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.0F

1

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

20200391-CA 2 2023 UT App 100

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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20200391-CA 3 2023 UT App 100

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 
Christensen v. Labor Commission

20200391-CA 4 2023 UT App 100

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.1F

2

¶8 On January 24, Christensen attended a staff meeting where 

Supervisor distributed copies of two documents that contained 

mistakes, which were created by Christensen and had her name 

on them. On January 30, Christensen called in sick; her doctor had 

advised her not to return to work until February 3. But Supervisor 

directed her to complete work from home while she was ill.

¶9 On February 15, Supervisor brought a large pile of papers 

to Christensen’s office related to her purchase-card activity in 

2016. When Christensen later was asked to provide information 

to be reviewed by an auditor, she observed “that her file had been 

marked with red annotations showing errors and that none of her 

coworkers’ files had similar annotations.”

¶10 On March 21, Christensen filed a complaint against the 

County with the Utah Antidiscrimination and Labor Division

(UALD), alleging discrimination, sexual harassment, and 

retaliation under the Utah Antidiscrimination Act (the UAA). 

¶11 On May 3, at her doctor’s recommendation, Christensen 

took leave pursuant to the Family and Medical Leave Act (FMLA)

due to stress. While on FMLA leave, she used 920 hours of 

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.
Christensen v. Labor Commission

20200391-CA 5 2023 UT App 100

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.2F

3 Although the Board acknowledged 

the post-hearing substitution of the ALJ was “unusual,” it 

concluded that Christensen had not shown she suffered prejudice 

as a result of the substitution. The Board also agreed with Judge 

Newman’s determination that Christensen failed to demonstrate 

that she had been constructively discharged. However, the Board

set aside Judge Newman’s decision dismissing Christensen’s 

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

discrimination claim.
Christensen v. Labor Commission

20200391-CA 6 2023 UT App 100

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. 
Christensen v. Labor Commission

20200391-CA 7 2023 UT App 100

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 990.3F

4

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).
Christensen v. Labor Commission

20200391-CA 8 2023 UT App 100

¶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).4F

5 Thus, a retaliation claim focuses on the 

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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20200391-CA 9 2023 UT App 100

action.” Viktron/Lika v. Labor Comm’n, 2001 UT App 394, ¶ 6, 38 

P.3d 993 (quotation simplified).5F

6 If the plaintiff satisfies this 

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.
Christensen v. Labor Commission

20200391-CA 10 2023 UT App 100

engaged in protected activity.6F

7 It further asserts that even if 

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.
Christensen v. Labor Commission

20200391-CA 11 2023 UT App 100

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.”7F

8 While we are not entirely convinced 

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...)
Christensen v. Labor Commission

20200391-CA 12 2023 UT App 100

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.
Christensen v. Labor Commission

20200391-CA 13 2023 UT App 100

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.”8F

9 Id. (quotation simplified).

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).
Christensen v. Labor Commission

20200391-CA 14 2023 UT App 100

¶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 
Christensen v. Labor Commission

20200391-CA 15 2023 UT App 100

[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,9F

10 the same is not necessarily true of actions occurring after 

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.
Christensen v. Labor Commission

20200391-CA 16 2023 UT App 100

¶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 
Christensen v. Labor Commission

20200391-CA 17 2023 UT App 100

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.
Christensen v. Labor Commission

20200391-CA 18 2023 UT App 100

¶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 
Christensen v. Labor Commission

20200391-CA 19 2023 UT App 100

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.10F

11

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...)
Christensen v. Labor Commission

20200391-CA 20 2023 UT App 100

¶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.
Christensen v. Labor Commission

20200391-CA 21 2023 UT App 100

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 
Christensen v. Labor Commission

20200391-CA 22 2023 UT App 100

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.11F

12

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...)
Christensen v. Labor Commission

20200391-CA 23 2023 UT App 100

¶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.
Christensen v. Labor Commission

20200391-CA 24 2023 UT App 100

award of back pay was not contingent on a finding of constructive 

discharge.12F

13

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...)
Christensen v. Labor Commission

20200391-CA 25 2023 UT App 100

¶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.
Christensen v. Labor Commission

20200391-CA 26 2023 UT App 100

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.13F

14 Judge Newman noted the UAA authorizes an 

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.
Christensen v. Labor Commission

20200391-CA 27 2023 UT App 100

¶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 
Christensen v. Labor Commission

20200391-CA 28 2023 UT App 100

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 
Christensen v. Labor Commission

20200391-CA 29 2023 UT App 100

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.14F

15 Accordingly, the ALJ and the Board erred 

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.
Christensen v. Labor Commission

20200391-CA 30 2023 UT App 100

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.15F

16 For the same reasons an award of 

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.
Christensen v. Labor Commission

20200391-CA 31 2023 UT App 100

¶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 
Christensen v. Labor Commission

20200391-CA 32 2023 UT App 100

economic loss Christensen suffered when she retired early in 

response to the adverse actions she endured.16F

17

¶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-ZBoy 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.
Christensen v. Labor Commission

20200391-CA 33 2023 UT App 100

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.
Christensen v. Labor Commission

20200391-CA 34 2023 UT App 100

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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20200391-CA 35 2023 UT App 100

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.”17F

18 Similarly, without additional context, it is not 

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 

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20200391-CA 36 2023 UT App 100

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.18F

19 See, e.g.,

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 postreporting 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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20200391-CA 37 2023 UT App 100

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 cases19F

20 based on its view 

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.20F

21

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 

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20200391-CA 38 2023 UT App 100

¶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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20200391-CA 39 2023 UT App 100

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.