2015, Johnson met with Vega to discuss Preferred
Sands’ investigation into Vega’s criminal history. A human resources manager for
Preferred Proppants also participated in the meeting by telephone and took notes of
the meeting, which the human resources manager later provided to Boegner.
Johnson brought several documents to the meeting, including the criminal
complaints and the deferred prosecution agreements from Buffalo and Pierce
Counties.

¶13 Consistent with the provided script, Johnson told Vega that Preferred
Sands was not worried about the misdemeanor convictions, but it was concerned
about the unresolved allegations of the felony sexual assaults. Johnson asked Vega
about the felony sexual assaults, and Vega admitted that he had sexually assaulted
the victims. Vega then “broke down and got quiet,” and he asked Johnson, “What
more do you want?” Johnson asked Vega if he could provide more details, and
Vega stated that he had touched the victims “inappropriately.” Johnson told Vega
that he had the detective’s statements from the Pierce County case, and he asked
Vega whether the facts in the detective’s statements were true, whether Vega’s
statements in those documents were true, and whether Vega admitted to the
allegations in those documents. Vega replied affirmatively to each question, stating
that the facts were true, that he indeed made those statements, and that he admitted
to the conduct.

7
No. 2021AP24

¶14 Following the interview, Boegner decided to terminate Vega’s
employment. Boegner later testified that she made the decision because she
“wanted to protect [her] employees and didn’t want to put them in a circumstance
where they would be uncomfortable.” With Boegner’s assistance, Johnson drafted
a termination letter that included language regarding Vega’s felony charges. The
letter stated in part:

As we discussed during our conversation, the meeting was
part of an internal review to gather facts and gain an
understanding of your two open pending deferred
prosecution cases relating to 1st Degree Sexual Assault and
3rd Degree Sexual Assault. For the purpose of the meeting,
you were told we would avoid any focus on your prior
4th Degree Sexual Assault convictions. During our meeting,
in reference to both open pending deferred prosecution
agreement matters, you admitted to committing sexual
assault ….

Johnson subsequently gave Vega the termination letter in late August 2015. In
addition, Johnson completed a form explaining the reason for Vega’s
discharge: “[Vega] has two open pending deferred prosecution criminal cases
which he admitted to and said the facts in both cases were true. Based on his
admissions relating to both of the open cases[,] a decision was made to terminate
his employment.”

¶15 Vega subsequently filed a complaint with the Equal Rights Division
of the Wisconsin Department of Workforce Development, alleging that Preferred
Sands’ decision to terminate his employment violated the WFEA. An
administrative law judge (ALJ) held a hearing on Vega’s claims and heard
testimony from several witnesses, including Vega, Boegner and Johnson. After the
hearing, the ALJ concluded that Preferred Sands had violated the WFEA by
terminating Vega’s employment because of his conviction and arrest record. The

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No. 2021AP24

ALJ ordered Preferred Sands to reinstate Vega with back pay and awarded
attorney’s fees and costs to Vega. Preferred Sands thereafter petitioned LIRC for
review of the ALJ’s decision.

¶16 Upon review, LIRC concluded that Preferred Sands’ decision to
terminate Vega’s employment was premised on both permissible and impermissible
bases. In particular, LIRC found that Preferred Sands’ decision to terminate Vega’s
employment was impermissibly based on his status as a registered sex offender,
which LIRC deemed a conviction record under WIS. STAT. § 111.32(3). LIRC also
found, however, that Preferred Sands’ decision to terminate Vega’s employment
was permissibly based on Vega’s admissions in his interview regarding his conduct
underlying the felony sexual assault charges. Before making that finding, LIRC
rejected Vega’s argument that his deferred prosecution agreements on the felony
charges constituted conviction records under the WFEA. LIRC concluded that
Vega’s deferred prosecution agreements constituted arrest records under
§ 111.32(1) and that this court’s analysis in Onalaska was applicable to the instant
facts.

¶17 Because LIRC concluded that Preferred Sands relied on both
permissible and impermissible grounds for terminating Vega’s employment, LIRC
applied the mixed-motive test to determine the appropriate remedy. LIRC found
that Preferred Sands would have discharged Vega based solely on its interview with
him and his admissions made therein, which would not have violated the WFEA.
LIRC concluded that the appropriate remedy was ordering Preferred Sands to cease
and desist from discriminating against Vega based on his conviction record, and to
pay forty percent of Vega’s requested attorney’s fees and reasonable costs.

