Hexcel v. Labor Commission

2022 UT App 52

THE UTAH COURT OF APPEALS

HEXCEL CORPORATION,
Petitioner,
v.
LABOR COMMISSION AND MICHAEL PICKARD,
Respondents.

Opinion
No. 20200514-CA
Filed April 21, 2022

Original Proceeding in this Court

Matthew M. Durham and Vaughn G. Pedersen,
Attorneys for Petitioner
David J. Holdsworth, Attorney for Respondent
Michael Pickard

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and DAVID N.
MORTENSEN concurred.

HARRIS, Judge:

¶1 Hexcel Corporation (Hexcel) fired Michael Pickard,
ostensibly because Pickard was caught napping during work
hours. But just a few months earlier, Pickard had injured himself
while working, and since then had been trying to get Hexcel to
accommodate his injuries; Pickard believed that Hexcel fired him
not because of his short nap but because it did not want to deal
with his injuries. After an evidentiary hearing, an administrative
law judge (the ALJ) sided with Pickard and awarded him
damages, concluding that Hexcel fired Pickard out of
discriminatory or retaliatory motives and that its stated reasons
were pretextual. The Labor Commission (the Commission)
affirmed the ALJ’s award.
Hexcel v. Labor Commission

¶2 Hexcel now seeks review of that decision, challenging both
the pretext determination as well as the amount of damages
awarded. We decline to disturb the Commission’s pretext
determination, but we conclude that the Commission erred in its
calculation of damages and remand the matter to the Commission
for recalculation of those damages.

BACKGROUND1

¶3 Hexcel owns a manufacturing facility in West Valley City,
Utah. This facility operates 24 hours per day, 365 days per year,
and is fenced and guarded and not generally open to the public.
Hexcel hired Pickard, a maintenance electrician, in 2012. Pickard’s
duties required him to perform scheduled (and sometimes
emergency) maintenance and repairs on machinery and
equipment, and he often used a company truck as needed to drive
from place to place within Hexcel’s campus. Pickard was often
asked to work twelve-hour shifts, sometimes at night, and
sometimes for several days in a row. The work was physically
taxing, typically requiring Pickard to carry heavy tools, walk
moderately long distances, and work hands-on with various
machinery. But Pickard generally performed his duties well and
had received regular pay increases.

¶4 When it hired Pickard, Hexcel provided him with a copy
of the company’s policies and procedures, which included the
company’s Standards of Conduct and Work Rules. As relevant
here, the company’s policies included a ban on “[s]leeping during
work time,” a rule the parties refer to as “the Sleeping Rule.”
Hexcel later explained that the Sleeping Rule was grounded in
safety concerns rather than productivity concerns: Hexcel worried

1. “In reviewing an order from the Commission, we view the facts
in the light most favorable to the Commission’s findings and
recite them accordingly.” O’Connor v. Labor Comm’n, 2020 UT App
49, n.1, 463 P.3d 85.

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Hexcel v. Labor Commission

that, if evacuation of the facility became necessary, sleeping
employees might not be able to hear the alarms.

¶5 For the first few years of Pickard’s employment, however,
Hexcel made no serious effort to enforce the Sleeping Rule. That
changed in January 2017, when Hexcel—in response to a
“disturbing increase in the number” of napping employees—sent
a memorandum to its employees stating its intent to start
enforcing the Sleeping Rule and clarifying that “any future
violation” of the rule “will result in termination.”

¶6 After that memorandum was issued, several employees
inquired as to whether the company intended to forbid naps
during breaks. In response, Pickard’s direct supervisor (Manager)
stated that employees could nap during their breaks, so long as
they did so in the designated breakroom. Other employees were
informed that naps during breaks would not be punished even if
they occurred outside the breakroom. In the ALJ’s view, Hexcel’s
interpretation of the Sleeping Rule was “evolving,” and it did not
ever reduce to writing the rule’s “evolutions and modifications.”
In particular, “[n]o supervisor ever addressed . . . the question of
whether an employee was permitted to nap while taking a break
in a company truck.” And even after the January 2017
memorandum, Hexcel’s enforcement of the Sleeping Rule was far
from uniform, and “some employees continued to nap at their
desks without consequence.”

