# James v. Employment Division

> Court of Appeals of Oregon · February 10, 1975 · 20 Or. App. 309

URL: https://www.frixlaw.com/law-library/cases/9551586

## Case

- **Full name:** JAMES, Respondent, v. EMPLOYMENT DIVISION, Petitioner
- **Court:** Court of Appeals of Oregon
- **Decided:** February 10, 1975
- **Citations:** 20 Or. App. 309; 531 P.2d 710; 1975 Ore. App. LEXIS 1620
- **Precedential status:** Published
- **Opinion:** Dissent by Thornton
- **Judges:** Schwab, Foley, Thornton
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9551586

## Opinion text

THORNTON, J.,
dissenting.
I agree that the rule applicable here is as stated in the majority opinion, namely, that the Public Employe Relations Board (PERB) cannot overturn disciplinary action taken by a public employer (dismissal in this case) unless PERB can say that no reasonable employer would have dismissed petitioner on account of his conduct.
I cannot, however, agree with the conclusion of PERB and the majority that no reasonable state employer would have discharged this petitioner on the basis of the record in this case. On the contrary, I find that the record establishes a course of conduct by petitioner, a top-level executive, that no reasonable public agency head would countenance. Some of petitioner’s conduct is set out in the margin. ①
*316 To conclude as does PERB and the majority that no reasonable public employer would have discharged petitioner on the basis of this execrable conduct is too much for me to accept. I do not believe that the State Employment Division should be compelled to have petitioner anywhere in its agency, as PERB’s order requires.
I would reverse PERB and uphold the dismissal.
For example, both the hearing officer and PERB found:
“* * * [Petitioner], in communicating with and to staff members, used words, terms and expressions including: ‘bullshit’; ‘you’re a goddam nitpicker’; ‘doesn’t know shit from shinola’; ‘bastard’; ‘bitch’; ‘son-of-a-bitch’; ‘pissed-off’; ‘fricking’.
“* * * [Petitioner] stated that employes approaching retirement had to do as he told them out of fear of losing their jobs.
“* * * [Petitioner] told employes to ‘shut up’ in staff meetings, was often critical in presence of staff and public, and told and [sic] assistant manager in the presence of staff, ‘you don’t know shit from shinola.’
“* * * [Petitioner] made hand contact with employes, male and female. Some of these contacts consisted of patting female employes on the rump in the presence of others.
*316 “* * * * [Petitioner] on numerous occasions voiced opinions and inquired of the sex life and accommodations of female members of his staff.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9551586. Public record. Not legal advice.