Phillips v. Department of Revenue

544 P.2d 196, 23 Or. App. 748, 1975 Ore. App. LEXIS 1095, 11 Empl. Prac. Dec. (CCH) 10,737, 12 Fair Empl. Prac. Cas. (BNA) 447

Opinion

THORNTON, J.

Petitioner appeals from a decision of the Public Employe Relations Board (PERB)

① which ruled that she was not entitled to promotion from Clerk 3 to Revenue Agent 2.②

Petitioner has been employed by respondent Department of Revenue since 1955. In March of 1974 she requested respondent to reclassify her as a Revenue Agent 2, contending that she was doing the duties of that position and that she had been denied promotion because of her sex. At about the same time petitioner filed sex discrimination charges with the Oregon Bureau of Labor and the federal Equal Employment Opportunity Commission (EEOC).

The hearings examiner found for petitioner on both grounds but PERB reversed, finding that petitioner was not performing the duties of a Revenue Agent 2. PERB deferred consideration of the sex discrimination charge pending determination of that issue by either the Bureau of Labor or EEOC.

We must affirm PERB’s ruling that petitioner was not performing the duties of Revenue Agent 2 if that decision is supported by reliable, probative and substantial evidence. ORS 183.480(7) (d). Here we find such evidence. Personnel Analyst Betty Spelbrink of the Personnel Division testified that petitioner did not perform the duties of a revenue agent. Specifically she stated that petitioner did not make field collections, recommend compromises, analyze financial statements or make field investigations, all duties which revenue agents are required to perform.

We next consider petitioner’s claim that PEEB erred in not considering her sex discrimination charge. We have previously held that PEEB is a statutory body which can only decide matters the legislature has authorized it to determine. See, Petersburg Ed. Assn. v. Sch. Dist. 14, 23 Or App 482, 543 P2d 35 (1975); cf., Tupper v. Fairview Hospital, 22 Or App 523, 540 P2d 401 (1975).

Petitioner contends that OES 240.086(2) not only authorizes PEEB to consider her claim of sex discrimination hut requires it to do so. OES 240.086(2) provides that the hoard shall:

“Eeview any personnel action that is alleged hy an affected party * * * to he arbitrary or contrary to law or rule * * * and set aside such action if it finds these allegations to he correct. * * *” (Emphasis supplied.)

As we understand petitioner’s argument, she is contending that sex discrimination is “contrary to law” and that PEEB must therefore consider her claim.

The only Oregon statutory provision we find making sex discrimination in employment illegal is OES 659.030. That section makes sex discrimination in employment an “illegal employment practice” hut only so for the purposes of OES ch 659. Sex discrimination in employment is illegal hy virtue of federal law, however. 42 USCA § 2000e-2(a)(1).

PEEB is a state body set up to consider a limited group of issues arising out of employment grievances. The matters it may consider are specifically set out in OES ch 240 and ch 243. As we in effect held in Petersburg, “contrary to law” means contrary to any provision of law within the ambit of PEEB’s jurisdiction and authority.

The only antidiscrimination authority given PEEB is set out in OES 240.560. It concerns suspensions, reductions, demotions and dismissals, and does not refer to discrimination on account of sex. Petitioner’s action does not come within OES 240.560. We conclude that if the legislature had intended PEEB to have the authority to hear discrimination charges of this type, it would have specifically granted PEEB that authority, as it did to hear discrimination-related dismissals in OES 240.560.

Secondly, the legislature has specifically granted to another agency, the Bureau of Labor, authority over sex discrimination charges. OES ch 659 specifically deals with the enforcement of civil rights. It declares that discrimination on the basis of sex in employment is contrary to the public policy of the state, OES 659.020, and that such discrimination is an unlawful employment practice, OES 659.030. Additionally, OES ch 659 provides procedures for the filing of complaints with the Commissioner of Labor, OES 659.040, for the conciliation of disputes, OES 659.050, for an agency hearing, OES 659.060, and for judicial review of decisions made, OES 659.085.

We conclude that the legislature, by establishing a specific procedure by which the Bureau of Labor would hear discrimination charges of this type, intended that it perform that function exclusively.

Accordingly, PEEB was without jurisdiction to hear petitioner’s sex discrimination charge.

Affirmed.

The Public Employe Relations Board has been renamed the Employment Relations Board by the legislature. Oregon Laws 1975, ch 147, § 10 (amending ORS 240.060, effective July 1, 1975). Since it was PERB when petitioner filed her original complaint, we refer to it in that way.

Respondent reclassified petitioner to Clerk 4 after she she brought this action.