Wal-Mart v. Babb

----ooOoo----

Wal-Mart Stores, Inc.,
Petitioner,

v.

Utah Labor Commission
and Trudi A. Babb,
Respondents.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000354-CA

F I L E D
October 5, 2000 2000 UT App 280 -----

Original Proceeding in this Court

Attorneys:
Steven C. Bednar and Kathleen W. Toth, Salt Lake City, for Petitioner
John L. Black, Jr., Salt Lake City, for Respondent Trudi A. Babb
Deidre Marlowe and Alan Hennebold, Salt Lake City, for Respondent Utah Labor Commission

-----

Before Judges Jackson, Billings, and Orme.

PER CURIAM:

The Utah Antidiscrimination and Labor Division's (UALD) investigation of Trudi Babb's claim against Wal-Mart culminated in the issuance of a Determination and Order on April 5, 1999, which found unlawful employment discrimination. The order, received by Wal-Mart on April 9, 1999, stated, in part:

The Respondent may appeal this Order by filing a written request for a formal hearing with the Director of the Division within 30 days from the date of this Order. If the Director receives no timely request for a hearing, this Order becomes the final order of the Commission and is not subject to further appeal.

Wal-Mart did not request a hearing within thirty days, and the order became final by its terms on May 5, 1999. On July 30, 1999, Wal-Mart filed a Request for Formal Hearing, accompanied by a Motion to Lengthen Time to Request Formal Review, seeking an extension under Utah Code Ann. § 63-46b-9(1) (Supp. 2000) of the Utah Administrative Procedures Act (UAPA). An administrative law judge denied the motion to lengthen time, and the Utah Labor Commission (Commission) affirmed the ruling. This case is before the court on motions for summary affirmance filed by each of the respondents.

After the UALD issues its Determination and Order, "[a] person may file a written request to the Division of Adjudication for an evidentiary hearing to review de novo the . . . determination and order within 30 days of the date of the determination and order." Utah Code Ann. § 34A-5-107(c) (Supp. 2000). The Commission concluded the statute provided no exceptions to the filing time. The Commission further concluded that Wal-Mart did not establish good cause for the late filing under section 63-46b-9(1).

Even assuming that section 63-46b-1(9) applies in this case, the Commission correctly concluded that Wal-Mart did not establish good cause for the delay in filing its request for a hearing. Section 63-46b-1(9) allows an agency's presiding officer, "for good cause shown," to lengthen or shorten any time period other than the periods for seeking judicial review. When there is a grant of discretion to the agency, either implicit or explicit, the agency's decision "should be affirmed if its decision is reasonable and rational." Department of Air Force v. Swider, 824 P.2d 448, 451 (Utah Ct. App. 1991). The determination and order clearly and unequivocally gave notice that the order would become final unless a request for a hearing was received within thirty days of the date of the determination and order. Nevertheless, Wal-Mart argues that an inexperienced paralegal did not understand that the order would become final if a request for formal hearing was not filed and Wal-Mart was not aware of the misunderstanding until contacted by UALD's counsel about enforcement.

The determination and order simply cannot reasonably be construed in the manner Wal-Mart contends its paralegal construed it. In any event, Wal-Mart then delayed an additional two months before filing its motion for review and motion seeking an extension. The Commission's decision that Wal-Mart did not demonstrate "good cause" to support a retroactive extension of the time to file a request for a hearing is reasonable and rational and must be affirmed.

The Commission's decision is affirmed, and the petition for review is dismissed.
 
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 
 
 

______________________________
Judith M. Billings, Judge
 
 
 
 

______________________________
Gregory K. Orme, Judge