*1 30, May Argued part, part and submitted affirmed in reversed 26, 1979, and remanded with instructions November respondent’s petitioner’s and reconsiderations denied 17, January petitioner’s respondent’s petitions (288 667) review denied March Or COLLEGE, LEWIS AND CLARK Petitioner, v. LABOR, BUREAU OF Respondent. (No. 5-77, CA 13202
Mary Salem, J. General, Assistant Attorney argued cause for With her on the respondent. brief Redden, General, were James A. Attorney and Walter Barrie, General, L. Solicitor Salem. Thornton,
Before Presiding Judge, and Richardson Buttler, Judges. THORNTON, P. J.
Buttler, J., concurring opinion.
Richardson, J., concurring dissenting opinion. THORNTON, P. J. Clark an order appeals Lewis and
_<abor it had discriminated hiring Hart a male igainst applicant Dianne in the art college’s department. >osition of instructor Dianne for an May, Komberg applied in the Art Lewis and Department nstructorship College. competing Nark Two male were applicants position. rejected job nterviewed for The first >utthe it. Hart was not interviewed. accepted second fill the college posi- followed to procedure appointment ion with the of a five-member began committee,” headed of the art search the chairman After an initial five screening process, epartment. among selected from the applicants, inalists were to the the finalists were then rank- according college, each of the individual preference by d order of Thereafter, the committee íembers of the committee. were to composite ranking. applicants repared in their order on the list composite e interviewed *3 of by was offered to and one job accepted ntil the if highest applicant the ranked example, lem. For the four would not be inter- job, remaining ook the fifth list. composite Hart was ranked on the iewed. of the higher by Ihe had been ranked than that some committee, the but was ranked lower than íembers of mem- by all of the committee applicant re successful to individual lists or testified prepared ers who either of their evaluation comparative íeir recollections However, one of the members had le applicants. applicant than the second male higher anked Hart Drr) received an interview. who found, essence, in that the rank-
The Commissioner determining was not the actual basis for lg system interviewed, and that the list composite whowould be jre mem- to individual committee relationship no was contrived to facilitate inter- rankings, ers’ but in with the lews or candidacies accordance promote the dean. chairman and department references Hart filed a complaint with the Commissioner of Labor,1 sex alleging discrimination and retaliation (ORS 659). A ch a hear- hearing was conducted before officer, ings March, who issued order proposed December, 1978, 1978. In issued the Commissioner his final order. He concluded that had dis- college Hart, ordered, first, criminated that against and college Hart pay salary difference between the benefits successful had applicant during received 1, 1972, 1976, the period July to December Hart compensation had period; earned that during and, second, that offer college teaching in the art position department equivalent compen- sation and credit toward to assistant tenure that of an four professor years’ consecutive service. petitions The college judicial for review. It contends there no was substantial support evidence to finding discrimination, the Commissioner ap- legal standards, incorrect plied college denied due "ex process because of contacts” be- parte tween the Commissioner and an attorney assistant general, and that the remedy ordered the Commis- sioner was improper. our record,
Based upon reading of this entire it is our conclusion that there is not evidence "substantial in the whole record” within the term meaning of 183.482(8)(d) in ORS Commis- Labor sioner’s that Lewis and Clark dis- criminated Dianne Hart on of her the basis sex in choosing Professor Barnes for the position.
The college conceded that Mrs. Hart had establish- ed a case prima facie of discrimination but contends the college’s proffered explana- neutral” "gender hiring tion its action was sufficient overcome *4 prima this facie case. 1 original At complaint the time the discrimination was filed on herein 25, 1977, October the State Labor Commissioner Mr. was Bill Stevenson. January 1, Labor Stevenson served as Commissioner until 1979. On that by Mary Wendy Roberts, he
date was succeeded who was elected in November, 1978, four-year 1, January a expires term which 1983.
