A.L.P. Inc. v. Bureau of Labor & Industries

984 P.2d 883, 161 Or. App. 417, 1999 Ore. App. LEXIS 1242
CourtCourt of Appeals of Oregon
DecidedJuly 7, 1999
Docket05-96; CA A96583
StatusPublished
Cited by4 cases

This text of 984 P.2d 883 (A.L.P. Inc. v. Bureau of Labor & Industries) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
A.L.P. Inc. v. Bureau of Labor & Industries, 984 P.2d 883, 161 Or. App. 417, 1999 Ore. App. LEXIS 1242 (Or. Ct. App. 1999).

Opinion

LANDAU, P. J.

Petitioners seek judicial review of a final order of the Commissioner of the Bureau of Labor and Industries (BOLI) requiring them to pay damages for discriminating against an employee on the basis of the employee’s sex. They contend that the Commissioner’s order should be reversed because (1) it contains findings that were not supported by substantial evidence; (2) it erroneously concludes that nonsexual physical abuse is actionable discrimination on the basis of sex; and (3) the award of damages unlawfully seeks to penalize petitioners rather than compensate the complaining employee for harms actually suffered. We affirm.

We take the facts from the findings contained in the Commissioner’s order. Petitioner A.L.P., Incorporated (A.L.P.), owns the Red-Eye Hut, Inc., a retail smoke shop and tobacco store that also sells “adult toys and gifts.” Petitioner Pieper is the owner and president of A.L.P., Inc. Theresa Getman worked at the Red-Eye Hut. She was the only employee and worked directly under the supervision of Pieper. When she began work, she did not know that the store sold sexually oriented items. In fact, on her first day, Getman told a customer that the store did not sell “adult” items and was surprised when Pieper corrected her and showed her where the items were shelved.

Pieper never called Getman by name. Instead he referred to her as “dumb blond,” “dumb fucking blond bitch,” and “dumb broad.” He also frequently commented to her on the appearance of female customers, with remarks such as ‘look at the tits on her,” and ‘look at the ass on her.” Pieper also directed a number of remarks at Getman. On one occasion, for example, while unpacking a shipment of sexually oriented items, Pieper placed an artificial plastic penis on the counter and told Getman that her husband had just been replaced. On another occasion, Pieper told Getman that she “needed to start getting laid every morning before coming into work, because it was a proven fact that it put people in a good mood, including judges.” On still another occasion, when Getman wanted to purchase some diet pills sold at the store, Pieper told her that she did not need diet pills, but rather needed to have more sex with her husband.

[420]*420Pieper threatened Getman. When annoyed with her, he frequently said that he was going to “bitch slap” her. On several occasions, he made good on his threats, slapping Getman on the top of her head and across her face. When she complained, he told her to stop whining and said that she was “a real stupid fucking dweeb.”

Throughout the duration of the employment, Getman was physically ill. She always had a stomach ache and found herself unable to sleep because of the stress. Getman reported these incidents to her husband and to friends. Her friends told her to quit, but she did not, because she needed the money. Eventually, she reported them to an attorney, as well.

Getman filed a complaint with BOLI for unlawful employment practices. She alleged that she was the victim of discrimination in her employment based on her sex, in violation of ORS 659.030(1). The matter was tried before an administrative law judge, who issued a proposed order. Petitioners filed exceptions with the Commissioner. The Commissioner rejected petitioners’ exceptions and issued the final order. That final order contained, among other things, findings and conclusions to the effect that Getman was credible, that Pieper was not, and that Pieper engaged in conduct that created an intimidating, hostile, and offensive working environment based on Getman’s sex, in violation of ORS 659.030(1). The order additionally found that Getman suffered humiliation and mental anguish as a result of Pieper’s conduct and awarded her $20,000 damages.

Petitioners first assign error to the Commissioner’s findings that Pieper engaged in conduct that created an intimidating, hostile, and offensive working environment. According to petitioners, the Commissioner erred in believing Getman’s testimony without requiring corroboration from other witnesses and without resolving what they characterize as “telling inconsistencies” in Getman’s testimony.

We review the Commissioner’s findings for substantial evidence. ORS 183.482(8)(c). “Substantial evidence” exists to support a finding of fact “when the record, viewed as a whole, would permit a reasonable person to make that finding.” Id. Although we evaluate all the evidence in the record [421]*421in making that determination, we may not reverse merely because the evidence in the record could have supported a different result. Garcia v. Boise Cascade Corp., 309 Or 292, 295, 787 P2d 884 (1990).

We have carefully reviewed the record as a whole and conclude that there is substantial evidence to support the Commissioner’s findings. Petitioners cite no authority— and we are aware of none — that requires independent corroboration of a complaining witness to establish an unlawful employment practice claim. Their arguments boil down to the assertion that the Commissioner should have believed Pieper and disbelieved Getman. Under the applicable standard of review, however, that is not our function. Our review is limited to determining whether the Commissioner reasonably could have evaluated the record, including any alleged inconsistencies in a witness’s testimony, as he did.

Petitioners next assign error to the Commissioner’s “holding” that Pieper engaged in unwelcome verbal and physical conduct of a sexual nature, directed at Getman because of her sex. According to petitioners, the physical conduct-hitting Getman — was not “sexual” and therefore cannot be actionable under ORS 659.030(1). We review that assignment as a question of law. Fred Meyer, Inc. v. BOLI, 152 Or App 302, 307-08, 954 P2d 804 (1998).

ORS 659.030 provides, in part:

“(1) [I]t is an unlawful employment practice:
«if: ‡ ‡ ‡ ‡
“(b) For an employer, because of an individual’s * * * sex * * * to discriminate against such individual in compensation or in terms, conditions or privileges of employment.”

The statute does not require that the unlawful employment practice be “sexual” in nature to be actionable. It requires only that the practice have occurred “because of’ the employee’s sex.

Petitioners acknowledge that, but argue that, under BOLI’s administrative rule, sexual misconduct is required. OAR 839-007-0550 provides that “[u]nwelcome sexual [422]*422advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature” may constitute sexual harassment in violation of ORS 659.030(l)(b). By its terms, however, it is not an exclusive list of what constitutes discrimination on the basis of sex.

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Bluebook (online)
984 P.2d 883, 161 Or. App. 417, 1999 Ore. App. LEXIS 1242, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alp-inc-v-bureau-of-labor-industries-orctapp-1999.