Date: 02-01-2017

Case Style: Patrick Featherstone v. Service Employees International Union Local 503

Case Number: A160164

Judge: Sercombe

Court: Oregon Court of Appeals on appeal from the Circuit Court, Marion County

Plaintiff's Attorney: R. Grant Cook and Kevin T. Lafky

Defendant's Attorney: James S. Coon

Description: Plaintiff James Parker (Parker) appeals the trial
court’s limited judgment, asserting that the court erred in
dismissing his employment discrimination claim against
Service Employees International Union Local 503 (SEIU).
Parker asserts that the trial court erred in concluding on
the record before it that he could not establish that he was
an employee of SEIU and, therefore, granting SEIU’s motion
for summary judgment. We agree and, accordingly, reverse
and remand.
Parker and two other parties brought an action
against SEIU that asserted a number of claims. One of
Parker’s claims was for employment discrimination under
ORS 659A.030 based on his sex and age.1 That claim was
based on a letter from SEIU “insist[ing]” that he discontinue
representing SEIU at certain orientations and training
classes. In response, SEIU filed a motion for summary
judgment, in which it only asserted that Parker was not an
employee of SEIU and, therefore, was not entitled to bring a
claim for employment discrimination. Parker responded that
genuine issues of material fact existed regarding whether
he was an employee of SEIU. Specifically, he averred that
he was paid by SEIU to serve on its bargaining team, and
pointed to documents in the record that supported his contention
that he was SEIU’s employee.
The trial court agreed with SEIU, concluding that
there were no genuine issues of material fact and that, as a
matter of law, Parker was not employed by SEIU and that,
therefore, SEIU was entitled to summary judgment. See
ORCP 47 C (court shall grant motion for summary judgment
if “the pleadings, depositions, affidavits, declarations
and admissions show that there is no genuine issue as to
1 Pursuant to ORS 659A.030(1)(b), it is an unlawful employment practice for
“an employer, because of an individual’s race, color, religion, sex, sexual orientation,
national origin, marital status or age if the individual is 18 years
of age or older, or because of the race, color, religion, sex, sexual orientation,
national origin, marital status or age of any other person with whom the
individual associates, or because of an individual’s juvenile record that has
been expunged pursuant to ORS 419A.260 and 419A.262, to discriminate
against the individual in compensation or in terms, conditions or privileges
of employment.”
Cite as 283 Or App 552 (2017) 555
any material fact and that the moving party is entitled to
prevail as a matter of law”); id. (“No genuine issue as to
a material fact exists if, based upon the record before the
court viewed in a manner most favorable to the adverse
party, no objectively reasonable juror could return a verdict
for the adverse party on the matter that is the subject of the
motion for summary judgment.”).
On appeal, Parker asserts that the summary judgment
record includes evidence that he was an employee of
SEIU and, at a minimum, there are genuine issues of material
fact as to that issue that preclude summary judgment.
SEIU, for its part, does not maintain, as it did in its summary
judgment motion and arguments to the trial court,
that Parker was not its employee. Instead, SEIU assumes
that Parker was an employee as a result of his service on
the union’s “bargaining team,” but contends that we should
affirm the trial court’s grant of summary judgment on a
basis not raised before the trial court. According to SEIU,
notwithstanding his employment as a bargaining team
member, Parker’s right to “volunteer his time to provide
orientations” and training classes was not a “term, condition
or privilege” of that employment for purposes of ORS
659A.030(1)(b), and, therefore, he “suffered no actionable
discrimination when * * * union officers insisted that he
not provide” those services. SEIU acknowledges that no
Oregon appellate court has addressed the issues raised by
its alternate basis for affirmance, and that cases from other
jurisdictions have not addressed circumstances like those
in this case, but asserts that those cases “offer some guidance.”
Parker responds that we should not affirm the trial
court’s ruling on that alternative basis, asserting, in part,
that had that issue been raised before the trial court, he
would have developed different arguments and submitted
different evidence, thereby creating a different record. See
Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or
634, 20 P3d 180 (2001).
We agree with Parker that the trial court erred in
granting summary judgment based on the conclusion that
Parker was not an employee of SEIU. Given the evidence
in the summary judgment record pertaining to Parker’s
compensated service as a member of SEIU’s bargaining
556 Featherstone v. Capoferri
team, SEIU’s anticipatory assumption in that regard is well
founded.
We further decline SEIU’s invitation to affirm on a
novel alternative basis for affirmance. We observe that we
may affirm a trial court on a “right for the wrong reason”
basis when certain conditions are met:
“The first condition is that, if the question presented
is not purely one of law, then the evidentiary record must
be sufficient to support the proffered alternative basis for
affirmance. That requires: (1) that the facts of record be
sufficient to support the proffered alternative basis for
affirmance; (2) that the trial court’s ruling be consistent
with the view of the evidence under the alternative basis
for affirmance; and (3) that the record materially be the
same one that would have been developed had the prevailing
party raised the alternative basis for affirmance below.
In other words, even if the record contains evidence sufficient
to support an alternative basis for affirmance, if the
losing party might have created a different record below
had the prevailing party raised that issue, and that record
could affect the disposition of the issue, then we will not
consider the alternative basis for affirmance. The second
condition is that the decision of the lower court must be
correct for a reason other than that upon which the lower
court relied. Third, and finally, the reasons for the lower
court’s decision must be either (a) erroneous or (b) in the
reviewing court’s estimation, unnecessary in light of the
alternative basis for affirmance.”
Id. at 659-60 (emphasis in original). However, “our consideration
of an alternative basis for affirmance is a matter
of prudential discretion and not compulsion.” Biggerstaff
v. Board of County Commissioners, 240 Or App 46, 56, 245
P3d 688 (2010) (declining to exercise discretion to address
alternative basis for affirmance, noting that, although failure
to raise an issue before the trial court “is not preclusive
of our consideration where proffered alternative bases
for affirmance are purely legal and do not implicate factual
determinations, that posture can militate against our consideration
in the first instance”); see also State v. Kolb, 251
Or App 303, 311-12, 283 P3d 423 (2012) (emphasizing that
appellate court’s consideration of alternative basis for affirmance
is a matter of discretion and declining to address
Cite as 283 Or App 552 (2017) 557
belated proffered alternative basis because, regardless of
whether the record might have been different had that contention
been raised before the trial court, “the fact remains
that to address [the] contention meaningfully would require
us, in the first instance—without legal record development
or any real assistance from the parties—to decide difficult,
nuanced, and systematically significant issues”).
Here, we agree with Parker that we should not
address the alternative basis for affirmance advanced
by SEIU. As noted, SEIU’s summary judgment motion
was based solely on its contention that Parker was not an
employee, and did not raise the issue of whether his ability
to volunteer to conduct the orientations and training classes
at issue was a term, condition, or privilege of employment.
Regardless of whether development of a different factual
record would affect the disposition of that issue, to address
that contention on appeal would require us, in the first
instance, without development of the record or legal arguments
below, to decide a significant issue of first impression.
We decline to exercise our discretion to do that.

Outcome: Reversed and remanded.

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Defendant's Experts:

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