Ofa v. Department of Human Services

2023 UT App 156
THE UTAH C OURT OF APPEALS
LUFUSI VEA O FA,
Petitioner,
v.
DEPARTMENT OF H UMAN S ERVICES
AND C AREER S ERVICE R EVIEW O FFICE,
Respondents.
Opinion
No. 20220365-CA
Filed December 21, 2023
Original Proceeding in this Court
Jeremy G. Jones, Richard R. Willie, and
David H. Culmer, Attorneys for Petitioner
Sean D. Reyes and Joshua D. Davidson,
Attorneys for Respondents
JUDGE A MY J. O LIVER authored this Opinion, in which
JUDGES R YAN M. HARRIS and R YAN D. TENNEY concurred.
OLIVER, Judge:
¶1 	The 	Utah 	Department 	of 	Human 	Services 	(DHS)
terminated 	Lufusi 	Vea 	Ofa 	from 	his 	position 	as 	a 	youth
corrections counselor with Juvenile Justice Services (JJS) after he
used excessive force and unauthorized holds on an in-custody
juvenile. Ofa contends that the agency’s decision to terminate him
is contrary to DHS’s prior practice. DHS counters that its decision
was justified because it provided a fair and rational basis for any
inconsistency in discipline with comparable employees. The
Career Service Review Office (the CSRO) upheld DHS’s decision
to terminate Ofa, and we decline to disturb that decision.

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BACKGROUND1
The Incident
¶2 	In February 2021, Ofa initiated a physical intervention with
a youth (the Youth) who was in the custody of JJS. The incident
occurred in a classroom at the Salt Lake Valley Youth Center and
was recorded by its cameras. Several male juveniles, including the
Youth, were sitting at tables when the Youth exchanged words
with another youth at an adjacent table and then stood up, taking
a fighting position. The other youth stood up in response and
began moving toward the Youth.
¶3 	Ofa entered the classroom, approached the Youth from
behind, and grabbed the back of the Youth’s shirt with such force
that he was pulled off his feet. Ofa removed the Youth from the
room into the hallway, where Ofa’s supervisor then held him as
Ofa placed him first in a bent-wrist, or gooseneck, hold and then,
rotating his hand behind and away, in a reverse-gooseneck hold.
The Youth did not appear to resist until Ofa applied the reverse-
gooseneck hold. Ofa escorted the Youth down the hall and into a
room that also had cameras. The Youth’s wrist and arm had a
visible deformation from the force of the reverse-gooseneck hold.
After holding his arm up to a window in the door, the Youth laid
on the floor, holding his wrist and appearing to be in “obvious
pain.” 	The 	Youth 	received 	medical 	attention, 	and 	he 	later
required surgery to repair his broken arm.
1. “Because the party seeking review of an agency’s order
following a formal administrative proceeding has the burden to
prove that the agency’s factual findings are not supported by
substantial 	evidence, 	we 	state 	the 	facts 	and 	all 	legitimate
inferences to be drawn from them in the light most favorable to
the agency’s findings.” WWC Holding Co. v. Public Service Comm’n,
2002 UT 23, ¶ 2, 44 P.3d 714.

Ofa v. Department of Human Services
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Ofa’s Prior History and Training
¶4 	JJS hired Ofa in 1997 as a youth corrections counselor. Ofa
has no prior history of using excessive force, but in 2017, Ofa was
suspended without pay for “inappropriate and disrespectful
comments” he posted on social media that violated JJS’s code of
ethics. In the disciplinary letter, Ofa was warned that “further
policy or rule violations may result in further disciplinary action,
which could include dismissal from state employment.”
¶5 	Beginning in 2010, Ofa received Integrated Crisis Response
(ICR) 	training 	as 	part 	of 	his 	employment. 	Ofa 	consistently
completed the annual training for the next several years. Except
for life-threatening situations, trainees were taught to first use
verbal intervention and then, if that failed, the least amount of
force necessary to protect all those involved.
¶6 	Ofa’s actions during the incident in February 2021 did not
conform with his ICR training. Ofa did not respond to the Youth’s
posturing with verbal intervention before he pulled the Youth
backward by the shirt, and the force with which he grabbed the
Youth was excessive given the mismatch in size between the
Youth and Ofa, who was considerably larger. Moreover, neither
of the wrist holds Ofa used on the Youth were authorized ICR
techniques. The reverse-gooseneck hold, in particular, has a high
probability of causing physical injury and an increased possibility
of breaking a bone because it applies pressure to a specific, small
joint rather than the whole limb. 	During the incident, Ofa
continued using this “unapproved wrist hold” on the Youth for
over a minute. An audio recording captured the Youth expressing
pain and telling Ofa he was hurting him.
Investigations and the Decision to Terminate
¶7 	Ofa was placed on paid administrative leave while JJS
investigated the policy violations and alleged misconduct related
to the incident. The JJS Internal Review Team emailed its findings

