concurring.
I agree with the lead opinion’s holding, including its conclusion that there are genuine and disputed questions of material fact that preclude summary judgment against plaintiff on her claim for retaliatory discrimination. However, I do not agree with the lead opinion’s analysis of the “mixed motive” doctrine and of how that doctrine applies to this and other employment discrimination cases arising under ORS chapter 659.
In Vaughn v. Pacific Northwest Bell Telephone, 289 Or 73, 91, 611 P2d 281 (1980), the Oregon Supreme Court adopted a variation of the federal mixed motive doctrine for application in discrimination actions under the Oregon statutes. It may be, as the lead opinion suggests, that the doctrine is somewhat discordant in the context of Oregon discrimination law as it has evolved since Vaughn was decided. It also appears to be the case that federal law on the subject has changed considerably since the decision in Vaughn, while Oregon mixed motive law has remained more or less static. Nevertheless, Vaughn remains a controlling interpretation of an Oregon statute by the Oregon Supreme Court.
In my view, neither the lead opinion nor the dissent correctly apply Vaughn or the mixed motive doctrine as it has been formulated in that and the other pertinent Oregon cases. The lead opinion correctly distinguishes between “pretext” cases, where the issue is simply whether the employer acted out of a discriminatory motive, and mixed motive cases, where the employer had both lawful and unlawful motives and the issue is whether the discharge or other employment action would have been taken but for the unlawful one. 167 Or App at 434-35. The lead opinion is also correct in stating that the Oregon courts have held that the “shifting burden” formulation of the federal case law is inapplicable in pretext-type actions under the state statute. The lead opinion concludes:
“Because the Supreme Court has rejected the shifting burden of production scheme for ‘pretext’ discrimination claims, we believe it would also reject the more onerous shifting burden of proof for ‘mixed motive’ claims.” 167 Or App at 434-35.
*442With all respect, I think that the lead opinion misses the point. The “shifting burden” rubric that has been adopted by the federal courts and rejected by the Oregon cases pertains only to the mechanics of proof of the plaintiffs case, and it applies only in the pretext case context. Those mechanics were explained in Lewis and Clark College v. Bureau of Labor, 43 Or App 245, 252, 602 P2d 1161 (1979), rev den 288 Or 667 (1980) (Richardson, J., dissenting):
“[The employer] concedes that [the female claimant] made a prima facie showing of discrimination. That means, in essence, that she proved she applied for the position, that she was qualified for the position, that she was not interviewed or hired, and that a male applicant was interviewed and hired. Those facts constitute a prima facie case under the United States Supreme Court’s decision in McDonnell Douglas Corp. v. Green, 411 US 792, 93 S Ct 1817, 36 L Ed 2d 668 (1973), and later decisions relating to burden and order of proof in discrimination cases under Title VII of the Civil Rights Act of 1964 (42 USC § 2000e et seq.). Under McDonnell Douglas, after the complainant makes such a prima facie showing, the burden shifts to the employer to ‘articulate some legitimate, nondiscriminatory reason’ for its action. 411 US at 802. If the employer articulates such a reason, the burden is on the complainant to prove that the employer’s purported reason is not the actual reason or is a pretext.”
Conversely, under the mixed motive doctrine, as presently formulated by the Oregon statutes and decisions, there is no question about the burden of proof — shifting or otherwise — that applies to the establishment of the plaintiffs case. Rather, the existence of the concurrent lawful motive is a “matter of defense,” Vaughn, 289 Or at 80, that, like any other affirmative defense, the defendant has the burden of proving. As the Supreme Court explained in Shaw v. Doyle Milling Co., 297 Or 251, 255-57, 683 P2d 82 (1984):
“Employer argues that under our decision in Vaughn v. Pacific Northwest Bell Telephone, supra, Shaw cannot prevail because he did not prove that he would not have been discharged ‘but for’ a discriminatory motive of his employer. In Vaughn we stated:
*443“ ‘If the worker is discharged for just cause, the employer can prove this * * * as a matter of defense in a suit pursuant to ORS 659.121.’
“289 Or at 80. We formulated the ‘just cause’ issue:
“ ‘The question then is what effect the employer’s evidence of just cause for discharge has on the court’s remedial authority in OR 659.121(1).’
“289 Or at 90. We did state that in cases of mixed motives for the discharge, i.e., where the discharge is motivated in part by poor work record or misconduct and in part by unlawful discrimination by the employer, the employee could not prevail unless the court
“ ‘finds that the employee would not have been discharged but for the unlawful discriminatory motive of the employer.’
“289 Or at 92. In the case at bar the invocation of that language from Vaughn is of no avail.
* * * *
“In the instant case, Employer did not establish any just cause for discharge; therefore, Shaw did not have to show that he would have been reinstated ‘but for’ Employer’s unlawful employment practice.”
See also Callan v. Confed. of Oreg. Sch. Adm., 79 Or App 73, 78, 717 P2d 1252 (1986) and authorities there cited; cf. Lane County Public Works Assn. v. Lane County, 118 Or App 46, 52, 846 P2d 414 (1993) (stating analogous principle as to “mixed motive” doctrine in context of labor law case).
In my opinion, when the mixed motive doctrine in the Oregon cases is properly understood and applied, it does not, as the lead opinion indicates, place a “more onerous” burden of proof on plaintiffs than the one that applies in simple “pretext” cases. 167 Or App at 434. In both instances, the plaintiff employee has the ultimate burden of establishing that the employer acted with an unlawful motive that contributed causally to the discharge or other employment action. It may be that, in mixed motive cases, the “but for” test of causation is higher than the causation test in straight “pretext” cases. However, before that heightened test becomes applicable, the employer must prove not only that *444there was an alternative reason for the discharge than the discriminatory motive that the plaintiff must prove in any event, but that the alternative reason amounts to objective “just cause.” Ironically, notwithstanding its concern over placing a more onerous burden on the plaintiff, the end result of the lead opinion’s analysis is to apply the “but for” causation test to the plaintiff, without placing any intervening burden on the defendant to establish affirmatively that it was motivated by anything other than discrimination.
Under any conceivable standard of who must prove what, however, I agree with the lead opinion that the evidence in this summary judgment proceeding was such that a trier of fact could infer that defendant’s improper motive was the reason for plaintiffs discharge.1
It is important to emphasize that federal and state law on the mixed motive doctrine have never been identical — except possibly for the fleeting moment that Vaughn was decided. This opinion is based on my understanding that Vaughn and Shaw continue to embody Oregon law, despite the fact that the federal cases have passed them from a variety of directions since their decision.