Opinion
20220365-CA
12-21-2023
Lufusi Vea Ofa, Petitioner, v. Department of Human Services and Career Service Review Office, Respondents.
Jeremy G. Jones, Richard R. Willie, and David H. Culmer, Attorneys for Petitioner Sean D. Reyes and Joshua D. Davidson, Attorneys for Respondents
Original Proceeding in this Court
Jeremy G. Jones, Richard R. Willie, and David H. Culmer, Attorneys for Petitioner
Sean D. Reyes and Joshua D. Davidson, Attorneys for Respondents
Judge Amy J. Oliver authored this Opinion, in which Judges Ryan M. Harris and Ryan D. Tenney concurred.
OPINION
OLIVER, Judge
¶1 The Utah Department of Human Services (DHS) terminated Lufusi Vea Ofa from his position as a youth corrections counselor with Juvenile Justice Services (JJS) after he used excessive force and unauthorized holds on an in-custody juvenile. Ofa contends that the agency's decision to terminate him is contrary to DHS's prior practice. DHS counters that its decision was justified because it provided a fair and rational basis for any inconsistency in discipline with comparable employees. The Career Service Review Office (the CSRO) upheld DHS's decision to terminate Ofa, and we decline to disturb that decision.
"Because the party seeking review of an agency's order following a formal administrative proceeding has the burden to prove that the agency's factual findings are not supported by substantial evidence, we state the facts and all legitimate inferences to be drawn from them in the light most favorable to the agency's findings." WWC Holding Co. v. Public Service Comm'n, 2002 UT 23, ¶ 2, 44 P.3d 714.
The Incident
¶2 In February 2021, Ofa initiated a physical intervention with a youth (the Youth) who was in the custody of JJS. The incident occurred in a classroom at the Salt Lake Valley Youth Center and was recorded by its cameras. Several male juveniles, including the Youth, were sitting at tables when the Youth exchanged words with another youth at an adjacent table and then stood up, taking a fighting position. The other youth stood up in response and began moving toward the Youth.
¶3 Ofa entered the classroom, approached the Youth from behind, and grabbed the back of the Youth's shirt with such force that he was pulled off his feet. Ofa removed the Youth from the room into the hallway, where Ofa's supervisor then held him as Ofa placed him first in a bent-wrist, or gooseneck, hold and then, rotating his hand behind and away, in a reverse-gooseneck hold. The Youth did not appear to resist until Ofa applied the reverse-gooseneck hold. Ofa escorted the Youth down the hall and into a room that also had cameras. The Youth's wrist and arm had a visible deformation from the force of the reverse-gooseneck hold. After holding his arm up to a window in the door, the Youth laid on the floor, holding his wrist and appearing to be in "obvious pain." The Youth received medical attention, and he later required surgery to repair his broken arm.
Ofa's Prior History and Training
¶4 JJS hired Ofa in 1997 as a youth corrections counselor. Ofa has no prior history of using excessive force, but in 2017, Ofa was suspended without pay for "inappropriate and disrespectful comments" he posted on social media that violated JJS's code of ethics. In the disciplinary letter, Ofa was warned that "further policy or rule violations may result in further disciplinary action, which could include dismissal from state employment."
¶5 Beginning in 2010, Ofa received Integrated Crisis Response (ICR) training as part of his employment. Ofa consistently completed the annual training for the next several years. Except for life-threatening situations, trainees were taught to first use verbal intervention and then, if that failed, the least amount of force necessary to protect all those involved.
¶6 Ofa's actions during the incident in February 2021 did not conform with his ICR training. Ofa did not respond to the Youth's posturing with verbal intervention before he pulled the Youth backward by the shirt, and the force with which he grabbed the Youth was excessive given the mismatch in size between the Youth and Ofa, who was considerably larger. Moreover, neither of the wrist holds Ofa used on the Youth were authorized ICR techniques. The reverse-gooseneck hold, in particular, has a high probability of causing physical injury and an increased possibility of breaking a bone because it applies pressure to a specific, small joint rather than the whole limb. During the incident, Ofa continued using this "unapproved wrist hold" on the Youth for over a minute. An audio recording captured the Youth expressing pain and telling Ofa he was hurting him.
Investigations and the Decision to Terminate
¶7 Ofa was placed on paid administrative leave while JJS investigated the policy violations and alleged misconduct related to the incident. The JJS Internal Review Team emailed its findings on policy violations to the JJS director (Director), who reviewed the findings, the incident reports prepared by Ofa and his supervisor, the investigation reports, and the video of the incident. Director assigned a DHS specialist to compile Ofa's discipline history, the incident reports, the investigation reports, and a spreadsheet of "comparable cases."