[248] hire a college’s decision assuming Even by Mrs. Hart was interviewing without applicant lale case of facie prima to establish self sufficient her, it would arguable, which is iscrimination evidence, college’s e conclusion our unrefuted, was which was below and ummarized case prima this facie to overcome lainly sufficient legiti- this decision was matter of establish that nd the search íate, nondiscriminatory, by merit selection among all applicants. from Dmmittee pro- is that the selection evidence shows What finalists, five includ- itself down to 3ss had narrowed proce- the search committee’s Mrs. Hart. Under lg it interviewing applicants, ranking ure for all in advance that rather than interview wasdecided in the finalists, interviewed were to be applicants ve job on list until they composite appeared rder of them. Thereafter accepted to and one as offered committee, Hart’s considering Mrs. search after íe along and art work and allied documents pplication finalists, other decided to choose that of the ith finalist, Barnes, Mrs. Professor than rather nother however, did, inter- art, interviewing her. It without list, her both of were above on Lewtwo others who that a males. There was some evidence were whom Hart was discussed ¡ourtesy interview” Mrs. position at Mrs. Hart’s husband’s official ecause College, suggestion and that this and Clark ewis unnecessary. as abandoned lbsequently out that no member be pointed It should ;arch Profes- ever ranked Mrs. Hart above committee inter- Barnes, the male who was subsequently ar and hired. Lewed a viola- this short of establishing our falls view rights-antidiscrimination civil Oregon
on of App v. 15 Or iws, Fajardo Morgan, ch 659. ORS Cf. (1973). 516 P2d following per- we find the background, By way only have 1946 and 1978 there been Between lasive: *5 four full-time faculty positions in the art department at Lewis and Clark College. These positions were in (since (since Painting and Drawing 1946), Art History 1947), (since Ceramics and Sculpture 1949), and Cal- (since 1951). ligraphy Twelve different individuals have held these positions, of whom three have been (Alice (a women Asmar—Painting and Drawing (a tenured position), Henrietta Perry—Art History tenured position), Cindy History. Remold—Art In addition to the full-time positions, the art department now includes part-time positions in Weaving, Sculp- ture, and A Painting. total of 13 women have been employed on the art department addition, faculty. the full-time position in art history filled by Stewart Buettner in 1973 was first woman, offered to a Martha Hutson, who declined the offer.
The college makes number of arguments in con- nection with its general contention that the Commis- sioner did not apply correct legal standards. We have considered arguments those and conclude they do not require discussion.
The college also assigns error to what it describes as the ex parte assistance of the attorney prosecuting case in the preparation of the final order. The college refers to the assistance provided the Commissioner by an assistant attorney general who had represented agency before the hearings officer. The interrelation ship of state agencies and personnel from the Depart ment Justice, who sometimes act in quasi- prosecutorial as well as advisory roles in agency pro ceedings, is a potential source of complicated legal and ethical problems. case, In this the contact between the Commissioner and the assistant attorney general was initiated Commissioner, and took the form of the assistant attorney general speaking with the Com missioner and drafting the final order on the Commis sioner’s behalf. Before the occurred, contacts the hear ing order, officer’s proposed which was adverse to the college, had been served on the parties, and the college had filed exceptions. Nothing in the record suggests findings, his own did make that the Commissioner than did more attorney general 3r the assistant lan findings "legal the Commissioner’s embody facts, prej no possible these we discern guage.” Under Commission, 38 college. Gregg Racing v. udice to rev den 286 Or 19, 24-25, 588 P2d Or App (1979). however, conclude, there was substan- do We
;ial the Commissioner’s evidence ;hat Hart filed her antidiscrimination com Mrs. after *6 plaint Labor, inform college the Bureau of did if she with her com persist VIrs. Hart plaint that were for future any would not be considered she in and that on November department the art jpenings i, 1973, letter reapplying Hart sent Professor Shores a in the art might open for which become any positions at for she opening that least one which lepartment; the time the open did become between qualified vas hearing; transmitted date etter was for this failed to consider Mrs. Hart college hat this josition; the inference is permissible and that ¡onstituted filing her a retaliatory against action for 659.030(1)(d). :omplaint. ORS case, of this we disposition of our vacate view in for reconsideration and remand imposed
lanction for appropriate this of an sanction opinion he light pre- to in the retaliatory actiotis referred college’s he vious paragraph. in and remanded part, in reversed part,
Affirmed vdth instructions. J.,
RICHARDSON, part; dissenting in concurring in part. opinion
I in that of the part majority concur support evidence to there was substantial Lolds college retaliated he Commissioner’s although agree majority, with the Hart. I also gainst particulars, and in different or reasons different the remedial portion Commissioner’s must order part However, be reversed in and remanded. I do not agree majority’s with the disposition of the principal issue in this case —whether there was substantial evi- dence to findings Commissioner’s and his conclusion that the College discriminated Hart.
