*1 part; Argued reversed and remanded in otherwise and submitted October May affirmed HARDIE, Dorothy Appellant, SYSTEM, HEALTH LEGACY Respondent. CA A99826)
(9610-07813;
Charles Hof, Kitchel, David E. Van’t Christine him on the brief were LLP. and Stoel Rives Deits, Judge,* Chief Landau, Judge, and Presiding
Before Wollheim, Judge. WOLLHEIM, J.
Deits, J., concurring. C. J.,
Landau, dissenting. P.
* Rossman, Deits, J., S. J. C. vice
426-b
WOLLHEIM, J. for damages against
Plaintiff commenced this action claims for retalia- defendant, alleging her former employer, (1995),1 discrimination, 659.410 tory ORS 659.425, disability, and ORS disability perceived based on defamation, all out of defendant’s treatment of arising and employment. termination of plaintiffs and ultimate summary defendant’s motion for granted The trial court C, of dismissal judgment ORCP 47 and entered judgment, claim. Plaintiff there are appeals argues on each material fact. reverse and remand the genuine issues of We discrimi- retaliatory for defendant on the claim judgment affirm. only. nation We otherwise the evidence in the most favorable to
Viewing light we review to ascertain whether defendant has plaintiff, shown that there are no issues of material fact and genuine that defendant is entitled to as a matter of law. judgment C;2 ORCP 47 Jones v. Corp., General Motors instances, chapter In all we.refer to the of ORS 659 and to that 1995 version accompanying version’s administrative rules. (1997) provided, part: ORCP 47 C judgment sought pleadings, deposi-
“The tions, shall be rendered forthwith if the file, together affidavits, any, and admissions on with the if show genuine any moving party there is no issue as to material fact and that the judgment genuine entitled as matter of law. No issue as to a material fact if, upon the exists based record before the court viewed in a manner most favor- party, objectively juror able to the adverse no reasonable could return a verdict party subject for the adverse mary judgment.” on the matter that is the of the motion for sum- Or Laws ch amended the act ORCP 47 C. Section one of made a few however, changes quoted Significantly, to the text from the 1997 rule above. it following: added the judg- [judgment sought “The shall be rendered court shall enter forthwith1 moving party pleadings, depositions, ment for the if affidavits file[, ,1 together affidavits, any admissions on with the show that there is no if genuine any party moving issue as to material fact and that the is entitled to a if, judgment genuine as a matter law. as to a material fact exists No issue upon based the record before the viewed in a manner most favorable to court objectively party, juror no could return a verdict for the adverse reasonable party subject summary judg- adverse on the matter that is the of the motion for party producing ment. The adverse has the burden of evidence on party have issue raised the motion as to which the adverse would persuasion party may satisfy burden of trial. The adverse producing an affidavit under E this burden of evidence with section (Italics original.) rule.” and boldface in *5 428 Products, (1997); Quillen Inc., Roseburg
Because case rests infer- primarily on ences, evidence, rather than on direct we discuss the evidence in some detail. The plaintiff evidence most favorable to estab- defendant, that lishes she was an of Legacy Health System, 1996, and its from 1988 predecessor until late April when discharged 1995, defendant Until plaintiff. December plaintiff generally received positive performance work reviews in her in the accounts positions payable and purchas- departments. However, ing plaintiff admitted that some of those reviews noted in her work inconsistency performance 1995, morale. In October Lisa Davis became plaintiffs in the supervisor department. time, At purchasing that held of plaintiff position “Capital Buyer” with the corpo- rate office. 1995,
In mid-December
and Davis had a
plaintiff
disagreement,
work-related
in
noted plaintiffs
which Davis
days later,
“insubordination”
toward Davis. Several
Davis
* * *
provides
apply
‘Tt]he
two of
Section
the act
amendments
to
47 C
to
ORCP
pending
all actions
on or
effective
of
commenced after the
date
this 1999 Act.”
court,
pending
Appeals,
This case was
before
Court of
not the circuit
when
parties
argue
changes
amendment went into effect. The
do
effected
applied
the amendment
ORCP 47
to
C should be
this case
instance
first
appeal,
apply
on
See Doe
and we decline to
those
own
amendments on our
motion.
