Plaintiff retired from her position with the Oregon Department of Human Services (DHS) in 2003. Three years later, having apparently reconsidered, she twice applied for a full-time position with the same agency. On neither occasion was she hired. Subsequently, she brought claims against the state for, among other things, age discrimination and defamation. Against her former supervisor at DHS, who had provided a negative reference, she brought claims of defamation and intentional interference with prospective employment. The trial court granted summary judgment in favor of both defendants on the defamation and intentional interference claims and, after a bench trial, ruled in favor of the state on the age discrimination claim. Plaintiff raises three assignments of error on apрeal. First, she asserts that the trial court erred in concluding that DHS did not engage in age discrimination. Second, she argues that the trial court erred in sustaining defendant’s objection to testimony from a member of the hiring committee regarding whether the member believed that certain statements reflected stereotypes about older workers. Finally, she contends that there were genuine issues оf material fact that precluded summary judgment on the defamation and intentional interference claims. We affirm.
The following facts are undisputed. Plaintiff was employed by DHS (or its predecessors) in the child welfare division for approximately 16 years before she retired in 2003. For much of that time, plaintiff worked part time as a drug and alcohol specialist; she also sometimes workеd as an ongoing caseworker. Two years after her retirement, in 2005, she again worked for DHS, this time as a temporary employee. In June of 2006 plaintiff applied for a full-time position as a caseworker. She listed defendant Larson as a reference; Larson had been her supervisor at DHS for a period immediately prior to plaintiffs retirement. Larson was aware that рlaintiff and Larson’s husband had had a personal relationship at one point before Larson’s marriage.
Although plaintiffs performance evaluations, the last of which was signed by Larson in 2003, had been positive, the reference in 2006 was decidedly negative. In a telephone conversation with a DHS employee who was acting as
reference checker for the hiring committеe, Larson made (and the employee recorded in writing) a number of negative statements regarding plaintiff, including: that she had a hard time working a full-time job; that her job performance was very poor; that she “seemed tired and ‘all over the board’ ”; that her ongoing casework was completely unsatisfactory; that she was slow and could not meet timelines; that she had not adjusted to thе agency’s newly adopted mission of emphasizing child safety; that she was behind in her work; and that she would not take a position on controversial issues. The written record also reflects that Larson
The hiring committee, of which Larson was nоt a member, interviewed plaintiff. At the time of the interview, Larson’s conversation with the reference-checker had not occurred; apparently, however, the substance of Larson’s negative evaluation was communicated to committee members after the interview and reported by them to higher-level managers, not including Larson. In any event, plaintiff was not offered thаt caseworker position. The hiring committee members and the other managers later testified that they did not take Larson’s reported comments to reflect a concern with plaintiffs age and that the committee did not consider plaintiffs age in deciding not to hire her. DHS ultimately filled nine openings. Eight of the selected applicants were under 40. Shortly after rejecting plaintiffs aрplication for the permanent position, DHS offered her a temporary position, and plaintiff declined it.
A second batch of permanent openings occurred later in 2006, and plaintiff applied for those positions as well. She participated in a group interview. Larson, again, was not on the hiring committee, but another member, Soriano, had learned of Larson’s сoncerns. He related to the committee that plaintiff was controlling in group exercises, made unwarranted assumptions, and submitted a statement that was hard to follow. Other members of the committee testified that Soriano also related that, before plaintiff retired, she “couldn’t keep up with the work.” Plaintiff was not hired. Six other applicants were. One was 48 and the others were under 40.
As noted, plaintiff filed an action against the state for, among other things, age-based employment discrimination, defamation, and intentional interference with an economic relationship, and against Larson for defamation and intentional interference with economic relations. The trial court granted summary judgment in favor of defendants on the defamation and intentional interference claims and, after a bench trial, ruled in favor of the state on the age discrimination claim.
