Christensen v. Labor Commission

2023 UT App 100

THE UTAH COURT OF APPEALS

THERESA CHRISTENSEN,
Petitioner,
v.
LABOR COMMISSION AND SALT LAKE COUNTY,
Respondents.

SALT LAKE COUNTY,
Petitioner,
v.
LABOR COMMISSION AND THERESA CHRISTENSEN,
Respondents.

Opinion
No. 20200391-CA
Filed 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. 10F

1. Justice Jill M. Pohlman began her work on this case as a member
of the Utah Court of Appeals. She became a member of the Utah
Supreme Court thereafter and completed her work on the case
sitting by special assignment as authorized by law. See generally
Utah R. Jud. Admin. 3-108(4).
Christensen v. Labor Commission

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

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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

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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
1F

¶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

2. The Board found that the EEO complaint was made “early in
January 2017,” and its findings appear to reflect a misconception
that the EEO complaint predated the written warning to
Christensen. However, the complaint itself is dated January 17,
2017, the same day Christensen received Supervisor’s written
warning.

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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
2F

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

3. Christensen did not challenge Judge Newman’s rejection of her
discrimination claim.

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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.

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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 statute is a question of law, which we review
for correctness.” Rueda v. Utah Labor Comm’n, 2017 UT 58, ¶ 18, 423
P.3d 1175 (quotation simplified). Christensen also challenges the
Board’s determination that it could not award attorney fees
because doing so would be an unconstitutional regulation of the
practice of law. We review constitutional issues for correctness.
See Salt Lake City Corp. v. Jordan River Restoration Network, 2012 UT
84, ¶ 47, 299 P.3d 990. 4
3F

ANALYSIS

I. Retaliation

¶20 We first review the County’s argument that the Board’s
retaliation finding was not supported by substantial evidence and
that the Board erred in concluding that the County retaliated
against Christensen.

4. Christensen also challenges the Board’s determination that she
was not prejudiced by the substitution of the ALJ. But because
Christensen prevailed on her retaliation claim before the Board
and we uphold the Board’s determination on appeal, we agree
with the County that she cannot show that she suffered prejudice
as a result of the substitution. Therefore, we do not address this
argument further. See Utah Code § 63G-4-403(4) (providing that
the court shall grant relief “only if” it determines that a party has
been “substantially prejudiced” by the agency’s error).

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¶21 Under the UAA, it is a prohibited employment practice for
an employer to “retaliate against, harass, or discriminate in
matters of compensation or in terms, privileges, and conditions of
employment against a person otherwise qualified, because of”
race, sex, age, or national origin. Utah Code § 34A-5-106(1)(a)(i).
“[T]he legislature intended the [UAA] to address all manner of
employment discrimination against any member of the specified
protected groups . . . [and] included employer retaliation for
complaining of employment discrimination within its definition
of discrimination.” Retherford v. AT&T Commc’ns of Mountain
States, Inc., 844 P.2d 949, 966 (Utah 1992). The statute defines
“retaliate” as “the taking of adverse action by an employer . . .
against one of its employees . . . because the employee . . . (i)
opposes an employment practice prohibited under [the UAA]; or
(ii) files charges, testifies, assists, or participates in any way in a
proceeding, investigation, or hearing under [the UAA].” Utah
Code § 34A-5-102(1)(y). 5 Thus, a retaliation claim focuses on the
4F

employer’s response to an employee’s opposition to an employer
practice that is prohibited by law.

¶22 To establish retaliation, a plaintiff may submit direct
evidence of retaliatory motive or adhere to the burden-shifting
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Under this indirect approach, a plaintiff “must [first] make
a prima facie case by showing . . . 1) [that he or] she engaged in
protected opposition to discrimination or participation in a
proceeding arising out of discrimination; 2) adverse action by the
employer subsequent to the protected activity; and 3) a causal
connection between the employee’s activity and the adverse

5. This court has stated that the required elements to prove
retaliation under the UAA are, “in effect, . . . the same elements as
are required in a federal Title VII retaliation claim.” Viktron/Lika v.
Labor Comm’n, 2001 UT App 394, ¶ 6, 38 P.3d 993. Accordingly,
this court has found useful guidance in the substantial body of
federal Title VII law.

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action.” Viktron/Lika v. Labor Comm’n, 2001 UT App 394, ¶ 6, 38
P.3d 993 (quotation simplified). 6 If the plaintiff satisfies this
5F

burden, it is then the defendant’s responsibility to come forward
with a legitimate, non-retaliatory reason for the adverse
employment action. Id. ¶ 7. If the defendant does so, then the
burden shifts back to the plaintiff to show that the defendant’s
proffered rationale is pretextual. Id.

¶23 The County asserts that the Board erred in determining
that Christensen suffered an adverse employment action after she

6. Christensen urges us to adopt a “modified ‘but for’” analysis
for retaliation claims at trial, requiring that a plaintiff prove “his
or her protected activity was a but-for cause of the alleged adverse
action by the employer,” (quoting University of Texas Sw. Med.
Center v. Nassar, 570 U.S. 338, 362 (2013)), rather than apply the
burden-shifting formula from McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), adopted by this court in Viktron/Lika. She
points out that the McDonnell Douglas framework has limited
applicability and should not be used for making determinations
outside the summary judgment context. See Barrett v. Salt Lake
County, 754 F.3d 864, 867 (10th Cir. 2014) (“[A]s things have
evolved, McDonnell Douglas has come to apply predominantly at
summary judgment and there only to cases relying on indirect
proof of discrimination.”). Christensen’s argument has some
force. But given that the Board found retaliation even under the
McDonnell Douglas standard and that we affirm that
determination, the use of the McDonnell Douglas framework did
not adversely affect Christensen. As we are not in the business of
rendering advisory opinions, see Salt Lake County v. State, 2020 UT
27, ¶ 47, 466 P.3d 158, we leave the question of whether the
McDonnell Douglas framework properly applies outside the
summary judgment context for another day.

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engaged in protected activity. 7 It further asserts that even if
6F

Supervisor’s actions toward Christensen rose to the level of
adverse employment actions, they occurred prior to Christensen
engaging in protected conduct or, to the extent they did not, were
merely a continuation of the same actions taken prior to
Christensen’s complaint of harassment and discrimination. The
County therefore contends that there was no causal connection
between the protected conduct and the adverse actions. Finally,
the County asserts that the Board erred by finding that the
County’s non-retaliatory explanations for its actions were
pretextual. We address each argument in turn.

A. Adverse Action

¶24 The County first asserts that after Christensen engaged in
protected activity, the County’s actions identified by the Board
did not rise to the level of adverse action sufficient to support a
retaliation claim. The UAA does not define “adverse action,” and
Utah’s appellate courts have not fully explored the meaning of the
phrase in the retaliation context. No court has explicitly stated
whether the retaliatory action taken by an employer is limited to
“ultimate” employment actions, such as a specific hiring, firing,
demotion, or failure to promote decision, or whether the adverse
action must be only sufficiently severe to dissuade a reasonable
worker from making a charge of discrimination as is required by
federal law.

