Hugoe v. Woods Cross City

2013 UT App 278
_________________________________________________________
THE UTAH COURT OF APPEALS
WADE HUGOE,
Petitioner,
v.
WOODS CROSS CITY AND WOODS CROSS CITY
EMPLOYEE APPEAL BOARD,
Respondents.
Opinion
No. 20120968-CA
Filed November 21, 2013
Original Proceeding in this Court
Gregory W. Stevens, Attorney for Petitioner
Michael Z. Hayes and Todd J. Godfrey, Attorneys
for Respondents
JUDGE JAMES Z. DAVIS authored this Opinion,
in which JUDGES J. FREDERIC VOROS JR. and
MICHELE M. CHRISTIANSEN concurred.
DAVIS, Judge:
¶1 Wade Hugoe requests that we set aside the Woods Cross
City Employee Appeal Board’s (the Board) decision affirming
Woods Cross City’s (the City) termination of his employment with
the Public Works Department. We set aside the Board’s decision.
BACKGROUND
¶2 Hugoe was employed by the City as a master mechanic. On
July 17, 2012, after having various confrontations with other
employees throughout the day regarding missing tools, Hugoe
stormed into the public works operations manager’s office and told

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20120968-CA 2 2013 UT App 278
the operations manager, “‘You don’t do anything around here and
you can go fuck yourself and all of you can go fuck off.’” At the
time of the incident, Hugoe was on probation for another incident
involving a confrontation with the city administrator that had
taken place in December 2011. He had also received a written
reprimand in November 2011 for yelling at and using vulgar
language toward a supervisor.
¶3 Approximately a week after the incident, the City provided
Hugoe with written notice of a pre-disciplinary hearing. Following
the hearing, the city administrator decided to terminate Hugoe’s
employment. In Hugoe’s termination letter, the city administrator
explained that by using “vulgar and profane language in a
threatening and insubordinate manner towards” the operations
manager, Hugoe had failed to comply with instructions given in
connection with his probation that he “‘strive to be a productive,
cooperative employee and to control any anger or harsh feelings
that [he] may have.’” The letter did not mention the November
2011 incident as a basis for Hugoe’s termination.
¶4 Hugoe filed an appeal with the Board, in which he alleged
that the notice of the pre-disciplinary hearing did not comply with
due process requirements and that termination was a
disproportionate and inconsistent sanction for his behavior. The
Board unanimously affirmed the city administrator’s decision,
concluding that “the July 17, 2012 statements and actions of Mr.
Hugoe, standing alone, were so grievous as to justify termination
of employment.”
ISSUES AND STANDARDS OF REVIEW
¶5 Hugoe asserts that various pre- and post-disciplinary
procedures failed to comply with due process. “Questions
regarding whether an administrative agency afforded a petitioner
due process in its hearings are questions of law, which we review

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20120968-CA 3 2013 UT App 278
for correctness.” Terry v. Retirement Bd., 2007 UT App 87, ¶ 9, 157
P.3d 362 (citation and internal quotation marks omitted).
¶6 Hugoe also argues that termination was a disproportionate
and inconsistent disciplinary action that was not justified by the
circumstances. Our review of this question is limited to
“‘determining if the appeal board abused its discretion or exceeded
its authority.’” Nelson v. Orem City, Dep’t of Pub. Safety, 2012 UT
App 147, ¶¶ 15–16, 278 P.3d 1089 (quoting Utah Code Ann. § 10-3-
1106(6)(c) (Supp. 2011) (current version at id. (LexisNexis 2012))),
aff’d sub nom. Nelson v. City of Orem, 2013 UT 53, 309 P.3d 237. “We
will accordingly uphold the Board’s affirmance of the City’s
decision to terminate [Hugoe] unless it exceeds the bounds of
reasonableness and rationality.” See id. ¶ 17 (citation and internal
quotation marks omitted).
ANALYSIS
I. Due Process Concerns
¶7 Hugoe first alleges that he did not receive due process in the
course of the pre- and post-disciplinary proceedings. Specifically,
he argues that the City failed to comply with the notice
requirements set forth in Cleveland Board of Education v. Loudermill,
470 U.S. 532 (1985), because the notice failed to identify specific
allegations or to explain the City’s evidence against him. He further
contends that the Board inappropriately based its determination in
part on the November 2011 incident, which was not a reason given
for his termination in the termination letter. Finally, he asserts that
his post-disciplinary hearing was not conducted by an impartial
tribunal.
¶8 In Loudermill, the United States Supreme Court ruled that
due process in the context of a pre-termination proceeding requires
that the employee be given “oral or written notice of the charges
against him, an explanation of the employer’s evidence, and an