As notes, majority College concedes that made facie prima showing of discrimination. means, essence, That that she for proved applied she the position, that she qualified position, hired, she was not interviewed or and that a male applicant was interviewed and hired. Those facts con- stitute prima facie case under the United States Supreme Court’s decision in Corp. McDonnell Douglas Green, v. 792, 411 US 93 S Ct L36 Ed 2d 668 (1973), and later decisions relating to burden and order of proof discrimination cases under Title VII (42 of the Civil Act Rights § of 1964 USC 2000e et seq.).
Under McDonnell Douglas, after the complainant makes a prima such facie showing, the burden shifts the employer to "articulate some legitimate, nondis- criminatory reason” for its action. 411 at If US 802. the employer reason, articulates such a the burden is *7 on the complainant prove to the employer’s pur- ported reason is not actual reason or is pretext. a that, The College argues here, it articulated such reason, and that Hart did not prove that that reason was not the actual basis for the action. hiring Both parties assume that McDonnell Douglas’s definition of burden proof and order of is applicable in discrimina- tion cases before the Commissioner. It unnecessary for us to decide whether that assumption is correct. theory Under any of burden proof, of the issue before us is whether there was substantial in the evidence record that the College’s proffered "gender neutral” explanation for its action did not satisfactorily explain the action. its was explanation College’s of
The crux merit, system on was based system election an accepted made to and being in an offer esulted than list the search committee’s on higher ipplicant Also interviewed. therefore not lart, she was and that the proposi- was College’s explanation entral than communicative skills rather that graphic Lon of selec- criteria the principal skills were teaching nd therefore was process the interview Lon, and that com- the applicants’ of to an evaluation ndispensable qualifications. arative hiring faculty found that
The Commissioner in devel- were College refers rocedures to "rigid that no in question, at the time pmental phase to the were communicated procedures r definite” no there was committee, and that íembers methodology. hiring about the committee on Dncensus that, the limited also found The Commissioner nominally operational, were the procedures xtent composite on the The names not followed. were ley moment of the to suit the needs rearranged were st of the dean the desires nd moved was For Orr example, chairman.
epartment the dean to enable on the list to to second fourth rom The Col- trip on a to California. him while iterview geographical if the brief why, reason no ige offers chang- justified dean and Orr between roximity him, interviewing list and on the his lg position was interviewers with the proximity Mart’scontinuous similarly. treating her reason compelling less com- by search testimony there was some Although the main were skills graphic áttee members testimony there was also position, for the ualification the committee members of the four greater skills were communicative so found. The Commissioner (4) that: ultimate The Commissioner’s candidacy, of a the consideration "In terms of *8 place took meaningful, significant consideration only Committee at the Search an interview. denial of interview to Hart constituted a denial of a con- candidacy. of her I given sideration further find that Search Committee’s commitment capable generating renewing candidate and en- thusiasm, only way that presence of this could and quality be detected measured was means anof interview.” my view, the majority both and concurring opin- miss the
ions thrust Commissioner’s findings, that, was from the inception, putative procedures search were a They freely sham. were every abandoned to meet inter- contingency except Hart, viewing although every other qualified finalist (and one who not qualified) was were interviewed. the College While contended that visual rather than skills were communicative with the im- emphasized, interviews were plication important evaluating applicants, found their testimony from the search committee mem- bers were concerned with communicative abilities and an interview was therefore central the evalua- process. tion
The majority concurring and do not opinions ex- plain why the evidence fails to support Commis- findings. majority sioner’s opinion says only that enumerates, findings certain factual it some of which son,.e the Commissioner did make and of which he did not, have substantial in the record. That is not the issue. The issue is whether the Commissioner’s findings evidence, are supported by substantial not whether different findings might we make if we were the triers of also fact have evidentiary support. Similarly, the majority’s recitation of the art depart- history ment’s female hiring consistent with the evidence, but so are findings Commissioner’s has no woman achieved tenured status on the studio faculty, art at only least since one woman ever hired to fill a position "tenure track” —the of position sought kind faculty. —on *9 that the Commission- concurring notes opinion The the no of discrimination express finding r made the accepted and Barnes was offered rocess before Commis- ab, infers from that that the and the opinion process selection the earlier the stages ioner found that terms nondiscriminatory. It is true been o have in the text do appear "sex discrimination” not uch as However, necessary it was not f findings. each of the "discrimin and conclusion to refer to every finding 3r the and for for discrimination to be found ation” college that the discriminated Dnclusion As in detail the described findings. 