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¶18 Vega subsequently sought judicial review of LIRC’s decision. The
circuit court concluded that the deferred prosecution agreements were conviction
records under the WFEA because Vega had pled guilty to the felony charges and
because his terms of probation on the misdemeanor convictions had been
incorporated into the agreements. The court also concluded that Preferred Sands
did not gain any “[n]ew or additional information” from interviewing Vega because
he had already admitted to engaging in the conduct by pleading guilty to those
charges. The court concluded that Preferred Sands did not terminate Vega’s
employment based on a permissible basis, and it reversed LIRC’s decision.
Preferred Sands now appeals.5

DISCUSSION

¶19 Before turning to the heart of our analysis, we must clearly define the
issues that we are addressing in this opinion and those we are not, and explain why
we are limiting our review. Both topics are informed by the particular facts of this
case and, especially, the parties’ arguments on appeal, as well as by the current state
of relevant appellate and administrative case law.

¶20 Beginning with the state of the law, under the WFEA, employers are
generally prohibited from terminating the employment of any individual on the basis
of an “arrest record” or a “conviction record.” WIS. STAT. §§ 111.321, 111.322(1).
Consistent with LIRC’s analysis in this case, the parties here focus on this court’s
1984 holding in Onalaska v. LIRC, 120 Wis. 2d 363, 354 N.W.2d 223 (Ct. App.
1984). There, we held that an employer does not unlawfully discharge an employee

5
Preferred Sands only seeks reversal of the circuit court’s decision and does not contest
on appeal LIRC’s finding that Preferred Sands impermissibly relied on Vega’s status as a registered
sex offender when terminating his employment or the remedies ordered in relation to that finding.

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No. 2021AP24

based on the employee’s “arrest record” if the employer concludes from its own
independent investigation and questioning of the employee that the employee had,
in fact, committed an offense. Id. at 367. In the decades since that holding, few
Wisconsin appellate cases have further applied this holding in any context. But see
County of Dane v. Norman, 174 Wis. 2d 683, 693, 497 N.W.2d 714 (1993)
(offering Onalaska as an example of how Wisconsin employment discrimination
law distinguishes between unlawful reliance on one’s “status” versus lawful reliance
of one’s “conduct” perhaps related to a status).

¶21 Significantly, no case has extended or applied Onalaska’s rationale
regarding an independent investigation to employment discrimination claims based
on a conviction record, although courts also have not rejected such an extension. In
the absence of such a decision, LIRC has now expressly refused to make that
extension, despite recognizing that it had previously cited Onalaska favorably “in
a number of [LIRC] decisions as [being] applicable to conviction record cases.”
Swanson v. Kelly Servs., ERD Case No. CR200203683 (LIRC Oct. 13, 2004); see
also Sheridan v. United Parcel Serv., ERD Case No. CR200204955 (LIRC July 11,
2005). Although this issue of law is unsettled, Onalaska nonetheless remains
binding law, at least with respect to employment decisions implicating “arrest
records.”6 See Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997)
(“[O]nly the supreme court, the highest court in [Wisconsin], has the power to
overrule, modify or withdraw language from a published opinion of the court of
appeals.”).

6
There was a dissent in Onalaska v. LIRC, 120 Wis. 2d 363, 354 N.W.2d 223 (Ct. App.
1984).

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¶22 Due to the nature of the parties’ arguments, we do not have occasion
in this appeal to assess the merit of extending Onalaska’s independent investigation
rationale to the context of conviction records. While Vega asserts that this court’s
Onalaska analysis is not applicable to a claim of employment discrimination based
on a person’s conviction record, he only contends that a deferred prosecution
agreement is part of such a record and not part of an arrest record. Other than
questioning LIRC’s factual findings on the basis for Preferred Sands’ termination
decision, see infra ¶¶37-43, he makes no argument that if we deem his deferred
prosecution agreements as part of his arrest record, Onalaska does not apply under
the facts in this case. Preferred Sands, for its part, does not argue that Onalaska
applies in the context of conviction records; it argues only that deferred prosecution
agreements are properly deemed part of one’s arrest record, such that Onalaska
governs. Again, the parties’ approach is consistent with LIRC’s decision in this
case.

