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Larry v. State

United States District Court, D. Oregon, Portland Division

February 19, 2019

ROBERT J. LARRY, Plaintiff,
v.
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.

          OPINION AND ORDER

          JOHN V. ACOSTA UNITED STATES MAGISTRATE JUDGE

         Introduction

         Plaintiff Robert J. Larry (“Larry”) filed this action against the State of Oregon (the “State”) and various state agencies, employees, and agents alleging claims for disability discrimination and failure to accommodate in violation of the Rehabilitation Act of 1973 (29 U.S.C. §§ 701-796) (the “Act”), and common law claims fo r intentional infliction of emotional distress (“IIED”) and vicarious liability. Currently before the court are the defendants' motions for summary judgment.

         The court finds a two-year statute of limitations applies to Larry's claims under the Act and Larry has failed to offer evidence he was otherwise qualified for the specific services requested, defendants denied such services solely on his disability, or defendants acted with deliberate indifference in denying such services. With regard to Larry's common law claims, the court finds the Oregon Tort Claims Act applies, Larry provided proper tort-claim notice on March 23, 2016, defendants' actionable conduct was not intended to inflict emotional distress on Larry nor was it beyond the bounds of socially tolerable conduct, and, in the absence of a viable claim against the individual defendants, vicarious liability does not exist. Accordingly, defendants' motions for summary judgment are[1] all granted and this lawsuit is dismissed with prejudice.

         Preliminary Procedural Matters

         On January 30, 2018, one day after Robinann Cogburn, Ph.D. (“Dr. Cogburn”), filed the first motion for summary judgment motion in this matter, the court issued and mailed to Larry, who is appearing pro se, a summary judgment advice notice (the “SJ Notice”). The SJ Notice advised Larry that:

The defendants have made a motion for summary judgment (Motion for Summary Judgment [76]) by which they seek to have your case dismissed. A motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure will, if granted, end your case.
Rule 56 tells you what you must do in order to oppose a motion for summary judgment. When a party you are suing makes a motion for summary judgment that is properly supported by declarations (or other sworn testimony), you cannot simply rely on what your complaint says. Instead, you must set out specific facts in depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, interrogatory answers, or others materials, as provided in Rule 56(c), that contradict the facts shown in the defendants' declarations and documents and show that there is a genuine dispute of material fact for trial. If you do not submit your own evidence in opposition, summary judgment, if appropriate, may be entered against you. If summary judgment is granted, your case will be dismissed and there will be no trial.

(Summ. J. Advice Notice, ECF No. 83.)

         The only materials initially submitted by Larry in opposition to the pending motions for summary judgment are declarations signed by Larry[2] and Shea A. Lott, Ph.D. (“Dr. Lott”), [3] on June 11, 2018, and exhibits[4] attached to the Lott Declaration. The exhibits include communications to and from Larry or between others about Larry, responses to Larry's appeals, various guides and policies of defendants Oregon Vocational Rehabilitation Services (the “Agency”) and Oregon Department of Human Services (the “Department”), and a hearing request signed by Larry. While Larry cites to a number of depositions in his initial opposition materials, he did not offer any deposition transcripts until obtaining leave of court at oral argument to supplement his opposition materials with deposition excerpts.[5]

         The evidence presented in support of or in opposition to a motion for summary judgment must be based on personal knowledge, properly authenticated, and admissible under the Federal Rules of Evidence. Fed.R.Civ.P. 56(c) (2018). The court has the obligation to determine what evidence is admissible, relevant, and substantive. Fed.R.Evid. 104 (2018). In ruling on a motion for summary judgment, the court will consider the admissibility of the proffered evidence's contents, not its form. Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003)(“At the summary judgment stage, we do not focus on the admissibility of the evidence's form. We instead focus on the admissibility of its content.”); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)(“We do not mean that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment.”). To lay the foundation for receipt of a document in evidence, the party offering the exhibit must provide the “testimony of a witness with personal knowledge of the facts who attests to the identity and due execution of the document and, where appropriate, its delivery.” United States v. Dribble, 429 F.2d 598, 602 (9th Cir. 1970).

         The statements in the Larry Declaration and the Lott Declaration are limited to material of which the declarants have personal knowledge and are properly before the court. However, Dr. Lott does not appear to lay the requisite foundation to offer exhibits attached to the Lott Declaration. Dr. Lott does not refer to or describe the exhibits in his declaration[6] and fails to establish the personal knowledge required to authenticate the exhibits. Dr. Lott does indicate he “requested complete copy of Mr. Larry's file from Dr. Cogburn” and refers to “all the documentation that has been provided to me, including Dr. Ude's review of Dr. Cogburn's psychological evaluation” implying some, if not all, of the exhibits were provided by Dr. Cogburn, the Agency, or the Department. (Lott Decl. dated June 11, 2018, ECF No. 125, ¶¶ 4, 11.)

