United States District Court, D. Oregon
H. Griggs Cameron Ramelli GRIGGS LAW GROUP, P.C. Attorneys
Runkles-Pearson Taylor D. Richman MILLER NASH GRAHAM &
DUNN LLP Attorneys for Defendants
OPINION & ORDER
A. HERNÁNDEZ, UNITED STATES DISTRICT JUDGE
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). The Court grants Defendants' motion.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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
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 ¶ 184. Months later, Plaintiff
repeatedly requested from Defendant ...