(in
(1995)
Cross,
American Red
affirming
322
Or
On an would be absent for indicating for Davis sage time” due to Davis learned “indeterminate stress. period *6 Phister, her in the human resources supervisor from Dennis file a workers’ compen to department, plaintiff planned and that for emotional and stress problems sation claim to be for her plaintiff arranged personal belongings had January a friend. Davis stated that was picked up by distress. day plaintiffs first that she learned of emotional day plaintiff. Davis and Phister met that Davis’s regarding meeting, notes from that she wrote “Termination Plan” at men of the Further down the she top page. page, specifically I claim and Compensation tioned “Workers' Stress” for ready to as well as to “be “post job immediately” resolved Davis her if/when she does return.” Other notes drafted also chronicled work deficien concerning plaintiff due to illnesses. On cies and noted her absences frequent 29, 1996, a note to the file January concerning Davis wrote note, In that recorded her observations that plaintiff. Davis was often sick. She also noted that: plaintiff migraine [plaintiff] “When called in sick with another * * * 1/23/96, surprise. it not a on was life things personal to have in her appears “[Plaintiff] work, causing perform to her which are her to be unable I sup- find resolution. get and she needs to treatment and to its port Legacy whatever services makes available life. times such as this in an individual’s employees at «* * * * * panic January 4 and 5 due to attacks.
3 Plaintiffwas absent from work on [plaintiff] recuperate “Should from her and wish stress my at it is Legacy, understanding organ- to return that the obliged position is find a for her is ization which amena- prognosis performance her coping ble to any anticipated There is time. diminishment of stress Purchasing Department coming year, over the inas- much as we on have taken substantial additional commit- of work in support organization.” ment January plaintiff
On filed her workers’ compensation panic originating stress, claim for attacks and negative performance from her review with Davis. Davis stated that that the first time she learned that panic suffered from attacks. Plaintiff also stated agoraphobia.4 psychi- Goranson, suffered she from Dr. diag- atrist, evaluated March 1996. Goranson “adjustment nosed with disorder with mixed emo- mostly resolved,” tional features now and concluded: permanent impairment “I think don’t that there will be (which psychiatric related to her I current condition think related being work the sense it related to action). reasonable disciplinary respect ques- With to the work, tion whether she is I able return to would think she work, psychiatric could return to from a standpoint. Given feelings particular workplace, about that it is doubtful such anyone’s a situation would work out satisfaction.” pay
Plaintiff on with remained leave time loss until Legacy “light duty” position March, when offered *7 facility. pay at another Plaintiff was offered the rate same of operating photocopier for a machine 40 hours a week. After a day plaintiff position work, a half and left because she experienced panic requested attacks. Plaintiff that she be original facility purchasing transferred back to her in the department. request. No action was taken on early April inquiry
In received an from Davis a Legacy regarding questionable purchase origi- accountant a department. nating pur- from Davis’s Davis retrieved plaintiff chase order and employee purchase had an discovered authorized for of microwave herself October leaving agoraphobia 4 Plaintiffdefined as fear of her home. pay plaintiff yet microwave. to for the had
1995 and that her “serious concern” to Phister about Davis then wrote plaintiff Buyer personal gain, position for as “abused knowledge anyone in or did so without authorization and plaintiff department.” explained that “did not She also * * * pay allowing [defendant] pay the vendor item, to for the payment ample opportunity [Plaintiff] make for had for it. legitimate purchase, transaction, if to make a this she was but she did not.” policy employees to be fair to and