¶23 For these reasons, the unsettled issue of whether the Onalaska rule
applies in the context of conviction records—and the relative logic or merit of any
possible rule regarding the same—is not before this court. We therefore do not
address that issue despite the fact that our decision applying the Onalaska rule in
the context of arrest records and not in the context of conviction records may appear
inconsistent. Rather, we can and do resolve this appeal on the narrower grounds—
those advanced by the parties—of whether a not-yet-violated deferred prosecution
agreement is part of a person’s “arrest record” or “conviction record.”

I. Classification of a deferred prosecution agreement under the WFEA

¶24 As just explained, the primary issue in this appeal is whether an
agreement to defer prosecution or to defer entry of judgment in a criminal case is

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No. 2021AP24

part of a person’s “conviction record,” as defined by WIS. STAT. § 111.32(3). Vega
argues that LIRC erroneously concluded that his deferred prosecution agreements
were arrest records under § 111.32(1) instead of conviction records under
§ 111.32(3).7 He contends that “conviction record” is defined broadly in the statutes
and is not limited to only information indicating that an individual has been
convicted of an offense. Vega argues that the terms of his deferred prosecution
agreements, which include conditions of probation and jail time, constitute a
conviction record under the WFEA.

¶25 When reviewing a decision of an administrative agency, we review
the agency’s decision, not the decision of the circuit court. Stoughton Trailers, Inc.
v. LIRC, 2007 WI 105, ¶26, 303 Wis. 2d 514, 735 N.W.2d 477. The interpretation
and application of a statute present questions of law that we review de novo, while
benefiting from the agency’s analysis. Black v. City of Milwaukee, 2016 WI 47,
¶21, 369 Wis. 2d 272, 882 N.W.2d 333; see also Tetra Tech EC, Inc. v. DOR, 2018
WI 75, ¶84, 382 Wis. 2d 496, 914 N.W.2d 21.

¶26 Our interpretation of the terms “arrest record” and “conviction record”
begins with the language of the statutes. See State ex rel. Kalal v. Circuit Ct. for
Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. We interpret
statutory language “in the context in which it is used; not in isolation but as part of

7
As noted earlier in this opinion, see supra ¶4 n.3, Vega’s agreements in Buffalo and
Pierce Counties appear to be agreements for deferred entries of judgment, not actually deferred
prosecution agreements. That distinction does not affect our analysis of whether the agreements
are part of Vega’s arrest record or conviction record. Like a deferred prosecution agreement, see
WIS. STAT. § 971.39(1)(f), both of the agreements at issue required that the pending charges be
dismissed upon Vega’s successful completion of, and compliance with, the agreements’ terms. In
other words, if Vega successfully completed the terms of his agreements, he would never be
convicted of the felony charges discussed therein. Although Vega pled guilty to the offenses as
part of those agreements, it is undisputed that the circuit court did not accept the pleas, find him
guilty, or enter judgment at the time Vega entered his pleas.

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No. 2021AP24

a whole; in relation to the language of surrounding or closely-related statutes; and
reasonably, to avoid absurd or unreasonable results.” Id., ¶46.

¶27 WISCONSIN STAT. § 111.32(1) provides that an arrest record
“includes, but is not limited to, information indicating that an individual has been
questioned, apprehended, taken into custody or detention, held for investigation,
arrested, charged with, indicted or tried for any felony, misdemeanor or other
offense pursuant to any law enforcement or military authority.” A conviction
record, on the other hand,

includes, but is not limited to, information indicating that an
individual has been convicted of any felony, misdemeanor
or other offense, has been adjudicated delinquent, has been
less than honorably discharged, or has been placed on
probation, fined, imprisoned, placed on extended
supervision or paroled pursuant to any law enforcement or
military authority.

Sec. 111.32(3).

¶28 The definitions of arrest record and conviction record each contain
broad language expressly recognizing that the definitions are “not limited” to the
provided examples and that they extend beyond information indicating that an
individual has been arrested or convicted of an offense. See WIS. STAT. § 111.32(1),
(3). In addition, each definition is not constrained to physically recorded documents
but applies generally to “information.” See id. Despite the use of broad language,
each definition still has its limits. For example, all of the information that falls under
an arrest record involves an individual having contact with a law enforcement or
military authority before any finding of guilt or culpability has occurred. See
§ 111.32(1). On the other hand, all of the provided examples that fall under a
conviction record include matters where there has been a conclusive finding

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regarding an individual’s guilt or culpability, or the circuit court has imposed the
consequences that flow from such finding. See § 111.32(3).

