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Breyer v. Pacific University

United States District Court, D. Oregon, Portland Division

August 9, 2017

REBEKAH JOY BREYER, an individual, Plaintiff,
v.
PACIFIC UNIVERSITY, a domestic nonprofit corporation, Defendant.

          OPINION AND ORDER

          JOHN V. ACOSTA UNITED STATES MAGISTRATE JUDGE.

         Introduction

         Plaintiff 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 amend.[1]

         Background

         The 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.)

         Pacific's 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.)

         Breyer 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. (Id.)

         After 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.)

         Breyer 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. ¶ 35.)

         Legal Standard

         Dismissal 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).

         The 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.

         Analysis

         Pacific 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.

         I. Oregon public-accommodation claim.

         Under 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 ‚Äúthat they are ...


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