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Larry v. State

United States District Court, D. Oregon, Portland Division

August 7, 2017

ROBERT J. LARRY, Plaintiff,
STATE OF OREGON, by and through OREGON DEPARTMENT OF HUMAN SERVICES, by and through OREGON VOCATIONAL REHABILITATION SERVICES; TRINA LEE, Director of Oregon Vocational Rehabilitation Services; ROBERT COSTELLO, DONNA DUFF, TRACY SCHAFFER, SARAH SANDRUDDIN, MARK MASTHOFF, JOHN DOES 1-10, all in their individual and official capacities; DR. ROBINANN COGBURN, and DR. LUAHNA UDE, Contractors of Oregon Vocational Rehabilitation Services, in their professional and individual capacities, Defendants.


          JOHN V. ACOSTA United States Magistrate Judge.


         Plaintiff Robert J. Larry (“Larry”), filed this action against various state agencies and employees alleging claims for disability discrimination and failure to accommodate in violation of Section 504 of Rehabilitation Act of 1973 (the “Act”), and common law claims for intentional infliction of emotional distress (“IIED”) and vicarious liability. Currently before the court is the defendants' motion to dismiss the individual defendants, with the exception of Trina Lee, the Director of the Oregon Department of Human Resources (“Lee”).

         The court finds Larry has alleged a viable claim for damages against the individual defendants in both their official and individual capacities based on a nucleus of facts common to his federal and state claims. Accordingly, the individual defendants are properly identified as defendants, they are not entitled to protection under the Eleventh Amendment, and this court has supplement jurisdiction over the IIED claim asserted against them. The defendants' partial motion to dismiss is[1] denied.


         In the First Amended Complaint filed on April 14, 2017 (the “Complaint”), Larry alleges he is disabled due to Post Traumatic Stress Disorder and physical ailments affecting his neck, shoulder, and lower back. (First Am. Compl., ECF No. 41 (“Compl.”), ¶ 20.) In January of 2013, Larry sought assistance from defendant Oregon Vocational Rehabilitation Services (the “Agency”), an agency of defendant Oregon Department of Human Services (the “Department”). (Compl. ¶ 6.) While Larry alleges his claims are based on “events occurring on September 26, 2014[, ] and ongoing, ” he provides substantial background of his interactions with the Agency arguably relevant to his claims. (Compl. at 1.)

         After the first meeting, the Agency gathered medical records necessary to make a determination on Larry's eligibility for Agency programs. (Compl. ¶ 20.) When Larry requested a copy of these records, Larry's counselor “became defensive, ” and, moving forward, refused to answer simple questions about employments options available to Larry. (Compl. ¶¶ 21, 22.) At Larry's request, defendant Donna Duff, Agency Branch Manager (“Duff”), agreed to reassign Larry to a new counselor, defendant Tracy Schaffer (“Schaffer”), in April, 2013. (Compl. ¶ 23.) Larry alleges Schaffer was also reluctant to provide information on available employment options. (Compl. ¶ 24.) As a result, Larry attended an Agency regional meeting in Portland in May 2013, and eventually obtained details on the services available to Agency clients. (Compl. ¶ 27.) However, Duff and Schaffer were upset Larry went behind their backs for the information and began retaliating against him. (Compl. ¶ 27.)

         While Larry thought he was working toward certification for self-employment as an adult care home provider, Schaffer informed him he was required to abide by the Agency's Self-Employment Guidelines (“Guidelines”) and his work to date would not count toward certification. (Compl. ¶ 29.) Schaffer provided Larry a copy of the Guidelines which, according to Larry, Duff and Schaffer did not fully understand. (Compl. ¶¶ 29, 30.) In various communications to Duff and Schaffer, Larry expressed concern, and provided proof, they were giving him the “run-a-rounds.” (Compl. ¶ 30.) At a June 12, 2014 meeting, Schaffer told Larry she thought he was “lawyering up, ” and asked him to stop sending letters as she and Duff did not have time to read them. (Compl. ¶ 30.) When Schaffer informed Larry the Guidelines required a physical capacity test and psychological evaluation, Larry expressed frustration he was just now being informed of these requirements. (Compl. ¶ 31.) Larry thought Schaffer and Duff were trying to get him kicked out of the program based on his complaints about them. (Compl. ¶ 31.) Larry took and passed the physical capacity test and attended a psychological evaluation on July 25, 2014, with defendant Robinann Cogburn, Ph.D. (“Dr. Cogburn”). (Compl. ¶ 30.)