         To the extent the exhibits were provided to Dr. Lott by defendants and defendants have not objected to them, they are properly before the court for the purposes of a summary judgment motion. On the other hand, if defendants did not provide the exhibits, Dr. Lott has failed to properly authenticate them and the court must determine if they could be made admissible in a trial setting.

         Some of the exhibits could be offered and authenticated by Larry at trial. Specifically, Exhibit 1, an email from Dr. Lott to Larry indicating the Lott Declaration was signed and available to be picked up; Exhibit 3, an October 24, 2014 letter from Larry to Cogburn, defendant Tracy Schaffer, an Agency counselor (“Schaffer”), and defendant Donna Duff, an Agency branch manager (“Duff'); Exhibit 5, a letter from Schaffer to Larry; and Exhibit 2A, a request for an impartial hearing signed by Larry, are a ll within Larry's personal knowledge, would be admissible at trial once Larry offers the foundation, and will be considered by the court.[7] Additionally, Dr. Lott could provide the foundation for Exhibit 1A, which is a letter signed by Dr. Lott.

         Exhibit 2 is a letter dated August 18, 2014, from Dr. Cogburn transmitting her “report regarding Bobby Larry” to Schaffer.[8] The defendants do not dispute Dr. Cogburn shared her findings with Schaffer or the date on which such sharing occurred. The court will consider these facts established.

         Exhibit 4 appears to be an Agency review of a discrimination complaint made by Larry against Schaffer, Duff, and another Agency counselor in which Mary Shivell, the Agency's Interim Field Manager, found the services provided were poorly organized and researched, and deficient with regard to understanding the process, consumer rights related to information, and adherence to time dispute resolution procedures, but determined none of the issues were related to Larry's disability. In the event Larry received a copy of the exhibit, which is likely as it addresses a complaint filed by him and informs him of his appeal rights, he could authenticate the exhibit at trial. Similarly, Larry could call the author of the exhibit to testify to the authenticity of the document. The court will consider Exhibit 4.

         Exhibit 6 is an unsigned, undated copy of a review[9] of two prior psychological evaluations of Larry performed by defendant Luahna Ude, Ph.D. (“Dr. Ude”), apparently at the request of defendant Robert Costello, an Agency manager or supervisor[10] (“Costello”), and defendant Sarah Sadruddin, [11] an Agency counselor (“Sadruddin”). In his declaration, Dr. Lott references Dr. Ude's review of Dr. Cogburn's psychological evaluation of Larry and could identify Exhibit 6 at trial as the document he reviewed. The exhibit bears an exhibit label, impliedly establishing the exhibit was identified and discussed during Sadruddin's deposition, making it likely Sadruddin could authenticate the document at trial. Finally, Dr. Ude, as the author of the document, could testify to its authenticity. However, due to the unsigned, undated nature of the exhibit, the court will consider it merely as a draft of Dr. Ude's review of Larry's previous psychological evaluations and the document on which Dr. Lott relied in reaching the conclusions stated in the Lott Declaration. It is unclear to what degree any defendant relied on Exhibit 6 in making decisions related to Larry so the relevance of the content of the exhibit is limited.

         Finally, Exhibits 7 and 8 are copies of Agency guidelines and policies governing self-employment, portions of which are undated, or identified as “initiated” on January 1, 2015, or revised on September 28, 2011. The Agency provided Larry certain Agency guidelines and policies, which Larry complained were outdated. Larry, as well as many defendants, may lay the foundation for the guidelines and policies provided him, and those relevant to his claims. However, it is unclear whether the exhibits contain outdated guidelines and policies or those relevant to the handling of Larry's request for assistance. The court will consider the exhibits and the general requirements found therein, but will not rely on specific requirements set forth the exhibits as they apply to Larry's claims.

         In his supplemental briefing filed after oral argument, Larry offers two pages from Cogburn's deposition without any material authenticating the excerpts. “To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Fed.R.Evid. 901(a) (2018).

