Callan v. Confederation of Oregon School Administrators

Decision Date23 April 1986
Citation717 P.2d 1252,79 Or.App. 73
CourtOregon Court of Appeals
Parties, 57 Fair Empl.Prac.Cas. (BNA) 1696, 32 Ed. Law Rep. 288 Mary Frances CALLAN, Appellant, v. CONFEDERATION OF OREGON SCHOOL ADMINISTRATORS, an Oregon corporation, Respondent, and Robert L. (Ozzie) Rose, Defendant. 135,103; CA A34271.

Robert D. Durham, Portland, argued the cause for appellant. With him on the briefs was Kulongoski, Durham, Drummonds & Colombo, Portland.

Eric Yandell, Salem, argued the cause for respondent. With him on the brief were Donald H. Upjohn and Heltzel, Upjohn, Shaw & Williams, Salem.

Before RICHARDSON, P.J., and WARDEN and NEWMAN, JJ.

RICHARDSON, Presiding Judge.

Plaintiff brought this action pursuant to ORS 659.121, alleging that Confederation of Oregon School Administrators and Rose, 1 the Confederation's executive director, discriminated against her on the basis of her sex in hiring a male applicant instead of her for the position of assistant executive director. Plaintiff appeals from the trial court's judgment for defendant. We affirm.

Plaintiff was a long-time professional colleague and social acquaintance of Rose, who had the dominant responsibility in defendant's hiring process. Both plaintiff and the successful applicant, Dr. Robbins, were highly qualified for the position, although the precise nature of Robbins' experience was not as closely related to the specific duties of the job as plaintiff's experience was. At the beginning of the process, Rose anticipated that it was highly probable that plaintiff would be selected. Defendant received 155 applications for the position. Four finalists, including plaintiff and Robbins, were interviewed by Rose. Rose's stated reasons for hiring Robbins included (1) the breadth of his administrative background; (2) the likelihood that he would stay in the position for a longer time than plaintiff would had she been hired, because she was interested in a school district superintendency; and (3) complaints by members of defendant's staff about plaintiff's "demeanor" toward them.

In the course of the interview and on other occasions, Rose made sexist statements, e.g., that the salary for the position was $40,000 but that plaintiff would receive one thousand dollars less, because she is a woman. The nadir of the Rose wit was reached in his question at the end of the interview, "OK, Mary Frances [Callan], bottom line, how do you feel about sleeping with your boss?" Rose testified that his statements were meant and were taken as jokes, between close acquaintances. Plaintiff's testimony was ambivalent about how she understood and reacted to the comments.

Plaintiff's only assignment is that the trial court erred by entering judgment for defendant after the trial. Her principal argument is that the court failed to shift the burden of proof or "articulation" to defendant after plaintiff put on her prima facie case and that the court therefore "failed to properly analyze the evidence." Stated differently, plaintiff's argument is that the court approached the weighing of the parties' evidence with the understanding that the burden of proof was always on plaintiff, rather than with the understanding that the burden passed to defendant after plaintiff had made her prima facie showing. 2 The genesis of plaintiff's argument is McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and later federal cases, which plaintiff understands to hold that, in actions brought under Title VII of the Civil Rights Act of 1964, there is a three-stage shifting burden between the plaintiff and the employer: first, the plaintiff has to present a prima facie case; next the employer has the burden of "articulating" a legitimate nondiscriminatory reason for the apparently discriminatory action; and the plaintiff finally takes on a burden to demonstrate that the employer's articulated reason is pretextual or was not the real reason for the action.