¶25 The United States Supreme Court has held that a materially
adverse action, for the purpose of a Title VII retaliation claim, is
any action that would dissuade a reasonable worker from
engaging in the protected activity. Burlington N. & Santa Fe Ry. v.

7. The County does not dispute that Christensen engaged in
protected activity when her union representative brought her
complaints to Boss on November 1, when she filed her EEO
complaint with the County on January 17, and when she filed a
complaint with the UALD on March 21.

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White, 548 U.S. 53, 68 (2006). The Burlington court was faced with
two questions: (1) “whether Title VII’s antiretaliation provision
forbids only those employer actions and resulting harms that are
related to employment or the workplace” and (2) “how harmful
an act of retaliatory discrimination must be in order to fall within
the provision’s scope.” Id. at 61.

¶26 With respect to the first question, Burlington held that the
retaliatory conduct need not be related to the terms or conditions
of employment to be actionable. Id. at 61–62. However, it did so
on the basis that Title VII’s retaliation provision—contrary to its
discrimination provision—specifically omits such language. See
id. Like Title VII’s discrimination provision, Utah Code section
34A-5-106(1)(a)(i) specifically mentions “terms, privileges, and
conditions of employment.” 8 While we are not entirely convinced
7F

8. In interpreting statutes, and to ascertain and effectuate the
intention of the legislature, we give a statute’s words and phrases
their plain and ordinary meaning. To determine the plain
meaning of statutory language, we may refer to canons of
interpretation, such as common usage, dictionary definitions, and
grammatical rules. Here, because there is no comma following the
word “discriminate” in the statute, we are inclined to read the
phrase “in matters of compensation or in terms, privileges, and
conditions of employment against a person otherwise qualified”
as a restrictive clause that modifies only “discriminate” and not
“retaliate against” or “harass.” We also note that the “last
antecedent” and the “nearest-reasonable-referent” rules suggest a
similar reading. See Antonin Scalia & Bryan A. Garner, Reading
Law: The Interpretation of Legal Texts 144–46, 152–53 (2012).
However, it is clear from the Board’s findings that it was
acting under the assumption that retaliation must be related either
to compensation or to the “terms, privileges, and conditions of
employment,” and neither party has suggested otherwise.
Because we have not been presented with any argument
(continued…)

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that the UAA requires that discriminatory action for purposes of
retaliation needs to be related to employment, see supra note 8, this
question is ultimately not before us because the parties do not
dispute that the adverse actions alleged by Christensen related to
her employment. Thus, Burlington’s holding on this question does
not affect our analysis.

¶27 The Burlington Court’s answer to the second question,
however, is illuminating with respect to the issue the County
raises on appeal: whether the Board erred in determining that the
County’s allegedly retaliatory actions were sufficiently harmful to
fall within the meaning of “adverse action” as that term is used in
the UAA. The question of what constitutes an adverse action turns
on the question of how harmful an action must be. See Yanowitz v.
L’Oreal USA, Inc., 116 P.3d 1123, 1135 (Cal. 2005) (explaining that
“adverse employment action” has become “a familiar shorthand
expression referring to the kind, nature, or degree of adverse
action against an employee that will support a cause of action
under a relevant provision of an employment discrimination
statute”).

¶28 Context is relevant to the court’s inquiry. “The real social
impact of workplace behavior often depends on a constellation of
surrounding circumstances, expectations, and relationships
which are not fully captured by a simple recitation of the words
used or the physical acts performed.” Burlington, 548 U.S. at 69
(quotation simplified). As the Supreme Court has also observed,
“[a]n employee’s decision to report discriminatory behavior
cannot immunize that employee from those petty slights or minor
annoyances that often take place at work and that all employees
experience.” Id. at 68. Rather, the purpose of antiretaliation
statutes is “to prevent employer interference with unfettered

regarding the applicability of the “terms, privileges, and
conditions” phrase in the retaliation context, our analysis
assumes, without deciding, that retaliation under the UAA must
fall into one of the specified categories.

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access to . . . remedial mechanisms . . . by prohibiting employer
actions that are likely to deter victims of discrimination from
complaining to the EEOC, the courts, and their employers.” Id.
(quotation simplified). Thus, while the term “adverse action” may
encompass a multitude of potential undesirable actions, to be
actionable, it must be one “that a reasonable employee would
have found” to be “materially adverse,” such that it “might have
dissuaded a reasonable worker from making or supporting a
charge of discrimination.” 9 Id. (quotation simplified).
8F

9. The County would have us go one step further and require that
the adverse actions be “so severe or pervasive as to alter the
conditions of the victim’s employment and create an abusive
working environment.” See Darvish v. Labor Comm’n Appeals Board,
2012 UT App 68, ¶ 36, 273 P.3d 953 (quotation simplified). It
asserts that mere changes to the conditions of the employee’s
employment are not enough and that only severe adverse actions
that create an abusive working environment are actionable.
However, the “severe or pervasive” standard is specifically used
to assess whether harassing or discriminatory behavior toward an
employee creates an abusive or hostile work environment. See id.
¶¶ 33, 36. This standard recognizes the fact that
antidiscrimination law “is not limited to ‘economic’ or ‘tangible’
discrimination” yet “takes a middle path” by requiring actionable
conduct to be more than “merely offensive.” See Harris v. Forklift
Sys., Inc., 510 U.S. 17, 21 (1993) (quotation simplified). We are not
aware of any authority using this standard to assess the required
severity of retaliatory actions not rooted in a hostile work
environment claim. Instead, whether an adverse action is
sufficiently severe in the retaliation context turns on whether the
action materially affected the terms, privileges, and conditions of
employment and would have “dissuaded a reasonable worker
from making or supporting a charge of discrimination.”
Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 68 (2006)
(quotation simplified).

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¶29 The Board identified a number of post-complaint adverse
actions taken by the County in its findings. It found that
Supervisor’s persistent monitoring of Christensen, including
“following her, checking her swipe-card data, frequent checking
on her in her office, and outlining errors in her work to auditors
and other employees” “was excessive such that it altered the
terms, privileges, and conditions of her employment.” It also
found that Boss’s “instruction that [she] stop discussing the
subject of her complaint with coworkers had an adverse chilling
and marginalizing effect on her at work” and that his failure to
forward her complaint to the human resources department for
investigation was an adverse action. Further, it pointed out that
the written warning Christensen received about altering her work
schedule primarily identified alterations that occurred months
earlier.

