Kunej v. Labor Commission , 306 P.3d 855 ( 2013 )

2013 UT App 172_________________________________________________________
THE UTAH COURT OF APPEALS
CHRIS K. KUNEJ,
Petitioner,
v.
LABOR COMMISSION AND UNIVERSITY OF UTAH,
Respondents.
Memorandum Decision
No. 20120416‐CA
Filed July 11, 2013
Original Proceeding in this Court
Chris K. Kunej, Petitioner Pro Se
John E. Swallow, J. Clifford Petersen, and
J. Francis Valerga, Attorneys for Respondent
University of Utah
Alan L. Hennebold, Attorney for Respondent
Labor Commission
JUDGE MICHELE M. CHRISTIANSEN authored this Memorandum
Decision, in which JUDGES GREGORY K. ORME and JAMES Z. DAVIS
concurred.
CHRISTIANSEN, Judge:
¶1 Chris K. Kunej challenges the Labor Commission’s (the
Commission) order dismissing Kunej’s employment discrimination
claim against the University of Utah (the University). We decline
to disturb the Commission’s decision.
¶2 During 2007, Kunej applied for twenty‐eight different
positions with the University but was ultimately not hired for any
of these positions—many of which were filled by female
applicants. On May 30, 2008, Kunej filed a discrimination claim
with the Antidiscrimination and Labor Division of the
Kunej v. Labor Commission
Commission, alleging gender discrimination in the University’s
hiring practices. On January 26, 2010, the Antidiscrimination and
Labor Division issued a determination and order finding there was
no reasonable cause to conclude Kunej had been subjected to the
alleged discriminatory practices. Kunej timely appealed, requesting
a formal evidentiary hearing before an Administrative Law Judge
(the ALJ). Following the hearing, the ALJ determined that Kunej
had failed to demonstrate that the University’s stated reasons for
not hiring him were a pretext for gender‐based discrimination and
dismissed Kunej’s discrimination claim. Kunej then timely filed
with the Commission a motion to review, and separately filed a
“motion to vacate” alleging that the ALJ was biased. On April 24,
2012, the Commission, through its Appeals Board (the Board),
issued an order affirming the ALJ’s dismissal of Kunej’s
discrimination claim, finding that Kunej’s allegations of bias were
unsubstantiated. Kunej now petitions this court for judicial review
of the Commission’s final agency action.
¶3 Kunej first argues that the Commission erred in concluding
that the reasons given by the University for declining to hire Kunej
were not a pretext for gender‐based discrimination. Under the Utah
Antidiscrimination Act (UADA), it is a discriminatory employment
practice to refuse to hire any person otherwise qualified because of
that person’s gender. See Utah Code Ann. § 34A‐5‐106(1)(a)(i)(C)
(LexisNexis Supp. 2012) (“An employer may not refuse to hire . . .
any person otherwise qualified, because of . . . sex . . . .”). “To
establish a claim of employment discrimination, the employee has
the initial burden to establish a prima facie showing of the
employer’s discrimination.” Sheikh v. Department of Pub. Safety, 904
P.2d 1103, 1106 (Utah Ct. App. 1995) (citation and internal
quotation marks omitted). “Once a prima facie case has been
established, the burden to produce evidence shifts to the employer
who must articulate a legitimate, nondiscriminatory reason for its
suspect conduct.” Id. “If the employer succeeds in rebutting the
20120416‐CA 2 2013 UT App 172Kunej v. Labor Commission
inference of discrimination, the burden of production shifts back to
the employee who must then show by a preponderance of the
evidence that the employer’s articulated reasons were merely a
pretext for discrimination.” Id. “The ultimate burden of persuasion
that the employer discriminated against the employee remains at
all times with the plaintiff.” Id. (citation and internal quotation
marks omitted).