¶29 At its core, a deferred prosecution agreement is not a part of a person’s
“conviction record” under WIS. STAT. § 111.32(3) because it occurs before any
finding of guilt or culpability has occurred and because the agreement, in and of
itself, is not information indicating that an individual has been convicted of an
offense, adjudicated delinquent, less than honorably discharged, or “placed on
probation, fined, imprisoned, placed on extended supervision or paroled pursuant to
any law enforcement or military authority.” See id. It is simply an agreement that
a defendant will not be prosecuted for—or, in this case, convicted of—a crime if the
defendant complies with the terms of the agreement. Such an agreement, alone,
does not order a person to be placed on probation or imprisoned, and it directly
indicates that the individual has not yet been convicted of the offense at issue. In
fact, the agreement specifically provides that unless the person later violates the
agreement, the person will not be convicted of the offense.

¶30 Vega contends that the relevant legal inquiry here involves
considering what the agreements required and imposed. He contends that his
agreements imposed conditions—including probation, jail time, individual
counseling, and sex offender treatment—that thereby constitute conviction records
under WIS. STAT. § 111.32(3). Vega’s arguments are misplaced for two reasons.

¶31 First, citing WIS. STAT. §§ 973.09(1)(a), 973.03, 973.05, 973.048, and
973.14, Preferred Sands argues that a person—without having first been convicted
of an offense—cannot statutorily be placed on probation, fined, imprisoned, placed
on extended supervision, or paroled pursuant to any law enforcement or military
authority. This includes a person, as is the case here, who has only entered into a

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deferred prosecution agreement. Vega fails to address these arguments, and he
therefore concedes them. See Charolais Breeding Ranches, Ltd. v. FPC Sec.
Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979) (unrefuted arguments
may be deemed conceded). Furthermore, Vega cites no authority that would permit
a court to order any such conditions attendant to a deferred prosecution agreement
in the absence of the defendant serving a conviction for a separate crime that itself
has such conditions.

¶32 Second, the deferred prosecution agreements—by their express
terms—did not impose any probation, imprisonment, fine, extended supervision, or
parole. The Pierce County agreement did not “place” Vega on probation. Rather,
it required that he “comply with the terms of probation relative to Count 2,” which
was the misdemeanor conviction in Pierce County. The Pierce County agreement
also never discussed or imposed any period of imprisonment, fine, extended
supervision, or parole. The Pierce County agreement plainly imposed no new or
independent requirements that would either constitute or evidence a conviction
record for that felony offense under WIS. STAT. § 111.32(3).

¶33 Similarly, the Buffalo County agreement imposed no terms that would
constitute a conviction record under WIS. STAT. § 111.32(3). The agreement did not
place Vega on probation; rather, it required that he “complete [the] conditions of
probation of the companion charges of fourth degree sexual assault.” The Buffalo
County agreement did list several conditions, requiring “90 days jail, with [work]
release privileges,” and completion of “individual counseling” and a “sex offender
treatment program.” But those terms were already imposed pursuant to Vega’s
misdemeanor convictions in Buffalo County and were therefore not new
requirements or consequences of the deferred prosecution agreement itself.

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¶34 Although the deferred prosecution agreements do contain information
indicating that Vega had been placed on probation and was required to spend time
in jail pursuant to his misdemeanor convictions, that information does not render
the entirety of the agreements or both of the pending felony charges—of which Vega
had not been convicted—a part of Vega’s conviction record. Again, the definitions
of “conviction record” and “arrest record” apply to “information,” and they are not
constrained to physical documents. See WIS. STAT. § 111.32(1), (3). As is the case
here, a document can contain information that bears on both a person’s arrest record
and the person’s conviction record, especially when multiple charges are at issue.
Ultimately, the information contained in the deferred prosecution agreements
bearing on Vega’s conviction record (i.e., his probation and jail time for the
misdemeanor convictions) is of no consequence because LIRC never found that
Preferred Sands terminated Vega’s employment based on that information.8

¶35 Vega also contends that interpreting the term “conviction record” not
to include a deferred prosecution agreement is contrary to the remedial purpose of
the WFEA. He argues that such an interpretation would discourage employees from
entering into plea agreements and punish them for doing so. Vega is correct that we
must liberally construe the WFEA to accomplish its purpose, which includes
encouraging and fostering to the fullest extent practicable the employment of all
properly qualified individuals regardless of arrest record or conviction record. See
WIS. STAT. § 111.31(3). However, our interpretation of what constitutes a
conviction record does not violate that principle. Although a deferred prosecution
agreement is not part of a person’s conviction record, as defined by WIS. STAT.