Hugoe v. Woods Cross City
1. Hugoe does assert that he was “unprepared to confront the
issues of lack of proportionality and consistency” but fails to
explain how more adequate notice would have permitted him to be
better prepared. See generally Lucas v. Murray City Civil Serv.
Comm’n, 949 P.2d 746, 755 (Utah Ct. App. 1997) (observing that an
employee must explain, in alleging a due process violation as a
result of inadequate notice, “how [correct] procedures would have
resulted in a different outcome”).
20120968-CA 4 2013 UT App 278
opportunity to present his side of the story.” Id. at 546; accord Lucas
v. Murray City Civil Serv. Comm’n, 949 P.2d 746, 753 (Utah Ct. App.
1997). The notice provided to Hugoe regarding the pre-disciplinary
hearing informed him that discipline was being considered “as a
result of incidents which, if substantiated, are in violation of City
policy, including threatening, intimidating or interfering with
fellow employees on the job, insubordination, misusing City
property, and using vulgar language.” Hugoe asserts that this
notice was too vague to inform him of the actual allegation that
was the basis for his ultimate termination—i.e., that on July 17,
2012, he “used vulgar and profane language in a threatening and
insubordinate manner towards” the operations manager while on
probation for another confrontation—and that the notice failed to
inform him of the evidence that would be used against him at the
hearing.
¶9 Although the notice does not specifically reference the July
17 incident or identify the specific evidence that would be used
against him, Hugoe has failed to adequately explain how the
deficiencies in the notice inhibited his ability to respond to the
allegations against him. See generally Lucas, 949 P.2d at 7551
(holding that in order to establish a due process violation, an
employee must explain how the alleged “procedural errors were
harmful”). Furthermore, the Board found that Hugoe had actual
notice of the nature of the allegations against him: “[G]iven the
uncontroverted evidence presented at the Appeal Board hearing,
the Board believes that Mr. Hugoe knew, without question, the

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exact nature of the issues that would be discussed at the Pre-
Disciplinary Hearing.” See generally id. at 754 (holding that where
the employee had actual “notice of the pending charges and was
able to respond to the charges before the termination was
implemented,” “the fundamental requirements of due process were
met” despite his employer’s failure “to strictly comply with its
[notice] procedure”). Hugoe has not challenged this finding;
indeed, given that the incident occurred only a week before the
notice was given, it is hard to believe that Hugoe was ignorant of
the reason for the hearing. Because Hugoe had actual notice of the
basis for the pre-disciplinary hearing, has failed to adequately
allege any harm resulting from any deficiencies in the written
notice, and was afforded a pre-disciplinary hearing in order to
respond to the allegations against him, we agree with the Board
that Hugoe received due process in the pre-disciplinary
proceedings.
¶10 Hugoe next contends that he was denied due process when
the Board considered the November 2011 incident in making its
decision. Because the November 2011 incident was not included in
the City’s termination letter as a reason for terminating his
employment, he asserts that he was unprepared to respond to
allegations concerning that incident at the hearing before the
Board. Hugoe relies on this court’s holding in Fierro v. Park City
Municipal Corp., 2012 UT App 304, 295 P.3d 696, that due process
requires an employee appeal board to consider only evidence of
misconduct that the employer identified as grounds for terminating
the employee, id. ¶ 22. However, unlike the employee appeal board
in Fierro, which explicitly based its decision on a number of
unidentified instances of misconduct as grounds for termination in
the termination letter given to the employee, id. ¶¶ 25–27, the
Board in this case explicitly stated that “[n]otwithstanding the
evidence of prior discipline, . . . the July 17, 2012 statements and
actions of Mr. Hugoe, standing alone, were so grievous as to justify
termination of employment.” Thus, even accepting Hugoe’s
assertion that the Board’s reliance on the November 2011 incident
would have violated his due process rights, such a violation did not