¶4 The parties do not dispute that Kunej initially made a prima
facie showing of discrimination and that the University articulated
a nondiscriminatory explanation of its hiring decisions. Thus,
Kunej had the burden to persuade the Commission “that a
discriminatory reason more likely motivated [the employer] than
the reasons it proffered or, in the alternative, to discredit its
explanation.” See University of Utah v. Industrial Comm’n, 736 P.2d
630, 636 (Utah 1987).
¶5 Under the Utah Administrative Procedures Act, we may
grant relief if “the agency has erroneously interpreted or applied
the law.” Utah Code Ann. § 63G‐4‐403(4)(d). Because review under
subsection (4)(d) does not “imply a specific standard of review,”
we are “free to apply our traditional approach in selecting the
appropriate standard of review” based on “whether the [agency]’s
decision qualifies as a finding of fact, a conclusion of law, or a
determination of a mixed question of law and fact.” See Murray v.
Labor Comm’n, 2013 UT 38, ¶¶ 23–24. Whether the Commission
misapplied the law to the particular facts of a case is a traditional
mixed question of law and fact, and our degree of deference to the
Commission’s decision therefore turns on whether its decision is
“fact‐like” or “law‐like.” Id. ¶ 24, 37. The determination whether an
employer’s conduct was motivated by discrimination—i.e., that its
proffered explanation was pretextual—is “both sensitive and
difficult.” Pitre v. Western Elec. Co., 843 F.2d 1262, 1266 (10th Cir.
1988) (evaluating employment discrimination claim under Title VII
20120416‐CA 3 2013 UT App 172Kunej v. Labor Commission
of the federal Civil Rights Act).1 “In assessing pretext, everything
depends on the individual facts.” McDonough v. City of Quincy, 452
F.3d 8, 19 (1st Cir. 2006) (citation and internal quotation marks
omitted). Thus, the Commission’s pretext determination is not
“law‐like” because the “particular facts and circumstances” of the
conduct at issue “are likely to be so complex and varying that no
rule adequately addressing the relevance of all these facts can be
spelled out.” See In re Adoption of Baby B., 2012 UT 35, ¶¶ 42–43.
Moreover, because the Commission must necessarily “decide
which party’s explanation of the employer’s motivation it
believes,” Pitre, 843 F.2d at 1266, the Commission’s pretext
determination “would often be affected by [its] observation of a
competing witness’s appearance and demeanor on matters that
cannot be adequately reflected in the record available to appellate
courts,” and the determination is therefore “fact‐like,” see In re
Adoption of Baby B., 2012 UT 35, ¶¶ 42–43. Such a “fact‐like”
determination is entitled to deference by this court, “and would be
properly [approved] on [review] if not clearly erroneous.” Id. ¶ 46.
¶6 To show that an employer’s explanation for a hiring decision
is pretextual, a plaintiff must “demonstrat[e] that the employer’s
explanation for its decision was so implausible, incoherent, or
internally contradictory that the decision must have been made on
some other basis.” Conroy v. Vilsack, 707 F.3d 1163, 1174 (10th Cir.
2013) (citation and internal quotation marks omitted). In evaluating
1
The UADA was modeled after Title VII of the Civil
Rights Act, Darvish v. Labor Comm’n, 2012 UT App 68, ¶ 23, 273
P.3d 953, and Utah courts have adopted a framework for analyz‐
ing UADA claims that mirrors the Title VII inquiry, see Sheikh v.
Department of Pub. Safety, 904 P.2d 1103, 1106 (Utah Ct. App.
1995). Thus, “in interpreting the [UADA], the substantial body of
federal case law interpreting Title VII is useful.” Darvish, 2012
UT App 68, ¶ 23 (citation and internal quotation marks omitted).
20120416‐CA 4 2013 UT App 172Kunej v. Labor Commission
the employer’s justification for its hiring decision, the court must
“examine the facts as they appear to the person making the decision.”