¶30 We cannot find fault with the Board’s determination that
these actions could be considered “adverse actions” that
materially affected the “terms, privileges, and conditions” of
Christensen’s employment because they altered the conditions of
her employment in a way that had the potential to “dissuade[] a
reasonable worker from making or supporting a charge of
discrimination.” Id. (quotation simplified); see also Tapia v. City of
Albuquerque, 170 F. App’x 529, 533 (10th Cir. 2006) (“[S]ufficiently
severe harassing, following, and monitoring of an employee
could create an adverse employment action.”). Had one of
Christensen’s coworkers, for example, observed the difficulties
she went through after raising concerns about Supervisor—such
as continuing to be closely monitored by Supervisor, having her
errors called out publicly before her coworkers, and receiving
reprimands for events that occurred months earlier—we expect
that coworker would think twice before making their own report
about discrimination, harassment, or any other matter they would
legally be entitled to report. This is precisely the type of
circumstance the UAA is designed to prevent. See Darvish v. Labor
Comm’n Appeals Board, 2012 UT App 68, ¶ 35, 273 P.3d 953 (“The

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[UAA], like Title VII, depends for its enforcement upon the
cooperation of employees who are willing to file complaints and
act as witnesses. Plainly, effective enforcement could thus only be
expected if employees felt free to approach officials with their
grievances.” (quotation simplified)). Thus, the Board did not err
by identifying these actions as “adverse actions” under the UAA.

B. Timing/Causal Connection/Continuing Conduct

¶31 The County next points out that “much of the behavior [the
Board] deemed ‘adverse’ was the continuation of conduct that . . .
was occurring” prior to the time Christensen’s union
representative brought her complaints to Boss’s attention on
November 1, 2016. It asserts that the Board could not find adverse
actions that were the same as or similar to any pre-complaint
actions to be retaliatory. While we accept that adverse actions
occurring prior to Christensen sharing her complaints with the
County on November 1, 2016, could not support a retaliation
claim, 10 the same is not necessarily true of actions occurring after
9F

November 1, even if those actions were similar to or the same as
the earlier adverse actions.

10. Christensen urges us to consider all Supervisor’s actions
occurring after August 26, 2016, in our analysis of adverse
employment actions, suggesting that having her union
representative in meetings with Supervisor put the County on
notice that she was complaining about Supervisor. But
Christensen’s union representative did not raise her concerns
with Boss until November 1, 2016. Moreover, the Board identified
November 1 as the first date on which Christensen engaged in
protected conduct, requiring her “to show that she was subject to
adverse employment action following her complaint on
November 1, 2016.” On appeal, Christensen does not expressly
challenge the Board’s use of that date, so we accept, for purposes
of our discussion, that the protected conduct at issue did not occur
until November 1, 2016.

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¶32 The County complains that the Board “failed to adequately
acknowledge that much of the behavior it deemed ‘adverse’ was
the continuation of conduct that had occurred—or was
occurring—before Ms. Christensen engaged in any protected
conduct.” To the contrary, the Board explicitly recognized that
“there is evidence [Supervisor] closely monitored Ms. Christensen
some time before November 1, 2016,” but explained that its
determination was based on its analysis of the adverse actions that
occurred after November 1. Thus, the County’s complaint is
misguided.

¶33 The County also asserts that the Board could not consider
the post-complaint adverse actions to be retaliatory because they
were the continuation of the previous conduct. But even if the
adverse monitoring actions were merely a continuation of
behavior occurring before the complaint, we are not convinced
that such actions could not possibly be construed as retaliatory, as
the County suggests. To make out a prima facie case, the plaintiff
must show that “adverse action by the employer” occurred
“subsequent to the protected activity” and that there is “a causal
connection between the employee’s activity and the adverse
action.” Viktron/Lika v. Labor Comm’n, 2001 UT App 394, ¶ 6, 38
P.3d 993 (quotation simplified). Nothing in this rule requires that
the adverse action be new or different from prior adverse actions.
The fact that Supervisor had established a “pre-complaint status
quo” consisting of adverse employment actions does not grant
employer immunity from legitimate complaints that the
continuing adverse actions may have had a retaliatory motive.

¶34 The County asserts that allowing an employee to make a
retaliation claim based on the continuation of pre-complaint
behavior leaves the employer with no choice but to “acquiesce to
the employee’s inadequacies and shortcomings after the protected
activity.” But this is simply not true. The fact that continued
adverse actions may be considered retaliatory does not mean that
they will be considered retaliatory. The employee still must
establish “a causal connection between the employee’s activity

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and the adverse action.” Id. (quotation simplified). In fact, in many
cases, we suspect that demonstrating causation will be a high bar
when the adverse action at issue began to occur prior to the
protected activity, as this fact could provide strong support for the
employer’s argument that its asserted legitimate reasons for the
action were not pretextual.

¶35 But the fact that adverse actions taken after an employee
engages in protected conduct are the same as or similar to adverse
actions taken before the protected conduct does not necessarily
mean that “the ‘effect’ . . . predates the ‘cause’” of the adverse
action, as the County asserts. For example, imagine a scenario
where an employee receives a poor performance evaluation from
their supervisor as a result of legitimately poor performance. A
few months later, the employee files a sexual harassment
complaint against the supervisor, alleging that the supervisor
made inappropriate comments about the employee’s appearance.
Subsequent to the complaint, the supervisor gives the employee
another poor performance evaluation. The fact that the employee
had previously received a poor evaluation from the same
supervisor does not necessarily mean that a later poor evaluation
was merited. If the employee’s performance had improved, yet
their bad score remained the same, the employee may be able to
show that the second poor evaluation was retaliatory.

¶36 In other words, in determining whether an adverse action
occurring after protected conduct is retaliatory, the question to be
resolved is whether there is a causal connection between the
adverse action and the protected conduct. The fact that a similar
adverse action also occurred prior to the protected conduct may
bear on the question of causation, but it does not automatically
preclude the adverse action from being deemed retaliatory. Thus,
the Board did not err by not automatically discounting adverse
actions occurring after November 1 on the ground that they were
a “continuation” of prior conduct.

20200391-CA 17 2023 UT App 100
Christensen v. Labor Commission

¶37 Here, the Board found “that [Supervisor’s] scrutinizing of
Ms. Christensen and calling attention to mistakes in her work
appeared to intensify after the complaint and in spite of steps to
separate her workspace from [Supervisor].” In other words, the
adverse actions got worse after Christensen complained about
Supervisor. This finding is supported by evidence that after
Christensen’s union representative complained to Boss,
Supervisor not only continued to closely monitor Christensen but
shared Christensen’s errors with her coworkers at a staff meeting,
went through her past purchasing receipts to look for errors, and
issued her a warning concerning time reporting that had
primarily occurred months earlier. Moreover, Boss largely
ignored Christensen’s complaint, neglecting to forward it to
human resources and taking minimal steps to address
Christensen’s concerns while allowing Supervisor to closely
monitor her more intensely than other employees. This is a close
question, but given the deference this court owes in this situation,
there is substantial evidence to support the Board’s determination
that there was a causal connection between Christensen’s
protected behavior and the intense scrutiny she endured
following the complaint, even though she experienced some level
of scrutiny prior to her complaint. See Hexcel Corp. v. Labor
Comm’n, 2022 UT App 52, ¶¶ 22, 33, 510 P.3d 310 (stating that “the
substantial evidence test is met when a reasonable mind might
accept as adequate the evidence supporting the decision” and
explaining that “the relevant question is not whether we would
have made the same decision had we been the factfinders in the
first instance” but “whether substantial evidence supports the
[Board’s] . . . determination” (quotation simplified)).