¶7 In June 2017, Pickard was working a twelve-hour night
shift—6:00 p.m. to 6:00 a.m.—along with a coworker (Coworker)
with whom Pickard was friendly. During a twelve-hour shift,
Hexcel employees were entitled to take one hour’s worth of
breaks, usually a fifteen-minute break sometime near the three-
hour mark, a half-hour lunch break near the halfway point, and
another fifteen-minute break around the nine-hour mark.
However, employees were generally allowed the flexibility to
adjust the timing of their breaks as needed to meet the workload.

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Hexcel v. Labor Commission

¶8 Sometime after 5:00 a.m., after they had been at work more
than eleven hours, Pickard and Coworker drove company trucks
back to the shop, where they began and ended their workday and
where the breakroom was located. Upon arrival, Pickard exited
his truck and entered the shop, assuming that Coworker would
follow. But Coworker did not follow, because he fell asleep in his
work truck and was discovered in that state by Manager.

¶9 Manager then instigated disciplinary action against
Coworker for violating the Sleeping Rule. During the ensuing
investigation, Pickard participated as a witness and confirmed
both that he was aware of the policy and that the policy was
known to “everyone.” Pickard was under the impression,
however, that employees could nap during their breaks if those
naps occurred in the breakroom.

¶10 A few days later, Hexcel terminated Coworker for
violating the Sleeping Rule. Coworker, however, had been
employed by Hexcel for some twenty years and was a member of
the local union, and he asked the union to challenge Hexcel’s
decision. The union agreed to do so, and later filed a grievance on
his behalf. The union “aggressively” pursued the case, indicating
during negotiations that, if necessary, it would take the matter to
arbitration. Hexcel and the union eventually reached an
agreement to settle Coworker’s case; the settlement obligated
Hexcel to reinstate Coworker pursuant to an arrangement that it
referred to as a “Last Chance Corrective Action Agreement.”
Under this arrangement, Coworker was suspended without pay
for several weeks, agreed to random drug testing for one year,
would be ineligible for promotion for a period of time, and would
be subject to termination for future violation of any of Hexcel’s
work rules. After his suspension, Coworker was reinstated under
those terms, and worked for Hexcel until his retirement in
November 2017.

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Hexcel v. Labor Commission

¶11 In mid-June 2017, on the day of Coworker’s termination,
Pickard was helping Coworker load his tools into his truck prior
to Coworker’s departure. Coworker’s tools were large and heavy,
and some of them were contained in six-gallon buckets. While
Pickard was carrying a bucket full of large wrenches to
Coworker’s truck, the tools shifted and tipped the bucket, causing
Pickard’s back to twist. He felt immediate pain, including a
burning sensation down his back. He sought medical attention
and was unable to return to work for nine days. During the time
that Pickard was off work, Hexcel instructed him to use vacation
time, pending medical evaluation of his injury. Under Hexcel’s
terms of employment, use of vacation time is considered an
“incident,” and any employee who incurs five incidents is subject
to employment sanction, up to and including termination.

¶12 When Pickard returned to work, he informed Hexcel that
his physicians had recommended certain work restrictions,
including a limitation on standing, walking, and sitting more than
“2 hours per shift.”2 Pickard also asked to be reassigned to an
eight-hour day shift to better accommodate these restrictions; that
request was denied, apparently because Hexcel claimed to be
“short-handed” at the time. Manager informed Pickard that, if he

2. It is unclear, from the record, exactly what the physicians
intended by these restrictions. Hexcel interpreted the restrictions
narrowly, taking the position that Pickard could accommodate
them on his own by “taking a break after any two-hour period of
walking, sitting, or standing.” Pickard took a different view, and
believed that his doctors were counseling him not to walk, stand,
or sit for more than two hours in any given shift,
recommendations he believed would be easier to achieve in an
eight-hour shift than in a twelve-hour shift. In this case, however,
we do not need to reach any conclusive determination about the
meaning of these restrictions; the point here is that Pickard sought
certain accommodations in light of these restrictions that Hexcel
was unwilling or unable to provide.