3 follow from College’s bove, prof- found that the Commissioner its action. Under explain sred failed to explanation reasoned Douglas progeny, and its better IcDonnell would that discrimination occurred he conclusion "legitimate, from the utomatically employer’s follow rejected. or ondiscriminatory being disproved reason” v. Massachusetts Commission Wheelock If. 130, 355 Mass NE 2d Against Discrimination, (1976). Douglas Assuming that McDonnell 14-315 the Commissioner’s apply proceeding, oes not this did explanation that nding College’s proffered ques- its left the further factual ot account for action something or else on of whether discrimination context, action. In this tie explanation correct others, usually may of fact and many s in the trier or intent subjective motivation lust infer the actor’s The circumstances surrounding circumstances. (cid:127)om and conclu- wholly consistent with a ere were be- was not interviewed or considered lon that Hart her ause of sex. concurring notes that Commission- opinion
The con- r, findings, at ultimate in order to arrive his Pro- department, the chairman of art Luded suggests Shores, opinion was not credible. issor credibility make could not bat the Commissioner witnesses he did not and hear the because see ndings made from of the record his decision a review ut made Commission- y opinion *10 e., other than witness demeanor. credibility, The i. weight, that attaches can testimony be determined in terms of the inherent or probability, improbability testimony, inconsistencies, of the the possible internal corroborated, the fact it is or is not that it is contradict- by ed other or testimony evidence and that finally human experience demonstrates it is incred- logically ible.
The Commissioner’s
findings that he did
think
Professor
testimony
Shores’
was credible was ex-
in
order.
plained
The finding was based on factors
other
than the witness’s demeanor while testifying
in
and has a basis
the record before the Commissioner.
The Commissioner’s
findings and
that
conclusions
Hart was discriminated
should be affirmed.
I agree with the majority that
portion
remedial
the order
be
of
must
reversed in
and remanded.
part
However,
some
issues
by
raised
the remedy
for
regarding
discrimination
apply
would
to remedial action respecting unlawful
retaliation.
Nilsen,
1
461,
School District No.
v.
271 Or
534
(1975),
Supreme
P2d 1135
Court considered the
of
scope
the Commissioner’s
authority
in providing
¡medies
specifically
and
discriminatory
practices,
ordered
remedies
similar
to those
nsidered certain
[7]
the Commissioner
"It is our conclusion
here. The Court stated
legislature
in Nilsen:
did not
unfet-
completely
in the Commissioner
to vest
intend
extent that the Commissioner
to the
tered discretion
showing of necessi-
without some
an order
could issue
* * *”
four and four assistant professor hired as an at Hart be substantiated because cannot be seniority ars’ assumption an no evidence is Jhere beyond year retained one irt have been would selected for the position.” if she had been íployment au- remedy argues ie Commissioner 659.010(2), him to empowers orized ORS desist orders requirements elude cease practice has an unlawful engaged . who employer to make of that practice, the effects” iminate Pap whole. Albemarle of discrimination e victim Cf. 2362, 45 L Ed 2d 95 S 422 US Ct Moody, erCo. v. (1975). *11 in a by hired the initially Teachers are for teach must generally jbationary capacity te- are awarded they before years /en consecutive period, are in the probationary teachers re. While renew their contracts. or not may i College held sought the Hart position for applicant xessful Thereafter, to having failed years. six it for position member, faculty tenure, being he ceased tain he was faculty he on the years six iring contracts. a series of annual through ¡ployed [257] that, compared Commissioner found to the successful teaching Hart’s was the more experience applicant, He also comprehensive responsible.” "complete, actively that Hart was seeking employment, found from including teaching positions, during period notes, it As the through 1976. that, hired, had she been cannot be "proved” for would would not have remained in the position or years the four and a half covered the back pay However, award. I consider evi- combined dence of the successful qualifications, appli- Hart’s service, and for length availability cant’s Hart’s work is sufficient to that she would support in the position length have remained for at least that time, and is therefore sufficient to Commissioner’s award of back pay.
