Multnomah Cnty. Sheriff's Office v. Edwards

• Decision Date: 10 August 2017
• Docket Number: SC S064109
• Citation: 361 Or. 761,399 P.3d 969
• Parties: MULTNOMAH COUNTY SHERIFF'S OFFICE, Petitioner on Review, v. Rod EDWARDS and Bureau of Labor and Industries, Respondents on Review.
• Court: Oregon Supreme Court

361 Or. 761

399 P.3d 969

MULTNOMAH COUNTY SHERIFF'S OFFICE, Petitioner on Review,

v.Rod EDWARDS and Bureau of Labor and Industries, Respondents on Review.

SC S064109

Supreme Court of Oregon.

Argued and submitted November 15, 2016.

August 10, 2017

Jacqueline Kamins, Multnomah County Attorney's Office, Portland, argued the cause and filed the briefs for petitioner on review. Also on the briefs were Jenny M. Madkour, County Attorney for Multnomah County, Portland, and Katherine Thomas, Multnomah County Attorney's Office, Portland.

Carson L. Whitehead, Assistant Attorney General, Salem, argued the cause and filed the brief for respondents on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Sean E. O'Day, League of Oregon Cities, Salem, filed the briefs for amici curiae, League of Oregon Cities and Association of Oregon Counties. Also on the briefs was Rob Bovett, Association of Oregon Counties, Salem.

Michael E. Rose, Portland, filed the brief for amicus curiae Oregon Trial Lawyers Association.

Before Balmer, Chief Justice, and Kistler, Walters, Landau, Flynn, and Duncan, Justices, and Ortega, Judge of the Court of Appeals, Justice pro tempore.^**

LANDAU, J.

ORS 408.230(2)(c) requires a public employer to "devise and apply methods" of giving veterans and disabled veterans "special consideration" in the employer's hiring process when that hiring process does not rank applicants by means of a score. The issue in this case is whether the Multnomah County Sheriff's Office (county) complied with that requirement when it failed to promote a disabled veteran. The Bureau of Labor and Industries (BOLI) concluded that the county did fail to comply with the statute, as well as administrative rules that implement it. BOLI ordered the county to comply with the law, to train its staff, and to pay the disabled veteran $50,000 in damages for his emotional distress.

The county appealed, challenging BOLI's conclusion that the county had violated ORS 408.230(2)(c). It also challenged the validity of the administrative rules that BOLI concluded the county had violated and BOLI's authority to award damages for emotional distress. The Court of Appeals affirmed. Multnomah County Sheriff's Office v. Edwards , 277 Or.App. 540, 373 P.3d 1099 (2016). We conclude that BOLI correctly construed ORS 408.230(2)(c) and that, given the unchallenged findings in the agency's final order, there is no basis for the county's contention that BOLI erred in finding a violation of that statute. Our conclusion with respect to the statutory violation obviates the need to consider the validity of BOLI's administrative rules, so we do not reach that issue. As for BOLI's authority to award damages for emotional distress, the county failed to preserve that argument, so we similarly decline to address it. We therefore affirm the decision of the Court of Appeals and the final order of BOLI.

A brief summary of the relevant statutes and administrative rules provides useful context. ORS 408.230(1) requires public employers to grant a preference to veterans and disabled veterans who apply for a vacant civil service position or seek a promotion to a civil service position. The veteran or disabled veteran applicant must meet the minimum qualifications and any special qualifications for the position. ORS 408.230(1)(b). In addition, the applicant must successfully complete either an initial application screening process or a civil service test that the public employer administers to establish eligibility for the position. ORS 408.230(1) (a)(A).

ORS 408.230(2) then sets out how public employers must grant preference for veterans and disabled veterans:

"(a) For an initial application screening used to develop a list of persons for interviews, the employer shall add five preference points to a veteran's score and 10 preference points to a disabled veteran's score.

"(b) For an application examination, given after the initial application screening, that results in a score, the employer shall add preference points to the total combined examination score without allocating the points to any single feature or part of the examination. The employer shall add five preference points to a veteran's score and 10 preference points to a disabled veteran's score.