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on policy violations to the JJS director (Director), who reviewed
the findings, the incident reports prepared by Ofa and his
supervisor, 	the 	investigation 	reports, 	and 	the 	video 	of 	the
incident.2 Director assigned a DHS specialist to compile Ofa’s
discipline history, the incident reports, the investigation reports,
and a spreadsheet of “comparable cases.”
¶8 	Only two comparable cases were found that involved the
use of excessive force. The first (Comparable 1) involved an
employee who was dismissed for the use of excessive force, but
because the employee had probationary status and could be
dismissed without cause, the incident did not involve a full
investigation and no facts about the underlying events were
available to review. The second (Comparable 2) involved the
discipline of an employee who was given a written warning after
using an unapproved chokehold. No injury resulted from the
employee’s actions.
¶9 	Director decided that dismissal was the most appropriate
discipline for Ofa and issued him a written notice of intent to
impose 	discipline 	“in 	the 	form 	of 	a 	Dismissal.” 	The 	letter
identified five policies that DHS believed Ofa had violated and
notified Ofa of his right to be heard by the DHS executive director
before dismissal occurred. Ofa availed himself of that right. The
executive director made the final decision to terminate Ofa’s
employment, sending a written notice to Ofa. Ofa then appealed
his termination to the CSRO.
2. Independent reviews of the incident were conducted by Child
Protective Services, because JJS staff are mandatory reporters, and
the South Salt Lake Police Department. The first investigation
resulted in a substantiated finding of physical child abuse, and the
second resulted in Ofa being charged with second-degree felony
child abuse for intentional infliction of serious physical injury, see
State v. Ofa, No. 211908777, (Utah 3rd Dist., Aug. 8, 2021).

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The CSRO Proceedings
¶10 	After holding a three-day evidentiary hearing, the CSRO
concluded DHS had 	substantial evidence 	on which to take
disciplinary action against Ofa. The CSRO’s determination was
based on, among others, findings that (1) Ofa’s “actions caused
injury 	to 	[the] 	Youth”; 	(2) 	Ofa 	“did 	not 	demonstrate
accountability for causing the Youth’s injury”; (3) neither of the
wrist 	holds 	Ofa 	used 	was 	an 	“authorized 	or 	trained 	ICR
technique”; (4) Ofa’s supervisor’s report acknowledged the Youth
was injured, but Ofa’s incident report stated “there was no
injury”; (5) the incident involved Ofa’s “performance of his
official duties,” and his actions “impeded his ability to carry out
[those] duties because the use of force was immediate with no
verbal de-escalation attempt”; and (6) there is a “risk of [Ofa]
repeating similar use of premature and inappropriate use of
force.”
¶11 	The CSRO also discussed how Ofa’s conduct violated the
Youth’s right “[t]o not be subjected to corporal punishment,
harassment, 	and 	abuse 	of 	any 	kind, 	intimidation, 	. 	. 	. 	or
humiliation.” It found Ofa’s conduct constituted “abuse” and
“humiliated 	[the] 	Youth” 	because 	there 	“was 	no 	apparent
justification for escorting” the Youth out of the room “using a pain
and injury inducing hold.” And the CSRO concluded Ofa’s
actions violated JJS policy against the use of physical force
“applied solely for the purpose of inflicting physical pain or
undue physical discomfort.”
¶12 	After its substantial evidence determination, the CSRO
next considered whether DHS’s decision to terminate Ofa was
proportionate to Ofa’s conduct and the policy violations. The
CSRO found “the evidence of the conduct in violation of policy
was not tenuous” because the incident was captured on video.
The CSRO explained that Ofa’s “actions had the potential to erode
public confidence in JJS because the video depicted violence and

