Patrick Featherstone v. Service Employees International Union Local 503

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.

Reversed and remanded.