C. Pretext

¶38 Once Christensen made out a prima facie case of
retaliation, the burden shifted to the County to show “a
legitimate, non-discriminatory reason” for the adverse action.
Viktron/Lika v. Labor Comm’n, 2001 UT App 394, ¶ 7, 38 P.3d 993.
Here, the County asserted that the adverse actions Christensen

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Christensen v. Labor Commission

suffered were attributable to issues with her performance. It then
became Christensen’s burden to show that the claimed reason was
pretextual. See id.

¶39 Having reviewed the evidence, the Board found that the
County’s explanation was pretextual. It explained,

While there is some evidence that Ms. Christensen
struggled with certain aspects of her job, [the]
County did not view those struggles as warranting
the poor evaluation score given by [Supervisor] in
late 2016. [The] County’s position must therefore be
that Ms. Christensen’s non-compliance with its
policies did not warrant a low evaluation score but
did warrant [Supervisor’s] constant monitoring of
her workplace behavior to the point where it altered
the terms, privileges and conditions of her
employment.

The Board pointed out that the “County’s reasoning appears
inconsistent because [Supervisor] cited Ms. Christensen’s
behavior as the basis for the low evaluation score,” and the Board
found it “implausible” that the County would have directed
Supervisor to raise Christensen’s performance evaluation score if
it truly believed her performance warranted the burdensome
scrutiny Supervisor had her under. 11
10F

11. The Board also found it disingenuous for the County to give
Christensen a written warning “immediately after she filed her
EEO complaint” where the warning related to behavior that
occurred months earlier. We acknowledge, as noted, supra note 2,
that the written warning was actually given to Christensen the
same day she filed her EEO complaint, and the record is unclear
which event occurred first or whether the County was aware of
the EEO complaint before issuing the warning. Nevertheless, it is
(continued…)

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Christensen v. Labor Commission

¶40 Again, whether this court would have made the same
decision had we been the factfinders in the first instance is not the
question before us. Based upon the evidence in the record,
substantial evidence supports the Board’s finding that the
County’s decision to alter Christensen’s performance evaluation
score was inconsistent with a belief that Christensen’s
shortcomings were egregious enough to justify the adverse
actions she suffered. Moreover, the County has not shown that the
Board erred in finding that other actions taken by the County—
sharing Christensen’s errors with her coworkers and directing her
not to talk about her allegations with coworkers—were unrelated
to alleged poor work performance. The Board’s pretext
determination—while not the only permissible one under the
circumstances—is not clearly erroneous.

II. Remedies

¶41 On appeal, both parties raise challenges to the Board’s
decision with respect to appropriate remedies. Christensen
challenges the Board’s refusal to award her noneconomic
damages in connection with her claim, its denial of her claim for
back pay, and its denial of her claim for attorney fees. For its part,
the County challenges the Board’s decision upholding Judge
Newman’s order that it reinstate Christensen and reimburse her
for vacation pay, sick leave pay, and the retirement funds that she
withdrew early.

still relevant that the warning was issued after Christensen
complained of discrimination on November 1, despite the fact that
most of the incidents addressed in the warning preceded that
complaint by several months.

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Christensen v. Labor Commission

A. Christensen’s Challenges

1. Noneconomic Damages

¶42 The UAA outlines the damages available to a party who
successfully proves their claim.

If, upon reviewing all the evidence at the hearing,
the presiding officer finds that a respondent has
engaged in a discriminatory or prohibited
employment practice, the presiding officer shall
issue an order requiring the respondent to:

(a) cease any discriminatory or prohibited
employment practice;

(b) provide relief to the complaining party,
including:

(i) reinstatement;

(ii) back pay and benefits;

(iii) attorney fees; and

(iv) costs.

Utah Code § 34A-5-107(8).

¶43 Christensen asserts that despite it not being explicitly
included in the list of available damages identified in the UAA,
noneconomic or other compensatory damages should be
awardable in the course of “provid[ing] relief to the complaining
party.” See id. She argues that the word “including,” which
precedes the explicit list, indicates that the listed damages are
“meant to be illustrative not exhaustive.” See Graves v. North E.
Services, Inc., 2015 UT 28, ¶ 53, 345 P.3d 619 (“[I]ncluding is an
established term of art with an established meaning. In statutory

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Christensen v. Labor Commission

cases far and wide, this term is routinely construed as introducing
a non-exclusive, exemplary list.” (citation omitted)). See generally
Including, Black’s Law Dictionary (11th ed. 2019) (“[I]ncluding
typically indicates a partial list.”).

¶44 While we agree that the list provided in the statute is not
exhaustive, we are not convinced that the UAA provides for
recovery of noneconomic damages. The principle of ejusdem
generis tells us “that general catchall terms appearing at the
beginning or end of an exemplary statutory list are understood to
be informed by the content of the terms of the list.” Rutherford v.
Talisker Canyons Fin., Co., LLC, 2019 UT 27, ¶ 38, 445 P.3d 474
(quotation simplified). “Ejusdem generis presumes that in order
to give meaning to a general term, the general term is understood
as restricted to include things of the same kind, class, character, or
nature as those specifically enumerated.” Id. (quotation
simplified). All the examples of “relief” listed in the statute are
either equitable remedies or economic damages. The remedy of
ordering the respondent to “cease any discriminatory or
prohibited employment practice” is likewise equitable. See Utah
Code § 34A-5-107(8)(a). None of the remedies in the list or any
other provision in the statute addresses intangible harm. Thus,
while there may be unlisted equitable remedies or economic
damages that may be reasonably awarded under the statute—
such as the retirement reimbursement awarded in this case—
Christensen has not persuaded us that the UAA can reasonably
be read to allow for noneconomic damages. 12 11F

12. Christensen points out that federal law provides for
noneconomic relief in the context of discrimination claims.
However, the section of the UAA addressing remedies provides,
“The procedures contained in this section are the exclusive
remedy under state law for employment discrimination based
upon . . . retaliation . . . .” Utah Code § 34A-5-107(15). While
federal law can provide a useful guide in some circumstances, it
(continued…)

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Christensen v. Labor Commission

¶45 Christensen also asserts that noneconomic damages should
be allowed as a matter of policy because there are many cases
where noneconomic damages are the only measurable damages
suffered by a victim. In such cases, Christensen reasons, “the
employee has no incentive to bring the action to the Labor
Commission because the Labor Commission cannot provide any
relief to the employee because there was no economic action
against the employee.” But this is not accurate. In fact, the statute
does provide a remedy for employees who have suffered
discrimination or retaliation but have not incurred economic
damages: the ALJ must “issue an order requiring the respondent
to . . . cease any discriminatory or prohibited employment
practice.” Id. Such employees can also recoup their attorney fees
incurred in enforcing the UAA. See id.; see also infra ¶¶ 50–55.
Presumably, this remedy will provide victims of discriminatory
or prohibited employment practices some relief from their
employer’s illegal actions. While it may not provide quite the
same deterrent as an award of monetary damages, that is a policy
choice for our legislature to make.

