Desai v. Labor Commission & Garfield School District

2014 UT App 293
_________________________________________________________

THE UTAH COURT OF APPEALS

HARSHAD P. DESAI,
Petitioner,
v.
LABOR COMMISSION AND GARFIELD SCHOOL DISTRICT,
Respondents.

Per Curiam Decision
No. 20140524-CA
Filed December 18, 2014

Original Proceeding in this Court

Harshad P. Desai, Petitioner Pro Se

Sean D. Reyes and Peggy E. Stone, Attorneys for
Respondent Garfield School District

Before JUDGES STEPHEN L. ROTH, JOHN A. PEARCE,
and KATE A. TOOMEY.

PER CURIAM:

¶1 Petitioner Harshad P. Desai seeks judicial review of the Utah
Labor Commission’s (the Commission) order denying his request
for reconsideration of the dismissal of his discrimination claims
against the Garfield School District (the District). We decline to
disturb the Commission’s decision.

¶2 In 2011, Desai applied to be superintendent of the District.
After he was not hired, Desai filed a discrimination claim with the
Division of Antidiscrimination and Labor (the Division) in which
he alleged discrimination based upon religion, national origin,
color, and race. He also alleged that the District retaliated against
him due to his filing of an earlier discrimination complaint. The
Division conducted an investigation of the allegations, and after
Desai v. Labor Commission

determining that the allegations were unsupported, the Division
issued a determination and order for dismissal of the adjudicative
proceeding. See Utah Code Ann. § 34A-5-107(4)(b) (LexisNexis
2011). The determination and order found “no reasonable cause”
to conclude that Desai had been subjected to the alleged
discriminatory practices. The Division determined that the District
did not hire Desai because (1) the District contacted its legal
representative and was told not to take any action on the
application due to a 2009 settlement agreement between Desai and
the District in an earlier discrimination case, and (2) Desai would
not have been hired for the superintendent position because he did
not have sufficient relevant experience and the person hired for the
superintendent position was considerably more qualified.

¶3 Desai appealed the Division’s decision and requested an
evidentiary hearing before an Administrative Law Judge (the ALJ).
See id. § 34A-5-107(4)(c) (“A party may make 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
the determination and order for dismissal is issued.”). Desai
claimed only that the release provisions in the 2009 settlement
agreement were invalid or unconstitutional and should not have
been applied in the hiring process for superintendent. The District
moved to dismiss the complaint for failure to state any claim
because it lacked any factual allegations in support of its
discrimination and retaliation claims. The ALJ stated that the only
factual allegation in the pleadings filed in the de novo proceeding
was “that a settlement agreement entered into between the parties
in an earlier discrimination case is discriminatory and retaliatory
because he is ‘black listed’ from future employment with” the
District. The ALJ concluded that if the December 5, 2009 settlement
agreement was the alleged discriminatory event, any claim
regarding the settlement agreement fell outside the time period
allowed by statute. See id. § 34A-5-107(1)(c) (requiring a request for
agency action to “be filed within 180 days after the alleged
discriminatory or prohibited employment practice occurred”).

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Desai v. Labor Commission

While Desai’s complaint in the de novo proceeding did not allege
that the adverse event was his not being hired for the
superintendent position, the ALJ stated that “even if one reviews
the pleadings in light of the adverse event being the application for
the superintendent position, the Petitioner has failed to show any
discriminatory acts by the school district in failing to hire him for
the position.” The ALJ dismissed the case for failure to state a
viable claim and cancelled the evidentiary hearing.

¶4 Desai filed a timely motion for review of the ALJ’s order by
the Commission, again challenging only the validity of the
provisions of the 2009 settlement agreement. The Commission
affirmed the ALJ’s decision, concluding that Desai did not present
any claim with regard to not being hired as superintendent. Desai
filed a motion to reconsider, which resulted in an Order Denying
Request for Reconsideration that is the subject of the petition for
judicial review before us. The Commission noted that Desai was
represented by counsel when he entered the 2009 settlement
agreement, although that agreement was not submitted to the
Commission for approval. While Desai sought a decision
invalidating the 2009 settlement agreement insofar as it precluded
him from seeking employment with the District, the Commission
stated that Desai “again fails to show how the Commission has any
such authority to alter an agreement in which the Commission was
not involved.” Furthermore, the Commission concluded that while
it had authority to determine whether the District discriminated
against Desai when it decided not to hire him as superintendent,
Desai “has not provided any evidence of a discriminatory motive
for such hiring practice” and “the settlement agreement is not
evidence of a discriminatory animus against Mr. Desai.”

¶5 Desai’s brief filed in this court challenges only the validity
and constitutionality of the 2009 settlement agreement, including
a claim that the agreement was “created for malice, vendetta,
retaliation, coercion [and] personal gains.” The Commission
correctly notes that beginning with the de novo proceedings, Desai
bore the initial burden to establish a prima facie case of

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Desai v. Labor Commission

discrimination by the District in the hiring process for the
superintendent position. However, as the decisions of the ALJ and
the Commission demonstrate, his pleadings focused only on the
allegedly invalid provisions of the 2009 settlement agreement
rather than describing any allegedly discriminatory or retaliatory
conduct in the 2011 hiring process. The Commission, and the ALJ
before it, correctly determined that even if the Commission had
jurisdiction to consider the challenge to the 2009 settlement
agreement, that claim was untimely and could not be considered
in this case. “Whether a party has failed to establish a prima facie
case of employment discrimination is a question of law, which we
review for correctness.” Kunej v. Labor Comm’n, 2013 UT App 173,
¶ 15, 306 P.3d 855 (citations and internal quotation marks omitted).
Desai failed to allege any facts that, if proven, would demonstrate
that the District engaged in discriminatory or retaliatory conduct
toward him in the hiring process for superintendent. His brief
contains a significant amount of material that is clearly irrelevant
to any claim that the District engaged in discriminatory practices
when Desai was not hired for the superintendent position. The case
was correctly dismissed.

¶6 Accordingly, we decline to disturb the Commission’s
decision.

20140524-CA 4 2014 UT App 293