"(c) For an application examination that consists of an interview, an evaluation of the veteran's performance, experience or training, a supervisor's rating or any other method of ranking an applicant that does not result in a score, the employer shall give a preference to the veteran or disabled veteran. An employer that uses an application examination of the type described in this paragraph shall devise and apply methods by which the employer gives special consideration in the employers hiring decision to veterans and disabled veterans."

The statute thus provides three different ways that public employers must grant preference for veterans and disabled veteran applicants; the method of preference depends on the type of selection process the public employer uses. First, for any initial application screening that is used to develop a list of applicants to interview, the employer must add a specified number of points to the veteran's or disabled veteran's score. ORS 408.230(2)(a). Second, for an examination that is given after the initial application screening and that results in a score, the employer must again "add preference points to the total combined examination score." ORS 408.230(2)(b). Third, if the employer uses any other method of ranking that does not result in a score, the employer must "devise and apply methods by which the employer gives special consideration in the employer's hiring decision to veterans and disabled veterans." ORS 408.230(2)(c).

The law makes clear that those preferences "are not a requirement that the public employer appoint a veteran or disabled veteran to a civil service position." ORS 408.230(3). Rather, the law provides that the employer is required to appoint a veteran or disabled veteran only if the results of the evaluation process, combined with the preferences, "are equal to or higher than the results of an application examination for an applicant who is not a veteran or disabled veteran." ORS 408.230(4).

A violation of the preference law is an unlawful employment practice. ORS 408.230(6). A veteran or disabled veteran who claims to be aggrieved by such an unlawful employment practice may file a complaint with the Commissioner of BOLI. ORS 408.230(7).

BOLI adopted administrative rules to enforce the requirements of ORS 408.230. Among other things, those rules provide that,

"[a]t each stage of the application process, a public employer will grant a preference to a veteran or disabled veteran who successfully completes an initial application screening or an application examination or a civil service test the public employer administers to establish eligibility for a vacant civil service position."

OAR 839-006-0450(2).

With that background in mind, we turn to the facts of this case, which we take from the uncontested findings in BOLI's final order. The county posted an internal announcement seeking applications for a promotion from sergeant to lieutenant. Three individuals applied, each of whom met the minimum qualifications for the position. One of the three applicants, Edwards, qualified for preference as a disabled veteran.

The job announcement for the lieutenant position stated that the county's hiring decision would be based on a letter of interest, a resume, a "360 degree review" consisting of information from "civilian[s]" and coworkers, and an internal command staff interview. The announcement did not mention a preference for veterans or disabled veterans.

The county, after reviewing the letters of interest and resumes of the three applicants, decided to grant all three an internal command staff interview. The letter of interest and resume that Edwards submitted showed some carelessness that had not been exhibited by the other applicants. Nevertheless, he was granted an interview along with the others.

The county then conducted the 360 degree review for the three applicants. Nine people responded to the county's survey concerning Edwards, including an applicant who was competing with Edwards for the position. The comments concerning Edwards were less positive than the comments concerning the other applicants.

The internal command interview followed. The interviewers were Undersheriff Moore, Chief Deputy Gates, and Captain Reiser, who was Edwards's immediate supervisor. After the interview, each of the interviewers independently ranked the applicants. Each of those interviewers ranked Edwards third. There is no dispute that there were sound, job-related reasons for the rankings.

The interviewers' recommendations were forwarded to Staton, the Multnomah County Sheriff. Staton met with the county's human resources manager, Ott. Following that meeting, the position was offered to one of the other applicants, not Edwards.

Edwards asked the county for a written explanation of its decision not to promote him. Ott, as the manager of human resources, responded. She explained that, "[b]ecause there were no numerical tests involved in which to apply your veteran preference points, we applied your points as you went into this process, and you were the number one candidate at the top of the list of three potential candidates for promotion."

Edwards then filed a complaint with BOLI, alleging that the county had committed an unlawful employment practice by failing to give him the preferential treatment that ORS 408.230 requires. BOLI investigated the complaint. Following the investigation, the agency issued a notice of hearing and formal charges, alleging that the county had failed to "devise and apply methods" of granting Edwards the preferential treatment that ORS 408.230(2)(c) requires.

The hearing revealed that the county has no written policy describing the...