Defendant had a investigation wrongdoing judgment until an withhold completed. April 17, 1996, Phister and Davis met with On purchase. policy No written existed for about purchases employee purchases. appears were It those allowed, and believed she followed most of the nor- procedures making purchase. Plaintiff, how- mal for such employee pur- supervisor, ever, admitted that a supposed purchase chaser, was to authorize the and that buyers appearance impro- supposed were to avoid even the priety. meeting, plaintiff Phister and Davis that At the told paid purchase had it. How- she had authorized the and for ever, home, she discovered that she had when she returned paid day for the item.5 The she sent a check and a next apology, recognizing her “serious error” and that she note of thought paid
she had for the item. Plaintiff stated that she Davis] [Phister matter viewed the “as serious an issue as ** * obviously did.” plaintiffs Davis recommended to Phister employee pur- be terminated because of April chase. On Phister terminated employment. letter, Phister cited the termination employee purchase unauthorized ofthe microwave discharge. that, as the reason for He noted because “experienced Buyer,” purchasing proc- an knew the she need for from start to finish and was familiar with the ess prior approval purchases. Thus, her failure to up pay picked attempted it when indicated that she she Plaintiff later pay She claims that appliance told to wait to until the invoice arrived. but was arrived, again inquired when invoice never she was not informed about the invoice. *8 approval pay obtain and to for the item until five months receiving represented “poor judgment” after the item and constituted cause for termination. plaintiffs discharge,
At some date after an party, Maggie plaintiff Brister, of defendant told a third purchased appliance through paying an defendant “without for it.” That statement was made in the context of discharge. discharge, plaintiff accepted Two months after her employment employer paya- with a different as an accounts summary judgment, ble clerk. At the time of the motion for plaintiff manager worked as an office at a local business. complaint alleging
Plaintiff filed a four claims for alleged relief. The first claim that her was ter- filing compensation in minated retaliation for her workers’ alleged, claim. The second and third essence, claims against plaintiff, defendant discriminated based on her disa- perceived agoraphobia panic bilities or disabilities of by failing disability attacks, to accommodate her in the work place by discharging her. Plaintiffs fourth claim was for regarding defamation the statements made to Brister about plaintiffs discharge.
The trial court found that was not disabled 659.425(1), plaintiffs disability under ORS because temporary lasting with no effects. It also concluded that discharged defendant because of her unauthorized employee purchase and not retaliation for her workers’ compensation any disability perceived claim or due to or dis ability. Last, the court concluded that the statements to plaintiffs employee purchase Brister about were not defam atory, part because admitted that the unauthori employee purchase zed raised a “serious issue” about her honesty agree merely reciting and fitness. We the stated plaintiffs discharge not, basis for under these circum defamatory. stances, We, therefore, affirm the trial court’s ruling on the defamation claim and limit our discussion to the three discrimination claims. plaintiffs retaliatory We first address 659.410(1) employer
claim. ORS
makes it
an
unlawful for
against
compen-
discriminate
files a
worker who
workers’
prima
retaliatory
sation
To
claim.
establish a
case
facie
659.410(1), plaintiff
discrimination under ORS
must show
“(1)
compensation
invoked
workers’
*9
(2)
system;
the
in
plaintiff
against
was discriminated
(3)
tenure,
employment;
the
terms or conditions of
and
employer
against
the
plaintiff
discriminated
the
in the ten-
employment
ure or terms of
because he or she invoked the
compensation system.”
Body
workers’
Stanich v. Precision
Paint,
(1997).
Inc.,
and
151 Or App
An
cause,”
an
“for
notwithstanding
compensation
existence
a workers’
long
discharge
by
claim, so
as the
is not motivated
the claim.
Vaughn
Telephone,
73,
v.