We understand plaintiff's premise, that the same shifting burden mechanism applies in actions under the Oregon anti-discrimination statutes, to have been rejected in City of Portland v. Bureau of Labor and Ind., 298 Or. 104, 690 P.2d 475 (1984):

"One who merely establishes a prima facie case and rests does not necessarily win even if the opponent adduces no evidence whatsoever and merely relies on a denial of alleged wrongdoing. The trier of fact may, in such instance, decline to draw the permissible inference necessary to establish liability. Indeed, the trier of fact may disbelieve the evidence adduced to establish the fact from which the inferred fact is to be drawn. In either case, the party with the burden of persuasion would lose. On the other hand, were the trier of fact to believe the evidence adduced to prove the primary fact and then draw a permissible inference that establishes the charge, an employer who rests without adducing evidence will lose." 298 Or. at 115, 690 P.2d 475. (Footnote omitted.)

We conclude that the burden does not shift from the plaintiff in Oregon discrimination actions in which the issue is simply whether the plaintiff's allegation or the employer's denial of discrimination is correct.

Plaintiff relies on the specially concurring opinion of Richardson, J., in Stocking v. Fred Meyer, 68 Or.App. 598, 602, 683 P.2d 1021, rev. den. 298 Or. 150, 690 P.2d 506 (1984). That reliance is misplaced for three reasons: a concurring opinion is not authoritative, it predated the Supreme Court's decision in City of Portland and it does not squarely support plaintiff's position in any event. The issue addressed in the concurrence was whether, after the employer had articulated its nondiscriminatory explanation, the plaintiff had to offer proof rebutting that explanation in order to present a triable question of fact. The concurring opinion rejected the proposition that the plaintiff had any burden to refute the employer's evidence of nondiscriminatory motivation. Plaintiff reads the Stocking concurrence as concluding, rather than assuming, as the parties in Stocking did, that the employer had a burden to make the affirmative showing that the concurrence would have held the plaintiff was not required to rebut. The concurrence did offer reasons why, given the parties' assumption that the employer had that burden, a subsequent reshifting of a burden of disproof to the plaintiff was nevertheless not indicated. However, there was no issue in Stocking about whether any burden did pass to the employer after the plaintiff there had adduced his prima facie case. More fundamentally, whatever views the author of the concurrence in Stocking may have had on that question--or may continue to harbor--the Supreme Court's later opinion in City of Portland is decisive. 3

Plaintiff argues, correctly, that there are some circumstances under which the employer in discrimination cases does have a burden of proof; for example, when the employer concedes discriminatory action but alleges affirmatively that there is a lawful basis for discriminating, e.g., a bona fide occupational requirement. See School District No. 1 v. Nilsen, 271 Or. 461, 534 P.2d 1135 (1975). Plaintiff argues that this case is one where the employer has an affirmative burden, because she proceeded on the theory that defendant had a "mixed motive," lawful in part and unlawful in part, as well as on the theory that defendant's denial of any improper motive was false. She states that, under federal case law,

" * * * once the employe demonstrates a prima facie case that the challenged action was motivated at least in part by an unlawful reason, the burden of proof (rather than a mere burden of articulation) shifts to the employer to prove that the same action would have been taken against the employe in the absence of any discriminatory motive." (Emphasis plaintiff's.)

See NLRB v. Transportation Management Corp., 462 U.S. 393, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983); League, Etc. v. City of Salinas Fire Dept., 654 F.2d 557 (9th Cir.1981).

Even assuming that the principle of proof plaintiff derives from the federal mixed motive cases is applicable to actions under ORS 659.121, but see Vaughn v. Pacific Northwest Bell Telephone, 289 Or. 73, 611 P.2d 281 (1980), this is not a mixed motive case; it is a case in which one party alleged discrimination and the other responded that there was no discriminatory actuation. Plaintiff does not explain how this can be regarded as a mixed motive case, beyond the bare assertion in her opening brief that she proceeded on that theory as well as on the theory that defendant's denial and its...

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    ...See Pascoe v. Mentor Graphics Corp., 199 F.Supp.2d 1034, 1052 & n. 4 (D.Or.2001) (citing Callan v. Confederation of Or. Sch. Admin'rs, 79 Or.App. 73, 77, 717 P.2d 1252 (1986)). Moreover, Snead is distinguishable in that its holding was limited to cases in which the court was sitting in dive......
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