Hugoe v. Woods Cross City
2. Hugoe asserts that this court’s refusal to consider the impartiality
issue in Carlsen v. Board of Adjustment, 2012 UT App 260, 287 P.3d
440, was based not on the petitioner’s failure to preserve the issue,
but on the fact that the impartiality was not apparent on the face of
the record. We disagree. Although the Carlsen court elaborated that
the failure to preserve had prevented full development of the
record sufficient to permit its consideration of the issue, the court
did not suggest that the petitioner would have been relieved of his
burden to preserve his impartiality argument had the record
contained additional facts. See id. ¶ 21; cf. Tschaggeny v. Milbank Ins.
Co., 2007 UT 37, ¶ 22, 163 P.3d 615 (explaining that a party who
fails to give “the trial judge an adequate opportunity to consider
[an] issue . . . waive[s] the right to raise the issue on appeal”); State
v. Pinder, 2005 UT 15, ¶ 46, 114 P.3d 551 (“[T]he purpose of the
(continued...)
20120968-CA 6 2013 UT App 278
occur because the Board did not rely on the previous discipline in
reaching its decision. Cf. id. ¶ 30 (explaining that “the appropriate
course” for resolving the due process violation was to set aside the
decision but give “the board an opportunity to consider whether
the one ground” it had relied on that had actually been identified
by the employer as a reason for termination was alone “sufficient
to warrant . . . termination”).
¶11 Hugoe also argues that the Board was not impartial because
one member of the Board helped to prepare witness statements
used in the pre-disciplinary hearing. Although Hugoe was clearly
aware of this potential conflict at the time of the hearing before the
Board, he failed to assert his impartiality argument at that time.
Because this issue was not raised to the Board, it is not preserved
and we will not consider it. See Carlsen v. Board of Adjustment, 2012
UT App 260, ¶ 21, 287 P.3d 440 (holding that an issue regarding the
impartiality of a board member “could have and should have been
initially resolved by the Board [of Adjustment] itself” and that by
failing to raise the issue before that board, the petitioner had “failed
to preserve the issue for our review”); see also Frito–Lay v. Utah2

Hugoe v. Woods Cross City
2. (...continued)
preservation rule is to ensure that the trial court is first given an
opportunity to decide if a mistake has been made before the
appellate review becomes appropriate.”).
20120968-CA 7 2013 UT App 278
Labor Comm’n, 2009 UT 71, ¶ 32, 222 P.3d 55 (“The preservation
doctrine provides that issues not raised in proceedings before
administrative agencies are not subject to judicial review except in
exceptional circumstances.” (citation and internal quotation marks
omitted)).
II. Proportionality and Consistency
¶12 In addition to raising the alleged due process violations,
Hugoe contends that the Board’s decision exceeded the bounds of
reasonableness and rationality because under the circumstances,
termination was not a proportionate and consistent disciplinary
action. We cannot fully address Hugoe’s challenge, however,
because the Board’s findings are not “adequately detailed so as to
permit meaningful appellate review.” See Adams v. Board of Review
of the Indus. Comm’n, 821 P.2d 1, 4 (Utah Ct. App. 1991). “[T]he
failure of an agency to make adequate findings of fact on material
issues renders its findings arbitrary and capricious unless the
evidence is clear, uncontroverted and capable of only one
conclusion.” Nyrehn v. Industrial Comm’n, 800 P.2d 330, 335 (Utah
Ct. App. 1990) (citation and internal quotation marks omitted).
¶13 We have previously identified a number of factors that may
be relevant in determining whether a sanction is proportional to
the misconduct at issue:
[E]xemplary performance by an employee may serve
as evidence against termination, while job violations
and continued misbehavior could weigh in favor of
dismissal. The Board may also consider the following
factors: (a) whether the violation is directly related to
the employee’s official duties and significantly