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use of force and this would lead to the public not having
confidence [in JJS] to serve youth in custody.” And, the CSRO
explained that, after the 2021 legislative session, “the State of Utah
set clear use of force policies for public and private youth
providers 	including 	limited 	use 	of 	physical 	intervention.”
Accordingly, 	the 	CSRO 	determined 	dismissal 	“was 	not 	so
disproportionate that it amounts to an ‘abuse of discretion.’”
¶13 	The 	final 	issue 	before 	the 	CSRO 	was 	whether 	Ofa’s
termination was consistent with DHS’s prior discipline decisions.
The 	CSRO 	considered 	the 	two 	comparable 	cases, 	but
acknowledged “not much weight was given” to Comparable 1
“because [the case] involved a probationary employee [who]
could be terminated with or without cause.” The CSRO then
reviewed Comparable 2, which involved an employee who was
given 	a 	written 	warning 	after 	using 	an 	unapproved 	ICR
technique. DHS distinguished Ofa’s conduct from the conduct in
Comparable 2 because Ofa was a “seasoned employee with years
of ICR training” who should have known better, unlike the
Comparable 2 employee, who had only one ICR training, and the
conduct in Comparable 2 did not result in injury. The CSRO
reasoned, however, that Ofa’s length of service should not count
against him and concluded Ofa had met his burden to show that
“his dismissal [was] not consistent with disciplinary actions
under the current [executive director].” On that basis, the CSRO
reversed DHS’s decision to terminate Ofa and remanded the case
to DHS “to determine a sanction consistent with prior discipline.”
¶14 	DHS timely filed a motion for reconsideration, asserting
Ofa’s 	conduct 	was 	substantially 	different 	from 	that 	in
Comparable 2 but even if the conduct were similar, DHS had
provided 	the 	explanation 	required 	of 	it 	to 	justify 	any
inconsistency in discipline. See Utah Code § 63G-4-403(4)(h)(iii)
(providing that an agency may take action that is “contrary to the
agency’s prior practice” so long as “the agency justifies the
inconsistency by giving facts and reasons that demonstrate a fair

Ofa v. Department of Human Services
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and rational basis for the inconsistency”). The CSRO granted the
motion for reconsideration on the sole issue of whether Ofa’s
termination “was a consistent application of punishment.”
¶15 	In its ruling and order on the motion, the CSRO explained
it had reviewed the issue anew in light of Nelson v. Orem City, 2012
UT App 147, 278 P.3d 1089, aff’d sub nom. Nelson v. City of Orem,
2013 UT 53, 309 P.3d 237, and concluded that Ofa’s termination
was consistent with the agency’s prior “application of discipline.”
Specifically, the CSRO concluded it “should have given deference
to the explanations provided by [DHS]” and “it was not up to [the
CSRO] to determine that more than twenty-three (23) years of
good service should militate against the immediate application of
the 	most 	severe 	sanction.” 	Instead, 	it 	found 	that 	DHS’s
explanations 	“should 	have 	been 	afforded 	deference” 	and
concluded that although the Comparable 2 employee received a
written warning despite using a non-ICR approved chokehold,
that employee “merited a lesser sanction than that applied to
[Ofa]” 	because 	Ofa 	“had 	over 	twenty-three 	(23) 	years 	of
experience and repeated ICR training.” Ofa now petitions this
court for review of the CSRO’s decision upholding his dismissal.
ISSUE AND STANDARD OF REVIEW
¶16 	On judicial review, Ofa contends that the CSRO erred by
determining that DHS’s discipline of him was consistent with its
prior practice. The parties dispute the standard of review. Ofa
asserts 	this 	court 	should 	review 	the 	CSRO’s 	decision 	for
correctness because “the determination of consistency involves a
question of law.” DHS, on the other hand, asserts that this court
“reviews 	consistency 	determinations 	for 	reasonableness 	and
rationality.” We agree with DHS.
¶17 	We review for abuse of discretion the “consistency of [a
reviewing board’s] determination that [an employee’s] use of
excessive force warranted . . . termination.” Nelson v. Orem City,