2. Back Pay

¶46 Christensen next asserts that the Board erred in setting
aside Judge Newman’s award of back pay for the time between
her retirement and her reinstatement. The County argued to the
Board that an award of back pay was not available in light of the
Board’s finding that Christensen was not constructively
discharged. The Board did not discuss the County’s argument in
detail but set aside Judge Newman’s award of back pay on the
basis that back pay “is not justified by the facts of this case.”
Christensen challenges this determination, asserting that the

ultimately cannot trump the explicit provisions of our statute. As
the UAA provides the exclusive remedies available under state
law, we have no basis for expanding those remedies to include
noneconomic damages.

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Christensen v. Labor Commission

award of back pay was not contingent on a finding of constructive
discharge. 13
12F

13. Christensen also asserts that an award of back pay was
mandatory under the remedy provision of the UAA. Once again,
that provision states,
If, upon reviewing all the evidence at the hearing,
the presiding officer finds that a respondent has
engaged in a discriminatory or prohibited
employment practice, the presiding officer shall
issue an order requiring the respondent to:
(a) cease any discriminatory or prohibited
employment practice;
(b) provide relief to the complaining party,
including:
(i) reinstatement;
(ii) back pay and benefits;
(iii) attorney fees; and
(iv) costs.
Utah Code § 34A-5-107(8).
Christensen points to the UAA’s use of the word “shall” in
asserting the presiding officer’s obligation to issue an order and
interprets that phrase as requiring the ALJ to issue an order that
includes each item of relief listed in the statute. We agree with the
County that the “shall” language requires the ALJ to issue an
order providing relief to the complaining party, but the precise
contours of the relief ordered will depend on the damages
actually suffered by the complaining party. Those damages may
include the type of damages that follows the word “including,”
but the ALJ is not required to include each element of relief. If we
were to conclude otherwise, ALJs would be required to order
relief even where certain harms were not incurred. An employee
who continues to work for the employer, for example, could
neither be reinstated nor deserve back pay. Yet Christensen’s
(continued…)

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Christensen v. Labor Commission

¶47 We disagree with Christensen. Constructive discharge “is
equivalent to a termination” and occurs when an employee
resigns “under working conditions that a reasonable employee
would consider intolerable.” See Touchard v. La-Z-Boy Inc., 2006
UT 71, ¶ 27, 148 P.3d 945. In other words, in the case of
constructive discharge, the employee’s job and wage loss are
caused by the employer’s intolerable actions. The purpose of
providing relief to an employee who suffered discrimination or
retaliation is to put the plaintiff in the same position they would
have been in if it were not for the defendant’s wrongful actions.
Cf. Gregory & Swapp, PLLC v. Kranendonk, 2018 UT 36, ¶ 28, 424
P.3d 897 (discussing the remedial purpose of damages in contract
cases); Mahana v. Onyx Acceptance Corp., 2004 UT 59, ¶ 26, 96 P.3d
893 (discussing the remedial purpose of damages in tort cases).
Thus, if there is no causal connection between the employee’s job
and wage loss and the employer’s actions, the employee cannot
recover compensation for that loss.

¶48 A claim for back pay associated with a claim that an
employer engaged in a discriminatory or prohibited employment
practice must be supported by evidence that the employee lost
pay as a result of the employer’s actions. In a circumstance where
an employee quits, the employee cannot show that the lost pay
from leaving the job was the result of the employer’s wrongful
action unless the employee can establish constructive discharge.
If the employee leaves a job voluntarily, under circumstances that
would not have prompted a similarly situated employee to quit,
then neither the decision to quit nor the ensuing loss of wages can
be properly attributed to the employer. See Derr v. Gulf Oil Corp.,
796 F.2d 340, 342 (10th Cir. 1986) (collecting cases concluding that
“the remedies of back pay and reinstatement are not available . . .
unless [the employee] was constructively discharged”); accord

reading would require the ALJ to award such damages anyway.
It would be illogical to read the statute in such a way.

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Christensen v. Labor Commission

Mallinson-Montague v. Pocrnick, 224 F.3d 1224, 1237 (10th Cir.
2000).

¶49 Here, the Board found that although the County retaliated
against Christensen by subjecting her to adverse employment
actions, her working conditions were not so intolerable as to
compel “a reasonable person in [her] position to resign.” In other
words, Christensen did not lose her employment or suffer any
direct wage loss because of the County’s actions. And Christensen
has not challenged the Board’s finding that she was not
constructively discharged. Because Christensen did not show any
job or direct wage loss, the Board did not err in setting aside Judge
Newman’s award of back pay to Christensen.

3. Attorney Fees

¶50 Christensen challenges the Board’s refusal to award her
attorney fees. 14 Judge Newman noted the UAA authorizes an
13F

award of attorney fees to a complaining party after a
determination that the employer engaged in a discriminatory or
prohibited employment practice, see Utah Code § 34A-5-107(8),
but opined that our supreme court’s holding in Injured Workers
Ass’n of Utah v. State, 2016 UT 21, 374 P.3d 14, stands for the
proposition that such a grant of authority is unconstitutional.
Based on his interpretation of that precedent, Judge Newman
declined to award attorney fees to Christensen. The Board agreed
with the ALJ’s analysis and also denied Christensen’s request for
fees on the same basis. We conclude that Judge Newman’s and
the Board’s denials were based on an erroneous interpretation of
Injured Workers.

14. Apart from asserting that no remedies are warranted because
the Board erred in finding that the County had engaged in
retaliation, the County makes no argument in support of the
Board’s attorney fee decision.

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Christensen v. Labor Commission

¶51 Injured Workers addressed another provision of the Utah
Code, which granted the Labor Commission “full power to
regulate and fix the fee charge of attorneys involved in workers’
compensation cases.” Id. ¶ 5 (quotation simplified). The supreme
court struck down that statute, and the sliding-scale attorney fee
schedule and cap adopted by the Labor Commission pursuant to
that statutory authorization, concluding that “the regulation of
attorney fees falls squarely within the practice of law,” which the
Utah Supreme Court has “plenary authority” to govern. Id. ¶¶ 14–
15. Because “[r]egulating attorney fees goes to the very heart of
the practice of law” and “the supreme court is in a better position
than an administrative agency to determine the reasonableness of
attorney fees,” the court concluded that it could not “delegate the
authority to regulate attorney fees in workers’ compensation
cases to the legislature” and that, in turn, the legislature could not
delegate that authority to the Labor Commission. Id. ¶¶ 15, 33.

