Lufusi Vea Ofa v. Dep't of Human Servs. & Career Serv. Review Office

• Docket Number: 20220365-CA
• Decision Date: 21 December 2023
• Parties: Lufusi Vea Ofa, Petitioner, v. Department of Human Services and Career Service Review Office, Respondents.
• Court: Utah Court of Appeals

1

2023 UT App 156

Lufusi Vea Ofa, Petitioner,
v.
Department of Human Services and Career Service Review Office, Respondents.

No. 20220365-CA

Court of Appeals of Utah

December 21, 2023

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.

2

BACKGROUND^[1]

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.

3

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

4

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.^[2] Director assigned a DHS specialist to compile Ofa's discipline history, the incident reports, the investigation reports, and a spreadsheet of "comparable cases."

¶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.

5

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

6

use of force and this...