8
Contrary to Vega’s argument, Preferred Sands’ citation to applicable provisions in the
Wisconsin Statutes, see supra ¶31, is citation to “legal authority” supporting the notion that the
conditions at issue are only permitted due to the existence of the misdemeanor convictions, and not
independently permitted by the deferred prosecution agreements. Again, Vega never addressed
these statutes or Preferred Sands’ arguments invoking them.

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No. 2021AP24

§ 111.32(3), it is undoubtedly a part of a person’s arrest record, as defined by
§ 111.32(1)—which is expressly protected under the WFEA. Our interpretation
might have the practical effect of allowing employers to independently investigate
the underlying conduct of an individual’s deferred prosecution agreement pursuant
to Onalaska, but such a result does not necessitate that we interpret “conviction
record” to include something that it plainly does not.

¶36 Finally, our conclusion that Vega’s deferred prosecution agreements
are not part of his conviction record is further supported by LIRC’s longstanding
treatment of agreements to defer prosecution or to defer entry of judgment as being
part of a person’s “arrest record.” See, e.g., Lovejoy v. Auto-Wares Wis., Inc., ERD
Case No. CR200703609 (LIRC Feb. 24, 2011); Delapast v. Northwoods Beach
Home Caring Homes, Inc., ERD Case No. 8901907 (LIRC Feb. 17, 1993); Mielke
v. Orkin Exterminator Co., ERD Case No. 8500540 (LIRC Apr. 11, 1988). We
agree with this longstanding treatment. Deferred prosecution agreements are part
of a person’s “arrest record” and are not part of the person’s “conviction record.”

II. Preferred Sands’ independent investigation

¶37 Vega next argues that there is not substantial evidence in the record to
support LIRC’s finding that Preferred Sands terminated his employment, in part,
because of information Preferred Sands obtained from him regarding his pending
criminal charges, including his admission that he had sexually assaulted the victims.
Vega contends that Preferred Sands only relied on his status as a registered sex
offender and that its investigation flowed from his initial disclosure that he was a
registered sex offender. He also argues, consistent with the circuit court’s decision,
that no “new or additional information” was obtained from the interview process
because Vega had already pled guilty to the offenses and there was nothing left to

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No. 2021AP24

investigate. He therefore contends that this court’s analysis under Onalaska does
not apply.

¶38 We afford significant deference to the agency’s findings of fact and
will uphold those findings if supported by “substantial evidence.” Milwaukee
Symphony Orchestra, Inc. v. DOR, 2010 WI 33, ¶31, 324 Wis. 2d 68, 781 N.W.2d
674. Substantial evidence exists if, after considering all the evidence of record and
after drawing all available inferences from that evidence, “reasonable minds could
arrive at the conclusion reached by the trier of fact.” Id. As stated earlier, an
employer does not improperly discharge an employee based on an arrest record if
the employer concludes from its own independent investigation and questioning of
the employee that the employee has, in fact, committed an offense:

To discharge an employe because of information indicating
that the employe has been questioned by a law enforcement
or military authority is to rely on an assertion by another
person or entity. If … the employer discharges an employe
because the employer concludes from its own investigation
and questioning of the employe that he or she has committed
an offense, the employer does not rely on information
indicating that the employe has been questioned, and
therefore does not rely on an arrest record, as defined in
[WIS. STAT. §] 111.32(5)(h) ….[9]

Onalaska, 120 Wis. 2d at 367.

¶39 Consistent with LIRC’s findings, we agree that Preferred Sands’
decision to terminate Vega was motivated, in part, by his status as a registered sex
offender. Despite that fact, substantial evidence also supports LIRC’s additional
finding that Preferred Sands was partially motivated by information obtained from

9
Although Onalaska interpreted the WFEA’s definition of “arrest record” under WIS.
STAT. § 111.32(5)(h) (1979-80), this court noted that the definition of “arrest record” had recently
been moved to § 111.32(1) (1981-82) and was “unchanged.” See Onalaska, 120 Wis. 2d at
364 n.1, 366 & n.2.