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2012 UT App 147, ¶ 17, 278 P.3d 1089 (cleaned up), aff’d sub nom.
Nelson v. City of Orem, 2013 UT 53, 309 P.3d 237. And we will
uphold a reviewing board’s affirmance of an agency’s decision to
terminate “unless it exceeds the bounds of reasonableness and
rationality.” Id. (cleaned up); see also Anderson v. Daggett School
Dist., 2023 UT App 76, ¶ 22, 534 P.3d 769 (“This court generally
reviews a public employee termination decision for an abuse of
discretion.”).
ANALYSIS
¶18 	In assessing “whether employee misconduct warrants the
sanctions imposed, this court has divided the inquiry into two
prongs: (1) Is the sanction proportional? and (2) Is the sanction
consistent with previous sanctions imposed by the department
pursuant to its own policies?” Perez v. South Jordan City, 2014 UT
App 31, ¶ 24, 320 P.3d 42 (cleaned up). Ofa does not challenge the
CSRO’s proportionality determination but contends the CSRO
erred when it deferred to DHS’s consistency determination. We
disagree.
¶19 	“When 	challenging 	a 	sanction’s 	consistency, 	the
disciplined employee must first make out a prima facie case” and
“must, 	at 	a 	minimum, 	carry 	the 	burden 	of 	showing 	some
meaningful disparity of treatment between himself and other
similarly situated employees.” Burgess v. Dep’t of Corr., 2017 UT
App 186, ¶ 49, 405 P.3d 937 (cleaned up). In support of his
contention that DHS acted inconsistently when it terminated him,
Ofa invites us to consider the employee in Comparable 2 as
similarly situated because both employees (1) worked for JJS
under 	its 	current 	executive 	director, 	(2) 	“had 	high 	public
expectations placed upon them, despite the fact that both of them
work in difficult situations,” (3) were disciplined for using
“unapproved, non-ICR techniques to gain control,” (4) impacted
“the morale and efficiency of staff because their actions were
outside of training,” and (5) had their incidents recorded by video,

Ofa v. Department of Human Services
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which could “erode public confidence.” We agree with Ofa that
his case is similar to Comparable 2 for the reasons he enumerated
and conclude that Ofa met his “burden to demonstrate a prima
facie case that [DHS] acted contrary to prior practice.” Macfarlane
v. Career Service Review Office, 2019 UT App 133, ¶ 41, 450 P.3d 87.
¶20 	Our inquiry does not end there, however, because an
agency may act “contrary to [its] prior practice” if it “justifies the
inconsistency by giving facts and reasons that demonstrate a fair
and rational basis for the inconsistency.” Utah Code § 63G-4-
403(4)(h)(iii). Here, we part ways with Ofa and conclude the
CSRO 	did 	not 	abuse 	its 	discretion 	when 	it 	upheld 	DHS’s
termination of Ofa on reconsideration because DHS provided “a
fair and rational basis” for its action.
¶21 	In its written order on DHS’s motion for reconsideration,
the 	CSRO 	stated 	it 	“should 	have 	given 	deference 	to 	the
explanations provided 	by 	[DHS]” 	for 	its 	inconsistency. 	Ofa
challenges the CSRO’s decision to grant DHS this deference, yet
the provision of the Utah Administrative Code (the Code) that
governs such evidentiary hearings states that if “factual findings
support the allegations of the agency,” then the CSRO “must
determine 	whether 	the 	agency’s 	decision, 	including 	any
disciplinary sanctions imposed, is excessive, disproportionate or
otherwise constitutes an abuse of discretion” and “[i]n making
this latter determination, the CSRO . . . shall give deference to the
decision of the agency or the appointing authority.” Utah Admin.
Code R137-1-21(3)(b). Ofa, however, argues this section does not
apply because “consistency” is not specifically enumerated. Ofa
further contends that a consistency determination is a “factual
finding” that should be made “without deference to any prior
factual 	findings 	of 	the 	agency.” 	Id. 	R137-1-21(3)(a). 	Ofa’s
argument is inconsistent with the Code.
¶22 	DHS’s allegations here concerned whether Ofa engaged in
the particular conduct with the Youth and whether that conduct