Independent reviews of the incident were conducted by Child Protective Services, because JJS staff are mandatory reporters, and the South Salt Lake Police Department. The first investigation resulted in a substantiated finding of physical child abuse, and the second resulted in Ofa being charged with second-degree felony child abuse for intentional infliction of serious physical injury, see State v. Ofa, No. 211908777, (Utah 3rd Dist., Aug. 8, 2021).
¶8 Only two comparable cases were found that involved the use of excessive force. The first (Comparable 1) involved an employee who was dismissed for the use of excessive force, but because the employee had probationary status and could be dismissed without cause, the incident did not involve a full investigation and no facts about the underlying events were available to review. The second (Comparable 2) involved the discipline of an employee who was given a written warning after using an unapproved chokehold. No injury resulted from the employee's actions.
¶9 Director decided that dismissal was the most appropriate discipline for Ofa and issued him a written notice of intent to impose discipline "in the form of a Dismissal." The letter identified five policies that DHS believed Ofa had violated and notified Ofa of his right to be heard by the DHS executive director before dismissal occurred. Ofa availed himself of that right. The executive director made the final decision to terminate Ofa's employment, sending a written notice to Ofa. Ofa then appealed his termination to the CSRO.
The CSRO Proceedings
¶10 After holding a three-day evidentiary hearing, the CSRO concluded DHS had substantial evidence on which to take disciplinary action against Ofa. The CSRO's determination was based on, among others, findings that (1) Ofa's "actions caused injury to [the] Youth"; (2) Ofa "did not demonstrate accountability for causing the Youth's injury"; (3) neither of the wrist holds Ofa used was an "authorized or trained ICR technique"; (4) Ofa's supervisor's report acknowledged the Youth was injured, but Ofa's incident report stated "there was no injury"; (5) the incident involved Ofa's "performance of his official duties," and his actions "impeded his ability to carry out [those] duties because the use of force was immediate with no verbal de-escalation attempt"; and (6) there is a "risk of [Ofa] repeating similar use of premature and inappropriate use of force."
¶11 The CSRO also discussed how Ofa's conduct violated the Youth's right "[t]o not be subjected to corporal punishment, harassment, and abuse of any kind, intimidation, . . . or humiliation." It found Ofa's conduct constituted "abuse" and "humiliated [the] Youth" because there "was no apparent justification for escorting" the Youth out of the room "using a pain and injury inducing hold." And the CSRO concluded Ofa's actions violated JJS policy against the use of physical force "applied solely for the purpose of inflicting physical pain or undue physical discomfort."
¶12 After its substantial evidence determination, the CSRO next considered whether DHS's decision to terminate Ofa was proportionate to Ofa's conduct and the policy violations. The CSRO found "the evidence of the conduct in violation of policy was not tenuous" because the incident was captured on video. The CSRO explained that Ofa's "actions had the potential to erode public confidence in JJS because the video depicted violence and use of force and this would lead to the public not having confidence [in JJS] to serve youth in custody." And, the CSRO explained that, after the 2021 legislative session, "the State of Utah set clear use of force policies for public and private youth providers including limited use of physical intervention." Accordingly, the CSRO determined dismissal "was not so disproportionate that it amounts to an 'abuse of discretion.'"
¶13 The final issue before the CSRO was whether Ofa's termination was consistent with DHS's prior discipline decisions. The CSRO considered the two comparable cases, but acknowledged "not much weight was given" to Comparable 1 "because [the case] involved a probationary employee [who] could be terminated with or without cause." The CSRO then reviewed Comparable 2, which involved an employee who was given a written warning after using an unapproved ICR technique. DHS distinguished Ofa's conduct from the conduct in Comparable 2 because Ofa was a "seasoned employee with years of ICR training" who should have known better, unlike the Comparable 2 employee, who had only one ICR training, and the conduct in Comparable 2 did not result in injury. The CSRO reasoned, however, that Ofa's length of service should not count against him and concluded Ofa had met his burden to show that "his dismissal [was] not consistent with disciplinary actions under the current [executive director]." On that basis, the CSRO reversed DHS's decision to terminate Ofa and remanded the case to DHS "to determine a sanction consistent with prior discipline."