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No. 2021AP24

its interview with Vega. Such a finding is supported by the fact that Preferred Sands
did not terminate Vega’s employment immediately upon Vega disclosing that he
was a registered sex offender. Rather, Preferred Sands interviewed Vega to obtain
more information about the pending felony charges and then terminated him after
he admitted to having engaged in the alleged conduct. Not only did Vega admit in
his interview that he had “sexually assaulted” the victims, but he also admitted to
all of the facts and details provided in the detective’s statements from Pierce County.

¶40 Contrary to Vega’s arguments, Preferred Sands did obtain new and
independent information—indeed, very important information—from Vega’s
interview. The interview allowed Preferred Sands to learn—directly from Vega—
whether he had committed the offenses and whether he disputed any alleged facts,
including facts specifically related to the pending felony charges. Although Vega
provided scant detail during the interview and confirmed everything that the
documents had alleged, his admissions still provided new and independent
information that he had, in fact, committed felony-level sexual assaults and that all
of the details in the detective’s statements were true. These are important and new
revelations. Moreover, as Preferred Sands correctly observes, Onalaska did not
require that an employer obtain completely new or additional information from its
investigation. Onalaska simply required that the employer conclude from its own
investigation and questioning of the employee that the employee committed the
offense. Onalaska, 120 Wis. 2d at 367. That is precisely what Preferred Sands did
here.

¶41 LIRC also aptly recognized that Vega’s admissions to Johnson “could
reasonably be taken by [Preferred Sands] as a more credible indication of Vega’s
guilt than the fact that he entered into a plea agreement.” A defendant might have
many different reasons for entering into a deferred prosecution agreement, even if

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No. 2021AP24

it requires acknowledging guilt, under circumstances where the defendant does not
agree with the veracity of some or all of the alleged facts. Those reasons might
include concerns about the likelihood of success at trial or concerns about the stress
and financial cost of a trial. A deferred prosecution agreement might also provide
a defendant with the best opportunity for securing a dismissal of the charge, and it
might reflect, as LIRC recognized, the State’s uncertainty about proving the charges
beyond a reasonable doubt. Vega’s own admissions to Preferred Sands that he
committed felony-level sexual assaults and agreed with the details in the detective’s
statements could therefore be viewed as more credible than his admissions of guilt
in exchange for deferred prosecution agreements.

¶42 In addition, LIRC credited Preferred Sands’ efforts to consider only
information obtained from Vega regarding the pending felony charges and not to
rely on Vega’s misdemeanor convictions. Indeed, Preferred Sands repeatedly told
Vega that it was only concerned about his pending felony charges and that it wanted
to know more about those charges. Preferred Sands was also counseled against
discharging Vega based on his misdemeanor convictions, and LIRC recognized that
Preferred Sands “was sincerely motivated to discharge him based on [his]
admissions.” While Vega quarrels with LIRC’s findings regarding Preferred Sands’
actual motivations, ultimately, “[t]he weight and credibility of the evidence are for
the agency, not the reviewing court, to determine.” Milwaukee Symphony
Orchestra, 324 Wis. 2d 68, ¶31 (citation omitted). By crediting Preferred Sands’
efforts to avoid discharging Vega based on his misdemeanor convictions, a
reasonable fact finder could infer that Preferred Sands did in fact rely on Vega’s

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No. 2021AP24

admissions during the interview to having committed felony-level sexual assaults
as opposed to information contained in Vega’s arrest records.10

¶43 Vega also argues that the decisions of the ALJ and circuit court are
“an indication of what a reasonable trier of fact, after reviewing all of the evidence,
concluded. Both found that the termination decision was because of [an] arrest
record and not because of any independent investigation.” Be that as it may, the
question is not whether the ALJ or the circuit court had a reasonable view of the
evidence. The question is whether a reasonable fact finder, after considering all of
the evidence, could find—as LIRC did here—that Vega’s discharge was based in
part on information he disclosed in his interview and not based on his arrest record.
After considering all the evidence, a reasonable fact finder could find that Preferred
Sands relied on Vega’s admissions during his interview and that, pursuant to
Onalaska, it did not rely on his arrest record. We must therefore uphold those
findings.