Bell
91,
Northwest
289 Or
Pacific
(1980) (“[A]nemployer may discharge
Here, her workers’ com- pensation only claim factor,” “substantial but contributing discharge. claiming factor, to her Because she is * * * “discharge part [was] by that her motivated in miscon- part by duct unlawful discrimination employer,” plaintiffs alleges claim a “mixed motive” for her discharge. Doyle Mining Co., 256, Shaw v. (1984). any discriminatory P2d Defendant denies motive nondiscriminatory and asserts reason for its termination of plaintiff, namely employee purchase. an unauthorized View- ing light plaintiff, evidence most favorable to we purposes conclude, here, for the review compensation played deci- workers’ claim some factor sion to terminate her and claim is a “mixed motive” claim. motive,”
“Mixed as used in discrimina arising Oregon law, is art it not the term of tion claims under law, claims. is under federal discrimination Under federal analyzes the factfinder a discrimination claim as either shifting produc “pretext” claim, which carries a burden of shifting tion, claim, or as a “mixed motive” which carries a production persuasion can when the burden of discriminatory produce animus.” Price “direct evidence Hopkins, 228, 278, 109 1775, 104 S Ct v. 490 US Waterhouse (1989)(O’Connorconcurring). also L Ed 2d 268 See Fernandes (1st Masonry, Inc., 199 F3d Cir v. Costa Brothers 579-81 1999) (describing approaches); Phipps, the two Fuller (4th 1995) (also describing legislative 1137, 1141-44 F3d Cir changes analysis by Price to the “mixed motive” established Waterhouse). designated scheme, Under the federal a claim a “mixed claim when the meets as motive” heightened evidentiary burden, not from the mere existence multiple claim, Id. at 1142. If this were a federal motives. have to Davis’s notes from the we would determine whether January meeting, compensation where workers’ *10 plan discussed, constituted claim and a termination were discriminatory “direct evidence of invoke the animus” sufficient shifting proof burden of for a “mixed motive” analysis Oregon employment claim. discrimination differs approach. federal from the shifting Oregon rejected Supreme has the The Court (sometimes production “pretext” scheme for claims burden of claims) “simple” brought under as or “either-or”
referred to Oregon City Ind., 298 v.Bureau Labor and law. Portland (1984). opinions, prior 104, 114-15, 475 this 690 P2d In Or burden-shifting questioned scheme court has whether applies employed “mixed to similar for federal motive” claims Oregon arising Marconi v. Guardian claims under law. See Management Corp., App 541, 550-51, P2d 86 Or 945 149 (1997); Dynic Corp., App 1, P2d 8, 138 906 McCall v. USA Or App (1995); eg. Adm., Or Or Sch. 79 295 Callan Confed. of (1986). Supreme has 78, 73, P2d Because the Court 717 1252 “pre rejected shifting production scheme for burden of reject claims, it would also text” we believe discrimination shifting proof for “mixed motive” onerous burden more shifting is claims. therefore hold that there no burden We
435 for “mixed proof motive” discrimination claims brought under Oregon law. there is no distinc- Consequently, tion “pretext” between how claims “mixed motive” claims are under analyzed Oregon law. Because we reach this con- clusion, the concerns about the procedural distinctions types Judge between two of claims that Chief Deits in her are not an expresses concurrence issue. prevail claim,
To
in a “mixed
motive”
a
must
be able to “show that he or she ‘would not have been fired but
”
for the unlawful discriminatory motive of the employer.’
92).
McCall, 138 Or
at 8
(quoting Vaughn, 289 Or
We
have not further clarified the meaning of the “but for” stan
dard
employment discrimination
However,
cases.
NLRB v.
(5th
576,
1967),
Pickle Company, 374 F2d
582
Cir
Whitfield
by
92,
case cited
Vaughn, 289 Or at
describes “but for” cau
meaning
sation as
“in
absence
of the [discriminatory
motive, the employer] would have treated the
dif
employee
”6
ferently. We have also
described
evidentiary standard
for employment
by
claims
using language
other than “but for.” In Seitz v. Albina Human Resources
Center,
665, 675,
Or App
100
P2d
(1990),
we held
the protected
must
activity
be
“substantial
factor” in
the wrongful
discharge.7
Estes v. Lewis and Clark College,
152 Or App
rev
(1998),
P2d
den 327
we held that an employer’s wrongful purpose must
“a
be
fac
tor that made a difference.” The crux of the standard,
regard
less
it,
of which phraseology
whether,
is attached to
in the
absence
the discriminatory motive,
would
have been treated differently. We conclude that plaintiffs
Waterhouse,
Supreme
In Price
490 US at
the United States
Court
explained:
hypothetical
determining
par-
“But-for
is a
causation
construct. In
whether
given event,
begin
assuming
ticular factor was
a but-for cause of
we
present
event,
whether,
factor was
at the time of the
and then
if
ask
even
*11
absent,
transpired
that factor had been
the event
nevertheless would have
way.”
the same
transpired
way,
If an event would have
in the
a
“but
same
factor not a
for”cause.