20200514-CA 5 2022 UT App 52
Hexcel v. Labor Commission

could not work the scheduled shifts, he would have to use his
vacation time. Pickard did not want to run the risk of generating
additional “incidents,” and therefore “returned to his regular
schedule” of twelve-hour shifts, which alternated between night
shifts and day shifts.

¶13 Pickard continued to receive medical treatment, including
administration of prescribed pain and anti-inflammatory
medication. After a few weeks, by early August, his condition had
been upgraded to allow up to “3 hours per 8-hour shift” of sitting,
standing, and walking. Pickard provided ongoing notice of his
progressing condition to Hexcel.

¶14 At some point after he returned to work, Pickard attended
a daytime training meeting. During that meeting, several
employees dozed off and began to snore audibly. Pickard caught
Manager’s eye and directed his attention to the employees who
appeared to be asleep. In response, Manager stopped the meeting,
turned on the lights, and instructed everybody to stand up and
stretch. After the meeting, Pickard spoke with Manager and
expressed his view that, in light of what happened to Coworker,
fairness required that these employees be terminated. But no
employees were disciplined, let alone terminated, as a result of
this event. Pickard also witnessed several other Hexcel employees
sleeping during their shifts, and these employees were likewise
not disciplined.

¶15 On August 21, 2017, Pickard was assigned to work his
fourth straight night shift. His workload was heavy that night and
he had been unable to take any breaks, even for lunch, until after
5:00 a.m. At approximately 5:15 a.m., Pickard parked his truck
outside the shop—just feet away from the actual breakroom—and
set an alarm for 5:45 a.m., so that he would have time to finish his
daily paperwork before his shift ended. He then fell asleep in his
truck. At 5:22 a.m., after napping for some seven minutes, he was
discovered by Manager.

20200514-CA 6 2022 UT App 52
Hexcel v. Labor Commission

¶16 Manager later initiated disciplinary procedures against
Pickard, and the incident was referred to Hexcel’s human
resources department for investigation. As part of the
investigation, Pickard was interviewed, and he explained that he
understood the Sleeping Rule to have been modified by the
decision to reinstate Coworker. He additionally alleged that he
had been told by other employees that a work truck could be
considered an extension of the breakroom. Pickard offered his
view that the rule was confusing and unclear, and he referenced
the training meeting where multiple employees had fallen asleep
but were not disciplined.

¶17 About a week later, Hexcel terminated Pickard for
violating the Sleeping Rule. The ALJ later found that Hexcel’s
human resources department left it to Manager to make the final
decision regarding Pickard, and he elected termination.

¶18 Pickard then contacted the union to see if it would
represent him in grieving his termination, but the union declined
because Pickard was not a member. A few weeks after that, in
September 2017, Pickard filed a complaint with the Utah
Antidiscrimination and Labor Division (the UALD), claiming that
he was terminated due to his disabling injury—his lower back
condition—and that he had been subjected to unlawful
retaliation. Following an investigation, however, the UALD
determined that Pickard had not established a prima facie case of
either discrimination or retaliation. Pickard was subsequently out
of work until December 2017, when he obtained another job
working in electrical maintenance.

¶19 Later, Pickard sought review before the Commission. The
ALJ held an evidentiary hearing in which Pickard, Coworker,
Manager, and a representative from Hexcel’s human resources
department all testified. Pickard offered testimony—but no
documentary evidence—regarding his damages, indicating that,
between August and December 2017, he had found it necessary to

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Hexcel v. Labor Commission

withdraw funds from his savings and 401(k) accounts to pay
living expenses and medical costs.