Id. (citation and internal quotation marks omitted). Thus, a court
does not evaluate whether an employer’s hiring decision was
“wise, fair or correct,” but only whether its decision was made in
good faith, Exum v. United States Olympic Comm., 389 F.3d 1130,
1138 (10th Cir. 2004) (citation and internal quotation marks
omitted), and based on lawful criteria, University of Utah, 736 P.2d
at 636.
¶7 We note at the outset that Kunej does not marshal the
evidence supporting the Commission’s factual findings, as he
purports to challenge only the Commission’s legal conclusions.
Thus, we “assume the record supports the Commission’s findings”
contained within the final agency order regarding the qualifications
required for each of the positions at issue and the qualifications of
Kunej and the hired applicants. See Whitear v. Labor Commʹn, 973
P.2d 982, 985 (Utah Ct. App. 1998).
¶8 Kunej’s primary argument is that other applicants were so
underqualified for the positions for which they were hired, or that
Kunej’s qualifications were so superior to those of the hired
applicants, that only a discriminatory motive can explain the
University’s hiring decisions. He also asserts that pretext was
demonstrated through inconsistencies drawn from witness
testimony at the evidentiary hearing and by the actions of the
University’s Director of Financial Aid (the Director).2
2
Kunej also argues that because an all‐female panel per‐
formed the interview for one or more positions, the makeup of
the panel is “indirect statistical evidence of discrimination”
indicating disparate impact. Kunej provides no authority for this
proposition and fails to explain how this should have affected
(continued...)
20120416‐CA 5 2013 UT App 172Kunej v. Labor Commission
¶9 First, Kunej purports to show that various candidates
selected by the University were less qualified than the University
believed them to be, yet this argument misunderstands the relevant
inquiry. “The relevant inquiry is not whether [the employer’s]
proffered explanations were wise, fair or correct, but whether [it]
honestly believed those reasons and acted in good faith on those
beliefs.” Exum, 389 F.3d at 1138 (second alteration in original)
(citation and internal quotation marks omitted). “Although the
employee, and even the judge, may believe that the employer
misjudged the qualifications of the applicants, that does not,
without more, subject the employer to liability under the [UADA].”
University of Utah v. Industrial Comm’n, 736 P.2d 630, 636 (Utah
1987) (emphasis omitted). The question before the Commission was
not whether the University wisely or correctly evaluated the
qualifications of the applicants, but whether the University made
its hiring decision based only upon the information before it at the
time it made the hiring decision, rather than upon a discriminatory
motive. Indeed, whether an applicant misrepresented her
qualifications or the University misjudged an applicant’s
qualifications has no bearing on whether the University
discriminated against Kunej.
¶10 Second, Kunej places much weight on a supposed disparity
between his own qualifications and those of the hired applicants.
To demonstrate pretext on this basis, Kunej must show “an
2
(...continued)
the Commission’s findings regarding pretext or disparate im‐
pact. Because this issue is inadequately briefed, we do not ad‐
dress it further. See Utah R. App. P. 24(a)(9) (listing requirements
for briefs); State v. Thomas, 961 P.2d 299, 305 (Utah 1998) (stating
that an issue is inadequately briefed “when the overall analysis
of the issue is so lacking as to shift the burden of research and
argument to the reviewing court”).
20120416‐CA 6 2013 UT App 172Kunej v. Labor Commission
overwhelming merit disparity” between himself and the selected
applicant for a given position. See Conroy, 707 F.3d at 1172.
However, the Commission’s findings do not reflect an
overwhelming merit disparity—Kunej does not possess a college
degree, and University employees involved in the hiring process
expressed concerns about his interpersonal skills, education, and
work history. Rather, for a number of the positions at issue here,
and based upon the requirements of the position, the Commission
found Kunej to be less qualified than the hired applicant. It is clear
that an employer has the discretion to determine what the relevant
criteria for a given hiring decision will be, see id. at 1172–73, so long
as these criteria are not unlawful, University of Utah, 736 P.2d at 636.
