United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
MICHAEL W. MOSMAN Chief United States District Judge.
George Fox University (“George Fox”) filed a
Motion for Summary Judgment , arguing that it is entitled
to summary judgment claims made by Plaintiff Darlene Hill. I
held oral argument on February 6, 2017. At the hearing, I
GRANTED summary judgment in favor of George Fox on Ms.
Hill's claims for negligence, breach of good faith and
fair dealing, and violation of the Americans with
Disabilities Act. I also asked the parties to provide
additional briefing on several questions related to Ms.
Hill's remaining two claims for violation of Section 504
of the Rehabilitation Act and breach of contract. This
opinion addresses those remaining two claims, and for the
reasons stated below, George Fox's Motion for Summary
Judgment  is GRANTED in part and DENIED in part.
Ms. Hill was sixteen, she was in a car accident and suffered
a traumatic brain injury, leaving her with some cognitive
impairments. Despite these impairments, Ms. Hill has
endeavored to complete a graduate education. In September
2012, she applied to George Fox's graduate program in
Marriage, Couple, and Family Counseling, and she began taking
courses in the Spring 2013 term. Before classes began, Ms.
Hill claims that George Fox said it would grant her
accommodations for her disabilities, including allowing her
to record lectures, receiving copies of overhead and lecture
notes, receiving help with notetaking, using a computer for
exams, receiving extra time for tests, and taking tests in a
quiet location. But Ms. Hill claims she was never actually
provided any of the accommodations by any professor at George
April 2013, Ms. Hill inquired about transferring into George
Fox's psychology program. Although the timing is unclear
from the record, Ms. Hill was ultimately accepted into the
program. However, before and after entering the program, a
series of events transpired that Ms. Hill argues show she was
being forced out of the program because of her disability.
She was required, for example, to take an ad hoc assessment
of her reading, speech/fluency, and written expression, even
though other students were not given a similar assessment.
She also claims the program director contacted other faculty
members about her residual memory issues, and asked their
opinions about her ability to complete a graduate program and
function as a professional. In addition, the program director
asked for a Student Progress Review on Ms. Hill, which she
asserts was not required for other students.
several meetings with faculty and after talking with the Dean
of Learning Support Services, the program director met with
Ms. Hill and suggested that he did not want her to invest
time and financial resources in a program that might not work
out for her. She claims he indicated that she would not be
able to complete an internship and, therefore, would not be
able to graduate from the program. As a result, Ms. Hill left
judgment is proper “if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). The initial burden for a motion for summary judgment
is on the moving party to identify the absence of a genuine
issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). Once that burden is satisfied, the
burden shifts to the non-moving party to demonstrate, through
the production of evidence listed in Fed.R.Civ.P. 56(c)(1),
that there remains a “genuine issue for trial.”
Celotex, 477 U.S. at 324. The non-moving party may
not rely upon the pleading allegations. Brinson v. Linda
Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995)
(citing Fed.R.Civ.P. 56(e)). All reasonable doubts and
inferences to be drawn from the facts are to be viewed in the
light most favorable to the non-moving party. Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986).
Fox argues it is entitled to summary judgment on Ms.
Hill's claims for violation of Section 504 of the
Rehabilitation Act and breach of contract. For the reasons
stated below, I DENY summary judgment on both claims, but I
limit the scope of each claim.
Section 504 of the Rehabilitation Act
Hill's second claim alleges George Fox violated Section
504 of the Rehabilitation Act when it deliberately refused to
provide her with accommodations. As a result, she claims she
suffered emotional distress, embarrassment, humiliation,
anxiety, stress, and fear. In addition, she suffered the loss
of her graduate education.
504 of the Rehabilitation Act prohibits discrimination
against disabled individuals who participate in federally
funded programs and activities. 29 U.S.C. § 794. To
prevail on a Section 504 claim and receive compensatory
damages, a plaintiff must prove:
(1) she is disabled under the Act;
(2) she is otherwise qualified to remain in the program with
or without accommodation;
(3) she was dismissed from the program solely because of her
(4) the program receives federal funding; and
(5) the program intentionally discriminated against her or
acted with ...