Jensen v. Labor Comm'n.

Jensen v. Labor Comm'n.

IN THE UTAH COURT OF APPEALS
 

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Loueda Allen Jensen,

Petitioner,

v.

Utah Labor Commission,

Respondent.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030597-CA
 

F I L E D
(October 7, 2004)
 

2004 UT App 346

 

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Original Proceeding in this Court

Attorneys: Richard L. Musick, Ephraim, for Petitioner

Douglas L. Neeley, Manti, for Respondent

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Before Judges Billings, Bench, and Greenwood.

BILLINGS, Presiding Judge:

    Loueda Allen Jensen appeals the decision of the Utah Labor Commission Appeals Board (Commission) denying her Motion For Review of a claim of discrimination in violation of the Utah Antidiscrimination Act. See Utah Code Ann. § 34A-5-101 to -108 (2002). We affirm.

    Jensen argues that the evidence before the Administrative Law Judge (ALJ) and the Commission was insufficient to support their findings. Pursuant to Utah Code section 63-46b-16(4)(g), we must grant relief to a person seeking judicial review of an agency action if the action "is based upon a determination of fact, made or implied by the agency, that is not supported by substantial evidence when viewed in light of the whole record before the court." Utah Code Ann. § 63-46b-16(4)(g) (2000).

    Because Jensen challenges the factual findings, she "'must marshal all of the evidence supporting the findings and show that despite the supporting facts, and in light of the conflicting or contradictory evidence, the findings are not supported by substantial evidence.'" Viktron/Lika Utah v. Labor Comm'n, 2001 UT App 394,¶5, 38 P.3d 993 (quoting Grace Drilling Co. v. Board of Review, 776 P.2d 63, 68 (Utah Ct. App. 1989)); see also Utah R. App. P. 24(a)(9) (stating that "[a] party challenging a fact finding must first marshal all record evidence that supports the challenged finding").

    Jensen has failed to marshal the evidence to show that the findings are not supported by substantial evidence. Rather, she attacks the findings that she disagrees with and ignores the evidence supporting the ALJ's and the Commission's findings. Absent a marshaling of evidence, "[w]e will uphold [an agency's] findings of fact." Marshall v. Marshall, 915 P.2d 508, 516 (Utah Ct. App. 1996). Because Jensen failed to marshal the evidence, we accept the findings of the Commission.(1)

    To establish a claim of unlawful employment discrimination, the employee must demonstrate that she or he was (1) a member of a protected class, (2) qualified to perform her job duties, and (3) terminated under circumstances that are capable of the inference of unlawful discrimination. See Sheikh v. Department of Pub. Safety, 904 P.2d 1103, 1106 (Utah Ct. App. 1995); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Once an employee establishes a prima facie case of unlawful employment discrimination, the burden then shifts to the employer to show it terminated the employee for a legitimate, nondiscriminatory reason. See, e.g., Viktron/Lika Utah, 2001 UT App 394 at ¶7. If the employer meets that burden, the burden then shifts back to the employee "to show that the employer's 'legitimate' reason is pretextual." Id.

    The Commission found that while Jensen established a prima facie case for unlawful employment discrimination, the City met its burden by showing that Jensen's reduction of hours and alterations of assignments were in response to the City's belief that Jensen could not perform some duties adequately. In response, Jensen failed to show how the City's reasons for her termination were a pretext for discrimination. Thus, the City's evidence of nondiscriminatory action stands.

    Therefore, we affirm.

______________________________

Judith M. Billings,

Presiding Judge

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WE CONCUR:

______________________________

Russell W. Bench,

Associate Presiding Judge

______________________________

Pamela T. Greenwood, Judge

1. Jensen also argues the doctrine of claim preclusion applies because in February 2000, the Utah Department of Workforce Services found on appeal that Jensen was not fired for "just cause" pursuant to the Utah Administrative Code

R994-405-201 to -202, thus making her eligible for unemployment benefits. However, this argument fails. The decisions of the Utah Department of Workforce Services are not binding in any other action or proceeding regardless of whether the previous action was between the same or related parties or involved the same facts. See Utah Code Ann. § 35A-4-508(6)(b) (2002).