¶14 DHS timely filed a motion for reconsideration, asserting Ofa's conduct was substantially different from that in Comparable 2 but even if the conduct were similar, DHS had provided the explanation required of it to justify any inconsistency in discipline. See Utah Code § 63G-4-403(4)(h)(iii) (providing that an agency may take action that is "contrary to the agency's prior practice" so long as "the agency justifies the inconsistency by giving facts and reasons that demonstrate a fair and rational basis for the inconsistency"). The CSRO granted the motion for reconsideration on the sole issue of whether Ofa's termination "was a consistent application of punishment."
¶15 In its ruling and order on the motion, the CSRO explained it had reviewed the issue anew in light of Nelson v. Orem City, 2012 UT App 147, 278 P.3d 1089, aff'd sub nom. Nelson v. City of Orem, 2013 UT 53, 309 P.3d 237, and concluded that Ofa's termination was consistent with the agency's prior "application of discipline." Specifically, the CSRO concluded it "should have given deference to the explanations provided by [DHS]" and "it was not up to [the CSRO] to determine that more than twenty-three (23) years of good service should militate against the immediate application of the most severe sanction." Instead, it found that DHS's explanations "should have been afforded deference" and concluded that although the Comparable 2 employee received a written warning despite using a non-ICR approved chokehold, that employee "merited a lesser sanction than that applied to [Ofa]" because Ofa "had over twenty-three (23) years of experience and repeated ICR training." Ofa now petitions this court for review of the CSRO's decision upholding his dismissal.
ISSUE AND STANDARD OF REVIEW
¶16 On judicial review, Ofa contends that the CSRO erred by determining that DHS's discipline of him was consistent with its prior practice. The parties dispute the standard of review. Ofa asserts this court should review the CSRO's decision for correctness because "the determination of consistency involves a question of law." DHS, on the other hand, asserts that this court "reviews consistency determinations for reasonableness and rationality." We agree with DHS.
¶17 We review for abuse of discretion the "consistency of [a reviewing board's] determination that [an employee's] use of excessive force warranted . . . termination." Nelson v. Orem City, 2012 UT App 147, ¶ 17, 278 P.3d 1089 (cleaned up), aff'd sub nom. Nelson v. City of Orem, 2013 UT 53, 309 P.3d 237. And we will uphold a reviewing board's affirmance of an agency's decision to terminate "unless it exceeds the bounds of reasonableness and rationality." Id. (cleaned up); see also Anderson v. Daggett School Dist., 2023 UT App 76, ¶ 22, 534 P.3d 769 ("This court generally reviews a public employee termination decision for an abuse of discretion.").
ANALYSIS
¶18 In assessing "whether employee misconduct warrants the sanctions imposed, this court has divided the inquiry into two prongs: (1) Is the sanction proportional? and (2) Is the sanction consistent with previous sanctions imposed by the department pursuant to its own policies?" Perez v. South Jordan City, 2014 UT App 31, ¶ 24, 320 P.3d 42 (cleaned up). Ofa does not challenge the CSRO's proportionality determination but contends the CSRO erred when it deferred to DHS's consistency determination. We disagree.
¶19 "When challenging a sanction's consistency, the disciplined employee must first make out a prima facie case" and "must, at a minimum, carry the burden of showing some meaningful disparity of treatment between himself and other similarly situated employees." Burgess v. Dep't of Corr., 2017 UT App 186, ¶ 49, 405 P.3d 937 (cleaned up). In support of his contention that DHS acted inconsistently when it terminated him, Ofa invites us to consider the employee in Comparable 2 as similarly situated because both employees (1) worked for JJS under its current executive director, (2) "had high public expectations placed upon them, despite the fact that both of them work in difficult situations," (3) were disciplined for using "unapproved, non-ICR techniques to gain control," (4) impacted "the morale and efficiency of staff because their actions were outside of training," and (5) had their incidents recorded by video, which could "erode public confidence." We agree with Ofa that his case is similar to Comparable 2 for the reasons he enumerated and conclude that Ofa met his "burden to demonstrate a prima facie case that [DHS] acted contrary to prior practice." Macfarlane v. Career Service Review Office, 2019 UT App 133, ¶ 41, 450 P.3d 87.
¶20 Our inquiry does not end there, however, because an agency may act "contrary to [its] prior practice" if it "justifies the inconsistency by giving facts and reasons that demonstrate a fair and rational basis for the inconsistency." Utah Code § 63G-4-403(4)(h)(iii). Here, we part ways with Ofa and conclude the CSRO did not abuse its discretion when it upheld DHS's termination of Ofa on reconsideration because DHS provided "a fair and rational basis" for its action.