The record demonstrates that the University presented non‐
discriminatory hiring criteria that are lawful pursuant to the
UADA. Given the factual findings here, the Commission’s
conclusion that there was insufficient disparity between Kunej’s
purported qualifications and the qualifications of the successful
candidates to support a finding of pretext is not clearly erroneous.
¶11 Additionally, Kunej asserts that a variety of alleged
inconsistencies or contradictions in witness testimony at the
evidentiary hearing demonstrate that the University’s proffered
explanation is merely a pretext. Kunej has failed to provide this
court with a transcript of the evidentiary hearing, despite having
the burden as the appellant to provide a transcript of the relevant
proceedings below. Utah R. App. P. 11(e); see Gorostieta v. Parkinson,
2000 UT 99, ¶ 16, 17 P.3d 1110 (“Parties claiming error below and
seeking appellate review have the duty and responsibility to
support their allegations with an adequate record.” (citation and
internal quotation marks omitted)). Without an adequate record to
review this challenge to the Commission’s determination, we must
“presume the regularity of the proceedings below.” See Bagley v.
KSM Guitars, Inc., 2012 UT App 257, ¶ 11, 290 P.3d 26 (quoting State
v. Pritchett, 2003 UT 24, ¶ 13, 69 P.3d 1278); State v. Nielsen, 2011 UT
20120416‐CA 7 2013 UT App 172Kunej v. Labor Commission
App 211, ¶ 4, 257 P.3d 1103 (per curiam) (“Absent a transcript of
that dayʹs hearing, this court cannot review the adequacy of the . . .
findings or the ultimate decision . . . .”).
¶12 We recognize that, as a pro se litigant, Kunej should be
“accorded every consideration that may reasonably be indulged.”
See State v. Winfield, 2006 UT 4, ¶ 19, 128 P.3d 1171 (citation and
internal quotation marks omitted). Nevertheless, “a party who
represents himself will be held to the same standard of knowledge
and practice as any qualified member of the bar.” Id. (citation and
internal quotation marks omitted). We also note that the Utah
Rules of Appellate Procedure allow for substitute methods of
providing an adequate record in the event of an appellant’s
impecuniosity, of which methods Kunej did not avail himself. See
Utah R. App. P. 11(f), (g). Under these circumstances, we cannot
relieve Kunej of his obligation to comply with the rules of appellate
procedure.
¶13 Finally, Kunej claims that pretext is shown by the Director’s
questioning of Kunej about his knowledge of financial aid during
a meeting Kunej requested to discuss his concerns about not being
hired. Kunej asserts that the Director’s questioning regarding
Kunej’s financial aid knowledge shows “disparate treatment”
because none of the other candidates for the financial aid position
were tested on their knowledge of the subject. However, Kunej
does not explain how this supports his claim of gender
discrimination when four of the other twelve candidates
interviewed for the position were also men. Furthermore, Kunej
argues that, subsequent to that meeting, the Director’s name was
added to the financial aid department’s online staff directory,
where it had not appeared before. Kunej argues that the addition
of the Director’s name to the staff directory shows “deceit used to
cover one’s tracks” because Kunej had voiced concerns about the
male‐to‐female staff ratio in the department. Kunej does not allege
20120416‐CA 8 2013 UT App 172Kunej v. Labor Commission
that the addition of the Director’s name to the listing was
inaccurate or dishonest. Rather, Kunej argues that the correction of
this omission in the online staff directory is evidence of pretext
because it had the effect of improving the apparent male‐to‐female
staff ratio of the department.
¶14 Having reviewed the Commission’s factual findings, we
conclude that we must defer to the Commission’s application of the
law to the facts before it. Even if we accept Kunej’s argument
regarding the staff directory, the University’s explanation for its
hiring decision for each of the positions at issue here, viewed in
light of the whole record, is not “so implausible, incoherent, or
internally contradictory” that it was erroneous for the Commission
to find the proffered explanation was not pretextual. Because the
Commission’s determination that the University’s explanations
were not pretextual is not clearly erroneous, we decline to disturb
the Commission’s decision on this basis.