¶20 At the conclusion of the hearing, the ALJ ruled in Pickard’s
favor. She determined that Pickard had made out a prima facie
case of discrimination and retaliation, and determined that Hexcel
had articulated a legitimate nondiscriminatory reason—violation
of the Sleeping Rule—for its actions. However, the ALJ also
determined that Pickard had carried his burden of demonstrating
that Hexcel’s articulated reason for terminating him was mere
pretext, emphasizing that Hexcel’s explanation for and
enforcement of the Sleeping Rule was “incoherent and
inconsistent,” and concluding that Hexcel’s “proffered reason for
terminating” Pickard was “unworthy of credence.” The ALJ also
awarded Pickard damages, ordering Hexcel to pay $30,805.26 in
“lost wages,” any “out-of-pocket” medical expenses Pickard
incurred between August and December 2017, “reimbursement
of” Pickard’s withdrawals from his savings and 401(k) accounts,
and “costs and attorney fees.”

¶21 Hexcel then appealed the ALJ’s determination to the
Commission, challenging both the ALJ’s pretext determination as
well as its damages award. The Commission largely rejected
Hexcel’s arguments. In particular, the Commission adopted the
ALJ’s findings of fact and affirmed the ALJ’s pretext
determination. With regard to damages, the Commission reduced
the amount of the lost wages award to $22,964.05, but otherwise
affirmed the ALJ’s damages award.

ISSUES AND STANDARDS OF REVIEW

¶22 Hexcel now seeks judicial review of the Commission’s
decision, and asks us to consider two issues. First, it challenges
the Commission’s determination that its proffered reason for
firing Pickard was pretextual. We have previously determined
that a pretext determination made by the Commission is more

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Hexcel v. Labor Commission

“fact-like” than “law-like,” and is therefore “entitled to deference
by this court” and will not be disturbed unless “clearly
erroneous.” See Kunej v. Labor Comm’n, 2013 UT App 172, ¶ 5, 306
P.3d 855 (quotation simplified). In Kunej, we explained that “the
determination whether an employer’s conduct was motivated by
discrimination—i.e., that its proffered explanation was
pretextual—is both sensitive and difficult,” and requires the
Commission to “decide which party’s explanation of the
employer’s motivation it believes.” Id. (quotation simplified). In
this context, the Commission’s determination is often “affected by
its observation of a competing witness’s appearance and
demeanor on matters that cannot be adequately reflected in the
record available to appellate courts.” Id. (quotation simplified).
Under this standard of review, we will overturn the
Commission’s determination “only if it is not supported by
substantial evidence.” See Nielsen v. Labor Comm’n, 2020 UT App
2, ¶ 9, 456 P.3d 1167; see also id. (applying the “substantial
evidence” standard to a “fact-like” determination). “Substantial
evidence is more than a mere scintilla of evidence though
something less than the weight of the evidence, and the
substantial evidence test is met when a reasonable mind might
accept as adequate the evidence supporting the decision.” Graphic
Packaging Int’l Inc. v. Labor Comm’n, 2021 UT App 82, ¶ 34, 495 P.3d
228 (quotation simplified).

¶23 Second, Hexcel takes issue with the Commission’s
damages award, asserting that the Commission erred in awarding
damages “based solely on Pickard’s uncorroborated testimony,”
and that the award permits Pickard a “double recovery” by
including both lost wages as well as reimbursement of the
withdrawals from his savings and 401(k) accounts. These
particular challenges do not implicate the Commission’s potential
discretion in assessing reasonable damages; rather, they raise an
issue of evidentiary competence as well as a question of whether
the award includes a partial double recovery. “Whether the
Commission applied the correct legal standard in making its

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Hexcel v. Labor Commission

[damages] determination is . . . a question of law, which we review
for correctness.” A & B Mech. Contractors v. Labor Comm’n, 2013 UT
App 230, ¶ 15, 311 P.3d 528; see also In re adoption of Baby B., 2012
UT 35, ¶¶ 46–47, 308 P.3d 382 (explaining that some “factual and
mixed findings” may contain, by implication, determinations
regarding “embedded legal questions,” and that we review
“embedded legal conclusion[s]” without deference).