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impedes his or her ability to carry out those duties;
(b) whether the offense was a type that adversely
affects the public confidence in the department;
(c) whether the offense undermines the morale and
effectiveness of the department; or (d) whether the
offense was committed willfully or knowingly, rather
than negligently or inadvertently.
Nelson v. Orem City, Dep’t of Pub. Safety, 2012 UT App 147, ¶ 23, 278
P.3d 1089 (alteration in original) (citations and internal quotation
marks omitted), aff’d sub nom. Nelson v. City of Orem, 2013 UT 53,
309 P.3d 237. Although Hugoe presented evidence relating to these
factors, the Board did not address that evidence in its written
decision and made no specific findings regarding any of these
factors. We therefore cannot adequately review the Board’s
proportionality determination and must direct the Board to make
additional findings.
¶14 Although the Board also failed to make findings regarding
the consistency issue, we agree with the City that Hugoe has failed
to make out a prima facie case of inconsistency. See Kelly v. Salt Lake
City Civil Serv. Comm’n, 2000 UT App 235, ¶¶ 27, 30, 8 P.3d 1048
(holding that the Salt Lake City Civil Service Commission was
required to make findings regarding consistency “only after a
prima facie showing by [a terminated police officer] that the Chief’s
actions in her case were contrary to his prior practice”). Therefore,
the evidence relating to this factor was “capable of only one
conclusion.” See Nyrehn, 800 P.2d at 335 (citation and internal
quotation marks omitted). In support of his argument that
termination was not a consistent disciplinary action, Hugoe
presented evidence that other employees with whom he worked
frequently used vulgar language in the workplace without
consequence. However, Hugoe was not terminated simply for
using vulgar language, but for the insubordination involved in his
swearing at the operations manager in a threatening and
aggressive manner.

Hugoe v. Woods Cross City
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¶15 Although the operations manager testified that he had heard
employees swear at each other and that he had not reported them
for it, he also testified that the employees did not swear at each
other “in a mean manner but . . . in a . . . construction [worker’s]
manner” and “not directly . . . at somebody.” He testified that the
incident with Hugoe was different because of “the manner that”
Hugoe used the vulgar language, “the temper that” he exhibited,
and “the yelling.” He testified that he had never before had a
subordinate employee tell him to “go f–off,” as Hugoe did. Similar
testimony was given by the city manager. We agree with the City
that testimony indicating that other employees regularly used
profanity in the workplace and were not disciplined for it does not
suggest a lack of consistency in the City’s decision to terminate
Hugoe for his insubordinate behavior toward the operations
manager. See Kelly, 2000 UT App 235, ¶ 31 (“Meaningful disparate
treatment can only be found when similar factual circumstances led
to a different result without explanation.”). Because Hugoe
presented no other evidence relating to the consistency issue, there
was no basis for the Board to have determined that termination
was an inconsistent consequence for Hugoe’s behavior.
CONCLUSION
¶16 We determine that Hugoe was not denied due process in the
course of the pre- and post-disciplinary proceedings. Furthermore,
it was unnecessary for the City to make findings regarding the
consistency issue because Hugoe failed to make out a prima facie
case of inconsistency. However, the Board’s failure to make
adequate findings regarding the proportionality of the City’s
decision to terminate Hugoe rendered that decision arbitrary and
capricious. Accordingly, we set aside the Board’s decision and
direct the Board to make additional findings regarding whether
termination was a proportionate disciplinary action for the City to
have taken in this case.