¶15 Kunej next argues that the Commission erred in finding that
Kunej did not demonstrate that the University’s hiring practices
had a disparate impact on him as a male. “[A] plaintiff may
establish a prima facie case of disparate impact discrimination by
showing that a specific identifiable employment practice or policy
caused a significant disparate impact on a protected group.”
Carpenter v. Boeing Co., 456 F.3d 1183, 1187 (10th Cir. 2006)
(alteration in original) (citation and internal quotation marks
omitted). “[W]here a plaintiff relies on statistical evidence” to
demonstrate disparate impact, “he must show gross statistical
disparities.” Foster v. Ruhrpumpen, Inc., 166 F. App’x 389, 393 (10th
Cir. 2006) (citation and internal quotation marks omitted). Whether
a party has failed to establish a prima facie case of employment
discrimination is a question of law, which we review for
correctness. See Sheikh v. Department of Pub. Safety, 904 P.2d 1103,
1105 (Utah Ct. App. 1995); see also Murray v. Labor Comm’n, 2013 UT
20120416‐CA 9 2013 UT App 172Kunej v. Labor Commission
38, ¶¶ 23–24 (explaining that our traditional standards of review
are applicable to judicial review of an agency’s interpretation or
application of the law).
¶16 The employment practice that Kunej claims caused a
disparate impact on male applicants was the subjective nature of
the interviews conducted by various departments at the University.
However, the limited statistical evidence contained in this record
does not show a significant disparate impact on male applicants.
The Commission found that of the twenty‐four positions for which
Kunej applied that were ultimately filled by the University, 74%
were filled with female applicants from an applicant pool that
consisted of 72% females.3 We agree with the Commission that
such a minimal difference between the gender composition of the
applicant pool and the hired applicants does not show the “gross
statistical disparities” necessary to demonstrate a significant
disparate impact on male applicants. See Foster, 166 F. App’x at 393.
¶17 Kunej contends that we should evaluate his disparate impact
claim solely on the basis of the six positions for which the
Commission determined Kunej’s claims were timely filed.4 Kunej
3
Because Kunej does not marshal the evidence supporting
this factual finding by the Commission, “we assume the record
supports the Commission’s findings.” See Whitear v. Labor
Commʹn, 973 P.2d 982, 985 (Utah Ct. App. 1998).
4
While Kunej applied for twenty‐eight positions with the
University, the Commission determined that Kunej’s
discrimination claim was timely for only six of those positions.
See Utah Code Ann. § 34A‐5‐107(1)(c) (LexisNexis 2011)
(requiring that a request for agency action be filed within 180
days after the alleged discriminatory or prohibited employment
(continued...)
20120416‐CA 10 2013 UT App 172Kunej v. Labor Commission
provides no authority for the proposition that the University’s
hiring practices outside of the 180‐day limitations period on filing
a discrimination claim are not relevant to a disparate impact
analysis. However, even if Kunej were correct, this argument is
self‐defeating because the suggested group is “too small to provide
reliable statistical results” and thus “carries little or no probative
force to show discrimination.” See Fallis v. Kerr‐McGee Corp., 944
F.2d 743, 746 (10th Cir. 1991) (explaining that a group of nine
employees was too small a statistical sample to provide reliable
results, because the termination or retention of just one or two
employees “would have had an enormous impact on the
percentage” of employees impacted). Because Kunej has failed to
advance evidence demonstrating a significant disparate impact on
male applicants attributable to the challenged employment
practice, he has not made a prima facie case of disparate impact.
Thus, the Commission did not err by dismissing his disparate
impact claim.