         A deposition excerpt is ordinarily authenticated “by attaching the cover page of the deposition and the reporter's certification to every deposition extract submitted.” Orr v. Bank of America, 285 F.3d 764, 774 (9th Cir. 2002). However, “when a document has been authenticated by a party, the requirement of authenticity is satisfied as to that document with regards to all parties, subject to the right of any party to present evidence to the ultimate fact-finder disputing its authenticity.” Orr, 285 F.3d at 776.

         At least one defendant offered properly authenticated excerpts from the Cogburn deposition. The excerpts offered by Larry are consistent, both in content and appearance, with the properly authenticated excerpts offered by the defendants. Consequently, the court will consider Larry's deposition excerpts in this Opinion.

         Larry also offered an email chain from July 25, 2014 and July 26, 2014, between Schaffer and Kedma Ough (“Ough”) discussing Larry's initial meeting with Cogburn and the need to continue Larry's evaluation on another day. The order allowing supplemental briefing was limited to the filing of a brief and deposition excerpts, and did not contemplate the filing of additional evidence. Consequently, the email chain is not properly before the court. However, in light of Larry's pro se status, his representation the “State Defendants” produced the emails during discovery, Schaffer's ability to authenticate the emails at trial, and the lack of prejudice to defendants, the court will consider the emails to the extent relevant to the issues before the court.

         Background

         Larry's claims are based on a denial of his request for self-employment assistance from the Agency due primarily to the results of Dr. Cogburn's psychological evaluation of Larry. (Larry Dep. dated July 28, 2017, [12] 30:20-32:23.) The Agency is a federally-funded state agency providing general vocational rehabilitation services to Oregon residents. (Lee Decl. dated April 13, 2018, ECF No. 106, ¶¶ 1, 3.) The Agency “assists individuals with disabilities in getting and keeping a job, as well as assisting in advancing careers that match their skills, interests, and abilities” by providing “assessment services, counseling and guideline services, training services, and employment services.” (Lee Decl. ¶¶ 3, 5.)

         Only individuals with disabilities, defined “as a physical or mental impairment that constitutes or results in substantial impediment to employment, ” qualify for vocational rehabilitation services. (Lee Decl. ¶ 8.) Each prospective client of the Agency participates in an assessment, which includes administration of a variety of vocational tests intended to determine if a person will benefit from services provided by the Agency. (Lee Decl. ¶ 9.) If an individual is found eligible, the Agency will prepare an individualized employment plan providing services unique to each client. (Lee Decl. ¶ 9.)

         A very small percentage of individuals eligible for Agency services also qualify for self-employment assistance.[13] (Lee Decl. ¶ 10.) Additional eligibility criteria for those wishing to pursue self-employment or start a small business include:

a concise description of the proposed self-employment/business; an explanation of how self-employment meets an individual's needs better than wage employment; a list of any past training and work experience that may help qualify the individual to own and operate a business; a vocational profile or functional assessment that supports the idea of owning a small business; a list of any past training and experience (both work and non-work) that demonstrates the individual's ability to produce the product or service of the business; documentation that the individual can substantially contribute to the enterprise; feasibility data that shows the need for the service or business in the market; an explanation of pricing and profit projections; a plan for marketing and advertising that grows the business; a description of how business operations and accounting records for the business will be handled[;] proposed start-up budget and the sources of the funds (e.g., sales, PASS Plan, VR); and at least one-year financial estimate including operating expenses, income, profit, taxes, income after taxes.

(Lee Decl. ¶ 10.)

         Larry filed an application for Agency services in 2008 claiming disability based on a back injury and depression. (Schneider Decl. dated April l3, 2018, ECF No. 106, Ex. 1.) The Agency obtained documentation supporting Larry's back injury but nothing to substantiate his claim of depression. (Schneider Decl. Ex. 1.) The Agency closed the application for lack of cooperation in the Fall of 2008 when Larry refused to follow through with the psychiatric evaluation necessary to support his depression diagnosis. (Schneider Decl. Exs. 1, 2.)

         Larry filed a second application on January 8, 2013, claiming he was disabled due to major depressive order, post traumatic stress disorder, and a shoulder and back injury (the “Application”). (Schneider Decl. Ex. 3 at 1, 5-6.) He sought “help with deciding on a work goal, help finding a job, skill development, and help learning how to disclose his criminal records and disability with potential employers.” (Schneider Decl. Ex. 3 at 6.) At the time of the Application, Larry had over two years experience as a caregiver and was working sixteen hours a week in this position. (Schneider Decl. Ex. 3 at 4, 7.) He expressed a desire to get a “CNA to help him get better jobs as a caregiver” and “qualify to be a residential manager.” (Schneider Decl. Ex. 3 at 6, 7.)