ANALYSIS

I

¶24 Hexcel first challenges the Commission’s determination
that its proffered reason for terminating Pickard was pretextual.
We reject this challenge, because we conclude that the
Commission’s determination was supported by substantial
evidence and was therefore not clearly erroneous.

¶25 Pickard’s claims are rooted in the Utah Antidiscrimination
Act (UADA), which provides, in relevant part, that an employer
may not “discharge, demote, or terminate a person, or . . . retaliate
against . . . a person otherwise qualified, because of . . . disability.”
Utah Code Ann. § 34A-5-106(1)(a)(i)(H) (LexisNexis 2019). In
order to establish a claim under this section of the UADA, a
claimant must satisfy the three-step burden-shifting test first set
forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See
Viktron/Lika v. Labor Comm’n, 2001 UT App 394, ¶ 7, 38 P.3d 993.
Under this test, the claimant “has the initial burden to establish a
prima facie showing of the employer’s discrimination.” Sheikh v.
Department of Public Safety, 904 P.2d 1103, 1106 (Utah Ct. App.
1995) (quotation simplified). If the claimant is able to make a
prima facie showing, then the burden “shifts to the employer who
must articulate a legitimate, nondiscriminatory reason for its
suspect conduct.” Id. If the employer can articulate a legitimate
reason for its actions, then the burden “shifts back to the employee
who must then show by a preponderance of the evidence that the

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Hexcel v. Labor Commission

employer’s articulated reasons were merely a pretext for
discrimination.” Id. But “the ultimate burden of persuasion that
the employer discriminated against the employee remains at all
times” with the claimant. Id. (quotation simplified).

¶26 Applying McDonnell Douglas and its three-step test, the
ALJ found that Pickard met his burden of establishing a prima
facie case that Hexcel had discriminated against him based on his
disability, and that Hexcel had articulated a legitimate
nondiscriminatory reason—Pickard’s violation of the Sleeping
Rule—for its actions. But the ALJ found Hexcel’s proffered
explanation to be pretextual, and the Commission affirmed that
determination after adopting the ALJ’s findings of fact.

¶27 Neither party takes issue with the Commission’s
determination regarding the first two steps of the McDonnell
Douglas test: Hexcel does not challenge the Commission’s
determination that Pickard can make out a prima facie case of
discrimination or retaliation, and Pickard does not challenge the
Commission’s determination that Hexcel has articulated a
legitimate nondiscriminatory reason for terminating him. In this
case, then, Hexcel’s challenge is limited to the third step in the
McDonnell Douglas test. In particular, it takes issue with the
Commission’s finding that Hexcel’s proffered reason was merely
pretextual, and that Hexcel in actuality fired Pickard because he
was injured and sought accommodation for that injury.

¶28 In making its determination regarding pretext, the
Commission must examine the reasons proffered by the employer
for its adverse employment action, and must assess whether the
employer “honestly believed those reasons and acted in good
faith on those beliefs.” Kunej v. Labor Comm’n, 2013 UT App 172,
¶ 9, 306 P.3d 855 (quotation simplified). If the employer made a
good faith decision for articulable business-related reasons,
tribunals should defer to such decisions. See Young v. Dillon Cos.,
468 F.3d 1243, 1250 (10th Cir. 2006) (explaining that courts do not

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Hexcel v. Labor Commission

sit as “super personnel department[s]” and should not “second
guess[] employers’ honestly held (even if erroneous) business
judgments” (quotation simplified)). But if the employer took an
adverse employment action for an improper discriminatory or
retaliatory reason, and its articulated reason is merely pretextual,
the employer has violated Utah law. See Utah Code Ann. § 34A-5-
106(1)(a)(i)(H).