¶18 Kunej next claims that the Commission erred by not
vacating the decision of the ALJ due to the ALJ’s failure to
disqualify herself from the case. Kunej alleges that the ALJ was
biased because the ALJ previously worked for the University and
for the Utah Attorney General’s Office (which represents the
University in this proceeding). “Determining whether a trial judge
committed error by failing to recuse himself . . . is a question of
law, and we review such questions for correctness.” See Lunt v.
Lance, 2008 UT App 192, ¶ 7, 186 P.3d 978 (omission in original)
(citation and internal quotation marks omitted); see also Murray,
2013 UT 38, ¶¶ 23–24 (explaining that our traditional standards of
review are applicable to judicial review of an agency’s
interpretation or application of the law). Because “judges are
presumed to be qualified,” the party alleging bias “bears the
4
(...continued)
practice occurred). Kunej does not challenge this determination.
20120416‐CA 11 2013 UT App 172Kunej v. Labor Commission
burden of demonstrating that the judge is not qualified to act on
the case.” In re Affidavit of Bias, 947 P.2d 1152, 1153 (Utah 1997)
(mem.).
¶19 Under Utah Code section 78A‐2‐222, a judge may not sit or
act in any proceeding in which she has been attorney or counsel for
either party in that proceeding, except by consent of the parties.
Utah Code Ann. § 78A‐2‐222(1)(c) (LexisNexis 2012). This
prohibition is applicable to administrative law judges. Anderson v.
Industrial Comm’n, 696 P.2d 1219, 1221 (Utah 1985). However, a
judge need not recuse herself in every case where she has had
contact with a party on an unrelated matter, see State v. Neeley, 748
P.2d 1091, 1094 (Utah 1988), or where her former employer
participates as counsel in the proceeding on a matter in which the
judge herself never participated, see In re Affidavit of Bias, 947 P.2d
at 1155. Here, the ALJ worked in the Utah Attorney General’s
Office from August 1991 to November 1993 and from November
1998 to July 2003. The ALJ also worked in the University’s Office of
Equal Opportunity and Affirmative Action from June 1994 to July
1996. There is nothing in the record before us to suggest any
connection between the present litigation and any matters in which
the ALJ was involved while employed at the Utah Attorney
General’s Office or the University that would have required the
ALJ’s recusal under section 78A‐2‐222.
¶20 Additionally, a judge “should disqualify herself in a
proceeding in which the judge’s impartiality might reasonably be
questioned.” West Jordan City v. Goodman, 2006 UT 27, ¶ 21, 135
P.3d 874 (citation and internal quotation marks omitted). However,
“judges are not subject to disqualification in every situation where
their impartiality is questioned, particularly when the potential for
bias is remote.” Id. “Where a case . . . involves remote, contingent,
indirect or speculative interests, disqualification is not required.”
American Rural Cellular, Inc. v. Systems Commc’n Corp., 939 P.2d 185,
196 (Utah Ct. App. 1997) (citation and internal quotation marks
20120416‐CA 12 2013 UT App 172Kunej v. Labor Commission
omitted). Kunej has not introduced evidence that the ALJ had any
direct personal or financial interest in the outcome of the litigation,
or any other interest that is not indirect or speculative. See id. at 196.
Moreover, there is no evidence of impropriety or actual bias on the
part of the ALJ. See In re Affidavit of Bias, 947 P.2d at 1154 (“[T]he
mere fact that a judge decides a case against a party may not be
considered in determining bias.”). We therefore conclude that the
ALJ was not required to disqualify herself, and that the
Commission did not err in refusing to vacate the ALJ’s decision on
that basis.
¶21 Kunej next asserts that the University’s counsel committed
“prosecutorial misconduct” by referring to certain exhibits,
previously admitted during the evidentiary hearing before the ALJ,
as “questionable hearsay documents” in the University’s response
brief to Kunej’s motion for review of the ALJ’s decision before the
Board, thereby violating a stipulation to admit the evidence at the
hearing. Because the alleged misconduct occurred in the
University’s response brief to the Board, Kunej asserts that he had
no opportunity to object to the Commission, and now raises this
issue for the first time in this judicial review proceeding.