We begin with that latter ruling. Oregon civil rights law prohibits an employer from refusing to hire an individual “because of an individual’s * * * age,” ORS 659A.030(l)(a), and allows a person claiming to be aggrieved by a violation to file a civil action against the employer, ORS 659A.885(l)(a). The ultimate factual question that must be addressed in such a civil action is whether the plaintiff has proved that the defendant intentionally discriminated against the plaintiff, that is, whether the defendant treated the plaintiff differently, and adversely, because of her age.
See Durham v. City of Portland,
In exercising
de novo
review, we generally defer to the trial сourt’s demeanor-based credibility findings, express and implied, because the trial court had the opportunity to see and hear the witnesses and we
“Defendant did not hire plaintiff during the June 2006 hiring process for several legitimate, non-discriminatory reasons, and defendant did not mаke the hiring decision ‘because of plaintiffs age. In fact, the Court is affirmatively persuaded to the contrary: the hiring committee based its decision not to hire plaintiff on legitimate, non-discriminatory concerns. The Court finds Ballard [a member of the hiring committee] to be a very credible witness based on her demeanor and her testimony, and believes her testimony that the hiring committee had concerns about plaintiffs ability to complete work, commit additional time, and to work under the new ‘Safety’ model. These are valid concerns regardless of age. * * * Ballard also testified, and the Court finds, that age was never discussed by the committee. Although Larson’s reference was discussed by the committee, it was just ‘one of the pieces of the packet.’ The committee did nоt believe any of Larson’s statements to be discriminatory. Nor did the hiring committee adopt them for discriminatory reasons. Abundis [another member of the hiring committee] testified and the Court concludes that the hiring process was fair. Additionally, Radich, an upper level manager, who the Court found to be a very credible witness based on his demeanor and testimony, testified that age was never a dеtermining factor in hiring decisions. * * * Plaintiff was not hired [for the June 2006 positions] for a number of reasons, none of which were related to her age.”
The court made similar findings with respect to the October 2006 process:
“Defendant did not hire plaintiff in the October 2006 hiring decision for several legitimate, non-discriminatory reasons, and defendant did not make the hiring decision ‘because of plaintiffs age. The October 2006 hiring committee did not consider Larson’s reference. Although one member of the committee, Soriano, testified he knew something about Larson’s opinions, the Court believes that the hiring committee based its decision not to hire plaintiff on reasons other than Larson’s reference and plaintiffs age. As stated above, the Court finds Soriano to be a very credible witness and bеlieves Soriano’s testimony that he had concerns that plaintiff seemed ‘somewhat controlling’ in group exercises, she did not ‘give a lot of the other candidates opportunities for their input,’ she ‘made assumptions during the exercise,’ and that her individual statement was ‘hard to follow.’ He shared these concerns with the hiring committee and they agreed not to move plaintiff forward in the hiring process. The Court concludes that the hiring committee did not consider age at all. * * * Defendant’s reasons for not hiring plaintiff were not pretext, but were legitimate, and nondiscriminatory.”
We have reviewed the record de novo and we agree with the court’s findings. Neither the bench, the bar, nor the public would benefit from a recital of the parties’ arguments; suffice it to say that each side, working from the same basic set of facts, draws opposing inferences, but that the key inferences revolve around what the decision-makers believed and intended.
Plaintiff, however, takes issue with the court’s findings for two reasons. First, she argues that the court failed to address and confront some of the evidence that was favorable to plaintiff. We are not aware of anything that would require the court to do so. We presume that, in rendering its decision, the court considered all of the evidence (as have we) and resolved all of the conflicts consistently with its ultimate decision.