¶29 Claimants can meet their burden under the third step of the
McDonnell Douglas test by “demonstrat[ing] that the employer’s
explanation for its decision was so implausible, incoherent, or
internally contradictory that the decision must have been made
on some other basis.” Kunej, 2013 UT App 172, ¶ 6 (quotation
simplified); see also Vaughn v. Epworth Villa, 537 F.3d 1147, 1153
(10th Cir. 2008) (stating that pretext may be demonstrated by
showing “weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer’s proffered
legitimate reasons for its action that a reasonable factfinder could
rationally find them unworthy of credence and hence infer that
the employer did not act for the asserted non-retaliatory reasons”
(quotation simplified)). Claimants can make this showing in any
number of ways, depending on the facts and circumstances of the
particular case; in some instances, claimants have met their
burden by presenting “evidence that the defendant acted contrary
to an unwritten policy or contrary to company practice when
making the adverse employment decision affecting the plaintiff,”
or that the claimant “was treated differently from other similarly-
situated employees who violated work rules of comparable
seriousness.” See Kendrick v. Penske Transp. Services, Inc., 220 F.3d
1220, 1230 (10th Cir. 2000).

¶30 In this case, the Commission’s determination was based on
multiple factors. First, it found that the Sleeping Rule—at least as
interpreted and verbally modified by various Hexcel
supervisors—was unclear and inconsistent. This finding is
supported by substantial evidence in the record. Although the

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Hexcel v. Labor Commission

January 2017 memorandum stated the rule in clear terms—that no
sleeping at work would be tolerated—Manager told his
employees that they could nap in the breakroom during breaks,
and other employees were apparently told that they could nap
during breaks even outside the breakroom. And the Commission
expressly found that “[n]o supervisor ever addressed specifically
the question of whether an employee was permitted to nap while
taking a break in a company truck.” Indeed, the ALJ concluded
that Hexcel “never provided employees with clear and definitive
language to specify where and when napping was allowed,” and
Pickard himself was under the impression that his truck could be
considered an extension of the breakroom.

¶31 Second, the Commission found that Hexcel’s enforcement
of the Sleeping Rule, even after January 2017, was inconsistent.
This finding is also supported by substantial evidence in the
record. Prior to January 2017, it had become common for
employees to nap during their breaks, usually in the breakroom
or at their desks, but also sometimes in company trucks. Put
simply, the Sleeping Rule, though in place, was not enforced for
the first five years of Pickard’s employment. But even after the
January 2017 memorandum, some employees continued to nap,
even outside the breakroom, without consequence. In fact, during
the administrative hearing, Pickard referenced several different
Hexcel employees—in addition to those who were caught
sleeping during the training meeting—who were found sleeping
outside of the breakroom, and who suffered no discipline.
Coworker confirmed this testimony and likewise testified to
witnessing other employees sleep outside of the breakroom
without being terminated. The ALJ thus concluded, based on this
testimony as well as the incident where several employees fell
asleep during a training meeting without disciplinary

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ramifications,3 that she had heard sufficient evidence of
“inconsistencies, incoherencies, or contradictions” to discredit
Hexcel’s proffered explanation for Pickard’s termination. See
Vaughn, 537 F.3d at 1153.