7 Seitz,
imported
qualification
we
that
from Title VII
the
Federal Civil
Rights
discharge
wrongful
jurisprudence, noting
Act and the tortuous
that
Oregon’s employment
Thus,
after Title
laws are modeled
VII.
that
Oregon employment
federal case law is
672-73;
(1993)
at
instructive
discrimination cases. Id.
Portland,
App 437, 442,
City
see
Winnett v.
Or
also
Plaintiffs
evidence focuses on the actions of
can
the
Phister and Davis. Plaintiff
survive
supervisors,
if
a
judgment only
permits
motion for
the evidence
summary
(1)
who
dis-
supervisor
actually
to find either
that as the
jury
to
charged
discharge plain-
Phister was motivated
plaintiff,
(2)
claim;
that
of her workers’
or
compensation
tiff because
and was so
supervisor
Davis
the
motivated
wrongfully
was
to
discharge
influential
in the decision to
as
be
Id.
382.
discharge.
factor” in the
“substantial
infer from her evi-
jury may
Plaintiff
that a
argues
discharged
dence
Phister
her because
her workers’
claim.
She
notes from
compensation
points
Davis’s
Davis and
In these
between
Phister.
January
meeting
notes,
specifically
plan”
Davis
mentioned
“termination
claim.
with
compensation
connection
workers’
plaintiffs
ter-
and Davis discussed
Davis’s notes indicate
Phister
either was
more than two months
minating plaintiff
before
Thus, a reasonable
of the microwave.
purchase
aware of
to fire
infer that Phister
reached his decision
juror could
claim.
compensation
filed a
plaintiff because she
workers’
*12
that,
whether
not the
regardless
employee purchase
or
admitted
written,
policy
violating
to
defendant’s
However,
summary
on
bears the
policy.
judgment, defendant
genuine
burden to show that
there are no
issues material
In Callan,
explained
fact.
we
that we understand plaintiffs
in
prima
initial
burden
facie
cases
so minimal
it is
being
virtually
“as
to a
impervious
evidentiary
motion based
Or
n
sufficiency.”
on
at 78 3.
App
Circuit,
Likewise,
law,
the Ninth
applying Oregon
concluded
that where an
prima
establishes
claim of
facie
discrimination,
unemployment
summary judgment
inap
is
even in the
propriate
face
assertions
defendant of
nondiscriminatory
action. Messick v. Horizon
Inc.,
Industries
(9th
1995).
1227, 1232
62 F3d
Cir
Furthermore,
inHenderson
Jantzen,
Inc.,
719 P2d
1322, rev den
(1986),
We note that
this
Estes,
case
not analogous to
where we affirmed Summary
judgment
favor of the
Estes,
here,
employer.
as
the employer
advanced
nondis-
criminatory motive to discharge
plaintiff. However,
Estes,
was unable to
adduce
evidence
sup-
port an inference of discriminatory motive
part
on the
of the
who
supervisors
actually discharged
contrast, here,
her. In
plaintiff has produced evidence sufficient
such an
support
not,
inference. Defendant’s
turn,
evidence does
negate the
inference from which an objectively reasonable juror could
that,
conclude
probably
not,
more
than
plaintiffs workers’
claim
compensation
was a “substantial
factor” in defendant’s
motivation to discharge
Estes,
plaintiff.
