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FILED: December 15, 2010

IN THE COURT OF APPEALS OF THE STATE OF OREGON

ALICE M. CHRISTIANSON,

Plaintiff-Appellant,

v.

STATE OF OREGON
and PAT LARSON,

Defendants-Respondents.

Lane County Circuit Court
160717587
A141686

Karsten H. Rasmussen, Judge.

Argued and submitted on June 10, 2010.

Stephen L. Brischetto argued the cause for appellant. With him on the briefs were Matthew Ellis and Kell Alterman & Runstein LLP.

Tiffany Keast, Assistant Attorney General, argued the cause for respondents. With her on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.

Before Schuman, Presiding Judge, and Wollheim, Judge, and Rosenblum, Judge.

SCHUMAN, P. J.

Affirmed.

SCHUMAN, P. J.

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 appeal. 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 of 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 worked 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 plaintiff's retirement. Larson was aware that plaintiff and Larson's husband had had a personal relationship at one point before Larson's marriage.

Although plaintiff's 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 committee, 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 the 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 reported that she could not understand "what plaintiff could possibly be thinking * * * [in] applying for a full-time job at this time in her life." When asked to explain the discrepancy between her negative reference and the positive 2003 performance evaluation, Larson later testified that her negative remarks were overstated and spontaneous. She also explained that the reference to "this time in [plaintiff's] life" referred not to plaintiff's age but to the fact that plaintiff had earlier told Larson about plans to start a new business.

The hiring committee, of which Larson was not 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 that 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 plaintiff's age and that the committee did not consider plaintiff's age in deciding not to hire her. DHS ultimately filled nine openings. Eight of the selected applicants were under 40. Shortly after rejecting plaintiff's application 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 concerns. 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(1)(a), and allows a person claiming to be aggrieved by a violation to file a civil action against the employer, ORS 659A.885(1)(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, 181 Or App 409, 425-26, 45 P3d 998 (2002). Here, after an eight-day trial, the trial court sitting as factfinder ruled that plaintiff did not carry her burden, principally because she did not prove that the decision-makers based their decision not to hire her on age. In an ordinary civil case, we would be bound by that finding because, as even plaintiff agrees, there is some evidence to support it. Or Const, Art VII (Amended),