         Larry characterized the evaluation as “one of the worst experiences of his entire life” and thought Dr. Cogburn made it apparent from the beginning that she “was there to fulfill an agenda, other than her own; she made it very clear her only interest was for [the Agency].” (Compl. ¶ 32.) Larry questioned Dr. Cogburn's qualifications to interpret standardized testing of African-American patients and felt she was uncomfortable discussing race. (Compl. ¶ 33.) When Larry complained about Duff and Schaffer, Dr. Cogburn indicated she was not interested in hearing his complaints about the Agency. (Compl. ¶ 34.) Similarly, when Larry offered the fact he had successfully sued the City of Portland twice for false arrest, and tried to explain the torts that created problems for police, she told him she did not need to know this information. (Compl. ¶ 36.) Dr. Cogburn explained she had limited time for the evaluation and could not listen to everything he wanted to talk about. (Compl. ¶ 35.)

         Dr. Cogburn did question Larry about his criminal case in the Dalles, Oregon, and the effect it had on him. (Compl. ¶ 36.) Larry summarized the difficulties he encountered in the two-year ordeal, including attorneys who wanted him to accept pleas and a judge who tried to make him admit to things he did not do while in open court. (Compl. ¶ 37.) Larry informed Dr. Cogburn he had been acquitted of eight of the nine charges in a bench trial and that the ordeal was emotionally draining. (Compl. ¶¶ 30.) Dr. Cogburn questioned the truthfulness of Larry's description but refused his offer of copies of the transcript to confirm or refute his story. (Compl. ¶ 38.) When Dr. Cogburn requested a break, Larry asked the receptionist at the Agency office for a printout of an electronic copy of the Guidelines. (Compl. ¶ 39.) Larry provided the printout to Dr. Cogburn when she returned as proof Schaffer had lied when she told him an electronic copy of the Guidelines did not exist. (Compl. ¶ 40.)

         During the subsequent lunch break, Larry decided he did not trust Dr. Cogburn and should record the rest of the evaluation. (Compl. ¶ 42.) Dr. Cogburn agreed to reschedule the remainder of the evaluation to allow both parties to record it. (Compl. ¶ 43.) However, Dr. Cogburn forgot to bring her recorder to the next appointment and, rather than again reschedule, attempted to convince Larry recordings could be a distraction and a violation of confidentiality. (Compl. ¶ 43.) Larry agreed to complete the evaluation without recording it. (Compl. ¶ 44.) At the end of the testing, Larry reported to Dr. Cogburn he was disappointed with her overall lack of concern for his well-being and his belief she manipulated the outcome of the tests, and pointed out misleading information in her Informed Consent form. (Compl. ¶ 45.) Larry asserted his right to withdraw his consent to share her findings with the Agency in the event he found errors in her report. (Compl. ¶ 45.) They eventually agreed Dr. Cogburn would present and explain her findings to him in a recorded, confidential meeting and allow Larry to correct inaccuracies. (Compl. ¶ 46.) A second recorded meeting would then be held with Larry, Dr. Cogburn, Schaffer, and Duff. (Compl. ¶ 46.)

         Larry appeared for the first meeting scheduled on September 26, 2014, and was surprised to find Schaffer and Duff in attendance with Dr. Cogburn. (Compl. ¶ 47.) During a lengthy discussion about the change in plans, Schaffer at first denied any knowledge of the agreement between Dr. Cogburn and Larry to have an initial confidential meeting between the two of them. (Compl. ¶ 48.) Upon prompting by Dr. Cogburn, Schaffer conceded she was aware of the previous arrangement, leaving Larry feeling devastated and betrayed. (Compl. ¶ 48.) Despite Dr. Cogburn's encouragement to allow a discussion of his psychiatric evaluation with everyone present, Larry ended the meeting, explaining he wanted a copy of the report and a chance to review it with Dr. Cogburn privately. (Compl. ¶ 49.) Duff then inquired if Larry was interested in discussing employment opportunities. (Compl. ¶ 50.) Larry declined the offer, stating he felt deceived and betrayed, and ended the meeting. (Compl. ¶ 50.)

         Schaffer informed Larry in mid-October 2014 she was closing his file based on his representation “in our meeting of 9/24/14 that you do not want to pursue other employment at this time.” (Compl. ¶ 51.) Larry denies making such statement, claiming Schaffer fabricated it to cover her own improper activity. (Compl. ¶ 51.) In letters dated October 24, 2014, Larry objected to the closing of his files, characterized Duff, Schaffer, and Dr. Cogburn's activities as tortious, and requested a written explanation of the justification for the closure of his file. (Compl. ¶ 52.)

         After requesting several hearings, Larry eventually participated in a hearing with an Agency Hearings Representative, who advised him “neither Schaffer nor Duff knew what they were doing and that [Larry's] file should never have been closed.” (Compl. ¶ 53.) Dr. Cogburn has consistently refused to meet with Larry to confidentially discuss her findings. (Compl. ¶ 54.) Larry alleges he has exhausted the Agency's grievance process but was denied his right to a fair and impartial hearing due to continued discriminatory policies. (Compl. ¶ 55.) He claims the defendants' conduct caused him to suffer “irreparable mental distress and psychological abuse.” (Compl. ¶ 56.) Larry ...

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