Henderson v. Jantzen, Inc.

• Citation: 719 P.2d 1322,79 Or.App. 654
• Parties: Simon HENDERSON, Appellant, v. JANTZEN, INC., a foreign corporation, Respondent. CC 84-27; CA A35739.
• Decision Date: 04 June 1986
• Court: Court of Appeals of Oregon

Page 1322

719 P.2d 1322

79 Or.App. 654

Simon HENDERSON, Appellant, v. JANTZEN, INC., a foreign corporation, Respondent.

CC 84-27; CA A35739.

Court of Appeals of Oregon.

Argued and Submitted March 24, 1986.

Decided June 4, 1986.

Larry H. Blakely, Hood River, argued the cause for appellant. With him on brief was Parker Bowe Jaques & Blakely, P.C., Hood River.

Lindsey Harris Hughes, Portland, argued the cause for respondent. With her on brief were Lewis K. Scott, Richard N. Van Cleave, and Spears, Lubersky, Campbell, Bledsoe, Anderson & Young, Portland.

Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.

WARREN, Judge.

Plaintiff commenced this action for damages and injunctive relief, alleging that defendant had refused to hire him because of his sex, in violation of ORS 659.030(1)(a). The trial court granted defendant's motion for summary judgment. Plaintiff appeals and argues that there are genuine issues of material fact.

The evidence most favorable to plaintiff establishes that he applied for employment as a power sewing machine operator at defendant's Hood River plant in November, 1983. At that time there were 150 operators and three supervisors, all of whom were women. Plaintiff was tested for dexterity and trainability on November 17, along with three women. He received the highest possible score. On November 21 and 28, 1983, defendant hired the three women tested on the same date as plaintiff and three other women; plaintiff scored higher on the test than five of the women hired, but he was not called for an interview or offered a job.

Plaintiff testified in a deposition that defendant's personnel supervisor told him that defendant had not had much success with male operators in the past. The supervisor testified in a deposition that her experience with males was "not as well [sic ] as [with] the general sewing machine operator." (Presumably, "general" means female.) She also stated that she might have mentioned to plaintiff some bad experiences defendant had had in the past with male operators and acknowledged that she had said earlier that she probably had discouraged plaintiff from pursuing the job.

Defendant had not hired a male sewing machine operator since 1980, although "quite a few" men had applied for the job. At the time plaintiff applied, defendant was hiring an average of 18 operators per month. The supervisor testified that the plant had an average turnover of 13 power sewing machine operators per month. If these figures are correct, it appears that, in the three years since 1980, defendant had hired well over 400 operators, all women.

The first issue in this case is whether plaintiff made a prima facie case of discriminatory hiring. The Supreme Court of the United States described what constitutes a prima facie case of discrimination under the federal statutes:

"The burden of establishing a prima facie case of disparate treatment is not onerous. The plaintiff must prove by a proponderance [sic ] of the evidence that she applied for an available position for which she was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination. * * * " Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

The opinion in Burdine restates the rules of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). In Callan v. Confed. of Ore. Sch. Adm., 79 Or.App. 73, 717 P.2d 1252 (1986), we rejected the shifting burden formula of McDonnell Douglas, but we did not reject the federal cases' description of the prima facie case. Indeed, we noted:

" * * * [W]e understand McDonnell Douglas Corp. v. Green, supra, to have the * * * objective of defining the plaintiff's initial prima facie burden as being so minimal that it is virtually impervious to a motion based on evidentiary insufficiency. We agree with the objective of enabling the plaintiff to reach the factfinder without producing the direct evidence concerning discrimination that the employer rather than the plaintiff is better able to produce * * *." 79 Or.App. at 78 n. 3, 717 P.2d 1252. (Emphasis in original.)

We now adopt for ORS Chapter 659 actions the formulation in Burdine of what constitutes a plaintiff's prima facie case.

Defendant claims that plaintiff did not make a prima facie case, because he produced no direct evidence of discrimination; however, plaintiff may make his case with evidence that permits an...