Appeals court backs woman in sex-bias case

Woman fired by Grants Pass company when she was pregnant has rights to damages, panel says

SALEM — The Oregon Court of Appeals has upheld a sex-discrimination judgment, including the right to damages, against a Grants Pass cabinetmaker that fired a pregnant woman back in 2005.

A three-judge panel Wednesday turned aside a challenge by MasterBrand Cabinets Inc., a national business with an operation in Grants Pass

Katie Kemp became a temporary employee in late 2003 and was hired permanently in May 2004.

But she was fired in March 2005 after a series of incidents recounted in the Court of Appeals decision written by Judge Darleen Ortega.

Kemp's job involved stocking, pulling and transporting cabinet doors from the warehouse to the preparation area.

When Kemp asked to be reassigned to other duties toward the end of her tenure, her female supervisor was quoted as saying she "hoped nobody else goes and gets pregnant." A male co-worker assisting Linda Durrett, the supervisor, said Kemp "wouldn't be there much longer" and he "didn't want to deliver no baby on the warehouse floor."

After Kemp complained to another shift supervisor, the business's human resources representative said the complaint was inappropriate and that if she used the term "harassment," Kemp "would be the one in trouble."

Kemp sued and won in Josephine County Circuit Court, where Judge Thomas Hull found that MasterBrand violated state laws against sex discrimination and retaliatory discharge.

A jury found separately that Kemp had a right to a common-law claim against wrongful discharge, entitling her to damages.

MasterBrand appealed the June 2011 decision.

But Ortega, writing for herself and Judges Rick Haselton and David Brewer, rejected all three points in a case argued about 18 months ago. Brewer became a Supreme Court justice in January.

MasterBrand, through its lawyer, argued that adequate remedies existed for Kemp under state and federal antidiscrimination laws and that the trial judge should have dismissed Kemp's common-law claim for wrongful discharge.

But Ortega said the state remedies available to Kemp at the time of her 2005 dismissal — limited to reinstatement, back pay, court costs and attorney fees — were inadequate. State law was changed starting in 2008 to allow for compensatory and punitive damages against violators.

Ortega also wrote that a 1991 federal law does not preclude additional remedies under common law.

MasterBrand also argued that the trial judge should not have awarded attorney fees to Kemp for the common-law claim. The company also argued that the judge should have excluded evidence that the male co-worker named in the lawsuit was dismissed almost two years later for making offensive statements to and having "inappropriate physical contact" with other female employees, although Kemp was not one of them.

Ortega rejected both points, particularly the introduction of evidence involving the male employee, Clarence Beck. Ortega said the case did not turn on Beck, the company did not call him as a witness, and that introduction of the evidence was "harmless error."

"MasterBrand has not adequately explained nor does our review of the record suggest how the use of the challenged evidence at trial created the kind of prejudice that might have affected the verdict," Ortega wrote.

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