¶32 Hexcel resists the Commission’s findings largely by
pointing to its treatment of Coworker, and by noting that both
Coworker and Pickard committed very similar violations—taking
a short nap in their work truck during the twelfth hour of a
twelve-hour shift—and were given the same initial sanction:
termination. Hexcel correctly points out that Coworker was not
injured and seeking accommodation, and that it enforced the
Sleeping Rule against him in the same fashion. And Hexcel also
asserts that it reinstated Coworker—and not Pickard—only
because Coworker, a union member, grieved his termination and
the union threatened to take the matter to arbitration. We
acknowledge Hexcel’s point that an employer may rationally
choose to take a different employment action toward a union
employee than toward a non-union employee, and agree with
Hexcel’s argument that—for several reasons—Pickard and
Coworker were not necessarily similarly situated. See, e.g., Lewis
v. Frito-Lay, Inc., 680 F. App’x 772, 774 (10th Cir. 2017) (concluding

3. The ALJ found further inconsistency in the fact that Hexcel
reinstated Coworker “but held firm in the decision to terminate
[Pickard’s] employment.” In her view, the “only difference in the
two situations [was] that [Pickard] was disabled when he fell
asleep, while [Coworker] might not have been working under a
similar disability.” We disagree with the ALJ’s statement that
Pickard’s injury was the “only difference” between the two
situations, see infra ¶ 32, but we acknowledge the ALJ’s inference
that Hexcel’s experience with Coworker—which process was
essentially completed by the time Pickard fell asleep in his truck—
had brought to the company’s attention a more lenient alternative
course of action that could potentially have been applied in
Pickard’s situation.

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that the plaintiff and two other employees were not similarly
situated for purposes of a pretext analysis where the employer
offered reinstatement to the other employees, but not to the
plaintiff, because “the union threatened or filed arbitration” in the
other employees’ cases but “not in [the plaintiff’s] case”); Gast v.
City of Martins Ferry, 2019-Ohio-1147, ¶ 51, 129 N.E.3d 507 (“[N]o
discriminatory intent may be inferred from a defendant’s decision
to treat differently union members and non-union members.”).
We recognize the strength of this evidence, and acknowledge that
a different factfinder might have viewed this evidence as strong
enough to warrant a determination that Pickard had not carried
his burden of showing pretext.

¶33 But there was other evidence, as detailed above, to support
the Commission’s determination, and we review the
Commission’s findings deferentially. See Graphic Packaging Int’l
Inc. v. Labor Comm’n, 2021 UT App 82, ¶ 34, 495 P.3d 228 (stating
that if “a reasonable mind might accept as adequate the evidence
supporting the decision,” then the agency’s conclusion has met
the substantial evidence test (quotation simplified)). Under the
applicable standard of review, the relevant question is not
whether we would have made the same decision had we been the
factfinders in the first instance. Instead, the relevant question is
whether substantial evidence supports the Commission’s pretext
determination. And on this record, it does. The Commission’s
determination—while perhaps not the only permissible one
under the circumstances—is not clearly erroneous. And on that
basis, we decline to disturb it.

II

¶34 Next, Hexcel challenges the Commission’s damages
award, and lodges two distinct complaints. First, Hexcel asserts
that the Commission’s award is not supported by sufficient
evidence. Second, it asserts that the contours of the award allow

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Pickard to enjoy a partial double recovery. We are unpersuaded
by Hexcel’s first argument, but we find merit in the second.

¶35 Regarding its first argument, Hexcel contends that Pickard
provided no documentary evidence in support of his damages
claims, and provided only his own testimony in support of those
claims. In Hexcel’s view, this is not enough. We disagree.

¶36 To establish the fact of damages, “the evidence must give
rise to a reasonable probability that the plaintiff suffered
damage.” Stevens-Henager College v. Eagle Gate College, 2011 UT
App 37, ¶ 16, 248 P.3d 1025 (quotation simplified). And the
plaintiff has the burden to produce “a sufficient evidentiary basis
to . . . permit the trier of fact to determine with a reasonable
certainty the amount of those damages.” Id. (quotation
simplified). In appropriate cases, a plaintiff can utilize his or her
own testimony to help carry this burden. See, e.g., Fuller v.
Mountain Sculpture, Inc., 314 P.2d 842, 847 (Utah 1957)
(determining that the plaintiff had adequately proven damages
by personally testifying that “the stone was worth $30 per ton,”
especially where “the defendants did not discredit this
[testimony] either by cross-examination or contrary evidence”).

