Maverik Country Stores, Inc. v. Industrial Com'n of Utah

• Court: Utah Court of Appeals
• Writing for the Court: BILLINGS
• Citation: Maverik Country Stores, Inc. v. Industrial Com'n of Utah, 860 P.2d 944 (Utah App. 1993)
• Decision Date: 07 September 1993
• Docket Number: Nos. 920206-C,910413-CA,s. 920206-C
• Parties: MAVERIK COUNTRY STORES, INC., Petitioner, v. The INDUSTRIAL COMMISSION OF UTAH and Vicky Ann McCord, Respondents.

Page 944

860 P.2d 944

MAVERIK COUNTRY STORES, INC., Petitioner, v. The INDUSTRIAL COMMISSION OF UTAH and Vicky Ann McCord, Respondents.

Nos. 920206-CA, 910413-CA.

Court of Appeals of Utah.

Sept. 7, 1993.

Ronald C. Barker, Mitchell R. Barker, David G. Cundick, Salt Lake City, for petitioner.

Benjamin A. Sims, Gen. Counsel, Sharon J. Eblen, Indus. Com'n of Utah, Salt Lake City, for respondent Indus. Com'n of Utah.

James W. Stewart, Lisa A. Jones, Jones, Waldo, Holbrook & McDonough, Salt Lake City, for respondent McCord.

Before BILLINGS, JACKSON and RUSSON, JJ.

BILLINGS, Presiding Judge:

AMENDED OPINION ¹

Maverik Country Stores brings separate appeals from two decisions of the Industrial Commission of Utah. The first appeal is from the Industrial Commission's determination that Maverik violated Utah Code Ann. §§ 34-35-1 to -8 (1988 & Supp.1993), the Utah Anti-Discrimination Act, in its treatment of Vicky Ann McCord. The second appeal is from the Industrial Commission's ruling that Maverik's request for agency review was untimely. We dismiss the first appeal and affirm the ruling in the second. We remand for assessment of attorney fees.

FACTS

Ms. Jones, a Maverik store manager, hired Ms. McCord as a convenience store clerk on September 30, 1988. ² McCord worked six hour shifts, four days a week at $3.35 per hour during her two weeks of part-time employment. While at work on October 14, 1988, McCord experienced tightness in her chest and asked Jones if she could go to the hospital. The doctor at the hospital indicated McCord's heart was fine. McCord subsequently called Jones and offered to finish her shift. Jones told her to stay home and rest. While talking to McCord later that day, Jones stated her mother had died from heart problems and her son had recently had open heart surgery. She expressed concern over the seriousness of McCord's heart problems and indicated she would be afraid to leave McCord in the store alone. Jones then terminated McCord's employment.

McCord had answered "no" to an inquiry on the employment application regarding whether she had any heart problems which would limit her ability to perform the job. She did have a condition known as mitral valve prolapse which the parties stipulated was a "usually benign condition." A doctor examined McCord after she was terminated and found employment posed no risk to her.

Jones subsequently filled out a company form, a Record of Employee Counseling, describing the event and indicating she was very concerned McCord's heart problem would reoccur if she continued her job with Maverik. In a later letter to the Utah Anti-Discrimination Division (UADD), Jones again focused on her concern about a stress related reoccurrence. At the hearing before the administrative law judge (ALJ) on the discrimination claim, Jones mentioned some additional factors for the termination. These were McCord's difficulty in reading the gas pump meters and allegations that McCord smelled of alcohol at work. These factors, however, were never discussed in the termination interview nor noted on the termination form.

McCord subsequently sought employment at numerous locations from 1989 to 1991. She worked for a short time as a janitor at an elementary school but was forced to quit due to an unrelated illness.

McCord filed a complaint alleging a violation of the Utah Anti-Discrimination Act with the UADD on October 24, 1988. The UADD found for McCord in an Order issued January 24, 1991. Maverik requested a formal hearing before an ALJ. The hearing was held on May 15, 1991. The ALJ issued findings of fact and conclusions of law on June 26, 1991. The ALJ's June 26, 1991 decision included a specific reservation of the issue of appropriate attorney fees. On September 10, 1991, the ALJ issued a Supplemental Order disposing of the issue of attorney fees.

On July 26, 1991, Maverik filed a Writ of Review with this court (first appeal). The first appeal is from the ALJ's Order of June 26, 1991. On August 26, 1991, McCord and the Industrial Commission filed motions to dismiss the first appeal based on Maverik's failure to exhaust administrative remedies and lack of a final order. On September 16, 1991, this court ordered those motions deferred, and requested the parties include arguments on those issues in their briefs on the merits.

