Christensen v. Labor Comm'n & Salt Lake Cnty.
| Docket Number | 20200391-CA |
| Decision Date | 31 August 2023 |
| Citation | 2023 UT App 100 |
| Parties | Theresa Christensen, Petitioner, v. Labor Commission and Salt Lake County, Respondents. Salt Lake County, Petitioner, v. Labor Commission and Theresa Christensen, Respondents. |
| Court | Utah Court of Appeals |
1
2023 UT App 100
Theresa Christensen, Petitioner,
v.
Labor Commission and Salt Lake County, Respondents.
Salt Lake County, Petitioner,
v.
Labor Commission and Theresa Christensen, Respondents.
No. 20200391-CA
Court of Appeals of Utah
August 31, 2023
Original Proceeding in this Court
Russell T. Monahan, Attorney for Theresa Christensen
Sean D. Reyes, Erin T. Middleton, and Scott G. Higley, Attorneys for Labor Commission
Simarjit S. Gill and D. Adam Miller, Attorneys for Salt Lake County
Judge Michele M. Christiansen Forster authored this Opinion, in which Judge Ryan D. Tenney concurred. Justice Jill M. Pohlman concurred in part and dissented in part, with opinion. [1]
OPINION
CHRISTIANSEN FORSTER, JUDGE
¶1 Theresa Christensen petitioned for judicial review of various aspects of the Labor Commission Appeals Board's (the Board) order awarding her compensation in connection with her retaliation claim against Salt Lake County (the County). The County also petitioned for judicial review, asking that we set aside the Board's determination that the County had retaliated against Christensen or, in the alternative, that we set aside the Board's award of various remedies to Christensen. We largely uphold the Board's decision on retaliation but set aside its order reinstating Christensen and denying her request for attorney fees, and we remand for further proceedings consistent with this opinion.
BACKGROUND
¶2 Christensen began working for the County in 1988 and started working as a fiscal coordinator around 2013. From 2011 to 2014, Christensen received above-average performance evaluations (she did not receive an evaluation in 2015). In July 2016, the County hired a new fiscal manager (Supervisor), who was assigned to supervise Christensen.
¶3 In the first meeting between Christensen and Supervisor, Supervisor made several comments about Christensen's physical appearance that made her feel uncomfortable. Soon after, Christensen began to notice that Supervisor was closely monitoring her, walking past her office several times a day and looking in her office window. Coworkers observed Supervisor following Christensen on her breaks and her lunch hour. Supervisor later explained that the monitoring was based on deficiencies in Christensen's work: he had noticed some errors in how she was processing payments, observed her frequently socializing, and noticed that she often disappeared in the afternoons. On August 26, 2016, Supervisor sent Christensen an
email directing her to move her desk, keep her office door open, and keep the blinds on her windows open.
¶4 In September, Supervisor raised concerns with overtime hours Christensen had recorded while working from home. Supervisor began drafting a performance improvement plan for Christensen. Also in September, Christensen contacted her union representative about Supervisor's behavior. On September 30, the union representative joined Christensen for a meeting with Supervisor and informed Supervisor that Christensen was uncomfortable with the monitoring. The union representative also attended subsequent one-on-one meetings between Supervisor and Christensen. Supervisor's monitoring and investigation of Christensen continued. However, he did not make any more inappropriate comments about Christensen's appearance.
¶5 On November 1, the union representative met with Supervisor's supervisor (Boss) to discuss the inappropriate comments and monitoring. Boss did not share this information with human resources but instead spoke to Supervisor about Christensen's complaints. Supervisor remained in place as Christensen's supervisor but was directed not to be alone with her, and Boss arranged for another person to attend meetings between Christensen and Supervisor.
¶6 On December 20, Supervisor met with Christensen and her union representative to give Christensen her annual performance evaluation. Supervisor gave her a score of 2.15 out of 5 for the period of July to December. Christensen appealed the score to Boss, who, on January 13, 2017, directed Supervisor to raise the score to a 3, which would make Christensen eligible for her annual raise.
¶7 On January 12, Boss sent Christensen an email asking her to stop discussing Supervisor's behavior with other employees. Boss accidentally sent this email to Supervisor as well. On January
17, Christensen filed an equal employment opportunity (EEO) complaint with the County, alleging sexual harassment and retaliation. That same day, Supervisor issued a written warning to Christensen regarding her altering her schedule without approval in September, October, and December of 2016. However, it is unclear from the record which of these events occurred first.[2]
¶8 On January 24, Christensen attended a staff meeting where Supervisor distributed copies of two documents that contained mistakes, which were created by Christensen and had her name on them. On January 30, Christensen called in sick; her doctor had advised her not to return to work until February 3. But Supervisor directed her to complete work from home while she was ill.
