Burgener v. Labor Comm'n

Burgener v. Labor Comm'n

IN THE UTAH COURT OF APPEALS

----ooOoo----

Robin F. Burgener,

Petitioner,

v.

Labor Commission and Laboratory Corporation of America,

Respondents.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20021000-CA
 

F I L E D
(December 26, 2003)
 

2003 UT App 445

 

-----

Original Proceeding in this Court

Attorneys: Robin F. Burgener, West Jordan, Petitioner Pro Se

Mark O. Morris and James D. Gardner, Salt Lake City,

for Respondent Laboratory Corporation of America

-----

Before Judges Jackson, Greenwood, and Thorne.

PER CURIAM:

Petitioner Burgener seeks judicial review of the Utah Labor Commission (Labor Commission) denial of her claim of discrimination under the Americans with Disabilities Act (ADA). Burgener claims that her employer LabCorp refused reasonable accommodation for her disability, severe depression with onset after the death of her mother. The accommodation requested was transfer from a night shift to a day shift. Burgener claims that she is unable to perform the duties of her job in a night shift, but able to work during the day. The Labor Commission concluded that Burgener had failed to demonstrate that she was disabled and, therefore, she failed to qualify under the ADA. Specifically, the Labor Commission determined that any impairment suffered by Burgener was neither permanent nor long term.

The question of whether Burgener qualifies as disabled is a mixed question of fact and statutory interpretation. "When reviewing the factual findings made by an administrative agency, an appellate court will generally reverse only if the findings are not supported by substantial evidence." Drake v. Industrial Comm'n, 939 P.2d 177, 181 (Utah 1997). We defer to the agency because "it stands in a superior position from which to evaluate and weigh the evidence and assess the credibility and accuracy of witness' recollections." Harken v. Board of Oil, Gas, & Mining, 920 P.2d 1176, 1180 (Utah 1996). An agency's application of law to its findings of fact will not be disturbed unless its determination 'exceeds the bounds of reasonableness and rationality.'" Johnson v. Department of Emp. Sec., 782 P.2d 965, 968 (Utah Ct. App. 1989) (citation omitted).

The agency concluded that Burgener failed to demonstrate disability because, by her admission, she could perform the duties of her job by the conclusion of her short term disability leave. She only arguably demonstrated that she could not do them in a night shift. This did not amount to an impairment that substantially limits one or more major life activities; nor that the impairment is permanent or long-term as required by the ADA. Therefore, the agency concluded that Burgener failed to factually and legally qualify as disabled.

Burgener has not demonstrated, by marshaling the evidence, that the factual finding was in error. See Victron/Lika Utah v. Labor Comm'n, 2001 UT App 394,¶5, 38 P.3d 993. The entire record reveals that substantial evidence existed for the finding. Moreover, the agency's application of the previously stated finding to the law did not exceed the bounds of reasonableness. Burgener contends that her disability determination should have been made based on her condition at the time of the alleged discrimination and that, while the prescribed medication substantially improves her condition, the medication becomes ineffective at times, such as when she is under stress. The record, however, reveals no legal or evidentiary support for these contentions.

For these reasons, the agency's decision is affirmed.

______________________________

Norman H. Jackson,

Presiding Judge

______________________________

Pamela T. Greenwood, Judge

______________________________

William A. Thorne Jr., Judge