Despite its pending appeal, Maverik then filed a Request for Review by the Industrial Commission of the ALJ's June 26, 1991 and September 10, 1991 Orders. The date the request was filed is unclear. Counsel for Maverik signed and dated the request October 10, 1991. The request has two received dates stamped on it, October 11, 1991 and October 15, 1991. In later orders referring to the request, the Industrial Commission refers to both dates as the day it received the request. For the purposes of our review, we assume the request was received October 11, 1991.

On February 28, 1992, the Industrial Commission denied Maverik's Request for Review based on its untimeliness. ³ On March 19, 1992, Maverik filed a request with the Industrial Commission to reconsider its denial of the Request for Review. On March 30, 1992, the Industrial Commission denied Maverik's Request for Reconsideration. In this denial, the Industrial Commission recognized it could have allowed the late Request for Review if Maverik had shown good cause for extension of the time period. The Industrial Commission ruled, however, that Maverik had failed to show good cause for the extension.

On April 3, 1992, Maverik filed a "Limited Request for Reconsideration" in which it finally attempted to show good cause for its late filing of the original Request for Review. The Industrial Commission did not respond to this unique motion. On April 7, 1992, Maverik filed a Writ of Review with this court (second appeal). The second appeal is from the Industrial Commission's Order Denying Review and Order Denying Request For Reconsideration.

I. THE FIRST APPEAL--EXHAUSTION OF ADMINISTRATIVE REMEDIES

As a threshold matter, we must determine whether we have jurisdiction over the first appeal. Regardless of who raises the issue, we must dismiss a case if we determine we do not have jurisdiction. Silva v. Department of Employment Sec., 786 P.2d 246, 247 (Utah App.1990) (per curiam); see also Thompson v. Jackson, 743 P.2d 1230, 1232 (Utah App.1987) (per curiam). "When a matter is outside the court's jurisdiction it retains only the authority to dismiss the action." Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah App.1989).

The basic purpose underlying the doctrine of exhaustion of administrative remedies "is to allow an administrative agency to perform functions within its special competence--to make a factual record, to apply its expertise, and to correct its own errors so as to moot judicial controversies." Parisi v. Davidson, 405 U.S. 34, 37, 92 S.Ct. 815, 818, 31 L.Ed.2d 17 (1972); see also Pacific Intermountain Express Co. v. Tax Comm'n, 316 P.2d 549, 551 (Utah 1957) (recognizing correction rationale). Exceptions to the doctrine exist. For example, in instances where there is a chance that irreparable injury would occur if exhaustion was required or where requiring exhaustion would serve no useful purpose, the doctrine will not be applied. See Tax Comm'n v. Iverson, 782 P.2d 519, 524 (Utah 1989); see also Utah Code Ann. § 63-46b-14(2)(a) & (b) (1989).

In this case, Maverik appealed directly to this court thirty days after the ALJ's ruling. The Utah Anti-Discrimination Act provides that following the issuance of an order after a formal hearing pursuant to the Act "either party may file a written request for review of the order ... in accordance with Section 63-46b-12." Utah Code Ann. § 34-35-7.1(11)(a) (Supp.1993). This allows parties to an anti-discrimination hearing to take advantage of the general UAPA agency review process. If no timely review is filed "the order by the presiding officer becomes the final order of the commission." Id. § 34-35-7.1(11)(b). This section provides that the Industrial Commission need not act on the ALJ's order in any way for that order to take effect. Thus, on the day Maverik filed its petition for review the ALJ's order was a final enforceable order of the Industrial Commission.

The next subsection of the Anti-Discrimination Act, however, requires an aggrieved party to file for agency review under subsection 11(a) or lose the opportunity for judicial review. ⁴ That subsection provides: "An order of the commission under Subsection (11)(a) is subject to judicial review as provided in Section 63-46b-16." Id. § 34-35-7.1(12) (emphasis added). Subsection 12 could have easily provided that a final order under Subsection 11 was subject to judicial review under UAPA. The clear import of the legislature's omission of orders final under subsection 11(b) is that they are not subject to judicial review. Subsection 12 simply embodies the general principle that a party must exhaust its administrative remedies prior to obtaining judicial review. Therefore, a party adversely affected by an order of an ALJ in an anti-discrimination hearing cannot obtain judicial review of that order until it has been subject to administrative review. Cf. Hi-Country Homeowners Inc. v. Public Serv. Comm'n, 779 P.2d 682 (Utah 1989) (holding Utah Code Ann. § 54-7-15(2)(b) required application for rehearing prior to judicial appeal).

Furthermore, the principle of exhaustion of administrative remedies is apparently embodied in the general provisions of UAPA. One section provides: "A party may seek judicial review only after exhausting all administrative remedies available...." Utah Code Ann. § 63-46b-14(2) (1989) (emphasis added). This provides additional support for our decision. ⁵ We have no jurisdiction over the first appeal and have no choice but to dismiss it. ⁶

II. THE SECOND APPEAL

A. Industrial Commission's Jurisdiction

Maverik contends the filing of the first appeal, regardless of...