¶52 The supreme court also declined to adopt its own fee
schedule for regulating the fees of injured workers’ attorneys
because “attorneys remain bound by rule 1.5 and the other Utah
Rules of Professional Conduct—just as in any other case—and
therefore may charge only reasonable fees.” Id. ¶ 35. The supreme
court reasoned that “the absence of a fee schedule will allow
injured workers the flexibility to negotiate appropriate fees with
their attorneys.” Id. ¶ 39. “[R]ule 1.5 of the Rules of Professional
Conduct requires attorneys to charge a reasonable attorney fee in
all cases. Attorneys that violate this rule may be subject to
sanctions.” Id. ¶ 40. Thus, any attorney violating these rules may
have their fee agreement invalidated and be referred to the Office
of Professional Conduct of the Utah State Bar for discipline. See id.
Concluding “that injured workers are adequately safeguarded by
current rules against attorneys . . . charging unreasonable fees,”
the supreme court “decline[d] to enact a fee schedule at this time.”
Id. ¶ 42.

¶53 In the wake of Injured Workers, the Labor Commission has
declined to award fees in workers’ compensation cases, including

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Christensen v. Labor Commission

discrimination cases, based upon its conclusion that any such
award would necessarily require the prohibited involvement of
the legislative and executive branches in the regulation of the
practice of law. But in our view, this position is not compelled by
Injured Workers and has resulted in the denial of attorney fee
awards in all cases, even those cases where the applicable statutes
authorize such an award. As mentioned above, Injured Workers
addressed the constitutionality of a statute that gave the Labor
Commission full authority to regulate and fix attorney fees and to
set limits on the fees attorneys could charge for their services. Id.
¶ 33 (“Regulating attorney fees goes to the very heart of the
practice of law, inasmuch as it involves assessment of the quality,
amount, and value of legal services related to a legal problem.”).
Here, the allegations of discrimination and retaliation were
brought pursuant to section 34A-5-107(8) of the Utah Code, which
does not give the Labor Commission the “full power to regulate
and fix fees” but rather allows the ALJ to provide relief to
someone who has been subjected to discrimination. Indeed, as our
supreme court noted, “We stress that this opinion is limited to
legislative attempts to regulate the attorney-client relationship.
We are not foreclosing the legislature’s ability to designate
statutory attorney fee awards.” Id. ¶ 34 n.7.

¶54 Injured Workers appears to contemplate that attorneys and
injured workers will negotiate a reasonable fee subject to rule 1.5
and other rules of professional conduct. That is, attorneys who
represent injured workers before the Labor Commission remain
subject to the requirements of the professional rules to negotiate
and charge a reasonable fee “just as in any other case.” Id. ¶ 35.
The determination of what constitutes a reasonable fee is, in turn,
guided by rule 1.5 of the Rules of Professional Conduct, which the
supreme court noted “lay[s] out several factors that should be
taken into consideration when calculating a ‘reasonable’ attorney
fee: the time and labor required, the amount involved in the
controversy, the contingency or certainty of the compensation,
etc.” Id. ¶ 32. Noting that “in rule 1.5, we mandate that a lawyer

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Christensen v. Labor Commission

shall not make an agreement for, charge or collect an
unreasonable fee,” the supreme court stated that the rule has
served “as a guideline in determining the reasonableness of
attorney fees.” Id. ¶ 33 (quotation simplified). If an attorney
charges an excessive fee, they face the possibility that the contract
will be set aside and they will be subject to sanctions. See id. ¶ 41
(citing Dahl v. Dahl, 2015 UT 79, 459 P.3d 276, in which the
supreme court invalidated an attorney’s fee agreement and
referred the attorney to the Office of Professional Conduct for
disciplinary proceedings).

¶55 Here, the ALJ was not asked to assess “the quality, amount,
and value of legal services” provided by Christensen’s attorney.
See id. ¶ 33. Rather, Judge Newman was asked to enter an award
of fees related to Christensen’s successful showing of retaliation.
This required Judge Newman only to determine whether
Christensen incurred attorney fees in bringing her retaliation
claim and to order relief to Christensen as allowed under the
statute. Entering an award of fees, without passing judgment on
the reasonableness underlying those fees, does not infringe on the
supreme court’s authority to regulate the practice of law, and the
legislature therefore did not exceed its authority in delegating the
authority to award attorney fees in antidiscrimination cases to the
Labor Commission. 15 Accordingly, the ALJ and the Board erred
14F

15. To be clear, when we refer to “reasonableness” here, we are
talking about the amount an attorney charges for a particular
service, not other potential concerns such as the relatedness of the
charges. An agency could, for example, conclude that fees
charged were inappropriate because they pertained to work not
actually done by the attorney or work relating to other matters for
which attorney fees were not awarded. But it could not deny an
award of fees on the ground, for example, that the attorney’s
hourly rate was not consistent with rates charged by similarly
situated lawyers.

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Christensen v. Labor Commission

in declining to award Christensen her attorney fees based on a
perceived lack of authority. We therefore remand for the Board to
enter a judgment for the amount of the fees.

B. The County’s Challenges

1. Reinstatement

¶56 The County challenges the Board’s order that it reinstate
Christensen’s employment on the ground that she was not
constructively discharged. 16 For the same reasons an award of
15F

back pay is not appropriate where an employee is not
constructively discharged and suffers no direct wage loss, see
supra ¶ 48, reinstatement is also not an appropriate remedy when
there has been no job loss. Because Christensen voluntarily left her
employment with the County when she retired early, we agree
that the Board erred in ordering the County to reinstate
Christensen’s employment.

2. Vacation and Sick Leave

¶57 The County next asserts that the Board should have set
aside Judge Newman’s award of the value of vacation and sick
leave Christensen used while still employed with the County. The
County asserts that this resulted in a “double recovery” because
Christensen received the value of her sick leave when she took
FMLA leave.

16. The County also asserts that the Board should not have
ordered reinstatement because it was not a remedy Christensen
requested. Because we agree with the County that reinstatement
was not an available remedy where there was no determination
of constructive discharge, we do not address the question of
whether an ALJ or the Board may award remedies not requested
by the plaintiff.

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Christensen v. Labor Commission

¶58 However, the County’s argument assumes that the
vacation pay and sick leave had no value beyond their use during
Christensen’s employment. That does not appear to be the case:
Christensen maintains that “she would have been able to cash out
that sick and leave pay” when she retired. Though there was no
constructive discharge and Christensen did not resign, she did
take other steps to alleviate the retaliatory adverse actions she was
facing, which did cause her to suffer some benefit loss. That is,
while using her accrued leave and retiring early allowed
Christensen to maintain a steady income throughout her leave
and into retirement such that she did not suffer the direct loss of
wages that would entitle her to back pay, Christensen still
incurred losses, albeit less than she would have suffered by
quitting her job outright. A reasonable person who might not find
working conditions so intolerable as to quit their job and find
themselves without income might, nevertheless, do as
Christensen did and use up all vacation and sick leave to remove
themselves from the retaliation. In other words, had the County’s
retaliation not caused Christensen to take FMLA leave in response
to its conduct, she could have continued working and earning her
regular salary for that time period and either used her vacation
and sick leave to take time off at a later date or, consistent with
the County’s rules, cashed out those benefits at the time she left
her job. Thus, we agree with the Board that an award of these
benefits was appropriate under the statute.