A complicated question presented by more order portion directing of the Commissioner’s the Col- an assistant lege to offer Hart with four professorship years’ credit toward tenure. In School 1 v. District No. Nilsen, supra, the Commissioner directed the employ- er to rehire certain probationary school district teachers who had been to improperly required resign and to im- give because of those teachers pregnancy, mediate tenured status. The Court Supreme stated: "* * * not, may [W]e believe the Commissioner in specific authorizing provisions, require
the absence of hire unneeded the District to teachers. The Commis- may require probationary sioner that those teachers resign forced to pregnancy who were because of be they recompensed thereby, for losses incurred but the ab- District cannot be forced to hire teachers The paragraph may [of order] sence of need. be however, amended, require give to District resign those who have been forced to because of preference openings they are pregnancy for which qualified.
"We also believe
Commissioner lacks the au-
thority
require
give
the District to
such teachers
tenure, although they
taught
immediate
have not
necessary
period, merely
probationary
because
*12
they
they
would have had tenure
this time had
resign.
been forced to
The District has not completed
evaluating
competency. Providing competent
their
important
teachers for children is as
in the scheme of
things
rights
as are the individual
of teachers to have
* * *”
tenure.
Although the situation differs from present re similarities are than greater the differences. single Vhile the "unneeded” hiring which Com- ússioner’s order entails requires a smaller number Nilsen, ositions than faculty was involved in size f College is far smaller than the entire obviously force of laching College School District No. 1. The lould not be to offer or consider Hart for a compelled osition on the art until such time faculty position as ir which she qualified is is available.
I would also conclude that the should not College be at such time as a to and impelled, position offered Hart, ccepted by give years’ to her four advancement Although College iward tenure. would have three sars from the time of to consider her hiring qualifica- tenure, for a longer period ons is considered neces- iry by College According- for a evaluation. proper , College should involuntarily required not be ve Hart different level of credit toward tenure starting faculty om accorded other members in imparable positions.
I would remand the matter to the Commissioner of ibor for issuance of a new order which deletes (3), present paragraph or amends paragraph require only give preferential any may consideration arise for openings qualified, require- which she is and which deletes In all given ment that she be credit toward tenure. *13 other I would affirm the order. respects,
BUTTLER, J., concurring. I concur majority opinion with the that there is not substantial evidence in the whole record to the finding college Commissioner’s the discriminated against Ms. Hart on the of her sex. I also agree basis evidence, by the record substantial the supports, Commissioner’s the retaliated college 659.030(1)(d) against Ms. Hart of violation ORS because she filed a discrimination claim with the disclaim, however, Bureau of Labor. I the majority’s of, on, college’s consideration and decision the claim of denial of due process based on the fact that the Assist General, ant Attorney college’s adversary who was in the contested case hearing, participated with the Commissioner in the preparation of the Commission findings er’s and order after the college objected to the Referee’s I see no proposed order. reason to decide that question, seriously doubt the record here Rather, permits a decision on it. if the is to be question decided, we should master appoint special pursuant 183.482(7).1 to ORS respect
With to the Commissioner’s conclusion that the college discriminated Ms. Hart on account sex, of her some elaboration is in order. Nowhere does find of final ranking Commissioner by five candidates was motivated the sex of the appli- 183.482(7) provides: ORS record, "Review of contested case shall be confined to the judgment agency any court shall not substitute its for that of the allegations as to irregularities disputed issue of fact. In the case of procedure agency which, proved, before the not shown in the record if remand, may Appeals would warrant or reversal Court refer allegations appointed by to a Master the court to take evidence and findings upon make of fact them.” nt, by or that the initial search procedure for the applicant opening mmittee was to select an by applicant. proce- motivated the sex of one, may good re not have been the best or even a e, impact but unless it has a on women disparate may ither the Commissioner nor this court hold that e procedure was unlawful. did find that the committee
