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King v. Warner Pacific College

Court of Appeals of Oregon

February 21, 2019

Noel M. KING, Plaintiff-Appellant,
WARNER PACIFIC COLLEGE, an Oregon corporation, Defendant-Respondent.

          Argued and submitted May 23, 2018

          Multnomah County Circuit Court 15CV33480 John A. Wittmayer, Judge.

          Andrew Altschul argued the cause for appellant. Also on the briefs were Dana L. Sullivan and Buchanan Angeli Altschul & Sullivan LLP.

          Brenda K. Baumgart argued the cause for respondent. Also on the brief were Carolyn D. Walker, Dexter J. Pearce, and Stoel Rives LLP.

          Steven T. Collis, Colorado, and Holland & Hart LLP fled the brief amicus curiae for Christian Colleges and Universities.

          Before DeVore, Presiding Judge, and James, Judge, and Brewer, Senior Judge.

         Case Summary:

         Plaintiff appeals from a general judgment of dismissal entered after the trial court granted summary judgment to defendant on plain­tiff's religious discrimination claim under Oregon's antidiscrimination statute, ORS 659A.030. Plaintiff argues that the court erred in granting defendant's motion for summary judgment based on its defenses under ORS 659A.006(4) (religious preference exemption) and ORS 659A.030(1)(a) (bona fide occupational qualification exemption). Held: Defendant's decision to not hire plaintiff on the basis of religion was permissible under ORS 659A.006(4), which permits reli­gious organizations to prefer members of their own faith in employment within their own organizations. Accordingly, the trial court did not err.

         [296 Or.App. 156] Affirmed.

         [296 Or.App. 157] DeVORE, P. J.

         This case involves a Christian college that refused to hire a Jewish applicant for a new position as an adjunct psychology professor. The issue concerns the meaning of ORS 659A.006(4), Oregon's religious preference exemption.

         Plaintiff appeals from a general judgment of dis­missal entered after the trial court granted summary judgment to defendant on plaintiff's religious discrimina­tion claim under Oregon's antidiscrimination statute, ORS 659A.030. Plaintiff argues that the court erred in grant­ing defendant's motion for summary judgment based on its defenses under ORS 659A.006(4) (religious preference exemption) and ORS 659A.030(1)(a) (bona fide occupational qualification). Defendant contends that either one of those two alternative defenses, as well as a constitutional "minis­terial exception," permitted religious discrimination in this case.

         We conclude that defendant's decision was permissible under the religious preference exemption, ORS 659A.006(4). Without reaching the other defenses, we affirm.


         We begin by introducing defendant Warner Pacific College and plaintiff's application to teach there. Later, we provide detail about the college, the position, and the course, which relate to the religious preference exemption. Although the parties disagree about the application of the law, the material facts are undisputed.

         Warner Pacific College is a private Christian lib­eral arts college in Portland. The college describes itself as an "agency" of the Church of God in Anderson, Indiana. Founded in 1937 in Spokane, Washington, it was incorpo­rated as Pacific Bible College and operated to prepare church leaders during its early years. Later, the college relocated to Portland and changed its name to Warner Pacific College to honor one of the early founders of the church. Despite the name change and relocation, the college considers itself to have "always been a Church of God College."

         [296 Or.App. 158] At Warner Pacific, employees are provided with the college's statement of its Employment and Lifestyle Standards. The Standards statement declares, "Central to Warner Pacific's identity as a Christ-centered higher edu­cation institution is the policy of hiring persons whose per­sonal and professional lives reflect," among other things,

"1. A belief in the deity of and commitment to Jesus Christ and the Christian faith, as interpreted through the historic witness of Scripture and the continuing ministry of the Holy Spirit.
"2. The practice of following Christ through day-to­day personal lifestyle choices.
"3. A vitality of Christian experience maturing in insight and application and appreciative of differing view­points.
“* * * * “
"6. A capability, by temperament, preparation, and will, to support students as they confront the intellectual, social, physical, emotional, and spiritual challenges of their lives.
"7. A sensitivity to and support for the mission, core themes, vision, values, ethos and traditions of the Warner Pacific College community.
"8. A commitment to teaching and serving in harmony with the doctrines of the Bible as understood and generally held by the Church of God Reformation Movement."

         The Standards statement is accompanied by an "Employee Agreement," which provides, in part:

"Mission-based hiring is of critical importance to Warner Pacific College. From its inception, the Church of God has resisted condensing the Scriptures into a formal creed, instead emphasizing salvation as the entrance into the body of Christ; unity in diversity; and a call to holy living as God's people representing Christ in the world. Warner Pacific, rather than requiring subscription to an institu­tional doctrinal statement, asks each employee to affirm a personal faith in Jesus Christ by providing a statement articulating the ways in which faith informs the employ­ee's understanding of his or her vocation at Warner Pacific. Employees are expected to demonstrate and articulate a [296 Or.App. 159] vital Christian faith and to live in a manner consistent with a Christ-centered lifestyle as informed by the Scriptures of the New Testament."

         The Employment and Lifestyle Standards and the Employee Agreement were posted online in conjunction with an announcement of the opening of the position for which plaintiff applied. The posting added that, "[b]ecause Warner Pacific is a Christian liberal arts college, the college exer­cises its legal right to hire Christian employees to fulfill its mission and purpose."

         In April 2014, plaintiff applied online for a posi­tion at Warner Pacific College as an adjunct psychology professor. The online application asked for the applicant's "church fellowship or denomination affiliation," and plain­tiff responded, "I am of the Hebrew faith." The application asked the applicant to "[b]riefly describe your Statement of Christian Faith," and plaintiff responded, "My faith is important to me because of the guidelines it has provided regarding how to treat other human beings and the world in which we all reside."