¶21 In its written order on DHS's motion for reconsideration, the CSRO stated it "should have given deference to the explanations provided by [DHS]" for its inconsistency. Ofa challenges the CSRO's decision to grant DHS this deference, yet the provision of the Utah Administrative Code (the Code) that governs such evidentiary hearings states that if "factual findings support the allegations of the agency," then the CSRO "must determine whether the agency's decision, including any disciplinary sanctions imposed, is excessive, disproportionate or otherwise constitutes an abuse of discretion" and "[i]n making this latter determination, the CSRO . . . shall give deference to the decision of the agency or the appointing authority." Utah Admin. Code R137-1-21(3)(b). Ofa, however, argues this section does not apply because "consistency" is not specifically enumerated. Ofa further contends that a consistency determination is a "factual finding" that should be made "without deference to any prior factual findings of the agency." Id. R137-1-21(3)(a). Ofa's argument is inconsistent with the Code.
¶22 DHS's allegations here concerned whether Ofa engaged in the particular conduct with the Youth and whether that conduct violated agency policies. While rule R137-1-21(3)(a) of the Code does require the CSRO to make factual findings on the agency's allegations "without deference" to the agency, Ofa does not challenge any of the CSRO's factual findings regarding the agency's allegations. Instead, he challenges the CSRO's decision, made on reconsideration, to uphold the agency's imposition of the discipline of dismissal, claiming the discipline is inconsistent with the comparators. His challenge to the "disciplinary sanctions imposed" falls squarely within section 3(b), which, unlike section 3(a), requires the CSRO to "give deference" to the agency's decision. And while Ofa is correct that the term "consistency" is not specifically listed in section 3(b), whether the agency's disciplinary sanction was "consistent" is akin to whether an agency's disciplinary sanction was "excessive" or "disproportionate" and is the type of determination that falls under the section's catch-all provision "or otherwise constitutes an abuse of discretion." See id. R137-1-21(3)(b) (emphasis added). The CSRO was therefore required to give deference to DHS's disciplinary decision so long as DHS provided "facts and reasons that demonstrate a fair and rational basis for the inconsistency." Utah Code § 63G-4-403(4)(h)(iii).
¶23 The explanations DHS gave for distinguishing Ofa's case from Comparable 2 include the following facts about Comparable 2. First, in that case the employee's conduct did not result in an injury as Ofa's did. Second, the employee's supervisor ordered the action; Ofa's did not. Third, the employee's use of the unauthorized hold was of short duration, unlike Ofa's that lasted for minutes. Fourth, the employee took responsibility for his action unlike Ofa, who did not acknowledge the injury in his report. Fifth, the employee did not have the benefit of years of experience or extensive ICR training that Ofa did, and therefore he may not have known that what he was doing was improper. And finally, there was no finding that the employee used the unauthorized hold "with malicious intent" as was found in Ofa's case. Thus, DHS established a "fair and rational basis" for its decision to discipline Ofa differently than the employee in Comparable 2.
Ofa claims the CSRO should not have considered the Youth's injury because Ofa disputed the extent of the injury and was denied access to the Youth's medical records. But the CSRO made a factual finding in the original decision that Ofa's "actions caused injury to [the] Youth." And, as noted, supra ¶ 21, Ofa did not challenge any of the CSRO's factual findings on appeal. Thus, we do not address this argument.
¶24 Where DHS has provided a "fair and rational basis" for its disciplinary action, even if it is inconsistent with prior discipline in comparable cases, the CSRO must defer to DHS, and we similarly defer to the CSRO. See Macfarlane, 2019 UT App 133, ¶ 34 ("As we defer to the CSRO, we note that the CSRO must likewise defer to the agency."); see also Nelson v. Orem City, 2012 UT App 147, ¶ 17, 278 P.3d 1089, aff'd sub nom. Nelson v. City of Orem, 2013 UT 53, 309 P.3d 237. On this record, we conclude that the CSRO did not abuse its discretion in giving deference in its reconsidered decision to DHS's decision to terminate Ofa.
CONCLUSION
¶25 DHS provided a fair and rational basis for its decision to terminate Ofa. Thus, the CSRO rightly deferred to DHS's decision, and did not exceed the bounds of reasonableness and rationality by upholding that determination. We see no abuse of discretion and therefore decline to disturb the CSRO's order affirming Ofa's termination.