four months after it learned about workers’ claim and plaintiff only plaintiffs employee purchase, fired after it learned about claims of discrimination We turn next 659.425(1) disability perceived disability. ORS on
based against employer an it unlawful for an to discriminate makes individual because
“(a) physical impair- An or mental individual has a which, by the ment with reasonable accommodation performance of the work employer, prevent does involved;
“* [*] * * * *13 “(c) having physical a regarded An individual is as or impairment.” mental appeal, plaintiff argues a that the evidence demonstrates
On disputed question of fact as to whether defendant failed to “reasonably agoraphobia her of accommodate” disabilities argues panic creates and attacks. She also that the evidence question disputed discrimi- a of fact as to whether defendant through against employment actions, nated her adverse perceived including termination, it her as because disabled. summary judgment appropriate, was We conclude that genuine neither a issue as because the record demonstrates regarding plaintiff is a material fact whether a “disabled person” perceived plaintiff as nor whether defendant disabled. disability prima make out a case for discrim To facie present 659.425, sufficient
ination under ORS must App person.” Marconi, 149 Or that she is a “disabled evidence 659.400(1) person” “a defines a “disabled as at 547-48. ORS impairment person physical or sub who has a mental which ** major stantially life *.” We limits one or more activities plaintiffs alleged discussion, that condi assume, without panic cognizable agoraphobia attacks are “men tions of and 659.400(1). “major impairments” A life activ tal under ORS 659.400(2)(a). ity” employment. ORS Plaintiff must includes proves contemplated discharging retalia- that defendant evidence Rather, compensation agree. strength of claim. We do not tion for her workers’ jury plaintiffs possible to conclude that makes it for reasonable inference merely pretext discharging employee purchase she her “would discriminatory employer.” motive of the have fired but for the unlawful been 92). Indeed, very McCall, (quoting App Vaughn, 289 at judge’s, that is the at 8 138 Or case, jury’s, province to resolve. this which in the issue of is fact prevented performing establish that her disabilities “the work employment her from employment generally, opposed involved,” as or employer position plain- particular with a of choosing. Winnett, at tiffs 446-47. The work “buyer.” undisputed that, here that of involved point, plaintiff It is one report job complete was unable to to her buyer. undisputed the duties It is is now also generally. work, Thus, able to alleged we must consider whether her prevent completing disabilities still her from “buyer.” duties argues accepting that,
Defendant even reports panic self-diagnosis agoraphobia, attacks and impairments only temporary those mental were and thus not “disability.” Alternatively, argues that, defendant to the impede extent conditions still capabilities, only prevent working those conditions her from capital buyer supervision pur- as a under the Davis chasing department. physical impair- “Short term or mental leaving disability impairment ments no residual or are not * * (1996). 839-06-240(1) disabilities OAR Plaintiff coun- ters that there is evidence that her conditions are “mutable” 839-06-240(3) (1996). and are therefore disabilities. OAR [are those] “Mutable conditions which are controllable drug therapy, psychotherapy, diet, or other medical means * * *.”M *14 compensation
Plaintiffs workers’ claim form and the testimony perform medical the tiffs indicate that she could not buyer supervision plain of duties under the On Davis. of self-report, Davis was the source of her stress and resulting panic agoraphobia. attacks and Indeed, even specifically Goranson defendant’s noted that attitudes toward only impediment
work environment was the to returning her work. to Goranson also concluded that there “permanent impairment [plaintiffs] would be no related to psychiatric plaintiff condition,” current and could return psychiatric standpoint.” to work Thus, “from Goranson con plaintiffs psychological cluded that conditions would dissi pate impede ability Nothing and not her to work. the rec plaintiff incapable ord allows factfinder to infer that is of performing “buyer,” generally. the work of We therefore con clude that there is no issue of material fact as to whether person”
plaintiff and affirm under ORS 659.425 is “disabled summary judgment that claim. for defendant on any
Similarly, is of indication that the record devoid perceived Davis, plaintiff defendant Phister, or other of January 29 notes and other as disabled. Davis’s prone suggest perceived plaintiff as to that Davis memos migraine and other illnesses and headaches plaintiffs abil attendant to such illnesses affected absences complete ity notations, to her work. Such made both before plaintiffs panic began occur, not, do attacks and after give question circumstances, rise to a of whether under the Davis pacitating perceived panic as inca stress and attacks Januaiy indefinitely.9 Rather, Davis’s plaintiffs personal perceived situ that Davis notes indicate contemplated temporary its resolu and that Davis ation as plaintiffs recuperation. The that can be and most tion particular department inferred from Davis’s notes may stress not be amenable because support department, it an infer in that but does involved perform could not ence that Davis believed support buyer. an inference work of a The evidence does Accordingly, perceived plaintiff we as disabled. that Davis judgment summary of defendant on the affirm the favor disability. perceived issue of judgment in favor of defendant on the
We reverse retaliatory claim, 659.410, ORS and remand judgment of defendant for trial. We affirm favor that claim perceived disability 659.425, discrimination, ORS on the disability 659.425, defamation ORS discrimination, claims. retaliatory on dis-
Reversed and remanded
claim
crimination;
affirmed.