¶22 Even if we assume that all of the facts alleged by Kunej to
support this claim are true, Kunej cannot succeed on a
prosecutorial misconduct claim because counsel for the University
are not prosecutors. The claim of prosecutorial misconduct is
premised upon the unique role of the prosecutor in a criminal case
and is inapplicable to a civil action. See State v. Todd, 2007 UT App
349, ¶ 17, 173 P.3d 170 (“In our judicial system, ‘the prosecution’s
responsibility is that of a minister of justice and not simply that of
an advocate’ . . . .” (quoting State v. Hay, 859 P.2d 1, 7 (Utah 1993)));
see also Utah R. Prof’l Conduct 3.8 & cmt. 1 (identifying the special
responsibilities of a prosecutor). Although Kunej urges this court
to apply an “elevated standard of conduct” to the University’s
counsel as “a representative of the state,” we disagree that the role
20120416‐CA 13 2013 UT App 172Kunej v. Labor Commission
of defense counsel for a state university in a civil proceeding is
sufficiently analogous to that of a prosecutor in a criminal
proceeding to warrant such a standard here. We therefore conclude
that Kunej’s misconduct claim must fail as a matter of law, and we
decline to disturb the Commission’s decision on that basis.
¶23 Kunej next claims that the University’s use of his deposition
at the evidentiary hearing violated his due process rights because
the taking of the deposition did not comply with the Utah Rules of
Civil Procedure. See Utah R. Civ. P. 30 (governing the taking of oral
depositions). “We have consistently held that issues not raised in
proceedings before administrative agencies are not subject to
judicial review except in exceptional circumstances.” Sullivan v.
Utah Bd. of Oil, Gas & Mining, 2008 UT 44, ¶ 14, 189 P.3d 63 (citation
and internal quotation marks omitted). To preserve an issue for
judicial review, the issue must be raised “at the administrative
level[ so] either the administrative law judge or the Commission
could have adjudicated the issue.” Columbia HCA v. Labor Comm’n,
2011 UT App 210, ¶ 6, 258 P.3d 640 (mem.) (alteration in original)
(citations and internal quotation marks omitted). To preserve an
issue, appellants must “cit[e] to the record showing that the issue
was preserved in the trial court.” Utah R. App. P. 24(a)(5)(A); see
Darvish v. Labor Comm’n, 2012 UT App 68, ¶ 25, 273 P.3d 953(“[Rule 24(a)(5)(A)] applies to review of the orders of
administrative agencies.”).
¶24 Because Kunej has failed to provide a transcript of the
evidentiary hearing pursuant to rule 11 of the Utah Rules of
Appellate Procedure, see supra ¶¶ 11–12, he has not demonstrated
that this claim was preserved on the record before this court.
Therefore we decline to disturb the Commission’s decision on this
basis.
¶25 Kunej’s final claim is that the Antidiscrimination and Labor
Division abused its discretion in making its initial determination of
20120416‐CA 14 2013 UT App 172Kunej v. Labor Commission
“No Reasonable Cause,” thereby setting an unfavorable precedent
for subsequent proceedings. However, Kunej did not preserve this
argument for review by presenting it to the ALJ or to the Board. See
Sullivan, 2008 UT 44, ¶ 14; Columbia HCA, 2011 UT App 210, ¶ 6.
Because this Kunej did not preserve this issue by raising it at the
administrative level, we do not review it further.
¶26 Because we conclude that the Commission did not err in
dismissing Kunej’s discrimination claim, and Kunej has failed to
demonstrate that bias or other claimed procedural irregularities
affected the proceedings, we decline to disturb the Commission’s
decision.
20120416‐CA 15 2013 UT App 172