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Brady v. Portland State University

United States District Court, D. Oregon

April 2, 2019


          David H. Griggs Cameron Ramelli GRIGGS LAW GROUP, P.C. Attorneys for Plaintiff

          P.K. Runkles-Pearson Taylor D. Richman MILLER NASH GRAHAM & DUNN LLP Attorneys for Defendants

          OPINION & ORDER


         Plaintiff Gilbert Brady filed this action against Defendants Portland State University, Margaret Everett, Leslie B. Hammer, Charlotte Fritz, Ellen Skinner, Todd Bodner, Krista Brockwood, Liu-Qin Yang, Larry Martinez, Jennifer Dimoff, and DOES 1 through 25. Plaintiff brings claims under 42 U.S.C. § 1983 for violation of his due process rights; Title IX, 20 U.S.C. §§ 1681-1688; Or. Rev. Stat. (“ORS”) § 659.852; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et. seq.; the Age Discrimination Act of 1975, 42 U.S.C. § 6101, et. seq.; and for breach of contract. Defendants Everett, Hammer, Fritz, Skinner, Bodner, Brockwood, Yang, Martinez, and Dimoff (“Defendants”) move to dismiss this action for failure to state a claim under Fed.R.Civ.P. 12(b)(6).[1] The Court grants Defendants' motion.


         In 2011, Plaintiff began working for Defendant Hammer, a professor at Portland State University (“PSU”), as a post-baccalaureate research assistant in her lab. First Am. Compl. (“FAC”). ¶ 16, ECF 3. At the time, Defendant Hammer was seeking a Department of Defense funded grant to study veteran reintegration into work and family life after 9/11. Id. Plaintiff ultimately assisted Defendant Hammer in writing her grant application over the spring and summer of 2011. Id. at ¶ 18. He continued to work and volunteer with Defendant Hammer through 2013. Id. at ¶ 20. During this time, he also took post-baccalaureate classes at PSU, continued to drill part-time with the Oregon Army National Guard, and worked as a full-time psychology technician at the Portland Veteran's Affairs Medical Center. Id. at ¶¶ 18-19, 21.

         Plaintiff alleges that he and Defendant Hammer “developed a mutual interest in Plaintiff applying to [PSU's Applied Psychology Program] and continuing in Hammer's lab as a doctoral student in [Industrial/Organizational (“I/O”)] Psychology.” Id. at ¶ 20. Plaintiff applied to the Applied Psychology Program at PSU for the fall 2013 term. Id. at ¶ 24. In April of 2013, Defendant Skinner, chair of the Psychology Department, informed Plaintiff that he had been accepted to the program to study I/O Psychology and would be advised by Defendant Hammer. Id. at ¶ 27.

         In the meantime, Defendant Hammer secured a $5 million grant funded by the Department of Defense. Id. at ¶ 25. The funding was for her “Study for Employment Retention of Veterans” or the “SERVe” project. Id. at ¶¶ 25-26. Plaintiff joined Defendant Hammer's lab in mid-September of 2013, just before the start of his first-year classes. Id. at ¶¶ 28-29. Plaintiff was a “contractually funded graduate research assistant . . . assigned to the SERVe grant with the [Applied Psychology] Program promising him” tuition remission contingent on his progress and funding availability. Id. at ¶ 29. But a few weeks later, Plaintiff was removed from the SERVe project and assigned to a teaching assistant position instead. Id. at ¶¶ 51, 76-77. Plaintiff also alleges that, during his second year in the program, Defendant Hammer used Plaintiff's PSU-based grant funding to hire a post-doctoral research assistant at Oregon Health and Science University, where Defendant Hammer held a joint appointment. Id. at ¶¶ 4, 80. Even though Plaintiff was removed from the project, Defendant Hammer is alleged to have continued to “exploit Plaintiff's labor for free on SERVe” despite Plaintiff's other demands. Id. at ¶ 86.

         “Plaintiff succeeded academically throughout his first three years in the Program” and successfully defended his master's thesis in February of 2017. Id. at ¶ 39-40. Throughout this time, Defendant Hammer served as Plaintiff's main academic advisor and is alleged to have promised to continue to support Plaintiff. Id. at ¶ 41. She provided positive annual evaluations of Plaintiff and found Plaintiff was qualified to advance as a Ph.D. candidate along with the rest of his cohort as late as March of 2017. Id. at ¶ 42.

         Plaintiff alleges, however, that he had problems working with Defendant Hammer during his time in the Applied Psychology Program. For example, Plaintiff alleges that Defendant Hammer expected “‘100% commitment' from Plaintiff without pay” for the six months preceding his enrollment. Id. at ¶ 44. She is alleged to have publicly ridiculed and insulted Plaintiff during his first few weeks in the program. Id. at ¶¶ 48, 50. After Plaintiff discovered coding errors in the SERVe data, Plaintiff alleges that Defendant “scapegoated” him and Defendant Bodner, her co-investigator. Id. at ¶¶ 112-15.