3. Retirement

¶59 As discussed above, the UAA directs an order of relief to
the plaintiff upon a determination that an employer has engaged
in a prohibited employment practice. See Utah Code § 34A-5-
107(8). And the statutory list of available relief is not exhaustive.
Thus, the available relief was broad enough to encompass the

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Christensen v. Labor Commission

economic loss Christensen suffered when she retired early in
response to the adverse actions she endured. 17
16F

¶60 In this case, the Board ordered the County to reimburse
Christensen for the amount she withdrew from her retirement
account to allow her to retire early. The Board found that

17. The County once again reminds us that Christensen was not
constructively discharged. However, there is a subtle difference
between the question of whether the County’s adverse actions
prompted Christensen to leave her employment and whether
those actions prompted her to take early retirement when it
became available.
A finding of constructive discharge requires an employee
to show that they resigned “under working conditions that a
reasonable person would view as intolerable.” Touchard v. La-Z-
Boy Inc., 2006 UT 71, ¶ 26, 148 P.3d 945 (quotation simplified). But
here, because the Board determined that the County’s adverse
employment actions would not have compelled a reasonable
person in the circumstances in which Christensen found herself to
resign, Christensen was not discharged and is not entitled to
reinstatement or back pay. But although Christensen did not
resign, she took other steps, as she did with her vacation pay and
sick leave, to alleviate the retaliatory adverse actions she was
facing and suffered certain economic loss as a result. A reasonable
person who might not find working conditions so intolerable as
to quit their job and find themselves without wages might,
nevertheless, finding themselves within arms-length of
retirement, take the steps Christensen took to achieve an early
retirement to remove themselves from the adverse employment
situation. Thus, we do not agree with the County that the fact that
Christensen was not constructively discharged prevents her from
recovering the economic loss she incurred to allow her to retire
early. Despite not finding constructive discharge, the Board did
find that the adverse actions directed at Christensen prompted
her to retire earlier than she otherwise would have.

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Christensen v. Labor Commission

retaliatory changes in “Ms. Christensen’s employment prompted
the withdrawal from her retirement account . . . to secure early
retirement and extricate herself from the retaliatory change[s].”

¶61 The County asserts that Christensen did not suffer an
injury when she withdrew this money because she “merely
transferr[ed] funds from her retirement account in order to
receive an enhanced benefit in her pension account.” However,
the record evidence showed that Christensen did not intend to
retire until she turned sixty-five and that the retaliatory actions
she suffered prompted her decision to retire early. Had she retired
when she originally intended to, the value of her pension would
have been greater and there would have been no need for her to
withdraw retirement funds to obtain an “enhanced benefit.”
Thus, it was reasonable for the Board to find that her withdrawal
of the retirement funds was a compensable loss under the UAA.

III. Attorney Fees on Review in This Court

¶62 Finally, Christensen requests an award of fees on judicial
review. Christensen has not cited any authority justifying an
award of fees in this circumstance. Thus, we deny her request for
an award of fees and costs incurred in bringing her petition and
defending against the County’s petition.

CONCLUSION

¶63 We decline to set aside the Board’s determination that
Christensen suffered retaliation under the UAA. We set aside the
Board’s order that the County reinstate Christensen’s
employment but uphold its award of additional remedies. Finally,
we remand this matter to the Board to calculate the fees
Christensen incurred in bringing her UAA claim before the
agency.

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Christensen v. Labor Commission

POHLMAN, Justice (concurring in part and dissenting in part):

¶64 I respectfully concur in part and dissent in part.

¶65 I agree with the majority’s analysis in Part I regarding the
appropriate legal standard to apply, but I agree with the County
that the Board did not apply that legal standard in this case. Thus,
rather than approve the Board’s decision, I would set the Board’s
entire decision aside and instruct it to apply the correct standard
in the first instance.

¶66 Because I would set aside the Board’s decision and instruct
the Board to revisit its retaliation determination, I would not reach
the parties’ challenges to the Commission’s decision as to whether
certain remedies are available to Christensen. But I write briefly
on the issue of attorney fees only to urge our supreme court, if
given the opportunity, to address the application of Injured
Workers Ass’n of Utah v. State, 2016 UT 21, 374 P.3d 14, to section
34A-5-107(8)(b)(iii) of the Utah Antidiscrimination Act (the UAA).

I. Retaliation

¶67 In challenging the Board’s determination that the County
unlawfully retaliated against Christensen for complaining of
discrimination, the County argues that the Board “applied an
incorrect legal standard.” The County recognizes, as does the
majority, that an action is sufficiently adverse to be considered
retaliatory if it “might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.” See Burlington
N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (quotation
simplified); see also supra ¶ 28. But the County contends that the
Board did not apply this standard. It argues that, instead, the
Board assessed only whether the County adversely changed or
altered the terms, privileges, and conditions of Christensen’s
employment. And the County argues that by failing to apply the
correct legal standard, the Board failed to adequately assess the

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Christensen v. Labor Commission

severity of the adverse actions and thus erred in concluding that
the County’s conduct was actionable.

¶68 I agree with the County. Although the Board occasionally
stated that the County’s actions were “material,” the Board did
not articulate how it assessed materiality, and it does not appear
that the Board considered whether the actions were such that they
“might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” See Burlington, 548 U.S. at
68 (quotation simplified). Indeed, there is no application of this
objective standard in its decision; rather, the Board’s assessment
depends only on its view that the terms, privileges, and
conditions of Christensen’s employment were altered or changed.

¶69 The majority concludes that the Board’s decision is
sustainable based on the majority’s view that the County’s actions
“had the potential to ‘dissuade[] a reasonable worker from . . .
supporting a charge of discrimination.’” See supra ¶ 30 (quoting
Burlington, 548 U.S. at 68). But given the fact-intensive nature of
this assessment and the limited extent of the Board’s findings, I
am not comfortable taking the Board’s decision and grafting it
into the correct legal framework. Cf. Burlington, 548 U.S. at 69
(explaining that “the significance of any given act of retaliation
will often depend upon the particular circumstances”).