         Larry was initially assigned to work with Schaffer, who had a Master's degree in rehabilitation counseling and was a certified rehabilitation counselor. (Schaffer Dep. dated March 12, 2018[14] 9:11-22.) During their April 2013 initial meeting to set goals and assign homework, Schaffer asked Larry to research different CNA programs and obtain information about available financial aid and the fee for new vehicle license tags, and an estimate on the cost to replace the tailpipe on his vehicle to enable it to pass DEQ. (Schneider Decl. Ex. 4.) Schaffer also requested Larry pursue a grant from SE Works[15] to assist in the cost of the CNA training. (Schneider Decl. Ex. 4.) Schaffer and Larry discussed additional needs, such as interview clothing, dress shoes, and a bus pass. (Schneider Decl. Ex. 4.)

         On June 19, 2014, Larry and Schaffer met with Ough, who held an MBA, to discuss the feasibility of Larry's new plan to open an adult care home. (Schneider Decl. Ex. 6 at 1.) Ough authored a three-page initial report summarizing the meeting, identifying numerous tasks to be performed by Larry and Ough, and classifying the case as “complex” in light of the regulations and in-depth requirements governing adult care homes. (Schneider Decl. Ex. 6.)

         A July 7, 2014 physical capacity evaluation by Angela Lynn Brown, PT (“Brown”) revealed Larry was capable of full-time work in the medium range of physical demand. (Schneider Decl. Ex. 7.) In late July and early August, 2014, Dr. Cogburn performed a two-day psychological evaluation of Larry on Schaffer's referral to “assess Mr. Larry's occupational capacity and rehabilitation needs” (the “Evaluation”). (Schneider Decl. Ex. 8; Cogburn Decl. filed January 29, 2018, ECF No. 77, ¶ 3.)

         At the beginning of their first meeting, Dr. Cogburn provided Larry with a “Informed Consent” form (the “Consent”). (Cogburn Decl. ¶ 3.) The Consent explained the Agency requested a psychological evaluation because it needed to know more about Larry, including an opinion on Larry's diagnosis, whether Larry had “any kind of mental or emotional condition, learning disability, or related issue, ” and providing information on Larry's “interests, abilities, strengths, and weaknesses.” (Cogburn Decl. Ex. 1 at 1.) Dr. Cogburn would provide this information in a report that would include a diagnosis and recommendations regarding services that might help Larry, job tasks that might be harder or easier for him, accommodations that would allow him to succeed, and work settings that might a better or worse fit for him. (Cogburn Decl. Ex. 1 at 1.) The Consent specifically advised Larry the report would be an Agency document, stating:

The report I write will be an [Agency] document. I will give it directly to your [Agency] counselor, or if that person is not available, to other [Agency] staff. Release of the report contents is at [Agency] discretion. I do not provide results directly to you. However, if you have questions or concerns about the results afer you meet with your [Agency] counselor, you may ask your counselor to set up an appointment with me.

(Cogburn Decl. Ex. 1 at 1.)

         With regard to confidentiality, Dr. Cogburn agreed not to provide any information about Larry to anyone other than Agency staff unless Larry was planning to hurt himself or others, or he reported a child or an elderly or disabled person was being abused. (Cogburn Decl. Ex. 1 at 1-2.)

         The Consent expressly advised Larry “[t]here is no legal privilege of confidentiality in administrative evaluations. This means that if a court were to subpoena my records or order me to testify about you I would have to provide the information that I have.” (Cogburn Decl. Ex. 1 at 2.) The Consent informed Larry of possible risks resulting from the Evaluation as follows:

[I]t is possible that you could be surprised by evaluation results or disagree with my conclusions or recommendations. In such a situation, you may feel distressed. Also, [Agency] staff may use information from this evaluation to make decisions about your eligibility for services, or about whether specific services will be provided for you. You may disagree with the decisions they make, or feel that their decisions are not in your best interest. I do not make these decisions myself, and I do not try to promote any particular outcome. Instead, I try to provide clear and unbiased information.

(Cogburn Decl. Ex. 1 at 2.) Finally, the Consent explained Dr. Cogburn is not an employee of the Agency and maintains an independent private practice with files, billing procedures, and clinical practices. (Cogburn Decl. Ex. 1 at 2.) Larry signed the Consent on July 25, 2014, expressly acknowledging he read the Consent, had the opportunity to ask questions about the Evaluation and have issues explained to him, and agreed to participate in the Evaluation under the conditions stated in the Consent. (Cogburn Decl. Ex. 1 at 2.) The Consent did not provide information on how to stop or withdraw from an evaluation. (Cogburn Dep. dated March 14, 2018, [16] 69:4-25.)