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violated agency policies. While rule R137-1-21(3)(a) of the Code
does require the CSRO to make factual findings on the agency’s
allegations “without deference” to the agency, Ofa does not
challenge any of the CSRO’s factual findings regarding the
agency’s allegations. Instead, he challenges the CSRO’s decision,
made on reconsideration, to uphold the agency’s imposition of the
discipline of dismissal, claiming the discipline is inconsistent with
the comparators. His challenge to the “disciplinary sanctions
imposed” falls squarely within section 3(b), which, unlike section
3(a), requires the CSRO to “give deference” to the agency’s
decision. And while Ofa is correct that the term “consistency” is
not 	specifically 	listed 	in 	section 	3(b), 	whether 	the 	agency’s
disciplinary sanction was “consistent” is akin to whether an
agency’s 	disciplinary 	sanction 	was 	“excessive” 	or
“disproportionate” and is the type of determination that falls
under the section’s catch-all provision “or otherwise constitutes an
abuse of discretion.” See id. R137-1-21(3)(b) (emphasis added). The
CSRO 	was 	therefore 	required 	to 	give 	deference 	to 	DHS’s
disciplinary decision so long as DHS provided “facts and reasons
that demonstrate a fair and rational basis for the inconsistency.”
Utah Code § 63G-4-403(4)(h)(iii).
¶23 	The explanations DHS gave for distinguishing Ofa’s case
from Comparable 2 include the following facts about Comparable
2. First, in that case the employee’s conduct did not result in an
injury as Ofa’s did.3 Second, the employee’s supervisor ordered
the action; Ofa’s did not. Third, the employee’s use of the
unauthorized hold was of short duration, unlike Ofa’s that lasted
3. Ofa claims the CSRO should not have considered the Youth’s
injury because Ofa disputed the extent of the injury and was
denied access to the Youth’s medical records. But the CSRO made
a factual finding in the original decision that Ofa’s “actions caused
injury to [the] Youth.” And, as noted, supra ¶ 21, Ofa did not
challenge any of the CSRO’s factual findings on appeal. Thus, we
do not address this argument.

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for minutes. Fourth, the employee took responsibility for his
action unlike Ofa, who did not acknowledge the injury in his
report. Fifth, the employee did not have the benefit of years of
experience or extensive ICR training that Ofa did, and therefore
he may not have known that what he was doing was improper.
And finally, there was no finding that the employee used the
unauthorized hold “with malicious intent” as was found in Ofa’s
case. Thus, DHS established a “fair and rational basis” for its
decision 	to 	discipline 	Ofa 	differently than 	the 	employee in
Comparable 2.
¶24 	Where DHS has provided a “fair and rational basis” for its
disciplinary action, even if it is inconsistent with prior discipline
in comparable cases, the CSRO must defer to DHS, and we
similarly defer to the CSRO. See Macfarlane, 2019 UT App 133, ¶ 34
(“As we defer to the CSRO, we note that the CSRO must likewise
defer to the agency.”); see also Nelson v. Orem City, 2012 UT App
147, ¶ 17, 278 P.3d 1089, aff’d sub nom. Nelson v. City of Orem, 2013
UT 53, 309 P.3d 237. On this record, we conclude that the CSRO
did not abuse its discretion in giving deference in its reconsidered
decision to DHS’s decision to terminate Ofa.
CONCLUSION
¶25 	DHS provided a fair and rational basis for its decision to
terminate Ofa. Thus, the CSRO rightly deferred to DHS’s decision,
and did not exceed the bounds of reasonableness and rationality
by upholding that determination. We see no abuse of discretion
and therefore decline to disturb the CSRO’s order affirming Ofa’s
termination.