¶70 For example, it is difficult to know how to assess the
Board’s statement that Supervisor followed Christensen and
“closely monitored” her, see supra ¶¶ 29, 32, because there are no
findings in either the ALJ’s or the Board’s decisions about her
being followed or describing how and when she was “closely
monitored.” 18 Similarly, without additional context, it is not
17F

18. As acknowledged in Part I.B of the majority’s opinion, some of
the conduct Christensen identified as retaliatory was the same
type of conduct that occurred before she complained of
discrimination to her union representative. The Board’s decision
(continued…)

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Christensen v. Labor Commission

apparent to me why the sharing of two documents containing
Christensen’s mistakes, reviewing her purchasing activity from
the prior year, and her observation that errors were marked in her
files necessarily would have dissuaded a reasonable worker from
making or supporting a charge of discrimination. 19 See, e.g.,
18F

Sotunde v. Safeway, Inc., 716 F. App’x 758, 767–68 (10th Cir. 2017)
(concluding that criticisms of work and low performance
evaluations were insufficient to support a retaliation claim under
the “might have dissuaded” standard); Keller v. Crown Cork & Seal
USA, Inc., 491 F. App’x 908, 914 (10th Cir. 2012) (rejecting, as a
matter of law, a claim of retaliation based on complaints about
“strict application of policies, increased supervision, write-ups,
means and methods of communication with . . . supervisors, and
restrictions on . . . employment relationships”).

¶71 Thus, while I remain open to the determination that the
County’s actions were sufficiently timely and targeted so as to
meet that standard, without further explanation from the Board, I
cannot reach that conclusion on my own. Accordingly, I would
not allow the Board’s retaliation determination to stand. Instead,
I would set its order aside with instructions to apply the “might
have dissuaded” standard to the County’s actions that post-date
Christensen’s complaint. See Jensen Tech Services v. Labor Comm’n,

does not carefully distinguish between pre- and post-reporting
conduct, and thus it is difficult to assess the nature of the post-
reporting conduct and whether it meets the “might have
dissuaded” standard.

19. After all, these events didn’t dissuade Christensen from
making a charge of discrimination. She filed her UALD complaint
charging harassment and discrimination after these events
occurred. See supra ¶¶ 8–10. Although Christensen’s subjective
response does not preclude the objective standard from being
met, it leaves me wanting further explanation from the Board
before I can conclude that the standard was met.

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Christensen v. Labor Commission

2022 UT App 18, ¶ 9, 506 P.3d 616 (“[W]hen an agency misapplies
the governing law in making a decision, we may set aside the
resulting decision with instructions to reconsider the issue.”).

II. Injured Workers and Attorney Fees

¶72 As the majority notes, the UAA authorizes an award of
attorney fees to a claimant as a form of relief after finding that a
respondent has engaged in a discriminatory or prohibited
employment practice. See supra ¶ 50. But the ALJ, and in turn the
Board, declined to award attorney fees to Christensen based on
their assessment that Injured Workers Ass’n of Utah v. State, 2016
UT 21, 374 P.3d 14, “stands for the proposition that such a grant
of authority is unconstitutional.” See supra ¶ 50. The Board
reached this conclusion in this and other cases 20 based on its view
19F

that “the mechanism for awarding attorney fees through [the
claimant’s attorney fee] affidavit would . . . involve considering
and approving such affidavit,” and that that process would
unconstitutionally encroach on the power of the judiciary to
govern the practice of law. 21
20F

20. This does not appear to be the only case where the Board took
this position. The Board noted in its decision in this case that it
“has previously determined that it does not have the authority to
award attorney fees in antidiscrimination cases.”

21. I appreciate the Board’s efforts to interpret Injured Workers and
its application to this case. I question, however, the Board’s
authority to simply decline to apply section 34A-5-107(8)(b)(iii) of
the UAA on the basis that the section is unconstitutional, without
seeking a declaration of such from the courts. See, e.g., Renn v. Utah
State Board of Pardons, 904 P.2d 677, 680 (Utah 1995) (“It has long
been held that the judicial power includes the authority to decide
whether a statute is constitutional.”); cf. Nebeker v. Utah State Tax
Comm’n, 2001 UT 74, ¶ 15, 34 P.3d 180 (“It is not for the Tax
(continued…)

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Christensen v. Labor Commission

¶73 The majority sets aside the Board’s decision on this point,
concluding that “the ALJ was not asked to assess ‘the quality,
amount, and value of legal services’ provided by Christensen’s
attorney.” See supra ¶ 55 (quoting Injured Workers, 2016 UT 21,
¶ 33). Thus, it concludes that because the ALJ (and ultimately the
Board) are asked only to enter an award of fees “without passing
judgment on the reasonableness underlying those fees,” the ALJ
and the Board will not regulate the practice of law and thus the
legislature “did not exceed its authority in delegating the
authority to award attorney fees in antidiscrimination cases to the
Labor Commission.” See supra ¶ 55.

¶74 I do not fault my colleagues for the needle they thread. On
the one hand, the supreme court in Injured Workers declared that
the regulation of attorney fees, which it describes as involving the
“assessment of the quality, amount, and value of legal services
related to a legal problem,” is a power vested exclusively in the
judiciary. See 2016 UT 21, ¶ 33. But on the other hand, the supreme
court stressed the limitation of its opinion, stating it did not
foreclose “the legislature’s ability to designate statutory attorney
fee awards.” Id. ¶ 34 n.7. In trying to square those two statements,
the majority concludes that statutory attorney fee awards are
permitted but that the Labor Commission cannot assess the
reasonableness of an attorney fee request. See supra ¶ 55.

¶75 While I do not question the logic of that resolution, I
question how the resolution will work in practice. The Board, after
all, observed in this case that to resolve Christensen’s attorney fee
request, the ALJ and the Board would have to judge her attorney
fee affidavit. And that observation is consistent with the supreme
court’s admonition that “‘[r]easonableness’ is generally the
standard” to be applied to requests for statutory attorney fee
awards. See Canyon Country Store v. Bracey, 781 P.2d 414, 420 (Utah
1989) (referring to court-awarded attorney fees). I worry that

Commission to determine questions of . . . constitutionality of
legislative enactments.” (quotation simplified)).

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Christensen v. Labor Commission

some confusion, if not unfairness, may be introduced into the
process if that reasonableness determination is not part of the
equation.

¶76 Unfortunately, the parties’ briefing on this question was
limited. Christensen suggested that the parties “engage in
discussions to prevent unnecessary litigation over fees
beforehand,” or that a party who disagrees with the amount of
fees awarded under section 34A-5-107(8)(b)(iii) “retains the right
to have the Courts review the amount for appropriateness.” I’m
not confident that Christensen’s first proposed solution
adequately addresses the problem, and Christensen cites no
authority for the second. Further, on review, neither the
Commission nor the County responded to Christensen’s assertion
or expressed any opinion on the Injured Workers issue. Under
these circumstances, I hesitate to weigh in conclusively on the
question. But because of the importance of this issue generally
and its impact on attorney fee requests in matters arising under
the UAA, I urge the supreme court to address the application of
Injured Workers to section 34A-5-107(8)(b)(iii) when appropriate.

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