¶9 On February 15, Supervisor brought a large pile of papers to Christensen's office related to her purchase-card activity in 2016. When Christensen later was asked to provide information to be reviewed by an auditor, she observed "that her file had been marked with red annotations showing errors and that none of her coworkers' files had similar annotations."
¶10 On March 21, Christensen filed a complaint against the County with the Utah Antidiscrimination and Labor Division (UALD), alleging discrimination, sexual harassment, and retaliation under the Utah Antidiscrimination Act (the UAA).
¶11 On May 3, at her doctor's recommendation, Christensen took leave pursuant to the Family and Medical Leave Act (FMLA) due to stress. While on FMLA leave, she used 920 hours of
vacation and sick leave pay she had accumulated. Once her leave balances were exhausted on October 15, 2017, Christensen decided to retire rather than return to work. In doing so, she purchased a year of service credit by rolling over funds from her retirement account to increase the value of her pension.
¶12 On August 22, 2018, the County issued Supervisor a Notice of Intent to Terminate stemming from instances of inappropriate workplace behavior with various other employees. Supervisor resigned in lieu of termination.
¶13 On June 1, 2018, the UALD issued an order finding no reasonable cause for Christensen's claims of discrimination and retaliation. Christensen filed a Notice of Appeal with the Labor Commission. The case went before an administrative law judge (ALJ) for a hearing. Following the hearing, the parties received notice that the ALJ had been replaced by a different ALJ, Judge Newman, who-without conducting any additional proceedings-issued findings, conclusions, and an order on September 5, 2019. Judge Newman found that Christensen had failed to prove either discrimination or retaliation or that she was constructively discharged.
¶14 On October 1, 2019, Christensen filed a Motion for Review with the Board. In her motion, Christensen challenged the substitution of the ALJ, Judge Newman's determination that she did not suffer retaliation, and the determination that she was not constructively discharged.[3] Although the Board acknowledged the post-hearing substitution of the ALJ was "unusual," it concluded that Christensen had not shown she suffered prejudice as a result of the substitution. The Board also agreed with Judge Newman's determination that Christensen failed to demonstrate that she had been constructively discharged. However, the Board set aside Judge Newman's decision dismissing Christensen's
retaliation claim because it agreed with Christensen that the County had retaliated against her for complaining about Supervisor's unwelcome comments on her appearance and behavior toward her. It therefore sent the matter back to Judge Newman for further proceedings.
¶15 Upon remand, Judge Newman undertook to craft an appropriate remedy for Christensen based on the Board's finding of retaliation. After reviewing the evidence, Judge Newman (1) reinstated Christensen's employment; (2) awarded her back pay and benefits from the time of her retirement on October 16, 2017, until the date of the decision; and (3) ordered that the County reimburse the amount she took out of her retirement account to purchase an extra year of service credit. However, Judge Newman denied her request for reimbursement of her vacation and sick leave pay and her request for attorney fees.
¶16 Both Christensen and the County asked the Board to review Judge Newman's decision. The Board set aside Judge Newman's award of back pay. Additionally, contrary to Judge Newman's decision, it determined that Christensen was entitled to the value of the vacation and sick leave she used between May 24, 2017, and October 15, 2017. It upheld Judge Newman's order of reinstatement, reimbursement of the retirement funds, and denial of attorney fees.
¶17 Christensen then petitioned this court for judicial review of the Board's decision, and the County also petitioned for review.
ISSUES AND STANDARDS OF REVIEW
¶18 First, the County challenges the Board's determination that it retaliated against Christensen in violation of the UAA. We grant deference to the Board's factual findings and will not set them aside unless they are not supported by substantial evidence. See Provo City v. Utah Labor Comm'n, 2015 UT 32, ¶ 8, 345 P.3d 1242.
However, we review the Board's application of the legal standard for correctness. See id. ¶ 17.
¶19 Next, both the County and Christensen raise various challenges to the remedies ordered by the Board, which require us to interpret Utah Code section 34A-5-107(8), addressing remedies under the UAA. "The Labor Commission's interpretation of a...
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