366 P.3d 773
Or. Ct. App.2016Background
- Plaintiff (age 50, gay) applied for a Cornelius police officer job; he was a known friend of Chief Rubenstein, who had publicly supported plaintiff’s prior run for sheriff.
- After scoring well in an oral interview and being invited to further testing, City Manager Waffle told Rubenstein plaintiff must withdraw because his candidacy created the perception of favoritism; plaintiff withdrew under that pressure.
- Waffle admitted he did not investigate allegations of manipulation, conceded Rubenstein had not violated policy, and acknowledged that city policy required considering friends like any other applicants.
- The City had previously hired two of Rubenstein’s friends who were substantially younger and heterosexual; plaintiff was not considered further despite being qualified and allegedly best qualified.
- Plaintiff sued: federal ADEA claim, state age discrimination (ORS 659A), sexual-orientation discrimination (ORS 659A), and 42 U.S.C. § 1983 claims for First Amendment freedom of association, due process, and equal protection; trial court granted summary judgment for defendant.
- The appellate court reviewed the record in plaintiff’s favor and reversed summary judgment except as to the due process claim, remanding for trial on ADEA, state age, sexual-orientation, First Amendment, and equal protection claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| ADEA (federal age discrimination) — whether summary judgment proper | Nakamoto raised direct/indirect evidence that age motivated removal (officer’s ageist comments, deviation from hiring policy, younger friends hired) creating triable pretext issues | Waffle’s nondiscriminatory reason (avoid perception of favoritism/department morale) is overwhelming; decisionmaker was independent | Reversed — McDonnell Douglas framework applies; evidence permits inference that age was but‑for cause; triable issues exist |
| State age discrimination (ORS 659A) — burden at summary judgment | Showing prima facie elements creates issue for jury; alternative: whole‑record inference of discrimination | City argued higher showing required beyond prima facie | Reversed — regardless of framework, record permits inference of intentional age discrimination |
| Sexual‑orientation discrimination (ORS 659A) — whether City had knowledge and discriminatory motive | Evidence that subordinate (Wellhouser) knew plaintiff was gay and influenced Waffle; hiring of heterosexual friends supports inference | City: decisionmaker Waffle lacked knowledge of plaintiff’s sexual orientation, so no discrimination | Reversed — triable issue: biased subordinate influenced decision; inference of sexual‑orientation discrimination supported |
| First Amendment expressive association / Equal Protection — whether political association with Rubenstein was protected and causally related | Plaintiff’s prior campaign with Rubenstein was politically expressive; evidence (Wellhouser’s complaint mentioning the campaign, Waffle’s reaction, hiring policy deviation) permits causal inference | City: no evidence linking 2008 campaign/support to 2010 hiring decision; relationship was casual and not an expressive group | Reversed on both claims — evidence permits inference that political association motivated withdrawal; equal protection claim follows First Amendment theory |
| Due process — deprivation of liberty interest requiring process | Plaintiff contended loss of opportunity to associate politically warranted process | City: rejecting application did not deprive plaintiff of his political relationship or a protected property/liberty interest | Affirmed — no cognizable due process liberty or property interest was implicated by denial of the job application |
Key Cases Cited
- Gross v. FBL Financial Services, Inc., 557 U.S. 167 (ADEA requires but‑for causation)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (prima facie framework for disparate‑treatment cases)
- O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (ADEA prima facie fourth‑element discussion)
- Poland v. Chertoff, 494 F.3d 1174 (biased subordinate may taint independent decisionmaker)
- Shelley v. Geren, 666 F.3d 599 (McDonnell Douglas remains applicable at summary judgment in ADEA cases)
- Board of Regents v. Roth, 408 U.S. 564 (due process property/liberty interest principles)
- Roberts v. United States Jaycees, 468 U.S. 609 (expressive association test)
- Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274 (public‑employee First Amendment burden‑shifting)
- Engquist v. Oregon Dept. of Agriculture, 553 U.S. 591 (limits of "class‑of‑one" theory in public employment)