¶37 Here, Pickard testified about the fact that, because of his
termination, he was forced to withdraw various amounts from
both his savings account and his 401(k) account to pay living
expenses. He also testified about the loss of his health insurance,
and subsequent out-of-pocket medical expenses he incurred.
Hexcel made no effort, at the evidentiary hearing, to rebut
Pickard’s testimony about the damages he suffered, nor did it
accuse Pickard of violating any obligation to produce damages
evidence prior to the hearing. And the ALJ clearly found Pickard’s
testimony to be credible. In this situation, Pickard submitted
sufficient evidence, in the form of his own testimony, to support
the Commission’s damages determination.

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¶38 Second, Hexcel assails part of the damages award as
facilitating a double recovery for Pickard. Specifically, Hexcel
asserts that Pickard should not have been able to recover both his
backpay (what the Commission termed “lost wages”) and the
value of the withdrawals from his savings and 401(k) accounts. In
Hexcel’s view, the withdrawals were intended to replace the
wages Pickard lost due to his termination, and an award that
gives Pickard both his backpay and reimbursement of the funds
he used to replace that lost pay affords him a double recovery. On
this point, we agree with Hexcel.

¶39 The UADA provides for awards, in appropriate cases, of
back pay and benefits. See Utah Code Ann. § 34A-5-107(8)
(LexisNexis 2019) (stating that, upon reviewing the evidence at
the hearing, the presiding officer shall issue an order requiring
“relief to the complaining party, including . . . (i) reinstatement;
(ii) back pay and benefits; (iii) attorney fees; and (iv) costs”). But
“a party cannot have a double recovery for the same loss.”
Brigham City Sand & Gravel v. Mach. Center, Inc., 613 P.2d 510, 511
(Utah 1980). As our supreme court once colorfully pointed out, a
plaintiff who prevails against a defendant on a claim of wrongful
possession of a cow “may not recover both the cow and the
reasonable value of the cow.” See Helf v. Chevron U.S.A. Inc., 2015
UT 81, ¶ 68, 361 P.3d 63.

¶40 By awarding backpay—the amount Pickard lost by not
working—and reimbursement of his use of savings and 401(k)
funds, the Commission essentially allowed Pickard to recover
both the metaphorical cow and the reasonable value thereof. Had
he never been terminated, he would not have needed to withdraw
funds from his savings and 401(k) accounts because he would
have used his wages to pay his living expenses. Providing Pickard
with a backpay award—plus reimbursement for any tax penalties
or interest charges associated with withdrawals from his savings
or 401(k) accounts, along with recovery of medical expenses,
costs, and attorney fees—is sufficient to make Pickard whole.

20200514-CA 17 2022 UT App 52
Hexcel v. Labor Commission

Allowing him to recover, on top of all that, the principal amounts
withdrawn from his accounts constitutes a double recovery.

¶41 The Commission therefore erred when it awarded Pickard
both backpay and reimbursement of the principal amounts
withdrawn from his accounts. Pickard is entitled to recover only
(a) backpay, as amended by the Commission; (b) out-of-pocket
medical expenses incurred during his period of unemployment;
(c) reimbursement for any tax penalties or interest charges
associated with the withdrawals his unemployment required him
to make from his accounts; (d) the value of the 401(k)
contributions he missed out on during his period of
unemployment; and (e) costs and attorney fees. He is not also
entitled to reimbursement of the principal amounts withdrawn.

CONCLUSION

¶42 We decline to disturb the Commission’s determination that
Hexcel’s proffered reason for terminating Pickard was pretextual.
That determination was supported by substantial evidence and
was therefore not clearly erroneous. But we agree with Hexcel
that the Commission’s damages award was, in one respect,
incorrect, and we instruct the Commission to adjust Pickard’s
damages consistent with this opinion.

20200514-CA 18 2022 UT App 52