         In her report dated August 18, 2014, summarizing the Evaluation, Dr. Cogburn acknowledged a 2012 psychological evaluation found Larry “was affected by major depressive order and post-traumatic stress disorder” related to a criminal trial in which Larry was convicted of reckless endangerment and sentenced to probation in 2007. (Schneider Decl. Ex. 8 at 1-2.) Larry initiated the 2012 evaluation, selecting the evaluator because he “understood minorities and the court system” and it would be helpful to talk with someone who “understood [Larry] as a black man.” (Schneider Decl. Ex. 8 at 2-3.)

         Larry was “polite, but cautious and sometimes somewhat defensive and/or confrontational” during the initial meeting with Dr. Cogburn. (Schneider Decl. Ex. 8 at 7.) Larry appeared highly goal-oriented and expressed concern the Agency may not entirely support him in his request for startup capital and other services to allow him to open his adult care home. (Schneider Decl. Ex. 8 at 11.) Dr. Cogburn described Larry's speech content as “verbose and overly inclusive of detail, ” and noted his “lengthy play-by-play narratives of events” in response to questions increased the interview time from 1.5 hours to 2.5 hours and required the scheduling of a second meeting to complete the testing. (Schneider Decl. Ex. 8 at 7.)

         Larry initially focused on discussing the proper interpretation of the Agency manual with Dr. Cogburn but his attention was redirected when Dr. Cogburn explained interpretation of manuals was not within her expertise and her role “in relation to his self-employment goal was related to providing information to help determine whether he is affected by functional limitations that would affect his ability to operate the proposed business.” (Schneider Decl. Ex. 8 at 4-5.) Larry expressed dissatisfaction with the Agency's “slow progress, ” and described his participation in the Evaluation as a “major setback, ” noting the Evaluation should have occurred in January 2013 when he completed the Application. (Schneider Decl. Ex. 8 at 3.)

         Larry also complained about Agency staff, explaining his counselor gave him an outdated version of the Agency manual and when he asked her to email him a current version, she lied about the existence of electronic versions of the current manual.[17] (Schneider Decl. Ex. 8 at 4.) Larry reported feeling “manipulated” by the Agency and was concerned the Agency was resistant in moving toward his goal of self-employment, surmising the Agency had no t been involved with many requests for self-employment assistance. (Schneider Decl. Ex. 8 at 4.) He indicated his “primary stress [was] related to his interactions with [the Agency].” (Schneider Decl. Ex. 8 at 8.)

         Larry objected to Dr. Cogburn's questions regarding his ethnic and cultural background, stating he “identifie s as an American.” (Schneider Decl. Ex. 8 at 5.) Larry also expressed concern over Dr. Cogburn's ability to perform a proper evaluation, questioned Dr. Cogburn's experience with individuals involved in court proceedings, and planned to inquire about other psychologists under contract with the Agency. (Schneider Decl. Ex. 8 at 7.)

         Larry appeared “more guarded” during the second meeting and requested he be allowed to record his interactions with Dr. Cogburn. (Schneider Decl. Ex. 8 at 7.) Dr. Cogburn explained the standardized tests were protected and could not be recorded. (Schneider Decl. Ex. 8 at 7.) She then informed Larry she would need to record any interactions he recorded and, as she did not have recording equipment available, offered to reschedule the second meeting to allow both of them to record their interaction at a later date. (Schneider Decl. Ex. 8 at 7.) Larry agreed to complete the Evaluation that day without recording the interaction. (Cogburn Decl. ¶ 7.)

         Larry commented at some length on the proper interpretation of the “Limits of Confidentiality” provision found in the Consent. (Schneider Decl. Ex. 8 at 7.) They eventually agreed the provision allowed Dr. Cogburn to provide information about Larry only if her records were subpoenaed, or a court ordered her to produce records or testify. (Schneider Decl. Ex. 8 at 7.) Larry commented the language was unclear and should be revised. (Schneider Decl. Ex. 8 at 7.) Dr. Cogburn noted Larry's “unusual focus on details and litigious matters suggested distrust and vigilance.” (Schneider Decl. Ex. 8 at 7.)