III. Mixed-motive analysis

¶44 Vega next argues that LIRC erroneously found, in the context of its
application of the mixed-motive test, that Preferred Sands would have terminated
his employment even if it had not improperly relied on his status as a registered sex

10
Vega acknowledges that there is a legal distinction between the elements of his
misdemeanor convictions and his felony charges, but he argues that the record contains no evidence
that Preferred Sands “based its decision on allegations of sexual contact vs. sexual intercourse.”
See WIS. STAT. § 940.225(5)(b)-(c). In reality, Preferred Sands might not have based its decision
specifically on the legal difference between sexual contact and sexual intercourse, but Boegner
nevertheless testified that she knew that “a misdemeanor, in general, is less than a felony.”
Moreover, because Vega admitted to all of the details contained in the detective’s statements,
Preferred Sands knew that Vega had committed the most egregious acts alleged in those statements,
including the acts that would constitute a felony. Under these circumstances, Preferred Sands was
not required to know precisely what distinguished Vega’s misdemeanor sexual assault convictions
from his pending felony sexual assault charges.

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No. 2021AP24

offender—i.e., relied on his conviction record. He contends that Preferred Sands
had to prove, by clear and convincing evidence, that it would have terminated his
employment based solely on a lawful, nondiscriminatory purpose and that the record
contains no evidence on that issue. Vega therefore argues that LIRC improperly
applied the mixed-motive test to conclude that he was not entitled to back pay or
reinstatement.

¶45 “A mixed motive case is one in which the adverse employment
decision resulted from a mixture of legitimate business reasons and prohibited
discriminatory motives.” Hoell v. LIRC, 186 Wis. 2d 603, 608, 522 N.W.2d 234
(Ct. App. 1994). Under circumstances involving mixed motivations, the remedies
available to an employee are guided by the mixed-motive test, which provides:

If an employe is terminated solely because of an
impermissible motivating factor, the employe normally
should be awarded a cease and desist order, reinstatement,
back pay, interest, and attorney’s fees under the Wisconsin
Fair Employment Act. If an employe is terminated in part
because of an impermissible motivating factor and in part
because of other motivating factors, but the termination
would not have occurred in the absence of the impermissible
motivating factor, [LIRC] has the discretion to award some
or all of the remedies ordinarily awarded. Finally, if an
employe is terminated in part because of an impermissible
factor and in part because of other motivating factors, and
the termination would have taken place in the absence of the
impermissible motivating factor, the employe should be
awarded only a cease and desist order and attorney’s fees.

Id. at 610-11 (emphasis omitted).

¶46 As an initial matter, we reject Vega’s argument that an employer must
present clear and convincing evidence that it would have terminated the employee
based solely on a legitimate business reason despite some reliance on an
impermissible factor. An employer’s motivation for discharging an employee is a

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No. 2021AP24

“question of ultimate fact” and, in the context of a governmental agency case, such
as this one, must be affirmed if it is supported by substantial evidence—i.e.,
evidence permitting reasonable minds to arrive at the conclusion so reached.
Id. at 614. Vega does not cite any authority supporting his argument other than a
nonbinding LIRC decision from 1999. We therefore employ the same, commonly
used standard as applied in Hoell—substantial evidence. See id.

¶47 Substantial evidence supported LIRC’s finding that Preferred Sands
would have discharged Vega based solely on Vega’s admissions during his
interview. Boegner testified that she decided to terminate Vega’s employment, in
part, because she “wanted to protect [her] employees.” Boegner further testified in
a deposition, which was read into the record during the hearing, that “[a]n individual
who committed a sexual crime is not acceptable in our society and is concerning
and makes people feel unsafe.” A reasonable fact finder could infer from Boegner’s
testimony that she was resolved to protect her employees and would have been just
as motivated to terminate Vega’s employment based solely on his admissions to the
facts underlying the felony sexual assault charges as she was to discharge him based
on both his admissions and his status as a registered sex offender. As LIRC
recognized, Vega admitted to various offenses in his interview, including offenses
involving sexual intercourse, that “eclipse the misdeeds for which he was convicted,
and provide ample reason on their own for the employer’s termination decision.”

¶48 Because LIRC’s finding regarding Preferred Sands’ mixed motivation
was supported by substantial evidence, LIRC’s application of the mixed-motive test
was proper. In applying the mixed-motive test, LIRC correctly concluded that
Vega’s remedies should be limited to attorney’s fees and a cease and desist order,
and that reinstatement and back pay were not appropriate. See id.

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No. 2021AP24

By the Court.—Order reversed.

25