         Plaintiff also had trouble with other professors at PSU. Defendant Fritz, one of Plaintiff's professors at PSU during his first year, is alleged to have harassed Plaintiff about his presence in the graduate program and assigned Plaintiff extra work. Id. at ¶¶ 52-58. Plaintiff also alleges that other individuals in the department-including Defendants Skinner and Bodner-“persisted in treating Plaintiff differently, adversely, and recklessly compared to similarly situated graduate students.” Id. at ¶ 156. For example, Plaintiff alleges that no other graduate student was threatened with expulsion or reprimanded for taking on outside paid employment in violation of department policy. Id. at ¶¶ 78, 131-35. In addition, despite having been approved for up to 20 hours per week of work on the SERVe project during the summer of 2014, Defendant Brockwood-a SERVe project manager-failed to assign Plaintiff sufficient work, causing Plaintiff and his family severe economic and psychological strain. Id. at ¶¶ 69-71.

         Due to continuing problems with faculty, Plaintiff scheduled a meeting with Defendant Skinner in her capacity as chair of the department in the spring of 2015. Id. at ¶ 94. Plaintiff expressed his concerns about the behavior of Defendants Fritz and Hammer, to which Defendant Skinner replied that she was “powerless to do anything further than recommend Plaintiff switch advisors after defending his thesis.” Id. at ¶¶ 95, 102.

         In November of 2016, Defendant Hammer informed Plaintiff that she would be resigning as Plaintiff's advisor after he defended his thesis. Id. at ¶ 136. She also told Plaintiff that he could identify his own advisor and was “qualified to continue on in the Program as a PhD I/O candidate.” Id. at ¶ 137.

         On April 5, 2017-after the successful defense of his thesis in February-Plaintiff met with Defendant Bodner about his options for obtaining a new advisor. Id. at ¶ 141. At his meeting, they discussed Plaintiff's solid base of knowledge and other abilities, and Defendant Bodner reassured Plaintiff that he should approach Defendant Yang, another PSU professor, about possibly supervising him through comprehensive exams. Id. at ¶ 147. Plaintiff reached out to Defendant Yang, and Defendant Yang agreed to meet to discuss it further. Id. at ¶ 146.

         A day after his meeting with Defendant Bodner, Plaintiff received an email from Defendant Hammer informing him that “the only reason he could not continue in the I/O doctoral area of study . . . was because everyone who wanted a ‘new student' took on a ‘new student' from the ‘new student applicant pool' of younger and less qualified applicants.” Id. at ¶ 151. Defendant Hammer also indicated in this email that she knew Plaintiff was planning on meeting with Defendant Yang and that this meeting would “not be necessary.” Id. at ¶¶ 152, 154.

         His delayed post-master's review-which had been endorsed by Professors Kaufman and Steele-indicated that Plaintiff had been “dismissed from I/O area.” Id. at ¶¶ 142, 164. Based on this recommendation, Defendants Bodner and Skinner allegedly concluded that Plaintiff's thesis committee had “recommended Plaintiff's dismissal from the entire Applied Psychology program.” Id. at ¶ 165. Plaintiff, however, had been told by Professors Kaufman and Steele that “they believed there was still a place as a doctoral student for Plaintiff within the Program.” Id. at ¶ 164.

         On the recommendation of Professor Steele, Plaintiff told Defendant Skinner that he believed that he had endured “years of unrelenting harassment and unfair treatment from Hammer and Fritz.” Id. at ¶¶ 167-68. Defendant Skinner allegedly responded by telling Plaintiff and he had “‘[n]ever admitted to (his) mistakes'” and “had a poor attitude.” Id. at ¶ 169. Defendant Skinner ended the meeting by telling Plaintiff “she ‘didn't know how to conduct an investigation into fairness' and that it was ‘a shame' that someone with as much promise as the Plaintiff would have to leave the Program.” Id. at ¶ 173.

         In late May, Plaintiff met Defendant Everett, the Dean of the Office of Graduate Studies, to discuss his post-master's review. Id. at ¶ 178. Plaintiff was given an opportunity to interview with faculty at the Business School and Applied Psychology Program who might supervise Plaintiff during the remainder of his doctoral studies. Id. Plaintiff also sought to meet with Drs. Martinez and Dimoff, both professors at PSU, about supervising Plaintiff. Id. at ¶¶ 180-82. Dr. Dimoff declined to supervise Plaintiff, and Dr. Martinez declined to meet with him. Id.

         On May 31, Plaintiff's committee voted on a second post-master's review. Id. at ¶ 179. Defendant Hammer endorsed Plaintiff's full dismissal from the Applied Psychology Program, but Professors Steele and Kaufman abstained from voting. Id. at ¶ 179. On July 17, Defendant Bodner informed Plaintiff by email that faculty had met 11 days prior to vote to recommend Plaintiff's dismissal from the Applied Psychology Program. Id. at ¶ 183. But Plaintiff alleges that not all faculty were available to vote that day. Id. at ΒΆ 184. Months later, Plaintiff repeatedly requested from Defendant ...

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