Ball v. Gladden,
Second, plaintiff takes issue with the court’s legal analysis. In particular, she argues that, even if the decision-makers acted in good faith and without consciously intending to discriminate based on age, they
unconsciously
applied age-based stereоtypes in reaching their decisions, and such unconscious action constitutes a violation of ORS 659A.030. We disagree. Plaintiff styled this
In her second assignment of error, plaintiff argues that the court erred in not permitting a witness, Fellez — a member of the October hiring committee — to testify that she “was familiar with age stereotypes,” and that certain of the characteristics that were ascribed to plaintiff during the hiring process could be seen as invoking such stereotypes. We are not convinced that the court erred in excluding that testimony. Its purpose would have been to bolster plaintiffs argument that age stereotypes were somehow at work in the hiring process. But the court admitted the testimony of an expert demonstrating that some of the characteristics ascribed to plaintiff matched age stereotypes, and it is difficult to see what Fellez’s opinion would add. In any event, to justify reversal, evidentiary error must be prejudicial, that is, it must substantiаlly affect the rights of a party. ORS 19.415(2);
Hunt v. Weiss,
We turn, then, to plaintiffs claim for defamation against the state for Larson’s statements. “Oregon recognizes the defenses of qualified privilege and absolute privilege to allegations of defamation. The former requires a plaintiff to prove that a defendant acted with actual malice; the latter bars the defamation claim altogether.”
DeLong v. Yu Enterprises, Inc.,
In
Shearer v. Lambert,
It is true, as plaintiff protests, that defendant did not raise a defense of absolute privilege before the trial court. Nonetheless, under
Outdoor Media Dimensions Inc. v. State of Oregon,
“cеrtain conditions are met. The first condition is that, if the question presented is not purely one of law, then the evidentiaryrecord must be sufficient to support the proffered alternative basis for affirmance. That requires: (1) that the facts of record be sufficient to support the alternative basis for affirmance; (2) that the trial court’s ruling be consistent with the view of the evidence under the alternative basis for affirmance; and (3) that the record materially be the same one that would have been developed had the prevailing party raised the alternative basis for affirmance below. In other words, even if the record contains evidence sufficient to support an alternative basis for affirmance, if the losing party might have created a different record below had the prevailing party raised that issue, and that record could affect the disposition of the issue, then we will not consider the alternative basis for affirmance. The second condition is that the decision of the lower court must be correct for a reason other than that upon which the lower court relied. Third, and finally, the reasons for the lower court’s decision must be еither (a) erroneous or (b) in the reviewing court’s estimation, unnecessary in light of the alternative basis for affirmance.”
Id. at 659-60 (emphasis in original). Here, the facts establish beyond dispute that Larson was an employee of DHS, an executive agency, and that she rendered her reference in the exercise of her official duties: a hiring committee of the agency for which she worked asked her to provide a reference regarding the work of a person whom she formerly supervised. Thus, the record contains facts that are “sufficient to support the alternative basis for affirmance.” Id. at 660. 2
Further, plaintiff suggests no way in which she would have developed a different record had defendant raised an absolute immunity defense, and we can think of none. And finally, the lower court’s ruling that granted summary judgment on the basis of qualified immunity is unnecessary in light of our conclusion that, on the facts in the record, absolute immunity applies. Plaintiffs third assignment of error fails because defendants were entitled to absolute immunity. 3
To prevail on her last assignment of error, that is, that the court erred in granting summary judgment on the claim of intentional interference, plaintiff had to establish an issue of fact as to, among other things, whether there was a
causal relationship between Larson’s statements and damage to plaintiffs employment relationship with DHS.
See McGanty v. Staudenraus,
Affirmed.
Notes
Although ORS 19.415(3) was amended in 2009 to make de novo review discretionary, the amendments apply only to cases in which the notice of appeal was filed on or after June 4,2009. Or Laws 2009, ch 231, §§ 2-3. Because the notice of appeal in this case was filed before that date, the 2007 version of ORS 19.415(3) calling for de novo review applies.
An immunity defense need not be expressly pleaded if the complaint on its face alleges facts that are sufficient to establish the defense.
See Franke v. ODFW,
Our resolution of this assignment of error also disposes of plaintiffs arguments relating to her claim for defamation agаinst Larson individually.
For purposes of determining that Larson was acting within the scope of employment in the intentional interference claim, three requirements must be met.
“These requirements traditionally have been stated as: (1) whether the act occurred substantially within the time and space limits authorized by the employment; (2) whether the employee was motivated, at least partially, by a purpose to serve the employer; and (3) whether the act is of a kind which the employee was hired to perform.”
Chesterman v. Barmon,