Phillips v. Department of Revenue
| Decision Date | 29 December 1975 |
| Parties | , 12 Fair Empl.Prac.Cas. (BNA) 447, 11 Empl. Prac. Dec. P 10,737 Doris PHILLIPS, Petitioner, v. DEPARTMENT OF REVENUE and Personnel Division, Respondents. |
| Court | Oregon Court of Appeals |
John S. Irvin, Salem, argued the cause and filed the brief for petitioner.
Catherine Allan, Asst. Atty. Gen., Salem, argued the cause for respondents. With her on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.
Before SCHWAB, C.J., and THORNTON and LEE, JJ.
Petitioner appeals from a decision of the Public Employe Relations Board (PERB) 1 which ruled that she was not entitled to promotion from Clerk 3 to Revenue Agent 2. 2
Petitioner has been employed by respondent Department of Revenue since 1955. In March of 1974 she requested respondent to reclassify her as a Revenue Agent 2, contending that she was doing the duties of that position and that she had been denied promotion because of her sex. At about the same time petitioner filed sex discrimination charges with the Oregon Bureau of Labor and the federal Equal Employment Opportunity Commission (EEOC).
The hearings examiner found for petitioner on both grounds but PERB reversed, finding that petitioner was not performing the duties of a Revenue Agent 2. PERB deferred consideration of the sex discrimination charge pending determination of that issue by either the Bureau of Labor or EEOC.
We must affirm PERB's ruling that petitioner was not performing the duties of Revenue Agent 2 if that decision is supported by reliable, probative and substantial evidence. ORS 183.480(7)(d). Here we find such evidence. Personnel Analyst Betty Spelbrink of the Personnel Division testified that petitioner did not perform the duties of a revenue agent. Specifically she stated that petitioner did not make filed collections, recommend compromises, analyze financial statements or make field investigations, all duties which revenue agents are required to perform.
We next consider petitioner's claim that PERB erred in not considering her sex discrimination charge. We have previously held that PERB is a statutory body which can only decide matters the legislature has authorized it to determine. See, Petersburg Ed. Assn. v. Sch. Dist. 14, Or.App., 75 Adv.Sh. 4091, 543 P.2d 35 (1975); Cf., Tupper v. Fairview Hospital, Or.App., 75 Adv.Sh. 3218, 540 P.2d 401 (1975).
Petitioner contends that ORS 240.086(2) not only authorizes PERB to consider her claim of sex discrimination but requires it to do so. ORS 240.086(2) provides that the board shall:
'Review any personnel action that is alleged by an affected party * * * to be arbitrary or Contrary to law or rule * * * and set aside such action if it finds these allegations to be correct. * * *' (Emphasis supplied.)
As we understand petitioner's argument, she is contending that sex discrimination is 'contrary to law' and that PERB must therefore consider her claim.
The only Oregon statutory provision we find making sex discrimination in employment illegal is ORS 659.030. That section makes sex discrimination in employment an 'illegal employment practice' but only so for the purposes of ORS ch. 659. Sex discrimination in employment is illegal by virtue of federal law, however. 42 U.S.C.A. § 2000e--2(a)(1).
PERB is a state body set up to consider a limited group of issues arising out of employment grievances. The matters it may consider are specifically set out in ORS ch. 240 and ch. 243. As we in effect held in Petersburg, 'contrary to law' means contrary to any provision of law within the ambit of PERB's jurisdiction and authority.
The only antidiscrimination authority given PERB is set out in ORS 240.560. It concerns suspensions, reductions, demotions and dismissals, and does not refer to discrimination on account of sex. Petitioner's action does not come within ORS 240.560. We conclude that if the legislature had intended PERB to have the authority to hear discrimination charges of this type, it would have specifically granted PERB that authority, as it did to hear discrimination-related dismissals in ORS 240.560.
Secondly, the legislature...
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Brown v. Transcon Lines
...such cases; (6) that defendants' position is directly supported by the decision of the Oregon Court of Appeals in Phillips v. Dept. of Rev., 23 Or.App. 748, 544 P.2d 196 (1975), and by the decision of this court in Walsh v. Consolidated Freightways, 278 Or. 347, 563 P.2d 1205 (1977); (7) th......