otherwise
actually
disability
from a
must
suffer
9 Wedo not mean
infer
disability.
employer’s perception
recognize
Perceived disabili
we can
an
before
Industries,
App 548,
Labor
have
real. OSCI v. Bureau
ties do not
to be
(1989).
case,
However,
timing
in this
780 P2d
rev den
I with agree the lead its opinion’s holding, including genuine conclusion that there are disputed questions preclude judgment material fact summary against plaintiff on claim for retaliatory discrimination. How- ever, agree I do not with the the opinion’s analysis lead “mixed motive” doctrine of how that doctrine applies this arising and other discrimination cases employment under ORS 659. chapter In Northwest Bell Vaughn Telephone, Pacific
Or
(1980),
Oregon
correctly apply Vaughn or the motive doctrine as has it been formulated that and pertinent Oregon the other opinion cases. The lead between correctly distinguishes “pre- cases, text” where the issue is simply whether the employer acted motive, out of a discriminatory cases, and mixed motive where the had both employer lawful and unlawful motives and the issue is whether the discharge or other action would have been taken for the but unlawful one. Or The lead opinion 434-35. is also in stating correct courts have Oregon “shifting held that burden” formulation of the federal case inapplicable pretext- law type actions under the state statute. The opinion lead concludes: Supreme rejected
“Because the Court shifting has bur- production den of ‘pretext’ scheme for claims, we reject believe it would also the more onerous shifting ‘mixed proof burden of motive’ claims.” App at 434-35. I respect, opinion
With
think that
lead
misses
all
*16
adopted
The
rubric that has been
“shifting
the
burden”
point.
the
cases
by
Oregon
per-
federal
and rejected
the
courts
by
case,
of
of the
and
to the mechanics
proof
tains
mechanics
only in the
case context. Those
applies
pretext
it
in Lewis and Clark
v. Bureau
explained
College
were
of
252,
(1979),
den
Labor,
245,
Conversely, the decisions, the statutes and by Oregon formulated presently or proof shifting is no about the burden question there — establishment of the the applies otherwise —that Rather, lawful motive is existence of the concurrent case. the that, like defense,” Or at Vaughn, a “matter defense, the defendant has the burden affirmative other Doyle v. explained As Court Shaw Supreme the proving. (1984): 251, 255-57, P2d 82 Co., Milling Vaughn our decision in “Employer argues that under pre- cannot supra, Shaw Telephone, Northwest Bell Pacific have been prove that he would not he did not vail because employer. discriminatory ofhis discharged for’a motive ‘but Vaughn stated: we “ cause, discharged just ‘If the worker for * * * as a employer prove can this matter defense pursuant to ORS 659.121.’ suit ‘just Or at 80. We formulated the cause’
“289 issue: “ question employer’s ‘The then is what effect the evi- just discharge dence of cause has on court’s reme- 659.121(1).’ authority in dial OR Or at “289 90. We did state that cases mixed motives discharge, i.e., discharge for the where the is motivated in by part poor part by work record or misconduct and in employer, employee unlawful discrimination prevail could unless court
“ ‘finds that would have been dis- charged but for discriminatory the unlawful motive of employer.’ *17 “289 Or at In the at 92. case bar the invocation of that lan- Vaughn guage from noof avail.