nked the so to arrive at an order in applicants as lich each would be interviewed.2 He further found Paul, candidate, at the first ranked Professor was ;erviewed first. While the committee members were Paul, he eliminated cy impressed Professor ;er a discussion with the dean of the art department, Brown, nfessor ' who view that Profes- expressed job Paul should not be offered the because he requirement ked a Master of Fine Arts This degree. Pawula, so eliminated Professor who would have an interviewed second. The third candidate on the Barnes, list was followed Orr and Hart. nposite *14 established, Under procedure initially the as However, mes would have been interviewed next. Brown, an while on visiting University Stanford matter, Orr, ither had met with impressed was n and the committee Orr suggested interview so; it.3 Not the committee did the surprisingly, 2The dissent states: "* * * College’sexplanation proposition the Also central to the was graphic teaching skills rather than communicative and skills were selection, principal process the criteria of and that the interview was applicants’ indispensable therefore not to an evaluation of the com- parative qualifications.” important; college did interview not it not contend that the was only adopted applicants procedure
ended iterviewed before a decision was that under the not all would made, undisputed and the evidence is respect. procedure the in this was followed 3 Thedissent states: "* * * composite rearranged to suit the The names on the list were College íeeds of the moment and the desires of the dean of the and the
lepartment example, was moved from fourth to chairman. For Orr ahead found that Orr was interviewed to the the acceded because Committee
of Barnes request, any Orr not of sexual bias. Dean’s because job, rejected. Had he the but the offer was was offered process accepted, Based would have ended there. upon Barnes, Com- ahead of the interview of Orr "aban- found that Search Committee missioner ranking,”4 of did find that their order but he not doned was to interview ahead of Barnes decision Orr sex, or that or motivated considerations of tainted any byway preference Dean Brown was motivated applicant. a male over female of rejected the Orr col- Barnes was interviewed after accepted lege’s job it. offer, It is was offered the and stage proceedings the Com- not this until missioner finds that there was discrimination finding of her He on Hart on account sex. bases qualified his determination that Hart was at least as Barnes, so, inter- as if not more and would have been if she not viewed next had been female. ranking however, the
If, initial candidates procedure unlawfully tainted, I initial was not absolutely or can see no basis for conclusion process discriminatory became when ranking applicants. list reduced to the two was final tripa on the list to enable the dean to interview him while on second why, geographical offers no reason if the brief California. changing position
proximity justified between the dean and his on Orr him, interviewing proximity with the the list Hart’s continuous treating similarly.” compelling was a less reason her interviewers findings. respect, due instance in which an those distort the record and the With all statements only composite applicant up was on the list moved incident, and that was done Dean Brown to was the Orr "to enable” It was done had to Orr while dean interview Orr. Brown talked after suggested visiting on his the dean Stanford another matter. On return *15 impressive candidate. interview Orr next because he was an committee 4 findings” was dissent states "the thrust of the Commissioner’s inception. putative procedures search from the that "the were sham” finding. that the committee There is no such The Commissioner did find ranking, only its order of but the found abandoned instance relating to Orr. only sup- I conclude that not does the evidence not findings, >rt the Commissioner’s but that the find- gs respect do not his conclusions with 659.030(1)(a). hiring. scrimination in ORS proposed referee, order,
One further note: the
in his
findings
respect
credibility
any
ade no
to the
Commissioner,
however,
witnesses. The
in order
findings
required
reach some of the
he made was
nclude
Shores,
that Professor
chairman of the
Although
Committee,
arch
was not credible.
we
ually
weight
credibility findings
attach
to the
normally
finder,
3t
we do so because the fact finder
testimony
3s and hears the witnesses
at
time the
given.
case,
however,
this
the Commissioner
witnesses,
1 not see and hear the
and is
no better
credibility
dtion to evaluate their
than we are. See
(1957);
472,
211 Or
Hunt,
Omlieet
With the I concur in the majority. :ision of the the referee. notes
Notes
[255] er, thus, no is in better we evalu- position than are to credibility. ate If the analysis conclusion be made is from that we credibility make different and evaluation thus different findings, simple answer is we review for substantial evidence while the Commission- must er review the record make findings. discrete duty This on the implies part of the as Commissioner finder fact to evaluate the witnesses’ statements accept reject or them in varying degrees. if hand, On the other conclusion is that cannot make credibility findings be- cause he has observed the witnesses testifying, (more simple answer credibility properly weight) is determinable from a number of factors