         Dr. Cogburn performed numerous tests and diagnosed Larry with mild neurocognitive disorder with deficits in executive functions, obsessive-compulsive personality disorder (provisional), and partially resolved post-traumatic stress disorder, with residual distrust and vigilance. (Schneider Decl. Ex. 8 at 11.) Dr. Cogburn generally noted Larry's intellectual functioning was within the average range with evidence of deficits in executive functions and indications suggesting narcissistic, obsessive-compulsive, and paranoid features. (Schneider Decl. Ex. 8 at 10-11.) She cautioned his “[e]xecutive function impairment may affect functioning across multiple domains on tasks requiring cognitive flexibility, fluid problem-solving, and complex organization” and his “[p]roblematic personality features are likely to lead to limitations in interpersonal functioning.” (Schneider Decl. Ex. 8 at 12.) Dr. Cogburn's recommendations provided:

1. Mr. Larry's average intellectual functioning and post-secondary level academic skills would be expected to support success in a wide variety of occupational task that are otherwise suited to his strengths.
2. Due to executive functions deficits, Mr. Larry would be expected to succeed most easily when performing tasks with well-established procedures and consistent task demands. He may have more difficulty in situations where he must respond to emerging problems or task demands and generate solutions on a fluid, situation-related basis.
3. Also related to executive function deficits, Mr. Larry is likely to succeed most easily if he performs tasks sequentially (i.e., completes one task them moves to another). He may have more difficulty if he [is] asked to keep track of multiple task sequences simultaneously or switch back and forth between multiple tasks in progress.
4. Mr. Larry's success may also be supported by providing specific, well-defined assignments. If he were to be assigned a large goal or project, he should receive support in areas of identifying components, developing a plan, organizing and coordinating elements, and prioritizing details. Support should include coaching, evaluation of his work as he completes each step, and feedback as needed. However, as discussed below, evidence of problematic personality functions raises some questions as to whether he would accept such support.
5. Mr. Larry demonstrates above-average interest in the accuracy and consistency of details. This suggests that he may perform well in occupations where tasks involve checking or matching details. However, he made some errors in his interpretation and application of information during this evaluation, and he ma y sometimes become bogged down when presented with too many details. He may succeed most easily with specific training, frequent accuracy checks, and tasks that involve a limited number of items to be checked or matched.
6. Mr. Larry presented with an unusual degree of vigilance and attention to legalistic matters and procedural details. The psychological basis of these behaviors is not entirely clear, though they may represent a goal-oriented strategy that is affected by problematic personality traits and/or residual post-traumatic effects. Regardless of its roots, this feature may present a significant obstacle to productive participation in services and to success in other aspect of occupational functioning.
7. The evidence of possible personality disorder or disorders, and the nature of these possible conditions, raises some concerns in relation to Mr. Larry's likely responses to service providers and in relation to his stated occupational goals. He may have difficulty forming and maintaining working alliances, both in service settings and in occupational settings. He may have difficulty forming an accurate assessment of his own performance and may have difficulty accepting corrective feedback. He may reject professional recommendations and advice that is not in line with his own views. He may tend to remain vigilant and distrustful despite efforts by other people to provide support and understanding. He may perceive slights or insults that are not intended, and may be quick to find fault with others. He may have a strong need to achieve compliance from others, or to ensure that other people act according to his requirements and expectations. He may feel that his personal strengths entitle him to such compliance, and may respond with anger and retaliation if his expectations are not met or if he feel criticized or rejected.
8. Objective observation of his actual performance and behavior, and reports from his supervisor and from others who are familiar with his performance and behavior in occupational settings, may be helpful in gaining further insight into his occupational functioning, strengths, and limitations.
9. Mr. Larry's statements regarding his history, behavior, and performance should be verified when they are to be used in service planning.

(Schneider Decl. Ex. 8 at 12-13.)

         Dr. Cogburn regularly performs psychological evaluations of Agency clients pursuant to case-by-case contracts with the Agency. (Cogburn Decl. ¶ 2.) She considers the Agency, not the individual, to be her client in this scenario. (Cogburn Dep. 13:22-24, 14:4-10.) In conducting the Evaluation, Dr. Cogburn performed her obligations pursuant to her contract with the Agency and offered her professional judgment. (Cogburn Decl. ¶¶ 8-9.) She did not discuss Larry with anyone at the Agency prior to completing the Evaluation. (Cogburn Dep. 109:1-11.)

         Dr. Cogburn has performed between 1, 000 to 2, 000 psychological evaluations, but has likely evaluated less than one hundred black males. (Cogburn Dep. 11:16-20; 27:14-21.) She did not intend to cause Larry ...


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