* * * * case, Employer “In the instant any just did not establish for discharge; therefore, cause Shaw did not to have show he that would have Employer’s been reinstated ‘but for’ unlawful employment practice.”
See also Callan v. Adm., 73, Sch. 79 Or of Oreg. App Confed. (1986) 78, P2d cited; 1252 and authorities there Lane cf. County 46, Public Works Assn. v. Or County, Lane App (1993) 52, P2d 414 to (stating analogous principle as case). “mixed in motive” doctrine context of labor law In my opinion, when the in mixed motive doctrine Oregon cases is understood and it properly does applied, not, opinion as the lead indicates, place a “more onerous” bur- den of on proof plaintiffs than the one that in applies simple “pretext” instances, cases. at 434. In App both has establishing the ultimate burden of acted with an employer unlawful motive that con- causally tributed to discharge or other employment It may that, cases, action. be in mixed motive the “but for” test of causation is than the causation higher straight test “pretext” However, cases. before that test heightened becomes must applicable, employer prove discharge an for the than the
there was alternative reason discriminatory prove any must motive objective event, “just that the alternative reason amounts but notwithstanding Ironically, its concern cause.” over placing plaintiff, more burden on the the end result onerous opinion’s analysis apply the “but for” causa- of the lead is to intervening plaintiff, placing any to the bur- tion test without affirmatively that it on the defendant to establish was den by anything other than discrimination. motivated prove must Under conceivable standard of who opinion agree what, however, I with the lead that the evi- summary judgment proceeding such dence in this was improper fact infer that defendant’s motive trier of could plaintiffs discharge.1 the reason dissenting. LANDAU, J.,P. agree majority’s disposition'
Although I
with the
do not
agree
claims, I
other
with its decision to
entry
summary judgment in
the trial court’s
favor
reverse
my
retaliatory discharge
view,
on
of defendant
claim.
concluding
defendant is
the trial court was correct
judgment
on that claim as a matter of law.
entitled
retaliatory
law,
I
As understand the
establish
discharge
she
claim, must show that “he or
‘would
discriminatory
been fired but for the unlawful
not have
Dynic
Corp.,
employer.’
ofthe
”McCall v.
USA
138 Or
motive
(1995)
(quoting Vaughn
On this that, undisputed evidence how- may ever defendant have felt about and about the fact that she had claim, filed a workers’ compensation defen- dant did not fire her or take her to fire until steps her supervisors learned, she April had made an unauthorized for which purchase she never reimbursed defendant. That was some four months after left job and three months after she filed her workers’ compensa- tion claim. then did Only defendant decide to fire her and ter- job. minate her On evidence, this no juror reasonable could find that plaintiff “would have been fired but for the discriminatory unlawful motive of the if employer,” any. McCall, Indeed, 8. App at is all evidence to the reason, contrary. For that the trial court did not err in grant- summary ing judgment defendant on claim of retaliatory discrimination.
I respectfully dissent. notes direct supply Even if we assume that Davis’s cannot least, notes, at the motives, very of Phister’s evidence Further, of Davis’s motive. supply discriminatory evidence that, direct supervisor, the record reveals as discharge to Phister Davis’s recommendation in the decision to terminate plaintiffs “made a difference” these Estes, Interpreting at 381. employment. we conclude light plaintiff, facts in the most favorable made a case of prima has facie discrimination. motive for the nondiscriminatory Defendant offers violating admitted plaintiff. Indeed, plaintiff discharge the viola- employee purchases, unwritten about policy to avoid error,” duty and that she bore tion a “serious was refutes Defendant also even “appearance impropriety.” arguing evidence of pretext namely some of — fair, into investigation employee purchase