         The application required each applicant to read Warner Pacific's Employment and Lifestyle Standards and submit essay responses to two questions:

"1. How does your personal faith reflect the principles stated in terms 1, 2, and 3 of the Employment Standards? * * *
"2. How does your personal philosophy of education and commitment to the synthesis of faith and learning reflect the principles stated in items 4, 5, 6, 7, and 8?

         Initially, plaintiff submitted his application without answer­ing those two questions, but he later supplemented his appli­cation with the answers. In those answers, he reaffirmed his Jewish faith and stated that the "compatibility between [his] life lessons and the teachings of Jesus Christ is unde­niable." He elaborated, "While I may not be able to cite many verses from Scripture, I believe that I have lived a life that is consistent with the teachings of both the Old Testament and the New Testament."

         [296 Or.App. 160] The college's hiring committee interviewed plaintiff and asked him to give a teaching demonstration. However, Warner Pacific's president, Dr. Andrea Cook, who is ulti­mately responsible for hiring decisions, rejected plaintiff's application. Plaintiff was notified that he was not selected because he is not a "Christ-follower." Rather than hire an applicant for the new position, Warner Pacific chose at that time to assign the duties, which the position would have per­formed, to current employees who were Christian.

         Plaintiff sued Warner Pacific, alleging that the col­lege's decision to refuse to hire him on the basis of his reli­gion constituted unlawful religious discrimination under ORS 659A.030 and ORS 659A.006. The parties filed cross-motions for summary judgment.

         Warner Pacific argued, for three reasons, that it was entitled to summary judgment despite plaintiff's claim of reli­gious discrimination claim. First, the college argued that the claim was barred by ORS 659A.006(4), which permitted it, as a Christian college, to "prefer" to hire Christians and pre­fer not to hire non-Christians. Second, the college contended that plaintiff's claim was barred by ORS 659A.030(1)(a), because Christianity was a "bona fide occupational qualifi­cation" for the position for which plaintiff applied. Third, the college argued that plaintiffs claim was barred by a "min­isterial exception," based on its right to the free exercise of religion, protected by the First Amendment to the United States Constitution and Article I, sections 2 and 3, of the Oregon Constitution.

         Plaintiff urged summary judgment in his favor. Primarily, plaintiff contended that Warner Pacific was not entitled to the exemption in ORS 659A.006(4), because the college did not "prefer" a particular Christian applicant over plaintiff. In plaintiff's formulation, when the statute uses the term "prefer," it "requires that a specific applicant be preferred over another" applicant. Plaintiff argued that Warner Pacific cannot reject a non-Christian applicant on the basis of religion if the college does not actually fill the position by hiring a Christian applicant at that time from among applicants in the same applicant pool.

         [296 Or.App. 161] Plaintiff appended a footnote in his summary judg­ment memorandum questioning whether Warner Pacific failed to satisfy an element of ORS 659A.006(4)(c) that requires that the "employment be closely connected with or related to" Warner Pacific's "primary purposes." In that foot­note, plaintiff stated:

"While Plaintiff also questions whether Defendant can establish that teaching psychology 'is closely connected with or related to the primary purposes' of [Warner Pacific], as required to establish entitlement to the exemption per ORS 659A.006(4)(c), the Court need not reach this issue due to [Warner Pacific's] failure to establish that it preferred a Christian candidate over Plaintiff."

         Plaintiff did not offer an argument or explanation for his doubt about the issue; and he did not respond to the college's evidence and arguments addressed to that issue.

         Plaintiff also challenged the college's other affir­mative defenses. Plaintiff argued that Christianity was not a bona fide occupational qualification for the adjunct psy­chology professor position under ORS 659A.030(1)(a); and he asserted that the state and federal constitutions did not grant a "ministerial exception" permitting discrimination on the basis of religion in this case.

         The trial court granted Warner Pacific's motion for summary judgment and denied plaintiff's cross-motion. The court concluded that ORS 659A.006(4) "protects Warner Pacific's decision not to hire plaintiff, a non-Christian, into the position for which he applied" and added that "Christianity is a bona fide occupational qualification within the meaning of ORS 659A.030(1)(a) for the position for which plaintiff applied." The court did not reach the constitutional arguments about a "ministerial exception."

         On appeal, plaintiff renews his primary argument that the religious preference defense in ORS 659A.006(4) is narrowly limited to "preferring" an existing applicant from the current application pool. Without further explanation, he asserts that the college failed to offer evidence that the adjunct psychology professor position is "closely connected with or related to the primary purposes" of Warner Pacific [296 Or.App. 162] College. Additionally, plaintiff urges two new arguments on appeal. He argues that ORS 659A.006(4)(a) requires that any preferred applicant must be of the same particular church as Warner Pacific, rather than simply be any Christian. And, due to a past hiring decision, plaintiff argues that there is a question of fact whether it is truly the "opinion of [Warner Pacific]" that "the preference will best serve the purposes of [Warner Pacific]" under ORS 659A.006(4)(b), because a professor who attended a Jewish synagogue was on its faculty.

         The parties agree that Warner Pacific discrimi­nated against plaintiff on the basis of his religion, but they dispute whether that discrimination was permitted under ORS 659A.006(4) (religious preference), ORS 659A.030(1) (bona fide occupational qualification) (BFOQ), or the state or federal constitutions ("ministerial exception"). The par­ties recognize that any one of those alternative defenses, if established, would defeat plaintiff's claim of religious dis­crimination under ORS 659A.030(1)(a).


         A. Statutory Scheme

         Plaintiff's argument about the terms of the prefer­ence exemption presents a question of statutory interpreta­tion about what the legislature intended in ORS 659A.006(4) when it used the terms to "prefer an employee, or an appliĀ­cant for employment * * * over another." When construing a statute, we consider its text, context, and legislative ...

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