United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
V. ACOSTA UNITED STATES MAGISTRATE JUDGE.
Rebekah Joy Breyer (“Breyer”) is a person with
cerebral palsy, a physical disability. Breyer was a student
in defendant Pacific University's (“Pacific”)
graduate school for two months. Breyer alleges she withdrew
from Pacific because of Pacific's discriminatory conduct.
Breyer now asserts violations of state and federal
anti-discrimination statutes and contract-based claims.
Pacific moves to dismiss Breyer's state-law
discrimination claim and contract claim, arguing that both
claims are insufficient as a matter of law. (ECF No. 8.) The
court grants Pacific's motion, with leave to
following factual allegations appear in the complaint and,
for the purposes of this motion to dismiss, are taken as
true. Zucco Partners, LLC v. Digimarc Corp., 552
F.3d 981, 989 (9th Cir.2009). Plaintiff Rebekah Joy Breyer
(“Breyer”) is a person with cerebral palsy, a
physical disability affecting her neurological system,
musculoskeletal function, and motor skills. (Compl.
¶¶ 11-12.) Prior to the events giving rise to this
lawsuit, Breyer completed a Master's Degree at Colorado
State University (“CSU”). (Id.
¶¶ 1, 18.) Breyer applied for and was offered
admission to defendant Pacific University's
(“Pacific”) doctoral program in psychology.
(Id. ¶¶ 2, 13, 20.) Breyer alleges that
Pacific's professors and administrators discriminated
against her by consistently questioning her ability to
complete the doctoral program based on her perceived
limitations. (Id. ¶ 2.)
Doctor of Psychology program is part of the School of
Professional Psychology (“SPP”) at Pacific.
(Compl. ¶ 2.) During the admissions process, Breyer
faced questions about her disability which she perceived as
discriminatory, including a supplemental phone interview
inquiring about her physical abilities and the perceived
difficulties Breyer would face in the program. (Id.
¶¶ 16-18.) Pacific's representatives
communicated a set of “essential job functions”
required of SPP students. (Id. ¶¶ 17-18.)
Breyer reviewed the “essential functions” with
her thesis advisor at CSU, and determined she could perform
them. (Id. ¶ 18.) Her advisor also questioned
whether all of the listed functions were truly essential.
(Id.) Breyer accepted Pacific's offer of
admission and began classes. (Id. ¶ 21.) She
also requested a meeting with the SPP Director of Admissions
about the discriminatory aspects of the admissions process.
(Id.) Breyer alleges she received multiple written
documents containing commitments by Pacific to provide her
with an equal opportunity to complete the doctoral program
and to not discriminate against her, including enrollment
agreements, course catalogs, and student handbooks.
(Id. ¶ 23.)
continued to face discriminatory conduct after she
matriculated at Pacific. SPP administrators expressed a lack
of training in or knowledge of the ADA. (Id. ¶
26.) A professor asked Breyer to explain her disability to
classmates, which Breyer declined to do. (Id.
¶¶ 27-28.) Breyer complained to an administrator
about the professor's request and reiterated her
complaints about the admissions process. (Id. ¶
27.) In a subsequent meeting with administrators, Breyer
requested ADA training for SPP staff to prevent similar
incidents in the future. (Id. ¶ 28.) The
administrators were noncommittal about future training.
Breyer expressed her displeasure about Pacific's
treatment of her disability, SPP administrators summoned
Breyer to a meeting. (Compl. ¶ 30.) Breyer again
complained about the discriminatory treatment she experienced
when applying to and while attending classes at Pacific.
(Id.) The administrators did not address
Breyer's complaints. (Id.) Instead, the
administrators questioned whether Breyer could complete the
doctoral program due to her disability and the limitations
which the administrators perceived Breyer as having, without
discussing whether Pacific could offer accommodations to
Breyer. (Id.) The administrators also suggested that
Breyer consider other career paths. (Id.)
again complained to professors and administrators at Pacific
regarding their discriminatory conduct. (Compl. ¶ 31.)
She asked Pacific's employees to stop questioning her
abilities and to work with her to make any needed adjustments
to the program. (Id.) Breyer requested another
meeting to address the professors and administrator's
concerns regarding her disability. (Id. ¶ 32.)
The Director of Clinical Training for the SPP attended the
meeting, and stated that she would not feel comfortable
recommending Breyer for a practicum placement because of
Breyer's perceived limitations. (Id. ¶ 33.)
Breyer requested an assistant as an accommodation in
administering standardized psychological assessments.
(Id.) A week later, Pacific's administrators
informed Breyer that she would have to bear the cost of her
requested accommodation. (Id. ¶ 34.) Breyer
could not afford to pay for an assistant. (Id.)
Breyer believed that Pacific, through its employees, wished
Breyer to withdraw from the program. (Id.) Breyer
withdrew from the SPP shortly after being informed she would
have to pay for her own accommodations. (Id. ¶
for failure to state a claim under Federal Rule of Civil
Procedure (“Rule”) 12(b)(6) is appropriate when
“the complaint either (1) lacks a cognizable legal
theory or (2) fails to allege sufficient facts to support a
cognizable legal theory.” Zixiang Li v. Kerry,
710 F.3d 995, 999 (9th Cir. 2013). Rule 8 requires that
complaints and counterclaims in federal court consist of
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Pleadings need not
contain detailed factual allegations, but “labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do[.]” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). However, a claim
“may proceed even if it strikes a savvy judge that
actual proof of [necessary] facts is improbable, ” and
the plaintiff is unlikely to succeed on the merits.
Id. at 556. Legal conclusions in a complaint or
counterclaim are not entitled to a presumption of truth.
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
court generally must “accept all allegations in the
complaint are true and draw all reasonable inferences in
favor of the nonmoving party.” Dahlia v.
Rodriguez, 735 F.3d 1060, 1066 (9th Cir. 2013) (quoting
TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir.
1999)). On a motion to dismiss for failure to state a claim,
the court may consider only the pleadings themselves,
exhibits that are physically attached to the complaint or
counterclaim, and matters of which the court may take
judicial notice. Swartz v. KPMG LLP, 476 F.3d 756,
763 (9th Cir. 2007) (per curiam). The court is not bound to
accept as true allegations contradicted by “matters
properly subject to judicial notice or by exhibit[s]”
attached to the complaint or counterclaim. Sprewell v.
Golden State Warriors, 266 F.3d 979, 988 (9th Cir.
2001), amended on denial of reh'g 275 F.3d 1187.
moves to dismiss two of Breyer's claims. First, Pacific
seeks dismissal of Breyer's state-law claim for
public-accommodation discrimination. Pacific argues it is not
a public accommodation because it does not offer services to
the general public. Second, Pacific seeks dismissal of
Breyer's breach of contract claim because the existence
and terms of a contract are insufficiently alleged, any
economic damages result from Breyer's voluntary
withdrawal, and lost wages are unduly speculative.
Oregon public-accommodation claim.
ORS § 659A.142(4), a place of public accommodation may
not “make any distinction, discrimination, or
restriction because a customer or patron is a person with a
disability.” Oregon law defines “place of public
accommodation” to include “[a]ny place or service
offering to the public accommodations, advantages, facilities
or privileges whether in the nature of goods, services,
lodgings, amusements, transportation or otherwise.” Or.
Rev. Stat. § 659A.400(1)(a). The statutory definition
excludes “[a]n institution, bona fide club or place of
accommodation that is in its nature distinctly
private.” Id. § 659A.400(2)(e). Oregon
appellate courts have held that an entity may be de
facto open to the public despite being nominally private
if the membership criteria are so non-selective “that
they are ...